Court Rules OWS Has No Right to Remain in Park

By Jeralyn, Section Civil Liberties
Posted on Tue Nov 15, 2011 at 05:34:07 PM EST
Tags: Occupy Wall Street (all tags)

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Here's the ruling of Judge Michael Stallman finding the Occupy Wall Street protesters have no First Amendment right to remain in Zuccotti Park and denying their request for a restraining order against law enforcement.

The case is Matter of Waller v City of New York, Index No. 11295712011. While the court said it assumes that the First Amendment applies to the owners of Zuccotti Park, the owner has the right to adopt reasonable rules to maintain a safe and clean publicly available space. It said the movant (protesters) had not demonstrated "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." [More...]

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."

It also noted:

The owner of Zuccotti Park has represented that, after cleaning and restoration ofZuccotti Park, it will permitthe Occupy Wall Street demonstrators to reenter the Park and to resume using it, in conformity with law and with the owner's rules.

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Court Rules OWS Has No Right to Remain in Park | 41 comments (41 topical)

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This is not a surprise (5.00 / 4) (#1)
by sj on Tue Nov 15, 2011 at 05:49:57 PM EST

It's always more of a surprise when courts rule in favor of the Occupiers.

Yes, Virginia, the attacks on Occupy (5.00 / 6) (#2)
by caseyOR on Tue Nov 15, 2011 at 06:10:31 PM EST

were coordinated. The mayors and police departments conferred with each other (the wonders of conference calling). Various federal agencies (DHS, FBI) advised the police on tactics and timing.

Beans were spilled by Oakland mayor Jean Quan. The White House won't be happy with her.

Still, it is always nice to have one's suspicions confirmed. Since all the mayors hit exactly the same bullet points in explaining why the Occupiers had to go, this is not a surprise.

Portland mayor Sam Adams did not ban the press (the clearing out of the Occupiers was televised Live here.) And, luckily, the police did not indiscriminately bash in heads (perhaps because the police chief wants to run for mayor next year.) Still, we've heard ad naseum about the dangers to health and safety. In Portland we had the added keening and wailing about the damage to the trees in the park. We love our trees here, so that was kind of effective.

Now, let us see just how far and how hard the MSM runs with this story.My guess is not very.

: That's what I've been saying (5.00 / 3) (#3)
by sj on Tue Nov 15, 2011 at 06:18:18 PM EST

as have several others. Thanks for finding that. Incredibly, I might have missed it otherwise.

: Glad to see that the mayor of Philadelphia (5.00 / 2) (#9)
by Peter G on Tue Nov 15, 2011 at 07:33:45 PM EST

is still not using the same playbook as other cities. Although I fear we may be getting on board in a couple of weeks, when a long-planned construction and renovation project is due to begin in the precise location that Occupy Philly has been using.

Ever since the 2004 convention in NYC, (5.00 / 3) (#4)
by inclusiveheart on Tue Nov 15, 2011 at 06:35:42 PM EST

it has been clear that free speech and the right to congregate peacefully have both been eliminated from American daily life.

I lived in NYC for years and people wandering around with signs of protest were just a part of the landscape and no one - especially none in law enforcement - gave them a second thought.

Around the time of the convention I was up on business going out to dinner with a friend. The cops got so freaked out by some people protesting in costume - not scary but really kind of ridiculous - with signs - running down Park Ave South during rush hour that they scared us all to death - stopped all foot traffic and actually created a situation that could have started a stampede where regular old pedestrians couldn't move and might be frightened enough to start to push to evacuate.. Oh and these cops in some cases had guns drawn or their hands on their guns...

All because about four twenty-somethings were running up the avenue with signs. Sorry but, you know it is bad when that's all it takes to freak New Yorkers and the NYPD out.

At that time though, everyone thought that this overreaction was "ok". But it wasn't okay then and it isn't now.

If they cannot use tents, etc... (5.00 / 1) (#7)
by Edger on Tue Nov 15, 2011 at 07:07:49 PM EST

I can imagine this developing into rotating people in and out of the park - with no one sleeping there - 24 hours a day...

...the rules adopted, (5.00 / 1) (#10)
by KeysDan on Tue Nov 15, 2011 at 07:34:56 PM EST

concededly after the demonstrations began, ......is the troubling part of the ruling, as well as, having the NYPD enforce them, on behalf of the owners, as the owners may change them from time to time, especially when situational in nature. Judge Stallman seems to feel that by acknowledging this retroactive oddity he can make it legally disappear. This seems to be more of a political decision than a legal one.

I think the hope is (5.00 / 3) (#11)
by KeysDan on Tue Nov 15, 2011 at 08:01:37 PM EST

that the Occupy movement can be squelched, or at least marginalized, prior to the release of the pro-one percent, anti-ninety percent Super Committee recommendations.

: All that is going to happen though (5.00 / 2) (#14)
by Militarytracy on Tue Nov 15, 2011 at 08:56:57 PM EST

is that they will inflame the 99% and eventually we all know where all this ends up in the end. Law enforcement opens up lethally on protesters, people die, all of our leaders are shamed beyond repair, things change with much shame, tears, heartbreak, horror.
My daughter has been really busy at her home with her babies and she did not know about OWS. And I did not talk about it among family because sometimes I need to focus on something other than politics. She was having a break from the kids, came over alone and was sitting with us watching the news and she said the most incredible damned thing I have heard yet. She was watching clips of the police going after the protests and with a shocked look on her face she asked my husband and I if this was happening in the United States. She really thought the clips must be from somewhere else. This supposedly can't happen here. I thanked her for freshening my vision. I felt a little shocked the first two times Occupy protesters were attacked and now it has become a ritual of witnessing degrees of being attacked.

: hahahaha (none / 0) (#12)
by Edger on Tue Nov 15, 2011 at 08:13:39 PM EST

Obama buying his own hopey-changey campaign bs?

Bloomberg has lost his mind (5.00 / 2) (#13)
by Capt Howdy on Tue Nov 15, 2011 at 08:14:07 PM EST

he (and apparently a bunch of other cities in a coordinated effort according to a slip of the tongue of the mayor of Oakland) on the eve of already planned demonstrations to mark the anniversary? those are now going to explode.

Dirty Deeds (5.00 / 0) (#20)
by Lora on Wed Nov 16, 2011 at 09:43:21 AM EST

What democratic society moves in to bust up a peaceful demonstration in the middle of the night and denies media access? How can you justify turning out hundreds of people onto the city streets of NYC at midnight for reasons of health and safety?

This denial of a TRO seems reasonable. (none / 0) (#5)
by oculus on Tue Nov 15, 2011 at 06:48:31 PM EST

Not the final ruling on the merits. Plus the property owner conceded plaintiffs may be present in the park. Shopping centers must honor First Amendment rights but they aren't required by open 24/7 or permit camping in the mall.

That's what seems to be getting lost (5.00 / 1) (#17)
by jbindc on Wed Nov 16, 2011 at 08:34:57 AM EST

In the headline. The judge didn't say they couldn't protest - he just said they can't have tents and move in.

Seriously- did anyone really think it was ok for these people to stay there indefinitely and live there?


Do they need a permit (5.00 / 1) (#18)
by Edger on Wed Nov 16, 2011 at 09:12:26 AM EST

for a revolution?


Are you allowed (none / 0) (#37)
by jbindc on Wed Nov 16, 2011 at 02:20:09 PM EST

To set up camp indefintely on the sidewalk and city easement in front of your neighbor's house?


whooooosh... (5.00 / 1) (#38)
by sj on Wed Nov 16, 2011 at 02:29:56 PM EST

: Incredible, isn't it? (3.00 / 2) (#39)
by Edger on Wed Nov 16, 2011 at 04:13:39 PM EST

Lol...
(walks away shaking head and laughing)

I did... (5.00 / 2) (#19)
by kdog on Wed Nov 16, 2011 at 09:13:17 AM EST

those were the rules, before they just got re-written post-wrongful eviction. 24/7 public access must be allowed at Liberty Plaza by Bloomberg's girlfriend's outfit, Brookfield Properties. Never any prohibition on tents or taking a nap.

When 24/7 public access became something the city & Brookfield found unsavory, they added stipulations. It's like a rule change at halftime of a football game...typical of our different rules different fools society.

The health hazard concern is baseless...the air post-9/11 was a health hazard, not the occupation. The public safety concern is baseless...more sexual assaults in hipsterville Brooklyn and in the subways than at Liberty Plaza, more violent crime in most any other part of the city than at Liberty Plaza. I can't believe people buy these bullsh*t concerns...so easily debunked, so obviously meant to stifle sacred constitutional rights.


Great (2.00 / 0) (#22)
by Abdul Abulbul Amir on Wed Nov 16, 2011 at 10:24:54 AM EST

24/7 public access must be allowed at Liberty Plaza by Bloomberg's girlfriend's outfit, Brookfield Properties.

There is no public access if a group is allowed to erect structures that keep the public out and convert the public space to private use.

More hooey (5.00 / 1) (#23)
by sj on Wed Nov 16, 2011 at 10:32:27 AM EST

The Occupiers are also "the public". Moreover, NYPD was directing street people known to be troublemakers to the park. They are also "the public". Moreover, the Occupiers welcomed all comers. And they were many -- who are also "the public". Apparently you just want to limit "the public" to the passersby wearing suits.

Who, incidentally, are also "the public" and who would be welcomed as were other members of "the public".

Come back sometime and write something honest.


I've been there... (5.00 / 3) (#24)
by kdog on Wed Nov 16, 2011 at 10:35:23 AM EST

I never had a problem gaining access or making use of the park when tents and tarps were up. And these are not "structures" that keep people out, the NYPD puts up those structures bro...those are called "barricades", not "tents".


So (2.00 / 0) (#25)
by Abdul Abulbul Amir on Wed Nov 16, 2011 at 10:46:06 AM EST

Are you claiming the widely reported women only tent was open to the whole public or just women?


Are you serious? (5.00 / 3) (#26)
by kdog on Wed Nov 16, 2011 at 10:49:41 AM EST

When you see 3 women sitting on a park bench that seats 4, and an empty bench next to it, do you butt in on the ladies' bench?

It's called commom courtesy...if somebody wanted to play the arsehole and crash the ladies tent they had the right...but playing the arsehole is the exclusive domain of the authorities these days, the protestors are getting along quite well all things considered, respecting each others space in a public space.


I like your (5.00 / 1) (#28)
by sj on Wed Nov 16, 2011 at 10:52:53 AM EST

response better than mine...


: Restroom analogy... (5.00 / 2) (#29)
by kdog on Wed Nov 16, 2011 at 10:57:41 AM EST

was well-played too...don't sell yourself short:)
Next time I'm in the subway I'm gonna sit on somebody's lap, it's public space!
The bootlickers are grasping at straws to justify the heavy-handed authoritarianism they worship...ladies tent, Abdul you're slip is showing.

Drumming all night and shitting on the street (1.00 / 2) (#41)
by jpe on Wed Nov 16, 2011 at 07:55:43 PM EST

is what you consider being courteous? That says quite a lot about you.


It seems that the (none / 0) (#30)
by Abdul Abulbul Amir on Wed Nov 16, 2011 at 11:57:45 AM EST

inside of all of the tents are not open to the public. That a faction of OWS wants to practice sex discrimination does not really change that much.

BTW, in my town there are no such thing as a "ladies' bench." Nor for that matter a gentleman's bench.


Dude... (5.00 / 2) (#31)
by kdog on Wed Nov 16, 2011 at 12:03:43 PM EST

they are open to the public, but the public using the park have these little things called common courtesy and respect...ever hear of them?

There are rights we all choose not to excercise in a given time and place, though we retain the right. Be my guest and crash the ladies' tent once it is put back up...play ther arsehole, it is your right. Just don't expect to make many friends playing the arsehole.

Common courtesy and respect. (1.00 / 0) (#32)
by Abdul Abulbul Amir on Wed Nov 16, 2011 at 12:50:04 PM EST

Sure it is all around. That is why most of us don't think that the middle of an intersection of public roadways is a place you can park your van or pitch a tent and take up residence. Likewise a park.

Common courtesy and respect means you don't convert public spaces to private use.

Frankly I'd like to see those Obamaville hobos out there for public view all the time. The project quite the image. Apparently, one just took a shot at the White House.

"Apparently" (5.00 / 0) (#34)
by jondee on Wed Nov 16, 2011 at 01:02:25 PM EST

according to who?

Another rw talk radio savant?

How far do you want to go with banning the use of "public spaces for private use"? Would that encompass banning ANY privately organized, public assemblies -- in your redneck-Tiannamen Square universe? Or just certain ones (ie, the ones Fox and Friends doesn't approve of.)


Normally (none / 0) (#35)
by Abdul Abulbul Amir on Wed Nov 16, 2011 at 01:38:13 PM EST

Groups get a permit for a limited period of time. That way our elected officials can coordinate the wishes of diverse groups to share the same space over time.


: Normally.. (5.00 / 2) (#36)
by jondee on Wed Nov 16, 2011 at 01:51:58 PM EST

normally American history, and any meaningful changes that have occurred here, has involved a messy process that hasn't always included citizens applying for permits to insure that their point of view is heard.

There is no private use... (none / 0) (#33)
by kdog on Wed Nov 16, 2011 at 01:02:09 PM EST

go down there and see for yourself. Just the public and public use, and the public accomodating the public.

If you support the protests, why are you b*tching about the ladies' tent and supporting the aggressive police action? I'm confused.

I actually agree with you and Newt Gingrich....these are the Obama protests just as much as they are Wall St. protests. But would you feel the same way if McCain were president? I doubt it, cuz you're hopelessly partisan.


Oy (5.00 / 1) (#27)
by sj on Wed Nov 16, 2011 at 10:52:00 AM EST

I don't know why any of us bother talking to you. Women only! Next thing you'll be saying that there are actually restrooms designated for women only! And on public land, no less!

I don't know if it's true or not, and I don't care. I also don't know how you can live in your own thoughts.


I did, too (5.00 / 0) (#21)
by sj on Wed Nov 16, 2011 at 10:24:32 AM EST

I think it's perfectly OK. I didn't expect they would be allowed to, but that's a different issue.

As a side issue, it hightlights how the homeless have been treated for years.


I'd have to agree (none / 0) (#6)
by CoralGables on Tue Nov 15, 2011 at 07:04:47 PM EST

Open 24 hours a day for the protesters, but no tents, sleeping bags, or generators is a reasonable ruling (if I read the correct ruling). It's a park not a campground.


: I tend to agree (none / 0) (#8)
by Rojas on Tue Nov 15, 2011 at 07:08:47 PM EST

No skin off my ass..

interesting ruling, i think. (none / 0) (#15)
by cpinva on Tue Nov 15, 2011 at 10:34:52 PM EST

kind of stands that whole "ex post facto" prohibition, in the constitution, on its pointy little head. i can easily see this ruling being used as precedence: make something illegal, after the fact, make arrests, and claim judge stallman's ruling as precedence for the arrest's constitutionality.

why do i think this judge just opened up a huge can of worms?

: If you'd put in, maybe, 15 seconds of thought (1.00 / 0) (#40)
by jpe on Wed Nov 16, 2011 at 07:53:57 PM EST

into that comment, you'd have realized that they were arrested for failure to follow orders from the police, not for their shitty campsite.

: Apparently the company that owns the (none / 0) (#16)
by oculus on Tue Nov 15, 2011 at 11:27:42 PM EST

land posted the restrictions prior to police clearing the park. That's not ex post facto.