December 1, 2011
Earlier this month, the original “Occupy Wall Street” movement in New York City made national headlines when Mayor Bloomberg ordered police to evict protestors from Zuccotti Park.
Other “Occupy” movements have encountered similar action: in addition to banning the erection of tents and any sleeping in public parks and squares, local governments have also imposed restrictions on written and verbal methods of communication.
As one would expect, this has prompted legal challenges from protestors, seeking preliminary injunctions against the cities and counties enforcing the ordinances.
A recently-decided order out of the Federal District of Minnesota is an example of one such injunction, and doesn’t deviate much from other rulings like it.
The request for the injunction came after Hennepin County, which encompasses the City of Minneapolis, started enforcing several “unwritten rules” against the protestors of the “Occupy Minneapolis” movement.
These enforced rules forbade demonstrators from erecting tents and sleeping, writing messages on public property using sidewalk chalk, and posting/hanging signs.
The court denied the request for an injunction against all but the prohibition against signs, which shouldn’t be a surprise, since the ordinance effectively barred all signs except those approved by the county (a big First Amendment no-no).
As mentioned above, the injunction follows the example of other federal district court rulings from across the country in that it tells the protestors they can peaceably assemble, but they can’t put up tents or sleep on public grounds.
Protestors have argued, and will no doubt continue to argue, that “occupation,” to them, means a round-the-clock presence, including accommodations for, and the actual activity of sleeping.
Therefore, “Occupiers” claim bans against erecting tents and sleeping in public parks are an unconstitutional impingement on First Amendment free speech rights, an argument that they have thus far been losing.
This isn’t because sleeping isn’t a recognized form of protected speech – it is – but because there have been almost no circumstances where a court has voided restrictions against it.
In fact, the first case that the Supreme Court found sleep to be protected speech, 1984’s Clark v. Community for Creative Non-Violence, also found that the state prohibitions against sleeping in parks are justified by the requisite “legitimate interest” (“insuring that national parks are adequately protected”).
With as broad a justification found to be acceptable, it is difficult to fathom any other prohibition against sleeping in parks that also wouldn’t be upheld.
So, although sleeping has indeed been recognized as a form of speech, such recognition is in name only, since it lacks any of the constitutional protections typically attached.
If the attitudes* of the judge ruling on “Occupy Minneapolis’s” injunction are any indication, I don’t think Occupiers nationwide are going to find any support in the courtroom on this issue.
While garnering favor with the powers that be may never have been a goal of the “Occupy” movement, it would have been nice to have tents with which to brave the Minnesota winter.
*In the order, when describing the “Occupy” movement and its protests against corporate greed, “greed” is in quotation marks.