By PETER GOSELIN
The Cool Justice Report
Does the constitutional guarantee of “the right of the people peaceably to assemble” still exist? Or is it, like other First Amendment freedoms, now protected only when practiced by those “artificial persons” known as corporations?
The movement that has sprung up around Occupy Wall Street and the hundreds of solidarity actions that it has spawned bring to the fore something deeply troubling. In lower Manhattan and in cities around the country, grassroots groups attempting to claim a public space in which to air their grievances are being pushed and shoved – and sometimes maced and arrested – off of the streets.
There's no question that in periods of social upheaval authorities have engaged in incursions on our right to assemble. In the labor battles of the early 20th century, the Industrial Workers of the World (IWW) would engage in “free speech fights” where activists would engage in soap box oratory, allowing themselves to be arrested, one after the other, til a town's jail was full of “wobblies.” When authorities had no choice but to empty the jail, the cycle would begin all over again. During the civil rights marches of the 1950's and 1960's, peaceful marchers were confronted with dogs, waterhoses, beatings and arrests. But over the years these battles created a history and a legal jurisprudence that appeared to cloak the right to peaceably assemble with the same dignity that we have given to the concept of free speech.
Since September 17, when Occupy Wall Street activists took up residence in Zuccoti Park in Manhattan, we have witnessed a wholesale assault on freedom of assembly. Although the Wall Street protest was, by its nature, intended to be public, visible and ongoing, and despite that it was well-organized and non-violent, New York City authorities took every opportunity to challenge and threaten the encampment. This culminated in an October 13 announcement that occupiers would have to be removed so that the park could be “cleaned.” While Mayor Bloomberg stated publicly that the protesters would be allowed to return, pamphlets handed out to participants in the encampment stated that they would not be allowed to bring in sleeping bags, tents, food, or equipment. In other words, the “occupation” could continue – so long as it didn't.
In other places around the country where actions have been organized in solidarity with Occupy Wall Street, police response has been even more dramatic. When Occupy Boston became large enough that it began to spill over from one public area into another, the police swooped in and arrested some one hundred protesters for the crime of sleeping overnight in a public place. In some smaller locations, the First Amendment has been swept away altogether: the city of Elkhart, Indiana prohibited protesters from carrying signs, distributing leaflets, and chanting or engaging in other forms of political speech in the park they are occupying. And although some cities such as Hartford, Connecticut, have struggled to find a modus vivendi with the Occupy activists, the Hartford Courant correctly noted that this approach was a “contrast” with the more common response from local officials.
Meanwhile, if we want to talk about a real contrast, it's the comparison of the treatment of Occupy Wall Street with the outpouring of support for commercial speech, the kind that turns public buses into moving billboards or name city landmarks after themselves, and for political speech by corporate “persons.”
Free speech means nothing unless we can access a public space in which to speak. It is a disturbing irony that American politicians who praised the Arab Spring protesters in Egypt are doing their best to stifle that kind of free expression here in the streets of our cities.
Peter Goselin is a labor and employment lawyer practicing in Hartford, Connecticut. As a member of the Connecticut chapter of the National Lawyers Guild, Peter has been actively monitoring the protection of the rights of Occupy Hartford protesters.