‘Occupy’ crackdowns limited by First Amendment

By GENE POLICINSKI   Tuesday, Nov. 22, 2011
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The comparisons have already started—police in Egypt attacking demonstrators with clubs and tear gas, and police in a number of U.S. cities breaking up Occupy camps with clubs and tear gas.

If you’re a demonstrator in Cairo or Oakland, any difference between foreign and domestic nightsticks and pepper spray probably doesn’t matter a whit. And the outrage by some over police tactics in New York City and on the campus of UC Davis in California is just as real as the international condemnation of crackdowns in several Middle Eastern nations as the hopes of the Arab Spring hit the harsh realities of realpolitik Winter.

Yet we should not lose sight of important differences: The limited nature of American police actions, and the ability of those injured or arrested to protest against, even sue, authorities who overstep legal boundaries. Looming large over every Occupy demonstration is the First Amendment’s protection of assembly and petition—still a huge barrier to authorities who would wish the anti-Wall Street movement to evaporate along with the last wafts of tear gas or pepper spray.

We’ve seen this push and pushback before in our nation’s history.

Not long after the nation was founded, Congress enacted a whiskey tax. In western Pennsylvania, opposition grew until 1794 when an armed group attacked the home of a tax collector. After negotiations went nowhere, President George Washington sent 13,000 troops to the region, and the Whiskey Rebellion died out.

Legal protections for the public’s right to assemble and to “petition for redress of grievances” are rooted in court decisions from the previous centuries:

--An 1876 Supreme Court case, United States v. Cruikshank, in which Chief Justice Morrison Waite—though supporting an idea of citizenship rights discarded today—expressed a noble view of the right of petition. He said that “the very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably” to seek changes in government actions and policies.

--A 1937 ruling, Dejonge v. Oregon, in which the Supreme Court held that the right of assembly is equal to those of free press and free speech—even if the views involved are repugnant to much of society.

--Hague v. CIO (1939), in which Justice Owen Roberts wrote that “streets, parks and public places belong to citizens … and must be protected as public forums.”

Public protest is in the very DNA of the USA. We’re a nation born of protest and petition in the form of the Declaration of Independence; buttressed by the guarantees of the First Amendment; and nurtured by a history of public gatherings, marches and protests on issues ranging from taxes to civil rights to women’s rights to war and peace.

Government has the right—indeed, the obligation—to be concerned about public safety, security and sanitation, and to safeguard the rights of us all from being trampled by the actions of others.

But government does not enter on an equal legal footing with the public when it marches into the public square—or Zuccotti Park—to suppress speech, protesters or press. By law, officials must show that limitations or restrictions are absolutely necessary for a greater public good, and that those limits are the least-intrusive actions necessary to accomplish that good.

Unlike dictators, despots and despicable tactics, the 45 words of the First Amendment adopted in 1791 really are the ultimate power.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.

reader COMMENTS
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(42)
Robot_Lord_of_Tokyo
Nov 23, 2011 at 7:16 p.m.
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If you spent as much time trying to conjugate a verb as you do trying to discredit me, you'd be a genius.

Robot_Lord_of_Tokyo
Nov 23, 2011 at 7:10 p.m.
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If you only knew.

poobah
Nov 23, 2011 at 7:07 p.m.
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Rosie, if I'm Scooby-Doo I guess that makes you Scooby-Dum. Clue!

Robot_Lord_of_Tokyo
Nov 23, 2011 at 6:42 p.m.
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"Oh, I'm sure you do and would. Sounds like you're very experienced."
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You are so pathetic when it comes to comebacks, it's pathetic. Your level of intelligence, cognitive thought, and analysis is right up there with Scooby Doo. No Scooby snack for you tonight. Off night, I hope.

Robot_Lord_of_Tokyo
Nov 23, 2011 at 6:39 p.m.
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"So, are you saying that those students at UC-Davis should have been shot with real bullets?"
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No, but you just thought that. Why? Apocalypse complex? Kinda wierd of you.

vatoloco
Nov 23, 2011 at 6:20 p.m.
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From Janesville to Waukesha

I would say the slaves were quite irritated since they were not seen as equals after the Revolution.

fromjanesville2waukesha
Nov 23, 2011 at 5:59 p.m.
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Wonder if any citizens felt irritated by the disorder caused by advocates for the Revolutionary War, women's suffrage, or slavery abolitionists.

yada
Nov 23, 2011 at 5:39 p.m.
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Speaking of huge shovels that get bigger and bigger - make sure you read RAF comments...lol...a funny guy.

poobah
Nov 23, 2011 at 5:33 p.m.
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TokyoRose said, "Tell me where you live. I want to camp there and defecate on your lawn. I will even do drugs.........shoot up, and invite my friends to join me. We will all shoot up on your lawn, and relieve ourselves there."
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Oh, I'm sure you do and would. Sounds like you're very experienced.

miltonlib
Nov 23, 2011 at 4:43 p.m.
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Robot Lord: "American protestors are a bunch of fantical whimps that know that they only have a misdemeanor coming at them, not hot lead." So, are you saying that those students at UC-Davis should have been shot with real bullets? There was no reason to do anything to them at all. They were just sitting there. Lt. Pike sure seemed to enjoy spraying them with military-grade pepper spray, or "food product" as Megyn Kelly called it on O'Reilly's show. When he ran out of the spray, he called in another officer to spray them. Protect and serve? Yeah, right. I would LOVE to see Megyn Kelly and Bill O'Reilly take three sprays of that pepper spray and still call it just a "food product". You all have a great Thanksgiving weekend! Eat lots of food with protein to feed your brains. Go Packers, Badgers and keep it up Occupy!

kaysbrew
Nov 23, 2011 at 4:11 p.m.
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More liberal waste to say "look at me" and "this is why we will lose in 2012" - they have now cost us 19 million dollars. Rules for radicals..Obama's bible - create unrest.

Robot_Lord_of_Tokyo
Nov 23, 2011 at 3:24 p.m.
(This comment was removed by the site staff.)
Robot_Lord_of_Tokyo
Nov 23, 2011 at 3:07 p.m.
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"So, this is not anywhere near the same as someone walking into your house and refusing to leave."
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Yes, public place, like State Street, back in 1992 when I was attending a dress party in my dress blues and got heckled the whole way from the parking ramp to the venue. Same thing. They were just excercising their free speech, oh protector of veterans.

Robot_Lord_of_Tokyo
Nov 23, 2011 at 3:03 p.m.
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"The limited nature of American police actions, and the ability of those injured or arrested to protest against, even sue, authorities who overstep legal boundaries."
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VS getting shot in the head with a 9mm. Even trade, methinks. American protestors are a bunch of fantical whimps that know that they only have a misdemeanor coming at them, not hot lead.

TroubleMaker
Nov 23, 2011 at 1:47 p.m.
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How about someone doing something about it? How about our elected officials getting with the program by:

- Auditing the Federal Reserve (a private company for those who don't know)
- Looking into options for the Treasury Department to issue our own currency
- Putting a hold on foreclosures and holding lenders accountable for rewriting the loans the Obama Administration provided so much money for (that has gone unused)
- Firing the heads of Fannie May and Freddie Mac instead of giving them multi-million dollar bonuses (because they continue to let foreclosed homes sit vacant while previous owners are homeless)
- Stopping the Fed from paying banks not to loan money

It's not gonna go away -- it's gonna get violent. Those in power need to stop ignoring and take action. It's not gonna just go away.

joker
Nov 23, 2011 at 12:50 p.m.
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NVgrf go back and read some of your own post from the teaparty protests. Claiming the whole movement was racist because of a couple signs. The brainless left take a few examples of negative behavior and generalize on the entire group

poobah
Nov 23, 2011 at 11:27 a.m.
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The point is exactly as stated in my last comment, BB. The park, under agreement with the city, is a space open to the public. The public has a right to be there. I said absolutely nothing about it being OK to commit crimes there. Push your eyeglasses back up your nose and read my last comment again.

bebe53
Nov 23, 2011 at 10:41 a.m.
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@poobah-maybe you should research before posting stupid comments-the park is PRIVATELY owned-many entities are privately owned yet obviously open to the public-so what is your point? That illegal activities should be allowed to occur anyway?

poobah
Nov 23, 2011 at 10:07 a.m.
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Oh BillyBob, when will you learn to do a little research prior to your rants? The owners of Zucotti Park struck a deal with the city that makes the park a space open to the public. They received, in return, permission to add more stories to their adjacent building than zoning laws had allowed. So, this is not anywhere near the same as someone walking into your house and refusing to leave.

BillyClydePuckett
Nov 23, 2011 at 8:29 a.m.
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"But government does not enter on an equal legal footing with the public when it marches into the public square—or Zuccotti Park—to suppress speech, protesters or press."

With this statement alone the author loses all credability. Zuccotti Park is PRIVATE PROPERTY. It is not a public park, has an owner The people who moved in there have no more rights to remain that someone who walks in to someones house sits down in the living room, lights a cigarette,craps on the floor and declares the aint leaving because their angry about something someone somewhere did.

Likewise, the rights of free speech and peaceful assembly do not give people unlimited ability to meet in any public place at any time. An arugument could be made that a taxpayer funded middle school in Janesville is a public place in the same way those in California claim a University is. If 200 pissed off adults set up just outside (or inside for that matter) and disrupted the abilty of students to get in, played loud musice making teaching of the student difficult and created a waste dump on the grounds would they be protected?

RetiredAirForce
Nov 23, 2011 at 2:48 a.m.
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I never declared the judicial system wasn't biased one way or the other, I merely pointed to that instance because at least it was looked at; in ref to your earlier remarks. But the matter of following the law, I still wonder where the supporters of those that "occupy" in a fashion that is not peaceful or in certain instances break existing laws or ordinances really stand when it comes to laws. Are they just for the laws they want? I wasn't aware in this country you could just pick when you want to follow the law and expect others to support you for it.

Definition of ANARCHY
1a : absence of government
1b : a state of lawlessness or political disorder due to the absence of governmental authority
1c : a utopian society of individuals who enjoy complete freedom without government
2a : absence or denial of any authority or established order
2b : absence of order; disorder

fearandrhetoric4dummies
Nov 23, 2011 at 1:55 a.m.
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I meant AS flawed, sorry Gazette!

fearandrhetoric4dummies
Nov 23, 2011 at 1:54 a.m.
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I would also point out that a judge appointed by Tommy Thompson ruled on the law and ideologues didn't like it so they appealed it until they found a politically friendly audience. The supreme court is just like the legislature, a rubber stamp for the governor, and all of you know it!
RAF are you trying to say that the justice system is not politically slanted?? To me that makes it flawed, ass flawed as our political process.

fearandrhetoric4dummies
Nov 23, 2011 at 1:50 a.m.
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RAF-Like the supreme court in Wisconsin is ruled by the right, correct? They may have ruled on the issue, does tat make their ruling correct? Or partisan. Did anyone who looks at it objectively expect the supreme court to uphold the open meetings law? I didn't. Just like I expect the US supreme court to strike down Obamacare because they are a right wing extension. Again open meetings and Obamacare are apples and oranges, but we act as if the courts aren't influenced by politics. THEY ABSOLUTELY ARE!!
RAF- The open meetings law WAS violated that much was clear. It was also clear that our court was going to rule in favor of the republicans, because the justices are a majotity right wing ideologues, disagree? Its why the DEMS ran so hard to elect Joanne Kloppenberg, because they wanted the court to favor them. The courts in this country are politicized top to bottom. The fact that Klopp was almost elected due to her relative inexperience shows how much the arties could care less about laws and more about political influence. Look at Gablemann for gods sake, his campaign against Louis Butler was one of the dirtiest I have ever seen!! Nothing to do with justice, everything to do with politics. You all thought Klopp wasnt qualified? She is a seasoned vet compared to Dan Gableman, not to mention at least a decent human being.

RetiredAirForce
Nov 23, 2011 at 1:26 a.m.
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fear, yes all laws should be. As I recall the state supreme court ruled already on the open meetings matter; it was placed in the courts by a local DA from Madison. I also think campaign laws should be followed...why is that so hard to understand?

Your apples and oranges sounds good, until you see the vast majority of the cities these protesters are occupying, and being held accountable in, are run by left/dem elected officials. The movement has run into a problem with their own people as well.

youkillme
Nov 23, 2011 at 1:24 a.m.
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Maybe somebody should apply for a national permit for a revolution so we can exercise our constitutional right to assemble without going to jail.

fearandrhetoric4dummies
Nov 23, 2011 at 1:20 a.m.
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I am writing in Ron Paul and Buddy Roemer for president!! Only 2 people that I believe in this race. I wish the Republicans would let Buddy in the debates to beat them up on all issues. Like Ron Paul, they re some reason afraid of winning this election, WHY?

RetiredAirForce
Nov 23, 2011 at 1:13 a.m.
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Typical left spin on the civil rights movement. If it wasan't for the right it never would have happened, since the leading left fringe in the south didn't want it.

fearandrhetoric4dummies
Nov 23, 2011 at 12:37 a.m.
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RAF- so when people(certain legislators) violate laws , no matter how trivial then they should be prosecuted as well correct?
If I remember the open meetings law was violated not to long ago was it not? I also recall several instances of campaign finance law being violated as well. Are we to prosecute those people as well? They are certainly falling under the "non-violent" crimes are they not?
I say if you want to hold protesters accountable to all laws then I suggest holding all citizens accountable to laws they break then. Yet I hear nothing but excuses from others that might be okay with those they agree with politically. Apples and oranges? Not from where I am sitting.
The reason overnight camping is a big deal? because many of these people don't live close enough to Wall Street to go home and come back each day, and obviously cannot afford a hotel in NYC. Most times a protest isnt just 1 day and for 8 hours, most times folks are there for a cause and are trying to make themselves heard. A message is noticed more nationally when these protests go on longer. IMO shows that they are serious and not just trying to make a political point which many of the critics do on their behalf from afar.

NVgrf
Nov 23, 2011 at 12:23 a.m.
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Once again, the brainless right takes a few examples of negative behavior and generalizes upon an entire movement. By this logic, I am sure they would have opposed basic civil rights for African Americans in the 50's and 60's.

poobah
Nov 22, 2011 at 11:59 p.m.
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realitybytes, anytime you have large groups of people there's an increased chance of someone violating laws. Some of the violators may be associated with the group, some of the violators will be people not associated with the group. Some people politicize and publicize the violations of laws at gatherings they are not aligned with and tend to overlook or dismiss violations that occur in movements or at places they are aligned with. I agree with you that people violating laws should be held responsible and I would hope those laws were not rushed into place in response to a particular group that authorities are not politically aligned with. In addition, I'm sure you would agree that people legally expressing their First Amendment rights should have those rights protected by those same authorities. The types of activities listed in the link you provided, whether they occurred or not, are not unique to the Occupy movement. Thanks for your thoughtful reply.

realitybytes
Nov 22, 2011 at 11:15 p.m.
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poobah: perhaps my choice of wording was poor and I should have said "no overnight camping" types of regulations. In other words; most of these cities already had regulations that prohibited overnight camping in city park areas. These regulations (in most cases) were NOT newly created just to hinder the free speech rights of Occupy protesters. Neither were the existing laws prohibiting loitering, public urination, destruction of public property or any number of other laws as can be found in the link I provided earlier.
I will be first in line to defend their right to protest; AS LONG AS THE PROTESTERS DO NOT BREAK EXISTING LAWS. However, they ARE breaking laws and the police seem to be letting them get away with it (for the most part). The law is the law and, until voided with proper legislation, should be enforced.

RetiredAirForce
Nov 22, 2011 at 11:04 p.m.
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westorbust, if someone breaks the law and enters your home are you going to ask the government police to enforce the law then? Where exactly is the line for the law for you? Just curious.

RetiredAirForce
Nov 22, 2011 at 11:02 p.m.
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Fear, I didn't read the ammendment giving the right to non-viloent crime, can you point that out for me.

What happens in a state park if a person is camping where not allowed or in a closed section? Should everyone be allowed to break the rules or laws because they think their cause is greater? Why do the mayors of these same places not let the homeless do what the OWSDEM are doing?

How exectly does camping overnight solve anything?

westorbust
Nov 22, 2011 at 9:29 p.m.
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Don't bother fear. Sheep will be sheep. Just make sure you people jump when the government says jump, you never know when they'll come for you.

fearandrhetoric4dummies
Nov 22, 2011 at 9:09 p.m.
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So the law breaking you have a problem with is overnight camping? Really? Not violent crime, not assult, not murder, not rape, Overnight camping?
That is the basis that you would like to disassemble people protesting over? I guess it shows what you think of people exersising their rights. I guess you would also like officers to arrest every person that illegally J-walks too. Buncha dirty, law breaking drum pounding hippies! Get a job!!

poobah
Nov 22, 2011 at 8:09 p.m.
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realitybytes said, "Many of the cities where these protesters are staying clearly have no overnight camping regulations."
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This is precisely the problem. Jurisdictions without prior time, place and manner restrictions to First Amendment rights have rushed to implement restrictions solely as a reaction to Occupy. This type of reaction, in case after case, has been ruled unconstitutional by the Supreme Court. If you want to read a textbook example of what I'm talking about, read the ACLU complaint it has filed against the Hennepin County board of commissioners et al which is available at http://www.aclu-mn.org/downloads/OccupyM...
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Many jurisdictions have allowed similar, if not identical, activities to what Occupy is now doing and have never attempted putting time, place and manner restrictions on First Amendment rights. Read the complaint above in full. It will really open your eyes to the legal battle being fought in Minneapolis and in hundreds of cities across the country.

RetiredAirForce
Nov 22, 2011 at 7:53 p.m.
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Funny how some forget what the first amendment really says; "interfering with the right to peaceably assemble". Breaking laws is hardly peaceful.

realitybytes
Nov 22, 2011 at 7:35 p.m.
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the attached link shows some of the laws that protesters in Bloomington are likely to be violating. I am sure that other cities are very similar. http://indianapublicmedia.org/news/occup...

Again; why are these people being allowed to break the law?

realitybytes
Nov 22, 2011 at 7:09 p.m.
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Those people who believe that the occupy protesters have an absolute freedom to express themselves are quite ignorant. Freedom of speech does have its limits (you can't yell fire in a crowded theatre for example).
Many of the cities where these protesters are staying clearly have no overnight camping regulations. These policies were obviously implemented because previous administrators thought it was for the greater public good. If these cities had these policies in effect prior to the protests WHY are they even allowing a single protestor to stay a single night? The protestors should have been kicked out nightly and allowed to re-gather daily. Sorry, but just because you are "oppressed" is NOT an excuse to get a pass to break the law.

NVgrf
Nov 22, 2011 at 6:15 p.m.
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Thank God for the Anti-Federalists. Politicans were able to compromise then!

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