This sad misfortune should serve as a warning to municipal leaders everywhere that intervention should not be taken lightly or without well-trained personnel.
But it is also a fact of the case that any municipality respecting First Amendment rights must also consider the interests of alternative users of public areas.
An "occupy" movement may well deserve praise for dramatizing issues, but "occupancy" is not a right protected by the First Amendment.
It is an act of "civil disobedience" with a lineage described in 1849 by the classic American author Henry David Thoreau in an article so titled.
Still, in order to exercise rights of assembly, petition and free speech, some term of occupancy is required and is thus protected.
There is a balancing act here, in both policy and law, that gives public authorities headaches.
The First Amendment to the Constitution of the United States says, "Congress shall make no law ... abridging the freedom of speech... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The Alaska Constitution separates these rights for us declaring in Article I, Section 5, "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."
In Section 6, the constitution continues, "The right of the people peaceably to assemble, and to petition the government shall never be abridged."
The responsibility for "abuse of that right" refers to claims for defamation, claims that the fathers of the U.S. Constitution would also have recognized.
It can be argued that the rephrasing of these rights by Alaska's founding fathers suggests that the state has some duty to assure that these rights are not abridged by anyone; it's not just about "passing no law." We shall see.
Some argue that the use of the term "never" means that these rights are absolute. But all absolutes must yield to the claims of other rights as our courts have found from the earliest days of the Republic.
In this case we are talking about the right of the public to enjoy the use of its parks and sidewalks.
The urgency of this right of enjoyment is not as compelling as the enjoyment of roads, for instance, whose use is essential to commerce, but these public parks and sidewalks were intended for public use and their occupancy by advocates of any cause will have some limiting effect on that public use.
The constitution prohibits the drawing of distinctions among occupancies and advocacy annoying to particular segments of the public.
Occupancy for religious revival or celebrating veterans, for example, has no better standing than occupancy to cheer on atheism or demonstrate against war.
Limited occupancy of a public place is required to support the exercise of constitutional rights but each occupancy is also limited by circumstance of place, time and manner.
For example, occupying the mayor's reception area, excepting the time reasonably required to deliver a petition, is outside constitutional protection because of the priority attached to the right of all persons to access that office and the necessities of municipal business.
Occupancy of a park for the purpose of exercising constitutional rights is not constricted by interests with the same level of urgency.
A pedestrian has some right, particularly in the dark, not to stumble over some person huddled on the sidewalk. But a pedestrian's slight inconvenience in walking around a sign holder in daylight in the park is all but insignificant.
The parties at interest in the current occupancy movements must each look to their own counsel on these issues and the authorities must have well-crafted standards and enforcement practices.
Each should be aware of the difference between prolonged occupancy as civil disobedience, and limited occupancy as an aid to exercise of constitutional rights.
When in doubt, should Alaskans not give the benefit of the doubt to free speech?
John Havelock is a former attorney general. He lives in Anchorage.
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