It is September 17, 2015. Four years ago today, the Occupy Wall Street protests began. Three years ago today, protestors gathered in New York City to celebrate the one-year anniversary of Occupy Wall Street, and 185 of those protestors were arrested for disorderly conduct, specifically for blocking pedestrian traffic. Now, a class-action lawsuit relating to those arrests has been filed, bringing up the questions of whether First Amendment activity receives proper policing.
The suit names New York City, former Mayor Michael Bloomberg, former police commissioner Raymond Kelly, and four police commanders and claims that the arrestees were engaged in legally allowable political demonstration and were denied their rights to such expressive speech by police officers who were inadequately trained in how to police First Amendments activities.
If we as a country support First Amendment activity, it follows that we should support the proper exercise of such activity. What constitutes disorderly conduct? In order for it to be treated as a criminal offense, must it be a true threat to public order? Is a public demonstration, even one that inadvertently blocks pedestrian traffic, a criminal offense?
The 185 people arrested on September 17, 2012 were part of “crowds of protestors numbering in the hundreds who briefly blocked intersections before being dispersed, with arrests in some instances,” according to a September 17, 2012 New York Times article. “Across Broadway, a [police] commander announced that protestors could not stand on a stretch of sidewalk. A man yelled that he had a right to be there and the commander chased him for several feet before the man scrambled away,” the same reporter stated in another New York Times article about the events of that day.
According to the web site of the American Civil Liberties Union (ACLU), “the right to join with fellow citizens in protests or peaceful assembly is critical to a functioning democracy. But it is also unfortunately true that governments and police can violate this right through the use of mass arrests, illegal use of force, criminalization of protest, and other means intended to thwart free public expression.” It will be fascinating to watch this lawsuit as it progresses. Bernard Harcourt, a professor of law at the University of Chicago, described the original Occupy Wall Street protests, and the police response to them in this way: “denying the Occupy movement any public space to ‘occupy’ and arresting them to boot, without making any reasonable accommodation for expressive political speech, deliberately creates a considerable chilling effect on what amounts to significant public expression of dissent.”
Will the lawyers arguing this case be able to show that New York and its police department failed to provide “reasonable accommodation for expressive political speech”? Will First Amendment activity be upheld? Stay tuned.