A year and a half after the fences first went up around Chase Manhattan Plaza, new court filings show the fight over public access to the space is still heated.
We’ve written extensively about the fight over the fences, which were first erected the day before Occupy Wall Street protesters first gathered in Lower Manhattan. Open space activists initially challenged Chase’s unilateral closure of a treasured downtown plaza on the grounds that the fencing violated prohibitions against altering the exterior of landmarked buildings. Chase countered that the fencing was only temporary, and was needed not to keep out the bank’s critics, but rather to protect the public during scheduled maintenance on the plaza. The landmarks challenge fizzled, and the fences stayed up, though neighborhood residents saw little if any maintenance work being performed behind the fences.
Now a different lawsuit is casting the issue in starker contrast. Filed just before May Day last year, Rodriguez, et al. vs. Winski, et al., is a sprawling suit with many plaintiffs and defendants, alleging that during the occupation of Zuccotti Park, “the City, the Mayor and the police force have conspired with the defendant private corporations and other governmental entities to effectively impose a corporate monopoly on political speech.”
The suit names JP Morgan Chase as a defendant, alleging that by fencing off the plaza, it and police impinged on protesters’ first-amendment rights to expression. In December, JP Morgan Chase filed a motion to dismiss the charges, arguing that it has no obligation to keep the plaza open:
“[Chase Manhattan Plaza] is privately owned, and plaintiffs have no right, constitutional or otherwise, to have access to its plaza, let alone to comandeer the plaza for mass protest activities,” Chase’s lawyers wright in support of their motion to dismiss. J.P. Morgan Chase “has the fundamental right, protected by the federal constitution, to exclude the public from the plaza,” they add, and “is entitled to ask the New York City Police Department (‘NYPD’) for assistance in enforcing its rights as owner.”
The plaintiffs disagree. In their opposing motion, they argue that the only reason Chase Manhattan was allowed to de-map a city street, building a mega-block complete with skyscraper, was that they agreed in exchange to construct a plaza for the benefit of residents.
In support of this argument, the plaintiffs cite the original approval of the zoning change that made Chase Manhattan Plaza possible, which stipulates that the tower itself will only cover a small amount of the plot, “leaving 72.7 percent for a plaza, which will afford light and air and room for relaxation for the applicant’s employees and for others in the area.”
They also quote David Rockefeller Sr. himself, then the president of Chase, on the occasion of the dedication ceremony. Rockefeller said it had required “a sense of citizenship to clear an open plaza on some of the city’s most valuable land and throw it open to the light of the sun — and the public.”
While the focus of the lawsuit concerns the right of citizens to public political speech, the back-and-forth with Chase turns on a question of just what constitutes public space in a city that increasingly relies on corporations to provide it.
“”The people of New York granted a street to a private corporation in exchange for a public plaza,” says Wylie Stecklow, one of the plaintiffs’ lawyers. “50 years later, the corporation is now saying, ‘That wasn’t part of the bargain.’ If they’re allowed to do that, the people of New York gave away a street to a large corporation and got nothing in return. When we allow corporations to take back public space and further restrict where the public squares in the modern city can be, it’s a further restriction of the first amendment, because you’re restricting the availability of where the public space can be.”
A ruling on JP Morgan Chase’s motion for dismissal is expected in the coming weeks.
Here’s Chase’s memo supporting its motion to dismiss:
And here’s the plaintiff’s response: