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Occupy the First Amendment

A Charlotte law student talks public safety and free speechBy Isaac Sturgill

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Around the nation, we've seen tension between the First Amendment rights of Occupy protesters and the public concerns of city officials. In exercising their freedoms of speech and assembly, Occupiers have maintained a consistent presence on public property throughout the United States. Cities have complained about sanitation issues arising from Occupy camps, destruction of property and disruption of traffic. Many cities are addressing those concerns through legislation. However, when a city legislates in a way that puts restrictions on First Amendment rights, they must be careful. Restrictions that are broader than are necessary to serve the public interest, or that are vaguely worded, may be deemed unconstitutional.

The ordinance proposed by the City of Charlotte directly addresses several potential public-safety concerns, such as sanitation, the destruction of trees and public property, and obstructions that could restrict the public's ability to move freely through the city. That said, the ordinance contains, in my personal opinion, potential constitutional concerns.

First, some of the language seems vague. For example, the proposed ordinance makes it an offense to "throw, emit, use as a projectile, or otherwise disperse" any "noxious substance," with no restriction on where it is illegal to do so. It goes on to define a "noxious substance" as any substance that is "harmful or destructive or foul or offensive to human beings." What does that mean exactly? Pesticides are harmful to humans if they get on your skin or are ingested. If I go out in my garden and spray down my plants, am I dispersing a noxious substance in violation of the ordinance?

There is also a potential concern with the definition of "camping" under the proposed ordinance, which makes it illegal to camp on public property. The Supreme Court has recognized that camping in public can create sanitation, safety and other concerns, and it has held in at least one case that a city may make camping on public property unlawful. However, the definitions of "camping" in that case is different from the proposed local ordinance. In the Supreme Court case, it was limited to using temporary shelter as living accommodations — for example, sleeping in a tent, storing belongings there, cooking, etc. That makes sense, because living in temporary shelter on public property — using the shelter for the day-to-day functions of life — can create the sanitation and safety issues. The definition in the proposed local ordinance, however, is broader. It includes the language "remaining regularly or intermittently in, at, or near a temporary shelter." The definition of "temporary shelter" includes "any type of structure or cover that provides partial shelter from the elements."

Let's say that some friends go out to protest and hold up a couple of poles with a tarp to keep the rain off of them. They stay there all day, taking turns holding signs, chanting slogans, and leaving for breaks. They act peacefully, and are in a safe public area. At the end of the day, they go home and sleep, but come back the next day and do the same thing. Is their presence "regular" or "intermittent"? Is a couple of poles with a tarp considered a "cover" and therefore a "temporary shelter"? Arguably, yes. However, I don't see how this group would be creating any public harm. It is possible that this section of the proposed ordinance is too broad — too much restriction on First Amendment rights?

If the ordinance is passed, it is possible that its constitutionality will be challenged. There is also the potential for increased confrontation between protesters and police. The National Lawyers Guild often sends legal observers to public demonstrations, who, as independent third parties, can observe and document interactions between police and protesters. This documentation can be important if confrontation arises. The newly created Charlotte School of Law chapter of the National Lawyers Guild is hoping to be able to send legal observers to local demonstrations soon. We have a Gmail account — — and we welcome anyone planning a demonstration to contact us and let us know if there is interest in having legal observers present. We also welcome any other concerns or questions.

A third-year law student, Isaac Sturgill is the director of the Charlotte School of Law chapter of the National Lawyers Guild. For more information on the Guild, go to

Photo credit of legal observers in green hats: The Los Angeles Times


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