First Amendment law is rather murky regarding the closure of a public forum, such as Solidarity Park (formerly albeit officially known as L.A. City Hall Park). As a public park, it is (or was) a traditional or quintessential public forum. The government may not restrict all communication in a traditional public forum. Closure of such a forum is valid under the First Amendment if done pursuant to a regulation that is content neutral, serves a significant or substantial governmental interest, and is narrowly tailored enough to pass constitutional muster.
Does L.A. Mun. Code, § 63.44 meet these three requirements? This section was cited on the signs the City posted three days prior to the Nov. 30, 2011 closure. Most courts would view this park regulation as "content-neutral" since it's designed to preserve the grass and other property of the park, and has nothing to do with public assemblies or speech there (or elsewhere). Cases involving forum closure usually stop on this point.
However, I believe that a compelling argument can be made that OLA's overnight camping is symbolic speech connected with the local homeless issue; and that as a matter of First Amendment law, OLA members should not have been denied an opportunity for further expression by Mayor V.'s decision to close the park. That decision is not content-neutral where Mayor V. ignored OLA's petition for a redress of grievances regarding the local homeless issue where the decision invaded OLA members' right to so petition the City and forcibly stopped OLA members from further engaging in such symbolic speech protected by the First Amendment. Where Mayor V.'s decision to close the park is based on the property-maintaining, anti-homeless policy underlying L.A. Mun. Code, § 63.44, the decision is not content-neutral but arises out of a disagreement with OLA's stance on the local homeless issue. Therefore, the closure of this forum is unlawful.
The City's legal defense strategy is like a syllogism: The City laid § 63.44 as the major premise or pretext, and § 63.45 as the minor premise. That is, the City's apparent stance is that it gave fair notice of a regulation (§ 63.44) proscribing presence in a park 10:30 p.m. - 5 a.m. Despite § 63.44, an assembly gathered there during those hours (about 12 a.m., Nov. 30th). Therefore, the City declared the assembly to be unlawful under § 63.45. The conclusion of the syllogism, as it were, is LAPD's arrest for "unlawful assembly" under the Penal Code. Without the L.A. Municipal Code as a sound basis for the arrests, the City could not order LAPD to carry out its "raid" of OLA's demonstration. Does the L.A. Municipal Code provide a sound basis?
In 1979, the City adopted the ordinance codified in § 63.44. If City officials had adopted that ordinance because they disagreed with the content of OLA's speech, their purported enforcement of § 63.44 is invalid under the First Amendment. To determine whether a rule is content neutral, the courts “do not make a searching inquiry of hidden motive; rather we look at the literal command of the restraint.” Menotti v. City of Seattle, 409 F.3d 1113, 1129 (2005). “The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” (Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).)
The City officials used § 63.44 as a pretext for the park closure. Didn't they, when adopting their pro-OLA resolution, know the grass would thereby suffer? At that time, didn't they also know the Occupy movement's consistent practice, as implied by its very name, is to camp overnight despite § 63.44? And that such would inevitably damage the grass contrary to the purpose of that section? The ordinary, if not inevitable consequences of granting OLA permission to occupy the park are that the grass therein would be destroyed. By adopting the pro-OLA resolution, the City intended that OLA would continue camping in the park and consequently destroy the grass therein. "The law presumes that a person intends the ordinary consequences of his voluntary acts." (Sandstrom v. Montana (1979) 442 U.S. 510, fn. 11 [61 L.Ed.2d 39, 49; 99 S.Ct. 2450, 2458].) Arguably, since the City intended that the grass be destroyed by OLA's permitted use, the City cannot claim OLA is liable therefor, much less use it to justify the park closure (§ 63.44).
If the City intended, by § 63.44, to maintain its parks in so "pristine" a state that homeless individuals should not enter, stay, or loiter therein, such use of § 63.44 by the City as a pretext for its Nov. 30, 2011 closure of Solidarity Park violates the First Amendment. (See People v. Trantham (L.A.Sup.Ct.1984) 161 Cal.App.3d Supp. 1, 12—13 [Purpose of § 63.44 is “to restrict and regulate the use of public parks and recreational areas under its purview in order to confine such usage to activities compatible with the natural resources of such places, otherwise to conserve those places in their pristine state, and to promote public health, safety and welfare in the usage of those parks and recreational areas. We further conclude that section 63.44(B)(14), a park closure regulation, was enacted to further those legislative purposes.”].)
During OLA's 58-day occupation, health and safety issues were adequately handled by regular, in-person contact with employees of City of L.A. Sanitation, who were deployed to the park and allowed full access thereto. No health, safety, or grass-maintenance reason exists under L.A. Mun. Code § 63.44 to support Mayor V.'s decision to close the park.
The next section, 63.45, contains the only other conceivable legal reason for closing the park, i.e., "unlawful assembly." For 55 days, the City did not regard OLA's overnight public assembly as being unlawful; on the contrary, its own resolution supported it. Then, the City posted signs, which cited the hours provision of § 63.44. The grass did not all die in the few days prior to November 25th at which time the signs were posted. By then, it had been thoroughly downtrodden and destroyed, leaving only dirt instead.
Whereas total irrationality is not to be presumed in a governmental policy, some other reason must exist to explain the sign-posting and subsequent closure. Why did the City wait 55 days to post the signs, and another 3 days to close the park after OLA had occupied it so long? Two reasons appear to explain the timing of the decision.
The City's apparent disagreement with the content of OLA's speech
1. Mayor V.'s purported reason. The reason Mayor V. proferred for his said decision is: "It is time to close the park and repair the grounds so that we can restore public access to the park." Other persons have the right to use a public forum; this includes free passage of the streets. (Schneider v. State, 308 U.S. 147, 160 (1939).) However, there is no allegation of any other public group requesting or needing access to this park. OLA did not obstruct passage to and from City Hall; therefore, Schneider v. State is inapposite. Mayor V.'s decision must have been motivated by some disagreement over the content of OLA's speech.
2. One apparent reason: Commercial interests. The Thanksgiving weekend inaugurated the revered Holiday Shopping Season. If the City had allowed OLA to continue occupying the park during this season, it would have discouraged shopping by focusing public attention toward the issues OLA's occupation was addressing. These issues, including the City's policies and practices affecting the local homeless population, are on a larger scale and a longer term; by drawing public attention to them, OLA drew attention away from the next holiday gift purchase.
If OLA's demonstration did have any such negative impact on local merchants, the courts have recognized the City has an interest to protect them: "Government interests in promoting public safety and the orderly movement of pedestrians, and in protecting the local merchant economy are also substantial.” (Perry v. L.A. Police Dept., 121 F.3d 1365, 1371 (9th Cir.1997).)
3. A second apparent reason: Historical precedent. Fifty-eight days is almost as long as the longest 24-hour demonstration in the country's modern history. That demonstration took place in the summer of 1932, as described by the U.S. Court of Appeals for the D.C. Circuit:
“In late May 1932 an unorganized group of unemployed Great War veterans descended upon Washington to petition Congress to accelerate the maturity date of their ‘Bonus’ certificates (not payable until 1945). The authorities were cooperative at first, arranging quarters for many of the 15,000 men and permitting others to build hovels in various open spaces in the city. The leader of the ‘Bonus Army,’ Walter W. Waters, maintained a firm hand over his charges which, with the generally sympathetic attitude of the local population, helped create an amicable mood during May and early June. When Congress narrowly defeated the Bonus Bill, however, the veterans' mood turned sullen. Their eviction was eventually effected by troops under the command of General Douglas MacArthur on 28 July 1932. The Bonus Army, of course, never formally obtained permission to camp on public parkland.”
(Vietnam Veterans Against the War v. Morton (D.C.Cir. 1970) 506 F.2d 53, fn. 17.)