'Occupy' types

[JoeRedskin]

Originally Posted by NC_Skins

Yes it does.

The Occupiers were not denied the right to protest - they may gather peacefully and within the local regulations. Lawfully ordered to leave, they refused to comply with those regulations and had to be forcibly removed.

Nothing in the local governments actions were in contravention of the OWS's right to freely assemble. In Hague v. CIO, 307 U.S. 496 (1939), the Supreme Court addressed the impermissible use of regulations and ordinances by governments as a way to prohibit or abridge the right of free assembly. In that case, the ordinance in question forbade “the leasing of any hall, without a permit from the Chief of Police, for a public meeting at which a speaker shall advocate obstruction of the Government of the United States or a state, or a change of government by other than lawful means”. The city invoked this ordinance to deny the CIO “the right to hold lawful meetings in Jersey City on the ground that they are Communists or Communist organizations”. The City then, “pursuant to an unlawful plan[,] … caused the eviction from the municipality of persons they considered undesirable because of their labor organization activities, and have announced that they will continue so to do.” Hague, 307 U.S. at 501 (1939)

As to the that ordinance, the Court said it did "not make comfort or convenience in the use of streets or parks the standard of official action." Rather, it "enable[d] the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.” Hague, 307 U.S. at 516.

In reaching this conclusion, however, Justice Owen Roberts, speaking for the Court, made it very clear that the right to free assembly was, in fact, subject to reasonable regulations and not absolute:

“The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." Hague, 307 U.S. at 515-516 (1939).

FindLaw | Cases and Codes

Unlike the CIO in Hague, the OWS is not being denied its right to assemble. Rather the right is being regulated in conjuction with the "interests of all". The protestors are free to return, sans tents, and continue their protest. According to the NYC Judge, however, the owners of Zuccotti Park and those living and working in the area also have a few rights:

"To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the owners rules [prohibiting those things in their park] appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of the law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus."

"The [OWS Movement] have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner’s reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely."

http://www.courts.state.ny.us/press/OWS111511.pdf