Testifying on Capitol Hill on Tuesday, the National Park Service made clear its legal position for declining to enforce laws against camping on federal land with respect to the Occupy DC protest group. But the Supreme Court has already weighed in on a near-identical case and found that enforcing laws against camping does not violate First Amendment rights, as the NPS claims.
“The core of [Occupy DC’s] First Amendment activity is that they occupy the site,” explained NPS director Jonathan Jarvis. In other words, “occupying,” or camping on the land in question, is integral to the protest’s message and self-identification and therefore protected by the First Amendment. The act of occupying is itself an act of expression.
The Supreme Court weighed in on the issue in the 1984 case Clark v. Community for Creative Nonviolence. The NPS had granted CCNV a permit to conduct demonstrations on the National Mall designed to bring attention to the plight of the homeless. But when CCNV set up a tent city – and looked to camp out in it – to drive its point home, the NPS denied its request for a permit that would allow them to sleep there.
CCNV sued, arguing that the act of sleeping in the tent city was integral to its efforts to demonstrate the suffering of homeless people – the entire purpose of the protest. The Supreme Court disagreed, and ruled 7-2 that NPS’s enforcement of the anti-camping statute did not violate CCNV’s First Amendment rights.
As summarized in the syllabus for the decision:
Assuming that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment, the regulation forbidding sleeping meets the requirements for a reasonable time, place, or manner restriction of expression, whether oral, written, or symbolized by conduct. The regulation is neutral with regard to the message presented, and leaves open ample alternative methods of communicating the intended message concerning the plight of the homeless. Moreover, the regulation narrowly focuses on the Government’s substantial interest in maintaining the parks in the heart of the Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence. To permit camping would be totally inimical to these purposes. The validity of the regulation need not be judged solely by reference to the demonstration at hand, and none of its provisions are unrelated to the ends that it was designed to serve.
Similarly, the challenged regulation is also sustainable as meeting the standards for a valid regulation of expressive conduct. Aside from its impact on speech, a rule against camping or overnight sleeping in public parks is not beyond the constitutional power of the Government to enforce. And as noted above, there is a substantial Government interest, unrelated to suppression of expression, in conserving park property that is served by the proscription of sleeping.
The similarities in this case and that of Occupy DC suggest that NPS is in sketchy legal territory with its defense of non-action with respect to the latter protests. The NPS, under previous administrations, has enforced the anti-camping law, and the Supreme Court has affirmed its constitutional right to do so.