Gene Policinski: ‘Occupy’ crackdowns limited by First Amendment

  The comparisons have already started — police in Egypt attacking demonstrators with clubs and tear gas, and police in a number of U.S. cities breaking up “Occupy” camps with clubs and tear gas.

  If you’re a demonstrator in Cairo or Oakland, any difference between foreign and domestic nightsticks and pepper spray probably doesn’t matter a whit. And the outrage by some over police tactics in New York City and on the campus of UC Davis in California is just as real as the international condemnation of crackdowns in several Middle Eastern nations as the hopes of the Arab Spring hit the harsh realities of realpolitik Winter.

  Yet we should not lose sight of important differences: The limited nature of American police actions, and the ability of those injured or arrested to protest against, even sue, authorities who overstep legal boundaries. Looming large over every Occupy demonstration is the First Amendment’s protection of assembly and petition — still a huge barrier to authorities who would wish the anti-Wall Street movement to evaporate along with the last wafts of tear gas or pepper spray.

  We’ve seen this push and pushback before in our nation’s history.

  Not long after the nation was founded, Congress enacted a whiskey tax. In western Pennsylvania, opposition grew until 1794 when an armed group attacked the home of a tax collector. After negotiations went nowhere, President George Washington sent 13,000 troops to the region and the Whiskey Rebellion died out.

  Legal protections for the public’s right to assemble and to “petition for redress of grievances” are rooted in court decisions from the previous centuries:

  An 1876 Supreme Court case, United States v. Cruikshank, in which Chief Justice Morrison Waite — though supporting an idea of citizenship rights discarded today — expressed a noble view of the right of petition. He said that “the very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably” to seek changes in government actions and policies.

  A 1937 ruling, Dejonge v. Oregon, in which the Supreme Court held that the right of assembly is equal to those of free press and free speech — even if the views involved are repugnant to much of society.

  Hague v. CIO (1939), in which Justice Owen Roberts wrote that “streets, parks and public places belong to citizens … and must be protected as public forums.”

  Public protest is in the very DNA of the USA. We’re a nation born of protest and petition in the form of the Declaration of Independence; buttressed by the guarantees of the First Amendment; and nurtured by a history of public gatherings, marches and protests on issues ranging from taxes to civil rights to women’s rights to war and peace.

  Government has the right — indeed, the obligation — to be concerned about public safety, security and sanitation, and to safeguard the rights of us all from being trampled by the actions of others.

  But government does not enter on an equal legal footing with the public when it marches into the public square — or Zuccotti Park — to suppress speech, protesters or press. By law, officials must show that limitations or restrictions are absolutely necessary for a greater public good, and that those limits are the least-intrusive actions necessary to accomplish that good.

  Unlike dictators, despots and despicable tactics, the 45 words of the First Amendment adopted in 1791 really are the ultimate power.

  About the author: Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.

  This article was published by the First Amendment Center.