The Cleansing of Zuccotti

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Just a few thoughts about Tuesday’s TRO Wankfest.

The OWS lawyers obtained an emergency ex-parte restraining order from a friendly judge who made a 6:30 am housecall to sign it. They say a good lawyer knows the law but a great lawyer knows the judge.

But even without a judge in your pocket ex-parte restraining orders are about as hard to get as a $20 Rolex in Times Square and last about as long. “Ex-parte” means “by one party” and refers to a judicial proceeding where only one side gets heard. Ex parte orders are generally intended to freeze the situation until everyone can come to court and be heard.

The OWS’ pet judge only made the order good for five hours until a hearing set for 11:30 am Tuesday morning. The protesters could waive all the copies they wanted but restraining orders are only binding when personally served. More importantly, by the time it was signed Zuccotti Park had already been cleared.

Ironically, the TRO probably delayed the protesters’ return to the park. The police had stated from the beginning that after the park was cleaned people could reenter. But they weren’t going to let anyone return with tents and camping gear, which is really what the dispute was about.

Here’s the court order:

The parties dispute whether the First Amendment applies to the actions of the owner in enacting the rules. For purposes of this application, the Court assumes that the First Amendment applies to the owner of Zuccotti Park, thus obviating petitioners’ request for a hearing as to whether Zuccotti Park is traditional public forum, or a limited public forum. Assuming arguendo, that the owner’s maintenance of the space must not violate the First Amendment, the owner has the right to adopt reasonable rules that permit it to maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law.

The Court is mindful of movants’ First Amendment rights of freedom of speech and peaceable assembly. However, “[e]ven protected speech is not equally permissible in all places and at all times.” (Snyder v Phelps, 131 S Ct 1207, 1218 [2011], quoting Cornelius v NAACP Legal Defense
& Ed. Fund, Inc., 473 US 788, 799 [1985].) Here, movants have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment.

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 law and the owner’s rules 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 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.

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I’ve said for weeks that the City was on solid legal ground. Since Zuccotti Park is private property the First Amendment would not normally be implicated, and OWS had no right to possess or occupy the park on a permanent basis. But for reasons too complicated to explain here the park could be considered public property for the purposes of First Amendment analysis.

The court made the assumption it was a “public forum” and still ruled against OWS. That, IMNSHO, is the correct ruling.

Here’s what is so stupid about all this drama and histrionic claims of government oppression – no one has attempted to deny the Occupiers right to protest. Not in New York City, not in Oakland, not in any city.

Mayors Bloomberg and Quan both said that the protesters in their cities were welcome to protest on a daily basis, from early morning into the evening. The main conflict has been over 24/7 camping in city parks.

The protesters were told they were not allowed to camp overnight. They ignored the warnings. They were told to leave. They refused to go. Finally, the police moved in to evict them. They resisted.

So all this time was wasted fighting over camping instead of protesting their cause. Talk about rebels without a clue!

Meanwhile, for nearly two months now nobody has been talking about Barack Obama.

Mission accomplished!

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