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Does Occupy Wall Street Have A Free Speech Right To Sleep In The Park?

Publication Date: 
October 25, 2011
Dorf on Law
Mike Dorf

Dean Larry Kramer's Book, "The People Themselves" is mentioned in this "Dorf on Law" article by Mike Dork in regards to the early American tradition of "mobbing," and it's similarities to "occupying" a public space for political purposes-much like that being done in the "Occupy Wall Street" movement.

Last week I fielded a call from a reporter who was interested in the question of whether the Occupy Wall Street protesters would have a First Amendment right to remain in Zuccotti Park in the event that either Brookfield Properties (the property's owner) or the city were to try to evict them. My answer, in a nutshell, went like this:

1) A threshold question is whether to treat Zuccotti Park as a public forum or, if not, whether First Amendment protections apply in light of the character of the public easement that the city extracted from Brookfield in exchange for its development rights.


6) ...The notion of semi-permanently "occupying" a public space for political purposes is both a throwback to a much earlier American tradition of "mobbing," (celebrated by Larry Kramer in his book The People Themselves) and a self-conscious reproduction of the occupation of Tahrir Square and other places occupied during the Arab Spring. As mobs go, OWS is a phenomenally non-violent entity, and thus poses little threat to the public safety. It is not exactly a march or a rally, and thus permits for marches and rallies are not quite adequate substitutes for the occupation activity. Accordingly, if I were writing on a clean slate, I would want the First Amendment to protect OWS either in its current site or on a substitute city park, for as long as the protesters want to stay.