Whatever else it accomplishes, Occupy Wall Street is revealing distortions in our current understanding of the First Amendment. In recent decisions, the Supreme Court has protected Wall Street's constitutional right to pour millions into political campaigns. But as presently construed, the First Amendment isn't an obstacle when it comes to silencing the Occupiers.
The demonstrators were almost evicted from Zuccotti Park last Friday; but were saved, paradoxically, by Zuccotti's status as a private enclave reserved for public use by zoning laws. In contrast, New York City imposes a flat ban on sleeping in its public parks.
Worse yet, the Supreme Court upheld such a prohibition in 1984, finding that the government's interest in cleaning up the parks trumped protesters' rights to freedom of expression. The case involved an overnight demonstration against the treatment of the homeless population during the winter. It provoked an eloquent dissent by Justice Thurgood Marshall. He emphasized that the protesters' willingness to endure harsh conditions was central to their message, and that it was possible for the city to clean up its park without suppressing their efforts to advance their vision of a more humane America.
Marshall was right in 1984. People must be allowed to lay down their bodies, not only their wallets, to advocate deepest beliefs. Perhaps the Court, applying more recent decisions that have protected flag burning as speech, will provide the Occupiers with the First Amendment protections that it lavishes on Wall Street's political interventions. But until that happens, it's up to ordinary Americans to protect the First Amendment, and insist that our politicians pay heed even if the courts do not.
For centuries, citizens have marched on our streets and assembled in our parks to speak their minds. As the current demonstrators have established, these face-to-face encounters have a special power to command attention and provoke public debate. By enduring significant sacrifice for their commitments, they call upon the rest of us to reflect more deeply on the future of our country. As Thurgood Marshall saw, it was this spirit of self-sacrifice that made the sit-ins of the civil rights era such significant acts of political expression. It is up to Americans once again to insist that this spirit deserves support, not disparagement.. The increasing number of arrests is especially disturbing. Unless they are strictly limited to clear cases of criminality, they have a chilling effect on citizens who might otherwise join the protest.
Instead of hiding behind obsolete court decisions, big city mayors must recognize that they are on the constitutional front-line. Michael Bloomberg is failing this test when he keeps Occupiers out of New York's public parks and tolerates the arrests of dozens of protesters, providing an example for similar actions in Boston, Denver, and San Diego. In contrast, Antonio Villaraigoso is showing that leadership on behalf of the First Amendment is well within the realm of the politically possible. Los Angeles has not only avoided arrests, but seems to be expanding available public space as the protest swells. Similarly, the U.S. Parks police are on the right track in giving the demonstrators a four month extension on Freedom Plaza.
Over the next few weeks, Americans will be making their choices. If we begin to witness a groundswell in support of Los Angeles' act of leadership, we will be laying the foundations for a larger reworking of the Constitution that will keep the spirit of democracy alive in America.
Bruce Ackerman and Yochai Benkler are professors of law at Yale and Harvard Law Schools, respectively.
The Fractional Reserve Lending System practiced by Wall Street banksters: Money is CREATED out of debt and SOLD as a commodity in exchange for Interest. Blue-smoke-and-mirrors profits. GO OWS !!
Nothing I can say can improve on that. Go Occupiers!!
Many thanks for your insight into First Amendment law.
Occupy Wall Street protesters have been camped out in and trashing Zuccotti Park for weeks. Zuccotti Park is a very nice private park, right in the middle of Manhattan.
Zuccotti Park is owned by Brookfield Office Properties, which is part of Brookfield Asset Management, worth at least $150 billion.
That’s pretty nice of a big evil corporation to let protesters sleep, smoke weed and go number one and two on its nice private park in downtown Manhattan. Especially since the protesters are protesting big evil corporations. (But then again, President Obama expressed solidarity with the Occupy Wall Street protesters, Nancy Pelosi said “God Bless Them,” and Bill Ayers is writing their collective Occupy Wall Street demands. So someone loves them.)
Hmm. Wonder what that’s about.
BAM!
Coming on the heels of the Solyndra debacle, the Obama administration has just approved a $168.9 million loan guarantee for the Granite Reliable wind farm project owned by Brookfield Asset Management (BAM). Clearly a corporation with enough financial worth not to need federal loan guarantees.
BAM!
Maybe Mayor Bloomberg has some inside track on what’s going on here? After all, Bloomberg’s longtime shack-up girlfriend, Diana L. Taylor, is on the Board of Directors of Brookfield Properties, the company that owns Zuccotti Park. (She’s also served as the CFO of the Long Island Power Authority.)
2 wars + the longest in US history to the tune of trillions of dollars
Banks given TRILLIONS of money - Alot of it w/o any strings or accountability.
Students are now the most in debt with extremely low options for ANY thing remotely middle class.
Coporations are legally alive and can give a Billions Dollars if they so choose all the way from a small town mayor to a presidental nominee.
Planets Earth pollution status is Critical
OWS protesters and MILLIONS of americans are freak'n Pissed that we're the richest country in the world and grandma has to sell the family home to pay for shoddy health care while her BA granddaughter has to get a job serving lattes at starbucks for 8/hr while corporate fatcats have 100+ boo'hoo's about having to pay higher taxes on wealth that is DIRECTLY from the people.
Honeslty Grichde Obama is as close to a Manchurian Candidate to most of us progressives. You also mention the mayor as some sort of democratic champion for OWS? Haha that's rich. What we all need is some good old food, love & shelter! Not war, greed & plant haters.
If the Occupiers peaceably assemble for a demonstration, fine.
If the Occupiers take up residence on private or public spaces, the police should first warn and then evict as we have done in CO.
The Supreme court can easily make "interpretations" that substantially negate or violate ANY of our basic constiutional rights . . . that last ruling,in essence did that. Only Congress, with the agreement of the president (his approval on legislation) canchange what the Supreme Court might do . . . and since the VAST MAJORITY of Congress is unequivocally under the "undue influence" of the ultrawealthy elitist special interests, they are not liely to challenge any Supreme Court rulings/decisions . . . It appears that the oligarchists are indeed in contro of both our econmy and our government.
"He who controls the banks of a nation, controls the nation." None are so blind as those who simply refuse to see the TRUTH."
At some point government and society understand the protesters' message and either agree or disagree and the space used by the protestors, whether they are a parade or a sit-in must relinquish the public space back to other members of the public for the use that space was originally intended.
Moving protesters from a particular space is not a message from government that they disagree with the message. Even if government agrees with the message, other members of the public have a right to the very same space and at some point govt has to make a determination as to how long or how much each member of the public gets to use the space.
The difference is pretty clear - If they have the right to determine where, when, and how, then they can just say "You can petition in Alaska only one day each month and no more then six days per year", and that's it. They don't have to offer any sort of justification for it - rather, the burden is on the protestors to prove the standards are unreasonable.
This is the complete opposite to how courts have actually traditionally ruled on the subject of free speech. Rather, it is the GOVERNMENT that must prove that it's regulations are reasonable and necesarry and minimally infringing on free speech.
TPM regulations - time, place, manner - were created and upheld for security reasons. Overall? TPM restrictions must be neutral with respect to content, narrowly drawn, serve a significant government interest, and leave open alternative channels of communication.
So tell me - what's the significant government interest in the regulations here?
I hate to say it; but you and the vast MAJORITY of Americans must be living in LA-LA land; because your idealistic and rather naive perspectives are NOT reflective of the REAL WORLD that is being run by the ultra wealthy elitist power groups . . . the behind the scenes OLIGARCHISTS who are "pulling the strings" to operate everything the ways that ehy want it to be. (That is the REALITY of life . . . and no one "owes anyone else a job"; but governments needs to feed the hungry to prevent civil unret.
if the government doesn't have an interest in avoiding potential crime (nyc parks can be very dangerous at night), ridding the city of indecent exposure and health hazards, and allowing families to enjoy their homes, each other, and a good night's sleep, then what the he77 does the government have an interest in?
like everything else in life, freedom of speech isn't free... the government CAN regulate certain types of speech, such as pornography... libel or terroristic threats will land you in a courtroom, too... most importantly, government at all levels is entitled to make and enforce laws in terms of when people can protest, where people can protest, and how people can protest (aka "time, place and manner")
NY City, NY County and NY State all have laws regulating demonstrations, and ows is thumbing their noses at them... i think the police have shown REMARKABLE restraint in this case....
i agree with a lot of what ows is saying but, ENOUGH.... ordinary people who legitimately occupy those streets have rights, too - since ows refuses to respect them, they are the ultimate hypocrites
The United States constitution explicitly provides for 'the right of the people peaceably to assemble, and to petition the Government for a redress of grievances'" in the First Amendment.
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests. The right to freedom of association is recognized as a human right, a political freedom and a civil liberty.
Freedom of assembly and freedom of association may be used to distinguish between the freedom to assemble in public places and the freedom of joining an association. Freedom of assembly is often used in the context of the right to protest, while freedom of association is used in the context of labor rights and the Constitution of the United States, is interpreted to mean both the freedom to assemble and the freedom to join an association.
every day that ows does not leave that park by 10pm, it is breaking the law...
we also have laws regarding disturbing the peace - every night that ows conducts that stupid drum circle, it is breaking the law...
"There is a strong narrative that has developed on the right, and it's called REGRESSIVISM.
The Republicans and Tea Partiers have become so frightened by the progress that President Obama represents, that instead of a rebuttal of maintaining the status quo, i.e. conservatism, they are taking it one step further by wanting to REGRESS .
We have TPer's fighting against childhood immunizations and Child Labor laws. TPer's who want to destroy unions so the workers do not have a voice.
We have Rand Paul saying that the Civil Rights Act was overreaching and businesses have the right to discriminate against Black people.
TPers's Booing our soldiers
TPer's Demanding Second Amendment Solutions
TPer's wanting to deny birth citizenship
TPer's wanting to abolish the 14th and 17th amendments.
TPer's wanting to abolish hate crime legislation.
TPer's wanting to repeal the health care bill.
TPer's who want to abolish the FDA, the EPA, the Dept. of Education etc...
We have a Supreme Court Justice who says that the Constitution does not protect women from discrimination.
It's a scary and dangerous narrative that Progressives MUST expose to the American public. These aren't the republicans of your parents' generation. These are some really scary ideologues who wish to repeal all the progress of the 20th and 21st century.
It's time we call them what they are. They are not Conservatives. THEY'RE REGRESSIVES!