The Supreme Court and the Occupy Wall Street Movement

The Supreme Court and the Occupy Wall Street Movement

Paul Sloderbeck

The tents are gone in the downtown plazas and parks across the country. There are no reports of police clashes in New York City’s Zucotti Park with protesters associated with the “Occupy Wall Street” Movement. Certain parts of that movement remain, though. The comparison between the “99%” and the “1%” has become a part of the national dialogue. Discussions about wealth inequality in America and disproportionate growth may be more common. But for all the Occupy Movement may have accomplished, the tents are gone. In that regard, municipal governments prevailed. The Courts upheld many of their camping and loitering bans as Constitutional as applied against the Occupy protestors and the tents had to go. The First Amendment may give robust protection to daytime protest activities, but in areas like the symbolic speech involving overnight camping, it could not keep the Occupy protestors in their temporary public homes.

The Supreme Court first proposed a test for “symbolic speech” activities in United States v. O’Brien.[1] This case involved the prosecution of a man for burning his draft card under a statute making that practice illegal. When speech involves “speech” and “nonspeech” elements, the governmental interest in regulating the nonspeech elements can justify First Amendment limitations if it is within the Constitutional power of the government, furthers an important or substantial government interest, if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest.[2] The Court hesitated to allow a seemingly unlimited variety of conduct to be labelled as speech.

The Court later settled on a two-part test for determining when expressive conduct may be considered speech in Spence v. Washington.[3] The factors to be considered are both the intent on behalf of those engaging in the conduct to communicate a message through their conduct and the likelihood that those observing the conduct will understand the message.[4] In Spence the conduct was the display of an American flag that had been hung upside down and modified with black tape to include a peace symbol. Here the Court introduced a context element into its analysis. Certain acts could become speech based on the times in which they occur. In this case the invasion of Cambodia and the Kent State incident played into Spence’s motivation and perception. The Court held that the Washington law under which Spence had been convicted impermissibly limited his First Amendment rights.

In the context of camping or sleeping overnight as a type of symbolic speech, there are several cases arising out of Washington, DC. In United States v. Abney, a World War II Veteran’s continual sleeping in Lafayette Park to protest his treatment by the Veterans Administration was permitted and the Park Service regulation that prohibited sleeping or camping was invalidated.[5] A pair of cases surrounding the sleeping activities of the Community for Creative Non-Violence reiterated this view. The Court of Appeals for the District of Columbia found that the actions of this group camping and sleeping on the National Mall to protest the plight of the homeless had the sufficient context and political expression elements to constitute speech, and that the Park Service failed to show that its interests would be furthered by a ban on the activity.[6] However, a year later the Supreme Court overturned the decision, finding that the protestors’ rights had not been violated.[7]

As the Occupy Movement went through the Courts across the country, many city governments relied on the Supreme Court’s Clark decision to justify their bans on sleeping overnight in city parks, in spite of how the Occupy protestors’ conduct might be deemed expressive under the First Amendment. In Minneapolis, the Court allowed the ban on sleeping in the plaza as a valid time, place and manner restriction under Clark.[8] The protestors there also had no First Amendment right to municipal electricity for purposes of sound amplification. The Court in Occupy Fort Myers v. City of Fort Myers recognized the conduct of maintaining a presence in the park in order to simulate an occupation as expressive.[9] It found the ordinances against loitering and after-hours park use restrictive as applied against the protestors, but did uphold an ordinance prohibiting the erection tents or other temporary shelters for overnight camping.[10] A similar result occurred in the Occupy movement in Columbia, SC, where the court recognized the occupation as expressive conduct, but upheld a ban on overnight camping and sleeping.[11]

The treatment of the Occupy Movements in the Courts demonstrates the dilemma for overnight sleeping demonstrations. The activity is clearly enlaced with symbolic meaning. The overnight presence of protestors gives an effective symbol for a continuous occupation. The Courts have recognized this symbolic speech, and yet have upheld many of the bans designed to make it much more difficult, by upholding bans on the use of tents, electricity or even fully banning the overnight occupation. In many cases this was done in reliance on the Supreme Court’s Clark decision. For all its success in shaping the public dialogue on wealth equality, the Occupy Movement did less in moving forward the First Amendment right to symbolic speech involving overnight sleep in public areas. Perhaps the next movement similar to this one will help further define and advance the contours of this important area of First Amendment Jurisprudence.


[2] Id. at 377.

[3] Spence v. Washington, 418 U.S. 405 (1974).

[4] Id. at 410-411.

[5] United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976)

[6] Cmty. for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C. Cir. 1983) rev’d. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)

[7] Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)

[9] Occupy Fort Myers v. City of Fort Myers, No. 2:11-cv-00608, 2011 WL 5554034 at *5 (M.D. Fla. Nov. 15, 2011)

[10] Id. at *11.

[11] Occupy Columbia v. Nikki Haley, Governor of South Carolina, No. 3:11-CV-03283, 2011 WL 6318587 (D.S.C. Dec. 16, 2011)

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