Commentary: Occupy Rochester v. the mayor and city code

By Scott Forsyth
Posted: 5:28 pm Tue, December 6, 2011

The press has praised Mayor Thomas Richards for allowing the members of Occupy Rochester to sleep over in Washington Square Park after he first said they could not. Implicit in the praise is the idea that the members of Occupy Rochester were “wrong” to want to sleep over.

Actually the truth is muddier. If anything, the members of Occupy Rochester gave up more of their rights to secure the mayor’s assent than the mayor did. To understand why, you must dig into the Municipal Code of the City of Rochester.

Section 79 of the code governs city parks. The section sets the hours the parks are open. It prohibits camping. It also prohibits persons from using “any form of public address system,” building “any fire, except in suitable grills or fireplaces,” holding a “gathering of more than 50 people,” posting “any sign,” and possessing “any alcoholic beverages.”

The limitations sound like reasonable time, place and matter restrictions on the use of parks — traditional public forums. The limitations apply to all users, those verbally speaking out in a park or otherwise expressing themselves through conduct, and those just enjoying the ambience of a park.

The limitations are neutral with regard to the message of any speaker. The section leaves speakers ample alternative means of communication, both inside and outside of parks.

The section advances the city’s substantial interest in maintaining its parks in an attractive and intact condition, accessible to all who want to use them and view them. Allowing overnight camping would frustrate this interest.

In support of his original position that the members of Occupy Rochester did not have a First Amendment right to sleep in the park after hours, the mayor cited a 1984 decision, Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

In that case, a homeless advocacy group wanted to stage a demonstration on the Mall and in Lafayette Park in Washington, D.C. The demonstration would feature a tent city in which the protesters would sleep.

The National Park Service allowed the tents but not the sleep over, citing its regulation prohibiting the latter. The U.S. Supreme Court upheld the regulation as a reasonable time, place, and manner restriction on symbolic speech, for the reasons mentioned above.

If the National Park Service regulation and Rochester’s ban on sleeping over in tents were similar, Clark would definitely be controlling and the mayor would be very correct. However, the regulation and the ban differ in one very critical element: The city’s commissioner of Recreation and Youth Services may waive any and all of the limitations contained in Section 79 upon written request. The director of the National Park Service did not have the same power.

The commissioner is supposed to grant waivers, and permits for the use of the parks in general, “under rules and regulations promulgated by” him. Apparently no such rules and regulations exist. Even if they existed, they must be “narrow, objective and definite” and not involve the “appraisal of facts, the exercise of judgment, and the formation of an opinion” by the commissioner.

Lacking any standards, the commissioner has complete discretion in his review of an application. He can deny the application because he disagrees with the political viewpoint of the applicant and we would not be the wiser for it. Since the commissioner may arbitrarily waive Section 79, the ordinance is “inherently inconsistent with a valid time, place, and manner regulation.” Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969), Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-131 (1992).

On its face, Section 79 violates the First Amendment. Clark is not relevant, consequently.

Give the mayor credit. When the NYCLU explained to him the defects in Section 79, he backed off from his original position and agreed to the sleep-over in tents. But also give the members of Occupy Rochester credit. They could have insisted on the right to post signs anywhere in the park, possess alcoholic beverages and even build fires. The city could not enforce the provisions prohibiting these activities in the park because Section 79 on its face is unconstitutional.

The mayor and the members of Occupy Rochester compromised. Not so compromising is the district attorney. He is refusing to dismiss the charges against the members who stayed in the park after hours before the compromise was struck.

The district attorney is taking this position even though he too has been told that the underlying ordinance is unconstitutional. Look for this part of the dispute to play out in Rochester City Court. The NYCLU has filed an amicus brief.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.