Overview of Legal Grounds for Arresting Occupiers in the First Place:
The First Amendment limits the government from making any law “abridging the freeing of speech…or the right of the people peaceably to assemble.” But law enforcement have cited all sorts of laws when arresting the folks on the ground at Occupy. We’ve all heard of folks getting arrested for trespassing [Penal Code § 602], unlawful camping, the catchall “crime” of disturbing the peace [Penal Code § 415]. But how is the government allowed to arrest us for doing these things when we’re Constitutionally allowed to assemble and talk politics, so long as we’re being peaceful?
Despite the mandatory language of the First Amendment, the government actually is allowed to abridge (i.e. limit) speech to some extent and just how much they can limit it actually depends on where you speak to some extent. That means you can say one thing in one place that you may not be able to say in another place. And that makes sense to some degree, right? We can say a lot of things in our homes that we’d never say in public. Similarly, the government is authorized to limit our ability to speak freely about politics depending on where we are.
So in these public parks and sidewalks where the Occupy movement is largely being played out, the law says a restriction on our right to talk about politics must be 1) a reasonable restriction on the “time, place, and manner” of our speech and 2) the law cannot restrict only the political speech (meaning the law cant be based on the content of our speech, i.e. restricting political, but not other types of, speech). The law also 3) cant be vague or too broad and 4) the government cant have unfettered discretion in such restrictions (meaning the local police chief cant choose who gets to stay and who has to go willie nille since that gives them too much power).
Imagine, then, that you’re camping out with your friends in Justin Herman Plaza (hoped to soon be called Bradley Manning Plaza) in San Fran with the other Occupiers and the cops pull you out of your tent at 4 a.m., telling you to 1) leave or 2) get arrested. Simply put, your options then are to either 1) leave or 2) get arrested. Its difficult in the heat of the moment to get a copy of the law that they’re threatening to arrest you on, determine if its unconstitutional, and then convince the cop that it is so. So what they say is going to happen at that point probably will.
Do These Arrests Really End the Action?
The ideological quandary there then becomes simply how far you’re willing to take it; are you willing to go to jail and fight your arrest in court, often a long drawn out process reminiscent in some ways of gambling, though here the gamble is with your criminal history with perhaps devastating financial, professional, familial or societal repercussions? Well that’s up to you, as that’s a highly individual decision left to each protestor.
However, the constitutionality of many of the laws Occupiers could be arrested or prosecuted for has yet to be determined and how do we test these laws without being arrested for it, fighting it in court, and possibly appealing it? Indeed, the arrest and prosecution may be an inherent part of the struggle to get the underlying message out. Can and will cops continue to arrest the 99 based on unconstitutional laws drafted and enforced by the 1? Frighteningly, the answer is yes… unless WE SAY NO. Simple right? We all know the 1% aren’t going to stop until someone stops them (you’ve heard of the quote “absolute power corrupts absolutely”).
But if your decision is to change the law by getting arrested, make sure to get a lawyer who wants to fight it with you and not one who will advise you to take a plea without pressing for your (and our) rights. The entire process is rendered moot by getting arrested and then pleading out to a violation in court when folks get scared with the formality of the courtroom, just like the process is rendered moot when we ask for change and then run scared at the first sight of the fuzz.
So, while it would be nice if the government didn’t suppress our rights in the first place, they do and that’s a big reason why we’re protesting at all right? The arrest, prosecution, and appeal process can actually help define the law for our society and for future protests. We all know of many examples of how our society has changed for the better by the oppressed saying NO to the oppressive regime. Thus, those arrestees who press on to fight their cases on ideological grounds are to be commended and honored as revolutionaries, and are critically necessary to a free and evolving society.
These mass arrests of the Occupiers aren’t the end of their protest then. On the contrary, if you want it to be, its just the beginning.