Are tent cities free speech?

The owner, Brookfield Properties, expressly prohibits tents, tarps and sleeping in the park—rules ignored by the protesters. It also has a history of denying use of the park for political activities, which is within its rights. Last year the city and Brookfield Properties denied a request by a group to use the park to protest against the planned new mosque near the World Trade Center. A content-neutral approach, the cornerstone of First Amendment jurisprudence, should also have kept Occupy Wall Street out.

In a 2002 case, the federal appeals court in New York turned down a union seeking to protest in the publicly owned plaza outside Lincoln Center. Among the judges making the ruling was Sonia Sotomayor, appointed to the Supreme Court by President Obama. Courts will apply a time, place and manner standard even more restrictive of speech in a privately owned park like Zuccotti than in a public park like the Lincoln Center plaza.

The mostly young Occupy Wall Street protesters seemed genuinely shocked when Mayor Bloomberg ordered their tents removed. This probably fueled their violent and abusive reaction.

Their false expectations were set by politicians who should have known better. Shortly after the protests began, their “general assembly” debated whether to risk bringing in tents. New York politicians and the liberal community board representing Lower Manhattan issued statements suggesting that First Amendment rights were absolute, emboldening protesters into thinking they could take over the park indefinitely.