Occupy Boston: A legal analysis

Issue February 2012 By Michelle Keith

After 72 days of dwelling between the crossroad of criminal trespass and expression of free speech, the people of Occupy Boston peacefully removed their tents from Dewey Square. On Dec. 10, 2011, at 5 a.m., without the use of batons, pepper spray or riot gear, hundreds of police swept everything clear. Some protestors refused to leave and were arrested, their belongings thrown away. Most withdrew without adieu, for this is a movement that is far from finished. Most importantly, rule of law in our society balanced the equities and demanded respect for the individual.

On Nov. 16, 2011, the Superior Court of Massachusetts granted a temporary restraining order preventing the city of Boston "from any police action which would remove the individuals, tents, and personal belonging of the Occupy Boston protesters from Dewey Square, absent emergency circumstances including but not limited to medical circumstances, fire, or outbreak of violence, at any time before this court has decided the motion for a preliminary injunction brought by these plaintiffs."

On Dec. 7, 2011, after full briefing of the legal issues, the court vacated the temporary restraining order and denied the motion for a preliminary injunction to prevent removal. While the federal courts have established that the First Amendment protects 24-hour protests in public parks - such as Dewey Square - as expressive conduct, regulations such as park use guidelines or fire, building, sanitary and health codes are constitutional time, place and manner restrictions.

It is within the law, as expressive First Amendment conduct, to set up tents, sleep overnight, eat and govern at public parks. However, it is not within the law to take possession of a site effectively excluding other members of the public from accessing or using a public park in any other manner. Here, 100 to 150 people took up residence in tents "set cheek-to-jowl with stakes, guy ropes and space for three walkways. One walkway consist[ed] of wooden pallets and plywood and [ran] down the center of the encampment. There [were] two cross walkways. The site [did not] appear to be handicap accessible."

Nor is it within the law to disregard content-neutral park use guidelines. Here, guidelines such as a ban on sleeping overnight and a requirement to obtain a permit before erecting tents were narrowly tailored to further the park's substantial interest to "offer [unobstructed public access to] beautiful, well-cared for spaces."

Likewise, it is not lawful to disregard fire, building, sanitary and health codes in the name of free speech. One merely needs to recall the great tragedy of Boston's Cocoanut Grove fire to understand the important government interest regulated by such codes. Here, the fire marshal's "opinion about the use of flammable tarps on tents, his observations regarding smoking and automotive batteries and the photograph of the jack-o-lantern were chilling." By his testimony alone, the city of Boston "met its burden of justification for regulating the expressive activities of setting up tents and sleeping overnight."

Alternatives for expression abound and, no doubt, the people of Occupy Boston will continue to avail themselves of those alternatives to promote their message that "a more just, democratic, and economically egalitarian society, responsive to the people rather than the corporations, is possible."

As long as there are people who are dedicated to preserving the rule of law, their objective is possible. However, as MBA President Richard P. Campbell has observed, "Massachusetts lawyers face another important challenge to the rule of law. It may not be tied as directly to violence and mayhem, but it is nonetheless under attack. Courthouses are closing and those that continue to operate have diminished hours of operation. Court staffs are suffering layoffs, furloughs and pay freezes. Judges are leaving the bench at alarming rates."

Imagine, for a moment, what would have happened to the protestors without the rule of law. Please let your senators and representatives know that you support full funding of our courts.

Michelle Keith served as a 2011 Law Fellow to the justices of Massachusetts Superior Court and is presently working on her master's degree at the University of London, specializing in International Human Rights.