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To The Editor:
Although I left Battery Park City two months ago and am now a permanent resident of Charlottesville, Virginia, I have continued to follow events in Lower Manhattan very closely, particularly relating to the Occupy Wall Street (OWS) demonstrations. Based on what I have been reading and also from conversations with several friends in the neighborhood, I believe that there is one critical point regarding the rights of the demonstrators that is either being overlooked or deliberately glossed over.
The point I am concerned about is illustrated by the related resolution adopted by Community Board 1 last week. That resolution, as I understand it, stated that preserving the constitutional rights of demonstrators and addressing the concerns of local residents and businesses regarding health, public safety, noise, sanitation and other quality of life issues are not mutually exclusive and can both be accomplished. That statement is true as far as it goes, but it fails to address the central issue of whether the 24/7 occupation of Zuccotti Park by the demonstrators is protected by the First Amendment. The answer is clearly that such a permanent occupation is not protected, based on the well-established principle, repeatedly upheld by the Supreme Court, that the government may place reasonable restrictions on the “time, place and manner” of free expression.
An example of an acceptable time restriction on free speech would be the government denying a group permission to hold a rally in the middle of a busy city intersection during the afternoon rush hour. This involves a balancing of the rights of commuters to go home against the rights of the group to tie up traffic with its rally. Both sets of rights can be accommodated if the group is required to shift its rally to a less busy time at the same location. Similarly, a group could legitimately be prohibited from holding a noisy rally in the middle of a residential neighborhood at 3:00 a.m., which would disturb the peace of many people in their homes trying to sleep. But that same rally held at 3:00 p.m. would not raise those same concerns. These sorts of restrictions have been upheld if they (1) are neutral as to content (i.e., apply uniformly to all speech and are not aimed at restricting a particular viewpoint), (2) are narrowly drawn, (3) serve a significant government interest and (4) leave open alternative channels of communication.
Based on the foregoing, I believe that Brookfield Properties and the City are well within their rights to adopt and enforce restrictions applicable to everyone that would prohibit camping out in Zuccotti Park and even require people to leave the park at a certain hour (similar to many other parks in the city) so that daily cleaning could be done. There are numerous significant government interests involved, including protecting the rights of local residents to the peaceful enjoyment of their homes at night, public health and sanitation, safety and crime prevention, and protecting the park from damage. As long as the protesters are free to return the next day, and every day after that for as long as they choose, their rights to free speech under the First Amendment will be fully protected without the need to occupy the park 24/7. Since the OWS protesters seem to have plenty of money, they could look to rent an indoor space, well away from local residents and hopefully with indoor toilet facilities, where they could camp out overnight before returning to Zuccotti each day.
I also note that if the current situation is allowed to continue indefinitely, thereby establishing as a de facto Zuccotti Park rule the right to set up a permanent encampment, that rule would be applicable in the future to all other protest groups that might want to set up their own Zuccotti occupation. Those local residents who are passively accepting the current occupation because they agree with some of the views of the protesters should ask themselves if they would feel the same way if the group occupying the park held extreme views that they disagreed with. For example, the anti-Islamic protesters who demonstrated in Zuccotti Park last year would have a strong legal argument in favor of being able to occupy Zuccotti for as long as they choose if OWS continues to be allowed to camp out there, since park restrictions cannot be based on the political views of the protesters.
Finally, I am writing this letter only because there seems to be a dearth of voices, particularly the voices of those with political influence in Lower Manhattan, speaking in support of the rights of the hundreds of local residents and businesses who are suffering daily harm to those rights as a result of the OWS encampment. There is no balancing of rights here – it is all very one-sided in favor of the protesters. The rights of the locals must be protected at the same time that the free speech rights of the protesters are being protected. In my view, that means that the 24/7 occupation of Zuccotti Park must come to an end in the near future, whether through negotiation or through unilateral action by Brookfield Properties and the City.