Opinion: Occupy Boston Movement Raised First Amendment Questions

One of our most important constitutional rights is the right of free speech. It is no coincidence that the founding fathers placed it in the leadoff spot when drafting the Bill of Rights. The First Amendment recognizes our fundamental right to express freely ideas about our government, and demonstrate loudly when we don't like what we see.

For many years, courts have recognized limits to our right of free speech, some of which provoke no controversy. For example, no one has a First Amendment right to yell "fire" in a crowded theatre. Individuals also may be precluded from making threats against others.

More controversial cases arise when courts seek to impose restrictions on the "time, place and manner" in which the right of free speech can be exercised. Time, place and manner restrictions on free speech are common, and they are constitutionally permissible even when the content of the speech is political.

For example, a local ordinance banning people from walking down the street handing out political leaflets would probably be found to be unconstitutional. On the other hand, the Constitution would permit a community to impose a regulation preventing people from using a bullhorn to present their case in the middle of the night.

The Occupy Wall Street movement, and in particular the Occupy Boston version, confronted us with a difficult First Amendment question – that is, whether the seizure and occupation of public land by persons with grievances against the government is protected speech under the First Amendment.

The Occupy Boston protesters assumed control of a large public area in Boston
known to some as Dewey Square. They set up tents and claimed that they were trying to create a more perfect democracy as a form of protest against Wall Street, big business and governmental policies to which they object.

Last week, in a fairly lengthy decision, a Superior Court judge ruled that the Occupy Boston protestors could be ordered to leave the Dewey Square property they have occupied for over two months.

The court's ruling is too detailed, and too lengthy, to summarize here. But in its
most basic sense, the case reminds us all that the First Amendment – despite its special status in the Constitution – does not override other reasonable laws relating to the time, place and manner of political speech, and the health and safety of the public.

The court began its decision by addressing the question whether the act of seizing the land – the occupation itself – was separate and distinct from the "living activities" – that is, the setting up of tents and sleeping overnight. The "occupation," the court reasoned, spoke of "boldness, outrage and a willingness to take personal risk but it does not carry the [protestors] message."

While that the First Amendment protects more than mere verbal or written communications, the act of seizing and occupying public land did not in and of itself serve to convey the intended message of the group (the promotion of a more open and democratic society) and, therefore, was not sufficiently "expressive or symbolic" so as to be afforded First Amendment protection. The occupation, therefore, was not "speech." For this reason, and others, such action was not immune from criminal prosecution for trespass.

The setting up of the tents and sleeping in Dewey Square, the court held, was in
fact "expressive conduct." Still, the court said, even "expressive speech or conduct" can be subject to reasonable limitations, in this case, city and park regulations designed for the purpose of promoting health and safety on public land. The court reviewed affidavits of city officials seeking to evict the protesters, and concluded that they were motivated solely by the "worrisome and unsanitary conditions" witnessed at Dewey Square, and not some desire to quiet the speech. Park rules prohibit sleeping in the square for legitimate health and safety
reasons and, therefore, enforcement of those rules did not infringe First Amendment rights.

In conclusion, the court denied the motion of certain Occupy Boston protestors to prevent the city from ordering them to vacate the Dewey Square site. Eviction action was initiated shortly thereafter.

This past weekend, the last few activists and tents were removed from the Dewey Square site by city employees. A gigantic patch of mud is all that remains.

Sharon attorney Paul Izzo is a Sharon Patch columnist. E-mail comments about his column to paulizzolaw@comcast.net.