Our Unequal First Amendment Rights

UPDATED BELOW


Good Lord.  I woke up this morning to find David (There is No Spoon) Atkins reporting over at Digby’s joint on the NYPD’s clearing of Zucotti Park.  Atkins listed a number of incidents reported via twitter and I am sure that the story will become clearer as it progresses, but these reports struck me as paticularly creepy:

--  All media and press were not allowed within a block of Zucotti Park;

--Airspace over Zucotti was blocked by police helicopters and legally blocked to prevent any media coverage;

--Journalists gathered together to attempt to gain access were denied.  According to one report, one cop tore a press credential off a journalist, while another responded to a journalist’s claim to be press by saying “not tonight”;

--the Brooklyn Bridge was shut down until 6 am;

--Most subways and trains into downtown were blocked, including with cops at entrances.

Is there any doubt that L’il Mikey Bloomberg and his button men, the NYPD, intended to create a full media blackout here?  I thought this was something that we don’t allow happen in the United States of America, land of the First Amendment and home of the Bill of Rights.

For all that the Occupy movement has gotten more people talking about “inequality,” I think it is important not to lose sight of the fact that it isn’t just income inequality that is fraying the fabric of today’s American society.  We increasingly are being forced to confront the fact that “some animals are more equal than others,” and that in today’s United States if you are (i) poor and (ii) not a Too Large to Fail Bank (because even though they are actually insolvent, they nevertheless have a stranglehold on the levers of political power) then you are among the least equal in this country.

For example, while everybody knows that the First Amendment guarantees people the freedom to speak, the courts have determined that it also guarantees a certain right to be heard.  After all, the value of being able to speak – to communicate – is largely nil if the government has the right to stick you in a soundproof room and explain that you can rant all you want in there only. 

So recognizing a constitutional right to be heard makes sense, and it is this First Amendment right that courts are supposed to keep in mind when considering the propriety of any “time, place, manner” restriction on speech that is imposed by the government.

But the “right to be heard” is also the basis for opposing any restrictions on campaign contributions or otherwise restricting campaign financing.  It is the basis for the Supreme Court’s Citizens United decision, which declared corporations have the same First Amendment rights as people and that those rights may not be limited by corporate spending restrictions on political candidates.  So, to be clear, for corporations – who have the ability to and do express themselves by pouring huge sums of money into buying political ads – there is no effective limit on their right to be heard.

But how does the right to be heard apply to individual citizens?  Well, unless you are a Koch Brother, Rupert Murdoch, or otherwise part of the 1%, you probably don’t have the ability to pour millions of dollars into campaign ads, lobbyist fees, and the purchase of a fake news network.  So if you want to be heard, you pretty much are forced to do what ordinary citizens have always done:  assemble with others who share your point of view and lobby directly via protest.  And that is where your right to be heard is unequal to that of the rich and the corporate.

I’ve been arguing for some time now that – given the reality of the modern 24/7 news cycle – simply organizing a march or a rally, regardless of how big that march or rally ends up being, is no longer sufficient to effectively protest social policies/conditions.  No matter how many people show up to support your cause, once it is over it will simply be flushed down the media memory hole and they will move on to the next big story – like, say, the Penn State outrage.

No, in order effectively to be heard in today’s society you need to do precisely what the Occupy Wall Street protesters did:  create a permanent site of protest and simply refuse to go away.  The media won’t want to cover you . . . but eventually, they’ll have to.  The media will want to discuss other things . . . but they won’t be able to.  Today, a permanent protest may be the only means by which individual citizens can be sure to be heard in any way that actually matters.

Unfortunately, while this may be the new reality in American society, our legal, political and Constitutional systems haven’t quite caught up to this reality; in fact, given the increasingly unequal tilt of power toward the already powerful and the already rich, it may very well be that there is no political interest in having our system catch up to reality.

* * *

In their fantastic book Winner-Take-All Politics:  How Washington Made the Rich Richer – And Turned Its Back on the Middle Class, Jacob Hacker and Paul Pierson introduce a concept they call “drift” to explain rising income and wealth inequality in America.  Essentially, “drift” consists of the political system doing nothing to regulate financial innovations and new ways of doing business that funnel more and more money to a smaller and smaller number of people.  Hacker and Pierson argue that this isn’t the “free market” so much as it is our political system affirmatively deciding to let the already rich run amok.  To quote Rush (the band, not the blowhard):  “If you choose not to decide, you still have made a choice.”

A similar kind of “drift” is happening with our First Amendment rights.  We the People increasingly find that there is no public space in which to protest and voice grievances, and even if a scrap of ground can be found on which to do so the government reserves the right to determine how long that protest will be allowed to continue . . . despite the fact that continuing the protest is the only way for it to actually be effective.

Unfortunately, The Powers That Be know full well that they can usually get away with denying ordinary people their First Amendment rights by restricting – not the right of speech – but the right to be heard.  This is the reasoning behind the designated “free speech zones” at both the Democratic and Republican national conventions in 2004, and it is why L’il Mikey Bloomberg used his army of button men to establish a media blackout last night.

Because The Powers That Be understand that if a protest movement screams in a park, and no one is there to report it, the movement doesn’t really make a sound.

UPDATE:  Well, that didn't take long.  I was just getting out of the car when the news came on that the Occupy movement lost its hearing on whether it must be allowed to continue occupying Zuccotti Park.  The radio bulletin played a snippet of the city's attorney arguing that "they can go to the park, they can have signs, they can protest, but they don't have the right to appropriate the park for themselves."  (It's a question of fairness, you see, because apparently so many, many other people need to use the park too.)

So it looks like this is playing out exactly the way our system is designed for it to play out:  Sure you can protest, kids . . . just not in any kind of way that will do any good.  Thanks for being engaged . . . we'll get back to ignoring you now.