After 72 days of dwelling between the crossroad of criminal
trespass and expression of free speech, the people of Occupy Boston
peacefully removed their tents from Dewey Square. On Dec. 10, 2011,
at 5 a.m., without the use of batons, pepper spray or riot gear,
hundreds of police swept everything clear. Some protestors refused
to leave and were arrested, their belongings thrown away. Most
withdrew without adieu, for this is a movement that is far from
finished. Most importantly, rule of law in our society balanced the
equities and demanded respect for the individual.
On Nov. 16, 2011, the Superior Court of Massachusetts granted a
temporary restraining order preventing the city of Boston "from any
police action which would remove the individuals, tents, and
personal belonging of the Occupy Boston protesters from Dewey
Square, absent emergency circumstances including but not limited to
medical circumstances, fire, or outbreak of violence, at any time
before this court has decided the motion for a preliminary
injunction brought by these plaintiffs."
On Dec. 7, 2011, after full briefing of the legal issues, the
court vacated the temporary restraining order and denied the motion
for a preliminary injunction to prevent removal. While the federal
courts have established that the First Amendment protects 24-hour
protests in public parks - such as Dewey Square - as expressive
conduct, regulations such as park use guidelines or fire, building,
sanitary and health codes are constitutional time, place and manner
restrictions.
It is within the law, as expressive First Amendment conduct, to
set up tents, sleep overnight, eat and govern at public parks.
However, it is not within the law to take possession of a site
effectively excluding other members of the public from accessing or
using a public park in any other manner. Here, 100 to 150 people
took up residence in tents "set cheek-to-jowl with stakes, guy
ropes and space for three walkways. One walkway consist[ed] of
wooden pallets and plywood and [ran] down the center of the
encampment. There [were] two cross walkways. The site [did not]
appear to be handicap accessible."
Nor is it within the law to disregard content-neutral park use
guidelines. Here, guidelines such as a ban on sleeping overnight
and a requirement to obtain a permit before erecting tents were
narrowly tailored to further the park's substantial interest to
"offer [unobstructed public access to] beautiful, well-cared for
spaces."
Likewise, it is not lawful to disregard fire, building, sanitary
and health codes in the name of free speech. One merely needs to
recall the great tragedy of Boston's Cocoanut Grove fire to
understand the important government interest regulated by such
codes. Here, the fire marshal's "opinion about the use of flammable
tarps on tents, his observations regarding smoking and automotive
batteries and the photograph of the jack-o-lantern were chilling."
By his testimony alone, the city of Boston "met its burden of
justification for regulating the expressive activities of setting
up tents and sleeping overnight."
Alternatives for expression abound and, no doubt, the people of
Occupy Boston will continue to avail themselves of those
alternatives to promote their message that "a more just,
democratic, and economically egalitarian society, responsive to the
people rather than the corporations, is possible."
As long as there are people who are dedicated to preserving the
rule of law, their objective is possible. However, as MBA President
Richard P. Campbell has observed, "Massachusetts lawyers face
another important challenge to the rule of law. It may not be tied
as directly to violence and mayhem, but it is nonetheless under
attack. Courthouses are closing and those that continue to operate
have diminished hours of operation. Court staffs are suffering
layoffs, furloughs and pay freezes. Judges are leaving the bench at
alarming rates."
Imagine, for a moment, what would have happened to the protestors
without the rule of law. Please let your senators and
representatives know that you support full funding of our
courts.
Michelle Keith served as a 2011 Law Fellow to the justices
of Massachusetts Superior Court and is presently working on her
master's degree at the University of London, specializing in
International Human Rights.