The Occupy Wall Street mass protests have come to Pennsylvania, including in particular Philadelphia City Hall. If you don’t know the details, Naked City has an interview with one of the Occupy Philadelphia organizers.

According to the news articles, a “legal representative,” whoever that may be, has handed out to protesters a pamphlet explaining their legal rights, but I haven’t been able to find a copy of that online. If you’re going to protest, you owe it to yourself to print out and keep with you these two handouts from the Pennsylvania ACLU:

If you’re feeling historic, you might want to peruse The Founders’ Constitution primary sources on the founding of America, particularly the sections relating to the Popular Basis of Political Authority and the First Amendment (Petition and Assembly). Lawrence Lessig has an excellent article on why the protestors are right, and how money has corrupted our politics.

Please everybody be civil, police and protestors. [Update: the Daily News reports that the Philadelphia Police Commissioner has issued a memo reminding police officers that it is legal for citizens to record, videotape, and photograph police officers performing their duties in public spaces.]

This is a substantive legal blog, so I feel duty bound to examine the question of whether or not the protestors have a free speech right to “occupy” City Hall. This article by New York Civil Liberties Union attorney Christopher Dunn in the New York Law Journal about Occupy Wall Street’s activities at Zuccotti Park is essential reading on the subject of permit-less protests on public land:

In Clark v. Community for Creative Non-Violence,1 the Supreme Court considered a decision by the National Park Service to bar homeless advocacy protesters from sleeping in Lafayette Park, which sits across the street from the White House, and on the National Mall, a huge grassy area commonly used for protests in Washington, D.C. …

At the outset, the Supreme Court assumed, without deciding, “that overnight sleeping in connection with the demonstration is expressive conduct protected by the First Amendment.” … The Court went on to note, however, that “this assumption only begins the inquiry.”

The First Amendment does not provide absolute protection for speech, and expressive conduct is no different. Rather, when it comes to speech on public property such as parks and sidewalks (deemed traditional public fora), the Court long has held that the government can impose reasonable restrictions on the time, place, and manner of such speech. The question that the Court therefore turned to was whether the no-camping rule, as applied to CCNV, was a reasonable time, place, and manner restriction.

Dunn then goes on to explain how the Clark case has been applied by New York federal courts.

Of course, one person’s “reasonable” restriction on speech is another person’s abridgement of the fundamental right to free speech, so let’s dig a bit more into the law.

A free speech optimist might assume that the Supreme Court’s opinion in Synder v. Phelps — the Westboro Baptist Church funeral protest case, which relied on Clark for its analysis of protests on public land — would help protect the Occupy Wall Street protestors. I was cynical about the Synder opinion when it came out, and I continue to be cynical today. Synder wasn’t an advancement of First Amendment protections, it was an effort by the conservatives on the Supreme Court to try to further legitimize the hopelessly flawed Citizens United opinion by pretending to have strong protections for free speech. (I’m not just being a crank by suggesting the Supreme Court pays attention to political cover; see, e.g., Fallon, Richard H. “Legitimacy and the Constitution,” 118 Harvard Law Review 1787 (2005)).

I suppose the key guidance that the Synder opinion gave protestors is that they’re more likely to enjoy First Amendment protection if “the protest was not unruly; there was no shouting, profanity, or violence.” That’s worth taking to heart; there’s no better way to mess up civil disobedience than to give authorities a reason to arrest you or other citizens a reason to ignore you.

Moreover, the Supreme Court reviews only a tiny fraction of the cases decided each year, so the impact of Clark and Snyder comes down to the way in which those cases are interpreted by the lower courts. If the protestors are arrested at City Hall and litigation is brought, the questions will be decided by the federal judges of the Eastern District of Pennsylvania and the Third Circuit. So what do they say about Clark?

The key Third Circuit cases are Kreimer v. Bureau of Police for Town of Morristown, 958 F. 2d 1242 (3d Cir. 1992) and Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F. 3d 144 (3d Cir. 2002).

In Kreimer, the Third Circuit upheld a public library’s internal rules requiring that “Patrons not engaged in reading, studying, or using library materials may be asked to leave the building,” and that “Patron dress and personal hygiene shall conform to the standard of the community for public places,” because those rules were intended “to foster a quiet and orderly atmosphere conducive to every patron’s exercise of their constitutionally protected interest in receiving and reading written communications.”

In Tenafly, Orthodox Jews, with permission from the cable company, hung lechis from utility poles to make a symbolic eruv. The township made them take them down; the Third Circuit held the hanging of lechis, which look just like utility lines, wasn’t protected activity, but that the township selectively enforced its ordinance against hanging things from utility poles.

Neither of those cases really tell us much about how a sleep-in protest at Philadelphia’s City Hall would be viewed, so we need to focus our search a little bit. Perhaps the most interesting case I saw was Frantz v. Gress, 520 F. Supp. 2d 677 (E.D. Pa. 2007), in which an individual handing out religious leaflets on a sidewalk was arrested for violating 18 PA. CONS. STAT. § 5507, a Pennsylvania statute which says “[a] person, who, having no legal privilege to do so, intentionally or recklessly obstructs any highway . . . or public utility right-of-way, sidewalk . . . [or] other public passage, whether alone or with others, commits a summary offense, or, in case he persists after warning by a law officer, a misdemeanor of the third degree.”

Bet you didn’t know recklessly obstructing a sidewalk was a misdemeanor, did you? I’m betting that’s the same law that will be cited against the Philadelphia City Hall protestors: by sleeping and setting up camps in City Hall, they’re obstructing a “public passage.”

The Frantz case eventually proceeded to a non-jury trial in which Frantz lost his claims, a judgment later affirmed by the Third Circuit. But that’s because of the facts of the case, because “the officers’ orders that Frantz move closer to the curb burdened his speech no more than was necessary.”

And so we come full circle; the question at City Hall truly is if the judges reviewing the eventual case believe the protestors’ speech was “burdened no more than necessary” by the Philadelphia Police Department. This discretion is why federal judicial appointments matter so much.