Could the city crack down on Occupy Philly if it wanted to?

Juliana’s post yesterday on the cost of Occupy Philly got two kinds of responses that we think are worth answering. Some commenters argued that instead of covering what the city is spending, we should be focused on the issues the protesters are bringing up:

Nobody at OccupyPhilly is requesting this oversized police presence, and in 2 weeks of hundreds of people holding the space, there have been no incidents where extra police were required, let alone an entire unit. How about some coverage of why so many people are standing up and doing something with their beliefs?

— maggieq

The money the city is spending dealing with the protests does pale in comparison to the wealth at stake in big global economy discussions, a point that today’s Daily News editorial makes and that Jason Nark grappled with yesterday. But we hardly think that makes it invalid to report that an entire police unit was pulled off the street for the first week of the action – whether you think that’s the fault of the city, the protesters, or just an unavoidable development.

The second kind of response has been to yell, essentially, “kick ‘em out!”

This is a joke. These "protesters" have accomplished absolutely nothing except to cost taxpayers huge cash. It is time to end this little act of stupidity and move them along..."Loser-Palooza"!

— kelprod2

We don’t think the city should kick the protesters out – we appreciate the priority put on free speech here – but it’s interesting to ask whether it could if it wanted to. Is the city choosing to allow the protests and accept the associated costs?

The Nutter administration has pointed to the First Amendment as the reason for allowing the protesters to build a tent city in Dilworth Plaza. But the First Amendment isn’t absolute – the government can place “reasonable” restrictions on the time, place and manner of speech.

Guidelines for what constitutes a “reasonable” restriction include that the restriction be “content neutral” (i.e. the city can’t restrict someone’s expression because it doesn’t like what she’s saying) and that the government have a good reason for the restriction (i.e. if the expression is disruptive).

This is why the Nutter administration feels comfortable saying that once the Dilworth Plaza rehab project begins, Occupy Philly will need to get out of there.

Given these rules, we think the city probably could restrict Occupy Philly at least somewhat. If it wanted to prevent the protesters from camping out overnight, for instance, the restriction would be “content-neutral,” and the city could probably make the case it has a good reason for imposing it.

But then you have to ask: What would such a restriction accomplish?

Maxwell Kennerly, a local attorney who keeps a law blog, points out, “when you make that decision (to crack down), you heighten tensions.” Mayor Bloomberg has taken a more adversarial stance to the Occupy protests in New York, and now Zucotti Park actually seems occupied. Philly can still negotiate and cooperate with protesters.

What’s more, it’s not clear that any of the changes the city might demand – that the protesters relocate or clear out at night – would make that big a difference. If the crowds just came and went every day, the city would still pay for a police presence. The city could also reduce it's police presence, but that's a different discussion.

Bottom line: The cost of Occupy Philly isn’t quite as unavoidable for the city as the cost of a snowstorm. But the city is pretty limited in how much it can crack down, if it wanted to.

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