Public Space, Private Rules: The Legal Netherworld of Occupy Wall Street

Had the protest begun almost anywhere else in New York City, it almost certainly would have been shut down far sooner.

UPDATE: The private owners of Zuccotti park blinked early this morning, postponing their plans to clean the park and rescinding their request for assistance from the NYPD.

The New York Police Department's announcement that officers will remove Occupy Wall Street protesters from Zuccotti Park at 7 a.m. tomorrow is a reminder that the movement was lucky to stumble into that location. Had the protest begun almost anywhere else in New York City, it almost certainly would have been shut down far sooner.

The three-plus-week-old protest has allowed New York to make use one of its least effective policies. Zuccotti Park is one of New York’s 500-plus “privately owned public spaces,” but most are so useless and unattractive that no one even thinks of them as parks at all.

The POPS program was created in 1961 to add much-needed park space to Manhattan’s unrelenting street grid. The city offered a deal to real estate developers: create a public space on your property, and earn the ability to extend the building 20 percent higher. Zuccotti Park—originally known as Liberty Park before it was renamed after the CEO of its corporate owner—was built in 1968 under such an agreement.

Developers were quick to jump on the opportunity to squeeze more space (and thus profit) into Manhattan’s expensive, narrow land plots. Some buildings created two spaces: Zuccotti Park, for example, was built as part of the deal to construct 1 Liberty Plaza, across Liberty Street. That building got its height bonus for putting a typically useless and unattractive “plaza,” ringed with concrete pillars, around the structure itself. But in exchange for further special zoning permits, such as an exemption from a requirement that the building be set back for light and air, the company also built the park across the street.

For many years, the city government imposed no requirements on how the spaces were to be designed and decorated. Unsurprisingly, developers took that as license to do as little as possible. Thus, many POPS are nothing more than an empty swath of concrete in front of an office tower, breaking up an aesthetically consistent row of buildings. For examples of POPS at their worst, check out Park Avenue in Midtown or the building across Broadway from Zuccotti Park. A 2007 study by the New York City Department of City Planning, the Municipal Art Society and Jerold Kayden, a professor of urban planning at Harvard, found that 41 percent of POPS "are of marginal utility." At the other end of the spectrum, only "16 percent of the spaces are actively used as regional destinations or neighborhood gathering spaces."

Over the years, the city government has tightened the rules governing the design of new public spaces. Some existing ones were spruced up, including Zuccotti in 2005. “It was an amenity that could be used,” says Kayden. “It had seating areas and trees. It wasn’t a stellar, outstanding space, but it was not among the worst.

And, as the Occupy Wall Street protesters discovered, being a POPS gave it one distinct advantage over most public spaces: being privately owned means it inhabits a legal netherworld. “The law is pretty clear about using publicly owned public spaces for protests,” says Eric Goldwyn, a Ph.D. student in urban planning at Columbia University. “You need to apply for permits with the NYPD. If you want to hold a rally in Central Park, or if you want to close a sidewalk, there’s a clear process to follow, otherwise you get arrested. But with public/private spaces it’s totally unclear.” For four weeks the protesters camped out overnight, which is illegal in city-owned parks.

So by squatting in a park that is open to the public 24 hours per day, but not subject to the same laws and legal precedents as city-owned spaces, Occupy Wall Street organizers found a special niche. Brookfield, the company that owns the park, publicly complained about the protesters, but city officials maintained they lacked legal standing to eject them. Now the city has reversed course, ordering protesters to leave the park Friday morning so it can be cleaned. Afterwards, protesters will be allowed to return but prohibited from staying overnight, according to NYPD.

Unlike many privately owned public spaces, Zuccotti Park has no rules allowing Brookfield to set closing times and other rules about of public usage. Until Thursday, it appeared that Brookfield might have no recourse but to apply to the city government for permission to set such rules. Instead, the city government announced its own intention to ban staying overnight in the park, but its legal rationale is not clear.

If Occupy Wall Street protesters insist on staying overnight despite the ban, they may be forcibly removed or arrested, leaving it to the legal system to sort things out. How the courts will weigh the city's interest in keeping the park clean and usable for regular residents of the neighborhood against the benefits of using public space as for democratic discourse is anyone's guess.

It should come as no surprise that the city decided to act: Mayor Michael Bloomberg has been hostile in dealing with protesters throughout his three terms in office. In the run-up to the Iraq War and during the 2004 Republican National Convention, Bloomberg inexplicably denied reasonable protest permit requests, used metal gates to pen protesters, and had hundreds arrested without the evidence to sustain any charges. When Occupy Wall Street ventured onto the Brooklyn Bridge, the police arrested 700 non-violent protesters. But for a brief, shining moment, activists used the byproduct of a questionable city program to tie his authoritarian hands.

Photo via (cc) Flickr user BlaisOne

via Gage Skidmore / Flickr

If you are totally ready to move on from Donald Trump, you're not alone. According to a report last April from the Wason Center National Survey of 2020 Voters, "President Trump will be the least popular president to run for reelection in the history of polling."

Yes, you read that right, "history of polling."

Keep Reading Show less
via Around the NFL / Twitter

After three years on the sidelines, Colin Kapernick will be working out for multiple NFL teams on Saturday, November 16 at the Atlanta Falcons facility.

The former 49er quarterback who inflamed the culture wars by peacefully protesting against social injustice during the national anthem made the announcement on Twitter Tuesday.

Kaepernick is scheduled for a 15-minute on-field workout and an interview that will be recorded and sent to all 32 teams. The Miami Dolphins, Dallas Cowboys, and Detroit Lions are expected to have representatives in attendance.

RELATED: Joe Namath Says Colin Kaepernick And Eric Reid Should Be Playing In The NFL

"We like our quarterback situation right now," Miami head coach, Brian Flores said. "We're going to do our due diligence."

NFL Insider Steve Wyche believes that the workout is the NFL's response to multiple teams inquiring about the 32-year-old quarterback. A league-wide workout would help to mitigate any potential political backlash that any one team may face for making an overture to the controversial figure.

Kapernick is an unrestricted free agent (UFA) so any team could have reached out to him. But it's believed that the interested teams are considering him for next season.

RELATED: Video of an Oakland train employee saving a man's life is so insane, it looks like CGI

Earlier this year, Kaepernick and Carolina Panthers safety Eric Reid reached a financial settlement with the league in a joint collusion complaint. The players alleged that the league conspired to keep them out after they began kneeling during the national anthem in 2016.

Before the 2019 season, Kaepernick posted a video of himself working out on twitter to show he was in great physical condition and ready to play.

Kaepnick took the 49ers to the Super Bowl in 2012 and the NFC Championship game in 2013.

He has the 23rd-highest career passer rating in NFL history, the second-best interception rate, and the ninth-most rushing yards per game of any quarterback ever. In 2016, his career to a sharp dive and he won only of 11 games as a starter.


In the category of "claims to fame nobody wants," the United States can now add "exporter of white supremacist ideology" to its repertoire. Super.

Russell Travers, acting director of the National Counterterrorism Center, made this claim in a briefing at The Washington Institute in Washington, D.C. "For almost two decades, the United States has pointed abroad at countries who are exporters of extreme Islamist ideology," Travers said. "We are now being seen as the exporter of white supremacist ideology. That's a reality with which we are going to have to deal."

Keep Reading Show less

Between Alexa, Siri, and Google, artificial intelligence is quickly changing us and the way we live. We no longer have to get up to turn on the lights or set the thermostat, we can find the fastest route to work with a click, and, most importantly, tag our friends in pictures. But interacting with the world isn't the only thing AI is making easier – now we can use it save the world, too.

Keep Reading Show less
Good News