Occupy Boston is living up to its name; there are plenty of tents on a Dewey Square parcel of the Rose Fitzgerald Kennedy Greenway across the street from South Station. For those of you who have been keeping track of what isn’t on the Greenway, this is the site that was supposed to host the Massachusetts Horticultural Society’s Garden Under Glass. Nowadays, it’s mostly lawn, with some planting along the margins.

Unfortunately, local reporters seem to be confused about exactly where the protesters are. In an article decrying the monstrous crime of sleeping in a tent in Boston, the Boston Globe reported that the Occupiers were on “private land”–a strange term for a site owned by the Massachusetts Turnpike Authority.

For the record, the Rose Kennedy Greenway is a public park. Here’s what the Massachusetts Legislature had to say about the subject in 2008 (emphasis added):

AN ACT AUTHORIZING THE ROSE FITZGERALD KENNEDY GREENWAY CONSERVANCY, INC. TO OPERATE, MANAGE AND MAINTAIN THE ROSE KENNEDY GREENWAY. (see House, No. 5013) Approved by the Governor, August 11, 2008.

Section 3:
(a) The [Rose F. Kennedy Greenway ] conservancy shall have the following responsibilities:-
….
(2) to enter into a lease with the [Massachusetts Turnpike] authority to operate, preserve, maintain, program and manage the greenway and the other open space parcels as a first class public space in accordance with the terms of any such lease, provided that the conservancy shall not have the power to sublease, mortgage, alienate, pledge as security or encumber the greenway or the other open space parcels without the enactment of further legislation, and provided further that the greenway shall be treated as a public park and a traditional open public forum without limiting free speech, and entitled in all respects to protections afforded to public parkland under article XCVII of the amendments to the Massachusetts constitution;

Got that? The Rose F. Kennedy Greenway Conservancy operates, and manages the Greenway; it doesn’t own it, and the place is “a traditional open public forum.”

The Rose Kennedy Greenway put the situation somewhat differently in the group’s October 6 press release about Occupy Boston:

“Occupy Boston is a spontaneous event and an expression of free speech that did not go through the permitting process with the Conservancy or the City. No one asked for permission. No one gave permission….The Conservancy views the Greenway as Common Ground. In addition to supporting free speech, we’re aware that asking the protesters to leave will create conflict and significant expense. Should circumstances become unfavorable, we will work with the Boston Police Department to determine the appropriate response. We are prepared to do that, if and when protesters do not adhere to the common sense rules of conduct moving forward.”

How kind of the Conservancy to choose support the free speech that they’re legally mandated to uphold! And I’m sure everyone agrees on the “common sense rules of conduct.” But then again, most common sense doesn’t involve devoting weeks at a time to sleeping in a tent across from South Station to support political reform. I really don’t know what “common sense” applies here—especially given that the Boston Police waited until 1:30 am in the morning to oust more than 100 protesters from an adjoining parcel.

How much common sense do you have at the hour? How much common sense did the city have for ordering an ouster for that hour? According to the Globe,

“He [Menino] said protesters had crossed two lines, first, by marching on the North Washington Street Bridge and threatening to tie up traffic, and, second, by expanding their campground to a newly renovated area of the Greenway that the city had asked them to stay off.”

But how much traffic were they typing up at 1:30 am, exactly? As for staying off the Greenway– it’s supposed to be open to visitors 24 hours a day (I’ll write more about that in a moment). Can you really arrest people for not staying off the grass?

Menino and the Globe both failed to answer a larger underlying question, though: what sorts of protests are legally barred in Boston public parks?

There may be some grounds for arrest during public protests; perhaps the demonstrations involving discharging firearms, setting trees on fire, or public orgies. But sleeping in a tent on the Greenway probably isn’t one of them. Perhaps the Globe reporters would have had a better time with their fact-checking if Occupy Boston had been at the Boston Common instead of the not-private Kennedy Greenway. For those of you who moved here recently, here’s a sample of tent-based protests on the Boston Common (not counting the tents on the Common in 1968, which didn’t have a political message per se).

October, 1982: Anti-Reagan tents on the Common. The Boston Globe, October 24, 1982:

“As a dozen tents popped up one by one like canvas mushrooms on Boston Common, a 10-day protest against Reaganomics began yesterday afternoon with a change of “Reagan, Reagan, you’re not good. Send him back to Hollywood.” The City of Boston cut off the protestors’ electricity four days later.”

September, 1986: Protests against aid to the Contras in Nicaragua. The Boston Globe, September 29, 1986:

“Jim Packer, a 42-year-old attorney who lives in Jamaica Plain, helped organized a tent city in the Common three weeks ago. Since then, Boston veterans have maintained a 24-hour vigil for peace.”

December, 2009: Sleep-outs to protest climate change. The Boston Globe reported on December 7, 2009:

“Night after night, in bustling college quads and quaint town greens, on urban fire escapes and the storied Boston Common, scores of college students have taken sleeping bags to hard earth and huddled under billowing tents. For six weeks they have done this, forsaking the comfort of the indoors as a grand gesture about what is happening outdoors- and the connection between the two… Boston police have cited the students, whose group is newly known as Students for a Just and Stable Future, for trespassing because it is illegal to stay overnight on the Common.”

Mind you, there’s been a nighttime curfew on the Boston Common since 2007, meant to discourage various unsavory uses. But no one takes it too seriously if you break it for a good cause; the 2009 protesters were offered a deal by the Suffolk County Assistant District Attorney to drop their charges in exchange for paying a $50 fine.

In fact, the city thinks that free public expression on the Boston Common is a good thing. Just read this recommendation from the December, 2008 Report of the Special Committee on the Boston Common (emphasis mine).

“2. Encourage more positive activity on the Common. Bringing positive activity for more hours of the day and more months of the year improves public safety on and public commitment to the Common. By finding new ways to expand hours of use, giving people a larger commitment to the Common, and finding new ways of bringing people to the Common, we can attract people there to eat and drink, to play or relax, to bring their families, to protest or rally, and to experience cultural and social events.”

On the Boston Common, protests and rallies are positive activities; on the Greenway, protest is subject to “common sense rules of conduct” as determined by an independent nonprofit which works with the police to evict people at 1:30 in the morning. Does this double standard make sense? And can it stand up to First Amendment rights to free speech and peaceful assembly?

(The Kennedy Greenway Conservancy’s Park Use Guidelines for Public Programming, Special Events and General Use specify that park users can be on the Greenway at all hours, but they can’t sleep there, as long as they don’t fall asleep. “Park Operating Hours: To maintain a safe secure environment at all times within the park, general operating hours for the park grounds will be from 7:00 AM to 11:00 PM. Public access and movement through the parks will be permitted on a 24 hour/7 day a week basis. No overnight sleeping is allowed.”)

The 2008 report calls the Common “a literary, historic and political landmark.” It seems to me that Bostonians are working to make the Greenway a political landmark as well. Perhaps our children will be able to make their voices heard on more than one allotted parcel of the Greenway; perhaps they will claim more of the Greenway as civic spaces for protest, debate, and celebration. After all, the Greenway’s FAQ states: “The Greenway design includes significant ‘hardscape’ because it was designed to accommodate large civic gatherings.”

When I visited it on Wednesday, the contentious parcel where the arrests were made was open, and empty—but very green.

For the sake of accuracy, let me add that what may have been the most effective Boston-area tent protest didn’t take place in a park at all. In April, 1968, local activists set up a “Tent City” on a vacant lot at the corner of Dartmouth Street and Columbus Avenue in Boston’s South End to protest the Boston Redevelopment Authority’s (BRA) razing housing to create a parking garage. Somewhere between 100 and 400 people camped there for three days, then dispersed at the request of the police. The BRA stopped the garage project, one of the Tent City’s leaders, Mel King, was elected to the Massachusetts Houser of Representatives in 1972, and in 1988 Mayor Raymond Flynn dedicated a 269 unit Tent City housing complex on the site.

If you prefer violent protest over mere occupation, Boston by Foot is sponsoring a guided walk titled “Bostonians Behaving Badly: Riots in Boston” on Saturday, October 15. Wear comfortable footwear; you might have to run.

Like what you’re reading here? Have a different opinion? Let us know in the comment section below! Meg Muckenhoupt is the author of Boston’s Gardens & Green Spaces