"Tent City" Is Protected Speech

10/19/2011 06:05 pm ET | Updated Dec 19, 2011

Mayor Michael Bloomberg apparently has had enough of "Tent City," the encampment in a lower Manhattan park by Occupy Wall Street protesters to dramatize the economic disparities between the rich and poor. Despite support of the protest by a large portion of New Yorkers, the mayor believes that sleeping in tents in a public park is not within the free speech protections of the First Amendment. But as the Supreme Court has emphasized in several controversial cases, the protection of the First Amendment is not limited to speech and assembly, as the mayor contends, but also encompasses certain conduct that is intended to convey a message. And nobody, not even the Mayor, could claim that "Tent City" does not convey a vivid and powerful message -- the poor and homeless sleep in tents and cardboard shelters, while the wealthy sleep in mansions and triplexes.

This is not to say that so-called "symbolic speech" can justify any type of conduct where the actor intends to convey a message. For example, if the protesters wanted to burn an effigy of Wall Street tycoons, or spray paint messages on park benches, or stop traffic, they would probably be hauled off to jail for violating laws against setting open fires, painting graffiti, and engaging in disorderly conduct. But the encampment is quite orderly and harmless, however unattractive it may be to some onlookers. The encampment does not threaten public safety, or traffic congestion. The most one can say is that there may be sanitation concerns in residing in a park, but the protesters apparently are keeping things relatively clean and safe. To be sure, some street vendors and small shop owners claim they are losing business by the attraction and crowds. McDonalds and Starbucks apparently are upset because protesters want to use their washrooms. And people working in local office buildings have lost a nice place to have lunch.

But when one balances the right of individual expression, even by conduct, against the public interest in peace and quiet, the balance typically tilts towards free speech unless the government can demonstrate a substantial interest in curtailing the conduct, and also showing that the curtailment is not because of any disagreement with the content of the conduct-speech, but for some other legitimate governmental interest. For example, in one of the most famous free speech cases involving conduct as speech -- Tinker v. Des Moines School District (393 U.S. 503) -- the Supreme Court ruled that a public school principal violated the First Amendment when he suspended several students who wore black armbands to protest the Vietnam War. The Court said that to justify the suspensions the school authorities needed to show that the students' conduct posed a substantial and material interference with school discipline or operation of the school, and there were no disruptions or discipline problems from the students' silent protest.

Similarly, in Texas v. Johnson (491 U.S. 397), the Court reversed defendant's conviction for publicly burning an American flag during the Republican National Convention in 1984 to protest the policies of the Reagan administration and certain Dallas-based corporations. However, the public desecration of the flag did not injure or threaten physical injury to anyone, and there was no disruption, although the conduct did offend many onlookers. But Johnson was arrested not because his conduct threatened any significant public interest in safety or order; he was arrested because his conduct conveyed an unpopular message that the authorities found objectionable, and the First Amendment does not allow the government to censor speech it doesn't like.

Unquestionably, government officials are in a difficult position when confronting speech-related conduct, and there are no clear guidelines. My guess is that an overnight encampment in Central Park -- a much different type of venue than Zuccotti Park, where Occupy Wall Street is staying -- would be disallowed, and protesters likely would be ordered out, and then arrested if they remained. And the allegations of physical violence against some police officials - using pepper spray and punching some protesters -- simply underscore the tensions and unpredictable nature of such a unique type of protest, as well as the capacity of the protest to excite and inflame. But to the extent that the encampment is able to symbolize in a most vivid, dramatic, and peaceful way the economic disparities in our society without threatening any substantial public interest, then the conduct is well within the parameters of the First Amendment. New York's mayor should be applauding the initiative, rather than condemning it.