OWS Could Force Supreme Court Ruling on Free Speech

Do tent cities have Constitutional rights? We might soon find out.

It seems clear that the Occupy Philly/Wall Street/Oakland/Atlanta/EVERYWHERE movement is headed to the Supreme Court. What started as a movement to protest the economic disparity in this country between the top one percent and everyone else has become a nationwide test of individual rights protected by our Constitution.

If you talk with two dozen protestors at Occupy Philly or Occupy Wall Street, you will get two dozen different reasons for the protest. The lack of a coherent message has been the source of constant criticism against the movement since the first protestor pitched a tent in Lower Manhattan. But as cities across the country attempt to enforce local ordinances, the movement has become a stand for freedom of speech and peaceful assembly.

The dominant question unwittingly posed by the protestors is: Do Constitutional rights trump local laws and ordinances? In Oakland, California, the city decided they do not. Oakland police in riot gear rained tear gas down on protestors to move them out of a park near City Hall, ironically designated as a free-speech zone. The city was enforcing a local ordinance against camping overnight in the city park. Now there is a curfew on the protestors. Apparently there is only free speech in Oakland between 9 a.m. and 6 p.m.

Mayor Nutter is in talks with Occupy Philly protestors to relocate their tents so renovation can begin on Dilworth Plaza. Although the mayor calls the talks “open, respectful and responsive,” the protestors have given no indication that they want to move or will move. What happens if they don’t?

In New York, Mayor Bloomberg is taking a slightly more aggressive stance. Zuccotti Park, where Occupy Wall Street started and is headquartered, is private property. And its owners are allowing the protest in order to prevent a violent clash with police. But just before our rare October snowfall, New York City fire inspectors pulled all generators from the park. The Mayor has said he believes the protestors will not make it through a New York winter, and he seems hell-bent on making sure that happens.

Bloomberg hinted to a radio talk show in New York that he may pull the tents next. “There are places where I think it’s appropriate to express yourself, and then there are other places that are appropriate to set up a tent city, and they don’t necessarily have to be one and the same.” And then the mayor made the statement that will have to be decided by future court proceedings: “The Constitution doesn’t protect tents, it protects speech and assembly.”

A 1984 Supreme Court case that denied protesters the right to camp on federal land seems to back up the Mayor’s assertions that tents are not free speech, which will help Mayor Nutter if he ever decides to move the protestors out, but the court did not address what happens if the protest takes place on private property. And there are plenty of ordinance violations in Zuccotti Park currently being ignored by the city; to selectively enforce a camping ban seems specious at best. The move would be seen as a cruel attempt to freeze out the protestors in the winter months.

But as New York, Philadelphia and other cities grow tired of the protestors, as they did in Oakland and Atlanta, they will give Occupy Wall Street the purpose it has been lacking. When history looks back on the Occupy Movement, it may very well be remembered more for a landmark Supreme Court ruling on the boundaries of our freedoms. And that will be the Occupy legacy.