Tuesday, November 29, 2011

First Amendment Rights and OWS Campers

As part of this forum aims to educate myself on these matters as well as to open a dialogue that does not include straw man characterization or vilification, I have been reading up and trying to understand this obsession with protesting in parks and the encampment aspect of OWS protests.

Let's look at what the ACLU has to say about First Amendment Rights, with a Tennessee example:

I probably earlier said that people don't have the right to protest in parks, or something of that nature. That was wrong. They do. What I meant, and I think I said this too, is they don't have the right to do whatever they please in parks and call it their First Amendment Rights.

I quote from this leaflet:


Where can I exercise my First Amendment right to pass out leaflets
or to hold a rally, march or demonstration?

Because the First Amendment protects free speech from infringement
by the government, leafleting and assembly is generally permissible
in most public areas, such as public parks, public streets and
sidewalks, and outside public buildings. These locations are commonly
known as public forums, which are generally defined as areas
that can be used for the communication of any and all views on political
and social issues.

There are three basic types of public forums:
• A traditional public forum is any area historically dedicated to
public assembly and protest, such as public streets, public parks
and public sidewalks.
• A limited public forum is public property that, while not typically
dedicated to public assembly, has been opened to expressive
activity by particular categories of people or on particular
subjects. Examples of limited public forums would be university
meeting rooms open for use by student groups or a city auditorium
open for theatrical performances.
• A non-public forum is public property that is not a traditional
public forum and that has not been opened for public expression.
Examples of non-public forums include prisons and military
bases (more information below). The government can severely
restrict public expression in a non-public forum."

So, we have established that people are protected by the First Amendment to protest collectively in public forums including parks.

However, the ACLU also says:

"Can the government place any restrictions on my right to free

Yes. The courts have consistently ruled that while the government
may not restrict the actual content of speech, it may restrict the time,
place, and manner of speech. For example, a municipality cannot
permit members of only one political party to hold rallies on the public
streets. This would be restricting speech based on its content. But
the government may prohibit political rallies from taking place at
unusual hours or from blocking pedestrian or vehicle traffic. This
would be restricting only the time, place and manner of the speech.

The courts have generally found time, place and manner restrictions
to be permissible because such regulations serve to ensure the safety
and order of the community at large. However, it is important to note
that in order to be constitutional, time, place and manner restrictions
must be content-neutral, meaning they must apply to everyone regardless
of the opinion being expressed"

So, people have the right to protest in parks. Within reason and with content-neutral basis, the government has the right to restrict "time, place, and manner."

Furthermore, what happens when citizens decide to engage in civil disobedience, a time-honored and respectable form of protest that marks many of our most poignant and meaningful protests and cries for change? The ACLU says this:

"If individuals decide to participate in civil disobedience, you should anticipate being arrested and prosecuted."

Bad grammar aside, let me ask you this, gentle reader. Why do people seem to feel that they have the right to protest in parks without any restrictions whatsoever and that if they are arrested, as expected, they can cry police conspiracy?

Furthermore, and this is more important to me, why do they feel that this is the most persuasive way of getting their issues heard? Everything I read focuses not on the issues, these are generally and summarily dismissed as simply a necessary explanation that amounts to "and by the way they're in the parks because they're protesting perceived corporate greed and economic disparity" and then the article, again and again, moves on. If their goal is awareness raising of issues, they are not succeeding. If their goal is awareness raising of park violations, they are succeeding.

There has been violence against the protestors. That is terrible and wrong and we need to rethink how we train police to deal with protests and our policies for incorporating civil disobedience into our culture. But otherwise, this doesn't really teach us much, other than some people made some bad choices.

The St. Louis Beacon says this:

"Occupy Wall Street protesters have a First Amendment right to protest in a public park, but they don't have the right to camp overnight or to physically block police officers trying to remove their tents. If officers try to forcibly remove protesters, the police may use reasonable, but not excessive force."

I think the Los Angeles situation is an example where people are trying to do it right. The protestors have been camped out for months. The City Council gave them support, and the Mayor is now giving them a deadline. The protestors are defying that deadline, and have taken it to court. The general consensus with constitutional experts is that their demands will not be satisfied as they have no legal basis. However, they seem to be trying to do it right. Similarly, the police have consistently said they are doing everything they can to avoid violence and to avoid going in and removing people, being concerned for the welfare of the protestors and of the homeless population amidst the protestors. In another article from CBS News, Cmdr. Andrew Smith said ""We're going to do this as gently as we possibly can. Our goal is not to have anybody arrested. Our goal is not to have to use force."" Likewise, protestors have said that they expected to be in jail already. Such is the fate of civil disobedience. Jail can be expected, violence should not.

I hope that this ends well. I hope that they all continue patient and legal avenues of dialogue. I hope that OWS comes up with a  better plan than 'let's see how long we can stay in the parks'. Because that plan seems meaningless, wasteful, destructive (sapping and wasting the energy, not building it, in my opinion, of all those frustrated, angry people who want to make a difference so that the movement burns out with a bad reputation rather than a useful and purposeful change with a positive reputation) - and obviously terminal. It has to be.

I suppose my irritation is not just that they are "occupying" anything (although again I am philosophically opposed both to this rhetoric and to these actions), but that they are making it about their right to be in parks, and almost nothing else. I really wish that all this collective energy were funneled into something tangible. Imagine if all this energy came together in focused ways... people all over the place finding innovative ways to make actual reform, in education, in business, in social exchange, in banking, in corporations, in politics, in legal aspects, in short, in policy. 

What's NEXT?

No comments:

Post a Comment