Today, Massachusetts Superior Court Justice Frances A. McIntyre issued a ruling clearing the way for the eviction of the Occupy Boston protest which has taken over Dewey Square in downtown Boston. Judge McIntyre had originally granted the protesters a temporary restraining order sustaining the protests, but after reviewing evidence and hearing legal argument, she has changed her mind.
For interest to our real estate readers, the Judge balanced the City’s property rights vs. the protesters First Amendment speech rights. The judge ultimately concluded that the “occupation” as practiced by the Occupy Boston protesters — physically taking over the public park from the City and to the exclusion of others — was a classic trespass and not a First Amendment right.
“To the extent that the act of occupation, as defined, communicates, it speaks of boldness, outrage, and a willingness to take personal risk. But the plaintiffs’ occupation of Dewey Square to the effective exclusion of others is the very antithesis of their message that a more just and egalitarian society is possible. It does not send the message the plaintiffs profess to intend.” — Judge Francis McIntyre
Analysis: Sound Decision But Quite Expansive
This is a solid, well-reasoned judicial opinion that may be difficult to overcome on appeal. However, the judge’s reasoning on “occupation” is new and perhaps ground-breaking, so it could be susceptible to a different opinion on appeal. This case will surely make its way up to the Supreme Judicial Court, and we’ll blog about it here of course.
As the judge found, the First Amendment is not absolute. Yes, the protesters have a right to assembly, but that right must be peaceful and not permanent as to constitute a seizure of public land or present a grave public safety risk. The First Amendment, by its own language, protects speech, not physical occupation of public land. That’s called eminent domain.
Furthermore, the possibility of real public safety tragedy is virtually guaranteed at some point the longer this encampment is allowed to fester with its flammable tarps, fire sources, auto batteries, extension cords and no sanitary facilities on site. Most of the protesters were not born for the terrible Cocoanut Grove Fire in 1942. A fire would quickly swallow up the tent camp and kill dozens. Health, sanitary and fire codes were not intended to abridge the protester’s speech rights.
The judge went much further than she had to though, and this is where her reasoning could be challenged on appeal:
“Little in the way of expression is outlawed under the United States Constitution, but an act which incites a lawful forceful response is unlikely to pass as expressive speech.”
One need only turn to the Civil Rights Marches in Alabama in 1963 to see the flaw with this argument. The protesters in Alabama, simply by marching, incited a forceful response by the Alabama police and their water guns. Using Judge McIntyre’s reasoning, therefore, the Civil Rights Marches are not protected by the First Amendment simply because they elicited a police response. This is illogical as many expressive marches in turbulent times have resulted in police reaction. It doesn’t make the marches or speech any less entitled to constitutional protection.
I’ve posted the ruling below. What are your thoughts on the legal issues?