The Right To Occupy

By DAVID S. BERNSTEIN  |  November 22, 2011

Protesters and government officials frequently bicker over the limits of public expression. For the 2004 Democratic National Convention, Boston officials — citing security and logistical issues — tried to push the protesters far away from Boston Garden. Civil-rights lawyers tried to push closer, arguing that free expression loses meaning at too great a distance.

The ACLU and LNG did battle with the city then, and is doing so now, through designated attorney Howard M. Cooper of Todd & Weld.

But in this case, the argument rests not just on location, but on the movement's need to camp out overnight at all. The question is whether ending the 24/7 encampment, in legal terms, "leaves open ample alternative channels for communication" of the protesters' message.

The answer is no, Cooper argues, because the encampment is the channel of communication. As he wrote in a memorandum, "The occupation of Dewey Square is not just integral to the protesters' expression of their grievances; it is their protest."

He means that Occupy Boston provides, for public consideration, a fully functioning society that gives equal voice to all — one that stands in contrast to the unequal, interest-dominated society they are protesting. Cooper points to the consensus-model general assembly, the cooperative allocation of resources, and the working committees as examples.

"The argument of the protesters is that we're going to show you how to have a more just, egalitarian society," Cooper tells the Phoenix.

Legal precedent, however, is not on their side. In 1984, the Supreme Court ruled, in Clark v. Community for Creative Nonviolence, that the National Park Service could prevent protesters from establishing a "tent city" to bring attention to the plight of the homeless.

In that case, the court acknowledged that the act of sleeping outside (on the National Mall, among other places) was an expressive act of protest about homelessness. But the majority ruled that the government could nevertheless, in the interest of maintaining the park, prevent the protesters from expressing themselves in that particular manner.

Cooper and other local civil-rights attorneys believe that there are relevant differences between this case and Clark. They also suggest that the Massachusetts state constitution may provide additional protection.

It will be up to the courts to decide the legal question. But perhaps more important, in the long term, is what the Occupiers themselves think. What is the future of the movement if they believe, as Cooper argues, that Occupy Boston is inseparable from the occupation of Boston?


In a way, this question boils down, somewhat paradoxically, to whether the protesters are right in their broader argument. That is, whether the wealthy one percent have rigged the rules of society against the interests of the 99 percent.

In the Clark decision, Justice Byron White wrote for the majority that there was no "barrier to delivering to the media, or to the public by other means, the intended message concerning the plight of the homeless."

But the Occupiers' thesis is that of course there are barriers. The wealthy, who want no popular dissent, control the media, the politicians, and the very structures of conveying information. That self-protecting power of the one percent is not only the object of, but also an inherent obstacle to, the Occupy protest.

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  Topics: Talking Politics , Politics, mass politics, Occupy Boston
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