Could Past Rulings on Sleep Speech Keep Occupiers in Zuccotti Park?
While it is unclear if the Jennifer Waller and the other litigants who attempted to restrain NYC Mayor Michael Bloomberg's eviction of occupiers from Liberty Square will continue to press their case and/or appeal Judge Michael Stallman's decision to vest control of Zuccotti Park to Brookfield Office Properties, various cases testing whether sleeping can be considered speech, including a 2000 ruling by Judge Kimba Wood, provides one of many grounds on which to do so. As explained by Andy Humm, a former member of the City Commission on Human Rights:
In that case, the Civil Liberties Union sued the city on behalf of tenant activist seeking to sleep in Carl Schurz next to Gracie Mansion before the Rent Guidelines Board meeting on rent increases. They hoped to dramatize how excessive rent hikes lead to homelessness.
In ruling for the protestors, Wood wrote, "The city contends that if it cannot stop sleeping at this vigil, then it cannot under any circumstances, regulate the use of city sidewalks in a manner it deems necessary and appropriate to promote the free flow of pedestrian traffic. ... The city has offered no evidence that those who sleep on the sidewalks while intoxicated and/or homeless (the instances cited by the city) will implicate the First Amendment at all."
In an article on the decision, Judge Emily Jane Goodman wrote, "Given the right case, sleep can be considered speech and is thus protected by the First Amendment."
She continued, "The court agreed that this was no mere nighttime nap, but was political expression."
It remains to be seen if Occupy Wall Street can prevail on the same claims, but whatever the courts rule, the police actions against the protests have raised the discussion on police tactics and misconduct to a whole new level. On Nov. 20, State Sen. Eric Adams and civil rights attorney Norman Siegelcalled for City Council hearings into the eviction raid and “said city officials violated a court order by cleaning out Zuccotti Park and should be penalized,” according to NY1.
City Councilmember Rosie Mendez has sponsored a First Amendment Assembly Act that she concedes has been going nowhere since we wroteabout it in 2008, but she hopes current events will bring attention to this bill that would compel the police to be more accommodating of protests.
Reacting to the raid at Zuccotti Park, [civil libertarian and OWS media consultant] Billy Dobbs said, "Bloomberg and the NYPD were itching to do this like authoritarians everywhere – squash a protest desperately hoping that the issues would be stopped. But Occupy's issues are going around the world."