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Constitutional Litigation Clinic Offers Guidance on First Amendment Rights of Occupy Wall Street Participants

September 13, 2012 – 

A legal memorandum prepared by the Constitutional Litigation Clinic at Rutgers School of Law–Newark to help Occupy Wall Street (OWS) leaders and participants understand their constitutional rights to assembly and expression concludes that much of the OWS conduct falls within the protections of the First Amendment. “More problematic,” the memo concludes, “is establishing that First Amendment protection extends to sleeping and camping activities.” Click here to read the memo.

Written by Professor Frank Askin, Director of the Constitutional Litigation Clinic, and three of his students, the memo identifies several U.S. Supreme Court decisions upholding the rights of free speech and assembly in parks and other public arenas. States the memo: “The movement’s efforts involving rallies, marches, distribution of literature, displaying signs and posters and engaging in conversations regarding the movement’s platform are well within the protection of the First Amendment.”

As for sleeping and camping, the memo notes: “Recently, courts have assumed that sleeping and camping are symbolic expressions protected by the First Amendment, but reasonable, time, place and manner restrictions have, generally, precluded the protestors from actually sleeping and camping in public fora.” The memo describes the court rulings in two cases involving demonstrators seeking to maintain a 24-hour presence in a public space. 

A significant section of the memo is devoted to the various factors that courts may consider when deciding whether to uphold free speech restrictions of privately-owned public spaces (POPS), such as Zuccotti Park in New York City, site of the first OWS activities. The memo advises: “Individuals contemplating the exercise of their right to protest within a privately-owned public space should keep in mind the following: (1) find out the regulations that are applicable to a particular POPS and check to make sure they have been legally authorized; (2) research the relevant legal opinions in the jurisdiction; and (3) investigate whether there are favorable arguments that can be raised in jurisdictions where there are no applicable precedents regarding POPS.”

The memo, titled “The Right to Peaceably Assemble: U.S. Constitutional Law and Occupy Wall Street,” was prepared by the clinic as part of the Protest and Assembly Rights Project, a national consortium of law school clinics formed to address the U.S. response to Occupy Wall Street.