Judge Upholds Eviction of Occupy Wall Street

From In re Application of Waller (N.Y. trial ct. Nov. 15, 2011):

It would appear that Zuccotti Park is a privately owned public-access plaza, created in 1968 by a City Planning special permit issued pursuant to then existing authority of the New York City Zoning Resolution, which encouraged the creation of space for public use in exchange for additional or “bonus” development rights given to the owners of adjoining properties…. [T]he special permit requires that Zuccotti Park be open to the public and maintained for public use 365 days per year…. [S]ome time after the Occupy Wall Street began, [the park owner] promulgated rules which prohibited, among other things,

“Camping and/or the erection of tents or other structures.
Lying down on the ground, or lying down on benches …
The placement of tarps or sleeping bags or other covering on the property
Storage of placement of personal property on the ground, benches, sitting areas or
walkways which unreasonably interferes with the use of such areas by others”

The parties dispute whether the First Amendment applies to the actions of the owner [of Zuccotti Park] in enacting the rules [against sleeping in the park]…. 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 it to maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law….

[M]ovants 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 [to] 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 movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner’s reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely.

The judge therefore rejected the request for a temporary restraining order that would have required the city to allow the protesters back in the park (in violation of the park rules). Procedurally, the protesters may yet ask for a preliminary injunction or a permanent injunction, based on more detailed briefing, but the judge’s analysis suggests that the judge will reject that request as well. This is especially so given the Supreme Court’s decision in Clark v. CCNV (1984), which held that a rule banning sleeping in the park doesn’t violate the First Amendment rights of protesters. The judge’s opinion doesn’t cite Clark, but it’s consistent with Clark.

UPDATE: A commenter asks whether Clark would be inapplicable because the policy here was enacted after the start of the protest, rather than before (as in Clark itself). I don’t think so. To be sure, if there were evidence that the action was motivated by disagreement with the message, rather than by a worry about the content-neutral effects of the behavior, that might lead a court to conclude that the rule is unconstitutional. Compare United States v. O’Brien (holding that the supposed legislative purpose for enacting a facially content-neutral conduct restriction is irrelevant to the First Amendment analysis) with Cornelius v. NAACP Legal Defense & Education Fund (holding that a viewpoint-discriminatory purpose for an executive agency’s action may be relevant to the First Amendment analysis).

But if the action indeed seems to be motivated by the content-neutral effects of the behavior — and I suspect the evidence before the judge suggested that this was indeed the motivation — then it is treated as content-neutral. That’s true (albeit controversially) even of judicial injunctions aimed at a particular organization, see Madsen v. Women’s Health Center, Inc.. A fortiori, I think it would apply to generally applicable rules that affect all future speakers, even when their enactment was prompted by a particular speaker (which likely was the first speaker to create the harms that justified the enactment of the rule).