Do First Amendment rights exist in privately owned public spaces?
David O’Keefe, a retired prosecutor, filed a federal lawsuit Thursday in an attempt to establish those rights, after a clash during an anti-Trump protest.
Privately owned public spaces — or POPS — are areas like plazas, parklets and atriums open to the public, but built and maintained by private entities on private property. Developers that agree to build such spaces get to construct larger buildings under the city’s zoning codes.
O’Keefe in April was protesting the law firm Skadden, Arps, Slate, Meagher & Flom LLP outside its headquarters in midtown Manhattan, near Moynihan Station, after the firm made a deal with the Trump administration to provide free legal services for causes the administration supports.
O’Keefe, standing alone, held a poster calling the firm “Trump’s $100 million lap dog.”
A security guard asked O’Keefe to leave the space, which is managed by Brookfield Properties. He refused, according to the lawsuit. The guard called the police, who arrested him and charged him with a trespass violation.
The charges were dropped, according to his lawyer.
The suit argues that O’Keefe’s removal from the space as he was protesting violates his First Amendment rights under the U.S. Constitution.
“The security kept saying, this is private property, and I kept saying it is not private property. It’s privately owned public space, which is different,” said O’Keefe, who is 62 and lives in Brooklyn Heights. “It was pretty outrageous that Brookfield Properties obtains monetary benefits of creating this space, but then does not actually comply with the First Amendment that allows people to actually protest in that space.”
The lawsuit names Brookfield Properties and Allied Universal, which provided security, as defendants, as well as the City of New York and the New York Police Department. Brookfield, Allied Universal and NYPD declined to comment. Skadden, which is not a defendant in the case, did not immediately respond to a request for comment.
About two or three times a week, O’Keefe regularly shows up at the same place to continue his protest. Multiple times, security has asked him to leave, he said.
“Every time I go out there, I wonder, ‘Okay, who’s the person who’s making the decisions, and if they’re not in today, am I going to be arrested?’” O’Keefe said. “There’s, I won’t say fear necessarily, but a real discomfort about what’s going to happen.”
Michael Linhorst, an attorney with the Cornell Law School First Amendment Clinic, who is representing O’Keefe, said the case has implications for New Yorkers who find themselves in the city’s nearly 600 privately owned public spaces. (The Cornell clinic provides free legal services to THE CITY and other news organizations.)
“The property is open to the public and that carries with it some rights for the public,” he said. “With any public property where the First Amendment clearly does apply in full force, the government can still impose time, place and manner restrictions on speech and protest. You can’t use a megaphone at midnight when people are trying to sleep, things like that, so some reasonable restrictions like that would still be appropriate.”
But Jerold Kayden, a lawyer and Harvard University professor of urban planning and design, who wrote a book on POPS, said the question as to whether First Amendment rights apply to such spaces is unresolved.
“If the city and private owner are sufficiently coupled such that the actions of the private owner are akin to a public ownership, there could be an argument that there are First Amendment rights,” Kayden said. “I think it’s very unlikely that just because the owner received a zoning concession from the city — whether it’s floor area or something else — that suddenly the owner has subjected themselves to all the constitutional claims under the Bill of Rights.”
The question of the First Amendment and privately owned public spaces arose in 2011, in response to the clearing of Occupy Wall Street encampments at Zuccotti Park, also owned by Brookfield Properties.
A judge at the time decided protestors could go into Zuccotti Park but could not bring tents or sleeping bags, and said the protestors “have not demonstrated that they have a First Amendment right to remain in Zuccotti Park.”
At the time, protestors also gathered at an indoor POPS at 60 Wall Street, owned by Deutsche Bank. Signs went up prohibiting signs and posters, which civil liberties lawyers argued was unconstitutional. Later, the bank clarified that it did not allow attaching signs to walls or other furnishings.
O’Keefe described the encampment of Zuccotti Park “as a complete takeover of the POPS that didn’t allow for others to enjoy it.” In contrast, he said, he protested silently and without blocking pedestrian traffic.
“Because of the nature of my message, I was told that I was not allowed to be there,” he said.
He added that responses to his sign were “overwhelmingly positive,” with smiles, thumbs-up, laughter and some blank stares. Some law firm employees spoke with him, he said.
“There were a few people who would say negative,” he said, “but God bless them, you know, it’s free speech, so it’s okay.”
