A Boston judge earlier today denied Occupy Boston’s motion for a preliminary injunction and vacated a temporary restraining order that had effectively been providing protection from a city eviction. The judge ultimately disagreed with whether camping was protected speech and that is why she ruled in favor of the city.
Judge Frances McIntyre concluded in her decision, “While Occupy Boston protesters may be exercising their expressive rights during their protest, they have no privilege under the First Amendment to seize and hold the land on which they sit.” McIntyre decided that citizens occupying Dewey Square in Boston had were trying to permanently hold the land and that was not protected speech under the First Amendment.
The occupation, that is, the seizing and holding of land of the Commonwealth is separate and distinct conduct from the living activities, that is, the setting up of tents, sleeping overnight eating and governing on the site. “Occupation” speaks of boldness, outrage, and a willingness to take personal risk but it does not carry the plaintiffs’ professed message. Essentially, it is viewed as a hostile act, an assertion of possession against the rights of another. The act of occupation, this court has determined as a matter of law, is not speech. Nor is it immune from criminal prosecution for trespass or other crimes.
However, the setting up of the tents, sleeping, and governance on Dewey Square is expressive conduct and symbolic. Nevertheless, it is subject to City and Park regulations and restrictions. Thus, the Conservancy’s prohibition on sleeping overnight and other restrictions on Dewey Square are valid, and applicable to Occupy Boston. The protesters are obligated under the law to abide by those regulations, as well as the orders of the City of Boston, the Boston Police Department, and the Rose Fitzgerald Kennedy Greenway Conservancy.
Also, McIntyre sided with the city and found the occupiers had taken over the space in a way that made it impossible for all people in Boston to have access and use the space. From her decision:
Having viewed the many photographs presented by the parties, this court finds that Dewey Square can be put to no other useful public purpose for the duration of its occupation. The density of people occupying one-quarter acre of land is extraordinary. While it is surely true that any citizen who chooses to make a speech or carry a placard at Dewey Square would find a hospitable audience, parents with young children, vendors and wheelchair-bound people cannot access this space as presently used. The sanitary arrangements alone convince me that the Farmers’ Market, which traditionally used the square, has suffered loss of sales due to the occupation.
Benjamin Wish of the legal team was present at an Emergency General Assembly called by the occupation after the decision was issued. He took questions on the decision and helped occupiers understand what had just happened.
Wish characterized the decision as “internally contradictory.” That is why the legal team planned to file an appeal. The way to understand the decision was that McIntyre decided Harbor Islands, a recreational area on the Massachusetts shoreline where camping is allowed, exists as an “ample alternative” to Dewey Square. Therefore, the occupiers do not have to be in Dewey Square to engage in the expressive and symbolic conduct of occupation. Wish also disagreed with the judge’s decision that the space was not accessible to all in Boston wanting to use the space.
The ACLU of Massachusetts put out a statement on the judge’s decision:
Just because the court ruled today that the city can shut down the encampment at Dewey Square does not mean that it should. As city officials have repeatedly–and recently–stated, there is no immediate need to remove Occupy Boston from Dewey Square.
If city officials decide, nonetheless, to do so, how they go about it also sends an important message. Occupy Boston has always been a peaceful political protest, aimed at drawing attention to the growing inequalities in our society. At a minimum, Boston city officials and the police must exercise restraint and respect with regard to the Occupy Movement and the concerned citizens it represents.
At the General Assembly, it was announced the legal team would be filing an appeal. They would also be filing a motion for staying the decision so it would not be in effect when they were in the middle of the appeal process. Also, the occupation was told that nowhere in the decision were there any clauses or lines ordering anyone to do anything as a result of the decision. Thus, the seventy people who signed affidavits saying they would abide by the decision could not face any possible repercussions or be regarded as disobeying the order if they stood their ground in the face of a raid.
It was shared that a city lawyer had said there was no plan to come in and shut down Occupy Boston. The city was meeting with the corporate counsel that had been representing the city and that could change. Of course, Mayor Thomas Menino signaled that he would have no problem with issuing an order for the police to evict the occupation tonight in a statement issued after the decision, where he declared, “The city strongly encourages the Occupy movement to abide by the Rose Kennedy Greenway regulations and remove their tents and refrain from camping in that area.”
Finally, of note, the TRO Occupy Boston enjoyed was issued before any raid. In a way, that may have worked against the occupation. Occupy Columbia in South Carolina obtained a TRO after having nineteen occupiers arrested for trespassing on the statehouse grounds. Occupy NOLA in New Orleans obtained a TRO after being cleared out of the park early Tuesday morning ahead of a scheduled hearing. McIntyre contended defendants had not undertaken any removal action and so the question presented to her was whether the matter was ripe for a declaration.