The Power of Law: The Problems of the Freedom to Assemble

-- By Main.JaredMiller - 16 Feb 2012

At 1 a.m. on November 15, hundreds of New York Police Department officers stormed into Zuccotti Park and forcibly removed the 200 or so Occupy Wall Street protestors who had been sleeping in the park for the last two months. The raid wasn’t carried out in the dead of the night “to minimize disruption to the surrounding neighborhood,” nor were journalists and legal observers kept away from the scene so that police could provide them with “protection.” Since that night and the subsequent issuance of an injunction barring protesters from bringing tents and sleeping bags into the park, the movement has largely dissipated, removed from the headlines and the public eye. Occupy’s ideas are no doubt still having an effect on the election and on the national conversation, but the movement’s dream of being a transformative force on our society seems to have died with the death of the occupation.

In class, we’ve heard again and again that “law is a weak means of social control.” For the most part, the travails and triumphs of Occupy Wall Street seem to have proven Eben right. When Mayor Bloomberg decided to use the world’s seventh largest army to remove the protestors from Zuccotti, he wasn’t successful because the law had changed. From the Occupation’s first day onwards, Bloomberg had the “legal right” to remove the protestors: The Supreme Court’s allowance for reasonable “time, place and manner” restrictions made it obvious that, under current law, removal of the protestors from the park was legally justified. But for two months, Bloomberg chose not to act on that power, constrained by a public that overwhelmingly supported the protests and by a wide swath of technologies that made eviction difficult without widely-publicized police brutality going viral.

But the fact that, in the end, Bloomberg, along with dozens of other mayors across the country, was able to quite easily evict the protestors and seriously impede, if not destroy, the progress of the movement tells me that law is still a powerful and (sometimes) threatening force in our society. It was interesting to see how much Bloomberg clung to the law in justifying the action. “The First Amendment protects speech,” he said in a press conference following the raid. “It doesn’t protect the use of tents and sleeping bags to take over a public space.” For public officials like Bloomberg who are confronted with a situation that presents multiple courses of action, the law serves as a life raft: Yes, the current of public opinion is a strong one, but the law is something you can grasp onto, even when the tide is not running in your favor.

What does this mean for our right to assembly and, more generally, the state of our democracy? First, that officials (and judges) will engage in Holmes’ post-hoc rationalization and justify the quashing of public assembly in terms of vague “health and safety risks.” More broadly, however, and more dangerously, it means that the way in which the Supreme Court conceptualizes the “freedom of assembly” has become seriously outdated, a relic of a bygone era. Today, our right to assemble is a completely hollow right in the same way the 14th Amendment’s promise of “equal protection” did so very little for America’s blacks in the 100 years leading up to the Civil Rights movement.

In theory, assembly in parks has long enjoyed an “exalted status.” In 1939, Justice Owen Roberts voiced the right with the following words:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”

Roberts’ language conjures up image of Roman public squares, spaces where each and every man had the opportunity to be heard and influence the political process. It’s an image that those who argue that we still have strong protections for assembly and speech still cling to, but it’s an image that is far divorced from the present reality. As this New Republic piece points out, our “right” to assemble really consists of a long, difficult and complex permitting process that includes pre-approval and licensing and insurance fees. It also includes new “expressive zoning,” areas cordoned off by police, who only permit marching, sign-waving and shouting within those specific areas. In this day and age, that’s not good enough. We’re too fractured of a society with too many people with too little in common. Having the occasional protest with mandated “time, place and manner” isn’t sufficient to give the right of assembly any meaningful power in a country with a lightning-quick attention span and a hyperdrive-paced news cycle. A sustained presence seems to be the only real counterweight to the status quo, but our current right to assembly doesn’t reflect that. Instead, we just get a system designed to allow those in power to check the box of “freedom of assembly” without being threatened in any meaningful way by those doing the assembling.

Because that’s the point of the freedom of assembly in the first place. We have always lived in a society in which powerful interests hold hugely disproportionate sway over the policymaking process. That has never been more true than it is today. The freedom of assembly is supposed to be the great equalizer, the one tool that allows the 99% to balance the playing field against the 1% and influence politicians with their voice instead of their money or their connections. Many will say that the Internet makes the in-the-streets type of assembly obsolete. But there is a real and important power in the visceral nature of physical protest that I don’t think Internet organizing will ever reach. Now, we just need a real right to assembly that makes effective physical protest possible once again.

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-- JaredMiller - 16 Feb 2012