Gotham Gazette

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When Sleep Becomes Speech


A federal judge recently gave new meaning to the words, "Talking in your sleep." In a lawsuit brought by the Metropolitan Council on Housing against New York City and its Police and Park Departments, the Court allowed a sleep-in on the street outside Gracie Mansion, the Mayor's residence.

Given the right case, sleep can be considered speech and is thus protected by the First Amendment, said Judge Kimba Wood, of the United States District Court.

And this, she ruled, was the right case. With tenants in New York's rent stabilized apartments facing the latest increases, Met Council, an advocacy group, organized a three-part event for the night of June 13-14, just before the Rent Guidelines Board was to meet at the Mayor's place.

The first two parts of the event presented no new legal issues. There would be an early evening press conference at nearby Carl Schurz Park. No problem. That would be followed by a five-hour vigil in the park. Again, no problem.

The problem? The sleepover. Commencing at 1a.m., a New York bedtime, and lasting until an 8 a.m. wake-up call, 25 participants would lie down on the street and go to sleep, to convey the message that homelessness -- really sleeping on the street -- would result from the city's proposed rent increases. But local law forbids lying and sleeping on sidewalks. The protestors, the sleepers, would have to disperse or would be arrested.

Yet this was no ordinary sleep, the protestors argued in a lawsuit filed beforehand by the New York Civil Liberties Union. This sleep was saying something. The Court had to stop the City from making arrests, the NYCLU said, since that would, of course, prevent the protest.

The City argued that lying or sleeping on public sidewalks is forbidden in all circumstances and will always lead to violators being given a choice of relocation or arrest in order to protect both the sleepers and passers-by. But this argument was defeated by the tenants' detailed logistical arrangements including self-policing and bedding at very defined and limited areas i.e.: East End Avenue and 88th Street. The City had to concede that the sidewalk would not be obstructed and nobody was in danger. So exacting was the plan that it specified that participants were to be side by side, perpendicular to the apartment building at the location, not blocking any doorways, covering no more than a half sidewalk's width, and reserving three feet per person or a total of 75 feet.

There would be no sound system, no parade or procession. Just a slumber party. There would, however, be a significant police presence.

According to the decision, "there is no danger that an injunction concerning this vigil will lead to the parade of horribles envisioned by the City. The City contends that if it cannot stop sleeping at this vigil, then it cannot under any circumstances, regulate the use of City sidewalks in a manner it deems necessary and appropriate to promote the free flow of pedestrian traffic.... The City has offered no evidence that those who sleep on the sidewalks while intoxicated and/or homeless (the instances cited by the City) will implicate the First Amendment at all."

Still, the lawsuit was not an attack on the constitutionality of the City's general ban on sidewalk sleeping. Its purpose was to prevent government interference with clearly constitutionally protected activity, namely protest; in this case, expression of a message through physical conduct accompanied by words on signs and leaflets that further rent increases would lead to homelessness.

In weighing the plaintiff's interest in expression through sleeping on a City sidewalk versus the City's interest in preventing persons from lying and sleeping on City sidewalks, the Court agreed that this was no mere nighttime nap, but was political expression conveying, symbolically, the risk of homelessness if the proposed rent increases were adopted and it was protected by the First Amendment. While deciding that public sleeping, is, in this case, a means of symbolic expression, the judge meticulously avoided barring the City from making arrests for disorderly conduct in the event that the sleepy protestors awakened with a bang and violated any laws. "Nothing in the proposed injunction would bar the City from a future criminal prosecution. A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand," Judge Wood wrote. Therefore, "between the hours of 1 a.m. and 8 a.m. on June 14, 2000, the Court orders defendants not to interfere with this vigil, nor with individuals' participation in it, on account of participants assuming a prone position and/or sleeping."

In other words, there is a difference between talking in your sleep and walking in your sleep.

Emily Jane Goodman is a New York State Supreme Court Justice

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