When the Occupy Wall Street demonstration began on September 17, protesters were quickly blocked from Wall Street and settled into nearby Zuccotti Park for their occupation. But as this morning’s near-eviction by New York Police at the behest of owners Brookfield Properties made clear, Zuccotti isn’t a public park with all the free speech protections that come with public property; rather, it’s a privately owned public space.
Privately owned public spaces have proliferated in the past several decades—there are almost 550 in New York City—as a result of zoning concessions the city grants to real estate developers: in exchange for setting aside a nominally public space, property owners such as Brookfield are allowed to bypass height or setback restrictions on their buildings.
But the problem with privately owned public spaces is that they’re no substitution for purely public spaces, because First Amendment protections don’t really apply when the owners of a space are non-governmental. Jerold Kayden, a professor of urban planning and design at Harvard’s Kennedy School, says that these spaces “occupy a somewhat murky terrain in terms of what activities and conduct of public users within the space should be acceptable and what goes beyond the pale." That is, the protesters have been able to set up camp in Zuccotti not because of any regulation that protects their presence there, but precisely because of a real lack of any defined regulations at all. As Ben Adler noted today, that’s been a boon to the occupiers: "It is only because Zuccotti Park falls into a nebulous area that the NYPD maintained until Thursday that they did not have the authority to eject the protesters." Brookfield has scrambled to make new rules that seem to be purpose-built to end the occupation (click the image above enlarge), but the occupiers aren’t falling for it.
All of which highlights the ambiguous nature of our cities’ many public-yet-not-public spaces. “The owners of these spaces or the developers of the buildings in which the spaces exist received zoning concessions to encourage the provision of these spaces and the owners continue to enjoy the financial benefits of these zoning concessions," Kayden explains. “It’s only right that the public should enjoy their part of the bargain.” If Brookfield seems determined to flex its power over Zuccotti in the near future, what are some other privately owned public spaces the Occupy Wall Street movement might they test out next?