Just because the court ruled today that Boston city officials may shut down the Occupy Boston encampment at Dewey Square does not mean that they should. As city officials have repeatedly--and recently--stated, there is no immediate need to remove Occupy Boston from Dewey Square.
City officials have a choice. The judge ruled, "this decision clears the way but does not order the [Occupy Boston protestors] to vacate the site."
The eyes of the world are on Boston.
Occupy Boston has always been a peaceful political protest, aimed at drawing attention to the growing inequalities in our society. At a minimum, Boston city officials and the police must exercise restraint and respect with regard to the Occupy Movement and the concerned citizens it represents.
Importantly, Judge Frances A. McIntyre held that "the collective living activities at Dewey Square, i.e., setting up tents, sleeping overnight, eating, and governance are clearly both symbols and conduct-which-speaks and are entitled to First Amendment protection."
Nonetheless, the court held, "even speech that is entitled to Constitutional protection can be regulated." In doing so, the judge credited warnings of the Boston Fire Marshall "in every particular"--although city officials repeatedly and until recently stated that the encampment does not pose a public health or safety risk, and rejected efforts by Occupy Boston address any fire safety concerns.
Going forward, Boston city officials should offer to work with Occupy Boston protestors to maintain their camp or create alternative ways to get out their message of economic inequality in America--although the judge's suggestion about encamping on the Boston Harbor Islands is absurd. And if city officials decide to try to clear out the protestors, how they go about it also sends an important message about our city.
With the exception of the heavy-handed removal of demonstrators from the Rose Kennedy Greenway early in the morning on Oct. 11, Boston has already become a model of respect for freedom of speech to other cities around the country, where Occupy encampments have been broken up with levels of force that have even shocked people who were not involved in the Occupy movement or sympathetic to its aims.
Boston, as part of the long New England tradition of town meeting and grassroots democracy, has an important role to play again in how it responds to today's decision. Boston can--and must--set an example for the entire nation in protecting the rights of Occupy Boston participants.
Although I disagree with the ultimate holding, the court recognized the critical point that Occupy Boston activities--the model of a more egalitarian and just society it represents--sent a message that was communicated and understood, noting:
"There can be no doubt that at this writing in Boston, and perhaps throughout the country, an enclave of tents and in a public park connotes the Occupy movement and their 99%/1% view. Matters of finance and the present economic situation are of intense concern to many people. There is considerable media attention devoted to Occupy sites, and most articles, per journalistic custom, restate the Occupy position. The media has clearly understood the plaintiffs' contribution to the national conversation."
The ACLU of Massachusetts and the National Lawyers Guild-Massachusetts Chapter, through attorney Howard Cooper of Todd & Weld, have been working to protect the rights of Occupy Boston protesters.
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