Posted On: November 23, 2011

Occupy Movement Raises Thorny First Amendment Issues

The Occupy movement is raising some thorny First Amendment issues.

Protesters have First Amendment rights to demonstrate and march, and they've raised important issues about the rising income inequality in this country.

On the other hand, governments traditionally have been able to impose so-called "time, place and manner" restrictions, so the issue becomes whether Occupy protesters have First Amendment rights to permanently occupy certain public places.

I had little sympathy for homeless people in San Francisco's Golden Gate Park who left syringes and human waste in the park and despoiled its natural beauty.

But I have more sympathy for those who've pitched tents in downtown spaces like San Francisco's Harry Bridges Plaza and Oakland's Frank Ogawa Plaza. For one thing, there's a clear speech message associated with their encampment. For another, they are occupying what seem like public spaces more suitable for public gatherings than enjoyment of natural beauty and the great outdoors.

Recently police have moved in and evicted Occupiers from places in which they've pitched tents in many cities. In some places, such as the University of California Davis, the police have stepped over the line, using pepper-spray on non-violent protesters who linked arms on the campus.

I don't doubt that the authorities can take steps to protect the public health. But special care must be taken to ensure that the exercise of pure political speech is not sacrificed in the process.

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