This article first appeared in the St. Louis Beacon, Nov. 28, 2011 - Occupy Wall Street protesters have a First Amendment right to protest in a public park, but they don't have the right to camp overnight or to physically block police officers trying to remove their tents. If officers try to forcibly remove protesters, the police may use reasonable, but not excessive force.
That is the consensus of legal experts in the wake of police actions all across the country aimed at removing Occupy encampments. It explains why courts, including U.S. District Judge Carol Jackson in St. Louis, have permitted police to remove permanent encampments.
Some civil libertarians believe that the U.S. Supreme Court should give a more robust interpretation of the First Amendment to protect peaceful, overnight assemblies such as Occupy's. But they acknowledge that current court decisions do not recognize the right to camp overnight in a park.
Pubic parks are traditional places for groups to protest. But under current court decisions, the government can set reasonable time, place and manner restrictions on those protests, including rules against overnight camping.
"There is a right, it seems to me, to protest in public spaces, especially those that grace our downtown areas," says Michael A. Wolff, a former Missouri Supreme Court judge and a Saint Louis University law professor. "For reasons of public health and safety, however, the right to protest does not include the right to camp out," he wrote in an email. "So the occupiers probably should march off to a camping-friendly venue, and then resume the protest in the public space each day."
Alan Howard, a First Amendment expert at Saint Louis University Law School, put it this way in an email: "The Supreme Court has never found (nor likely to ever find) that individuals have a First Amendment right to 'occupy' public property, even public property the Court would characterize as a public forum.
"Individuals have a First Amendment right to some access to such property but clearly the government can impose time limits on access and even, to some extent, regulate what protesters can and cannot do on the public property. The regulations, of course, need to be content neutral."
Content neutral means that a government can't pick and choose among the messages it wants to allow protesters to communicate. It can't, for example, treat Occupy protesters one way and Tea Party protesters another.
In the past several weeks, national organizations of journalism educators and college professors have circulated letters calling on public officials to protect the First Amendment rights of the Occupy movement to protest in public spaces.
The American Association of University Professors called upon university administrators to "refrain immediately from further use of police against nonviolent protesters and, instead, to defend the rights of students, faculty, and staff to peacefully demonstrate."
The Association for Education in Journalism and Mass Communication (AEJMC) said it "encourages public officials and law enforcement officers to work with Occupy participants and journalists covering their protests to ensure that basic constitutional freedoms are maintained and not encroached. The rights to protest and to criticize government are core values enjoying Constitutional protection."
The AEJMC letter sparked a critical online comment from one of its members, Leo Eko, who wrote that the AEJMC letter gave the "misleading impression" that the First Amendment is absolute. Eko pointed out that the Supreme Court ruled in 1984, in Clark v. Community for Creative Nonviolence, that protesters against homelessness did not have the right to camp overnight in Lafayette Park and on the National Mall.
In the Clark case, protesters argued that their overnight encampment was integral to their expressive message against homelessness. St. Louis Occupy protesters tried a similar approach. "The medium is the message," protester John Mills said. "For us, the medium is the occupation." Occupy lawyer Maggie Ellinger-Locke added that the occupation in Keiner was itself "the speech that needs to be protected." But Judge Jackson, like the Supreme Court in Clark, ruled that the First Amendment did not reach that far.
Several First Amendment advocates believe that the courts are too willing to allow municipalities to limit assemblies and hope that the Occupy protests will provide an occasion for broadening the reach of free expression.
Lawrence Lessig, a Harvard law professor, said on the Diane Rehm show on Public Radio this month that the Founding Fathers would be shocked at limitations on protests like Occupy's. "I don't think our framers -- people who organized the conventions that produced our government -- would even recognize the extent of legal regulation on the freedom of people to protest today," he said. Lessig called upon the Occupy movement to make greater free speech rights one of its goals.
"What the courts say is the first step in understanding what free speech in America should be about. ... The courts have upheld the power of cities and governments to regulate even free speech activities to confine them and make sure that they don't impose burdens that are disruptive to the rest of city life. I'd like to see Occupy and the Tea Party do more to get rid of free speech zones. ... I'd like to see Occupy and the Tea Party occupy the Hill, everyday, demand free speech by engaging in free speech, and getting arrested for it."
Locally, David Roland, director of litigation at the libertarian Freedom Center of Missouri, also favors broader court decisions protecting protests. "Citizens' First Amendment rights warrant a higher level of judicial protection, and I hope that any cases that might arise from the clearance of the Occupy encampments will offer the courts an opportunity to rebuke those governments that have improperly denied those rights," he wrote in an email.
"The general practice of the Occupy movement is to establish a round-the-clock presence in highly visible public places, and to provide a forum that allows those who are frustrated with certain aspects of our society to voice their frustrations and to discuss ways that like-minded people can affect change," he wrote. "So long as the gathering remains peaceful, this is precisely the kind of activity that the First Amendment exists to protect."
Roland thinks that Americans "should be deeply troubled by the way some law enforcement officials acted against protesters." Videos of police showering peaceful demonstrators with pepper spray at the University of California at Davis have gone viral and the officers involved have been suspended. Videos of police using batons to strike students at the University of California at Berkeley also sparked criticism of police behavior.
Wrote Roland: "At UC-Berkeley, riot police hammered students with clubs, even though the students were merely standing in peaceful solidarity; in some cities, the police used tear gas and pepper spray against nonviolent protesters; and in a great many cities the police wantonly destroyed or confiscated tents, sleeping bags, books and other personal property. Even worse, several cities tried to block the news media from observing the clearance of the Occupy encampments. Whatever one thinks about the ideas that have been coming out of the Occupy movement, I hope one would agree that the police should not be permitted to beat, tear gas, pepper spray, or destroy the property of citizens who are not threatening anyone else's safety."
The Fourth Amendment, which protects people against unreasonable searches and seizures, has been interpreted to bar excessive force in carrying out dispersal and arrest of protesters. This can require courts to balance First and Fourth Amendment rights, said Roger Goldman, a law professor at Saint Louis University.
"Even if it is reasonable under the First Amendment to ban these protests under time, manner, place restrictions, the manner in which the police may act is constrained by Fourth Amendment principles that their actions must be reasonable," he wrote in an email.
"The facts and circumstances of each particular case are important to determine reasonableness," said Goldman. In a 1989 opinion, Chief Justice William H. Rehnquist said that courts should consider the severity of the crime, whether the suspect poses a threat to the safety of officers or others and whether he is actively resisting arrest or evading arrest by fleeing.
"The calculus of reasonableness," wrote Goldman, "must include allowance for the fact the officers are often asked to make split second judgments in circumstance that are tense, uncertain and rapidly evolving on the question of the force that is necessary. So the bottom line ... is that the Court doesn't want to second guess cops' decisions."
The way that protesters can challenge police tactics is through civil rights suits. But to win, the protesters would have to show that that a particular right is "clearly established" in the law. So the Occupy protesters in Davis would have to show that "the law was clearly established that using pepper spray in such circumstances was a violation of the 4th Amendment," wrote Goldman.
This is a tough case to make, but Goldman noted that that the federal appeals court in California ruled recently that tasering a pregnant woman was clearly unreasonable.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.