Government must be careful with tactics against Occupy camps

A long winter for the Occupy Wall Street movement has seen a shift in tactics by cities, towns and state legislatures seeking to remove many of the estimated 600 encampments nationwide.

Some Occupy groups camped on public property have obtained court rulings that permit them to protest anytime in public spaces, but not to keep tents or sleeping bags on the sites. Elsewhere, formal or informal bargains have been struck that allow tents but not the accessories of camping — in effect permitting momentary shelters, not encampments.

Many major cities, including New York, Atlanta, Boston, Chicago, Denver, Los Angeles, Oakland, Philadelphia and Portland, Ore., removed protesters from city parks at the end of 2011, citing public disturbances and substance abuse.

So far this year, Miami, Washington, D.C., and Austin, Texas, have removed their local protesters, citing the same reasons. At the state level, the Idaho and Tennessee legislatures enacted statutes that — without specifying any particular group or cause — forbid camping on public property not designated as a campground or similar facility.

While even some “occupiers” have signaled that the impact of the original encampments has faded and it’s time to move on to other tactics (such as occupying foreclosed homes in which no one is living), others maintain that the act of occupation itself is the key part of the groups’ protest “speech.”

As it has been for some time, the quandary for courts facing such standoffs is balancing the First Amendment rights of protesters against the duties of city, county and state officials to maintain public sanitation and safety — as well as the right of public access by others to those occupied  spaces.

What’s going to be difficult for Occupy movement advocates in coming months — as more state legislatures follow Idaho’s and Tennessee’s lead — is finding First Amendment grounds to argue their case. More difficult, certainly, but not impossible.

Still, both pending state laws strive to be “content” and “viewpoint” neutral, at least on their face. Idaho’s statute, for instance, begins by noting that the Capitol building and Mall in Boise “function as the vibrant core of Idaho State Government for Idaho citizens.” As such, there need to be “consistent public use guidelines” to ensure “the health and safety of all citizens, including touring visitors and school children” and to enable the state to “maintain the highest aesthetic standards.”

Courts may not want to throw the First Amendment freedoms of petition, assembly and speech overboard just to support a state worker’s idea of what looks good. But words like “consistent … guidelines” and real public mandates like safety and sanitation will resonate with judges. The language about such broad public interests makes such laws more likely withstand what is called “strict” or “intermediate” scrutiny regarding government actions that restrict any of the amendment’s five freedoms.

Under “strict scrutiny,” public officials have to prove that a law is necessary to further one or more compelling government interests (as the Idaho law suggests), and that the law uses the least-restrictive means necessary.

Under “intermediate” review, a law can survive by focusing on a compelling public need and by using means of enforcement substantially related to that goal. Preventing unsanitary conditions by banning camping, but not assemblies, might meet that standard.

When some early Occupy movement groups met with knee-jerk government reactions — such as in Nashville in October, when dozens of state troopers arrested protesters and at least two journalists in a ham-handed sweep clearly aimed at that one encampment — public support rallied behind the Occupiers for perceived attacks on First Amendment rights for all.

Narrowly focused laws and months of gathering evidence on sanitation needs, crime stats and such seem to have replaced hasty police actions rooted more in passion, politics and polemics than in public welfare.

But we all should remain vigilant against too-broadly drawn ordinances or statutes that today seem to take the spring bloom off only the Occupy rose — but that tomorrow might be used against others across the social and political spectrum who would rightly seek to protest on issues in the public square.

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