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City, Occupy Boston protesters lay out their cases

Briefs shed light on safety, other issues

Martin Hunter of Somerville was among the Occupy Boston protesters who marked the movement’s two-month anniversary with a march through several downtown streets last night. JOSH REYNOLDS FOR THE BOSTON GLOBE/Globe Freelance

As Occupy Boston protesters gear up for a court hearing today that could determine their future in Dewey Square, documents filed by attorneys on both sides shed light on the two primary issues a judge will consider: free speech and safety.

Two months after protesters set up camp downtown, the judge will weigh whether to grant protesters a temporary restraining order allowing them to remain on the public property. It is unclear when the judge will make his decision.

While Mayor Thomas M. Menino has said that he has no immediate plans to evict the protesters, city officials are looking to retain the right to evict protesters if they deem the encampment a health or safety risk.

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The tone of the city’s filings suggests that officials’ views on the encampment have hardened.

In a 199-page brief filed Tuesday, attorneys for the city, led by corporation counsel William F. Sinnott, painted a picture of a putrid, perilous enclave riddled with fire hazards, health code violations, and crime.

The camp, they said, is a “tightly clustered tinderbox’’ of tents that reeks of urine and is infested with vermin. Protesters, they said, have stored food unsafely, been arrested and charged with drug dealing, and failed to notify authorities of marches that close down major thoroughfares.

Boston police reported spending $750,000 in overtime and having to intervene for minor and major matters 87 times since Oct. 7.

“Nothing in the First Amendment allows tying the city’s hands from enforcing applicable fire, health, inspection codes, criminal statutes, and guidelines that govern the use of the Greenway,’’ stated the city’s brief.

Urszula Masny-Latos, executive director of the Massachusetts chapter of the National Lawyers Guild, said yesterday that the protesters had received no formal complaints from public officials about health or safety violations.

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Besides, she said, Dewey Square in the care of Occupy protesters has been kept at the same level of cleanliness as most other streets and public spaces in Boston.

“If someone claims that this part of the park is dirty, smelly, or unclean, it means that people don’t spend a lot of time walking in the streets of Boston,’’ Masny-Latos said.

The plaintiffs in the case are four Occupy Boston participants, who say they do not necessarily represent the rest of the protesters. Their lawyers filed their own brief Tuesday, asserting that the Occupy Boston encampment serves as a model of a democratic, egalitarian community.

They contend that for the protesters, living on Dewey Square is an act of speech in itself, different from simply holding signs or chanting on sidewalks, and is protected under the First Amendment.

“Occupy Boston’s tent city and 24-hour-a-day, 7-day-a-week community is . . . expressing the message that there is the possibility of a more fair, democratic, and economically egalitarian society,’’ the plaintiffs’ brief states. “It is the message of the Occupy protests.’’

Last night, as they marked the two-month anniversary of the movement, more than 300 Occupy demonstrators and their supporters marched through several downtown streets and snarled traffic. The group rallied behind a banner that read “You Can’t Evict An Idea.’’

Demonstrator Andy Coate, 24, of Dorchester said the group took to the streets to get its message out.

“We’re letting people know that we’re still here,’’ Coate said. “Even if we’re evicted, we’re still going to stay on in solidarity.’’

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Coate said demonstrators are putting together a plan to continue their activism if the city ousts them from Dewey Square.

At one point during the march, a large group of demonstrators sat on the ground at an intersection in Downtown Crossing and pledged to pack the courtroom this morning. The group members said in unison that demonstrators would attend the hearing, “and we will win.’’

While many motorists were visibly irritated by the bottleneck, some honked their horns in support, including Mike Roberts, 58, of Milton. He pumped his fist out the driver’s side window of his BMW as the group passed by on Congress Street.

He said of the demonstrators, “I think it’s something that’s much needed.’’

On Nov. 16, a Suffolk Superior Court judge issued an injunction barring the city from clearing the camp, pending today’s hearing.

Michael Avery, a professor of constitutional law at Suffolk Law School, said the main issue is balancing free-speech guarantees with the need to ensure the safety of citizens.

“Public safety is always an issue,’’ said Avery, who is not involved in the court case. “What we have to ask ourselves is whether safety concerns can be met without repressing speech.’’

According to the law, he said, if city officials put restrictions on the protesters’ right to occupy Dewey Square, they must provide protesters with an “equally effective’’ means to express their message.

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He questioned whether protesters would be able to convey the same message if they were not residing in a round-the-clock encampment.

Menino’s spokeswoman, Dot Joyce, said the mayor remains convinced the city must have freedom to act against the protesters without having a court order if officials decide the camp is undermining public safety or public health.

“He remains a supporter of their issues and is very sympathetic to their issues,’’ she said yesterday. “But he has some real concerns about the conditions of the camp.’’

In a previous version of this story, Urszula Masny-Latos was incorrectly identified as an attorney for the Occupy Boston protesters.