A sneak preview of today's Occupy Pittsburgh hearing | Blogh

Tuesday, January 10, 2012

A sneak preview of today's Occupy Pittsburgh hearing

Posted By on Tue, Jan 10, 2012 at 7:34 AM

A programming note: This morning, attorneys for Bank of New York Mellon and Occupy Pittsburgh will be appearing in the courtroom of Christine Todd Ward to determine the fate of Mellon Green. I'll have coverage at my brand-spanking-new Twitter account, @CPotterPGH, where a solid handful of followers -- only half of whom are coworkers! -- are breathlessly awaiting my dispatches.

In the meantime, it's worth noting that BNY Mellon has issued a subpoena to city zoning administrator Susan Tymoczko; as I've noted here before, Occupy Pittsburgh has argued that the city's zoning law gives them the right to maintain a 24-hour campsite in the park. You can bet BNY Mellon will be calling on Tymoczko to contest that interpretation (which even civil libertarians have told me is weak).

Mellon has also fired a brief responding to Occupy Pittsburgh's legal rationale, which I wrote about late last week. Among other things, the Occupiers argue that they have a First Amendment right to their protest, and that BNY Mellon, by granting seemingly open-ended permission to remain in the park, have forfeited the right to evict them. BNY Mellon's response rejects those claims.

For starter, the bank notes that the First Amendment only applies to government action, not to private landowners. Occupy's lawyers, the pleading notes, "cite no case where [free speech] guarantees have been held to give anyone a right to put up tents and other structures and camp indefinitely on someone else's private property. Such a claim has no support in the history of American law and is completely untenable." Even if the parklet were public property, it continues, that wouldn't give the protesters the right to remain there indefinitely, any more than they have the right to permanently block a street.

Occupy has suggested that Mellon gave it a "license" to remain on the property, and that Occupiers bought winterizing equipment based on the assurance they could stay. Mellon's response tartly observes it is "absurd" to assert that Occupiers "acquired an irrevocable license to camp by soliciting donations or buying a small amount of equipment." What's more, BNY Mellon adds, permission to camp was "terminated when [Occupiers] violated the guidelines given to them." It's not clear what that violation consists of, though my guess would be that it has to do with the Occupiers' previous use of propane heaters and other equipment. (In their own legal brief, Occupiers have contended that no such heaters are being used ... but they have not denied previous use of such equipment.)

Expect these and other legal questions to get a fuller airing this morning. For the moment, if I were Occupy, I might hold off on buying any more winter supplies.