Friday, December 2, 2011

Occupy Wall Street: The 1st Amendment is NOT Your Permit

For two months now, many Occupiers and their supporters have repeated "The First Amendment is our permit!" to explain why they reject applying for parade or camping permits for their demonstrations, instead marching into busy streets with no warning, and camping in parks for as long as they wish without following any health or fire codes.

Occupiers believe that all local laws and regulations are "trumped" by the 1st Amendment, and therefore anyone who tries to break up their camps or clear their marches from streets is conspiring to deny them something they are entitled to by the highest law in the land.

Occupier beliefs lead to conspiracy theories

This belief in a constitutional right to block traffic and camp in parks is the root cause of the recent dissension over Naomi Wolf's virally popular article accusing the federal government of directing a crackdown on Occupy camps in an attempt to crush the movement.  Ms. Wolf speculates that Congress has a motive to silence OWS, because Occupiers recently began expressing anger over some Congressional financial trading that is legal, but widely viewed as unethical.

Essentially Ms. Wolf believes Congress feels so threatened by the potential loss of this trading revenue that they abused their oversight authority and usurped executive branch power to give direct orders to a law enforcement agency for the purpose of silencing the free speech of American citizens.

This is quite a shocking and serious allegation from Ms. Wolf, and AlterNet's Joshua Holland stood up for basic journalistic integrity by pointing out that Ms. Wolf has absolutely no evidence to support her theory, aside from reports that federal law enforcement agencies gave advice to local city police on the latest "best practices" for dealing with crowds.  Mr. Holland pointed out that this type of advice and consulting happens all the time in law enforcement, and is not evidence that anyone in Congress or any other part of the federal government had an ulterior motive of any kind.

This debate went on for another round of articles by Ms. Wolf and Mr. Holland amid a general firestorm of blogs weighing in for one side or the other.

Reader reactions to Mr. Holland's original article demonstrate the widespread belief among Occupy supporters that OWS's actions are not crimes, but are expressive conduct protected by the 1st Amendment.  Since Occupiers truly believe they are not doing anything legally wrong, their only explanation for cities closing down their camps is a conspiracy to silence their message.

Occupy supporters replying to Holland's article genuinely did not care whether DHS merely advised local police on best practices or unscrupulously commanded local police to act for a greedy ulterior motive, because they reject the very idea that any law enforcement at any level has a valid legal right to clear camps or stop Occupiers from blocking streets.

Is Occupation a right?

There is more to the Constitution than just one amendment.  OWS can't claim protection from one part of the document but ignore the rest of it.  Article III is just as valid as the 1st Amendment, and it says:

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
This means that we do not interpret laws on our own, then band together with those who self-affiliate with our view, and proceed to act as if our consensus interpretation of law were the legally-binding opinion on it.  Instead, we appoint judges, experts whose job is to interpret laws impartially, and we are all bound by their decisions equally.

We're free to change the laws anytime we like, just by voting in people who support our proposed changes, and we can even change the Constitution either through Congress or directly by Constitutional Convention, but for the existing laws at any time it is the judges who decide what the law means.  In the case of the Constitution, the Supreme Court has absolute authority on interpretation.

What does SCOTUS say about the activities that Occupy Wall Street groups have engaged in nationwide?  It turns out this is not the first time anyone has thought of these tactics, and there is a long series of opinions from the Supreme Court about exactly the kinds of activities OWS claims are its constitutional right.

Blocking traffic and entrances

In 1965 the landmark free speech case Cox v. Louisiana overturned a civil rights protester's conviction because the law that he was accused of violating was unfairly vague.  This upheld the important principle that local permit and traffic laws must be fair and specific, so everyone can understand exactly what is and isn't permitted on the streets.

The decision also affirmed the principle that disrupting the lives of others is not in any way protected by the 1st Amendment, no matter how much protesters feel that would be expedient for their cause.

Here's what SCOTUS has to say about the idea that the 1st Amendment is your permit to march wherever and whenever you feel like, ignoring local laws:

The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. See Lovell v. Griffin, supra, at 303 U. S. 451Cox v. New Hampshire, supra, at 312 U. S. 574Schneider v. State, supra, at 308 U. S. 160-161;Cantwell v. Connecticut, supra, at 310 U. S. 306-307; Giboney v. Empire Storage & Ice Co., 336 U. S. 490Poulos v. New Hampshire, supra, at 345 U. S. 405-408; see also Edwards v. South Carolina, supra, at 372 U. S. 236
 [emphasis mine]

Okay, blocking streets and buildings is right out.  What about camping?  

SCOTUS settled this in 1984 with Clark v. Community for Creative Nonviolence.  This case quoted a definition of camping as digging holes, erecting structures, placing bedding on the ground, storing personal items, cooking, and generally using an area for living accommodations, all of which Occupiers are clearly doing at their camps.

The Court found that since these activities damage parks and prevent other people from using the shared space as it was intended to be used, it is constitutionally acceptable to ban camping in a park, as long as the rule is the same for everyone who wants to camp:

Damage to the parks, as well as their partial inaccessibility to other members of the public, can as easily result from camping by demonstrators as by nondemonstrators. In neither case must the Government tolerate it. All those who would resort to the parks must abide by otherwise valid rules for their use, just as they must observe the traffic laws, sanitation regulations, and laws to preserve the public peace. This is no more than a reaffirmation that reasonable time, place, or manner restrictions on expression are constitutionally acceptable.
 [emphasis mine]

Occupiers claim a precedent

Occupiers justify their behavior by citing a case which they claim proves that camping in parks is a protected right.  In 2000 a federal district court ruled in Metropolitan Council, Inc. v Safir that "symbolic sleeping" was a protected form of expression.

How similar is symbolic sleeping to Occupy Wall Street's tent cities?  Not very.  Here's what Metropolitan protesters asked for a permit to do:
The vigil participants will lie side by side, perpendicular to the apartment building on this block, covering no more than half of each sidewalk's width. The sidewalk along East End Avenue is sixteen feet wide; the sidewalk along 88th Street is fifteen feet wide. The protesters have agreed to occupy only 7.5 feet of each sidewalk's width. The protesters will thus leave clear for pedestrian use about half the width of each sidewalk (8.5 feet of width along the East End Avenue side, and 7.5 feet of width along the 88th Street side). The length of the area to be covered by the bodies will not exceed 75 feet (three feet per person). Plaintiff will not block either of the entrances to the apartment building, entrances that are located approximately 60 feet north of the intersection and 170 feet to its west. Plaintiff will regulate the conduct of vigil participants by providing event marshals who will ensure that participants stay within the designated space, coordinate their activities, and respond to any emergencies. During the vigil, its purpose will be communicated by signs and printed literature.
 [emphasis mine]

The protesters in Metropolitan acknowledged that their protest had no right to disrupt the lives of others by even blocking a sidewalk, let alone a road or an entire park.  They acknowledged the right of the city to issue permits in the first place, instead of claiming such permits are unconstitutional.

Because of this basic respect for other citizens' rights, and for the social order necessary to make rights available to everyone, the protesters in Metropolitan won and got permission to do their symbolic sleeping demonstration, which was limited by the permit to a specific time frame.  This is nothing like the Occupiers, who block streets, stores, bridges, and ports, refuse to disperse when asked by authorities, and say they will continue their actions indefinitely, or until someone forces them to stop.

Were Occupiers misled about the law?

Occupiers originally acknowledged that the type of activity protected by Metropolitan, taking up no more than half a sidewalk without erecting structures or using park space, was all they had a right to do.  The original "US Day of Rage" flyer clearly warned participants that symbolic sleeping was the limit of legal activity, and that the type of tent cities which eventually emerged in Zuccotti Park and elsewhere were not protected as "symbolic sleeping."

However, this flyer also contains the seeds of the current Occupier rejection of all "time, place, and manner" restrictions as unconstitutional.  The flyer asserts that our current government, in its entirety, is completely corrupt, and thus illegitimate, and that Occupiers are exercising the powers asserted by the American Founders to throw off a tyrannical government:

If the NYPD kettle or blockades every PUBLIC street in Manhattan, Queens, Brooklyn, or the Bronx, they only reveal what we at US Day of Rage already know: Our government is corrupt, its powers are in the hands of treasonous and tyrannical forces, and, together, WE THE PEOPLE will prevail.

The American Revolution is alive and well. It's a group of non-violent citizen nobodies who believe in the radical notion that Americans have a right to freedom of speech and the right to peaceable assembly, in deed the right to engage in politics through free and fair elections unsullied by disloyal, incompetent, and wasteful special interests that are destroying our democratic republic and preying on the resources and spirits of citizens. 

[emphasis in the original]

Left's Tea Party? Or live-action roleplay gone horribly awry?

I have to wonder how many Liberal pundits who've been championing OWS ever read that original USDOR flyer, which was one of the main promotional  statements for recruiting the first Occupiers over the internet, before any mainstream news or progressive organizations picked up the story.

Perhaps if political analysts had read the flyer, they wouldn't be at such a loss to understand why OWS won't move on from the "camping phase," or why Occupiers think DHS advising city police on how to deal with an unruly crowd is just as diabolical as Wolf's theory of Rep. Peter King abusing his oversight in order to command DHS agents to protect his private gravy train by "silencing the movement."

Occupiers aren't just mad about the economy, they also see themselves as asserting the sovereign people's right to overthrow tyranny, and thus as justified to act outside the framework of laws that other protesters have to follow.  That idea is never going to win the hearts and minds of centrists, moderates, or reality-based people of any kind.  The idea of fighting an overarching, all-powerful conspiracy and forcibly "taking back America" for "real Americans" or "the 99%" is just as creepy a fantasy scenario coming from the far left as it is from the far right, and it has no place in our political discourse.


  1. Rosa Parks broke the law too, you stupid bitch! As did George Washington, and I'm betting some people involved in women's suffrage and the whiskey rebellion too. Get some fucking perspective.

  2. Anonymous, you personify the exact person I described above, someone who sees OWS as an epic struggle equal in justification and nobility to that of America's Founders themselves.

    Your battle over the nonexistent "right to camp and block traffic" is, in your opinion, every bit as worthy as the fight for civil rights. You're so passionate about this you're unable to refrain from swearing and using insults if you see anything disparaging your Cause.

    The rest of the nation isn't interested in a revolution, and we already have broad rights and a working internet over which to coordinate political strategies, organize precinct-level activities to gain influence in parties, pool resources for voter drives, and push agendas for change, plus the right to put on physical demonstrations as long as they follow reasonable safety rules.

    Basically, there's no "there" there, in your cool story about living in a police state. OWS arrestees get citations, not indefinite detention in a gulag.

  3. The whiskey rebellion, eh? Might want to read up on that one before you use it as an example.

  4. "stupid bitch" <--- this from the same movement that told female rape-victims to can it about getting raped because reporting rape is "snitching". That was it for me.

  5. So if I'm to understand this correctly, the entirety of this post has to deal with the legality of camping and marching without permits and the fact that the First Amendment doesn't give protestors the right to break those other laws?

    May I recommend Thoreau, Tolstoy, Gandhi or even Jesus to you Reverend Magda?

    To spend time dismissing Occupiers due to the legality of the protests while THOUSANDS spend time trying to figure out how to fight greed, corruption, foreclosures, illegal war, torture seems shortsighted. Or depressing. But by all means, please continue to be right and back it up with wonderful evidence,

    Chapman Clark

    "To sin by silence when they should protest makes cowards of men." - Ab Lincoln
    I don't have to insult you Reverend Magda, I'll let Ab do it

  6. Dear Reverend, I must say, initial impulse is certainly to insult you, but that goes no where. Intelligent discourse is far better to me.

    Based on your very well put together article here, which utilizes legality to expose your opinion, you have failed to identify a very important aspect.

    If laws are formed, upheld and enforced via corruption, then there is NO legal way to fight it. Clearly since a coporation can take a life insurance policy out on an employee, then place the employee in an unsafe working environment, and then collect the insurance without the employees family knowing upon the employees death due to work related issues, and this be legal with zero chance of doing anything about it, well we have a genuine problem. One that makes it so we cannot effectively solve it.

    Your article suggests that calm, organized action that the system approves of will result in change. Tell me, did slavery end calmly? Did black people get their just rights calmly? Did women get their rights by holding permitted seminars and kissing the ass of the system?

    I think not.

    I also think that either your life is extremely comfortable and you truly do not feel the struggle that so many millions, actually billions of others do... or you knowingly have written a distraction to a true movement.

    As much as you are right about the legal issue of camping in a park, this remains...

    Here on Earth, we live on the only known planet to support life. This is our only home. We are born into this world without strings. Societies and injustice push people into extreme situations that result in every calamity known to our kind, with two exceptions. Natural disasters and filthy greed.

    So it doesn't matter that you are right about the legalities, what would be much more entertaining and good for the world would be if you focused your writing on the beauty of people uniting across every cultural and racial boundary under this cause. The fact that this is global, forming a true global society based on moral values and ethical means. Compassion.s

    Human beings do not need a legal frame work to be right about something in either action or idea. We are born free and we die free. The only time we are not free is when we are under the rule of someone else. The only way we get there is through a lack of education or, in this case particularly, silly pointless misdirection information that detracts from real issues.

    I would love to see you write an article detailing about how the "Occupiers" are very right about many things, and that time is running out and they are the courageous people stepping up to do something about it.

    Pretty soon R. Magda a corporation will own your DNA. They will own your DNA. Let me be very clear... THEY WILL OWN YOUR DNA. That is the point when there is nothing that can be done, it must not reach that point.

    You may turn your nose up at conspiracy theories but I encourage to look up the real meaning of conspiracy, and perhaps also once thought whacky conspiracy theories that turned out to be very true.

    We do not live in a happy wonderland of democracy, just because you access to internet today doesn't mean someone won't take it away tomorrow. You must be privy to the fact that as long as there is massive greed present, your rights are at stake, greed does not rest until it has convinced itself that nothing can take away it's power. That is why the occupation stands against even the very laws upheld by the supreme court. These laws prevent a true movement from happening, a good movement, a historical socially conscious movement that the world has never seen before.

    Failure to recognize this is a failure to humanity, a failure to your family and friends and ultimately a failure to your very own god given rights as a creature on planet Earth.

  7. I don't think you are a stupid bitch Mags but you do seem to be going to great lengths to nitpick silly details lately while missing or ignoring the movement's undeniable message about corruption.

    When injustice becomes law, resistance becomes duty - Thomas Jefferson

  8. Yes she does. It's like watching a religious person with a quantum physics degree try to "prove" there is a god by discussing quanta interaction. Total reaching, no big picture whatsoever.