During this morning's congressional hearing on the Occupy D.C. protest, no witness, including National Park Service Director Jonathan Jarvis, disputed that some demonstrators had been breaking the law by sleeping in McPherson Square.
Where opinions split was over whether the National Park Service had acted appropriately and within the scope of the law by not arresting anyone to date for violating the no-camping rule. Jarvis defended the agency's actions, but did say that he planned to begin enforcing the rule after giving the demonstrators a final warning.
The House Oversight and Government Reform Committee heard testimony this morning from Jarvis and city officials, including Paul Quander Jr., deputy mayor for public safety and justice, and Metropolitan Police Department Chief Cathy Lanier. Timothy Zick, a professor at the College of William and Mary Marshall-Wythe School of Law, served as the panel's expert on constitutional law.
Committee Chairman Rep. Darrell Issa (R-Calif.) called for the hearing earlier this month after expressing his displeasure with the National Park Service’s failure to enforce the no-sleeping rule. Speaking at the beginning of the hearing, he said he was “deeply disappointed” in the agency.
“I feel the National Park Service has entered in to an ideological fray,” Issa said.
The hearing was led by Rep. Trey Gowdy (R-S.C.), chairman of the Subcommittee on Health Care, District of Columbia, Census and the National Archives. Gowdy asked whether the National Park Service’s decision not to arrest or cite any protesters for sleeping meant that any person in the future could bring a tent to a national park and camp, as long as they said they were protesting.
Jarvis said that the protest had been deemed a 24-hour vigil and that National Park Service regulations and court precedent give the agency some discretion in deciding how to respond to First Amendment-related activities. Jarvis said that Occupy D.C. represented an “unprecedented” expression of speech, and that his agency had been working with protesters to get compliance with the rules.
However, Jarvis said that the agency applied the same discretion regardless of the place or what the protest was about. “We take exactly the same approach every time,” he said. Jarvis said he did plan to begin enforcing the no-sleeping rule soon, although he didn’t offer a specific time-frame.
Zick said that Occupy D.C. was unique in that it sought “permanence of place…as part of its message.” He said that actions like the occupation of McPherson Square are protected by the First Amendment in the same way as spoken words.
Zick cited a 1975 opinion from the U.S. Court of Appeals for the D.C. Circuit, A Quaker Action Group v. Morton, as spelling out the fact that parks in the District “constitute a unique situs for the exercise of First Amendment rights.”
There was no explicit discussion of the lawsuit pending against the Department of the Interior in U.S. District Court for the District of Columbia. Occupy D.C. demonstrators sued the department in early December to bar them from moving tents from McPherson Square; a court order currently prevents Park Police from interfering with the site absent an emergency. A hearing before U.S. District Judge James Boasberg on a motion for a preliminary injunction is scheduled for Jan. 31.
There was also no discussion of a U.S. Supreme Court decision expected to factor in the case against the department, Clark v. Community Creative Non-Violence. That 1984 opinion upheld the anti-camping rule as it related to demonstrations on National Park Service land in Washington.
Jarvis did have support from Democratic representatives in attendance. Rep. Eleanor Holmes Norton (D-D.C.), noting her past experience as a First Amendment lawyer, praised the Occupy D.C. demonstrators for cooperating with Park Police. Norton called on her colleagues to respect the rights of modern-day protesters, even if their tactics are new.
Gowdy, noting his own past experience as a federal prosecutor, said he thought the National Park Service’s failure to enforce the no-camping rule could be seen as an example of selective prosecution. He also asked whether the agency would be immune from civil liability if there were any incidents in McPherson Square – an injury, for instance – but there was no other discussion of that issue.
Occupy D.C. protesters began their demonstration in McPherson Square in October. A separate group of protesters loosely affiliated with the national Occupy movement also began a 24-hour demonstration in Freedom Plaza in October, but that site hasn’t been subject to the same scrutiny. Mayor Vincent Gray (D), who didn't attend today's hearing, and other city officials have expressed concerns about the sanitation of the sites, and have suggested consolidating the two for better management.
Quander estimated today that there are between 25 to 50 demonstrators in McPherson at any given time, and between 30 to 40 people in Freedom Plaza.