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Occupying the First Amendment

Posted: 10/21/11 09:51 AM ET

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.