We Have a First Amendment Right to Protest, So Why All These Arrests Around Occupy Wall Street?

On Saturday night, 175 members of Occupy Chicago were arrested after refusing to comply with a curfew the city had imposed on Grant Park. According to In These Times editor Joe Macaré, the arrests took place “one by one, and by all accounts as peacefully as possible.”

It wasn't such an orderly process in New York. Allison Kilkenny reported for the Nation that “what unfolded [on Saturday] was a dramatic confrontation between the NYPD and protesters in which individuals were almost mowed down by police motorcycles, nearly trampled by horses, and ultimately ninety-two activists were arrested.”

In cities and towns across the country, 1,500 American citizens have been put in cuffs in the first month of the Occupy Wall Street movement. While a small handful of them have been charged with various acts of mayhem, the vast majority were peacefully demonstrating. They were arrested for not complying with orders to disperse, or for refusing to tear down the encampments that have come to symbolize the movement. We have a right to peacefully assemble and protest in this country, so what gives?

On its face, “occupying” public space should be guaranteed under the First Amendment. The courts have long held that “expressive activities” are accorded the same protections as the right to speak or freedom of the press. The classic example is flag-burning – a person may not be saying anything when he or she lights up a flag, but it is nonetheless a form of political expression protected by the Bill of Rights.

Michael Ratner, president of the Center for Constitutional Rights, told AlterNet, “The tenting, the camping, the tarps, the patio polls, the cooking — all of that is part of the political expression of Occupy Wall Street. That’s what it embodies. This is not a one-day demonstration. This is saying, 'We will occupy, we will stay here as part of our political expression until things change.' I think it’s embodied in the protections afforded by the First Amendment.” He added: “How can you occupy unless you have tents and sleeping bags to protect people from the elements?”

The First Amendment's guarantees are not, however, absolute. The government is able to determine the appropriate time, place and manner for citizens to speak their mind, as long as those restrictions are based on maintaining public order and aren't designed to prevent a particular message from getting out – any and all restrictions must be “content-neutral.” And whatever restrictions are placed on our right to dissent must be tailored as narrowly as possible to maintain that order. The state can't place limits that effectively leave no outlet for citizens' expression.

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As Christopher Dunn noted in the New York Law Journal, two recent cases highlight how the courts have dealt with this tension. In Clark v. Community for Creative Non-Violence, the Supreme Court affirmed a decision by the National Park Service to bar protesters from camping out on the National Mall because, in Dunn's summation, “the sleeping was less symbolic and more intended to facilitate participation in the protest.” The court recognized that preserving the mall was a legitimate government interest, and that barring protesters from sleeping on it was a narrowly targeted means of achieving it.

In New York, another case, Metropolitan Council Inc. v. Safir, centered on issues that appear to be more similar to those presented by the occupation movement. In 2000, homeless activists held a candlelight vigil next to Gracie Mansion “to be followed by protesters sleeping on a public sidewalk across the street once the park closed to symbolize the risk of homelessness.” Although New York didn't have an ordinance against sleeping on sidewalks, the NYPD didn't allow people to do so, claiming that it blocked pedestrian traffic and constituted disorderly conduct. Judge Kimba Wood ruled on behalf of the protesters, noting that the act of sleeping outside was itself an expressive activity, that the protesters had pledged to take up only half of the sidewalk, leaving room for pedestrians, and that a complete ban wasn't narrowly tailored to uphold the city's legitimate public interests. She called the ban, “utterly unnecessary.”

Another issue underlying these widespread arrests is what, exactly, constitutes “legitimate government interests.” According to Ratner, “A lot of general ordinances are being used illegally. They're using general statutes that are very vague, and subject to a cop's own feelings.”

He noted that the vast majority of those arrested in New York were charged with disorderly conduct, a statute that prohibits people from making “unreasonable noise,” obstructing “vehicular or pedestrian traffic,” or congregating “with other persons in a public place” after receiving “a lawful order of the police to disperse.” Ratner notes that most of these “arrests won't stand up,” but, in the words of former police chief John Timoney – the architect of what's come to be known as the Miami model of aggressive crowd control – “you can beat the wrap, but you can't beat the ride.” In other words, activists subject to arrest may have their cases thrown out of court, but not before being taken off the streets for a period of time.

There are also questions about whether these ordinances are truly content-neutral. At the site of Occupy Wall Street, rules are being put into effect “after the fact,” says Ratner. “In New York, there were a bunch of regulations issued around Zuccotti Park once the occupations got underway. No camping, no tarps – that already tells me that there's a question here about whether these rules are truly neutral. It looks like they're specially tailored toward the people doing the occupation.”

Another question is whether these myriad ordinances are narrowly tailored. On its face, in the context of a political movement premised on occupying public space, passing or enforcing laws that forbid any manner of occupation appear to be overly broad. The courts have long ruled that the exercise of our First Amendment rights justifies some minor inconvenience to the public.

“If you look at the history of these kinds of regulations of public spaces,” says Ratner, “even though they should be the preeminent place for dissent in this country, they are loaded with regulations essentially intended to limit dissent.” Ratner predicts that most of the cases brought under these kinds of restrictions won't lead to convictions, but in all likelihood the underlying issues also won't be subjected to judicial review.