When we sympathize with a group it’s easy to rationalize their behavior. In issues of free speech you need to flip it around and imagine that the group is one that you detest, then evaluate their behavior and the government response.
Imagine if the Neo-Nazis, Ku Klux Klan, Aryan Brotherhood and the Skinheads decided to hold a unity protest and occupied Zucchini Park near Wall Street. Thousands of white supremacists from all over the country attend.
They don’t obtain permits, they just start camping in the park and hold daily rallies and protest marches. They announce that they are not leaving until their unspecified demands are met.
What, if anything, should the police do?
According to the law the police should treat them just like they would treat any other group. And the police should treat any other group just like they would treat the Neo-Nazis, Ku Klux Klan, Aryan Brotherhood and the Skinheads.
That’s what “content neutral” means.
Sidewalk, streets, and parks are what are known as traditional forums and “have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515 (1939). The government cannot deny the public access to a traditional public forum nor can it regulate use of the forum based on the content of one’s speech. Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). However, the government is permitted to impose “reasonable time, place, and manner restrictions” within a public forum so long as the regulations are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Id. In short, the government may set reasonable rules in a public forum, those rules can be no more expansive than is necessary to accomplish the government’s purpose and such rules can not be used to completely deny access to the traditional public forum.
Thus, the government may be able to prevent protesters from completely blocking a thoroughfare to traffic, such as a street or sidewalk, but cannot curtail any more speech than is necessary to accomplish that goal. Similarly, government can regulate use of sound amplification equipment, such as limiting the decibel level and requiring a permit, but would normally not be able to bar use of amplification equipment entirely. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
While certain basic free speech activity is almost always permissible in a traditional public forum, such as leafleting or protests involving a small number of people, it is generally advisable to check applicable regulations before hand. For instance, sound amplification equipment will often require a permit as might a demonstration involving a large number of people. To find out what regulations exist you should contact the municipality where you intend to demonstrate.
As noted above, public streets are traditional public forums and therefore are open for expressive purposes such as marches. Of course, public streets are also used for cars, buses, and other vehicles. Therefore, municipalities usually impose reasonable time, place, and manner restrictions on the use of streets for speech purposes. These regulations generally involve a permit requirement, advance notice, time limitations, and some sort of police presence to close the street or a portion of the street to traffic during the march. Many municipalities try to also impose an insurance requirement to indemnify the city. Insurance requirements to use a traditional public forum are almost always unconstitutional. Municipalities are, however, allowed to charge a nominal fee to cover the cost of processing permit applications.
If you choose to ignore reasonable time, place, and manner restrictions and block traffic on public thoroughfares you can be arrested (or at the very least ticketed). There is nothing unconstitutional about the enforcement of generally applicable laws so long as the are enforced equally and not on the basis of the speaker’s message. Indeed, equality under the law requires that generally applicable laws be enforced uniformly even if the violators believe they had a good purpose for their action.