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What’s Next for Occupy Wall Street Protests After Judge Bars Camping in Park?

November 15, 2011 at 12:00 AM EST
New York City police routed anti-Wall Street protesters from their campsite early Tuesday, and hours later, city officials won a court ruling that backed up their move. Jeffrey Brown discusses the legal arguments involved in the New York protests with attorneys Daniel Alterman and James Copland.
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JEFFREY BROWN: The city of New York routed anti-Wall Street protesters from their campsite early today. Hours later, city officials won a court ruling that backed up their move.

It happened around 1:00 this morning. Hundreds of New York City police officers in full riot gear moved into Zuccotti Park, where the national ‘Occupy Wall Street’ movement started in September. They ordered the protesters to clear out, and many did so, but others resisted.

WOMAN: We had no idea that the cops were going to raid this place tonight. They’re taking over everything. And we’re not leaving.

JEFFREY BROWN: By 3:30 a.m., the police began arresting those who had chained or roped themselves to trees. Police Commissioner Ray Kelly said some 200 people were arrested. They included one New York City Council member and several journalists.

Officers also tore down and hauled away tents and camping supplies, and city sanitation workers tossed them into garbage and dump trucks. The park was empty by 4:30 a.m. and sanitation workers then used power-washers to clean the plaza.

MICHAEL BLOOMBERG, (I) mayor of New York: Make no mistake: The final decision to act was mine, and mine alone.  

JEFFREY BROWN: At City Hall, New York Mayor Michael Bloomberg defended the raid. He said health and safety conditions at the camp in Lower Manhattan had become — quote — “intolerable.”

MICHAEL BLOOMBERG: From the beginning, I have said that the city has two principal goals: guaranteeing public health and safety and guaranteeing the protesters’ First Amendment rights. But when those two goals clash, the health and safety of the public and our first-responders must be the priority.

JEFFREY BROWN: Bloomberg said the plan was simply to clean Zuccotti Park and let people back in to protest only, and not to camp.

MICHAEL BLOOMBERG: The First Amendment gives every New Yorker the right to speak out. But it doesn’t give anyone the right to sleep in a park or otherwise take it over, to the exclusion of others. Protesters have had two months to occupy the park with tents and sleeping bags. Now they will have to occupy the space with the power of their arguments.

JEFFREY BROWN: Lawyers for the protesters immediately got a court order to block those restrictions, but the park remained surrounded by police barricades and officers while a state court judge heard arguments over the issue.

Ultimately, he upheld the city’s actions, ruling demonstrators could protest in the park, but not camp there. As the day went on, many of the protesters staged a march and gathered in nearby Foley Square.

PROTESTERS: Occupy Wall Street!

JEFFREY BROWN: Others massed on the sidewalks around Zuccotti Park.

MAN: They tried to evict us from the park. But you can’t evict an idea. We’re here to stay. We are the 99 percent. And we’re going to continue our movement, regardless of what our billionaire mayor tries to do to us.

JEFFREY BROWN: The New York sweep came two days shy of the two-month anniversary of the ‘Occupy Wall Street’ movement. And it struck the movement at a critical time, as ‘Occupy’ encampments have come under fire in several other cities.

Early on Monday, police in Oakland, Calif., conducted a similar raid on a tent city there, resulting in more than 50 arrests. Displaced members of ‘Occupy Oakland’ joined in a teach-in today at the University of California at Berkeley.

Police in Portland, Ore., conducted their own weekend raid, driving out hundreds of anti-Wall Street demonstrators over public health and safety concerns.

And we look at the legal arguments involved in the New York protests with Daniel Alterman, an attorney in private practice and one of the lawyers representing the ‘Occupy Wall Street’ protesters, and James Copland, also an attorney and director of the Center on Legal Policy at the Manhattan Institute, a public policy think tank.

Well, Daniel Alterman, I will start with you.

This wasn’t the decision you wanted. What’s your reaction?

DANIEL ALTERMAN, attorney for ‘Occupy Wall Street’: Well, first of all, let me say I’m a resident of Lower Manhattan. I work in Lower Manhattan. I support the 99 percent of the protesters.

And I’m not put off by the issues in this case. As a matter of fact, we think the First Amendment covers it. And we think that Mayor Bloomberg, by attempting to displace the protesters and the Occupiers at 1:00 at night, proves our point.

And, furthermore, I think that we won a victory and then we lost a victory, but you can’t stop an idea. And the idea that Wall Street is unfair and that the economy is broken and needs to be fixed will be more and more apparent in the days to come. And this is only a slight hiccup or a bump in the road. And I think the people are here to stay.

JEFFREY BROWN: Well, James Copland, what was the legal argument behind the judge’s decision?

JAMES COPLAND, The Manhattan Institute: Well, the basic argument was that there’s clearly a First Amendment right to protest in this park, Zuccotti Park, or other public forums or limited public forums, but that doesn’t extend to a right to just sort of set up shop there, ignore all health and safety regulations, and basically claim this land that’s privately owned land set aside for a public use for your own and make it your own home.

You can go camping in Yellowstone Park. That doesn’t mean that you can just camp out there indefinitely whenever or wherever you want. And that’s basically the — what the judge was saying. You can protest there, but you can’t live there.

JEFFREY BROWN: Well, Mr. Alterman, is there a legal argument opposed to that? And that’s exactly what the judge says. I will just quote from it. “The court is mindful of movements’ First Amendment rights of freedom of speech and peaceable assembly. However” — and he’s quoting from the Supreme Court — “even protected speech is not equally permissible in all places and at all times.”

DANIEL ALTERMAN: Well, I think that the judge had it wrong.

I think that sleeping and occupying in the 21st century of protest causes and allows people to have — to sleep there or to erect structures. I have been at the park on multiple times. There is no public health issue. There was no issue regarding health or safety issues. It was well-run. The people had a good-neighbor policy that protected the residents of both TriBeCa, where the — Wall Street is located, and also the members of the community, and as well as visitors and other protesters.

So I think that the mayor — the mayor’s attempt to send a phalanx of police in riot gear at 1:00 in the morning and have the sanitation people throw out and destroy the property sends a clear message. And that message is, you get only up to a certain point the First Amendment. And we don’t think that that holds water. We won one. We lost one.

The people will speak. And on Thursday, the people will speak even louder, because you can’t kill an idea. And I’m very proud to represent the ‘Occupy Wall Street’ community and the community which is building momentum nationwide.

JEFFREY BROWN: Well, Mr. Copland that is the issue, isn’t it? Who decides where that line of First Amendment right is drawn? Isn’t it easy to abuse that power, as Mr. Alterman is suggesting, if — in looking to public health or security — security concerns?

JAMES COPLAND: Well, certainly, you don’t give unfettered discretion to a city official to make this determination. That’s why we’re a nation of laws. And that’s why you go to the courts. And that’s why you let the judges determine it.

I think this time, the judge has it right. Our First Amendment sets out very broad protections for the content or the viewpoint of our speech. We can criticize the president of our country. We can take extreme positions, be they communist or fascist. But we can’t do anything we want.

And it’s also a well-established principle under the constitutional jurisprudence of the U.S. that you can make what’s called a time, place or manner restriction on speech. You can protest against your government, but that doesn’t give you the right to have a megaphone and blare this out at all hours of the night and disturb your neighbors.

Similarly, you can maybe take a picture of naked people. It doesn’t mean you can go to a public sidewalk in a residential community and do it any time of day or night. So we have to have some sort of rules here. And I think the mayor made a good point here. This space is supposed to be for the public.

So, if you’re going to take over that space and put your tents out there and have your separate little laws that you’re trying to create in your sort of ad hoc community there, you’re effectively denying the general public the right there.

And contrary to the other fellow’s assertion here, I think it’s clear that many of the neighbors here weren’t happy. Many of the businesses there weren’t happy. There have been counterprotests going on outside City Hall. And there have been numerous reports of, in fact, violence and safety problems, including rapes of some of the women there in Zuccotti Park.

JEFFREY BROWN: Well…  

DANIEL ALTERMAN: That’s — that’s absolutely untrue.

JEFFREY BROWN: Go ahead, Mr. Alterman.

DANIEL ALTERMAN: There have been no rapes of a woman.

I think that, as a resident and a small business owner in the community, as well as a lawyer representing the demonstrators, the gentleman has his facts wrong. There’s no public health safety issues. There’s medical on site. There’s nurses on site. There are security on site.

There is open and free and unfettered access to corridors. The community brings in people. It’s certainly not true — and, again, I will bring it back to this. If Mayor Bloomberg was so concerned about the issues that were affecting not only the community, but the health and safety issues, then why did he wait two months, number one, and why did he — why did he never issue one violation until today?

And then, finally, why, after we got a court order advising the police that they should let us in at 6:30 in the morning, did he close the park until the judge made a decision? That doesn’t seem to me like a…

JEFFREY BROWN: Mr. Alterman…

DANIEL ALTERMAN: Go ahead.

JEFFREY BROWN: No, Mr. Alterman, I’m sorry. I was going to ask you, what is the practical impact now as a legal matter? Do you — can you appeal this? What happens to the group that was in the park?

DANIEL ALTERMAN: The — the — sometimes, when you don’t have a play, you wait and see what happens. There’s going to be a big demonstration on Thursday. We will consider, after working all night on this case, what we should do with an appeal.

But, again, the spirit and the momentum of the Occupiers is very, very strong. It’s well-respected and supported in this community I would say by over 80 percent of the people. And we look forward to taking these issues to the streets and to Washington, so that the people can decide what makes a fair and more equitable system.

JEFFREY BROWN: Now, Mr. Copland, very briefly, because this is — Zuccotti Park is a bit of a hybrid, a privately owned, but public use space. You’re saying the same argument would apply if the demonstrators go to a — an actual public city park in New York?

JAMES COPLAND: I think so.

The judge here specifically refused to get into the complexities of answering whether this is a public forum or a limited public forum, and just basically assumed that you had maximum free speech rights. And even if you do, that doesn’t give you the right to set up your tents and have your own sort of system of government, garbage disposal and what have you, that the city had the ability to go in there, to clean things up, and you didn’t have the right to live there just because you wanted to protest there.

Clearly, if Mr. Alterman’s position is correct and the movement is going to gain steam, et cetera, he clearly can voice those opinions. That just doesn’t give them the right to take over a piece of city property or private property that’s largely used by the public.

JEFFREY BROWN: All right. We do have to leave it there.

James Copland, Daniel Alterman, thank you both very much.

JAMES COPLAND: Thank you.