In fact, Mayor Bloomberg’s statement, while catchy, is not exactly accurate. The federal courts have long looked upon certain types of conduct as inseparable from expression and therefore as protected by the First Amendment as speech itself. Given that, the construction of a tent or, for that matter, the act of sleeping in the tent may in fact be considered protected expression by the Court’s present understanding. For instance, in 2000, Federal Judge Kimba Wood ruled that a group of protesters outside Gracie Mansion, the NYC mayoral residence, were engaged in a form of expression even as they slept. They were protesting the city’s policy towards homelessness and sleeping on the sidewalk was one way of dramatizing the plight of those who have no place to sleep but the sidewalk.
Of course, any speech – even protected speech -- can be policed according to the “time, place and manner” in which it is rendered (that is what Oliver Wendell Holmes meant when he wrote approvingly about preventing someone from falsely shouting fire in a crowded theater), but with protected speech, the government must adhere to the least burdensome restriction to further its interest. In the case of the Gracie Mansion demonstration, the court determined that the government’s interest – facilitating the passage of people on the sidewalk – was not seriously impaired by an organized group of sleeping protesters, and therefore the police had no business moving them.
All of that would help us understand the Constitution’s place in the OWS standoff were it taking place in a public space like a sidewalk (it is not; it is actually a private park) and if the protesters' message was furthered by their constructing tents in the park and sleeping there (one could argue that it is, but it certainly is not as related to the content as it was in the Gracie Mansion case).
In response, the protesters might assert the “walks like a duck” doctrine (no, not its official name) of constitutional law which goes roughly this way: The park, while a corporate property, is trafficked by pedestrians every day in the same way that a public park is and indeed to the reasonable person, the plaza has all the appearance of a public space. Therefore, well, if it looks like public property and acts like public property, expressive activities conducted within its boundaries should be treated in the same way that activities are to be treated in a public property.
But this is where it gets even more interesting. While the argument would be a strong one, no court has determined that the officially private Zuccotti Park has morphed into an essentially public venue, and last week when its owner, Brookfield Properties, requested that NYC police remove the protesters so the park could be cleaned, Mayor Bloomberg was apparently prepared to order the police to do just that (it was this moment that elicited his comment about the Constitution not protecting tents.)
The raid was only called off when unnamed elected officials pressured Brookfield to “postpone” the clean up. “Brookfield believes they can work out an arrangement with the protesters that will ensure the park remains clean, safe, available for public use,” a NYC deputy mayor said, “and that the situation is respectful of residents and businesses downtown.” So, assuming that the deputy has faithfully characterized the agreement, it appears that all involved have decided on their own to interpret the park as a public venue and the protesters as engaging in speech that is limited to the proper time, place and manner.
The question now is how long this fragile constitutional understanding lasts. In Oakland, police used tear gas to move out protesters at Frank Ogawa Plaza, citing concerns over health and safety not unlike those that were cited as justification for removing the tents from Zuccotti. Oakland police announced that protesters could return there, but only during the hours of 6 AM and 10 PM (in other words, no tents and no sleeping). In Atlanta, police removed protesters from Woodruff Park with the same justification. In each instance, the protesters departed without incident. But history has some other, less peaceful, precedents.
Back in 1932, in the midst of the Great Depression, thousands of World War I veterans and their families descended upon Washington, DC, and set up encampments (including tents) that they named “Hoovervilles” after the sitting president, Herbert Hoover, whose policies they opposed. The protesters were demanding an early pay-out of a bonus promised them for their war service but not due to be issued until 1945. While the Court had not yet deemed First Amendment expression to include such sit-ins, local and federal officials accommodated them. Then, after months of standoff, President Hoover ordered the army – led by Douglas MacArthur and two deputies, Dwight Eisenhower and George S. Patton – to clear out the protesters. MacArthur, who viewed the scene as a nascent attempt at a communist revolution, took his orders more aggressively than perhaps Hoover had intended and in the end, the nation, looking on, saw the encounter as a shameful display of American military power used against peaceful American citizens. In an engagement with police, two protesters were shot dead. Dozens of others were injured. While the protesters eventually packed up and went home, the "Bonus Army" episode proved critical to the defeat of Hoover by Franklin Roosevelt in that fall's presidential election.Todd Brewster is the Director of the National Constitution Center's Peter Jennings Project and the Center for Oral History at West Point.