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. 451; Cox v. New Hampshire, supra, at 312 U. S. 574; Schneider 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. 490; Poulos v. New Hampshire, supra, at 345 U. S. 405-408; see also Edwards v. South Carolina, supra, at 372 U. S. 236.
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.
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.
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.