Submitted by pjmaxx on Wed, 11/30/2011 - 8:30am http://occupylosangeles.org/?q=node/2448

First Amendment law is rather murky regarding the closure of a public forum, such as Solidarity Park (formerly albeit officially known as L.A. City Hall Park), which as a public park is a traditional forum. Essentially, the law (federal case law) says the government may close a public forum at any time and for any reason--so long as it isn't doing so based on any disagreement with the views being expressed in the public forum. In other words, the regulation or policy behind a decision to close a public forum must, as a matter of First Amendment law, be "content-neutral."

This is the apparent reason why the City's attorney chose to use the park regulation (L.A. Mun. Code, § 63.44), cited on those posted signs. Most courts would view this park regulation as "content-neutral"  since it has nothing to do with public assemblies or speech made at a park. Cases involving forum closure stop on this point.

However, I believe that a compelling argument can be made that OLA's overnight camping is symbolic speech connected with the local homeless issue; and that as a matter of First Amendment law, OLA members should not have been denied an opportunity for further expression by Mayor V.'s decision to close the park. That decision is not content-neutral where Mayor V. ignored OLA's petition for a redress of grievances regarding the local homeless issue where the decision (1) invaded OLA members' right to so petition the City and (2) forcibly stopped OLA members from sleeping over another night in the public park and from further engaging in such symbolic speech connected with the local homeless issue, which is the very issue on which OLA was petitioning. Moreover, where Mayor V.'s decision to close the park is based on the property-maintaining, anti-homeless policy underlying L.A. Mun. Code, § 63.44, the decision is not content-neutral but arises out of a disagreement with OLA's stance on the local homeless issue. Therefore, the closure of this forum is unlawful.

The City's legal defense strategy is like a syllogism: The City laid § 63.44 as the major premise, and § 63.45 as the minor premise. That is, the City's apparent stance is that it gave fair notice of a regulation (§ 63.44) proscribing presence in a park 10:30 p.m. - 5 a.m. Despite § 63.44, an assembly gathered there during those hours (about 12 a.m., Nov. 30th). Therefore, the City declared the assembly to be unlawful under § 63.45. Like § 63.44, 63.45, referring as it does to the City's power to declare park closure due to "unlawful assembly" in its parks, is content-neutral on its face.

However, where a constitutional right is implicated, a court--in applying strict scrutiny, which is the highest level of scrutiny--may inquire of the City's park-closure decision more deeply than the language of either statute. In that regard, the City's apparent stance is that it doesn't disagree with the content of OLA's speech. Indeed, the council adopted and Mayor V. passively approved a resolution in favor thereof. Apparently, this is the City's stance.

Again, however, constitutional rights are at stake in this case. Therefore, we may inquire as to any evidence showing the City disagreed with the content of OLA's speech. If the City did, the park-closure decision may be unlawful if motivated by such disagreement.

Arguably, § 63.44 itself expresses the City's disagreement with OLA's said symbolic speech. The City did cite this section on the signs it posted in the park four days prior to the closure. The sign-posting apparently represented a rather sudden reversal of the City's position expressed in its aforementioned resolution, which the council adopted with full knowledge, even permission of the overnight camping. An apparent riddle!

Whereas complete irrationality is not be presumed in governmental action, the sign-posting may amount to nothing more than a convenient tactic of the City to cloak itself with an apparently legal justification for the park closure. Didn't the City officials, at the time they adopted the resolution, know the grass would thereby suffer? At that time, didn't they also know the Occupy movement's consistent practice, as implied by its name, is to camp overnight despite § 63.44? And such as would inevitably damage the grass in contravention of the purpose of that section?

These questions are pertinent where constitutional rights are implicated and strict scrutiny is to be applied.