As protests supporting Occupy Wall Street have swelled in recent weeks, hundreds of demonstrators have been arrested across the U.S. This weekend, nearly 100 people were arrested in New York and 175 in Chicago. More than 100 protesters were arrested in Boston last week; a few weeks ago, 700 were arrested on the Brooklyn Bridge.I remember as a kid watching the blacks in the Deep South trying to exercise their "right" to vote. They would be made to wait in the hot sun all day. They would be told to come back umpteen times. They would be given "tests" that mysteriously only blacks failed, not whites. Etc., etc. They had "rights" just no right to exercise their rights.
So, if the First Amendment guarantees the right to peaceable assembly, why do peaceful protestors keep getting arrested — and sometimes pepper-sprayed and beaten up?
We take a closer look at the laws governing protests and how the government can limit them.
Time, place and manner restrictions
The First Amendment is not absolute. Government can make reasonable stipulations about the time, place and manner a peaceable protest can take place, as long as those restrictions are applied in a content-neutral way.
But what constitutes a reasonable time, place and manner restriction? "It depends on the context and circumstances," said Geoffrey Stone, a professor specializing in constitutional law at the University of Chicago. "Things like noise, blockage of ordinary uses of the place, blockage of traffic and destruction of property allow the government to regulate speakers."
Stone gave a few examples of impeding ordinary usage: disturbing patients at a hospital, preventing students from going to school, or, more relevant for the Occupy movement, disrupting the flow of traffic for a long period of time.
The majority of Occupy Wall Street-related arrests have been on charges of disorderly conduct. Under the New York Penal Code, that includes making "unreasonable noise," obstructing "vehicular or pedestrian traffic," or congregating "with other persons in a public place and refus[ing] to comply with a lawful order of the police to disperse." Basically, the central question is the standard of reasonableness. "You have to tolerate a certain amount of inconvenience in order to make room for First Amendment activity, but not so much that it disrupts things," Stone said. Individual states' unlawful assembly and disorderly conduct statutes have to fall in line with this standard. "They can regulate it less if they want to," Stone added, "but not more."
Native Indians in the US signed umpteen "perpetual treaties" only to watch them be torn up a few years later. Many Indian bands have horror stories to tell. The "trail of tears" for the civilized tribes of the US Deep South that freed up land for the big slave plantations is especially egregious. These are tribes that had signed many treaties, even fought on the side of the US revolutionaries and the side of the new United States in the Battle of 1912. All these "rights" and "promises" were ignored to feed the land fever of white slave owners.
This "expert" for propublica goes through the motions as if rights were real and the state is truly interested in your rights and it is just a question of balancing rights with responsibilies. What a load of crap. If they could get away with it, governments would have a rule that you can only demonstrate between 3:00 AM and 4:00 AM on one side of town, and by the way, you must have a permit that can only be picked up on the other side of town between 2:59 AM and 3:00 AM and only those with a valid permit at 3:00 AM at the demonstration site will be allowed to demonstrate. (A version of this is the recent rules where you have have "public" demonstrations during high profile international gatherings but only at a "designated" demonstration site that is miles from where the dignataries gather and is carefully fenced in with riot cops all around to ensure that in this "proper" demonstration area you won't be seen or heard by anybody.)
I'm pretty positive that Syria has a wonderful Constitution which lays out all kinds of "rights" for its citizens. But right now the only "right" that citizens seem to be enjoying is a bullet through the brain or torture in some dungeon run by Bashar al-Assad's thugs. Under the USSR's Constitution people had wondeful, extensive, very progressive "rights". But in reality if you thought you could exercise your rights you would be sent off to a slave labour camp in Siberia or shelved in a 24x7 drugged state in an insane asylum. That's how you got to "exercise" your rights in the USSR.
The thuggery by the US and its police is just one in a long line of countries with wonderful "rights". Sure the top 1% get to exercise those rights. But the 99% better not cross the line. Their "rights" have a way of mysteriously becoming re-interpreted as disorderly conduct, assaulting a police officer, or some other drummed up charge. If you read the labour history of the US (late 19th century early 20th century) it is filled with workers exercising their "rights" only to be mowed by by police or private gangs: the (Homestead Strike, the Lattimer Massacre, the Ludlow Massacre, the Columbine Mine Massacre, the Chicago Memorial Day Massacre, etc.)
Oh... and I just noticed this. A French court has ordered ISPs to block any site that allows people to post videos of police misconduct. I guess the theory is "out of sight, out of mind". Or, if nobody sees it, then it isn't a crime.
The Tribunal de Grande Instance de Paris [official website, in French] on Friday ordered [judgment in PDF, in French] French Internet service providers to block access to Copwatch Nord Paris I-D-F, a website designed to allow civilians to post videos of alleged police misconduct. The decision was applauded by the police union, Alliance Police Nationale (APN) [union website, in French], which argued that the website incited violence against police. Jean-Claude Delage, secretary general of the APN, said that "[t]he judges have analyzed the situation perfectly—this site being a threat to the integrity of the police — and made the right decision." Opponents of Internet censorship were also quick to comment on the judgment. Jeremie Zimmermann, spokesman for La Quadrature du Net [advocacy website], a Paris-based net neutrality organization, called the order "an obvious will by the French government to control and censor citizens' new online public sphere." The site was ordered to be blocked immediately.In France you have the right to think that police might violate the rights of citizens, but you have no right to communicate that belief because that is "an insult to the majesty of the Law". I guess the reasoning is that if you let people question the honesty and integrity of the government then you are on the slippery slope to anarchy. So everybody will be liable by law to only say good things about their laws, their politicians, the rich, and the police. You can insult your neighbor, the poor, immigrants, and dogs in the street. But not the noble "leaders" of society and their enforcers, the police.