Reuters After police swept Occupy Wall Street protesters 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 US 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 US 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. 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. 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. The question in the current case is complicated by the 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. In his ruling on Tuesday, Justice Stallman said he found that Brookfield's rules against tents and lying down were reasonable restrictions to maintain a clean, safe and accessible park. __
