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Fordham Urban Law Journal Volume 39 | Number 4 Article 5 February 2016 The Right to Occupy—Occupy Wall Street and the First Amendment Sarah Kunstler Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the First Amendment Commons, Law and Politics Commons, and the Supreme Court of the United States Commons Recommended Citation Sarah Kunstler, The Right to Occupy—Occupy Wall Street and the First Amendment, 39 Fordham Urb. L.J. 989 (2012). Available at: https://ir.lawnet.fordham.edu/ulj/vol39/iss4/5 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. KUNSTLER_CHRISTENSEN 7/11/2012 9:25 AM THE RIGHT TO OCCUPY—OCCUPY WALL STREET AND THE FIRST AMENDMENT ∗ Sarah Kunstler Eternal vigilance is the price of liberty—power is ever stealing from the many to the few.1 Wendell Phillips, January 28, 1852 Introduction ............................................................................................. 989 I. Symbolic Speech ............................................................................... 993 II. Symbolic Sleeping and the Courts ................................................. 999 III. The Landscape of Symbolic Sleep Protection After Clark v. CCNV .......................................................................................... 1007 IV. The Occupy Movement in the Courts ....................................... 1012 Conclusion .............................................................................................. 1018 INTRODUCTION The Occupy movement, starting with Occupy Wall Street in Zuccotti Park in New York City, captured the public imagination and spread across the country with a force and rapidity that no one could have predicted. The original occupation in New York, the product of the efforts of a number of groups,2 was fueled by a call put out by Adbusters magazine in July of 2011 featuring the image of a ballerina posing atop the iconic bronze bull sculpture of Wall Street—while ∗ The author is grateful to Professors Ellen Yaroshefsky and Holly Maguigan for their mentorship and guidance, to Daniel Pearlstein for his research assistance and to Jesse Ferguson, Lazar Bloch, Tracy Bunting, and Margaret Ratner Kunstler for their invaluable suggestions. 1. Wendell Phillips speech in Boston, Massachusetts, (Jan. 28, 1852), in SPEECH- ES BEFORE THE MASSACHUSETTS ANTI-SLAVERY SOCIETY 13 (Robert F. Wallcut, No. 21 Cornhill 1852), available at http://www.archive.org/details/speechesbeforema01 phil. 2. The groups and individuals who helped organize the original Occupy Wall Street protest in New York include U.S. Day of Rage, Anonymous, New Yorkers Against, and The NYC General Assembly. See Nathan Schneider, Occupy Wall Street: FAQ, NATION (Sept. 29, 2011), http://www.thenation.com/article/163719/ occupy-wall-street-faq. 989 KUNSTLER_CHRISTENSEN 7/11/2012 9:25 AM 990 FORDHAM URB. L.J. [Vol. XXXIX protesters gather in the background amid a cloud of tear gas—and the following text: WHAT IS OUR ONE DEMAND? #OCCUPYWALLSTREET SEPTEMBER 17TH. BRING TENT3 The image was resonant and electrifying. “Charging Bull,” the giant bronze sculpture that stands in Bowling Green Park near Wall Street, the symbol of the financial optimism that characterizes a “Bull Mar- ket,” was to be challenged. The October 2008 stock market crisis— together with bank bailouts, high unemployment, and the increasing income disparity between the highest earners and everyone else—had fostered discontent and hopelessness among those who bore the brunt of disastrous financial decisions that appeared to have enriched the few at the expense of the many. To occupy Wall Street was an empowering way to give voice to this outrage. It was also an assertion of control over Wall Street as a symbol, and the power of the people to change its meaning. On September 17, 2011, about a thousand demonstrators answered the call to Occupy Wall Street, converging in Zuccotti Park in lower Manhattan near the New York Stock Exchange.4 Several hundred spent the night, and from that day forward, the park was “occupied” by demonstrators on a twenty-four-hour basis.5 The numbers were small by New York City protest standards; hundreds of thousands of New Yorkers had taken to the streets to demonstrate in opposition to the imminent Iraq War in 2003.6 But the concept of occupying Wall Street was provocative. “We are the 99%,” a popular chant at Occupy protests, and the movement’s core slogan, pointed not only to the vast wealth inequality between rich and poor, but to the power that Occu- py movement protesters—that all of us—have to combat inequality and injustice: the power of numbers. Over the course of the weeks that followed, many others visited Zuccotti Park, widely known in the movement by its original, pre-2006 name of Liberty Square or Liberty 3. Adbusters also put out an online call to action on its website on July 13, 2011. #OccupyWallStreet, ADBUSTERS (July 13, 2011), http://www.adbusters.org/blogs/ad busters-blog/occupywallstreet.html. 4. See WRITERS FOR THE 99%, OCCUPYING WALL STREET: THE INSIDE STORY OF AN ACTION THAT CHANGED AMERICA 15–19 (2012). 5. Id. 6. See Robert D. McFadden, From New York to Melbourne, Cries for Peace, N.Y. TIMES (Feb. 16, 2003), http://www.nytimes.com/2003/02/16/nyregion/threats-and -responses-overview-from-new-york-to-melbourne-cries-for-peace.html. KUNSTLER_CHRISTENSEN 7/11/2012 9:25 AM 2012] THE RIGHT TO OCCUPY 991 Plaza.7 Once there, it was difficult to remain a bystander or spectator. Everyone was invited to participate directly in the process of deter- mining what Occupy Wall Street was all about, through the democra- cy of the “General Assembly,” daily meetings at which collective de- cisions were made in an open, participatory manner.8 Adbusters had called for a single demand to emerge from the ac- tion.9 As the Occupy movement continued over weeks, the press fo- cused on the lack of a clear demand or demands of the protesters.10 What was their purpose? What were they asking for? The protesters themselves, through the General Assemblies, struggled with this is- sue.11 Various lists of demands were circulated, some held forth by the press. But over time, it became clear that the “demand” was the occupation itself and the direct democracy that was taking place there.12 The occupation of Zuccotti Park in New York, and of other parks and plazas across the country, became model communities that literally demonstrated the protesters’ vision of the form a more just society might take. But it was the round-the-clock nature of the pro- tests that was—and continues to be—the source of their expressive power, as well as the concept that unified Occupy protests across the country. The idea that demonstrators were willing to literally put their lives and bodies on the line, to physically occupy Wall Street and other locations in Washington, D.C., Augusta, Georgia, Fort Myers, Florida, Minneapolis, Minnesota and countless other cities and towns, in order to call attention to disparities in wealth and power, awakened a national discourse about the role of government in meeting the 7. The park was named Liberty Plaza Park from 1968 until 2006, when it re- ceived an $8 million renovation by Brookfield Properties, and was renamed Zuccotti Park in honor of John E. Zuccotti, the chairman of Brookfield, former City Planning Commission chairman and first deputy mayor under Abe Beame. See Schneider, su- pra note 2. 8. The General Assembly, or GA, is the decision-making body of the Occupy Movement, as well as the forum by which organizers make sure that the needs of those participating are being met. See id. 9. See #OccupyWallStreet, supra note 3. 10. See, e.g., Meredith Hoffman, Protesters Debate What Demands, if Any, to Make, N.Y. TIMES (Oct. 16, 2011), http://www.nytimes.com/2011/10/17/nyregion/occ upy-wall-street-trying-to-settle-on-demands.html; Miranda Leitsinger, To Demand or Not to Demand? That is the ‘Occupy’ Question, MSNBC.COM (Nov. 17, 2011), http://www.msnbc.msn.com/id/45260610/ns/us_news-life/t/demand-or-not-demand- occupy-question/; Alaina Love, What Occupy Wall Street Demands of Our Leaders, WASH. POST, (Oct. 11, 2011), http://www.washingtonpost.com/national/on-leadership/ what-occupy-wall-street-demands-of-our- leaders/2011/10/11/gIQAjHtZcL_story.html. 11. See Schneider, supra note 2. 12. Id. KUNSTLER_CHRISTENSEN 7/11/2012 9:25 AM 992 FORDHAM URB. L.J. [Vol. XXXIX needs of the people, and the power of people to participate in their own governance. To occupy these spaces was to transform them. As the occupations continued over days and weeks, lawyers13 and legal workers working with the Occupy movement began to consider whether the First Amendment might include a “Right to Occupy.”14 Over the past eighty years, the protections of the First Amendment have expanded to include conduct that has come to be viewed as ex- pressive, including demonstrating,15 marching,16 leafleting,17 picket- ing,18 wearing armbands,19 and attaching a peace symbol to an Ameri- can flag.20 Should these same protections be extended to round-the- clock occupations, which include activities that were not previously viewed as communicative, such as sleeping and camping? According to the Supreme Court, the answer is no. In a 1984 decision in Clark v. Community for Creative Non-Violence,21 the Court, although ac- knowledging that sleeping in connection with a twenty-four-hour demonstration is somewhat expressive, nonetheless upheld a regula- tion banning the activity. This nearly thirty-year-old decision, how- ever, is not the end of the argument. The boundaries of First Amendment protection of expressive conduct have moved over time.22 Once a particular form of conduct is recognized as having suf- ficient symbolic value, regulations that limit that conduct receive greater scrutiny.
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