Zuccotti Park ruling got it right, say experts (VIDEO)
Zuccotti Park has been re-occupied by protestors but was the court's ruling constitutional? Experts say yes.
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In his ruling, New York state Supreme Court Justice Michael Stallman said protesters "have not demonstrated that they have a First Amendment right" to remain in the park, with their sleeping gear "to the exclusion of the owner's reasonable rights ... or to the rights to public access of others who might wish to use the space safely."Skip to next paragraph
On Tuesday night, protesters were allowed to return — but without tents or sleeping bags.
New York was not the first city to crack down on the protests. On Monday in Oakland — the site of previous violence — police armed with tear gas emptied out that city's site. And authorities in Portland, Ore., have roused protesters, shut down a camp there and made more than 50 arrests amid complaints of drug use and sanitation problems.
The Occupy movement is the latest in a long series of protests that have played out in the public arena and tested constitutional limits, says Timothy Zick, a professor of law at William & Mary Law School and author of "Speech Out of Doors: Preserving First Amendment Liberties in Public Places." ''What the occupiers are doing is quite firmly rooted in our history and our culture," he said.
But Zick said it wasn't until the 1960s — the era of civil rights demonstrations — that the courts "began to recognize the power of public protests to create breathing space," such as parks and other public places to exercise First Amendments rights. "That's what the occupiers are taking advantage of."
Though the Constitution provides some protections for protesters, they're not absolute, added Zick. He said, for example, the U.S. Supreme Court has ruled that authorities can prohibit overnight campaigning at the National Mall and Lafayette Park in Washington.
Other restrictions are common, such as limits on when protests may occur.
"That keeps someone from protesting at 2 a.m. outside your bedroom window for something they can say at noon," said Gene Policinski, executive director of the First Amendment Center, a nonprofit educational center in Nashville.
There also are restrictions in many places, such as requiring permits to march, assemble and speak, Zick said.
"Governments have the authority and the power to regulate things for public safety, traffic flow, sanitation," Zick added. "None of these things have anything to do directly with freedom of speech. They regulate time of day, place and manner. You can limit the size of a protest ... you can't protest in the middle of Times Square whenever you like. There are a lot officials can do and a lot they do to regulate public protests."
He also said there are legitimate concerns about violence breaking out in protests such as the anti-Wall Street demonstrations, such as those that occurred in Oakland.
"It's a delicate balance," he said. "It's a difficult question that has to be decided locality by locality. But I think the calculus in some places has been 'enough is enough.'"
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