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.” 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.

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 accomplish their ends. Law is often perceived as a collection of the public’s moral sentiments, which derives much of its force through its public stature; in other words, 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 a law’s passage and ossification in the public sphere, it becomes an important marker, particularly 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 given those who are not sure if camping out in a semi-public park is appropriate more reason to choose not to 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.

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 within its right to do what they were doing, but the protests were successful because they showed the unjustness of that legal power. They were also events that were accompanied by images – images that gave the public a vivid representation of that very statement.

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.

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.

The passage of the anti-protest law in Quebec and the subsequent response to it show that law is, in fact, a weak form of social control. It also shows that, while law can be used to quash protest, the opposite can be true as well: Laws perceived to be unjust, combined with images that encapsulate that unjustness, can serve as a galvanizing force that makes a protest's message that much more effective.

-- JaredMiller - 26 Jun 2012

Another way of describing the conclusion would be that the purpose of these activities is to generate a message, while the purpose of the police is to generate order. "Legality" is a line between forms of disorder, and also between forms of policing. Where the disorder and where the policing are relative to that line changes from moment to moment, and isn't very important. How much energy is expended in the system matters to the amplification of messages.

Not only protesters' messages are amplified by the energy of collision. You might want to think about that more carefully.

Talking about law as a strong or weak form of social control seems odd to me here. Force is a forceful mode of social control. In your environment, order is produced using force, or the threat of force, every second. What is being "controlled" by this social control, moreover, isn't society. It's a message-generating system, made of social parts, including people. But its purpose is symbolic, like a theater troupe, not organic, like a village.

What you call "being infantilized" could be described another way, as "being normalized." When forces of social order don't turn on the amplifier by using confrontation, what has been a message-generator becomes instead a village. Instead of an army, there are forest rangers, and instead of a message machine, there's a sustainable natural resource.

There's more thinking to do about this. Adbusters is a magazine. It understands symbolic culture perfectly. Rupert Murdoch understands modern symbolic culture pretty well too. But the Net is changing the nature of human symbolic culture much faster than anything else in human history. It's really important to have been physically present in these places, and it's really important also to think about your experience in the broadest possible context, with the closest possible attention to the nature of Web culture and the changes in human communication wrought by the Net so far.

Eben, To be honest, I'm a little befuddled by your comments. What do you mean when you say "Not only protestors' messages are amplified by the energy of collision"? What do you mean by a "sustainable natural resource." I understand that the Net is important in all of this in that it works to amplify the images and the messages I'm talking about at a speed and velocity that we've never seen before, but I'm unsure what that says about the role of legality and confrontation in all of this. I've made some minor edits and would like to consider and incorporate your comments more fully, but I was hoping to get a little clearer idea of your thoughts before I proceed. Thanks, Jared.