Rule of law triumphs in resolution to Occupy Boston

The end of Occupy Boston was a peaceful success because the protestors respected the law.

the rise and fall of the Occupy Boston encampment at Dewey Square has been hailed as a model of how police and city officials should respond to peaceful political dissent in the public sphere. Compared with video footage of cops pepper-spraying and clubbing protestors in Oakland, San Francisco, New York, and elsewhere, Boston looked pretty good. After nine weeks of occupation, most of the Boston protesters peacefully left Dewey Square—their statue of Gandhi held high, their message against economic and power inequalities heard by millions. Their banners proclaimed: “You can’t evict an idea.”

Media pundits praised police and city officials for showing “uncommon restraint.” It’s a narrative that, while true in part, misses the real story. In truth, it was a court’s intervention—not benevolent cops —that protected both the peace and the right to protest in Boston. And who brought in the courts? It was the Occupy Boston protesters themselves.

Occupy Boston started on September 30, when people from all walks of life assembled in Boston’s Financial District to join the nationwide “Occupy Wall Street” movement. They pitched their tents at Dewey Square, a small urban park that sits—literally—in the shadow of the looming Federal Reserve Bank of Boston. The Dewey Square camp took up only 4 percent of the Rose Fitzgerald Ken­nedy Greenway, a strip of parkland that runs along the site of the old Central Artery and is designated by the Massachusetts Legislature as a “public park and traditional open public forum.”

Greenway Executive Director Nancy Brennan initially welcomed Occupy Boston, issuing a statement on October 6 saying the Greenway is “available by law for expression of free speech.” She praised protesters for not disrupting the nearby farmer’s market and announced that there was ample space left on the Greenway for other public uses, noting: “The Conservancy views the Green­way as common ground.”

But four days later, when protesters tried to expand their tent city beyond Dewey Square, Boston police equipped in riot gear cracked down in the middle of the night, tearing down tents and handcuffing 129 protesters, medics, and legal observers.

The next day, hundreds of new protesters and thousands of dollars poured into Occupy Boston. Volunteer attorneys from the National Lawyers Guild stepped in to represent those who had been arrested, and soon were joined by ACLU attorneys ready to defend the protesters’ constitutional rights of speech, assembly, and petition.

Advocates first asked city officials to promise a 72-hour notice period before conducting a raid, giving protesters time to decamp peaceably and avoid arrest. The city’s corporation counsel, William Sin­nott, said no way. “We can’t tie our hands,” he said.

Meanwhile, videos of violent crackdowns on Occupy encampments in New York and Oakland sent spasms of fear through the Boston site. Green­way officials got jittery, too. On November 8, the Greenway board sent a private letter to Boston Mayor Thomas Menino asking him to order police to clear the camp. The mayor was widely quoted as saying, “There is a time and place when we have to end the encampment and that time and place will come in the near future.”

Back at Dewey Square, Occupy Boston’s governing body—the General Assembly—voted to authorize the lawyers to seek court protection. On November 15, the ACLU and National Law­yers Guild, led by pro bono attorneys Howard Cooper and Benjamin Wish (from the law firm of Todd & Weld), filed suit on behalf of Occupy Boston and four named protesters. They requested an emergency order to prevent a surprise raid at Dewey Square, followed by a hearing on the rights of protesters under the First Amendment.

Presiding over a packed courtroom the next morning, Suffolk Superior Court Judge Frances A. McIntyre set clear ground rules: “You have come to the court to have this matter resolved using the tools of law and logic,” she cautioned. No outbursts would be allowed, she warned.

In opening arguments, Cooper appealed to the judge to understand the expressive nature of the occupation. “The occupation of Dewey Square is not just integral to the protesters’ expression of their grievances; it is their pro­test,” he said. At a minimum, he said, protesters deserve notice prior to an eviction.

Again, Sinnott rejected the idea of prior notice. While the police had no present plans to remove the protesters, he argued, they didn’t want to relinquish the “element of surprise” to raid the camp at any time.

Judge McIntyre didn’t buy it. She issued an order preventing the police from raiding the camp absent an emergency, and scheduled a hearing on the constitutional merits for two weeks later. Each side would be allowed to call one witness at the hearing.

“Surprise in a military operation is an advantage,” she wrote in her ruling, “but it brings with it other elements with a civilian population. Surprise may invoke panic, flight, and violent resistance. This court believes that an orderly dispersal of Occupy Boston participants can reasonably be anticipated if it is preceded by a lawful court order. The public interest may well be thus advanced.”

Free from imminent arrest, the protesters had to decide whether to comply if the judge ultimately ruled against them. Rather than force a decision on the whole encampment, the General Assembly approved a plan to allow individuals to sign affidavits promising the court they would comply with her ruling. Within a week, 74 Occupy Boston protesters had agreed to abide by the rule of law.

“The Occupy Boston encampment in Dewey Square is a uniquely expressive response to the problems we face as a society today,” Cooper told the packed courtroom at the December 1 hearing. “At a time when many feel that our government is broken, the protesters have set up a small community to demonstrate how people can associate together in a more democratic, egalitarian, and just way. In deciding to go to court, the protesters have sought protection from interference with their efforts to communicate their message.”

Kristopher Eric Martin, an Occupy Boston participant and named plaintiff in the case (and also a PhD candidate in physics at Harvard University), was the sole witness for the Occupy movement. He described Occupy Boston governing committees and spoke about taking school children on tours of the camp. “I show them how direct democracy works,” he told the court. “They gain an appreciation for how it feels to have every person’s voice heard in a true democracy.”

The city’s sole witness was Boston Fire Marshal Bart Shea, who testified that “I fear for the life and safety of every person on that property.” But when asked why the city failed to provide official notice to protesters about alleged fire code violations, Shea testified, “I didn’t waste my time.”

Within a week of the hearing, Judge McIntyre issued an order that “clears the way but does not order the [protesters] to vacate the site.” She acknowledged that “the collective living activities at Dewey Square” is “conduct-which speaks and [is] entitled to First Amendment protection.” Nonetheless, she held, free speech at Dewey Square was trumped by the fire marshal’s warnings about fire safety, which she accepted “in every particular.”

Mayor Menino immediately announced a midnight deadline for protesters to clear Dewey Square. Ironically, after giving notice, the city waited three days to move in.

The protesters kept their word, obeying the court order even if they disagreed with it. Dozens of protesters de­camped voluntarily, with only 43 staying behind to be arrested in an act of nonviolent civil disobedience.

Meet the Author

Carol Rose

Guest Contributor

About Carol Rose

Executive Director, ACLU of Massachusetts

About Carol Rose

Executive Director, ACLU of Massachusetts

In the end, Boston owes much to the Occupy Boston protesters who sought protection from the court and thus obliged city officials to exercise “uncommon restraint.” The protesters’ willingness to exercise their constitutional right to access the courts and, ultimately, to abide by the court’s ruling that went against their interests is what kept the peace, the right to protest, and the rule of law alive in Massachusetts.

Carol Rose is executive director of the American Civil Liberties Union of Massachusetts. Homepage photo by Marilyn Humphries.