Occupy and the Right to Protest

Occupy and the Right to Protest

Could litigation over the Occupy movement strengthen First Amendment rights for protesters?


On the morning of November 17, UC Davis students participating in a peaceful protest of rising tuition costs, in solidarity with the Occupy movement, were informed that they were to remove their tents from the quad on which they had been camping. The protesters had spent only one night there, but the university said the encampment was a health and safety violation. The students’ first instinct was to engage in a dialogue with the university; students requested that the administration cite the standards they were violating, but by that afternoon no details had been provided to them, so the students decided to continue to “occupy the quad.”

That occupation, however, did not last long. At around 3 pm, police in riot gear arrived on campus, threatening to “shoot” students who refused to leave. As students were pulled up from the ground at random, their hands violently tied behind them, twenty-five students remained peacefully seated in the center of the quad. A crowd of onlookers began to accumulate. In a scene that would go viral, thanks to cell phone videos, officers stepped within a few feet of the seated protesters, shook cans of pepper spray—“like cans of aerosol paint,” according to the students’ complaint—and doused the protesters. UC Davis student David Buscho described the experience as “absurdly painful…we were in a state of collective shock.”

Now that the shock has worn off, nineteen of these students, supported by the ACLU of Northern California, are fighting back with a lawsuit filed against UC Davis administration and officials that alleges that its actions violated the students’ First Amendment rights. An attorney for the plaintiffs, Mark Merin, believes that the police had no right to get involved in the protest, asserting that the “right of general assembly is enshrined in the constitution and should not be interfered with by police.”

While the nineteen plaintiffs in this case are seeking compensatory and putative damages, the suit also asks for a statement from the court that the First Amendment rights of the protesters were violated, and that there be a serious effort to reform the campus practices that led to that violation. Merin believes campus policies should be revised to grant students an opportunity to appeal the decision if the university moves to quash protest.

Cases like this are not without precedence. In 1972, in the case of Jeanette Rankin Brigade v. Capitol Police, the Center for Constitutional Rights represented several Vietnam War protesters who had been arrested while demonstrating on Capitol grounds. CCR asserted that the federal statute under which they had been arrested, which prohibited congregating in a group in Capitol property, was unconstitutional. A district court, in a decision that was later affirmed by the Supreme Court, ruled the statute unconstitutional, stating that “it would be difficult to imagine a law that more plainly violates the principle that First Amendment freedoms need breathing space to exist.” In 2008, in the case of Kunstler v. City of New York, the New York Police Department awarded anti-war protesters $2 million after they filed suit for unlawful arrest and excessive detention, violating their First, Fourth and Fourteenth Amendment rights. Merin acknowledges that these are good precedents for the UC Davis case, signaling that free speech in general, and protests in particular-should be protected under the law.

The UC Davis case is just one in a series of recent lawsuits brought about by Occupy movement protesters asserting that their rights have been violated. Last October, protesters who where arrested while on the Brooklyn Bridge filed a civil rights complaint against the city, Mayor Bloomberg, and NYPD Commissioner Ray Kelly, alleging that they were lured onto the bridge in order to be arrested. Two women who were pepper sprayed in a now-infamous episode involving NYPD officer Anthony Bolgona sued Bologna, the city and the NYPD in February. Just last week, two protesters who were arrested during an action against Merrill Lynch offices in Washington, DC, sued its Metropolitan Police Department for violating their First Amendment rights and accused them of false arrest. All of these cases are pending.

The stakes of this case go beyond the UC Davis campus. As the winter freeze on Occupy Wall Street begins to thaw, a victory for the UC students could have a major impact on upcoming protest opportunities, including the NATO Summit in Chicago, the Republican National Convention in Tampa and the Democratic National Convention in Charlotte, all happening the coming months. As the OWS movement continues to inspire protests and strengthening of protest rights, these cities have already began enacting draconian anti-protest statutes. Unrealistic permits and insurance requirements, restrictions on banners and handheld items and the creation of specific “free speech zones” are all components of the anti-protest backlash these cities are experimenting with in anticipation of the demonstrations that will certainly be coming over the summer. While any decision the court makes in the UC Davis case would be unlikely to directly alter the anti-protest statutes that have already been passed, the implication for the climate of free speech and First Amendment laws in this country could be significant.

Michael Risher of the ACLU says that victories in these kinds of cases not only strengthen First Amendment rights, but also serve to assure people interested in demonstrating that their voice will be heard in a safe and respectful manner. He hopes the UC Davis suit will help to serve as a counterweight against the scenes of violence from protests around the country, which may frighten people away from protesting, as “self-censorship threatens the First Amendment.” Risher believes the UC Davis case will not only be an affirmative change how things work on the UC Davis campus but will also be a defensive move against “aggressors of the First Amendment” and make police think twice before employing violence.

Buscho, a senior at UC Davis, hopes that the case will achieve a “paradigm shift,” in which “society can see protesters and free speech as important to civil society.” He sees this moment as an opportunity to change public discourse about protests and solidify the notion that people engaging in peaceful protest should not be subject to police intervention and brutality. A recent Rasmussen report showed that 51 percent of likely voters view protesters as a “public nuisance,” a number that could perhaps fall if free speech rights were strengthened, thereby allowing protests to take place in a more civil manner.

Beyond a shift in public perception of protests, Baher Azmy, legal director for the Center for Constitutional Rights, hopes that cases like this will also effect change on an institutional level. He notes that there is an increasing level of police interaction with peaceful protesters in a more and more militaristic way. “There is a momentum to that kind of aggressive response,” he says, “unless litigation challenges that.” While it is not a perfect solution, Azmy notes that cases like the one at UC Davis, not only cost the aggressors money, but also generate publicity that could facilitate a deeper institutional change, in which police departments may alter how they train their officers.

The Center for Constitutional Rights has been part of this kind of change before, when they represented Democracy Now!’s Amy Goodman and two of her producers in suing the Minneapolis and St. Paul police departments, as well as the US Secret Service, based on their aggressive conduct during the 2008 Republican National Convention. The case, which was settled in October 2011, included not only $100,000 in compensation but also an agreement from the cities to train their police on First Amendment rights.

With these cases accumulating and publicity growing, Azmy believes that this kind of reform could even reach the police departments of Chicago, Tampa and Charlotte, before future lawsuits cost them time, money, and damaged reputations.

As protesters across the country stand (or sit) for what they believe in over the next few months, the UC Davis case could affect what kind of conditions they are met with. Right now, in Merin’s words, “when law enforcement gets involved you have no options—submit or be arrested.” If suits like this are successful and seep into public consciousness and police training, spaces where everyone has a voice would be more likely. 

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