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Scary Tactics

October 28, 2011

Occupiers in various cities around the country have been the victims of some pretty harsh clampdowns of late, including the use of tear gas and rubber bullets. As such, I’m having trouble seeing what justification there is for these kinds of riot-police like tactics. As you may have heard, some of the latest victims of the wave of repression of political speech include former marines who served in Iraq and Afghanistan, and one shot by a rubber bullet in Oakland had to undergo life-saving surgery. And the Department of Justice apparently isn’t going to act to stop this repression. What a way to honor the troops! I thought we had determined that rubber bullets were unsafe a while ago, but they’ve probably been rebranded as freedom bullets or something like that.

I can only hope and assume that some private lawsuits will attempt to challenge these tactics, and thereby prompt a shift in First Amendment jurisprudence, given the various freedoms of the First Amendment that are implicated by the Occupy movement.  As some would count it, there are five freedoms guaranteed by the First Amendment:

  1. Freedom of religion
  2. Freedom of speech;
  3. Freedom of press (this is really the same freedom as speech in my reading; reporters shouldn’t have any special freedom to speak or report the news than the rest of society enjoys);
  4. Freedom of peaceable assembly; and
  5. Freedom to petition the government for a redress of grievances.
"Freedom of Speech"

Image via Wikipedia

The absurdity of the argument that these repressive tactics are preserving the American democracy is pretty apparent. What values are these riot police fighting for? Not freedom of speech, that’s for sure. Not the rights of the citizens to assemble, let alone to petition the government for redress of their grievances. They’re protecting what soldiers of any stripe protect: their bosses. What irony that America condemns foreign dictators in Egypt, Syria, Libya, etc. for their repression of citizens attempting to peaceably assemble to affect change in their governments, when we are tear gassing and shooting our own people attempting to do the same! What an undercutting of our position on an ideological scale! What bald hypocrisy and inconsistency! Don’t Americans of any political stripe deserve the same human rights that other people around the world deserve?

Zeynep Tufekci

If was in Damascus, U.S. State department would be telling Wolf Blitzer how unacceptable it was to teargas peaceful marchers.

Even when the repression isn’t particularly violent, targeting this particular brand of political speech seems extremely constitutionally suspect. For example, Tennessee recently enacted a law that prevents camping overnight near the state capitol in Nashville, prompting Tennessee state troopers to arrest several of the protesters. I would find it pretty hard to argue that the law was content-neutral in terms of either its purpose or effect, but similar statutes have been upheld as content-neutral in the past.

A quick primer for non-lawyers: if a law regulates the content of the speech (i.e., it targets some specific idea or topic of speech), it is almost certainly going to be struck down as unconstitutional, but if a law has equal application regardless of the speech’s subject matter, it can be upheld.  However, the definition of “speech” can be tricky. In Cohen v. California, wearing a shirt that read “Fuck the Draft” in Court was considered expressive speech, even though California argued it was only regulating behavior (namely, wardrobe in court). But whether a court will construe tents in a public square or government building’s courtyard a form of expression is another open question. And for once, Orange County seems to be the forefront of a liberal interpretation on the question and has declared the Occupy tents to be speech, while New York mayor Michael Bloomberg says no.

Though the right seems to have no great criticism of the Occupiers other than that they are smelly, this repression stinks much worse.

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