Were Demonstrators “Camping” or “Protesting”? First Amendment issues need more attention

( – promoted by Colorado Pols)

Though not ignored by any stretch, the First-Amendment rights of the OccupyDener/Wall Street Greed protesters need to get more air time.

Since the tents appeared in Denver, I’d been wondering about the “protesters” I used to see as I rode my bike in front of the White House when I lived in DC 20 years ago. They got to stay there because their 24-hour protest, which included tent-like structures, was protected under the First Amendment.

The ACLU at one point brought their case all the way to the Supreme Court.

The question for them, and for our local protest camp, was, were they “camping,” and in violation of anti-camping laws, or “protesting” 24 hours a day, and protected by the First Amendment?

KHOW’s Caplis and Silverman aired a great interview with attorney David Lane on this topic yesterday.

Here’s part of what Lane told Caplis and Silverman:

Lane: What is the competing interest against [the protest], Dan? Does Denver have some compelling need to use that space? And if the answer is no, then yes, you’re allowed to stay there 24 hours a day, as long as you’re not stopping someone else from exercising a constitutional right. It may be an eye sore. It may be inconvenient, and you may not like to see tents there when you drive by, but really if Denver has no compelling reason not to allow it, then Denver just has to allow it…

If someone is violating the health laws by camping there, if you want to call it camping, then they get a ticket for violating a health law. If theres’s some public disorder occurring there, give them a ticket for public disorder. If there is no public disorder, if there’s no health violation, then Denver has to put up with it under the First Amendment. …

If there’s public urination going on, Dan, give them a ticket for public urination….

Let me ask you, have you ever been to the White House? Have you ever seen the protesters who are permanently ensconsed. I mean, they are always there. They never leave. They have signs that say, I’ve been here for 27 years, 10 months, and 242 days. Yes, you can protest. You can protest 24-7. The issue is, is it really camping or what is it?… They have designated areas. Maybe Denver should designate an area.

There are reasonable time, place, and manner restrictions. But who are you bothering? Are you bothering the drug dealers who normally exist in Civic Center Park? Is that the problem, Dan? Are there really people who are using this park at midnight so we have to move these guys out?…

Caplis: What about the governor’s point that you have all these tents together…a fire could sweep through the camp.

Lane: You could come up with excuses like that. That’s just nonsense. You know that’s nonsense. It’s an excuse to get rid of them…

In order to stop free speech, the government has to have a compelling interest in stopping it. If it involves speech, and it’s not simply, gee I don’t have anywhere to go sleep, so I’m going to sleep in the park, then I think the government is going to be hard pressed to stop it. …

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  1. BlueCat says:

    Still wouldn’t personally be willing to get busted for it, though. especially since a 50K rally or march would be bigger national news. Guess we’ll see how it shakes out.  

    • Car 31 says:

      As I mentioned in another thread.

      If protesters want the focus on greed and banks, march on 17th street. Camp on 17th street. Camp in a bank.

      If a statement is to be made, make it.

      It seems the fight is now with Hickenlooper and Denver – that’s called message fail…

      In regards to the point made above, yes, the campers could stay, but what if the group was a tent city of skinheads, or homeless people, or bankers?

      The park closes at 11:00.  

      • sxp151 says:

        If they camped in a bank or on 17th Street they’d be arrested.

        And if they were skinheads or homeless people or teabaggers protesting, they’d have the same right to be there.

        Technically five people standing on a sidewalk will impede traffic and can be arrested for that, which makes literally every protest illegal. Is this really the road you want to go down?

        • Car 31 says:

          Camping in a bank is illegal.

          Walking, en masse, down 17th avenue during a busy lunch hour is not. Entering bank buildings peacefully with good signage, not illegal.

          Getting thrown out of marbled lobbies is a better image on the news, if you’re protesting greed, than having the police dismantle your REI tent in a park, IMHO.

          The 1st amendment would cover the homeless/skinhed/banker protesters – yes.

          The point is, the park closes at 11:00.

          • sxp151 says:

            If protesters take up the entire sidewalk or enter the street, it sure as hell is illegal. Protesters in New York were arrested for precisely this.

            • Alexei says:

              But it requires organization.

              1. stay out of the street. being there is a violation.

              2. don’t be in a pack on the side walk. leave another space between or around your protesters so that people can get by.

              Then you are legal.

          • Aristotle says:

            that the park closure doesn’t trump the First Amendment.

            Now, I’m no scholar or lawyer, so I can’t say if Lane’s got it wrong. But if he has it right, then saying “The park closes at 11:00” isn’t valid on its own.

            Keep in mind that all the sympathetic protests are in support of Occupy Wall Street, which seems to be doing as you advise. Denver simply isn’t the hub of big banking like New York, so the local protests are taking place where they traditionally happen.

        • BlueCat says:

          I have nothing against civil disobedience which is, by definition, illegal. To me it’s a question of effectiveness v price to pay. I don’t think our “occupiers” are getting all that much attention. The NYC originals are but not ours.

          A really massive march or rally, legal or not, would. It’s hard to achieve that here where a couple thousand is a big turn out for a rally but  demonstrations by thousands at the same time in each of many major cities nationwide would also garner some attention. So might focusing on the banks in a pain in the ass way in our version of a financial district .  

          I think a relative handful of people, some of them drifters with no interest in the message, isn’t necessarily delivering much bang for the buck. There are definitely situations where getting arrested is not only worth it but a positve in garnering media attention.  

          • sxp151 says:

            As I mentioned, I’ve done both civil disobedience and lots of legal marches. In my experience, it doesn’t much matter how many people you have. A counter-protest one tenth the size will get just as much attention from bored reporters, and most protests don’t even merit a visit from the media. Most importantly, once it’s done, it’s done. Maybe you supported it, maybe you opposed it, maybe you didn’t notice it at all, but on Monday there’s nothing else to say about it.

            The reason the media is talking about OWS and our local junior version is that it’s been going on for over three weeks and is finally getting hard to ignore. That’s a strong argument in favor of continuing the “campout.”

            You may say the coverage is mocking and that the message isn’t getting through, but I think that’s wrong. Any coverage is good coverage for something like this. Despite near universal condemnation in the professional media, a plurality of the public seems to have a favorable opinion of the demonstrators, because I think they tap into a general frustration with the system that nobody (including teabaggers) is expressing.

      • Diogenesdemar says:

        the complicity of a bought-and-paid-for government abetting the greed and rapaciousness of the banks and Wall Street.

        The point is to prod those remaining conscientious officials in the government to begin to act somewhat in the interests of the citizenry — to reign in a few of the many excesses of the corporate oligarchy.  The same government that has been unwilling to protect its citizenry from the misdeeds of the Wall Street, is now unwilling to protect the constitutional rights of those citizens to assemble, protest, and petition for redress.

        This protest, highly visible at the center of this State’s governmental institutions, is perfectly placed, and, completely appropriate.

        Fight the power!

  2. nancycronk says:

    I’ve been at Occupy Denver, talked with a bunch of folks, and no one is there for “camping”. There are 100,000 better places to “camp” in Colorado. They were absolutely there to protest.

    • Libertad says:

      Campings not allowed there and the park hours are 5a-11p. The real simple solution was to crank up the fire hoses and dose them gently with water at 11:01 last evening. Of course Hick worked with them to assure full blown media coverage into the am hours.

      To Occupy themselves, following any law such  seeking a permit would be admitting you know and are abiding by the rules. They’ll never pull a protest or camping permit for locations that allow those activities.

      The purpose of Occupy is to run a long term protest program that garners media attention on a daily or weekly basis. The question is can their democrat operative handlers control them? Where’s Union Boss Trumpka when you need him?

  3. DavidThi808 says:

    If I talked to the people down there I would probably disagree with a lot more than I agreed with. And everyone’s comments here about what’s the sensible thing to say, to do, where to go, etc. – I agree more than disagree.

    And that’s all irrelevant.

    They are exercising their right to free speech and to petition the government. As long as they do so peacefully and without creating a significant public nuisance, they have my full support. Because that right is fundamental to our democracy.

    Shutting this down is reprehensible. If our elected leaders get a case of the vapors when faced with citizens demanding they fix the problems we face, they should go into another line of work.

    • Diogenesdemar says:

      because that not only sounds very Democratic, it is.  Friday’s are good days.

    • Ralphie says:

      Civil disobedience is civil disobedience.

      So much whining over one demonstration?

      MLK is rolling over in his grave.

      These people must be ready to do this and get arrested over and over again.  One demonstration does not a movement make.

      • Aristotle says:

        Jim Crow was much more tangible than the growing gap between rich and poor, and the growing power corporations have over the political process, even if those are every bit as real.

        Right now, the demonstrators needed to get attention and show everyone that there are plenty of people who don’t like these things. I agree with sxp that that is a goal itself, and one that can only be accomplished this way. I believe that they haven’t fully achieved that yet; more talking heads like former Rep. Grayson need to get on TV and explain what’s what, until the message is fully out there, and that’s going to take more time as long as most of the news networks fail to invite such guests on their programs.

        That said, I also believe that the Occupiers need to think about next steps. They need to decide what acts of civil disobedience to pursue, and what they hope to accomplish with them. Maybe they should allow themselves to be arrested now; maybe not. If Lane is correct, they could use this to make their point in the courts somehow. (At least a point about First Amendment rights.)

        What goals should the target? It’s hard because it’s not like today’s Democratic Party is really that sympathetic. Pro business policies and deregulation took place under Bill Clinton, and Barack Obama has seemed quite unwilling to make big business mad. As a whole, the party seems unwilling to sacrifice the center in order to oppose the right. It’s probably one of the root causes of the movement (and young as it is, it can be called a movement). So it makes it hard to see how they can get something like a progressive tax law passed.

        Maybe they need to take on the long term goal of electing “their” kind of candidates, as the religious right have been doing for decades. But that might mean giving up in the short term, and that’s probably too important to give up. I mean, if the right is nakedly trying to bring about their most radical anti-labor, anti-environment, anti-woman and anti-sex vision into law today, that battle’s got to be fought today.

        It’s a dilemma. Either join forces with the somewhat ineffectual Democrats who don’t seem to share your viewpoint, in order to halt the GOP now (and reinforce their tendencies to take you for granted), or begin a decades-long process and lose nearly everything in the interim.

        I hope things aren’t as stark as that, but it’s kind of hard to see it with more optimism right now.

      • BlueCat says:

        I don’t agree with turning people out of the park during allowed hours in any case but this really isn’t amounting to much. WQe had better numbers in support of the Wisconsin 14 and Wisconsin unions back in February, I think it was?  

        The sad truth is a 50K turn out is a pipe dream but that would get some attention.

      • Gray in Mountains says:

        arrests are to be expected

  4. Voyageur says:

    If there were genuine safety issues, like poor sanitation breeding typhus, etc., it would be different.  Of at least equal consequence, Occupy Whatever strikes me as a group with very little to offer in the way of solutions.  They dream of being gassed or pepper sprayed or, at least, evicted so they can claim that Fascist Amerika is violating their rights.

       The proper response of the government would have been to

    1-let em camp

    2-Serve free coffee– Starbucks, of course

    3-Serve free doughnuts

    4-pay for the coffee and doughnuts with corporate donations, not tax dollars.

       tee hee, the poor babies would have had a terrible time using that an example of how awful Amerika is.

      See Marcuse, Herbert: “repressive tolerance.”  It works!  

  5. Old Time Dem says:

    In 1998, the U.S Supreme Court held in a 7-2 decision that the National Park Service did not have to alter its no camping regulations pertaining to Lafayette Park to accomodate a tent city intended to highlight the plight of the homeless.  CCNV’s argument, which the court rejected, was that camping was a form of symbolic speech that trumped the no camping regulation.  Instead, the court held that while camping was symbolic speech, symbolic speech was subject to the same time/place/manner analysis as non-symbolic speech.  Since the no camping regulation (which was content neutral) was a permissible time/place/manner restriction on speech, the NPS did not have to allow camping, even if the camping was symbolic speech.

    If anyone can meaningfully distinguish between Occupy Denver and CCNV, I’d like to hear it.

  6. ArapaGOP says:

    It was “defecating.” And dangerously tapping into power lines under the park.

    Both of which were ACLU sanctioned activities, right? Although I’ve always wondered where the guy camped out across from the White House takes a crap.

  7. JO says:

    Laws are made to protect property, above all else (and kindly refrain from boring us with not-to-the-point Fox-style drivel about speeding or running red lights, or even “obstructing traffic”).

    Should people demanding an end of the current economic/political dominance of a tiny slice of superplutocrats take care not to break “the law, hallowed be its name” as interpreted  by one Loop-de-Loop for the purpose of shutting down this movement lest it keep growing (which it most certainly will — see video from Milano earlier today as a preview of the Global Day of Protest on October 15). Of course not!

    Imagining that concerns about imaginary urination led to cops disguised as Ubersturmfuhrers to move in before dawn is to miss the point entirely.

    Did the governor hasten to send state patrolmen in combat gear into financial institutions to arrest his contributors in pin stripes at the outset of the crisis, or any time since? No. Because they had the foresight to buy the government beforehand in order to make their shenanigans “legal.”

    This is one of (not the only) sentiment behind the Occupy movement. The laws, how they are made, how the law-makers are chosen, no longer represents the interests of the majority. This marriage of Wealth and Government spawns bastard off-spring who need to be driven out of town, not those occupying a patch of grass in sight of the Capitol … or should I say das Capital.

    • BlueCat says:

      Then you can break all the laws you want and if your criminal schemes fall apart, Joe Sixpack will still defend your right to screw Joe Sixpack because your party opposes choice and gays and stuff and the alternative is supporting, gasp, Dems, who hate America, want rich people to die so the poor can have all their stuff and cower before terrorists.  Did I mess anything?

      • JO says:

        I doubt there is a consensus on this point. If there were, the Occupiers would be lining up to work for Obama’s reelection. Not to say that there’s no difference between the two parties, but rather that the parties seem to promote the interests of different sets of plutocrats, or behave solely for their narrow personal interests as incumbents on the payroll. I suggest that the Occupy movement is an expression of disgust with the entire system of “representative” government as it functions at the expense of the metaphorical 99% throughout the First World: Greece, Italy, Ireland, Portugal, Kansas, Arkansas, California, Colorado.

        • BlueCat says:

          I meant that this is the message sent to middle income Americans to make sure they keep voting for Rs who are, of the two parties, the most single-minded, unambiguous supporters of the tiny elite at the top.

          Life definitely gets worse for ordinary Americans under Rs, especially since they bring all of their anti-woman, anti-gay, anti-science, racism and bigotry with them in addition to being corporate tools.  But no argument from me that the whole system stinks and most Dems are only better than most Rs by degree, taking everything that affects us into consideration, not kind. That’s what makes the “socialist”, “radical” labels imposed by the right on the likes of Obama and the Dem caucus so ridiculous.  They’re about  as “socialist”, “radical” as June and Ward Cleaver.

          • JO says:

            …were both notorious KGB operatives sent to USA on order of Comrade Stalin himself personally, assigned to promote stupefaction of Amerikanski Working Class, in which they succeeded beyond dreams of Central Committee CPUSSR but for later confusion of Comrade Khruschev who got confused and thought Nixon was a refrigerator salesman instead of an escaped patient from home for antisocial sociopaths. Just to set record straight.

          • BlueCat says:

            As a political actor, I always found him to be a self righteous, self aggrandizing little twerp. God help us if it’s a choice between the corporations and fools like Nader.

    • sxp151 says:

      That makes me happy.

  8. Mark G. says:

    Colorado law requires these campers file as an issue committee.

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