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Friday, December 9, 2011

Parsing the Order Evicting Occupy Boston – Part II

I cross-posted my earlier thoughts regarding Judge McIntyre’s Order clearing the way for the eviction of Occupy Boston over at The DailyKos.  That generated a lot of comment and a great deal of pushback from a handful of people who argued hard with me that Judge McIntyre got it exactly right.

So I spent a good deal of time riding herd on the comments and fleshing out my argument re:  Judge McIntyre’s lack of intellectual honesty in Sections I(A) and (B) in her Order.  It turned out to be a great experience, because it helped clarify (and simplify) for me what it really is that I find so offensive about it.  I thought I’d leave a short post here revisiting the issue.

(1)  First – Judge McIntyre could have made this relatively easy on herself.  She could have achieved the same result she obviously wanted (i.e., to clear the way for Occupy Boston’s eviction) by (i) finding that the group’s activities were expressive conduct subject to First Amendment protection, but (ii) also subject to reasonable “time/place/manner restrictions,” and (iii) that the rule prohibiting overnight camping in Dewey Square was a reasonable restriction on Occupy Boston’s First Amendment activity.

For reasons of law too complicated to get into here, I think a very strong argument can be made that – given the message and the means chosen by Occupy Boston to communicate that message – the time/place/manner restrictions Judge McIntyre took into consideration could not be reasonably applied to Occupy Boston.

Nevertheless, time/place/manner restrictions on speech are the preferred way for the government to limit protest movements, the law as it has developed is extremely favorable to such arguments, and that would have been a very strong argument.  I might have decided that Judge McIntyre should have ruled the other way (the case precedent is by no means definitive under these circumstances), and maybe I would have written a post explaining how I think the t/s/m restriction law should have been applied, but I wouldn’t have accused her of intellectual dishonesty.

(2)  Second – the intellectual dishonesty comes from the fact that Judge McIntyre went out of her way to find that all the actual activities in which Occupy Boston was engaged constituted protected Free Speech, but that the group’s “occupation” of Dewey Square did not.  She spent five pages making this argument – one-fifth of the total Order.  It was clearly important to her to get this point across even though it wasn't necessary to her ruling.  

It is simply what she wants to try to establish as a matter of law.  And, as a matter of law, it is deeply disturbing.

As I understand it, what Judge McIntyre is arguing in Sections I(A) and (B) of her order is that conduct that constitutes protected First Amendment speech can lose that protection if it goes on for too long, or if the cops or the courts think the people expressing their First Amendment rights have done so long enough and are now just being a nuisance.

She attempts to support this argument by suggesting that no one may “seize” a section of public land and deprive the general public from the use of it by occupying it indefinitely – that doing so turns protected free speech into an “occupation” and that an “occupation” does not invoke First Amendment rights.


Let’s think about this.  Suppose a group of 100 people established an Occupy settlement over a small portion of a large piece of public land; let’s say they were “occupying” 1/10th of that public land.  None of the rest of the general public could use that 1/10th portion so long as the Occupy people remained on it, and the Occupiers made it plain they intended to stay there indefinitely, continuously engaged in what Judge McIntyre admits Section I(B) of her Order is First Amendment protected activity.

But according to Section I(A) of that same Order, after a certain amount of time the Occupy settlement – which hadn’t done anything different – must be deemed now to be “occupying” that public land to the exclusion of the rest of the public, and this is not protected activity.  Presumably, at that point – and Judge McIntyre never explains when or how that point is reached – the Occupy settlement would have to pick up stakes and move 100 yards away and then settle in on a different piece of that same public land, thereby allowing the rest of the general public use of that specific plot of property on which the Occupy movement originally had been protesting.

Only by continuously picking up stakes and perambulating every 10 days or so around this large piece of public land could the Occupiers' protest retain its First Amendment protection and not devolve into unprotected "occupation."

This seems beyond silly to me.  What’s worse, it seems frightening for all of the questions it immediately raises.  Here are a couple that come to me just off the top of my head:

When exactly does protected First Amendment activity become unprotected “occupation”?  What factors determine when protesters’ First Amendment rights suddenly evaporate?  Is this determination just left to the discretion of the cops and the courts?  If so, is Judge McIntyre suggesting that under our Constitution the government has the legal right to tell its citizens, “alright, you’ve had your say, now shut up”?  Does the size of the protest matter?  Does a single person, who takes up almost no space and might be easily dismissed as a crazed loon, get to protest longer before his First Amendment rights evaporate? Are larger groups required to wrap up their First Amendment activities more quickly, because they take up more space?  If so, doesn’t that mean the smaller, more unpopular groups are afforded greater right of protest than are larger, more popular ones? Wouldn’t that mean that the groups that can remain protesting on public property longest are the ones least dangerous to the status quo?  Do the really large, very popular protest groups – the ones most dangerous to the status quo – lose their First Amendment protest rights the quickest?  Doesn’t all this seem – I dunno – an interpretation that is extremely likely to favor the status quo?

Once you peel away the obfuscatory language, this is what Section I(A) of Judge McIntyre’s Order is telling us:  that even First Amendment protected activity can be shut down whenever the government determines that the activity has gone on long enough and now it is time for all us citizens to be quiet and docile again.

Under Judge McIntyre’s reasoning, the opportunity one has to enjoy one’s First Amendment rights seems to be inversely proportional to the degree the exercise of those rights might bother The Powers That Be.  The more popular your movement is, the more space it requires, the quicker it loses its First Amendment protection and can be shut down.  I’m pretty sure that is not the way the Bill of Rights is supposed to work.

(3)  Third – allowing the government to determine just how long someone can exercise their First Amendment right of protest is, in fact, the equivalent of giving the government control over a valuable part of the message one is attempting to convey.

I’m basing that argument on the Supreme Court’s historic decision in Cohen v. California, 403 U.S. 15 (1971).  In that case a man named Cohen was arrested for appearing in a public place wearing a jacket on which were the words “Fuck the Draft.”  Cohen was charged criminally with violating California’s obscenity laws.

The Court ruled that Cohen’s First Amendment right to say “Fuck the Draft” trumped California’s right to prohibit offensive language.  Significantly, the Court noted that it could not

overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function:  it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.  In fact, words are often chosen as much for their emotive as their cognitive force.  We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.  Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures – and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.”  Baumgartner v. United States, 322 U.S. 665, 673- 74 (1944)

(emphasis added).

I suggest that the length of time and the conditions under which Occupy protesters exercising what Judge McIntyre expressly found in her Order to be expressive activity subject to First Amendment free speech protection is just as important for conveying the emotive function of their message as was Cohen’s choice of the word “Fuck” to express his feelings about the draft.

After all, it is one thing to camp out on a summer’s weekend and then go home in order to make a point.  It is quite another to stay for months, through a Boston winter.  I dare say that the latter communicates a much more impressive message than does the former.  Agreeing with Judge McIntyre’s argument that “at some point in time” protected First Amendment activity magically turns into unprotected “occupation” actually gives to the government the ability to control the content of its citizens' political speech.

And I’m pretty sure giving the government that power was never the intent that ultimately lies behind the First Amendment.

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