When I feel the need to impose my view upon the world, I have little difficulty communicating my ideas online to a ready and reloading audience. For example, just last week I “Liked” the Mayor of Oakland on Facebook for the sole purpose of telling her, all the way from New York, that I hope the shame of what her police force tear-gassing Occupy protesters one day dawns on her. I certainly wasn’t going to get on a plane, fly across the country, and camp out on her city hall steps to tell her that, much less research the price of stamps, dust off the IBM Selectric typewriter, and mail her a sternly worded letter.
Yet it seems that public space has come to mean less and less as people congregate in online social media fora, such as chat rooms, Facebook, Twitter. And this is perhaps one of the reasons why Americans often take their constitutional right to assemble for granted.
Or perhaps it’s because the right of assembly hardly seems like a right in itself, but rather some kind of a “sub-right,” tethered to our expansive freedom of speech. After all, we’ve got to exercise our freedom of speech someplace, right? And, especially before the Internet changed everything, where more obvious a place than on government property such as parks, sidewalks, and city halls?
But it turns out that even though courts have come to analyze the public assembly right very similarly to freedom of speech cases, affirming that constitutional right is of surprisingly recent vintage.
The “right of the people peaceably to assemble” reads towards the end of the First Amendment, immediately after its more popular cousins (religion, speech, and press). 
And its lowly placement on the menu was at one time reflected in judicial opinion.
In 1895, the Massachusetts Supreme Court gave short shrift to the right to assembly in Commonwealth v. Davis (162 Mass. 510) when it upheld a Boston ordinance prohibiting public speaking on government property without first obtaining a permit from the mayor. Writing for the majority, future Supreme Court Justice Oliver Wendell Holmes opined that “[for] the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Soon thereafter, the U.S. Supreme Court affirmed Davis.
It wasn’t until 1939 that the right to peaceably assemble became recognized in the manner we generally understand it today. In Hague v. CIO, (307 U.S. 496), Justice Owen Roberts struck down a permit-only-public-speaking ordinance similar to the one in Davis, famously holding that “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
In Schneider v. New Jersey (308 U.S. 147), a similar case also heard by Justice Roberts simultaneous to Hague, the judge expanded the assembly right. He imposed a burden on the governmen
t to offer more than a pretextual justification for prohibiting the passing out of leaflets: “We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it.”
After some refinement around the edges, Justice Roberts’ holdings in Hague and Schneider closely approximate where we stand today. Any governmental restriction of speech must be content-neutral, which means the government cannot selectively issue demonstration permits, or treat the picketing Hatfields differently from the protesting McCoys. For example, content-neutrality is most often the contended issue wherever abortion-protest regulation litigation (inevitably) springs up.
But content neutrality is not actually the key legal question with respect to the Occupy protests that have cropped up across the country. Rather, any forthcoming cases will have to consider whether the particular law, ordinance, or policy that restricts the time, place, and manner of the protest is reasonable.
The time, place, and manner restriction analysis goes back to the 1965 case Cox v. Louisiana (379 U.S. 536). The court ruled that New York City could curtail street meetings “in the middle of Times Square at rush hour” for concerns relating to traffic flow, public safety, and so forth. In other words, your right to a public soapbox doesn’t necessarily override my right to get to work on time. But then again, it might. And therein lie deep and soupy First Amendment waters: the contexts by which these controversies come before the court are endless. And your mileage as to what is reasonable may vary . . . greatly.
Indeed, one of the reasons police in some cities are allowing protesters to camp out, against regulations, is likely because of the uncertain outcome should they push the matter into court; and an army of interested civil rights attorneys are standing by.
Zuccotti Park, formerly Liberty Park, is not only the birthplace of the now-global Occupy protests, but is also a privately owned public space. This is no small irony considering both, the state of the law and the nature of the protests. But beyond being simply ironic, however, it is also a meaningful com
plication for any court. Besides weighing the more obvious concerns of the City & Brookfield’s wishes to restrict the time, manner and place of the protests taking place there, a court may need to also address what effect Zuccotti Park’s corporate ownership has on the rights of public protesters.
When the protests erupted, this was a legal uncertainty for Zuccotti Park’s owners Brookfield Properties, who received additional property air rights in exchange for their purchase and agreement to maintain the space. By the time the city decided it liked its odds in court, Occupy Wall Street had gone global. And this added a wild card to the deck.
The city and Brookfield now have to consider worldwide public opinion to their legal calculus.