Balkinization: Ackerman and Benkler on the Occupied First Amendment

Ackerman and Benkler on the Occupied First Amendment

Frank Pasquale

Slate writer Raymond Vasvari recently observed that, "for every uplifting paragraph" of precedent vindicating rights to protest, there are a "thousand cases bending an abstract right to the prosaic realities of protest." We may never learn the extent to which Occupy Wall Street protesters were classified as "enemies within," and subject to coordinated intergovernmental suppression. But we can observe, with professors Ackerman and Benkler, that the "irony of free speech" is reaching a breaking point:

Whatever else it accomplishes, Occupy Wall Street is revealing distortions in our current understanding of the First Amendment. In recent decisions, the Supreme Court has protected Wall Street's constitutional right to pour millions into political campaigns. But as presently construed, the First Amendment isn't an obstacle when it comes to silencing the Occupiers. . . .

Instead of hiding behind obsolete court decisions, big city mayors must recognize that they are on the constitutional front-line. Michael Bloomberg is failing this test when he keeps Occupiers out of New York's public parks and tolerates the arrests of dozens of protesters, providing an example for similar actions in Boston, Denver, and San Diego. In contrast, Antonio Villaraigoso is showing that leadership on behalf of the First Amendment is well within the realm of the politically possible. Los Angeles has not only avoided arrests, but seems to be expanding available public space as the protest swells. Similarly, the U.S. Parks police are on the right track in giving the demonstrators a four month extension on Freedom Plaza.

How to explain Mayor Bloomberg's deviance from constitutional ideals? Maybe he's one of the worried wealthy, realizing that he can only afford another 170 of his trademark $100 million dollar political campaigns with his fortune of $17 billion. Ensconced in an alternate reality of privilege, Bloomberg retails stories of struggling and put-upon banks. It is his very plutocratic disconnection from the daily life of his subjects that makes an extraordinary protest like OWS necessary.

But there is still some hope. Note that Bloomberg's NYPD "sought to block any and all press from covering this eviction . . . reporters were stopped at the barricades and refused entrance." Indeed, "numerous journalists reported that cops refused to let them in, even pushing reporters away; reporters even Tweeted about getting arrested." The mayor and his forces did not want their action fully reported and revealed. That, at least, indicates some residual awareness of the wrongs involved in trying to shut OWS and its "space of appearance" down.

Aaron Bady recently observed, apropos a similar crackdown, that "the University of California is not, in fact, governed by 'a philosophy,' but by the reverse: an active refusal to require a philosophy in justifying its choices." Mayor Bloomberg may be similarly intransigent, never deigning to learn about the real causes of the financial crisis, or the median income of bankers, or the financial shenanigans that put his terminals in high demand while siphoning money away from the rest of us. In that case, the citizens of New York will be governed by him and by an increasingly commodifiable and malleable force as Jersey City once suffered under Mayor Hague. The spirit of Hague v. CIO needs to move the courts of today.

X-Posted: Concurring Opinions.

Posted 12:30 AM by Frank Pasquale [link]