• Occupy Protests: Balancing Free Speech With Community Welfare
  • July 4, 2012 | Author: Jennifer Monty Rieker
  • Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Cleveland Office
  • During a trip to Chicago at the height of the Occupy protest movement, protestors had “occupied” the conference I was attending.  They rallied in front of the hotel and gained access to the inside of the hotel.  Eventually the Chicago police arrived and removed them from the hotel premises.  As I prepared to check out of the hotel for my return flight home, the Hotel’s bellman advised against riding the “EL” (Chicago's elevated train system) and got me a cab, indicating “It’s probably quicker and quieter to just grab a cab."  While standing outside my hotel, the chant of “We are the 99%” was getting increasingly louder.  Their protest chants and songs were catchy and continued to ring in my ears for several days. 

    That was my first brush with the Occupy movement and it is reminiscent of the experiences of many others across the country.  While the groups have rallied in New York, Chicago, and on the West Coast, on-lookers have been kept from exploring the cities, businesses were disrupted, and public parks were occupied.

    When the protesters take over public parks, attempt to disrupt conferences and meetings, or inhibit tourism activities, it’s easy to understand a city’s dilemma: how to best respond?  As the Occupy Wallstreet movement spread to cities across the country, city governments have struggled to maintain the balance of freedom of speech with the need to protect the safety of its citizens.

    The struggle to balance the right to assemble with safety is not new— cities handled similar protests during the Civil Rights movement and the Vietnam War.  Looking back through history, what can a city learn on how to peacefully handle protest demonstrations?

    What’s Your Policy?
    As a city, in order to regulate any kind of protest or demonstration, look to the municipality’s laws.  Check to see what a group must do before protesting, such as registering for a permit.  Many cities have permit requirements when a defined number congregate to protest, speak or rally.  One of the main cases that define this area of law is the Supreme Court case of Shuttlesworth v. Birmingham.1   Shuttlesworth had been arrested and convicted for violation the City of Birmingham’s general code which prohibited parades on city streets without obtaining a permit.  The issue was that the City’s General Code allowed the City Commission to refuse a parade permit if its members believed “the public welfare, peace, safety, health, decency, good order, morals or convenience required that it be refused.”  On appeal, the Supreme Court reviewed whether the public officials’ discretion was structured with “narrow, objective, and definite standards.”

    Review the local ordinance or code and see what the requirements are for protesting, parades, and rallies.  Determine ifpublic officials have wide latitude and discretion in choosing who to allow to protest or parade.  Identify the requirements as well.  Make sure that any requirements are narrow and that there are clear and definite standards that leave little room for discretion.

    Keep It Neutral
    Any rule relative to obtaining permits, protesting hours, or protesting locations must be neutral.  A city cannot develop an ordinance or rule set to specifically exclude a type of speech or a type of protestor.  The rule must be content neutral.

    Rules about parades and protests should be content neutral—essentially if the 4H club wants to put on a 4th of July Parade, it should go through the same process as when an Occupy Your City group wants to put on a parade.

    Time, Place and Manner Can Be Restricted... To Some Extent
    The right to free speech can only be restricted in a content neutral way—such as through a time, place or manner restriction.  Some examples include not allowing protests on the middle of a major freeway, behind security clearance at an airport, or blocking an exit to a building.  Noise restrictions have also survived scrutiny.

    A recent example was the Supreme Court case of protestors outside military funerals.2   While the Supreme Court held that protesters could not be sued for intentional infliction of emotional distress, the Supreme Court explained that the protestors were legally protesting over a 1,000 feet from the funeral, quietly, and had obtained permits.  In the opinion, Chief Justice Roberts suggested that a city put in their laws rules regarding the distance between a protestor and a funeral (or other places of concern).  A city can establish time, place and manner restrictions to protect its citizens, keeping in mind that such restriction must be content neutral.

    Free speech is something to be celebrated.  But, a municipality must plan in advance regarding the appropriate response to protests.  Take a period of calm to look at rules, regulations, permit requirements and see if they apply to all groups equally, if there is broad discretion, and how buffers can be created.  With proper planning, groups should have the right to freedom of speech, balanced with your community’s safety and welfare protected.

    1 394 U.S. 147 (1969). 
    2 Snyder v. Phelps, 131 S. Ct. 1207 (U.S. 2011)