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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