Occupy protesters must think beyond camps

Since starting in New York in September 2011 the Occupy Wall Street movement has spread to over one hundred US cities and has crept across Europe.

Over the past few weeks, Occupy encampments in Philadelphia, New York, Los Angeles, Atlanta, St. Louis and Oakland, California have been dismantled by law enforcement.

Government officials are being forced to grapple with the challenge of maintaining public safety without violating participants’ First Amendment right to free speech. At the same time, Occupy protestors are not only learning how to face down the one per cent but are receiving a valuable lesson in understanding their civil liberties.

The First Amendment is paramount

Los Angeles Mayor Antonio Villaraigosa estimates that the cost associated with the midnight eviction of Occupy LA protestors and the pursuant cleanup could exceed 1 million USD. Nonetheless, he defended his decision to allow their two-month occupation of  City Hall Park, saying:

 The First Amendment is messy. It’s not always pretty. There’s sometimes a cost to it. What’s the cost if we deny the 1st Amendment to America and Americans. We’re all going to pay for it and in tough, tough economic times and that’s true around the country.

Lawyers for Occupy Boston went so far as to say that the Occupy movement’s First Amendment right to protest should trump concerns about fire safety. Howard Cooper, a lawyer for Occupy Boston stated:

The primary value to be balanced here is free speech. The question is whether you just take the First Amendment considerations that are unique response to a unique set of issues we all face yesterday and throw it out without letting them address any of these issues.

Despite strong arguments for First Amendment rights, long term Occupy encampments have increasingly been criticised as threatening public safety.

In Boston, the fire marshal warned that the Occupy encampment in Dewey Square has become a serious fire hazard. The fire marshal has refused to work with Occupy Boston because the movement lacks any kind of central leadership with whom he can communicate. The issue of use of force during Occupy evictions was brought to a head when controversial footage of police pepper spraying college students at UC Davis was posted online on 19 November. (The police defended their decision, citing fears to their personal safety.) Floyd Abrams, expert on First Amendment issues and Partner at Cahill Gordon and Reindel, LLP, acknowledged that the police are given a good deal of deference in the methodology that they use. He explained the boundaries of police behaviour:

[The police] obviously cannot pepper spray people promiscuously. They cannot beat people. They cannot chain people. There are lots of things they cannot do, but in terms of which way the law tends to lean, it tends to let the police make the decision about when to make people leave and the precise tactics. In Oakland people were throwing things at the police. In that situation, the courts would defer to a very great degree to a decision of the city about what level of force to use to respond. In a situation in which people simply refuse to move and participate in a sort of passive resistance, the police have to take care not to use exaggerated and unnecessary force.

Recent crackdowns on Occupy encampments have seen local governments try to restrict journalist access to the eviction process and have even led to accusations of police brutality against reporters. During the eviction of the Occupy LA movement, Mayor Villaraigosa issued a decree limiting media access to the process, instructing: “During the park closure, a First Amendment area will remain open on the Spring Street City Hall steps.” In New York, Mayor Bloomberg’s office even admitted to arresting at least five reporters who were in possession of valid NYPD press badges. An LA network stopped streaming footage of the City Hall Park eviction, after stating that “they had made an agreement with LAPD not to reveal their tactics and wanted to protect the integrity of the operation.”

When asked about the constitutionality of sequestering journalists into designated areas, Abrams emphasised the importance of maintaining freedom of the press:

[T]here are some circumstances in which a situation so threatens public stability that everyone has to be moved away from the area — a fire in a building, a person with a weapon who is threatening people. But in my view there are no circumstances in which the press may constitutionally be treated worse than the public as a whole…beyond any discriminatory treatment of the press I believe that when activity is going on in public places, such as a park street or the like, that there is a strong first amendment interest in the press being present. Also, I believe that a policy of excluding or barring the press from being present is not only terrible policy but likely unconstitutional.

The First Amendment protects freedom of assembly and petition, as long as the state enforces rules regarding the use of public space evenly and fairly. These principles are upheld by the court decision Clark vs CCNV, which places time, place and manner restrictions on protests. Abrams said he did not believe that there was a strong argument for long-term encampments on public property.

There is always the possibility of reaching some negotiated agreement with cities and other communities. That said, I do not think that there is a strong First Amendment argument in favour of an enforceable right of protestors to sleep in public parks. Particularly on a long-term basis. Protestors have rights to dissent and to march and to demonstrate to assert their dissent. But our courts have recognised again and again that there are some limits based on time place and manner. I do not think they will fare well in the courts in asserting rights to basically build mini-communities on park land.

Mayor Bloomberg’s administration in New York cited deaths, sexual assaults, theft and drugs as threats to public safety in the tent cities. Bloomberg emphasised that “the First Amendment protects speech. It doesn’t protect the use of tents and sleeping bags to take over a public space.”

Looking forward

Canadian journalist Naomi Klein recently spoke to Occupy protestors, stating:

Occupy Wall Street…has chosen a fixed target. And you have put no end date on your presence here. This is wise. Only when you stay put can you grow roots. This is crucial. It is a fact of the information age that too many movements spring up like beautiful flowers but quickly die off. It’s because they don’t have roots.

The analogy of “growing roots” is surprisingly apt. As election season approaches, the Occupy movement will want to persevere in getting its message across to both politicians and the electorate in order to survive. This may mean moving beyond the model of establishing large scale encampments and onto as form of protest that is more sustainable.

Rachel Greenspan is Index’s new US Editor 

United States: Is a communications blackout ever OK?

George Washington University’s Cyber Security Policy and Research Institute recently hosted an event to discuss the constitutionality and legality of cell phone and Internet blackouts. The issue came to a head in the United States this past August when San Francisco’s public transportation system, BART, shut down the system’s underground cell phone network for several hours to prevent protestors from executing plans to disrupt train service.

The event focused on a central question: Are cell phone and Internet blackouts by government agencies unconstitutional and illegal, absent a declared national emergency? In an amicable debate on the subject, Gregory Nojeim from the Center for Democracy and Technology argued in favor of the premise, while Paul Rosenzweig of Red Branch Law and Consulting argued against it. Both sides emphasized that while they agree on other issues, this is a topic that even reasonable minds can disagree about.

Challenges in applying old law to new technology were endemic. The BART station itself was clearly a public forum, but what about the airwaves and networks that formed the “virtual forum” above the platform? What legal precedents apply? How does one ensure that any regulations regarding future cell phone shutdowns will be content-neutral?

The Electronic Frontier Foundation characterised BART’s shutdown of cellular service as an overt assault on freedom of expression, comparing the situation to recent Internet shutdowns in Egypt:

“Cell phone service has not always been available in BART stations. The advent of reliable service inside of stations is relatively recent. But once BART made the service available, cutting it off in order to prevent the organization of a protest constitutes a prior restraint on the free speech rights of every person in the station, whether they’re a protester or a commuter. Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.”

Nojiem agreed with this position, holding up his PDA and declaring “It’s your soapbox and the government is trying to kick it out from under you.” He argued that the protestors posed no imminent safety risk, citing Brandenburg vs. Ohio: which stated:

“….constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

On the contrary, Rosenzweig argued that governments needed to be given wider discretion in controlling cell phone and Internet services. He maintained that preventing government access to shutting down these services is not a “slippery slope to China’s great fire wall” and implored participants to have some faith that the government would in the public’s best interest. BART, he suggested, should have clearly defined, content neutral policies that would allow them to effectively respond to urgent situations.

This argument is supported by the precedent set by Clark, Secretary of the Interior, et al. versus Community Creative Non-Violence:

“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

This is an important discourse to continue. The BART shut down highlights that, even in a country with strong protections for freedom of expression, there is a struggle to develop a core understanding of how we measure free speech. Mayor Bloomberg recently struggled to develop consistent rhetoric in addressing Occupy Wall Street movement in New York.  “There is no easy answer,” Mr. Bloomberg told the press. “But there is a right answer, and the right answer is allow people to protest, but at the same time enforce public safety, provide public safety and quality-of-life issues, and we will continue to do that.”


Occupy Wall Street – Journalists face difficulty

As the Occupy movement protesting against social and economic inequality rumbles on and spreads across the world, journalists covering the protests are facing increasingly negative treatment from the police, particularly in New York.

Freelancer Natasha Lennard, John Farley of MetroFocus magazine and Kristen Gwynn, freelancer with news websiteAlterNet, were all arrested in the earlier stages of the movement, whilst a cameraman and a journalist from Fox 5 were both assaulted. All three  were arrested because they didn’t have the correct press cards.

Since August 2010, the responsibility to issue press cards in New York lay with the police department. A wide range of restrictions are in place to determine who qualifies as a journalist. To be granted press accreditation, a journalist must have published or broadcast breaking news at least six times in the past year, and without a press card, they cannot cover the protests.

Two other reporters have been assaulted during their coverage of the protests. Cameraman Roy Isen, of Fox 5, was pepper sprayed in the face, and his colleague, reporter Dick Brennan, was hit with a police baton.

Rumours are suggesting that anyone with a camera is being targeted by the police force, including professional and citizen journalists, hampering coverage of the protests. NYPD have denied those with cameras are being singled out.

The Occupy movement has adopted the slogan “we are the 99%”, noting the difference in wealth with the top 1 percent of earners in the USA. The protests began in New York on 17 September and have become referred to as “951 cities in 82 countries”, having spread across the world to cities including Reykjavík, Amsterdam, Auckland and Kuala Lumpur.