Tents are symbolic speech protected by the first amendment, just like flag burning.
In SHAD Alliance v. Smith Haven Mall New York's highest court established that once private mall owners open their doors to noncommercial speech activity, they cannot exclude individuals entering the mall for that purpose on the basis of the content of their expression.
In Clark v CCNV the US Supreme Court allowed tents, but ruled that the denial of a permit to sleep in the tents was constitutional because the sleep itself was not part of the speech. In the dicta, they outlined a test to judge whether a case of public sleeping is protected or not. This test was cited by Judge Wood in NY while deciding...
Metropolitan Council, Inc. v. Safir*, An NY District Court Ruled that the NYPD **cannot ban** symbolic sleeping using the section 240.20 of the New York State Penal Code, which reads: "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he obstructs vehicular or pedestrian traffic"
In Hotel Employees & Restaurant Employees Union v. City of New York Department of Parks & Recreation, the New York District court ruled that a private/public space could not be the scene of a protest but only because the private operators had a history of only allowing artistic displays.
Observations from the Above Case law Summaries and elsewhere:
1) Private property can be considered a "public forum" in NY (and many states) even in the case of shopping malls.
Despite all this good news the city and property owner will probably use ambiguity about safety to get rid of the tents.
THE SOLUTION: Make the tent and your long-term occupation of the tent into protected speech. Start with a throw away tent with some stuff in it. Print on it in LARGE text something along the lines of the following:
NOTICE: This Tent and its 35 day Presence are Protected Speech Under Amendment 1 of the US constitution. It Will be Shifted periodically for Cleaning
This first test tent should be conspicuously placed to grab police attention. Cameras need to be ready to record quickly. If they tear it down, upload the video to youtube and have the legal working group forward the evidence to the volunteer attorneys.
You will notice many legal sounding warnings about tents. OWS' own website says "erecting tents is unlawful". Many other references repeat various permutations of this phrase. Curiously missing is a corresponding law and section number. Perusing the city legal documents, you will not find any laws prohibiting tents. There is a section of the administrative code that requires permits for very large tents.
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New York, NY