Journalism in the Public Interest

Just How Much Can the State Restrict a Peaceful Protest?

If the First Amendment guarantees the right to peaceful protest, why do peaceful protesters get arrested — and sometimes pepper-sprayed and beaten up? We take a look at the legal precedents.


Occupy Wall Street participants try to push through police barricade to take their demonstration onto the streets in Times Square in New York on Oct. 15, 2011. (Emmanuel Dunand/AFP/Getty Images)

Update 11/15: This morning, New York City police cleared the Occupy Wall St. encampment at Zuccotti Park, arresting about 70 protesters. Mayor Michaael Bloomberg issued a statement saying he ordered police in because the park was becoming a "fire and health hazard." Bloomberg also said protesters can return to the park, but can't sleep there.  


As protests supporting Occupy Wall Street have swelled in recent weeks, hundreds of demonstrators have been arrested across the U.S. This weekend, nearly 100 people were arrested in New York and 175 in Chicago. More than 100 protesters were arrested in Boston last week; a few weeks ago, 700 were arrested on the Brooklyn Bridge.

So, if the First Amendment guarantees the right to peaceable assembly, why do peaceful protestors keep getting arrested — and sometimes pepper-sprayed and beaten up?

We take a closer look at the laws governing protests and how the government can limit them.

Time, place and manner restrictions

The First Amendment is not absolute. Government can make reasonable stipulations about the time, place and manner a peaceable protest can take place, as long as those restrictions are applied in a content-neutral way.

But what constitutes a reasonable time, place and manner restriction? "It depends on the context and circumstances," said Geoffrey Stone, a professor specializing in constitutional law at the University of Chicago. "Things like noise, blockage of ordinary uses of the place, blockage of traffic and destruction of property allow the government to regulate speakers."

Stone gave a few examples of impeding ordinary usage: disturbing patients at a hospital, preventing students from going to school, or, more relevant for the Occupy movement, disrupting the flow of traffic for a long period of time.

The majority of Occupy Wall Street-related arrests have been on charges of disorderly conduct. Under the New York Penal Code, that includes making "unreasonable noise," obstructing "vehicular or pedestrian traffic," or congregating "with other persons in a public place and refus[ing] to comply with a lawful order of the police to disperse." Basically, the central question is the standard of reasonableness. "You have to tolerate a certain amount of inconvenience in order to make room for First Amendment activity, but not so much that it disrupts things," Stone said. Individual states' unlawful assembly and disorderly conduct statutes have to fall in line with this standard. "They can regulate it less if they want to," Stone added, "but not more."

Content neutrality is king

Time, place and manner restrictions have to apply to similar types of protests equally, without regard for their message or point of view. Consider this year’s 8-1 Supreme Court ruling that upheld an anti-gay minister’s right to protest at military funerals. He and a few members of his church would picket the funerals of service members killed in Iraq and Afghanistan, asserting that God hates America because of its tolerance for homosexuality. As Stone has explained, under the First Amendment the government can’t ban people from demonstrating because of the homophobic content of what they’re saying at funerals but can set limits on how close to the funeral they can be or how loud they can be.

The case of Zuccotti Park

All of this applies to public spaces, like sidewalks and parks. But when you get into the territory of private property, it’s a whole different story.

"The owner of the private property can lawfully evict [protesters] the same way you can toss someone out of your house if you don’t like them," Stone said. "When police act at the request of the owner, they’re not doing anything that violates the First Amendment."

Interestingly, this hasn’t happened yet to the Occupy Wall Street demonstrators. A month ago today, they settled on a privately owned park in Lower Manhattan as their base of operations.

Brookfield Properties, the park’s owner, sent a letter to the NYPD earlier this week asking for help clearing the space so it could be cleaned. But hours before the scheduled cleaning, Brookfield contacted the city to postpone it. New York Mayor Michael Bloomberg claimed that Brookfield reached its decision under pressure from other elected officials.

Update, 10/18: Readers have pointed out that Zucotti Park is a privately owned public space, built by Brookfield in exchange for zoning concessions from the city. As part of the arrangement, the park has to be accessible to the public 24 hours a day; beyond that, the owners can set their own rules about the park’s use. This puts it in a legal gray area

How is the use of force regulated?

So, what laws govern how police are allowed to respond to peaceful protesters who overstep the city’s time, place and manner restrictions?

Broadly speaking, the unanimous 1989 Supreme Court ruling in Graham vs. Connor set the standard that a reasonable use of force doesn't violate the Fourth Amendment. Once again, it’s all about "reasonableness," as defined from the perspective of an officer in the field:

The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

As The New York Times reported last month, the Manhattan district attorney is investigating an officer’s use of pepper spray on two young women last month. One of the young women who was pepper-sprayed is demanding misdemeanor assault charges be brought against him. According to WNYC radio, the union representing high-ranking officers argues the officer’s actions restored order at that particular protest, and were thus justified.

It’s worth noting (and easy to overlook in a relatively free society like ours) that the dangers don’t stop at violence.  Because of the vague (and unconstitutional, in my eyes) “search incident to arrest” doctrines, every person arrested is probably going to have their cellphones searched without a warrant.

That means that the NYPD (and whoever they share with) has their contact lists, social networking and e-mail information, recent call list, photos, videos, GPS data, web history, and passwords.  And once they have that kind of information, what can a cop, the department, or a canny politician do with it, on the clock or off?

Great story. It’s my understanding that Zuccotti isn’t quite private property, though. It’s a “privately owned public space” in which the owner guarantees public access (in this case 24 hours a day) in exchange for zoning concessions from the city on other private property.

Why does it seem lately (had it always been this way?) that the “force of law” seems to be felt the most by the average person - you know regular 9 to 5 citizens with no “history” of troublemaking.  It is mentioned in this article but not by name (Westboro Baptist Church - Fred Phelps and Klan - I refuse to refer to him as pastor) has been given wide latitude (too much imo) to offend, insult and harrass families (especially service members families) attempting to bury their loved ones some of whom died during the course of service to this country.

I saw recently that some branch, I forget which but probably connected somehow with Holder’s Unjustice Department, had assembled a list of possible trouble-makers/terrorists/insurectionists and other naysayers that they were keeping tabs of, for example The OathKeepers.  And somewhere along the way the government seems to be ready and waiting for file HATE CRIME charges against anyone with less than glowing reports/view of members of Islam, gays-lesbians, illegal aliens (pc term would be “undocumented” workers) and other what I consider fringe members of society.  Which is incongruous imo when you recall Holder/DOJ’s dismissal of charges that were a slam dunk against the New Black Panther’s voter intimidation acts and the accompanying “Let’s kill us some cracker babies” etc. language.  Its my impression that the case against the NBP’s was a shoe-in/slam-dunk and yet it was suspiciously dropped while it compiles lists of possible trouble-makers and encourages us to spy on and report our neighbor for anything suspicious like buying lots of bottled water and MRE’s.  Sounds like a setup to me because our government included those things on lists of “preparedness supplies” they recommended we keep on hand in case of emergencies. 

Our government seems engaged in activities such that it equals what native Americans used to call speaking with “forked tongue”.

Why do I feel like I’m the one on trial in my homeland while the DOJ et al seemed to be ramping up their spy effortson citizens while it ignores criminals trespassing our border?

If it sounds suspicious/corrupt, it probably is.

I cannot believe the ‘deciphering’ of the First Amendment.  It very simply states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  There is no mention of disruption, “noise,” blockage of traffic, etc.  These little ‘clarifications’ of the First Amendment are yet more examples of the erosion of the rights of the people.  We no longer live in a democracy but an oligarchy (i.e., the rich controlling government/the people.  Oligarchy is a form of power structure based upon class domination/warfare.) which is exactly what the Wall Street demonstrators are peacefully protesting.

And since we are on the subject why does it seem an increasing number of my comments seem “held for modification”.  Many of these comments have been in rebuttal to attacks on me by fellow commentors who don’t seem to be so afflicted as am I.  I do believe there are some of my comments that were not only held for modification but also “disappeared” in the process.  I recall it used to be the procedure that anything containing a url link would be held but now it has (for me anyway) gone past those previous red flag holds. 

I suspect that I might be accused of making questionable posts/comments to one or two (or however many sock puppets of the day there are) indivduals.  However, in a similar vein as “our government” the same standards seem not to be applied to the same in kind assaulting my statements/character.

It was one of the primary LONG-STANDING and ONGOING problems with various news sites, one in particular locally, who were not equal-opportunity proponents in that they were quick to ban conservatives such as myself while at the same time allowing over-the-top outrageous behavior of the liberals who frequented the site.  I have appreciated ProPublica’s dedication to causes that most other media sites have neglected, I hope its not on the same path of discrimination as that would be a great loss to our rapidly shrinking freedom of speach and assembly. 

Yes, its the site’s sandbox, however they have not played that game in the past.

I am a retired lawyer and did a good deal of first amendment law practice.  I disagree with the interpretation that the first amendment is not absolute, regardless of the decisions supporting same.  The only qualification on the free speech and free assembly was that it could not be a FALSE statement intended to elicit destructive or dangerous behavior, the famous example being one cannot yell fire in a theatre—IF THERE IS NO FIRE.  The stampede to safety which will follow such a cry is dangerous and people can be killed.  BUT DANGER ALONE is not sufficient to allow government—federal or state—to interfere with first amendment rights.

What one must remember is that the first amendment protections were specifically addressed in the Bill of Rights to protect UNPOPULAR speech and dissent against government action.  Popular speech or demonstrations supported by government or ruling interests rarely need protection.

If the government can schedule when, where, how long, what level of sound may be used, then it can virtually obliterate the protection which the people demanded before they agreed to ratify the constitution.  In essence they are doing through the backdoor what is prohibited through the frontdoor.  We cannot permit this and still retain the protection intended.

So what if traffic is disrupted—for months?  So what if nearby people are disturbed?  Good.  That is the entire intent of assembly, free speech, and protesting in the first place: GET ATTENTION for the grievance.  By enforcing this amendment, the United States has avoided for the most part suicide bombings, rampant assassinations (there have been a few), and instead has provided a protected outlet for the anger, protest of injustice, demands for remedy for the whole population.

Existing power structures despise dissent.  They tolerate only what they must and endlessly narrow the protection.  A few more years and no one will be able to protest openly because there will be no pretense of “content neutrality.”  Furthermore, cops on the line are often fascist by nature and training, and they will decide in favor of their own biases, not in favor of the dissenters.  Months, even years, and criminal records later, some nice, safe ensconced jurist will rule in favor of the dissenters, well after irreparable harm has been done.

This is not what is intended by the constitutional protection.  The government may not act first and argue later.  The constitution prohibits any law which abridges the rights enumerated in the first amendment.

All requirements of permits, organization identification, restrictions on place, time, noise, etc. must be struck down.  They are legally wrong and they are morally and politically dangerous.

Dave (and K. Rundle), I agree with you totally, but suspect it has to do with the word “peaceably” in the phrasing.  You and I might say it’s peaceable so long as nobody throws a punch or fires a shot, but Mayor Bloomberg (who, it should be noted, decided that laws such as term limits didn’t apply to him) might say it’s peaceable only if his constituents (take that word as you will) aren’t inconvenienced.

It’s pathetic and an obvious sign that the authoritative side is losing its grip, but I can see why courts would go along with a stricter interpretation of “peaceable,” considering they’ve also allowed Congress to regulate everything and anything in the name of “interstate commerce.”

I second the post from “Dave”. My copy of the Constitution does not mention any of these additional rights of government as outlined by Mr. Stone above unless they have been established by the SCOTUS similar to corporations now being super human people. Public, not private, but public space is just that public. When is free speech too loud? When is a crowd too big and people must disperse? One can hazard a guess had England used these police state tactics on the colonists and herded them into holding pens, we would all still be singing “God Save the Queen”. Corporate interests have trumped those of the citizens of this country and this must not stand.

This article is a crock!! Dear Braden Goyette, do you always write what your Master(s) tell you to??

The post left by K. Rundle said it better than I ever could. There is NO compromising the First Amendment! NONE! The First Amendment is quite CLEAR and NO interpretation needed. If our Founding Fathers wanted to elaborate, THEY WOULD HAVE!

To those who say there are no limits on the First Amendment, would you mind either providing your telephone number or home address?  I would like to express my First Amendment rights by either calling you at all hours or the night, or standing in your yard expressing my grievances on a bullhorn while you try to sleep.  But that’s ok, right?  Because, “So what if nearby people are disturbed?  Good.”

Mickey L Smith

Oct. 17, 2011, 2:54 p.m.

OWS is a gold mine for politican like Rangle who support the marxist ideals that the progressives have used to take the Constitution and try to change the wording to fit their own agenda. By claiming that the top 1% should pay more to keep funding the failed programs congress supports as a way to help the poor is pure bull crap. The Dems could care less about the poor. Obama will stand in front of a mic & sell his lies to the millions who think that the Dem will keep the money flowing to them in free medical care and food stamps. I found more truth in a interview by the folks at than any MSM site period. The people who were interviewed knows how the two party system works & Martin Armstrong who told kingworldnews what to expect from our Central Planners of DC and I would be not be surprized to see the freedoms we give up on a daily basis become even more harder to keep as Home Land Security finds its way onto your person PC as a way to keep track of what you say and how much you make at your palce of employment because they want your money and do any thing to get to it.

i feel a lot more folks would be in the streets if it were not for the forbidding cops and reckless regulations subverting IE Prohibiting Free Speech.
  The Reality is will it be illegal to yell out DROOOONE! yes the current madman in the Dirty House and his Capitalist Cronies are easily up to killing off the Working Class as evidenced by the facts.

  Thanks much for this ~

I don’t think this article *at all* goes to the real problem: namely that governments across the US, including in Washington DC, are restricting public protests to “protest ghettos” where politicians know full-well there exists neither government nor new media coverage.  You cannot “petition government for redress of grievances” if doing so in the presence of any part of government will get you arrested.  In Washington DC climate change protesters are peaceably protesting outside the White House—and getting arrested—because the White House does not want to permit such a photo-op!  In Seattle public protest is restricted to a remote waterfront park used only by drunks. If the president visits your city and you want to hold up a protest banner potentially in view of the president as he drives by—guess what—you will be arrested! The “petition government for redress of grievances” part has become a BAD JOKE!

Lets just say your dying of cancer, took 3 hours to get yourself prepared for the window of time needed to accomplish your daily chores. I.E. go to bank, grocery shop, pick up legal papers, pick up children, visit doctor, ect….But you find yourself trapped by a mad house of Questionable peaceful protesters?..can’t drive, can’t park and can’t walk .
Then find for whatever reason blocked from entering an establisment?

You agree with the conditions but should you be the one to change everything you had planned or needed to do?..OR…
If you wanted to take your children for an enjoyable time in a park should you give it up because of protesters living and establishing a tent city to protest.

Should you find and pay someone to pick up your children or grocery shop to prepare a dinner?

Is everyone really peaceful or do we have hooligans mixed in and should the law be able to discern the differance.

These are NOT the days of M.L.K….Find an agreeable outlaying area, form an organized group, get the permits required, police yourselfs from law breakers where required.

Believe me, the needed media will arrive. a few thousand or more will draw attention and not in a negative way and I and others can go about their business, silently wish you on and die in a peaceful way plus take care of needed and wanted responsiblities..( sorry spelling).
thanks for reading

This is another fine piece of trying to provide needed insights into important issues of the day. I appreciate the added comments by K Rundle and other who bring added information to consider. At the same time I am really stunned by the number of people who will take any and all articles here and elsewhere to simply rant about how terrible Obama and liberals are. What’s the point? Could we put these in a different color so those of us actually interested in the topic can skip over the nonsense.

This is in reply to the comment left by James Stewart.  He raised important issues, but, respectfully, I believe he does not understand the reasons why he would not be permitted to do what he suggests. Let me clarify, because it is important.

First, let’s divide the two protections: Free Speech and Free Assembly.

Mr. Stewart’s threat of telephone harassment or blowing a bullhorn is NOT speech—it is BEHAVIOR.  Free Speech was never intended to protect criminal or wrongful BEHAVIOR, such as the example I gave about yelling fire in a theatre. Often speech accompanies behavior and that is one source of confusion.  Another is “behavior” that only is intended to express a point of view, particularly a political one, such as flag burning.

These legal distinctions turn on fine points and can be a very tiresome source of confusion and frustration.  Mr. Stewart raises very important distinctions: abusive conduct intended to harass by telephone or by personal appearance on someone’s property.  In blowing a bullhorn, what expression of thought, opinion, ideas, speech is accomplished?  It is pure harassment in both the physical conduct and the time of night, when most people at least are asleep.  (Note he would also be disturbing other neighbors.) To what purpose is he blowing the bullhorn?  Is it speech expressing anything?  Is it to convey ideas, opinions, dissent?  Let me offer a modification on this one point:  What if the man in question stood in public square with a sign printed the words: “United States is a corporate criminal engaged in murder!”, and he blew the horn between midnight and 2:00 a.m.?  This is protected speech.  I guarantee you that there would be many people opposing his doing same at that hour.  Health and safety issues would be justifiably raised.  Should they prevail?  Free speech often conflicts with other concerns which are also valid, important and fair.  So what outcome.  Try this.  The people in the community, either directly or indirectly (through the D.A. etc.) apply to the court for a civil injunction to restrain the blowing of the horn at those hours.  There would be a hearing.  The horn-blower can appear, with or without an attorney; this is not a criminal charge and make his arguments.  The people can appear and say I can’t sleep; I need to go to work; I can’t work right, etc.  The judge will do what judges have done for eternity, balance the rights and interests within the conflict.  But no one will arrest the horn-blower and put him in jail—unless he violates an injunction issued against blowing the horn at those hours and proceeds to do it anyway. These are always difficult cases, but the protection of the first amendment forbids the government from acting first or under false powers or unconstitutional laws.  The police take aim themselves at the protestors.  You’re not in court. 

What has been said above also applies to the “obscene” or harassing use of a telephone.  Abuse of our wire communications is balancing free speech (which is not behavioral harassment) against the right to privacy.  Again the telephone caller is not assembled or acting to promote dissent or express political opinions or ideas.  If the only complaint is the time of the call, there are blocks that can be used to protect the call invading the home of the person who has the phone.

This is a long post, but these issues matter.  As briefly as possible take the second point:  Freedom to assemble.  What assembly is involved in the telephone caller’s harassment?  What assembly is involved in the trespassing of a backyard with intent to harm by loud and frightening noise the owner of the property?  What is the purpose of the behavior.

In analyzing any first amendment or free speech issues, always look to see what physical behavior is involved, what is the purpose of the behavior, and what ideological, political or religious opinions are being expressed.  Remember, too, that utilizing the judiciary to balance rights in a court of law is NOT turning fascist police loose on dissenters—police who will maim, harm, use billy clubs, crack skulls, and make unlawful arrests.  These tactics and police shift the burden of proof onto the dissenters that they were doing nothing wrong.  In the example above, the people inconvenienced have the burden of proof to show that the free speech rights of the horn-blower (with accompanying political opinion) have been exceeded.  No harm befalls the horn-blower, at least until a court of law has the opportunity to evaluate the conflicting rights.

Sorry about the length of this, but it is difficult to telescope 25 years of legal experience into a post.

Thanks for your patience, those who wade through this.  I hope it will help.

Brookfield Office Properties is in an awkward position because it is negotiating a deal to buy Bank of America’s 49% interest in a 34-story office building (No 4 Financial Center?), but as the owner of Zuccotti Park - which Grant noted, is a privately owned public space - it is caught in the middle of a political malestrom.  New York politicians, especially Bloomberg, must be having a cow trying to steer this careening bus without angering the populace.  Maybe the protesters should incorporate and try to hide behind the bizarre Citizens United ruling in case this mess creeps into federal court.

>Lets just say your dying of cancer, took 3 hours to get yourself prepared for the window of time needed to accomplish your daily chores. I.E. go to bank, grocery shop, pick up legal papers, pick up children, visit doctor, ect….But you find yourself trapped by a mad house….

This sounds to me more like the description of what happens when the Presidential Motorcade comes to town—so the President can give a fundraising speech behind closed doors to wealthy donors.  All of a sudden the city closes the city’s two most major freeways both directions North South East and West blocking all traffic for hours—so the President can raise campaign funds.  BUT, if one protester topples off the curb into the street for one second then: tear-gas, stun-guns, billy-clubs, hand-cuffs and arrest!

Fists a civilized print format would be appreciated. We really don’t need to waste toner and paper printing pages of comments.

In any event this discussion of law presumes we have much left of the rule of law or the Bill of Rights where words on paper become inconvenient in the practical moment.

Screw our ‘fundamental’ rights and ‘due process’. Our police state will go EXACTLY what IT wants and let the litigators screech all they want. In American you now get your rights after-the-fact IF you get them at all.

The difference in the Constitution is discern with what side of the Mason Dixie line you’re on. The two are totally opposite, and how it got that way is beyond the rational mind. If you file an identical suit on different sides of the Line, you will get (2) different legal interpretations. In New Orleans, you can file the exact same federally-protected civil rights violations in each section of court of the U.S. District Court of the Eastern District of Louisiana, and I guarantee each section will rule differently.

Let’s cut to the chase.  Our masters, the New Oligarchs, are worried about danger to the plutocracy they run.  What, you thought we still had a democracy?  Sure, the structures are still there, but our masters and their lackeys in Congress easily find ways around them.

The Occupiers in US and around the world are very brave to continue their (somewhat disorganized) efforts to call attention to the 1% that y the whore media bent on suppresrun the US, while poor people die from lack of medical care, for just one thing.

Don’t hold your breath for punishment to the White Shirt (high-ranking NYPD officer) who pepper-sprayed the unresisting young women trapped within the police holding pen. 

Revolt against Wall Street—or even the appearance of revolt—must be ruthlessly supporessed.  The protesters must be stigmatized, bad-mouthed, lied about.  At all costs, their (our!) cause must be twisted bsing them ASAP.

I think the police should turn the handling of the protestors over to Donald Rumsfeld and Dick Cheney. They are real patriots and they’d know how to deal with them…...tactfully and legally.

I would suggest that ‘contnent neutral’ is not being applied uniformly.  Why did we not see any police hauling away tea party people that were disrupting town hall meetings two summers ago?  The visual of police leading old, gray haired people out of hall, in cuffs or not, would be a public relations nightmare.  The police are often used as pawns of the ologarchs: The richer you are the better.

The more you protest against the elite the quicker you’ll be shut down.  That’s the real test of “reasonableness”.

First of all K. Rundle as a (hopeful) future law student I found your posts incredibly insightful and well worth reading. Secondly I am incredibly proud to see people finally standing up for themselves. It is about time people start seeing what is going on within our government and the people that leech from it. I hear so many people (including protestors) being called “unAmerican.” Honestly if you want to know something unAmerican I would say being an American citizen and owning a multi-billion dollar corporation that employs almost exclusively overseas workers. THAT is unAmerican. With all the trillions of dollars our government spends, we can’t manage to get these effing CEOs to move operations to America? So then we have American workers producing American goods in American factories for Americans… people can’t spend money that they do not have, and the economy NEEDS consumers. Honestly THE most unAmerican people in America are probably the politicians! They sit there and cater to the rich while so many people suffer because of it.

So, our government can tell us how, when and where we can protest against specific parts of their rule.
That leaves no option whatsoever to protest. 
That means that if the American people want to change the direction of this Republic we will have to break all the laws that the government, that entity against which we protest and sets the rules, sets for our “protests”
NO change has ever come about in ANY country without forceful protests, eventually taking to the streets and a general strike.
That is the only way we will get change.
Remember, the next 10 year projection of MILITARY spending is $6.7T (Trillion) dollars.
That alone is an obscenity to protest against.
I totally disagree with the “professor” in this article.

Note, too: If the police can provoke the protesters into violence, then the police can clear the park and at the same time vilify the protesters. If they can provoke violence, then they won’t have to be hamstrung by that pesky First Amendment.

Fact check:  Seattle demonstrators themselves chose a tiny piazza in the shopping heart of the Central Business District, NOT a"waterfront park, inhabited by drunks” as a commenter above claims.  The catch twenty-two in Seattle is the Mayor’s on-again off-again claim that overnight “camping” is not allowed in a “park” but is welcomed several blocks away at City Hall’s plaza.  Needless to say, some demonstrators have concerns with being at the Mayor’s beck-and-call.

Mr/Ms. Rundle’s post were outstanding, but Rundle like myself is of the Floyd Abrams era of 1st Amendment cases. Those days are long gone, they left when Reagan elevated Renquist to chief justice in 1981.

Can you imagine scum like Justice Alieto letting any 1st Amendment case get by him or Justice Thomas? I think not.

Remember 2 year ago during Obama’s state of the union speech, he made note of “Citizens United” and Alieto shook his head in the negative when Obama stated that that case was lead to the destruction of democracy as we have known it for the past 80 years. 

Can you ever imagine Alito, Thomas or even Kennedy allowing any stiffening of the 1st, 4th, 5th or 6th Amendment, I can’t!

William Normande

Oct. 17, 2011, 11:59 p.m.

Professor Stone sets forth limitations to the First Amendment right of freedom of speech and freedom of assembly.  So be it.

As many may know, the actors on Wall Street - Goldman Sachs, Morgan Stanley, Bank of America/Merrill Lynch and many others including the monoline insurance companies Ambac and MBIA - have knowingly and wantonly been violating US securities and tax law for decades and each and every time they do so and get caught the individuals implicated hide behind the corporate entities which settle such crimes with penalty payments which are dwarfed by the illicit gains made by such individuals though such entities and illegal activities. 

Wall Street money has corrupted the legal system beyond recognition.  Under such circumstances it is more than justified for the Occupy Wall Street movement to ignore the limitations to the First Amendment Professor Stone describes, and do as the Wall Street actors would do - get arrested in mass numbers, request jury trials and clog the courts with such cases.  In all likelihood juries of their peers would find these demonstrators to have acted reasonably given these circumstances, thereby creating new interpretations of First Amendment limitations and thereby strengthening their cause.

The First Amendment states the following:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  As the right of peaceable assembly is separately set out as a right additional to and different from the right of free speech, why should the time place and manner restrictions apply to this.  As the First Amendment restricts the States and their agencies, including cities and towns in the same manner as Congress is restricted, any use of disorderly conduct ordinances appear to be being applied to abridge the right of the people to assemble.  The arrests of the Tar Sands pipeline protesters in front of the White House, the caging of assemblies at political conventions, and the beatings and police instigated violence are clear examples of the use of laws to inhibit the most fundamental right of the people.    Using kettling techniques to separate segments of those assembled for purposes of reducing the impact of the messages being put forth, or to prevent the assembly for any purpose seems to me to be a direct violation of the assembly clause.

May I just say how nice it is to read thoughtful, reasonable and respectful comments that are highly informative as well.  Thank you.

Barry Schmittou

Oct. 18, 2011, 12:20 p.m.

In 2007 and 2008 I went to the F.B.I. in Nashville twice and presented quotes from Numerous Federal Court Judges proving insurance company Doctors’ ignore life threatening medical conditions including Brain lesions and Multiple Sclerosis, cardiac conditions of many patients, and a foot that a new mother broke in 5 places.

The Judges quotes can be seen by pasting

The second time I went to the FBI they asked for my phone number. I believe my calls have been traced ever since, but nothing was done about the evidence I presented even though patients can die while they wait for their case to get to Court.

Before I filed the complaint that led to the conviction of State Senator John Ford in 2006, I was told the Tennessee Bureau of Investigation was watching me closely. Local media showed the T.B.I secretly investigated peaceful war protestors at area universities.

If you seek justice in the U.S. you become the enemy of the psychopaths who are in control of the U.S. and world governments.

If you want to see overwhelming evidence of Obama and Bush’s criminal connections to multiple corporations please view

As my vision allows I’m working on a more succinct version and links.

As mentioned if you seek justice in the U.S. you become the enemy of the psychopaths who are in control of the U.S. and world government. God please help us all !!

@K_Rundle: absolutely! Dead on! Like Corps & tax evasion thru loopholes, our overnment uses the same strategy to deny us our rights by inventing loopholes to the Constitution & Bill of Rights!

James B Storer

Oct. 18, 2011, 12:52 p.m.

I find this Pro Publica report is excellent and well timed.
  The comments above are super great, revealing a far greater understanding of the depth of our First Amendment among thoughtful citizenry than do the meanderings of the U.S. Supreme Court.
  The large protests today are motivated by the real threats to our nation and to other nations by fascist domination of governments by vast centers of money.  The control in our nation seems so complete that physical revolt is often suggested as the only way out.  However, in comments I have submitted I have view armed revolt as being totally impossible of success.  Our military is far greater than any heretofore even imagined, it is a totally volunteer force, and is always completely loyal to the White house and Legislature in power.
  The government, national and for the most part state, are totally dictated to by the lobby and by large sums of corporate money donated to campaigns.  We common citizens have no representation whatsoever, as the ratio of national legislators to citizens is about one legislator to six-hundred-thousand citizens.
  The protests today here and abroad are wonderfully motivated and may achieve some considerable success.  Nonetheless, I am about to change my cowardly view that armed rebellion must be out of the question.  I have always considered the first five paragraphs of the Declaration of Independence to be among the greatest contributions to literature of all time.  It is interesting, now, to read these by replacing “King of Great Britain” by “Corporatism.”
  Skartishu, Granby MO

No government official should try to limit freedom of speech in any public place. Inconvenience is the price we must willingly pay for this wonderful privilege. Seeing people freely gather in a public place to address mutual grievances reminds us why we love being Americans.

It amazes me that any mayor would consider interfering with an express right, but overnight camping, cooking and what appears to be semi-permanent facilities around the speaking location starts to stretch the meaning of the right to free speech. Such encampments begin to encroach on the freedoms of others and may restrict the flow of commerce in the area, hurting the neighborhood. Isn’t that “fine line"complicated, an accommodation long term demonstrators might need to address?

Perhaps all those who have not any deference to the basic law and soul of this country so well and clearly defined in the First Amendment should also go back and read the Declaration of Independence and refresh themselves of the reasons this nation exists in its present, though somewhat challenged, form.  In particular, this might be appropriate for those who sit in seats of power and influence in the various levels of government, and police departments, etc.

Tell us, what part of “Congress shall make no law” do you not understand? You don’t have to interview some corrupt university prof to read the plain English. All these arrests are illegitimate, unconstitutional, and immoral, just as the entire fed. gov’t is. This article is pathetic.

James, I worry that the government is waiting for armed rebellion.  After all, the first person that fires a shot gives Obama (or successor) carte blanche to arrest, shoot, restrict travel, or whatever else they like to protect the interests of the rich.

Give Gene Sharp’s “From Dictatorship to Democracy” a look.  He makes a good case for doing whatever it takes to avoid violence, since it’s what an oppressive government (and arguably all governments that don’t permit the citizens to own, say, armed fighter jets or nuclear missiles) excels at by definition.

On the other hand, let the cops waste its resources arresting thousands of peaceful protestors.  Let the world see them using brutality against our own citizens and then explain why nobody has bothered to stop the rapists and muggers a few blocks away, because Wall Street’s image was a much higher priority.

really, nobody cares about us, the residents around zuccotti.  i have to listen to these protesters banging on pots and pans and drums until 10-ish every night.  why?  if the NY codes speak to “unreasonable” noise…isn’t this “unreasonable”?  honestly, i watch everything out my window, follow twitter, etc, and it’s my realization that the cops are terrified of the protesters.  ows is pretty well organized and actively trying to create situations where the cops look abusive.

why exactly are they doing this at night?  listen, i am not unsympathetic to the reasons for the protest. really.  there is a real need for reform. i might be down there if not so frustrated by the constant banging.  it’s been a month of constant noise, barricades everywhere, etc.  makes sense that they would do this all day, going after the banks, bankers, etc.  but from like 6 pm on, the targets of their animosity are long gone.  the only people they are abusing are the innocent residents (and if you didn’t know, the financial district is quite residential, since almost all of the banks have moved to midtown).

frankly, nobody cares about us.

Jim - This may sound naive, but have any of the residents gone to the occupiers and expressed your concerns just as you did here?  It is worth a try if you haven’t already done so.

Native American JD

Oct. 19, 2011, 2:03 p.m.

It’s worth noting that the Supreme Court is not a court but a political entity filled by political appointees.  They do not do justice and their Constitutional “jurisprudence” is schizophrenic at best.

All power stems from the consent of the governed and this type of protest shows that this type of government no longer has our consent.  We can and should dissolve this union and begin a great democratic experiment again, once we have killed off corporate personhood and myths that the state can limit the expression of dissent against the state.

John Stephens

Oct. 19, 2011, 2:09 p.m.

As a law abiding gun owner I’d just like to say “WELCOME TO MY WORLD!”.  When you have the same restrictions on the First Amendment that I do on the Second, then you can expect some sympathy from me.

Law is neither black and white:  it is always gray.  Money rules!  The 1st amendment is political.  It applies to political events-  being a cynic.  When it comes to economics,  that is different.  Corporations are the equivalent of the good old USSR.  In the communist system there was no freedom of speech when it came to insulting the politicians.  In the capitalist system there is no 1st amendment rights when it comes to insulting the corporation.  Just look at the evidence.  Tea Party god and the Republican god is the corporation.  So,  it really does not matter what the 1st amendment says when you can buy your way out of anything.

I am confused about the degree to which a constitutional right protects otherwise unlawful behavior.  If I block traffic then I could be arrested but if I shout “Arrest the bankers!” while doing it, the “behavior” is protected?  Then, quoting Rundle,  “no one will arrest the horn-blower and put him in jail—unless he violates an injunction issued against blowing the horn at those hours and proceeds to do it anyway.”  So unlawful behavior cum speech is protected UNTIL a court issues an injunction specific to the behavior as separated from the part deemed to be speech?  Then I can shout “arrest the bankers” from jail?

I think It is important to view the Occupy Movement from both sides here.  It has been difficult for me to find any opinions which empathize with the enforcers of the demonstration.  Stress levels are equally high for individuals on both sides of confrontation.  The occupy movement is a great one indeed, but the demonstrators are angry, and it is easy to take this anger out on those who are actively restricting them (and vice versa).  It is not the enforcers duty to subdue the movement, but rather to maintain it.  What if no one was there to do this? Violence is unfortunate in situations like these, but history has proven that peaceful demonstrations may quickly evolve into a mob mentality.  IMO stories which justify (or rather elucidate) these forcible instances exist, but we just aren’t hearing about them.

We expect answers when we peacefully ask, but would we do the same if we were kindly asked to demonstrate behind a chalk line?

Adrian Johnson

Oct. 20, 2011, 12:07 a.m.

America has a long history of violance,when will it ever end in a supposably peaceful nation.

Mark E. Smith

Oct. 20, 2011, 6:01 a.m.

Adrian Johnson asks, “America has a long history of violance,when will it ever end in a supposably peaceful nation.”

Only when we the people stop voting. As long as we continue to delegate our power to government, government will use that power against us.

John (Stephens), I hear you, but I feel like the gun-owner’s case has been undermined by two issues.  First, there’s the fight to protect the idea as a need to hunt or secure the home, rather than depriving government (or a wealthy corporation) the monopoly on force.  Second, there are private security companies that own and use all sorts of weapons, so it’s clearly possible if difficult to get permission.

It’s not an argument I want to get into, because I do support weapon ownership (even though I don’t want one, myself) specifically because I don’t trust a monopoly on force.  Odds are, I go further than you do, in fact.

David, the problem is that the enforcers are (a) irrelevant and (b) trained and paid to deal with these sorts of problems peaceably.  The latter is obvious, but the former needs explanation:  The cops and other security officers involved are following orders while probably sympathizing with the protest itself (city cops ain’t in the 1%—suburban cops just thirty miles away might be, though).  It’s best to assume that any attacks on authority are using the cops as proxies because they’re standing there and following orders, but the anger is directed at the captains on up to Ray Kelly and their counterparts.

Art, the law doesn’t change, but it’s up to the judiciary (including or in association with the cops, depending on your definitions) to interpret things, to determine if the broken laws are more important to enforce than our freedom.  Blocking traffic in a part of the world where traffic is blocked routinely isn’t going to get you hauled away.  Relieving yourself in public view might.  Pickpocketing probably will.  Violence definitely will.

Think of it like self-defense.  Killing is always illegal, but the courts aren’t likely to convict you if your victim was about to kill you.  And because they understand that, in a clear enough case, the cops might bend the rules and not bother to book you because they know that.

it is interesting to see how many people don’t care for the bill of rights.

it isn’t an option. if you don’t like the rights - which by nature are not *privileges,* the difference of which i think some of you are not getting - then you can move to another country where all free speech is suppressed by the government.

to the ones who commented about accommodating private use of streets, stores, parks, etc. - you do not have a *right* to shop. that is a decision on your part. yes, it may be a necessity, but that *does not* make it a right. you are apparently confused between the two.

as to the person who requested personal information with which to harass individuals to make his point: read the first amendment again. it says the GOVERNMENT cannot abridge your right to free speech. private people can. private citizens enjoy the *right* to privacy. this is also why the government should not be able to tell a person what they can and cannot do in their bedrooms or with their bodies, unless what they are doing is quashing the rights of another living entity. your rights stop where someone else’s begin.

many arrests in DC are because protesters cross Pennsylvania Ave. to protest on the white house grounds. having taken part in several protests from Lafayette Park, i have witnessed this. the police actually accommodate protesters in this respect. it is legal to protest across the street from the white house, but then protest leaders cross the street while the police stop traffic to allow them to do so. they are then given the opportunity to voice their redress, and then are arrested. personally i don’t understand why we cannot protest on the white house grounds, but i believe danger to the residents and workers is the concern. i don’t agree with it, but that is the law.

the confusion between public and private is one that has stymied, then applied inconsistently by, the courts. the idea of “peaceable,” as mentioned in this article, is subjective. what constitutes “hate speech” is subjective. even the definition of protest is subjective. the definition of terrorism is not only subjective, but discriminatory. the westboro cult is a terrorist organization, but the inclusion of “god” in their ideologies, regardless of the paradoxical context, makes their speech protected, while the mention of “allah” is not. that is akin to saying the word “finger” is ok, but “digit” is not.

as a historian, i have studied all the political, social, and cultural bases for the development of the US Constitution and government. From Roman law to English common law to SCOTUS interpretations, the “founding fathers’” intentions and their implementation are at odds. And the american public is letting this happen when they allow the government to erode their rights because someone else is exercising them against the majority. the job of the government is to make our rights fit minorities as much as for the majority. people who are upset that gay rights, undocumented residents’ rights, or women’s rights are upheld under the constitution don’t understand, when the constitution stops protecting the minority, we stop being a democratic republic, and become an oligarchy.

just to amend someone else’s use of the word “oligarchy,” it does not mean rule by the wealthy elites, it just means rule by a few people. you are looking for the word “plutarchy,” absolute rule by the wealthy. this was greatly discussed around the fin-de-siecle. the Citizens United decision threw open the doors for plutocrats to brazenly corrupt an already unstable government.

regardless of one’s own private biases, if you do not uphold everyone’s rights, you lose yours. as the quote widely attributed to Voltaire (but with no evidence that he actually said it) asserts, “I disapprove of what you say, but I shall defend to the death your right to say it.” this is the standard for freedom of speech.

while this has been bandied about recently, i recommend that people read - or reread - Orwell’s “1984.” it is a prophecy that is coming to fruition. the “Patriot Act,” which is just another term for an Alien and Sedition Act, which is not new to the american landscape. Using the term, “patriot” to describe a law that is anything but patriotic, is dangerous. People need to stop blindly allowing the government to suppress the rights of others just to press their own agendas. one day you will find your agenda suppressed, and only then will you cry that it is unconstitutional.

the american public must always be the arbiters of free speech.

Get Updates

Our Hottest Stories