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The Power of Law: The Problems of the Freedom to Assemble
-- By Main.JaredMiller - 16 Feb 2012 | |
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< | 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. | >
> | 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.” These actions were taken because Mayor Michael Bloomberg understood just as well as the protestors that it is not protest itself that effects change but the visual images that accompany protest and the meaning that those visual images import. | | | | |
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< | This makes an assumption
about how to understand the purpose of the Zuccotti Park event, and
about the meaning of the Occupy movement generally, which should be
articulated, so that it can be questioned.
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.
This graf seems to me to
ignore the fact that Zuccotti Park isn't public property. Aren't you
missing something in your analysis?
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.
You haven't shown that.
No one ever suggested, so far as I know, that the right to assemble
under the First Amendment proposed a substantive right to assemble on
other peoples' private property, or that it prevented government from
evicting trespassers who had a point to make. I don't think you have
any basis to argue that
Hague v. CIO
has disappeared, or that any change in the state of the
First Amendment has occurred here from where the Supreme Court
regrettably left matters almost thirty years ago in
Clark v. Community for Creative Nonviolence.
In theory, assembly in parks has long enjoyed an “exalted status.”
You are apparently
ignoring that the issue is not whether people can assemble in parks,
but rather whether living in the park is an expressive act protected
as "assembly" or constitutes conduct ancillary to expressive activity
that can be regulated independently. On that point, you might have
gained some advantage from Thurgood Marshall's dissent in Clark.
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.”
How can you quote from a
Supreme Court opinion by citing to a piece of political
editorialization on a website, and not to the opinion itself? How
can you responsibly talk about "parks" without distinguishing between
public parks and private ones? How can you cite Hague without
pointing out that the claim being rejected in the opinion you quote
is that public officials should have the same proprietary rights
over public parks that all parties in that case concede private
owners have over their own? This is grossly negligent treatment of
the relevant legal material.
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.
Shouldn't you be
pointing out that this is the issue discussed and disposed of by the
Supreme Court a generation ago? Once again, it may be that you
didn't find Clark because your research stopped with Googling,
which is unacceptable, or that you did find it but didn't read it,
which is unacceptable, or that you did read it but didn't mention it,
which is unacceptable. But there is no acceptable way for you to
discuss this situation without at least finding the most important
law in the area, with which your interpretation stands in apparently
naive contrast.
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> | This essay is an exploration of the mechanics of statement-making through the lens of Occupy Wall Street. I wrote previously that I thought the law’s weakness as a form of social control was overstated. I still think there is merit to the position that law is sometimes an important force in the way that it gives government officials an added authority to accomplishment their ends. Law is often perceived as a collection of the public’s moral sentiments, which derives its force solely through its public stature; whether or not a majority of people necessarily agrees with a particular law’s substance can often be overcome by the fact that the law exists in the first place. As a result of its passage and ossification in the public sphere, a law becomes an important marker especially for those who may be more-or-less ambivalent about the law’s implications. This, I think, is relevant for Occupy Wall Street; the fact that Supreme Court jurisprudence has put the law squarely on the side of the police has made it easier for those who are not sure if camping out in a semi-public park is appropriate to not rally to the cause of those being disadvantaged by the law in question. The buttress of the law, in the end, helped give the police some “moral” ground on which to stand. | | | | |
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< | 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. | >
> | But while I do think the law has some important implications for the effectiveness of protest, I also believe that in some ways I got that importance backwards. In the end, the high points of the Occupy Wall Street movement thus far – the events that ultimately did the most to amplify the statement it was making – were ones in which the law was imposed directly against the movement. The pepper-spraying of two young women on September 24, the arrests of 700 people on the Brooklyn Bridge on October 1 and the pepper-spraying of UC-Davis students – these were all events that directly helped the movement make the statement that power was being levied in an unfair way, through the apparatus of the government, against the weak and the peaceful. These were events in which the government was perfectly within its right to do what they were doing, but they were successful because they showed the unjustness of that legal power. And they were also events that were accompanied by images – images that gave the public a vivid representation of that very statement. | | | | |
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> | An implication of this dynamic is that protest actually requires illegality to be effective. When the Occupy Wall Street protests started, I participated in quite a few. I also traveled to Washington, DC, and witnessed some of the related protests going on there. The contrast was marked: In DC, where the police rarely confronted protestors and allowed them their space, the protests became infantilized. The lack of confrontation took the tension out of the air, robbing the protests of their effectiveness. In New York, on the other hand, where police have been trained as a paramilitary force designed to wage conflict against protestors, the animosity is palpable. There is very much an us-against-them feeling that gives the protest – and, as a result, the protest’s message – an added significance. | | | | |
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< | -- JaredMiller - 16 Feb 2012 | >
> | The recent growth of the student protests in Quebec is also illustrative. They attracted substantial numbers from the beginning, but their popularity and force outside of Montreal-based students spread in part because of a law passed by the legislature requiring advance notice to police of any protest of more than 50 people. Protestors’ fight against that law, seen as draconian by many, galvanized the greater population; that fact, combined with videos of protestors banging on pots and pans, allowed the protest’s message to gain steam. | | | | |
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< | Fix the legal problems
first. Then decide whether the proposition about assembly in the age
of the Internet—that only physical gathering counts—is
correct, considering at least the possibility that it is actually
precisely backwards. | >
> | The passage of the anti-protest law in Quebec and the subsequent response to it show that law is a weak form of social control. It also shows that, while law can be used to quash protest, In the context of statement-making, protestors can use law | | | | |
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> | -- JaredMiller - 16 Feb 2012 |
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