[Will not go in the books as one of the best litigated 1st Amendment Cases.]

1:51 Judge retires to read papers and consider the issue. Hopes to have some decision about whether TRO should be extended by 3:00. Not extending TRO until he makes decision.

1:50 Petitioner: Odd that today’s violation cite generator hazards when there were no generators on the site since they were seized weeks ago.

1:48 Petitioner: City was notified of oppty to participate in Judge Billings TRO hearing. City did not respond.

NYC: City doesn’t receive faxes early in the morning.

Petitioner: To laughs, then why try to evict them at 4 in the morning?

1:45 Occupation Attorney: It’s not about tents, not about camping. 1st Amendment is not just about speech, it’s also about assembly.

Judge: Nothing in TRO preventing city from issuing violations.

1:39 Petitioner: City can police Park without clearing it. City can control situation & enforce law w/o sweeping demonstration off map. For instance, Community Board One has worked effectively with Occupiers to modify conduct, for instance restricting drumming to certain times of day.

NYC Attorney: Cigarette butts all around near electrical outlets, steps and planters at boundary of Park create fire exit hazard. (Think of all the kindling in Central Park– run for your lives.)

NYC Attorney: Occupiers are preventing intended use of the park by public.

Brookfield: People can’t erect tends that prevent other people from using park for intended use.

1:34 Judge asks if analagous to Sheep Meadow of Central Park. Petitioner: Sheep Meadow has pre-existing rules. J: Can’t owner implement rules now? P: Can they adopt rule, never having adopt a rule? Yes, but it must be reasonable, must be consistent with 1st Amendment. (USLaw.com suggests rulemaking should be subject to approval by NYC CIty Planning– issuer of Special Permit.)

1:22 Judge: What about issues of public waste and garbage?

Petitioner (#OWS Attorney): Have a garbage problem, pick up garbage. You have human waste problem, let protesters undertake responsiblity to put up portapotties. B and C have issues, we are prepared to deal with them. For instance, protesters took up cleaning when city first raised issue several weeks ago. Random photographs don’t prove it’s continuing problem. Brookfield has not responded to letters sent by #OWS asking how sanitation concerns could be accommodated. Neither City or Brookfield has attempted to negotiate, though Occupiers have shown willingness to do so. City seized generators and fuel several weeks ago; occupiers contacted city asking why none of the normal steps were taken by city to seek cure before seizing equipment.

Judge: Dismissed concerns about whose hands was extended to whom. Focusing on situation on the ground now. Are you saying use of the generators or the use of semi-permanent structures is protected as speech, either symolic speech or as a necessary aspect of the exercise of the Occupiers freedom of speech (KEY QUESTION).

Mr. Levine: They say you can stay in the cold for 24 hours but can’t bring sleeping bag.

Judge: Doesn’t answer question. Are you saying that this sort of conduct can’t be prohibited anywhere?

Mr. Levine: Only subject to limitation if least drastic limitation. For example generators, leaving aside whether pretect of removing right before blizzard, the city can ask for specific problems (proximity to tents, nature of fuel flamability, etc.) to be addressed by less drastic correction. THE POWER OF THE SYMBOLIC SPEECH RESIDES IN THE FACT IT IS A 24 HOUR OCCUPATION. THIS CONVEYS A SPECIAL MESSAGE.

If egress is not being permitted by location of Occupiers’ possessions or conduct, city as right to assure it is permitted. If tents are in the path, they can be moved someplace else. B and C must define their specific interests (concerns)– can’t impose blanket solution of prohibiting all tents outright.

1:21 Petitioner: POPS spaces can be designated limited forums, but this park hasn’t. Lincoln Center has been held to be a limited forum. It is for all purposes a public forum for constitutioanl purposes.

1:15 Petitioner: There was no particular emergency this morning. They swept the whole thing out. They put everything in garbage trucks that crunch things up, not flatbed trucks. This was deterrernt to most profound speech event in this counry since the 1960’s. The theme “99%” is on the lips of everyone in the country, including Republican candidates. This is a speech chase. Brookfield’s response is response to speech activity and therefore court must apply strict scrutiny.

Brookfield: It is a private space. We are not a “state actor”. Issue is whether we are allowed to promulgate reasonable rules. We are not in any way trying to stop speech. We would like everyone to come back. We are not in any way restricting expression.

Judge; Once space is clean, will you allow protesters back. And you will not place restriction on the times of the day in which they can use the space. Does that mean then that they will be permitted to use the street furniture that is there, sit on the benches. Is it your position that the use of a tent has no first amendment purpose and that there is no symbolic speech aspect to a tent?

Brookfield: Yes. They are allowed to speak, talk, chant, but they are not allowed to erect structures. But again, we do not feel 1st Amendment applies to us.

1:05 Judges’ Questions: Privately Owned, Public Spaces (“POPS”) created as a public amenity in exchange for development rights. Not disputed. Space traditionally used for current protest as a place for traditional 1st Amendment activity.

NYC: While it is POPS that is open to public, not take position that it is a traditional public forum While 1st Amendment activities is appropriate subject to reasonable restrictions comparable to sidewalks. Other than 9/11 memorial events, no other events have taken place in park in past.

Brookfield: Park has not traditionally been used for these purposes. Brookfield has denied requests for use in past, for example by Muslim group. Cites the Downs Case (2010) to illustrate not traditional forum for public debate; not it’s historical use.

Petitioner: Refers to it as “Liberty Park.” Cases uphold right to use POPS for public debate. POPS Special Permit language does not include any restrictive language such as “for passive or quiet enjoyment”. Brookfield made up rules after start of protest such as rules restricting “expressive association”. Flubs answer to Judge’s question about whether Brookfield ought to have right to establish rules. Responds that Brookfield probably has right, but rules must be reasonable. Better answer would have been requiring public hearing and approval of NYC Planning Dept– issuance of POPS Special Permit. Co-counsel: Both Brookfield and City bound by 1st Amendment.

Judge; Must owner of POPS show compelling public interest when setting rules?

Petitioner: Yes. They are sleeping there for expressive purposes. Not a Camping Case, it’s a Speech Case. In order for the State to restrict that, must have compelling interest. All of the city’s complaints, such as sanitation, egress, etc., can be addressed without restricting use of Park for expressive purposes.

Intervener: Fire Dept issued Summons this morning w/o providing time to redress.

1:01 Unions, WFP, NY Communities for Change: “All have planned activities around Park, participated in events, etc, therefore have standing.” Judge agrees.

12:59 Fire Dept notice about flamable materials and rubish. Judge: “If those issues were addressed and those materials were eliminated, would Brookfield’s position be the same?” Brookfield: People living in Park violates purposes of Park, Park was not meant for habitation or for structures. Park must be maintained in a way to fulfill it’s purpose including the observance of ‘very reasonable rules’ and that 'people aren’t allowed to live in the park’. Now that park is cleaned, we are happy to have protesters back, but not to have them “live” in the park. (paraphrased).

12:57 Brookfield: “Park not meant to be tent city. Very specific health concerns. According to Fire Dept safety and access to park issues. Primary issue is erection of tents. Brookfield has liability and responsibility to maintain park. Only obligation is that Park must be open at all times. Rules don’t allow erection of tents or people to live in Park.”

12:55 Reviewed Justice Billings Temporary Restraining Order (“TRO”) signed at 6:30AM, John Samertson (spelling?) on behalf of Working Families Party and Officer of Transport Workers Union. No answering papers from Brookfield.

12:53 Back in session.

12:41 Receives Responsive papers from City and Interveners’ papers from Local 101. Judge retires to chambers to review.

12:37 Approves pool video and still photography.

12:30 Judge Michael Stallman presiding.