Last week the NY Daily News ran an Op-Ed by DoL contributor Bob Hockett, arguing that the Bloomberg administration should not have cleared the Occupy Wall Street protesters from Zuccotti Park. Newspapers have stricter word limits than blogs, so I'm posting the full version of Bob's argument below. Here it is:
Mr. Bloomberg, Tear Down This Wall
by Robert Hockett
Those arguing the legalities of last Tuesday’s developments around Zuccotti Park are missing what matters most. The real question has never been whether City or other governmental authorities constitutionally may place certain ‘time, place, and manner’ restrictions upon exercises of the right to political speech. The question is whether they should. And the answer to that question is easy: they shouldn’t – at least none that were not already in place and, one might add, well respected by the Occupiers themselves.
First amendment jurisprudence has long recognized that public authorities must balance the core American freedom of political expression on the one hand, with the public health and safety on the other hand. The problem is that how, precisely, this balance is best drawn always varies with circumstances. What restrictions on speech are reasonable in a crowded theatre are different from those that are reasonable in a city park or a forest preserve. For this reason first amendment litigation tends to be what lawyers call ‘fact-intensive’ – much like fourth amendment litigation concerning ‘reasonable’ searches and seizures. And this in turn means that first amendment litigation is prone to substantial expense and uncertainty, not to mention high risk to a foundational American – and indeed human – value.
In light of these uncertainties, as well as of the incalculable value of political expression, wise public authorities seek when possible to make pragmatic accommodations with those wishing to exercise first amendment rights as their Founding forebears did. Why waste resources on needless police action and uncertainty-fraught litigation, not to mention risking harm to our most cherished freedom, when it is easy enough to compromise ‘on the ground’ with protesters so as to satisfy both the values of free political expression and those of public health and safety? Why indeed.
Now consider what has been underway at Zuccotti Park. First what we owe to the Occupiers and their recent exercise of free speech – or, in an idiom familiar to Wall Street, the ‘value’ they ‘add.’ Then how easy it has been thus far, and can continue to be, for authorities to preserve this value by maintaining workable accommodations with them.
The value the Occupiers add? This: Over the past months the nation has at long last awakened to an awkward and scandalous fact, and has sloughed off a paralyzing taboo: the fact that we’re becoming a banana republic, and the taboo against noting that fact aloud. The Occupiers are those we must thank for the awakening and the taboo-sloughing alike. We needed and need them – them and their exercise of those rights we all have but too seldom employ. They are our national conscience – our better and more honest selves. The longer they’re active and ‘there,’ where they started, the more apt are we to hold on to our still only newly recovered selves. We must have them there in the Park – indeed in more parks – till our longstanding national breach is well healed.
The breach? This: We all know now, thanks to the Occupiers themselves and the news media that have reported on them, that real wealth and incomes everywhere but at the top of the ladder have stagnated for 30 plus years in our nation, resulting in skews we’ve not seen since the late 1920s. The fact that a financial crash and ‘great’ depression followed that last skew just as they’ve followed the present one is no accident. Concentrated wealth finds its way into destructive speculation, while poverty below the top drains consumer demand and, with it, gainful productive employment from the economy. Stagnating incomes and wealth at the bottom also, of course, fuel overextensions of consumer credit. The American Dream, no longer affordable, comes to be mortgaged. We’re now living the aftermath of that mortgage’s default.
Turning from economics to politics, it also is no accident that we find public corruption and political dysfunction run rampant where wealth and incomes skew so dramatically as now. It has always been vibrant middle classes who have held governments to account, with some assistance from publicly minded wealthier folk. Less publicly minded plutocrats purchase policy instead, by purchasing elections, while underpaid masses are too busy struggling to engage politically. That is why poverty, stagnation, embarrassing national weakness – ‘imbecility,’ as Alexander Hamilton once called it – and dictatorial government for so long endured in our Latin American neighbors – the first ‘banana republics’ – when a very few owned the land and the rest were effectively peasants. And it is why those same neighbors now look more vibrant than we, since commencing at last to build real middle classes in the late 1990s.
Notwithstanding these glaringly obvious facts, folk long have feared to remark them aloud for the past 30 years, evidently for fear of being branded ‘class warriors’ – as if the ‘war’ were in the complaint rather than in the theft that elicited the complaint. And so it has fallen upon the Occupiers to act, like the child who at last noted the emperor’s nakedness, to name our national illness for what it is. Even their other name – ‘the 99%’ – serves to focus the spotlight where it belongs. Evict them and you evict the spotlight. And you evict an organic example – a living and breathing, latterday ‘city on a hill’ – of what a real democracy and just economy might look like.
That takes me to the accommodations I mentioned, ‘accommodations’ in both senses of the word: living conditions, and arrangements with public authorities. I have spent many a day and night in Zuccotti Park since September. Anyone else who has done so – including, I’ll wager, the police and the Occupiers themselves – will tell you what I tell you now. The Occupiers, and the police who have worked with them throughout the Occupation, have with very few exceptions proved to be marvels of democratic action, fair treatment, mutual consideration, and restraint. Begin with the police, who have served not only to keep pedestrian traffic moving along the sidewalks surrounding the park, and pedestrians out of danger of automobile traffic, but also to protect the Occupiers themselves from the dangers of exploitation by criminal elements viewing them as easy marks. The Occupiers have noted this fact, repeatedly thanking the police for risking their own lives in protecting not only them, but the citizenry at large, while also occasionally observing aloud that the police are themselves among the 99% – an observation in response to which I have seen officers nod in agreement.
Turn next to the ‘community alliance’ members among the Occupiers, many of them Iraq and Afghan war veterans, who have worked closely in conjunction with the NYPD to maintain safety and order within the encampment. Now consider the ‘sanitation department’ maintained by the Occupiers – an assortment of brooms, dustpans, wastecans and recycling bins overseen by a few volunteers, all of which equipment has been employed on an as-needed basis by the Zuccotti citizens themselves when refuse or litter has been spotted. Turn next to the ‘comfort station,’ where those in need of warm clothing or sleeping bags have found what they’ve needed, much of it knitted by elderly volunteers who are themselves Occupiers. Now note the medical facilities – tents marked by red crosses fashioned of tape, stocked with first aid materials used by volunteer doctors and nurses, again themselves Occupiers, in aiding those in need. Next consider the orderly walkways that criss-cross the whole, facilitating ease of ingress, egress, and movement throughout. See also the kitchen, the large and well catalogued library, the water treatment and recycling facility, the art department, the inter-denominational worship space, and all manner of additional development that has gone into making the Park a sort of borough in the making – a borough that functions much more effectively than many towns we now find, and that does so for all of its members, irrespective of age or ethnicity or familial background, all of which are well represented in the movement.
The whole thing has bordered on miraculous. If you’ve been there, you know. And all of this all has been done from the ground up, by ordinary citizens acting in ‘grass rootsy’ concert with one another – and with the surrounding police – much as the first towns in our nation were founded. And I have not even mentioned yet the way the political process has worked here – a process in which everyone has, literally, not only a voice, but the voices of all others – via the vaunted ‘human microphone’ mode of amplification that has come to be emblematic of the Occupy movement itself. The effect of this mode of participation, which does the celebrated ‘New England town meeting’ one better, is striking. There is something liturgical, almost, about the ‘call and response’ character that political discourse has taken on in the Park, as if politics and community decision-making were sacred activities. (Are they not?) And there is something remarkably respect- and solidarity-producing about having not only to listen to what one who disagrees with you has to say, but also to repeat it so that everyone can hear it. It is scarcely surprising that meetings like this produce group decisions to cut down on drumming when neighbors complain, or to break into specialized ‘working groups’ tasked with studying particular matters more carefully so as to aid General Assembly decision-making. Nor is it surprising that here, where the power of words, ideas, mutual respect and political discussion are taken so seriously, violence is considered distinctly ‘uncool’ and is gently quarantined the moment that somebody seems just a little too agitated.
We’ve often heard, in the last couple of months, from people complaining they don’t know what OWS ‘stands for,’ what its ‘agenda’ is, or the like. And we’ve heard, now more recently, from Mayor Bloomberg and a very few others that the Occupiers pose some obscure threat to public ‘health’ or ‘safety,’ and that the City’s accordingly possessed of authority to destroy this, its newest and still-nascent borough. The answers to these uncomprehending complaints and fatuous claims alike were quite recently – even on Monday – right under our noses. And my figurative bet, like my literal prayer, is that they’ll be there again very soon: If you want to know what the Occupiers stand for, look at their other name – the 99% – and the borough they’ve built on behalf of 100%. And if you wonder whether they threaten anyone’s health or safety, look to the same – as healthy and safe, not to say sane, a place as you’re apt to encounter anywhere right now. Indeed if there’s any locality that seems to lack meaning, health, and safety right now, it is our still struggling dysfunctional nation – the very caricature of a democratic polity or just economy that works for everyone. And if there has been anyplace of late where we might find a cure in the form of demand or example, it has been, paradoxically, a privately owned park in Manhattan.
Mr. Mayor, please restore, then, what you have just tried to destroy. Help make of Manhattan that ‘shining city on a hill’ that the Occupiers have handed you the opportunity to help make of it. Make of your police force that sterling example that all could till Tuesday recommend other police forces – those of Denver, Oakland, and Portland, for example – take for their model. Reopen Zuccotti. Open more parks. And remove your barricades. That’s right: Mr. Bloomberg, tear down this wall.