Occupy Denver and Free Speech

At this moment I am watching live camera feeds from 9News and the Denver Post of the “Occupy Denver” protests. Earlier today, Governor John Hickenlooper, Denver Mayor Michael Hancock, and Colorado Attorney General John Suthers held a media conference pointing out that it’s illegal to camp on government property in the city at night. But the “occupiers” said they aren’t leaving. Yet, at 11:17 p.m., nothing much seems to be happening. (The idea is that the “occupiers” must clear out their tents between the hours of 11 and 5.)

[Update (11:58 pm): The state capitol property runs right along city park property, so it’s unclear to me where the tents are actually located. The Denver Post just reported that “Suthers read the Colorado law that forbids camping on state Capitol grounds.” So apparently at least some of the tents are on capitol grounds. Whether the relevant government is the city or the state, the reasoning here applies equally. I have lightly edited some of my earlier text in this light.]

The interesting discussion is over the First Amendment and free speech.

A 9News reporter just asked somebody whether “our First Amendment rights override” the laws against camping on government property. The ACLU’s Mark Silverstein told 9News that pitching tents is “symbolic speech that’s protected by the First Amendment.”

But such comments largely miss the point of the First Amendment. No doubt pitching a tent can be “symbolic speech.” But you don’t have the right to pitch your tent in my front yard in order to express yourself. The right of free speech must be rooted in property rights.

The complication arises on government property, tax funded property. People have the right to protest on government property, but they do not have the right to impede other people’s reasonable use of that property, as by blocking traffic. Pitching tents in these city parks in fact poses risks to safety and health (where are these people going to the bathroom?), and it’s entirely reasonable to outlaw camping on such property. Essentially what the “occupiers” are doing is asking other regional taxpayers to clean up their mess and property damage.

Recently my wife and I went to a state park to camp. We paid $70 for an annual state parks pass and $22 per night to camp at the facilities. Should I have just been able to say I was “occupying” the camp space and exercising my “symbolic speech” by pitching my tent so as to avoid paying the fee? Obviously not.

The problem is that governments can potentially abuse their management of tax-funded property to prevent reasonable protests. If a government simply disallowed a group from holding a protest, then that might justify civil disobedience. But I have never heard of anything like that in Colorado.

Of course, ultimately the problems of government property can be mitigated simply by limiting the amount of government property. For example, in New York the “occupiers” have taken over a private park; in that case, the owners of the park properly set the policy.

Yes, the “occupiers” have the right to protest. Hell, I even agree with some of what they have to say. Just a while ago the group in Denver was chanting, “Banks got bailed out. We got sold out.” That’s exactly right. But let’s not hear any more nonsense about “free” camping in government parks somehow bearing First Amendment protection. Our Bill of Rights deserves more serious treatment than that.