Federal Appeals Court Rejects Occupy Wall Street Protestors’ First Amendment Retaliation Claim

Occupy Wall Street protestors lost their First Amendment retaliation claims before a federal appeals court, which ruled that N.Y. Police Department (NYPD) officers had probable cause to arrest them for disorderly conduct and trespass.

Between September and November 2011, a group known as Occupy Wall Street demonstrated against what they perceived as rising economic inequalities and excessive corporate influence on government. The demonstrations devolved into protestors living in tents and other structures in Zuccotti Park, a privately owned plaza in Manhattan’s Financial District.

On Nov. 15, 2011, NYPD officers ordered the protestors to leave the area or face arrest. Many complied, but some did not. Those who did not comply were arrested.

Several of those arrested, including Charles Meyers, John Baker, Justin Strekal and Miles Walsh, sued, alleging several claims, including First Amendment retaliation and discrimination claims.

A federal district court eventually granted summary judgment to the defendants. On appeal, a three-judge panel of U.S. Court of Appeals for the Second Circuit affirmed this ruling in its April 30, 2020 decision in Meyers v. City of New York.

The appeals court reasoned that probable cause defeats a First Amendment retaliatory arrest claim. The NYPD officers had probable cause to arrest those who did not comply with the lawful order to remove themselves from the park.

There is a narrow exception to the probable cause rule if plaintiffs can show objective evidence that they were treated differently than similarly-situated individuals who commit the same type of conduct. However, the plaintiffs could not show this, because the NYPD arrested everyone who failed to disperse.

The appeals court also explained that the “dispersal order was motivated by significant city interest, including the need to address mounting fire hazards and reduce congestion.” Furthermore, the protestors could still protest elsewhere — just not in Zuccotti Park.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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