What Type of Forum is Zuccotti Park?

by Tony Guo

Zuccotti Park is a privately owned public space.  The twenty-six thousand square foot park is the hub of the Occupy Wall Street protests.  The park is not the only privately owned public space in New York City.  In the 1960s developers traded public space for zoning concessions.  There are over 520 parks, plazas, and arcades in New York City similar to Zuccotti Park.  The government imposed two restrictions on owners of these public spaces.  The space must be open twenty-four hours a day and any restrictions on the park must be reasonable.  Protestors’ First Amendment rights to sleep and occupy the park may depend on how it is defined by courts.

Zuccotti Park does not fit into the Supreme Court’s forum analysis.  The park is not a traditional public forum, a limited public forum, or a non-traditional public forum because the city does not own the park.  If the city owned Zuccotti Park it could enforce the curfew restriction that applies to all the city’s parks.  The private nature of the park saves it from city regulation while its public nature deters its owners from regulating it.

In a letter sent to Commissioner Kelley of the New York City Police Department Zuccotti Park’s owners were “extremely concerned about dangers posed by damage that may have been incurred within the Park and by materials and equipment brought into the Park by the protestors.”  The owners “received hundreds of phone calls and e-mails from concerned citizens and office workers in the neighborhood.”  The letter ended by requesting assistance from the police department in ensuring public safety.  Whether for political, personal, or other reasons the owners and police did not “perform the necessary cleaning, inspection, damage assessment and repairs.”  Instead they allowed the protestors to continue to occupy the park.

Privately owned public spaces may warrant a discussion by the Supreme Court about what First Amendment rights apply.  Justice Sotomayor could lead discussion.  She was a Second Circuit judge in an analogous case Hotel Employees v. City of New York Department of Parks & Recreation (311 F.3d 534).  In Hotel Employees the plaza was managed by private owners, Lincoln Center Inc., through a licenses agreement with New York City.  The owners agreed to “engagement by the City, on behalf of and as an agent of the City, to manage and maintain the Premise….” The protestors argued that the plaza was a traditional public forum because it was either a public park or a public place functionally equivalent to a “park, sidewalk, or public throughfare.”  The Court disagreed with this analysis, emphasizing the fact that New York City had not treated the plaza as a typical city park.

The Court found “the Plaza’s primary function and purpose is to serve as a pleasing forecourt at the center of a prominent performing arts complex, to facilitate patrons’ passage into events taking place in the arts buildings…” and “the Plaza was not created primarily to operate as a public artery, nor to provide an open forum for all forms of public expression.”  Finding that the plaza was not a traditional public forum was enough; the Court left for “another day a more definite resolution of the Plaza’s status as either a limited public forum or a non-public forum.”  The distinction was irrelevant because the means of expression fell outside the limited public forum.

The Second Circuit’s rationale in Hotel Employees may not extend to Zuccotti Park.  The plaza in Hotel Employees has a different purpose and function than Zuccotti Park.  The plaza is attached to the Lincoln Center, an established cultural center devoted to the performing arts.  Further, Lincoln Center Inc. has a history of limiting speech in the plaza.  Zuccotti Park is not adjacent to 1 Liberty Plaza, its corresponding office tower.  Instead the park is enclosed by four different streets: Broadway, Trinity Place, Cedar Street, and Liberty Street.  And perhaps most importantly the owners of the park do not have a history of restricting speech.  Recent actions suggest they are uncomfortable with evicting the Occupy Wall Street protestors.

As the protest continues in Zuccotti Park the Supreme Court may step in and determine what First Amendment rights apply to privately own public spaces.  The government is unable to regulate these spaces like public parks and the private owners are afraid of potential backlash from regulating these spaces.  Zuccotti Park is not the only privately owned space open to the public twenty-four hours a day.  The First Amendment rights of protestors should be balanced with the serenity interest of residents and businesses near the park.  It is clear that someone should be able to regulate these spaces to ensure the interest of both groups.

 

Published in: on November 12, 2011 at 11:32 am Comments Off on What Type of Forum is Zuccotti Park?

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