The Law of “Occupy”

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On December 7, Suffolk County Superior Court Judge Frances McIntyre issued an opinion that was reported as adverse to the Occupy Boston movement.  While the effect of her ruling will be the dismantling of the encampment, the ruling reflects a broader appreciation of the issues involved and deserves more careful analysis.

Before suggesting that analysis, a few words about what is happening in Dewey Square, which is directly below my office window.   Yesterday, based on the court ruling that ended the injunction against the city taking removal action, the Mayor announced that the occupation must cease by midnight yesterday, Thursday, or the city might take action against remaining protesters.  The police during the day circulated notices from the Rose Kennedy Greenway Conservancy, which owns the land underneath the tents, reflecting the same message.

Importantly the notice did not bar assembly or speech.  It stated that the park was closed from 11pm to 7am and that structures and personal property could not be left on site.  There was no suggestion that people could not assemble or speak, daily, while the park was open pursuant to standing park regulations.

During yesterday, debate and confusion filled the Occupy site and around 11pm last night some protesters promised to form a human chain around the site to protect if from police.  The numbers of people at the site actually increased by reason of the arrival of activists from other, closed Occupy city locations.  But meanwhile, very many tents were struck and removed.  Garbage trucks, some paid for by protester pooled funds, arrived to assist in the partial clean up of the debris.  Many protesters, true to their fundamental values as law-abiding folks, literally folded their tents and left, although some stayed to line up across the street and chant support.

Meanwhile, the Massachusetts Civil Liberties Union had lawyers on site and distributed information about the rights of anyone who was arrested; they counseled the writing of a lawyer’s phone number on one’s body because upon arrest all personal property was likely to be confiscated.  The Civil Liberties Union and the Massachusetts Chapter of the National Lawyers Guild contacted the Mayor’s office and counseled restraint in Boston, which was described as a city with a long and honorable history of free speech and dissent.

The press arrived in force and there was extensive Boston news coverage; trucks from the three traditional networks, from Fox and from New England News Network pulled up onto the public sidewalks (no doubt an illegal act) and sent reporters and cameras into the site, where they were freely admitted by the reasonably small number of police and moved without confrontation among the protesters.  The reporters, who noted without irony that many people had seemed to appear as mere voyeurs while they themselves were of the same ilk and were distinguishable only in that they were being paid for their voyeurism, generally reported fairly about the factions within Occupy, those who did not want a police record and were leaving, those who were defiant and wanted to stay and be arrested to enforce the message.  There were, notably, no interviews I saw with the so-called “student anarchists” who reportedly were fomenting violent resistance and who were described as wearing black hats and masks.

Wooden pallets were piled up like barricades, then mostly placed flat and carted out to garbage trucks.  Last night trash was everywhere, and belongings were loaded into many large green trash bags that seemed to sit in the walkways unattended.  Two people dragged a tent into the middle of the street and asked to be arrested, and indeed were so obliged, but otherwise the police seemed to take no action.  Their restraint to date has been notable and in sharp contrast with prior Boston police actions concerning social protests; since the same police have been hanging around Occupy for a couple of months, I suspect that some sense of mutual respect, or at least tolerance, may explain in part this restraint.

This morning I walked around and then through the center of the Occupy site.  There were four police cars on the plaza, but no uniformed police inside the outline of the site.  Perhaps two thirds of the tents were gone.  There were no people within the tents or walkways, and very few on the plaza; much of the trash was cleared, and a couple of men from Occupy were loading handfuls of trash and tarps into the back of a garbage truck that was blocking one of the lanes on Atlantic Avenue.  The rumor was that the City was going to give the protesters until Sunday to clear out entirely, although there was no way to confirm that rumor.

Rimming the site were protest signs; not that many, some defiant, some melancholy.  My favorite, based on the stated intent of some of the organizers to move to the Boston suburbs, read “Occupy Everything.”

The Mayor on morning radio, the same Mayor who once expressed support for Occupy and said there were no plans to remove the tents, expressed the wish to put this behind us and get on to the next step, “whatever that may be.”  His employees had argued in court that the tents were a fire and health hazard at the same time he was saying there was no plan to clear them; but the court decision did not turn on those arguments.

The court decision was sympathetic with the purpose of the Occupy movement, which it characterized (I believe correctly) as an invitation to an important national dialog on the economy, the impact of concentrated wealth on the national social compact, and the need for government to focus on these issues notwithstanding the partisan turn of our national debate.  But the law is, as they say, the law and courts are of course the arbiters of that law.  High points of the decision:

*protesters have the right to assemble and speak, under the Constitution, and that includes certain actions (not just words) which are treated as “conduct-which-speaks.”

*but what is protected is speech and assembly to speak, not the actual occupation which the court said “as a matter of law, is not speech.  Nor is it immune from criminal prosecution for trespass or other crimes.”

*Occupy is subject to City and Park regulations, which the court found to be valid, although the setting up of tents and sleeping is expressive and symbolic conduct.

*The decision permits the protesters to vacate the site “and request permission to set up tents or other equipment for expressive purposes,” although such actions must exclude overnight structures and sleeping in Dewey Square as same violates Conservancy guidelines.

While enforcing the law in logical fashion, the court diverted from strictly legal issues to make some social and political observations.  To say that Occupy lacks focus or solutions is to be, simply, wrong.  Every such social expression attracts all sorts of people and causes, but the theme of Occupy is and has been clear and has been consistent with reportage in all major news outlets which analyze the current reality of our country:  economic justice is in trouble today in America.  Let me quote the court itself:

“There can be no doubt that at this writing in Boston, and perhaps throughout the country, an enclave of tents and in a public park connotes the Occupy movement and their 99%/1% view.  Matters of finance and the present economic situation are of intense concern to many people.  There is considerable media attention devoted to Occupy sites, and most articles, per journalistic custom, restate the Occupy position. The media has clearly understood the plaintiffs’ [protesters'] contribution to the national conversation.”

Could have been written by one of the Occupy organizers….


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