Occupy and the Provision of Public Space: The City's Responsibilities

The occupation of key public spaces by Occupy Wall Street, as a means of calling attention to more basic problems, raises questions of the role of public spaces that need to be urgently dealt with. The basic questions about the organization of society, democracy, inequality, social justice, public priorities are deep-going and require long-term answers. They should not be pre-empted by the immediate needs for space, not should any space be fetishized. But spatial issues need to be dealt with immediately and urgently. 

Zuccotti Park Notice

Zuccotti Park Notice

Zuccotti Park Evicition

Zuccotti Park Evicition

You cannot evict and idea..

You cannot evict and idea..

The need for, and the function of, public space, raised by the Zuccotti Park affair, is an issue that should be confronted directly as an issue in democratic governance.   While other city departments are also necessarily involved, the focus here is on the appropriate concerns of the City Planning Commission and its staff, as one entry point in its consideration.

It is axiomatic, we believe, that the concern of city planning is not only promotion of the efficient use of the city's built environment and the health and safety of its users, but also the extent to which that environment, and generally planning for and allocation land uses in the city, furthers the interests of democracy and participation in the affairs of the community.

The Zuccotti Park affair, and similar forcible evictions of protestors from public spaces in cities across the country, reveals a deficit in the provision and management of public space. The courts may ultimately rule that the constitutional provisions guaranteeing the right peaceably to assemble and petition for the redress of grievances implies a constitutional duty on states and their cities to make such assembly possible through the provision of public space for its exercise. Until there is a change in the composition of the U.S. Supreme 'court, however, it is left for other branches of government to accept that responsibility as a matter of good democratic policy. The following discussion suggests the possibilities in New York City.

The occupiers of Zuccotti Park clearly had a message they wished to convey to the wider public, one that concerned issues of governance, social justice, public policy, the conduct of the affairs of the city. It was perhaps a controversial message, one affecting a wide range of subjects. There is widespread interest in at what the occupiers have to say, both pro and con. They have found Zuccotti Park a feasible location in which not only to express their opinions but to discuss them, look at alternate formulations, educate themselves on the issues, and in the process develop a model of discussion and transparent decision-making that is itself of significant potential value to the development of urban democracy. They claim the right to occupy a particular space not simply on First Amendment grounds - they do not wish simply to yell and scream for its own sake, but to participate in the democratic governance of the society in which they live.  They are in a notable modern tradition of the use of central spaces for democratic action, going from Plaza de Mayo to Tahrir Square, including in the U.S. spaces such as the mall in Washington D.C. An even older tradition goes back to the Athenian agora and the medieval cathedral square (as St. James in London today). Their availability for political use is generally taken for granted, if sometimes limited by undemocratic regimes or used for repressive purposes, as with Nazi plazas and Soviet squares.

In a city as dense, and with the kind of market-dictated property values it reflects, there is a real need to face the lack of such spaces directly and to plan for their use as part of the essential city planning process and governmental regulation of land uses. The Zuccotti Park affair highlights the urgency of the need to act.

We believe that the city government should, in confronting uses such as those of Occupy Wall Street, welcome their initiative for public involvement and consider carefully how the city's planning process might promote the occupiers' ability to participate, actively and peaceably, in the city's public life

How might this be done?

An open and democratically-motivated city leadership might provide communications facilities, radio and TV access, sponsor public fora, have transparent discussions on the issues being raised  in governing circles, call for open and imaginative and constructive supportive conduct by city officials in all matters related to the occupiers abilities to make their voices heard, encouraging a public debate around their views. But even short of such actions, making space available for such activities is a primary need that should be addressed by the City, a need that requires it to examine the possibilities for the use of space within the city to encourage democratic activities.  The demands of the First Amendment set a minimum threshold for the exercise of the right to free speech, but what is needed is not the ability to speak freely out in the desert, inaccessible to most and heard by few.  Rather, what is needed are publicly available spaces that can fulfill the functions of the traditional agora, places where free men and women can meet, debate, speak to and listen to each other, learn from each other, confront issues of public concern and facilitate their resolution.

Zuccotti  Park was not ideal for the purposes of speech and assembly, but by almost heroic effort it was made into one in which such uses thrived. The City could have supported them: it could have done things as simple as provide sanitary facilities, as it has in other parks; it could have provided sound systems that would both facilitate wide participation and minimize disturbance to neighbors; it could have consulted on health and safety measures, provided fire extinguishers, safe connections to power lines, even efficient sources of heat and protection from the elements. Facilities for the provision of food and water could have been provided, as they are in other parks. It could have arranged with the occupiers that they could speak and meet in safety and security.  The availability of spaces such as the atrium at 60 Wall Street might be a model. But the City did nothing along these lines at Zuccotti Park; it did not even explore their possibility.

But it is not too late to recognize the problem and plan for its immediate amelioration and long term solution. We could learn from Zuccotti Park what is needed and plan how to provide it.  The city has developed other plans which include provision of public spaces, and has had them since the city was founded. But those plans need to clarify further what those publicly available spaces are for what, purposes they should serve, where they should be located, how they should be designed and equipped. We have plans for the spaces and the facilities that have been shown to be needed for other purposes. We have waterfront plans of which we are proud, transportation plans, environmental plans, social service plans, recreational plans; we need public spaces as part of a democracy or public participation plan, one which would look at the spaces and the facilities needed to make a healthy democracy thrive.  We are able to plan and make space available for ticker tape parades, community gardens, street fairs, farmers' markets, political rallies; we provide for commercial and recreational use of parks; we even arrange for seating for large numbers in the middle of times Square in the heart of the city's busiest intersection at the peak of rush hour. We build and/or subsidize convention centers and sports arenas for large crowds. We plan special restrictions and special opportunities for various holidays. We provide office space and meeting space in numerous locations for the transaction of city business, from Community Board meetings to public hearings to electoral events, and we rent space in municipal properties and on public sidewalks to all kinds of activities, public and private, and at all hours of the day and night.

Further, the City through zoning regulations, building codes, tax and subsidy policies, anti-discrimination laws, environmental controls, infrastructure provision, transportation policies, and the exercise of other normal governmental functions, has substantial control not only over publicly-owned space but also over privately-owned space. Many of these deal explicitly both with restricted and with favored uses, whether negatively as with nuisances or positively as with theaters or community facilities or spatial bonuses for open spaces and public facilities. Spaces for public uses may be publicly owned, or privately owned and subject to public influence and regulation; it is the use, not the bare ownership, which is the issue. A Public Spaces Plan concerned with the spatial requirements for the exercise of democratic functions should deal with both. .

For many of the city's spaces there are already appropriate time, place, and manner regulations governing their use, and such regulations, if reasonable, may be applicable for spaces appropriate for democratic assembly and speech, keeping in mind the constitutional importance of the particular uses involved and their adoption through open procedures consistent with democratic decision-making. The issues involved in dealing with Zuccotti Park are all within the City's power to manage, and relatively easily. In Newark, for instance, "the city's police chief? said she would waive the permit ordinarily required to assembling in Military Park, telling protesters that her officers' task was 'to make sure you're safe.? members of the city's Municipal Council said they supported lifting the 9 p.m. curfew that typically governs the plaza."[1]

Should we not plan ahead to do the same kind of planning as we do for other spaces in the City to provide space for the functioning of the democracy to which we are constitutionally committed? Should not the imagination, the technical skills, the design experience, the collective experience of the diverse body of our citizenry and our guests,  the knowledge of our educational institutions, the competence of our business community, the creativity of our artists, be now harnessed in that effort?

In implementing such a Public Spaces Plan, consideration must be given also to criteria for the management of such spaces. Tw o different groups or individuals cannot conduct two different activities in the same space at the same time, certainly not without careful prior understanding as to their rules of behavior. Developing  or applying such rules is a common everyday task for those in charge of many spaces, both public and private; the examples above suggest the many situations in which such rules are already established and enforced as to public spaces, streets, parks, with relatively wide public agreement.

The Zuccotti Park experience suggests two points that require special notice. One is that in determining priorities among possibly conflicting claims on the use of a particular space, a particular priority should be given to uses which increase the ability of the populace to participate actively and with information in the democratic governance of the city. Detailed research would be useful to see how criteria are now framed in various cities for the regulation of various types of spaces.[2] Transparency and ample opportunities to be heard should be a sine quo non for the adoption of such rules.

The Zuccotti  Park case also shows the potentials of open discussion among users and affected non-users of public space to deal with arrangements for use. The agreements between the occupiers and Community Board 1 for the regulation of noise at the Park show that even in difficult circumstances discussion can achieve satisfactory results. The experience at Zuccotti  also shows that the absence of discussion can have very undesirable results, as the clearance of the Park at by the City in the dead of night, without notice and or oversight, with substantial property damage and infliction of unnecessary personal hardship,  demonstrates.  Occupiers waive no rights by entering into negotiations over time, place, and manner regulations on their use of a particular space at a particular time in a particular manner. The rights of free speech can be adequately protected in such circumstances; the cases are legion.  The City, on its side, should be sympathetic to the prospective users' needs, and not meet them with expressed hostility. Agreement with their goals is not a requirement, but civility and common sense are.

There should be an end to the handling of the democratic outpouring we have seen at Zuccotti  Park by forcible evictions and quasi-military police actions, and instead a forward-looking and responsible planning and implementation process for the flowering of a  vital and constructive democracy in the City.

* *  * *

Why, within city government in New York City, should the Planning Commission take a leading role here?

Apart from its purpose to plan broadly, comprehensively and long-term for the welfare of the city's people, there is a realistic political argument for it to take a leading role in the matter. All political leaders have a vested interested in staying in power; it goes with the territory.  They have no incentive to tolerate protest, or certainly to encourage it, unless it may lead to a loss of voter confidence such as to threaten their continuation in office. The City Planning Commission, by contrast, is specifically created as a non-partisan commission, has very limited powers; its members are not dependent on their position on it for their livelihood or status. Those concerned about the uses of adequate space in the city for purposes that include political protest can attempt to persuade a sitting mayor that a negative attitude incurs a political cost to him or her. [3]  But directing their attention of the somewhat less partisan  political Planning Commission may facilitate the beginning of constructive discussion.


[1] New York Times, November 8, 2011, p. A20.
[2] The regulations for the use of the Great Meadow in Central Park have I believe already been subject to judicial review.
[3] "57 percent of those polled said the demonstrators should be able to stay in the parks all day and all night, while 40 percent say they should not. 'Voters clearly support First Amendment rights,' Siena pollster Steven Greenberg said." November 15, 2011,. Staten Island Advance.  


Posted on December 1, 2011, by Peter Marcuse.