Occupying Public Forums

"When an individual seek[s] to take advantage of an effective, convenient means of communication, the Constitution cannot permit what are often in reality relatively trifling objections to stand in his way."  Geoffrey Stone wrote this sentence more than a quarter century ago, and yet it has resonance today. The question, of course, is what objections are "trifling"? 

In Oakland protesters are returning to the amphitheater in front of City Hall today after the police used force and violence to evict them yesterday. The City attempted to justify the forcible removal, tear gas and all, as necessary to preserve public order in what appears to be a public forum.  The Supreme Court has held (in Clark v. Community for Creative Non-Violence) that the right of citizens to use public forums for protests does not entail the right to sleep overnight in them, even if the sleeping is designed to send a message. For my own part, I believe that the Supreme Court's public forum jurisprudence as a whole gives undue deference to government interests in controlling government property.  Regardless, established precedent suggests that the City of Oakland did not violate the First Amendment rights of the protestors by demanding that their overnight occupation of its public forum cease.  [Whether it violated other rights of the protestors by the use of excessive force is another issue entirely.]

But can the City demand that the daytime occupation cease because the protest has gone on too long?  The City might argue that the prolonged daytime occupation interferes with the flow of traffic to and from City Hall, that it interferes with the rights of other citizens to use the public forum, that the property itself is being degraded by wear and tear, that providing the necessary police presence at the forum is unnecessarily burdensome, or so forth.  Without knowing the physical layout of the forum, I find it hard to evaluate the factual plausibility of some of these arguments.  But how about the constitutional plausibility? The City's arguments for restricting forum access appear to be content neutral.  Are they nonetheless, in the words of Geoffrey Stone, "trifling objections" insufficient to overcome the First Amendment rights of the protesters to speak, assemble, and petition?   The Supreme Court  has upheld content-neutral restrictions within public forums that were justified based on government interests in aesthetics, preventing traffic interruption, or curtailing excessive wear and tear on public property, but the cases upholding regulations based on those interests were factually distinguishable from the situations presented by the "OCCUPY" protests.

Furthermore, whether we find asserted interests such as those listed above to be substantial or significant depends to a large extent on how much deference we give to the judgment of the public officials asserting them.  Just because a public official asserts a threat to public order doesn't mean such a threat exists.  Justice Thurgood Marshall once noted that public officials "have strong incentives to overregulate [public forums] even in the absence of an intent to censor particular views."  Protests are inherently inconvenient, messy, and even costly for public officials to manage.  They are also essential to the health of our democracy.