Posted On: November 23, 2011 by Karl Olson

Occupy Movement Raises Thorny First Amendment Issues

The Occupy movement is raising some thorny First Amendment issues.

Protesters have First Amendment rights to demonstrate and march, and they've raised important issues about the rising income inequality in this country.

On the other hand, governments traditionally have been able to impose so-called "time, place and manner" restrictions, so the issue becomes whether Occupy protesters have First Amendment rights to permanently occupy certain public places.

I had little sympathy for homeless people in San Francisco's Golden Gate Park who left syringes and human waste in the park and despoiled its natural beauty.

But I have more sympathy for those who've pitched tents in downtown spaces like San Francisco's Harry Bridges Plaza and Oakland's Frank Ogawa Plaza. For one thing, there's a clear speech message associated with their encampment. For another, they are occupying what seem like public spaces more suitable for public gatherings than enjoyment of natural beauty and the great outdoors.

Recently police have moved in and evicted Occupiers from places in which they've pitched tents in many cities. In some places, such as the University of California Davis, the police have stepped over the line, using pepper-spray on non-violent protesters who linked arms on the campus.

I don't doubt that the authorities can take steps to protect the public health. But special care must be taken to ensure that the exercise of pure political speech is not sacrificed in the process.

This is not the first time people have "occupied" places to send a message. As an advertisement in the New York Times from 1960 read, "In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."

(That ad gave rise to a libel suit against the New York Times, and to the U. S. Supreme Court's famous New York Times v. Sullivan decision. The leader of the movement mentioned in the ad was, of course, Dr. Martin Luther King Jr.)

I am not saying that everyone in the Occupy movement is a saint, and I am not denying that there are some hangers-on and bad elements joining the Occupy crowd in some places. But I see important First Amendment values at stake here which should not lightly be sacrificed in the name of restoring order. When I see students rally at Sproul Plaza in Berkeley and students link arms at Davis, I go back to that 1960 newspaper ad, which read, "Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King." I go back to blacks "occupying" Southern lunch counters designated as "whites only," and people "occupying" buses. And I go back to the Supreme Court's opinion in the New York Times v. Sullivan case, which spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and siometimes unpleasantly sharp attacks on government and public officials." Or, in this case, the so-called "1 percent."

The Occupy movement is messy, and it's loud. But messy and loud protests are as American as apple pie, and any doubts about whether the Occupiers have a right to be where they are should be resolved in favor of the speaker.