The purpose of peaceful protest is to point out some kind of wrongdoing, some situation that needs to be remedied. If protesters themselves commit ethical violations during the course of their protest, they lose all credibility. How can the public consider protesters good judges of ethics, fit to point out what is and is not a wrongdoing, if the protesters cannot conduct themselves ethically during their protest?
As I blogged about previously, peaceful protest, the attempt to raise public awareness about grievances in a free society, is governed by different rules than revolutions. People waging revolutionary wars often need to do things that would be immoral in a peaceful protest, like taking up arms and seizing land to house troops on. If Occupy Wall Street is truly a peaceful protest, then it can't use revolutionary justifications for its behavior, and must restrain itself to legitimate tactics of peaceful protest in order to have credibility in pointing out wrongdoing in the system.
Does the Occupy movement have ethical credibility? Looking at the question both morally and legally, there are some clear historical precedents to help us judge the legitimacy of the movement as a force for social justice.
Legality and morality are separate issues that aren't always completely in sync. Civil disobedience refers to acts which are illegal, but still ethical. One historical example is when Dr. Martin Luther King organized protests that violated unjust segregation laws. The goal of the protest was to show that the laws were unjust and that the actions of the arrested protesters should not have been illegal. No one else's rights were violated in Dr. King's protests, and the protesters submitted willingly to arrest, acknowledging that although their actions were morally right, they were still illegal, and the state had a right to arrest them.
A different type of civil disobedience was shown in a recent protest against the Keystone XL pipeline, popularized by Daryl Hannah. These protesters blocked a sidewalk in front of the White House, then submitted to arrest, in order to create a media spectacle. The pipeline protesters were not trying to prove that the law against blocking sidewalks is an unjust law, they broke that law solely to draw media attention to their environmental cause. Because the law they broke wasn't unjust, they couldn't use the same ethical justification as Dr. King. Instead, they made sure that their violation of the admittedly fair law was purely symbolic, conducted in a safe manner respecting the social order, without genuinely violating anyone else's rights, just a token of disobedience.
The pipeline protesters sat in organized rows, symbolically "blocking" the sidewalk, but still leaving plenty of actual space for other people to pass, and being orderly enough that they could hear police instructions in the event of an emergency. They did not resist arrest, or characterize their arrests as unfair "attacks" against them. Because of this respect for other people's rights, and respect for the social order, the pipeline protesters' civil disobedience was still moral, even though the law that was broken was not an unjust one.
Illegal Occupier encampments and marches match neither of these well-known civil disobedience types. The laws that are being broken by Occupiers are not unjust. Camping, public health and traffic laws are completely fair, reasonable, and necessary to protect the rights and safety of all citizens, so Occupiers can't claim an "unjust law" justification for disobedience.
Occupiers' disobedience is also not just a symbolic token of lawbreaking with no real damage or danger. They physically use their massed bodies and personal possessions to completely block other people from traveling or using parks, and have done so on a daily basis for well over a month, with the intention of continuing to do so indefinitely. During their marches Occupiers are often so loud and disorderly that marchers in the back are not even aware of it when police interact with those in the front, and if an emergency arose there would be no way to relay vital safety messages to everyone.
OWS actions have many innocent victims. Travelers on the Brooklyn Bridge, and on other streets and bridges in Occupied cities, have been stranded, often for hours at a time. Thousands of people all over the country have been prevented from getting to work, picking up their kids, getting food, or otherwise going where they needed to go. In Boston, Occupiers' refusal to break camp meant several festivals were canceled, including a children's Pumpkin Patch Festival and a food drive for the needy. The illegal OWS camping and marching harm the general public as a whole, but especially children, who are most disappointed by not being able to use a park, most frightened when their parents are several hours late to pick them up, and most disturbed by exposure to screaming, disorderly crowds of adults acting without restraint.
Does the Constitution offer protection for these OWS activities? The Supreme Court has ruled that illegal camping is not constitutionally protected, and that park authorities have a duty to protect the integrity of the parks entrusted to them by the public. In every Occupation where people are camping in non-camping parks, their use of park grounds as living accommodations damages the parks and violates the rights of other people to freely use the space. Park rules against camping fall squarely in the category of reasonable time, place, and manner restrictions governing free speech, and do not violate the 1st Amendment, since protesters have the options of simply using one of the many available camping parks, if camping is vital to their free expression, or using non-camping parks to speak in as long as they do not attempt to set up living accommodations there.
Some Occupations have received special, temporary waivers from authorities to camp in non-camping areas, which raises a different set of ethical issues. Authorities charged with enforcing laws have a right to use their discretion in deciding which broken laws to prosecute. A traffic officer might decide to let a speeding driver off with a warning, or might choose to issue a ticket. This is a judgment call authorities are empowered to make, allowing them to react flexibly in preserving the social order and keeping the peace in their jurisdiction. Sometimes, for one reason or another, enforcing a law would cost the taxpayers more trouble than it would be worth, so lawbreakers get a pass.
The fact that some authorities have chosen to use their discretion to temporarily allow illegally camped Occupations to remain, in violation of laws and the rights of other citizens, does not mean that the Occupations are legal, or that they are ethical. This discretionary leniency can rightfully be revoked at any time, based on the authorities' evolving understanding of what will best serve the public. The Occupiers' violations of other people's rights remains unethical even if no legal charges are ever filed.
In America, the 14th Amendment requires that everyone receive equal protection under the law. If all previous protest groups have been required to obtain permits to march, obey camping laws, and limit their protests to a set timeframe, it would be a violation of the 14th Amendment for authorities to grant Occupiers special privileges exempting them from these requirements. Contrary to the Occupiers' complaints that authorities are violating the 1st Amendment by enforcing camping laws, it's actually Occupiers who are asking authorities to violate the 14th Amendment and give them privileges not available to other groups.
It's possible that activist groups who play by the rules and obey the law would be within their rights to sue Occupied cities for discrimination if city officials give privileges to Occupiers that were not given to anyone else. Then again, cities might be able to make a counterargument that since OWS has openly broadcast appeals for followers to obstruct police, saying they "won't allow" police to enforce the law, and since their physical protests are supported by cyber attacks on police databases, Occupiers are not in the same category of group as peaceful protesters, but are instead a type of organized gang, requiring different law enforcement approaches than those used for peaceful protest. These are questions courts and lawyers will have to sort out in the future.
At the moment, all we can be certain of is that in light of their numerous ethical violations and refusal to respect the social order necessary for rights to be available to everyone, Occupiers have no credible claim to being judges of wrongdoing. It is hypocritical for OWS to demand that banks or government officials volunteer to be more saintly than the law requires, while Occupiers themselves refuse to obey reasonable and fair laws, recklessly causing harm to their fellow citizens, damaging public property, and demanding unequal treatment under the law. Their message, should they ever articulate a specific one, is irrelevant. Why should we take public policy advice from people who consistently violate other people's rights? Who cares what bullies think?