Despite this writer’s prediction to the contrary yesterday in this space, a New York State Supreme Court Justice, Michael Stallman, wrote that the City of New York had a right to clean up the park and to evict the protestors from keeping a tent city in Zuccotti Park. “The [protesters] have not demonstrated that they have a First Amendment right to remain in Zuccotti Park along with their tents, structures, generators…,” wrote the Judge. So what, pray tell, might the difference be in the situation in Zuccotti Park in the Manhattan financial district and the one on Legislative Plaza in Nashville? Why would a Tennessee judge be inclined to say that Occupy protesters can remain on the Capitol grounds, but a New York judge would tell Occupy Wall Street that they could not stay at Zuccotti Park? There may be two good constitutionally sound reasons as to why.
The first is that Zuccotti Park, unlike the Tennessee Capitol grounds, already had a posted policy prohibiting tents, camping, or sleeping on park benches, and the protesters who had assembled there already stood in violation of the policy of the park. It was not a policy that was created with the intent of evicting protesters exercising their First Amendment rights, but was a pre-existing rule. That is quite different from the situation in Nashville, where the so-called “curfew” was created with the clear intent to evict demonstrators from the Capitol grounds, which had never had or needed a curfew before, and which has always been open to everyone at all hours of the day or night.
Secondly-and far more importantly-as several people have pointed out to me in the last 24 hours, Zuccotti Park is actually private property. It is owned by a private company, Brookfield Properties, which has an agreement with the city that allows the land to be used as a park. Since Brookfield owns the turf, you can be certain that they weren’t pleased that their lovely green space was being turned into a festering, desease-ridden, crime infested public health hazard. We may never know whether it happened or not, but it might be a fair bet that the Brookfield folks went to New York Mayor Michael Bloomberg and told him to clean up the mess or the long-standing agreement to allow Zuccoti to be used as a park by the city would be brought to an end based on the city failing to keep the place in good order.
New Yorkers are rapidly losing patience with Occupy Wall Street. That’s saying something, because New York isn’t exactly known as a haven for traditional conservative social and political thought. If New Yorkers are tiring of the Occupiers because they have no purpose or direction, the Nashville crew should take a lesson from Manhattan-the goodwill you’ve enjoyed because you won your First Amendment struggle may fade very quickly if you don’t come up with a good reason and plan of action for being at Legislative Plaza.