What Next for Occupy Wall Street After Adverse Court Ruling?

On September 17, 2011, OWS began occupying Zuccotti Park on a 24-hour basis to bring attention to the growing disparity of wealth and power in the United States. Afterwards, OWS progeny sprung up in many cities across the nation and in a number of foreign cities.

Zuccotti Park, by the way, is a privately-owned park, established in 1968 pursuant to an agreement under which Brookfield Office Properties -- the owner and one of the defendants -- received development rights for adjacent properties in exchange for maintaining the park as a "public amenity." Under the agreement, the park must be open to the public and maintained for public use 365 days per year.

Sometime after OWS occupied Zuccotti Park, Brookfield promulgated rules, prohibiting, among other things, camping and/or the erection of tents or other structures; lying down on the ground, or lying down on benches; the placement of tarps or sleeping bags or other covering on the property; and storage or placement of personal property on the ground, benches, sitting areas or walkways which unreasonably interferes with the use of such areas by others. These rules were clearly aimed at OWS.

At the court hearing, Brookfield represented that after Zuccotti Park is cleaned and restored, OWS will be permitted to reenter the park and resume using it, in conformity with the law and the owner's rules.

The parties disputed whether the First Amendment applied to a privately-owned park even though it was maintained as a public amenity. For purposes of OWS's application for an extension of the TRO, the court ruled that the First Amendment did apply, but the owner of the park had the "right to adopt reasonable rules to permit it to maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law." The court further ruled that OWS did not demonstrate that the rules were "not reasonable time, place, and manner restrictions permitted under the First Amendment."

Finally, the court noted that New York City prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places. Thus, according to the court, Brookfield's rules appeared to be reasonable to maintain the space in a hygienic, safe, and lawful condition, and to prevent it from being liable for violations of New York City laws.

What next? The case is not over. The parties must submit all briefs to the court by December 1st. I assume a final court decision will follow shortly thereafter. However, the court has already signaled that, although the First Amendment applies, Brookfield's rules are reasonable, and furthermore, the occupation probably violates a number of New York City laws. Therefore, I predict that the OWS eviction from Zuccotti Park will stand. Should OWS set up camp in another public location, the expected court ruling will probably justify an eviction from that new location.

Although any court ruling upholding the eviction of OWS is applicable only to New York state, the ruling will probably prove influential in other possible court actions involving similar occupations in other U.S. cities.

What are OWS's options in light of the expected adverse court action? OWS can appeal the lower court's ruling. It can defy the court's ruling and force a series of confrontations with the authorities. Or it can continue to protest and demonstrate in accordance with Brookfield's rules and the laws of New York City.

OWS may lose the court case but hopefully they have not lost the spirit and determination of the movement.

Salem-News.com writer Ralph E. Stone was born in Massachusetts. He is a graduate of both Middlebury College and Suffolk Law School. We are very fortunate to have this writer's talents in this troubling world; Ralph has an eye for detail that others miss. As is the case with many Salem-News.com writers, Ralph is an American Veteran who served in war. Ralph served his nation after college as a U.S. Army officer during the Vietnam war. After Vietnam, he went on to have a career with the Federal Trade Commission as an Attorney specializing in Consumer and Antitrust Law. Over the years, Ralph has traveled extensively with his wife Judi, taking in data from all over the world, which today adds to his collective knowledge about extremely important subjects like the economy and taxation. You can send Ralph an email at this address stonere@earthlink.net

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Ralph E. Stone November 20, 2011 7:28 am (Pacific time)

Ms. Rougeau: Your comment on the justice selection is not quite accurate. Actually, the Occupy Wall Street attorneys called Justice Billings asking for a restraining order. Why did they call her? Probably because she spent three years as an ACLU attorney and would be more receptive to a TRO. Remember, the opposition did not have any input into the matter at that time. When OWS filed an application for an extension of the TRO, it was the court administrators who chose Justice Stallman by using its usual computer program for selecting justices to hear cases. At the hearing before Justice Stallman, the defendants now were able to file briefs/arguments opposing OWS's application for an extension. You may not like Stallman's decision, but in my opinion, the legal reasoning is sound.

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BogdanVlasov31 November 19, 2011 5:48 am (Pacific time)

Недорогая аренда автомобилей - vipavto.com.ua

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Karin Rougeau November 19, 2011 9:57 am (Pacific time)

You left out one part of the 'saga' which is important in my eyes. The first ruling by a Judge was that they could go back to the park. As Brookfield and Bloomberg did not like the first ruling, they looked around and found a Judge that WOULD give the ruling that would be against OWS and favoring Brookfield Real Estate and Bloomberg's wishes. Also, I have read, but not be able to document, that Bloomberg's female friend aka girlfriend, is a member on the board of Brookfield Realestate and Properties. To me, this ads a different nature to the situation, noting a bit of possible collusion between the courts and Bloomberg and Brookfield. Karin

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Douglas Benson November 19, 2011 8:07 am (Pacific time)

If an appeal is not filed soon they will lose thier rights to a jury trial and the courts will delay thier ruling untill that 60 days is over .Lets remember all courts are civil untill the appellate court and not ruled by constitutional issues only statute and court proc.

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COLLI November 19, 2011 4:01 am (Pacific time)

Great article Ralph - to the point, reasonable, and excellent analysis of the situation. Let's hope that the rejection does not harm the overall desire to take action against the pervasive greed exhibited by the big international banking conglomorates responsible for the problems we are dealing with today.

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