The First Amendment and the Obligation to Peacefully Disrupt in a Free Society
Mayor Bloomberg is planning Draconian new measures to crack down on what he calls the "disruption" caused by the protesters at Zuccotti Park, and he is citing neighbors' complaints about noise and mess. This set of talking points, and this strategy, is being geared up as well by administrations of municipalities around the nation in response to the endurance and growing influence of the Occupation protest sites. But the idea that any administration has the unmediated option of "striking a balance," in Bloomberg's words, that it likes, and closing down peaceful and lawful disruption of business as usual as it sees fit is a grave misunderstanding -- or, more likely, deliberate misrepresentation -- of our legal social contract as American citizens.
Some kinds of disruption in a free republic are not "optional extras" if the First Amendment governs the land, as it does ours, and are certainly not subject to the whims of mayors or local police, or even DHS. Just as protesters don't have a blanket right to do everything they want, there is absolutely no blanket right of mayors or even of other citizens to be free from the effect of certain kinds of disruption resulting from their fellow citizens exercising First Amendment rights. That notion, presented right now by Bloomberg and other vested interests, of a "disruption-free" social contract is pure invention -- just like the flat-out fabrication of the nonexistent permit cited in my own detention outside the Huffington Post Game Changers event this last Tuesday, when police told me, without the event organizers' knowledge and contrary to their intentions, that a private entity had "control of the sidewalks" for several hours. (In fact, the permit in question -- a red carpet event permit! -- actually guarantees citizens' rights to walk and even engage in political assembly on the streets if they do not block pedestrian traffic, as the OWS protesters were not.)
I want to address the issue of "disruption," as Bloomberg is sending this issue out as a talking point brought up on Keith Olbermann's Coundown last night: the neighbors around Zuccotti Square, says Bloomberg, are feeling "disrupted" by the noise and visitors to the OWS protest, so he is going to crack down to "strike a balance" to address their complaints. Other OWS organizers have let me know that the Parks Department and various municipalities are trying to find a way to eject other protesters from public space on a similar basis of argument.
Please, citizens of America -- please, OWS -- do not buy into this rhetorical framework: an absolute "right to be free of disruption" from First Amendment activity does not exist in a free republic. But the right to engage in peaceable disruption does exist.
Citizens who live or work near protest sites or marches have every right to be free of violence from protesters and they should never be subjected to destruction of property. This is why I am always saying to OWS and to anyone who wants to assemble: be PEACEFUL PEACEFUL PEACEFUL. Be respectful to police, do not yell at them; sing, don't chant; be civil to pedestrians and shop owners; don't escalate tensions; try to sit when there is tension rather than confront physically; be dignified and be nonviolent.
But the First Amendment means that it actually is not up to the mayor or the police of any municipality, or to the Parks Department, or to any local municipality to prohibit public assembly if the assembly is peaceful but disruptive in many ways.
Peaceful, lawful protest -- if it is effective -- IS innately disruptive of "business as usual." That is WHY it is effective.
The Soviet Union was brought down by peaceful mass protest that blocked the streets and filled public squares. Many white residents of Birmingham Alabama in the 1960s would have said it was very disruptive to have all these African Americans marching through Birmingham or protesting the murder of children in churches. The addresses by Dr. King on the Mall were disruptive of the daily life of D.C. King himself marched without permits when permits were unlawfully applied. It is disruptive to sit at a whites-only counter and refuse to move and be covered with soda and pelted with debris and dragged off by police. It disrupted the Birmingham bus system for African Americans in the Civil Rights movement to organize a bus boycott. It is disruptive when people refuse to sit at the back of the bus.
When Bonus Marches -- thousands of unemployed and desperate former veterans who had been promised and denied their bonus checks in the Depression, which they needed to feed their families -- camped out for months on the Mall in D.C. and sat daily (when this was possible) on the steps of Congress, they won, eventually, because of the disruption. Some of the power of real protest, which is peaceful and patient and civil but disruptive, comes from the emotional power of the human face-to-face: all those Congresspeople had to look those hungry men in the eyes on their way to legislate the decision about the bonus.
Most of us need to remember, or learn for the first time (since this information is usually concealed from us) that the First Amendment, and the Constitution in general, supersedes all the laws of municipalities in violation of the constitution, as stated in the 1925 Gitlow v. New York ruling. So the First Amendment supersedes the restrictive permit laws now being invoked against protesters. The First Amendment was designed to allow for disruption of business as usual. It is not a quiet and subdued amendment or right.
Indeed, our nation's founding was a series of rowdy and intense protests, disrupting business as usual for tax collectors and mercenaries up and down the eastern seaboard. Even after the establishment of the new nation massive, highly disruptive protests of various laws, Congressional actions, and even of foreign policy were absolutely standard expressions of political speech, and whether they liked the opinions expressed or not, these protests were spoken of by Jefferson, Benjamin Franklin, Washington and others -- some of whom themselves were the subjects of these protests -- as part of the system they had set in place working, and the obligation of American citizens.
Dr. King, when asked about disruption, said that the disruption caused by peaceful protest is good and healthy in a society, because it is the result of festering problems that need to be addressed and that are buried being brought into light to be dealt with constructively.
But I would want to remind OWS, and any protesting group, that peaceful and dignified disruption of business as usual is very different from violence, anarchy or rioting, which must always be avoided. This is why I keep telling OWS and others: be peaceful. Don't march in a militaristic way. Don't cover your faces or let anyone with you cover their faces. Bring old people. Bring kids. Bring instruments, form bands of musicians and singers. Don't fight. Don't destroy property.
If neighbors complain about mess, bring brooms (as the Egyptians did) and clean up, not just the park but the whole neighborhood. Bake cookies FOR the neighbors. Be the good examples of civil society that you want to spread. Bring whole families (good job with that family sleepover in Zuccotti Park last night). I would go further: emulate the Civil Rights movement and wear your Sunday best at key times when you protest. Wear suits and dresses when it is practical, or wear red, white and blue when conditions are rougher. Bring American flags. Bring the Constitution. Don't give the narrators any excuse to marginalize you because of the visuals or because of any individuals' erratic or anarchic behavior.
My grandma, Fay Goleman, died last year at 96, at just around this time of year. She loved this county -- LOVED this country -- and I felt her memory very strongly when I could not physically move out of the arresting officer's way last Tuesday. She was born to refugees from the Czar's Russia, and she knew what police and military intimidation of free speech and free assembly meant. Dr. Goleman, who was barely five feet tall but who had an enormous spirit, marched decade after decade for seventy years: she marched for peace; against the nuclear bomb; for civil rights and so on. She spoke up at town councils and served on local government commissions and believed that people had the responsibility to govern their own communities and to take action and not just complain. She always wore hats and white gloves when she marched, and she held herself in that context with great lady-likeness and civility.
This formality was partly to honor the great gift and great occasion that is the American gift of free assembly. And she always said: "Activism is the rent we must pay for the privilege of living in a democracy. Protest is how you pay your civic rent." (Tiny as she was, she also had no patience for people who were willing to be deterred from the path they knew was right by bullies.)
She taught me that activism and petitioning government for redress of grievances is not a choice if you live in America. If you are American, it is an obligation. The Founders did not give this task to us as an option, but rather demanded it as an obligation: we are compelled by their social contract in the Constitution to protest and engage in free assembly when government has stopped listening to us. That is why the First Amendment comes first: everything else flows from it and is built upon it.
You can borrow my Grandma Fay's example and memory, if it is helpful: I am sure she would not mind and, indeed, would probably get a kick out of it. But you can also borrow Gandhi's or Dr. King's, for that matter, who made enormous disruptions -- the biggest of disruptions -- of daily life in Birmingham and D.C. and Delhi and in the brokerage houses of the London financial markets -- with the great discipline of peacefulness and nonviolence.
Bloomberg is flat wrong, and he doubtless knows it but hopes you won't notice: New Yorkers have no right to be free of any disruption from the peaceful but disruptive free-speech actions of their fellow citizens, and how New Yorkers lawfully and peacefully assert their First Amendment rights is actually not up to him. There is a higher authority than Michael Bloomberg, or than the NYPD, or even than the guy in the white shirt who signaled to his colleagues to handcuff me earlier this week when I stood peacefully on a sidewalk, obeying what I had confirmed to be the law: and that higher authority is called the Constitution of the United States of America.