Posted at 03:32 PM ET, 11/15/2011

Zuccotti Park’s fight over first amendment rights: is a tent protected speech?

When is a tent, a tent? And when is it protected speech?

A New York judge is mulling those questions now, in a decision hundreds of Occupy Wall Street protesters await after their surprise eviction from Zuccotti Park early Tuesday.

Tents set up by people associated with the Occupy Wall Street movement in Zuccotti Park. (Spencer Platt/Getty Images)

At the hearing Tuesday to decide if the city can enforce an eviction on rules made after the protests began, lawyers for Brookfield Properties, the private firm that owns Zuccotti Park, and lawyers for the Occupy Wall Street protesters found themselves battling over the meaning of a tent.

Brookfield Properties and New York Mayor Michael Bloomberg said after the park was cleaned, protesters would be welcomed back, but not their tents and equipment.

The lawyers for the protesters claimed the tents were not only an integral part of the protesters speech, but also part of their assembly — both rights protected by the first amendment.

According to Nick Pinto, a Village Voice reporter inside the hearing, the Brookfield attorneys argued that the tents were merely being used to protect against the cold, but the Occupy Wall Street attorneys begged to differ saying, the “power of this symbolic speech is that it is a 24-hour occupation,” Pinto wrote on Twitter.

Since the Zuccotti Park is a privately-owned park, protests there may not fall under the legal protection of the first amendment. However, the judge may rule on whether or not city police can be used to enact rules in a private space.

ProPublica writes that the government can restrict protests without compromising the first amendment if the protests are “disturbing patients at a hospital, preventing students from going to school, or, more relevant for the Occupy movement, disrupting the flow of traffic for a long period of time.”

The encampment has increasingly become almost as important to the protests as the still-elusive purpose. Two weeks ago, when I visited Zuccotti Park, the protesters said discussions were increasingly turned to surviving the winter and keeping the occupation intact. Many mentioned how important the physical fact of the occupation was to the movement. They spoke of it being a new example of living together and of it breaking down the social structure. The existence of the camp seemed to trump any need for a clear list of demands. It was the fact that they were all there, showing up, debating, arguing, knitting and singing that really mattered.

By  |  03:32 PM ET, 11/15/2011

Tags:  National, Occupy Wall Street, Zuccotti Park, First Amendment Rights

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