What OWS Doesn't Get About Dissent and Civil Disobedience

No one should have the right to break laws with impunity -- not bankers, not police, and not protesters


A protester is arrested on the Brooklyn Bridge during an Occupy Wall Street demonstration / Reuters

Do Occupy Wall Streeters have a First Amendment right to occupy public parks indefinitely, 24/7, to the exclusion of other uses? No, they do not, obviously. Do they have a right as civil disobedients not to be arrested lawfully, without brutality, for violating public laws? No, they do not, obviously. The sooner Occupy Wall Street (OWS) participants recognize that their right to dissent does not include the right to appropriate a public space forever or to enjoy immunity from lawful arrests because their cause is just, the sooner they're likely to forge an effective, left leaning counter movement to the Tea Party. 

Cities may impose reasonable time, place, and manner restrictions on mass protests; a one or two month (or even a two week) time limit on a tent city in a small public park in a busy urban area would probably be deemed reasonable even by a court sympathetic to the protests (as I am.) So would a ban on overnight camping. OWS activists and supporters who disagree might stop to wonder if they would extend equal, indefinite appropriation rights to a group of white supremacists who set up protest camp in a mixed race neighborhood. Or they might ask themselves if they would have joined the many liberals who opposed the right of Neo-Nazis merely to march through (not occupy) a community of Holocaust survivors in Skokie, Illinois in the late 1970's. 

I suspect that many Occupy Wall Streeters base an excessively expansive view of their own First Amendment rights on a belief in the rightness of their movement. But (and this is free speech 101) the First Amendment doesn't discriminate between people perceived to be on the side of the angels and people condemned as allied with the devil himself. The ACLU, which has assailed the Mayor's aborted eviction of OWS from Zuccotti Park, should keep this simple principle in mind. 

Laws applying to rallies, marches and other forms of speech are supposed to apply equally to everyone, obviously. Fighting the good fight in defiance of law in a show of civil disobedience is admirable, but it does not exempt you from lawful sanctions. Still, Occupy Wall Streeters and their supporters rail against virtually any official efforts to enforce the law. "I think it's disgusting that (the Mayor of Boston) said civil disobedience won't be tolerated,'' one 29 year old protester thoughtlessly exclaimed to the Boston Globe. Civil disobedience isn't meant to be tolerated; it's meant to expose official intolerance and injustice. Civil disobedience includes both a commitment to violating arguably unjust laws and a willingness to submit to lawful arrests. 

Of course, if very plausible allegations of police brutality are true, then some arrests weren't lawful, and police officers responsible for them should be held to account. No one should have the right to break laws with impunity -- not bankers, not presidents, not police, and not protesters. Occupy Wall Streeters rightfully incensed by a regulatory regime that creates and protects gross economic inequality should be among the first to recognize this fundamental principle -- that everyone is equal under law. 

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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