You cannot fault Bloomberg for his goals; they embrace the
fundamental tension at the heart of the First Amendment and public
protest. Case law dealt the Occupy movement some fairly heavy cards.
Their speech, on matters of core political concerns, sits at the top of
the pantheon of what the First Amendment protects. And while Zuccotti
Park is technically private, it functions as a public park, and was
dedicated under local zoning laws for round-the-clock public enjoyment
in 1968. Public parks enjoy an exalted status in the geography of the
First Amendment, enshrined in the sort of language men like the first Justice Roberts used to conjure images of the Periclean agora:
Wherever the title of streets and parks
may rest, they have immemorially been held in trust for the use of the
public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights, and liberties
of citizens.
But practice First Amendment law long enough, and you learn that for every uplifting paragraph like that, there are a thousand cases bending an abstract right to the prosaic realities of protest.
