NYPD Attack on OWS and the End of the First Amendment

Not only did the police, at the orders of billionaire mayor Michael Bloomberg, abruptly move on the protesters, they are alleged to have deliberately kept the press away, which is clearly unconstitutional if true.

The US constitution prohibits Congress from restricting the right of citizens to assemble peacefully and to petition for redress of grievances. For a history of the relevant US Supreme Court cases, see this link.

The government is also forbidden to interfere with the workings of the free press, so that the NYPD’s attempt to keep reporters away from the scene of their unprovoked attack on the demonstrators compounds the unconstitutionality of it all.

One of the ways that the First Amendment has been constrained is that fewer and fewer public spaces are still considered “public” (Zucotti Park is privately owned even though it is a park in a city).

In contrast, our emails, bank transfers, and our automobiles parked in our driveways have all been declared “public.”

So the government has invaded private space, declaring it public for purposes of monitoring the public (a violation of the Fourth Amendment). And it has pushed the public out of formerly designated public space by allowing its privatization, so as to prevent the public from demonstrating and peaceably assembling and seeking redress of grievances.

Over time, the US government has gradually found ways to render the Bill of Rights increasingly toothless, and to move us toward authoritarian governance and constant domestic surveillance.

33 Responses

  1. This is just the latest attack on the rule of law and civil liberties.

    Time to get into the former first ammendment attorney, and now top level political commentator, Glenn Greenwald. He is on a book tour for his new book “With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful.”

    Here is his speech on the rule of law at Claremont College. Click on the first segment and it will automatically move between the segments.

    link to youtube.com

    three short segments of question and answer from that talk

    link to youtube.com

    Glenn at Brown University a few months earlier on Civil LIberties in the Age of Obama

    link to youtube.com

  2. Government must be 100% transparent. All government documents must be public information or invalid otherwise. Then true democracy will happen. Then the non-violence will be the ultimate effective way of managing the government.

  3. Juan had an excellent piece a couple of days ago about the global parallels of OWS.

    One of the implications is that the movement can be stamped out for a while in one place, but it will appear and change in other places.

    This is happening here in the USA. In the very day that NYC drove out OWS and attacked the constitution as noted by Juan in this post, the city of Seattle adopted a unaminous resolution in support of OWS. And they pledged city actions like moving money out of big banks and restoring the Bush tax cuts. One down, one up, hundreds of other OWS actions going on.

    Here is a dailykos diary on Seattle in the state of Washington.

    link to dailykos.com

  4. Well, I am in sympathy with OWS, free speech and right to peacefully assemble, but I also like facts. The last time that Zucotti Park was to be cleared for cleaning it was at the request of the company which owned the park and, although such was not reported, I suspect that we will find it was done at their request this time. The government must allow free assembly, but private parties do not have to.

    I certainly share your concerns about the erosion of civil rights and the governmental control of the media, but not every instance of something that we don’t like is nesessarily an ecample of such erosion or control.

    The government may properly prevent the press from interfering with law enforcement in the proper execution of their duties. Media is routinely barricaded from crime scenes, for instance, and is restrained from entering arenas where there is a potential for violence. Would you say that preventing the media from entering the bank along with a hostage negotiator is a violation of the constitution? Or preventing them from accompanying police when they enter the compound to quell a prison riot?

    • As far as I can tell Zucotti Park has never been public space. It was created as a trade off for permission to build higher by US Steel on property adjacent to its office building, and such agreements are usually made by the private party conceding private property to public use. I’m not sure I would concede that if a private party provides public access to its property it loses the right to control that property by doing so.

      • I will stand corrected on th “public space” commnet. It may be private space, but Bloomberg is clearly treating it as public space, and the owner does not seem to be playing a role at all. Bloom berg also appears to be violating court orders. Erosion of civil rights is definitely an issue here. Sorry.

  5. An interesting bit of information about NYPD rarely disclosed,is that they get some training in Israel in riot control and “terrorist” intel.In that Israel riot control usually devolves into use of live ammo. at the drop of a dime this should be troubling. IDF modus operandi usually involves planting their own agents provoqueter in crowd to intiate rock throwing which is followed by return gunfire.

    • Interesting conspiracy theory. Could the Rosicrusians and Freemasons (not to mention the remaining elements of the Knights Templar) also be involved?

      • Cointelpro, Bill. The FBI historically put infiltrators into both left wing and right wing groups who then tried to steer them towards violence, which obviously is good for the infiltrator’s career and the Bureau’s budget. This method was used to carry out the extermination of the Black Panthers.

  6. This is what Sheldon S. Wolin calls “Managed Democracy” in his indispensable book “Democracy Inc.”. One of the symptoms of “Inverted Totalitarianism” is a democratic charade devoid of substance.

  7. Professor Cole,

    While I respect your opinions and believe that you are an extremely intelligent and astute individual, this article should have been posted a long time ago. Not only have the NYPD, but local law enforcement in other countries have also pursued a policy of strict police brutality against a non-violent and peaceful movement. OWS gatherings across the country have in fact been brutally put down by a number of different police organizations.

    Additionally, I doubt that if the media had been allowed in, they would have reported fairly on the situation. OWS in the US has been unfairly categorized and identified by a biased media which has underreported the cases of police brutality against OWS members and dismissively judged the movement. The only outlets that have given OWS fair representation have either been the international media, or the team of bloggers and tech savvy individuals who have reported from the scenes of the various OWS protests.

    I am not a OWS member or supporter, but I am a person who believes that OWS is something that fundamentally American – i.e. the right to peaceably assemble and air grievances. People have knocked OWS for not having a point, or demands, etc. but the fundamental thing that people seem to dismiss without care is the fact that for many Americans OWS represents an opportunity to find common ground with people who may have experienced the same struggles as them or even for the people who always wanted to say something, but could not find the forum or community in which to express themselves.

    OWS is also not unorganized. The only reason the organization and the protests have survived for so long is because some of the members of OWS are extremely technologically literate people who have set up a viral news network designed to circumvent the national media’s lack of attention. Not only have they been the targets of subversive cyber attacks, some orchestrated by local governments, but they have survived because they are that motivated and that much smarter than the attackers.

    OWS will probably not be relevant in 10 years, but the actions of the government have shown that it will probably be necessary.

  8. Nothing really changes, at least below the surface.

    Today we have a set of back-bench leadership with PhDs in political science; We have a sophisticated set of public relations firms. And we (they) have learned the utility of vaseline.

  9. Thank you so much for researching and writing this. Your understanding and wisdom regarding the “true nature” of what is “really going on” is both inspiring and refreshing.

    This “waking up” process the world is going through (Occupy) couldn’t have come at a better time and is in need of the help of experienced and knowledgeable writers to help articulate the define exactly what is being done to destroy the Constitution and Bill of Rights.

  10. It’s time to take this movement to Ann Arbor and U-M! Occupy Ann Arbor has been holding General Assemblies and protests for several weeks.

    Tonight we will have a social forum to discuss movement-building and the relations between Occupy and labor: link to facebook.com

    Thursday we will have a teach-in about the Occupy movement: link to facebook.com

  11. The bill of rights is not toothless for corporations: they recently got the right to spend unlimited amounts on politics. The bill of rights is not toothless for gun owners: they recently got handgun control laws struck down in DC. It has teeth for Republican issues.

  12. The Occupy Wall Street participants were not denied their right to “assemble peacefully and to petition for redress of grievances.” They “occupied” Zucotti Park for two months and had plenty of time to make their grievances known. Moreover, in doing so, they “occupied” a privately-owned park which they had no constitutional right to take over, even though they were allowed to remain for two months at the sufferance of the owner and the city. In the end, the owner and the city had every right to finally remove the OWS from the park.

    It is amusing how closely the Left mirrors the Right in their approach to such situations. The Right is constantly and forever finding “Socialist conspiracies” in any attempt to use government as a tool to better people’s lives. The Left, conversely, is constantly and forever finding “Faschist authoritarianism” in any attempt by government to enforce the law and protect private property.

    • thanks, Mr. Bloomberg. However, where is it near Wall Street that you believe people can peaceably assemble to protest?

      In the 18th century they could have assembled in most of the city.

    • Meanwhile, we objectively get weaker and weaker, and the rich get stronger and stronger. Which side are you on, Bill?

    • Both you and Professor Cole have made broad statements that fail to address the legal subtleties of the status of Zuccotti Park. First of all, Zuccotti Park is a privately owned public space. It was built by a private interest who decided to use land they owned to build a park in exchange for a break on zoning regulations for another structure. The park itself is considered public space, meaning that it must be accessible 24 hours a day. At the same time, the owners of the park must comply with a set of city regulations governing such spaces, and are allowed to establish ‘reasonable’ park rules.

      This creates a very odd set of First Amendment questions. Since the park is considered public space that is supposed to be accessible at all times, it seems that the protesters did have a right to occupy it. On the other hand, the owners of the park are allowed to establish rules to aid in the maintenance of the park, and forbidding the erection of structures, tents, etc. would be considered a legal restriction. On the other hand, the protesters can argue that such restrictions were imposed to restrict their rights. At the same time, the owner of the park and the city can argue that the protesters have disobeyed the laws governing such spaces and impeded their ability to clean the space. And then there is the question of the applicability of the 1984 Supreme Court Case Clark v. Community for Creative Non-Violence, in which the court ruled that protesters could not sleep in the National Mall in defiance of National Park Service regulations.

      Taking all this into account, your claim that the protesters never had the right to occupy Zuccotti Park and that the city and owners had every right to remove them is, at best, questionable. At the same time, Professor Cole’s complaints about turning public spaces into privately owned spaces does not apply in this situation at all, seeing that Zuccotti Park exists because private property was converted into a public space.

    • This wasn’t just a matter of enforcing law. The owners of the park had originally agreed to let the protestors stay there. If the owner wanted the protestors to leave and Bloomberg and the police were interested in enforcing the law they would have given the protestors notice to and they would have done the raid in the daytime, not at night. The oligarchs are trying to shut the protests down (they have been doing this from the beginning but have lately stepped up their efforts). They kept the press out because they did not want any witnesses to what they were doing. Their actions were cowardly. They also did not let the protestors back in even though they were ORDERD to do so by a judge. Are Bloomberg and the police above the law? I visited the park last weekend when the protestors were there (I am from Texas) and found it to be a ray of sunshine among what is a depressing part of the city. In removing protestors the only police I have seen do it properly were police in Austin, TX and I have seen hours of live feed. Police have unfortunately been brutal in most cases. But then we are a police state. You can continue to deny this if you want, Bill, but one day you may see your First Amendment Rights violated also. The pattern is always the same when people protest and stand up for injustice…this has happened throughout our history. Oligarchs do not like it when the peasants do not stay “in their place.”

  13. The first amendment (and the rest of the constitution) means whatever those in power want it to mean. It’s a “living document” subject to new interpretation.

    For example “Congress shall make no law … abridging the freedom of speech” means congress does not have the power to abridge speech *unless* it’s hate speech, anti-American, harmful to minors, comes from a corporation, pornographic, from Occupy Wall Street, etc. The list of exceptions depends on who is in power and often has the blessing of the courts and the population at large.

  14. There is a marvellous site in the UK detailing the acts of groups dedicated to preserving public space. They use humour and innovative nonviolent actions . Space hijackers.uk.

  15. Possible killing blows were struck upon the Occupy Wall Street movements in many America cities this last weekend when mayors closed down parks and areas of OWS occupation with their police illegally arresting and attacking non-violent protesters.

    Were these individual actions part of a planned coordinated action by the mayors, the “powers that be” and other higher authorities to kill the OWS movement?

    It appears that the lack of a specific goal is resulting in the growth of individual groups with more focus, some on aggression. You must realize that many of the “powers that be” want to shut down the OWS movement. For them to seed the OWS with “trouble makers” is not hard to believe. Add this to the negative publicity, the cold weather and that many homeless and street people are mixing in with the OWS protesters to take advantage of the OWS services, food and supplies resulting in some minor clashes which discourages or turns away many serious OWS supporters and gives the mayors excuses for police actions.

    Will the combination of the mayors aggressive, illegal actions of closure with the above observations result in a temporary or more serious halt of the OWS movement?

    Are we going to see any more massive OWS weekend marches and protests which are the blood and strength of the OWS movement that keeps it alive and strong?

    My own conclusion and action consists of bringing to the attention of all OWS supporters and of the 99% of Americans what I believe should be their immediate prime goal that addresses all their individual goals:

    Change election laws and processes so that both multiple parties and candidates can run and be elected in 2012.

    America must replace the corrupt Republicans and Democrats with politicians that will represent the 99% of Americans.

    Is it too late? Gerrymandering and the electoral Congress must be stopped, eliminated.

    Congress would fight these changes.

    Could a united movement by 99% of Americans forced Obama to issue presidential executive orders changing election laws?
    Or would Obama ignore the voice of 99% of Americans?

    Americans must change election laws and processes to save the future of America & the world.

    enough.

  16. as liberal gun owner, I have to say- the 1st Amendment only has teeth if it is joined by the Second Amendment. If the government has nothing to fear, they will terrorize the population-

  17. I live in NYC. Folks are bored with OWS. Go there. What do you see? Jeffersonian jurisprudence? More like a bunch of homeless. The hour of the sleepingbag has passed in the minds of most NYers; the hour of office space has arrived. OWS should start a bank. That is possible and practical, it would provide employment for protestors and a chance to walk the talk.

  18. Professor Cole, Have you looked at how the Islamic banking model might be an appropriate alternative to the current status quo of the American financial system? I do of course realize that in its typical fashion it is tied to Quranic obedience, but its notions of interest and conservative economic practice might find many people to seriously considering it.

    thanks for a great site too….

  19. NYC downtown is covered by many “security” video cameras (police cameras, I imagine). Wonder if any of those cameras recorded the police action and whether, in that case, the film was destroyed.

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