It’s too soon to tell whether Occupy Wall Street’s drive to appropriate public spaces will entirely obscure its protests of economic injustice, but the dangers of its morphing into an ineffectual Occupy Whatever movement are already evident. Occupation is more exhilarating and instantly gratifying than the hard slog of advancing political and social change and, so far, one of the movement’s primary achievements has been a remarkable judicial ruling implying a new First Amendment right of occupation.
Public protests have long been subject to reasonable time, place and manner restrictions (as I discussed here). But a Superior Court judge in Boston has effectively enjoined the city from imposing routine time, place and manner restrictions on Occupy Boston and evicting the 24/7 occupation from a small square in the financial district, pending a hearing on 1 December.
What’s so remarkable - and, in my view, so remarkably wrong - about this order? It suggests that an infinitesimal percentage of the population may appropriate a public park indefinitely, to the exclusion of more than 99 per cent of the people the appropriators claim to represent. In Boston, the occupation hasn’t raised many practical problems of exclusion because the small square in which it’s based (Dewey Square) is relatively dead urban space. But what if occupiers grow in number and try to take over a heavily used park like the Boston Common, now host to a diverse array of political, charitable and recreational activities? Whose rights to occupy would take precedence?
Facts matter, of course, and it seems unlikely that the courts would allow one group to appropriate the Common indefinitely. But Occupy Boston’s legal arguments suggest a right to do so. The occupation is itself an ‘expressive’ First Amendment activity, Occupy Boston asserts. Occupiers are ‘creating a functional direct democracy to demonstrate the possibility of a more just, democratic and economically egalitarian society… The Occupy protesters’ 24 hour per day / 7 days per week actual physical occupation of a portion of the city in which they are located is a core component of the message of the Occupy Movement. They express their message through actual, physical occupation of a city through the establishment of a tent city.’
This is an interesting argument, but it begs for a limiting principle. What standard of review should courts employ in deciding if or when the rights of occupiers unduly infringe on the rights of others? Let’s consider just a few questions raised by Occupy Boston’s claim.
What if a group of Tea Partiers seeks to establish camp in the same space (Dewey Square) in order to demonstrate a contrary vision of community or communicate a contrary view of economic justice? What if the Tea Partiers also argue that camping in Dewey Square is ‘a core component of their message’ because of its location in the financial district? Private associations have First Amendment rights to formulate and control their own messages. So would Occupy Boston have the right to exclude the Tea Partiers, in order to prevent them from muddying its message, simply because they got there first? What if either Occupy Boston or the Tea Party or any other group decided to take over a much larger, more popular space, like the Boston Common, insisting that it was, after all, the only place in which their messages could effectively be conveyed?
What if a group of Christian nationalists set up camp in a public park and excluded all non-Christians from their encampment in order to demonstrate the possibility of a purified Christian America? What if they purposefully chose a park across the street from a mosque or synagogue, claiming that the location was essential to their message? What if a group of White Supremacists set up a tent city in a public space that admitted only white people?
If you believe that rights enjoyed by Occupy Boston should not be extended to the Christian nationalists and White Supremacists, among other private groups that discriminate based on race, religion, or other protected categories, then you’re endorsing content-based discrimination against speech - a fundamental violation of First Amendment freedoms. If the right to disseminate a particular message is contingent on popular or official approval of its content, then it’s not a right at all. It’s an unreliable, arbitrary privilege. Occupy Wall Street and its satellites are supposed to represent the interests of the unprivileged many; they should perhaps refrain from demanding occupational ‘rights’ that can only be extended to a privileged few.
Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) A version of this article was originally published by theatlantic.com on 18 November 2011.
Letter from America