Dell's Original Uncoverage Logo by Antonio F. Branco, Comically Incorrect

Tuesday, November 15, 2011

NYC - 1 Occupy Wall Street - 0

NYC - 1

Occupy Wall Street - 0

End Of The First Quarter Of play

By Dell Hill

Here’s the court’s order in the matter of NYC v Occupy Wall Street & Zuccotti Park:

“The parties dispute whether the First Amendment applies to the actions of the owner in enacting the rules. For purposes of this application, the Court assumes that the First Amendment applies to the owner of Zuccotti Park, thus obviating petitioners’ request for a hearing as to whether Zuccotti Park is traditional public forum, or a limited public forum. Assuming arguendo, that the owner’s maintenance of the space must not violate the First Amendment, the owner has the right to adopt reasonable rules that permit iUo maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law.
The Court is mindful of movants’ First Amendment rights of freedom of speech and peaceable assembly. However, “[e]ven protected speech is not equally permissible in all places and at all times.” (Snyder v Phelps, 131 S Ct 1207, 1218 [2011], quoting Cornelius v NAACP Legal Defense
& Ed. Fund, Inc., 473 US 788, 799 [1985].) Here, movants have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment.

To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner’s rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.

The court could have ruled that the First Amendment doesn’t apply to Zuccotti Park because it’s privately owned, but it skipped that step and ruled more broadly that the new rules banning tents are permissible time, place, and manner restrictions in principle. In theory, that means even if OWS tries to move to a fully public park, the city could stop them from setting up a tent city. On to the appeal!

And bear in mind that this is just one court’s New York.  This will have no affect on any other occupy location, although it may be referred to.

The next step is an anticipated motion to reverse, which will go to an appellate court in New York.

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