Evicting Occupy Wall Street

A legal showdown goes in the public's favor.

Finally, after nearly two months during which the epicenter of the Occupy Wall Street movement became an incubator of disease, rape and other assaults, thefts and drug peddling, New York Mayor Michael Bloomberg took action. In the wee hours of Tuesday morning November 15th, the New York Police Department took back Zuccotti Park from the occupiers, issuing a notice to them to clear out in order to allow a long overdue cleaning to take place.

“You are required to immediately remove all property, including tents, sleeping bags and tarps from Zuccotti Park. That means you must remove the property now,” read the police notice. “You will be allowed to return to the park in several hours, when this work is complete. If you decide to return, you will not be permitted to bring your tents, sleeping bags, tarps and similar materials with you.”

Shortly thereafter, the police moved in. Most of the protesters appeared to comply with the police order. Those who resisted were arrested. According to the Associated Press, there were at least seventy arrests.

But the saga was just beginning to unfold. Protesters pretending that they really had an important cause akin to the civil rights movement sang “We Shall Overcome” while others, pretending they were as brave and serious-minded as the Egyptian dissidents revolting against that country’s brutal dictatorship, banged their drums and yelled: “New York, Cairo, Wisconsin, push us down we’ll rise again!”

Meanwhile, in order to vindicate their imaginary “First Amendment” rights to construct tents on other people’s property as well as bang drums, defecate, urinate, and do drugs along with their speechifying, the protesters’ lawyers went to court. At around 6:30 AM on November 15th, attorneys associated with the New York City Chapter of the far-left National Lawyers Guild working as the Liberty Park Legal Working Group (LPLWG) managed to find  a sympathetic Manhattan Supreme Court judge who issued a temporary restraining order against the City of New York, various city agencies, and Brookfield Properties, the owner of Zuccotti Park, directing that occupiers be allowed back on the premises with their belongings. The defendants were prohibited from “evicting protesters from Zuccotti Park” and from “enforcing the ‘rules’ published after the occupation began or otherwise preventing protesters from re-entering the park with tents and other property previously utilized.”

How does one explain the lunacy of an order that prohibits the owner of private property dedicated to public use from issuing reasonable rules addressing health and safety concerns and barring squatting in tents that effectively block other members of the public who don’t agree with the occupiers from exercising their right to use the park?  The judge who signed the temporary restraining order, Lucy Billings, spent 25 years as a lawyer for the American Civil Liberties Union before becoming a judge in 1997.

The petitioning lawyers included Michael Ratner, president of the Center for Constitutional Rights and former president of the National Lawyers Guild; Margaret Ratner Kunstler, former education director at the Center for Constitutional Rights; and Bina Ahmad, a former intern at the Center for Constitutional Rights and currently the legal program assistant to Badil Resource Center for Palestinian Residency and Refugee Rights and legal consultant to the Norwegian Refugee Council’s Occupied Palestinian Territories office.

Attorney Yetta Kurland, also one of the petitioning attorneys, praised Judge Billings’ decision in glowing terms: “This is a victory for everyone who believes in the First Amendment. We will continue to fight for everyone’s right to continue the occupation.” In response to the injunction, Daniel Alterman, also a petitioning attorney with the LPLWG, stated that, “This is a victory for all Americans, for the constitution and for the 99%.” Gideon Oliver, yet another petitioning attorney with the LPLWG said, “The LPLWG has been fighting to ensure their right to free speech from day one of the occupation. The occupiers right to free speech is based in our most core legal principles and we will be here till the end to fight for those rights.”

Selfish entitlement is the “core legal principle” which the 99-ers’ lawyers are fighting for. Because they arrogantly claim to represent the “99%,” the protesters/occupiers believe that they have special absolute status under the First Amendment to impose their presence on an entire park that has been dedicated to general public use, to the exclusion of everyone else. People trying to express an ideologically opposite point of view or who just want to enjoy the park for the recreational purposes for which it was originally intended have been effectively shut out for nearly two months. Citizens living and working in the area have been impacted by the constant noise and filth. Small business owners have been harassed.

The courts have long ruled that the First Amendment is not absolute. The 99-ers do not have a First Amendment right to occupy Zuccotti Park whenever, wherever, and however they please. The First Amendment is subject to reasonable, content-neutral restrictions, including restrictions on the time, manner and place of protests that are reasonably necessary to protect the health and safety of the citizenry. Erecting an uninvited tent city for an indefinite term of squatting goes beyond the bounds of the right of freedom of assembly and freedom of expression. As Mayor Bloomberg put it regarding the occupiers, the “First Amendment doesn’t protect the use of tents and sleeping bags. Now they will have to occupy the park with just the power of their arguments.”

Fortunately, the daylong saga had a relatively happy ending. A saner judge was assigned to assume responsibility to take over the case from the former ACLU lawyer, Judge Billings.

Late afternoon on Tuesday, Manhattan Supreme Court Justice Michael Stallman ruled that  Occupy Wall Street protesters may return to Zuccotti Park to protest, but will no longer be allowed to bring their tents and other camping equipment. “The court is mindful of the movements’ First Amendment rights of freedom of speech and peaceable assembly,” Judge Stallman wrote.  But Judge Stallman added that the Occupy Wall Street protesters “had not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time place and manner restrictions permitted under the First Amendment.” The protesters “have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators and other installations.”

The 99-ers, their lawyers and the ACLU lawyer-turned judge Lucy Billings trampled on the rights of others while twisting the First Amendment to suit the occupiers’ selfish purposes. The occupiers will be back to cause trouble at Zuccotti Park or elsewhere in New York City, to be sure. But at least they finally were given the clear message that we live in a society built on the rule of law where rights and freedoms are accompanied by obligations and responsibilities.

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