Another Occupy Wall Street free speech case bites the dust

Remember Occupy Wall Street? I do. It was fall 2011. I stopped by Zuccotti Park to say hello and walk around after I argued an appeal at the Second Circuit. I remember the endless drumming which echoed in the canyons of Wall Street. For about three weeks, income inequality was on the agenda. That movement has lost steam, but the lawsuits arising from Occupy are still winding through the courts. Most of the plaintiffs lose these cases on free speech grounds, and this case is no different.

The case is Meyers v. City of New York, a summary order issued on April 30. Plaintiffs claim the police violated the First Amendment in ordering them to disperse after they set up tents and lived in the parks. According to the decision, these living arrangements posed a hazard because protesters violated the sanitation laws and people were using gasoline and diesel generators near large quantities of flammable materials.

The case was dismissed, and the Court of Appeals keeps it that way. The police had probable cause to arrest the plaintiffs for disorderly conduct after they refused to leave the park. "The City had a legitimate interest in ensuring that the Park remained accessible to all members of the public -- most just the protesters -- and free of congestion." The City also had a legitimate reason to clear the Park of unlawful structures. While disorderly conduct requires proof that the public may be inconvenienced, "even in the early morning, it was entirely reasonable for the arresting officers to assume that nearly 150 protesters refusing to leave a public area in downtown Manhattan would risk 'public inconvenience."

Plaintiff also claim they suffered a retaliatory arrest. To win this claim, they have to get around the "time, place and manner" rules that allow the police to throw people out of a public forum if the directive is content-neutral, narrowly tailored to serve a significant governmental interest and allows the protesters "ample alternative channels of communication." This stems from Supreme Court authority that, in my experience, gives the government significant leeway to regulate public spaces. Plaintiffs lose on this claim because the eviction was not based on content, even if the protesters were the only ones who were actually kicked out. The order also promoted significant governmental interests in preventing mounting fire hazards and congestion. As for the ample alternatives, "the protesters were free to exercise their rights in any other public area within the vicinity of the Park (or even to return to the Park after it was cleaned").