Why the First Amendment Won’t Protect Occupiers

Posted on Nov 16, 2011

Timothy Krause (CC-BY)

By Bill Blum

From Oakland to Chapel Hill, from Portland to Zuccotti Park, the message to the Occupy movement is clear: It’s time to fold up your tents and retreat from the public square or be carted off to jail.

From coast to coast, protesters have responded to the edicts with largely passive physical resistance and, in some cities, court challenges rooted in the First Amendment and animated by the popular mythology surrounding the amendment’s depth and reach. The movement, we’re told, is shielded by the rights of freedom of speech and assembly and those rights trump whatever interests (whether legitimate or feigned) that municipalities may have in maintaining public health and safety.

It’s impossible at this early stage of the crackdown to predict how each local legal case will play out. Depending upon the precise wording of city ordinances, state statutes and the manner in which police raids are conducted, the Occupiers may score some litigation victories, such as the short-lived temporary restraining order issued by a state court judge after the early morning police attack Tuesday on Zuccotti Park in New York City. But most of the legal challenges are likely to end in defeat, as occurred in New York when another judge ruled after a lengthy hearing that the overnight camping must end even though protesters may return to the park.

Those who believe the courts will come to the rescue with long-term comprehensive First Amendment remedies for the Occupy encampments are buying into a legal myth not unlike the economic myths of income fairness and equal opportunity the movement has done such a good job thus far of exposing. As Columbia Law School professor Theodore M. Shaw said in a paraphrase in an International Business Times article earlier this month in commenting about the movement’s legal tactics, “... there is a cultural assumption in the U.S. that First Amendment protections are broader than case law suggests.”

It’s easy to see where the assumption comes from. The wording of the First Amendment seems absolute: “Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Since at least 1925, the U.S. Supreme Court has held the amendment applicable to states and local governments. (See Gitlow v. New York, 268 U.S. 652.)

Many people believe it’s only a matter of time until the judiciary rules on appeal or in another case against New York City Mayor Michael Bloomberg and his counterparts across the nation, and the movement’s tents will be back in place for the duration of the economic crisis.

Except the mythology has it wrong. Given the increasingly conservative bent of the American justice system, the Occupy movement may wind up not only disillusioned but making the case law on the First Amendment even less receptive to sustained political protest than it is at present.

When it comes to street demonstrations, the courts have never regarded First Amendment protections as absolute. First and foremost, it has long been held that government can impose “reasonable” content-neutral limits on the time, place and manner of protests. In addition, courts have tailored the degree of First Amendment protections available to protesters according to the nature of the public forum or space in play. Protests at venues characterized as traditional public forums such as municipally owned and operated parks have been given the greatest degree of legal protection and scrutiny, with lesser degrees of protection accorded to protests at nontraditional forums like Zuccotti (which is privately owned but by law open to the public).

And the final say on what’s reasonable, neutral and appropriate even in a traditional public forum isn’t up to popular movements or their attorneys to decide but rests in the hands of a mostly white, mostly male and, as regards the federal bench, a lifetime-tenured and mostly Republican set of judges who by age, lifestyle, training and political experience usually are worlds apart from those taking to the streets.

The Zuccotti Park legal challenge isn’t the first time overnight camping has been tested on First Amendment grounds. In the 1984 case of Clark v. Community for Creative Non-Violence, involving the National Park Service’s decision to prevent advocates for the homeless from sleeping in Lafayette Park across from the White House, the Supreme Court recognized camping as a form of “expressive conduct” under the First Amendment. But in a 7-2 ruling, the court upheld the overnight ban as a reasonable time, place and manner restriction. (See 468 U.S. 288.)

The lone dissenters in Clark—Justices William Brennan and Thurgood Marshall—were jurists without equal on today’s high court. They were the last of the court’s liberal lions, and their passing marked the end of an all-too-brief era of progressive jurisprudence and a return to an older and mean-spirited pro-business, law-and-order outlook.

Could anyone seriously expect the current court, run by Chief Justice John Roberts and featuring the likes of Clarence Thomas and Samuel Alito, to overturn the Clark decision should a Zuccotti-like suit ever get that far? Even the court’s Democrats would probably balk. Indeed, in a 2002 case that offers a possible foreshadowing, Barack Obama appointee Sonia Sotomayor, at the time a judge on the 2nd Circuit, joined in an opinion denying the Hotel and Restaurant Employees Union permission to set up pickets in the plaza outside Lincoln Center in Manhattan. The plaza, though privately managed by Lincoln Center, was publicly owned. In so ruling, Sotomayor and her colleagues endorsed the center’s policy of limiting the plaza to “artistic and performance-related events” as content-neutral and reasonable. (Hotel & Rest. Employees Union v. New York Dept. of Parks, 311 F.3d 534 [2002])

Given the sorry state of the law and the unfortunate direction of the courts, it should come as no surprise that the Occupiers lost the legal battle to keep their Zuccotti encampment. It wasn’t wrong to turn to the courts. Litigation has been and always will be a basic component of any movement for progressive social change. But popular mythology aside, it’s seldom the leading component and rarely a substitute for the long, hard slog of collective political action that has been Occupy’s hallmark.

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