Protesters squeezed through small gaps in the aluminum barricades that surrounded lower Manhattan’s Zuccotti Park and chanted victory calls last night. "This is my home," cried one young man in a green beanie. "You can pack us up but you can’t kick us out!"
Another spun in a circle and squealed, "They can never shut us down!"
But yesterday’s early morning actions by New York City Mayor Michael Bloomberg and Police Commissioner Ray Kelly to clear the Occupy Wall Street encampment from the park, owned by Brookfield Properties, have forced demonstrators to rethink their options.
Demonstrators displaced from the encampment streamed uptown several blocks to Foley Square, where they took heart in a temporary restraining order issued by State Supreme Court Judge Lucy Billings calling on the city and Brookfield to halt the removal of the occupiers and their possessions. They waited anxiously all afternoon as another judge, Michael Stallman, weighed up whether to issue an injunction that would allow occupiers to re-enter the park with tents, tarps and other necessities for overnight stays.
During the packed hearing, lawyers from both sides scuffled over the extent to which a space, and protesters’ ability to stay there, was central to the First Amendment right to free speech.
Lawyers for the Occupy movement stated, "They can’t stay there all night without some means of protecting themselves, so it’s an essential part of their speech that they have shelter."
City lawyers hit back saying that protesters did not require tents to express their message, and that they could use the park to convey messages as much as they liked but simply could not camp there.
Occupy attorneys then argued that because no particular incident led to the police raid, the move to clear demonstrators and their possessions was therefore a political decision.
City lawyers deflected by listing the sanitary and safety issues they’d come across in the park, including cigarette butts, exposed electrical wires, and the fact that people may not be able to evacuate the area quickly. (These echo concerns raised by Deputy Mayor for Operations Cas Holloway in the city’s filing opposing the restraining order early yesterday morning.) They also referenced the requirements of the special permit from the City Planning Commission governing the space, which include an obligation to keep it accessible to the general public.
The discussion then moved into a chronology of events. Occupy lawyers passionately argued their attempts to negotiate and work with local authorities had failed, despite their best efforts.
However, shortly before 5pm local time, Judge Stallman denied the request for an injunction. "The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations," he said in his ruling.
Stallman’s reasoning was twofold. Firstly, he found that the regulations drawn up by the owners of Zuccotti Park did not inhibit the campers’ right to free speech. "Even protected speech is not equally permissible in all places and at all times," he noted. Secondly, he indicated that campers did not sufficiently justify the exclusion of others who may want to use the park.
Within the hour, police allowed occupiers to re-enter the hosed-down square, confiscating any signs of camping equipment or structures and forbidding those carrying large items from coming in. Police told one man trying to get in with a guitar slung over his shoulder that instruments weren’t allowed and he could not enter. "What? So anything that makes us feel comfortable here … you won’t allow in?" he hit back. He was pushed aside, then removed from the area by two policemen.
Gideon Oliver, an attorney for the Occupy Wall Street movement, said he was disappointed with Judge Stallman’s decision. "What happens in the court thankfully is far from the last word about democracy in New York City," he said.
Oliver and the other attorneys representing unions and community groups involved in the protest are assessing their next move. "Where we head will be strongly directed by how the city and the government decide to behave," said Oliver. "We haven’t worked it out yet, but you can be assured, we won’t be backing down."
This article first appeared on New York World.
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