Why Do Cigarette Boxes Have More Free Speech Rights Than Protesters?

New York City’s Occupy Wall Street protesters in Zuccotti Park were chanting, “Whose park? Our park,” as they were being evicted.

But according to the New York City judge who signed an order hours after the police raid saying the encampment had to go, the legal question came down to the question of whose speech rights were being taken away.

The answer was not what you might think.

It was not the OWS protesters, but the speech rights of the owners of a “privately owned public space,” New York Supreme Court Judge Michael Sullivan ruled.

“The Court assumes that the First Amendment applies to the owner of Zuccotti Park, thus obviating petitioners' request for a hearing as to whether Zuccotti Park is traditional public forum, or a limited public forum.”

In other words, from Judge Michael Sullivan’s perspective, the whole point and value of the OWS message was beside the point — and utterly irrelevant under the U.S. Constitution.

The protesters had taken away, or usurped, or appropriated the only speech rights that mattered: the property owner’s. Those speech rights are expressed in its rules for maintaining Zuccotti Park’s appearance.

The park itself was no different than the side of a cigarette box, which, ironically, also apparently has new First Amendment protections.

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For several years, first Congress, and then the federal Food and Drug Administration, have sought to force tobacco companies to put new warning labels, including graphic images, on the sides of cigarette boxes.

The big tobacco companies sued, saying the FDA violated their speech rights under the First Amendment. Last week, a pro-corporate U.S. District Court judge for the District of Columbia, Richard Leon, agreed with the tobacco companies. Leon said that the FDA’s new and disturbing images “confiscate” too much of the cigarette box’s space, and therefore, violate the constitutional First Amendment rights of the tobacco companies.

“And, in fact, ‘[f]or corporations as for individuals, the choice to speak includes within in it the choice of what not to say,” Judge Leon wrote, explaining his November 7 ruling that tobacco companies do not have to post the graphic images of lung cancer and other smoking-related ills until this whole case is heard—which could take years.

So amid the drama and angst of the ongoing occupation and eviction of Zuccotti Park in New York City, and other Occupy protests nationwide, a big lesson in First Amendment law has been given. It is not one that is pleasing to people who believe that the First Amendment protects free assembly and discussion of ideas and democratic discourse.

The lesson is that in America, property owners and corporations have speech rights too — and they may trump social visionaries.

There was one good bit of news on Tuesday that surely will have gone overlooked in New York City’s OWS melee. Congressman Jim McGovern, D-MA, introduced a bill in Congress for a “People’s Rights” constitutional amendment that seeks to retrieve First Amendment protections for corporations.

The proposed constitutional amendment reads, in part:

“The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

“Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.”

It is not the only “corporate personhood” amendment proposal out there. Several others have been introduced in the House. But in a week when OWS protesters were swept out of the park like cigarette butts, one might consider how they may have been treated if such an amendment were in effect.

Only approval by two-thirds of both Houses of Congress, three-quarters of state legislatures and the American public stand in the way.