On Wednesday, Superior Court Judge Frances McIntyre issued an Order finding that Occupy Boston’s continual occupation of Dewey Square is not protected First Amendment activity. This clears the way for the Boston Police Department to start evicting Occupy Boston from Dewey Square.
I used to clerk for a federal judge, and so I have some hands-on experience in the crafting of Court Orders. Having reviewed Judge McIntyre’s ruling, I’d describe it as clearly a “results oriented” decision. That is, it is apparent that Judge McIntyre intended from the beginning to find that Occupy Boston could be evicted from Dewey Square, and was simply searching for a rationale to support that foregone conclusion. The logical inconsistencies and the circular reasoning in her opinion give the game away.
As an Order denying a Motion for Preliminary Injunction, the real meat of the Court’s decision is found in Section I of the Legal Discussion, pages 10 – 21, in which the Court determines that Occupy Boston is unlikely to prevail on the merits of its First Amendment claim. The way the Court comes to this conclusion is . . . interesting.
(1) The Court Concludes That Occupy Boston’s Activities Are Protected First Amendment Speech – In Section I(B), the Court does find that Occupy Boston’s living activities constitute protected speech under the First Amendment. Having previously noted that Occupy Boston’s specific message is that “a more just, democratic, and economically egalitarian society, responsive to people rather than corporations, is possible” (p. 6), the Court goes on to find that
[Occupy Boston’s] actions at Dewey Square are consistent with that message. The setting up of tents, sleeping overnight, eating, and meeting in their General Assembly are all demonstrative and expressive of the democracy they claim to be creating. Within the presentation of the case that has been made to me, this court can only conclude that those activities are communicative of the exemplar democracy they wish to convey. (p. 16) (emphasis added)
The Court then goes on to find that the message intended to be conveyed by this expressive activity is readily understood by Occupy Boston’s audience. The Court goes even further by ruling that whether Occupy Boston’s activities offend or annoy others is of no legal effect. “‘It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’” (p. 17) (quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)).
So far, so good.
(2) The Court Concludes that Occupy Boston’s Activities Are Not Protected First Amendment Speech – wait, what!?
Notwithstanding that in Section I(B) the judge found that what Occupy Boston is doing – setting up tents, sleeping overnight, establishing a non-hierarchical, horizontal system of self-rule – is manifestly protected free speech, in Section I(A) the judge also found that the same activity is not protected free speech. The judge does this by drawing an artificial distinction between Occupy Boston’s “activities” and its “occupation.”
Occupy Boston argued that the movement’s “message of economic equality and more perfect democracy can only be effectively communicated through the ‘literal occupation of Boston in the financial district,’” and “that ‘the occupation is the message.’” (p. 11). Given that the judge had determined that the very same activities that constituted the “occupation” were protected free speech, this should have been a no-brainer. I mean, if raising my right arm until its upper length is parallel to the floor, bending it at the elbow, and bringing my outstretched but tightly grouped fingers to my temple constitutes free speech then – obviously – so does “saluting.”
But Judge McIntyre has a more, shall we say . . . Platonic understanding of expressive activity. She distinguishes between everything that merely constitutes occupation and “occupation itself,” which is a separate, idealized something, perhaps rocketed here from a dying planet in the Realm of Forms.
* * *
This part of the Court’s Order reminds me of a joke I saw once on Whites, a British television show about a restaurant staff. A dim waitress had told the chef that a customer had ordered an “eggless omelet.” The chef tried to explain by analogy that there is no such thing as an eggless omelet.
“You know,” he asked, “how when the customer shows up and the first thing you give him is a plate of breadsticks?” “Yes,” she answered. “Well, what if, when you looked at the plate, there was no bread there. What would you have left then?” “Sticks?” the waitress asked.
Judge McIntyre reminds me of that dim waitress. She seems to believe that there is a thing called “occupation” that somehow exists apart from and separate than all of the constituent activities that actually make up an “occupation,” and that even though all those constituent activities are subject to First Amendment protection “occupation itself” somehow isn’t.
* * *
Maybe what sticks in Judge McIntyre’s craw is simply the word “occupation.” The Court quotes Webster’s New World Dictionary and Thesaurus (2nd Ed.) (2002) to provide the following definition: “to take possession of by settlement or by seizure.” (p. 12) Judge McIntyre then completely disregards the fact Occupy Boston took possession of Dewey Square by simply settling there, and refers throughout her Order to Occupy Boston’s “seizure” of the park. When one reads the Order, this choice of language – clearly designed to make Occupy Boston the black hat – is a strong tell that the fix is in.
For example, Judge McIntyre speaks of occupation generally being received “as a hostile act, an assertion of possession against the right of the true owner.” (p. 13) But Dewey Square is a public park (pp 3 – 4, n. 3; id., at 5) and the “true owners” are the general public – which obviously includes Occupy Boston. Occupy Boston isn’t claiming against the “true owner” they are the “true owner.” Including this statement serves no purpose other than to equate Occupy Boston with thieves and squatters.
Similarly, Judge McIntyre speaks of the occupation of Dewey Square “to the effective exclusion of others,” even though she herself acknowledges in the same Order that “[n]o individual can be ejected by any internal [Occupy Boston] authority; all are welcome.” (p. 6) Again, there is no reason to include this language other than to implicitly label Occupy Boston a nefarious group intent on depriving others of some heretofore unexercised right.
Finally, Judge McIntyre speaks of her perception that Occupy Boston is “ready to defend their turf.” This isn’t even a statement of fact or an example of legal reasoning, it is the mere recitation of emotionally charged language intended to paint Occupy Boston as nothing more than a street gang (albeit maybe a street gang out of West Side Story).
All of this rhetoric serves to do no more than stack the deck emotionally in favor of Judge McIntyre’s foregone conclusion, and it advances her legal argument not a whit.
(3) The Court’s Actual Reasoning is Utterly Specious and Circular – But the real tell is the “reasoning” contained in the single paragraph in which Judge McIntyre clinches her argument that “occupation itself” is not protected activity, a paragraph that contains no supporting legal authority but consists entirely of Judge McIntyre’s own expressed views about the occupation of Dewey Square. The paragraph begins on page 13 of the Order:
This court doubts that a seizure of land, which invites the use of force in response to the attempt to hold possession of the land, would ever be sanctioned as expressive of a particularized message. Notwithstanding the protesters’ profession of non-violence, confrontations and the use of force are inevitably provoked by the seizure and holding of public parkland and defense of the land held. Proof is the events at Dewey Square on October 11, 2011. Little in the way of expression is outlawed under the United States Constitution, but an act which incites a lawful forceful response is unlikely to pass as expressive speech.
(emphasis added).
In the first sentence, Judge McIntyre seems to suggest that whether expressive activity is subject to First Amendment protection turns on whether the government decides to attack the people protesting. Surely, this cannot be the case. It simply cannot be that the courts in this country determine our First Amendment protections depending on what the executive branch thinks about the message being conveyed.
The last sentence attempts to mitigate the clear thrust of Judge McIntyre’s opinion by referring to an assumed “lawful forceful response,” but this formulation is equally as specious. If citizens are exercising their First Amendment rights, then the use of force to stop them from exercising those rights is unlawful. But before one determines whether the use of force is lawful or unlawful, one must first determine whether the expressive activity at issue is subject to First Amendment protection.
Judge McIntyre turns this simple logic on its head. She argues that the occupation of Dewey Square cannot be protected by the First Amendment, because it is likely to provoke a “lawful forceful response.” And how do we know that this use of force will be lawful? Why, because the occupation of Dewey Square is not protected by the First Amendment. How do we know it’s not protected by the First Amendment? Because it’s likely to provoke a “lawful forceful response.” And how do we know that this use of force will be lawful? Etc., etc., etc. ‘Round and ‘round she goes, and where she stops . . . well, everybody knows where she’s going to stop.
Judge McIntyre has presented an entirely self-contained, endlessly referential loop that ultimately does nothing more than assume the result that it is her job to reach by reason, logic, and the law. In making this argument the cornerstone of her judgment, Judge McIntyre has basically admitted that she has neither the rhetorical nor the rational chops to actually get to the destination she oh so obviously wants to reach.
So she simply fudged it, sprinkled her opinion with some emotionally charged language, and hoped no one would notice.
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There are several other egregious things wrong with this Order, but I think what I’ve outlined highlights the problem. Just as with the Order evicting OWS from Zuccotti Park, I think what we’re seeing is what we always should have expected to see: the natural tendency of most (but not necessarily all) judges to rule on behalf of The Powers That Be, a club to which most of them already belong or are eager to join. I find Judge McIntyre’s Order offensive not only for its ruling but also for the transparently insincere way in which she reached that ruling. But I’m not surprised by her Order.
If the Occupy movement intends to forge ahead, we’re going to have to get used to seeing a whole lot more like this. And, believe me, I’m not suggesting we quit fighting or that the Occupy movement give up. I’m just pointing out that this is what we’re up against – a willingness to bend constitutional safeguards for the convenience of The Powers That Be – and we should be aware of how long and how hard this fight is going to be.
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