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NEW YORK (Reuters) - After police swept Occupy Wall Street protestors out of New York's Zuccotti Park on Tuesday morning, lawyers for the protesters, the city, and the park's owner are all confronting an intriguing question. Is sleeping overnight in public spaces a protected form of free speech under the U.S. Constitution?
Or, as Alan Levine, a lawyer representing the protesters, told a judge at a hearing on Tuesday: "It's not a camping case, it's a First Amendment case. "They're sleeping there 24 hours a day as a form of expression."
Over the past several decades, a handful of cases -- including one decided by the U.S. Supreme Court -- have grappled with the issue, which sits at the intersection of the First Amendment and the government's interest in maintaining law and order on public property.
The question of whether camping out equals speech seems likely to be a central point as the legal battle over Zuccotti Park proceeds. Although Justice Michael Stallman denied the protesters' request to return to the park immediately, their underlying case remains pending.
In Clark v. Community Creative Non-Violence, which was decided by the U.S. Supreme Court in 1984, protesters petitioned for the right to sleep overnight on the National Mall in Washington as a way of calling attention to homelessness.
The court held 7-2 that, even assuming sleeping was a protected form of speech, the U.S. Park Service's interest in maintaining the space was substantial and its rules narrow enough to justify preventing the protesters from sleeping there. Such restrictions on free speech may be permitted if they are content-neutral, serve a state interest, and are narrowly drawn so as to allow other means of expression.
By contrast, in a 2000 case in federal court in New York, the judge ruled that a tenants' advocacy group had the right to sleep overnight on sidewalks near the mayor's home to protest proposed rent increases for rent-stabilized apartments.
Finding that a complete ban on sleeping on sidewalks was too broad, the judge said that the city's interest in keeping pedestrian traffic unimpeded would be met if the protesters kept their promise of sleeping on only half the sidewalk.
Gideon Oliver, another lawyer for the Occupy Wall Street protesters, said on Thursday that protesters may use the 2000 case to argue that the rules governing use of Zuccotti Park are too sweeping.
He also noted that in the 1984 case in Washington, the U.S. Park Service's rule prohibiting camping, except in designated campgrounds, predated the homeless protest. Zuccotti Park's sleeping ban was established only after the protesters had set up camp.
But Floyd Abrams, a prominent First Amendment lawyer, said he is not convinced that sleeping could be considered a form of speech. "It seemed to me a real stretch to maintain that sleeping in a designated area itself is anything more than what it appears to be," he said.
Even if sleeping is found to be a form of expression, Abrams said, the city would still have a relatively strong argument that removing the protesters' camp was necessary to keep the park accessible and to protect residents.
"I'm still of the view that they never had a legally enforceable right to establish themselves as semi-permanent residents of the park," Abrams said.
Before protesters make their case that sleeping overnight is speech, however, they will need to establish that free-speech rights are fully protected in Zuccotti Park in the first place.
Under Supreme Court precedent, they have to show that the park is not a "limited" public forum, but a "traditional" one. Sidewalks and public parks are classic examples of traditional public forums. The same is not necessarily true of other areas open to the public.
In 2002, a federal appeals court denied permission to a union seeking to stage a rally in Lincoln Center Plaza in New York. The court ruled that the space had historically been used solely for artistic purposes and was therefore a limited, not a traditional, public forum. In such cases, restrictions on speech are only subject to strict scrutiny by the courts if the speech falls into the category for which the forum exists -- in the case of Lincoln Center Plaza, artistic expression.
The question in the current case is complicated by Zuccotti Park's unusual status: under a zoning deal struck with the city, it is a privately owned space that must be open to the public at all times. Brookfield Properties owns the park but operates it essentially as a public park, although without the curfews that exist in public parks.
At Tuesday's hearing, the protesters argued that the park's four-plus decades as a round-the-clock public space suggested that they should be accorded full First Amendment protection. That is, Brookfield and the city would have to demonstrate a genuine interest -- such as a threat to public safety -- before it could impinge on protected expression. And it could only institute rules that restricted such speech in the least drastic manner possible, they argued.
But Brookfield lawyer Douglas Flaum and city attorney Sheryl Neufeld argued that the park has no history of being used for demonstrations and therefore should not be considered a traditional public forum. Nevertheless, Flaum and lawyers for the city said they had no problem with allowing protests at the park as long as the encampment was removed.
The city also argued that the presence of electrical wires, wooden pallets and cigarettes created a safety hazard that could only be remedied by the removal of the entire camp.
The city took photographs of what officials said were fire hazards around 2 p.m. Monday, hours before the raid began, and included them as court exhibits in its filing Tuesday.
"If there were a fire, people could not get out in an orderly fashion," Neufeld said in court.
But Levine, for the protesters, said that "there are less restrictive alternatives," saying that the city could take steps to ensure safety and health at the plaza without evicting the entire encampment.
In his ruling on Tuesday, Justice Stallman said he assumed that the protesters had full First Amendment protection at the plaza but found nevertheless that Brookfield's rules against tents and lying down were reasonable restrictions to maintain a clean, safe and accessible park.
Reporting by Joseph Ax; Editing by Jesse Wegman