Where our Government Went Wrong: Occupy Wall Street and the Constitution

April 6, 2012
By Mohit Mookim SILVER, Englewood Cliffs, New Jersey
Mohit Mookim SILVER, Englewood Cliffs, New Jersey
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From Twitter and Facebook to BBC and CNN, Occupy Wall Street has made global headlines, motivating numerous offshoots throughout the country and world. Although the movement may not have a clearly defined agenda, its basic intentions are surely noble: a plea for fairness and a cry against institutional failures that have created large divides between the rich and poor. Regardless of one’s opinion on the validity of Occupy Wall Street, there are a number of pressing constitutional issues arising from the treatment of the protestors and the media. Specifically, I will examine restrictions on the First Amendment and the usage of force by the authorities.

The First Amendment is firm in its guarantees of freedom, but it is not absolute. There are time, place, and manner restrictions on individual freedom of speech that address gray areas by considering the context and circumstances of speech. However, these restrictions must be content-neutral and narrowly constructed by law. Local and state officials do not have the authority to expand time, place, and manner restrictions whenever they see fit, because freedom of speech is a Constitutional right protected by a number of federal statutes. Many of the municipalities that dealt with the Occupy movement violated protestors’ First Amendment rights by interpreting time, place, and manner restrictions expansively. The Supreme Court recently ruled that the activities of the Westboro Baptist Church, an anti-gay group that protests at funerals, were protected under the First Amendment. If such hateful speech is protected even in light of time, place, and manner restrictions, how then could Occupy Wall Street’s protestors also not be protected?

Critics have spoken out against city life disruption caused by the Occupy movement; that these protesters have disturbed the lives of surrounding people. In the case of Zucotti Park, New York courts ruled to forcibly remove the Occupiers from the park due to poor sanitary conditions and, again, city-life disruption. We are faced with a constitutional choice to make: Do we favor the liberties of the protesters or the surrounding public? The protesters are a largely young group of people that have legitimate concerns about class division and equal opportunity. The public, those living around Zucotti Park, complain about relative trivialities including mild sleep disruption and an unpleasant odor. In my eyes, we are constitutionally obliged to prioritize the rights of these protesters. After all, protesters have explicitly agreed to help clean up the park to alleviate the supposed sanitary risks. Regarding potential traffic disruption, New York City’s government approves nearly twenty parades every year and numerous other public events such as marathons. A movement embodying our freedoms of speech and assembly deserves the same consideration, if not more. The First Amendment involves decisions about priorities, but the Constitution and its legal interpretation surely tips the scale towards individual freedom to assemble over government interference.

The constitution also protects against overly aggressive impositions by the government on its people. Responding to the Occupy movements, many state and local governments also violated the standard for reasonable use of force, as stipulated in the 1989 Supreme Court ruling Graham v. Connor. This standard for reasonableness is determined by the officer depending on the circumstances, but it does not allow for the corruption of the Fourth Amendment. In Oakland, a police officer shot a rubber round into a former Marine’s head. In Denver, tear gas and, again, rubber bullets were used to subdue protestors. In UC Davis, police officers utilized pepper spray on students that were seated. In many cities with staged protests, authorities have also resorted to the tactic of mass arrest to undermine protesters. These arrests—many on charges of disorderly conduct or preemptive in essence—also stretch the legal restrictions allowed under the Bill of Rights. The protestors’ constitutional rights have been attacked so severely that in a few instances, even police unions themselves and city employees pushed back against orders to dismantle protests. I believe the actions taken by authorities against protestors are unreasonable given the explicitly peaceful nature of Occupy Wall Street.

The most flagrant constitutional violations involve protestors, but the press has also come under attack by the government. Reporters have become targets within the Occupy movement, in a manner far too similar to that of brutal regimes in the Middle East. For example, journalists were cordoned off by police officers in Zucotti Park, and many reporters were even beaten or arrested. As a result, the United States fell 27 places to #47 in Reporters’ Without Borders most recent Press Freedom Index. A free press is a precondition for determining the truth; the government cannot abridge this freedom whenever it is inconvenient to support it.

Under the false pretenses of public safety and health, the Occupy movement was dismantled without due regard for Constitutional rights. From the violence towards protesters and unwarranted evictions to the maltreatment of the media, the government truly did falter in its handling of Occupy Wall Street. The constitution itself was crafted through rigorous debate. How can we use this foundational document to quash the same type of conversation about the future of our country? Years from now, the Occupy movement will likely conjure up images of youthful dissent and active participation in democracy. But the sanctity of the protests will also be marred by the glaring failure of the government in upholding the rights enshrined in our Constitution.

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