Thursday, November 17, 2011


Since the beginning, Occupy Boston’s occupation of Dewey Square has been viewed through the prism of fundamental rights of free speech and free assembly.

As well it should. Of course, the anti-capitalist protesters forming up this movement are exercising some of the most sacred rights guaranteed by the Constitution.

However, Occupy Boston is an example of how constitutional rights can conflict with one another, as well as how legislative imprecision can lead to trouble.

Let’s take a deeper look.

Occupy Boston’s tent city is situated on Boston’s Dewey Square, a half-acre parcel which is part of the 16-acre Rose Kennedy Greenway (“Greenway”). The land that makes up the Greenway is actually owned by the Massachusetts Department of Transportation (which makes sense given the fact that it overspreads the Big Dig Tunnel system) and operated by the The Rose Fitzgerald Kennedy Greenway Conservancy, Inc. (the “Conservancy”), a private, charitable, non-profit corporation.

In Section 2 of Chapter 306 of the Acts of 2008, the Massachusetts Legislature charged the Conservancy with certain duties, including the “authority to operate, preserve, maintain, program and manage the greenway and the other open space parcels as a first class public space” in accordance with the terms of a lease between the Conservancy and the Massachusetts Turnpike Authority (now the Department of Transportation).

Herein lies the conflict.

On the one hand, Chapter 306 requires the Conservancy to operate the Greenway “as a public park and a traditional open public forum without limiting free speech.” Obviously, this is language friendly to Occupy Boston and supportive of its activity.

However, at the same time, the same law states that the Greenway shall be “entitled in all respects to protections afforded to public parkland under article XCVII of the amendments to the Massachusetts constitution.”

Article XCVII is not designed to accommodate free speech and assembly rights. Instead, it is meant for the protection of public parklands. It reads in relevant part as follows:

Article XCVII. Article XLIX of the Amendments to the Constitution is hereby annulled and the following is adopted in place thereof: - The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

This creates a dilemma: Occupy Boston would seem to have a constitutional right to protest on the Greenway, but it would seem to be constitutionally blocked from impeding the rights of other inhabitants of the Commonwealth to use and enjoy the beauty of the Greenway, namely by erecting a tent city and occupying the space as a temporary residence to the exclusion of others. (The Conservancy itself put out a statement on October 12, 2011 acknowledging that Occupy Boston's use of the area is "full-time.")

We say: all of this mitigates in favor of a resolution being pushed in other areas; namely, that Occupy Boston ought to be able to launch peaceful protests and rallies just like any other group, basically wherever they want, but that their full-time occupation of the Greenway needs to end.

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