by Mark Wilson
I’m writing this from Bay Area Rapid Transit (BART), the San Francisco Bay Area subway system. As I write, the Oakland City Center/12th Street station is closed due to a “civil disturbance” arising out of the Occupy Oakland protest. Early Tuesday morning, Oakland police raided Occupy Oakland’s tent city in Frank Ogawa Plaza, the heart of Oakland’s city government. The protest — now a sort of meta-protest — continues, which means my train won’t stop at 12th Street station.
Oakland Mayor Jean Quan has so far supported and tolerated Occupy Oakland protesters. Apparently, though, it became too much for the city to bear, and Tuesday morning, Oakland police dispersed the protestors and arrested anyone who stayed behind. This is not new. Weeks ago, New York Mayor Michael Bloomberg threatened to arrest anyone who remained behind at Zucotti Park after he announced that park would be cleared for cleaning by the sanitation department. The question arises: to what degree are city leaders motivated by legitimate concerns (sanitation, crime, and so on) and to what degree do they just want protests to stop?
The U.S. Supreme Court has established the availability of traditional public forums for protest. Sidewalks and parks are traditional public forums which are available for speech activities under the First Amendment. State interference with these forums is permitted, subject to intermediate scrutiny. This standard of review requires the state to show a important interest in any restrictions on speech activity, that the restriction leave open adequate alternatives opportunities for speech and that the restrictions be content-neutral and narrowly tailored to serve that important interest.
Activities like picketing during daylight hours are a no-brainer for this type of issue; clearly, there is a right to protest in a public park during daylight hours. But tent cities? Now things are getting tough. Public parks are circumscribed by requirements like operating hours: many city parks open at dawn and close at dusk. They have other restrictions, too; Golden Gate Park restricts “public camping” in an attempt to prevent the homeless from living inside the park.
But round-the-clock occupancy of a public forum as a form of protest is new to us. It may be that these actions are necessary for protestors to get their point across. Or it could be that they’re rabble-rousers who refuse to accede to reasonable time, place, and manner restrictions. Public parks close at prescribed times for specific reasons, regardless of who’s talking. But do sidewalks “close”? And what is “public camping,” anyway?
I write this not so much to offer a solution as to pose a problem. How can we be sure that public officials are not using prosaic park-closing regulations as a subterfuge to limit protest? And is there, in fact, any right to take over a public forum? It’s a difficult set of questions to answer in 500 words, or even 5,000 words. I ask because I don’t have an easy answer. As an aspiring lawyer, I’m torn between what I know the law is and what I think it should be.