American Culture

#Occupy Portland: The end of free speech, or the end of taking responsibility?

By Greg Stene

The City of Portland and the Occupy movement are both to blame for Portland’s impending Sunday morning, at 12:01 a.m., dismantling of the Occupy movement’s tent city in downtown Portland.

They’ve both blown an excellent opportunity for the protection of both free speech and the community’s rights. Here’s why:

Basically, though parks are part of the streets, parks and sidewalks that have been traditionally protected as free speech public forums, the government has a well-established right to regulate the time, manner, and place of the speech.

So, scratch the right to be in the park making your point after closing hours. And there’s even no right to pitch a tent, if the regulations say you cannot.

End of considerations. And all those Occupy people who complain about it are just a bunch of whiners.

Actually, here at the end is where it gets interesting, and possibly lengthier than we had thought at the beginning when we compressed a good century’s worth of free speech principles into a short paragraph.

Odds are that the shutdown’s going to be upheld in most courts if the Occupy movement challenges the city’s right to act.

But now, let’s take a novel look at all this. First, is the camping something we might consider a speech act? Like a march through town?

Well, demonstrations and marches are actions that have held the protection of free speech for decades. Some people don’t like it. Tough. The way in which speech is acted/spoken is often a determinant of its meaning and impact. A march through town of 1,000 people dressed in blue uniforms has a lot more impact and a different meaning from those same 1,000 police officers standing around in a lot next to the cop shop for a couple hours.

The manner of the speech matters.

Camping as a process of Occupation might be seen as a speech act. But, in this case, occupation is the speech and that is what should be recognized as protected. Camping and pitching tents are not protected; they are not necessary parts of occupying space. They make it more pleasant, but are not necessary for occupying space.

But … perhaps those tents are analogous to the police marching through town. People just standing around in a city park will not have the same impact.

Okay, then. Camping is a speech act as much as marching through a town. But there’s no permit to camp (an accepted regulation), and the city has the right to shut the camps, just as they would have the right to stop a march without permits.

Okay. But now the sticky wicket of one right over another finally raises its ugly head here.

The mayor and police chief claim they will act to protect the public safety. They have cited instances of drug overdose (one requiring CPR) and assault as some of the legitimizing reasons for closing the tent towns. The implication is that the lawlessness will spread into the general community. [Their arguments are more complex than this alone, but this is enough to illustrate our following point.]

Continuance of the camps is being posed as a choice between saving more lives and property versus making a speech point.

Yikes. It looks like speech is losing on this angle, also. It’s the end. Finito.

But this ending brings up another opportunity in the law.

One of the principles that drives free speech regulation in advertising, where restrictions on speech are considered acceptable as contrasted to political speech, is the principle that government must limit its control of speech to the least amount necessary to achieve the government’s goal (or address its concerns). For example, the government has a legitimate interest in the health and well-being of its citizens. However, a state’s attempt to ban the speech of advertising of the prices of booze at liquor stores to reach that health and well-being goal is considered overreaching.

There are other ways the government could achieve its goal of helping people maintain their health in place of the blanket restriction of free speech advertising by the liquor stores. The government could support rehab efforts by nonprofits, it could support programs designed to teach children not to drink, it could adjust sentencing for drunk-related offenses to include mandatory training in the evils of The Drink, etc.

We can take this same lesson in “the least restrictive measure to achieve the government’s goals” and apply it to the Occupy movement.

In place of blanket banning of the speech and camping, the government could, in concert with true Occupy members:

• Develop a program pairing a police officer and a true Occupy member in making rounds through the camps to protect against violence and drug use/sales.

• Develop a program to ferret out drugs, including a method by which people holding drugs may be identified by others in the camp in an anonymous way. Though this may not be enough to obtain a search warrant for a tent or person’s body/belonging outside the tent, it may be helpful in the paired patrolling process.

• Develop a way to physically separate true Occupy members from the homeless and those who may be considered liable to cause violence or other socially unacceptable actions.

• This last may provide legitimate grounds for closing the tents of the non-speech members of the tent community, if so voted by the true Occupy speech group. [Yeah, this may be controversial, but it’s a damned good possible action.]

There is a wealth of opportunities for city and Occupy to work together.

This will, of course, require the Occupy members in Portland to organize themselves to some degree.

If that is too much for their sensitivities, tough. The right to free speech is earned, as the service, wounding, and deaths of our veterans show us, if we take the time to think about it.

Occupy cannot shy from its responsibility to organize and take responsibility for the speech of its members. Yes, they have the innate right to speak out. But one can lose the right to anything by abuse. It is Occupy’s responsibility to work to keep that right.

Personally, I believe the closure will precipitate violence, likely caused by non-Occupy elements. This would play into the hands of the authorities and provide them with a, “See, I told you so,” post-closure rationale for their actions. As a closing note, I’m hating how predictable this has been and continues to be. And I am disappointed in how useless an un-organization really has shown itself to be. At least at this point.

[Note: I am not a lawyer, but have some training in the field. However, it has been 15 years since I last looked at it carefully, so please take those legal points with some caution. The greater point to be taken here is the apparent lack of any comprehensive, reasonable attempt for the two sides to try to work together in a significant manner.]

13 replies »

  1. i don’t know the details of portland, specifically, but it seems that several places have gotten themselves in trouble because the TEA party paid for usage permits, but OWS didn’t — and the locales are now in hot water over a (perceived or real, who knows?) bias towards OWS groups because the usage permits have been waived.

    Free speech is certainly an issue, but we need to make sure that all are equally free – if some people pay because they follow the laws and others don’t pay because they choose not to, that’s not free speech. That’s thuggish behavior.

    It ain’t ever simple – but that’s the joy of a society with liberties for all. Not a “free” society, per se, but one where we all have liberties guaranteed by the laws of the land. Now, if we can only get the government to remember that pesky constitution 🙂

  2. Longstanding precedent does not necessarily confer legitimacy on the precedent, imho. Unjust is unjust regardless of how long logic has been tortured to support it. The right as conferred in the Constitution is fairly plainly written. We have the right to peacefully assemble. Should someone break that peace, well, single them out and arrest that person on appropriate grounds. But I fail to find the legitimacy in circumscribing that right with geographically and politically arbitrary limits. By the same token, I seem to recall that these sorts of measures originate in attempts by municipalities to make such public spaces inhospitable to the homeless. Ultimately these restrictions are not about the public good but about ostracizing the “other” amongst us. There are no “other” Americans.

  3. Dear Human and “others”,

    protest, protest, protest… That’s all you get to see. How about what it is for?? Economic equality, the poor mans voice is as important as the rich mans. “Level the playing field”, right now it slopes downhill to the rich and corporations. – It is a fact. It is a fact that many are fighting.

    . I am hoping that what I say makes sense to someone, and they will start writing and treating this “occupy movement” with the respect it is going to earn. Did you see where Israel had a demonstration of 500,000 people demanding concessions from their government? It worked. Listen to Martin Luther King, his words are as meaningful today as they were then. This struggle for economic justice and government control, will be won by the people! (It is very old..).

    I feel the occupy movement does have a basic underlying message; Stop letting money decide political elections; And regulate corporate lobbying (and all lobbying) making it a public forum. Right now lobbying is mostly two old white guys sitting across from each other in an office. “They” have probably worked with each other or went to the same school; And “they” have promised you a job when you get out of politics, — tripling your present salary!. The “lobbyist” used to be a “politician”, it worked for him!. Who owns who? – That’s a “Person-hood”.

    I lived in the Glenn Hotel in downtown Seattle when the WTO protests happened. It happened at my front door. I was a part of it, promoting it, and involved in it. There is something going on, and I am going to be a part of it again. I have helped organize and promote protests in Bellevue, Olympia, and Seattle Washington; another big one is coming. I feel it will be a “WTO” sized protest in multiple cities.

    “I” was at the WTO protests in Seattle Washington, (with thousands of “other” really awesome “people”, and a few “freaks”) when a bunch of “anarchists” started busting windows with crowbars. We surrounded them, and they got in a circle with their crowbars. I tried to get the “Seattle police” to come arrest “these anarchists”, that were only fifty feet away and threatening violence and breaking windows… The “Seattle police” would not budge from their “police line”, making all of “us” the “enemy”…. (There were thousands of “union” and “other” people sitting and standing in the street, – it was a relatively peaceful protest until the windows started breaking…). ” I” am not the “enemy”.

    I will be in Seattle at 700 Stewart street at the Federal courthouse January 20th, 2012!!! I know we can do this better than last time.

    The Corporate Occupation of the United States

    Our corporate controlled government (through corporate lobbying and election funding ) is out of the peoples control. People want government control back. Makes sense to me… I feel US corporate capitalism (corporatism) is a type of economic fascism: To have a corporate being where the chain of command eventually muddles all responsibility to any human being. These corporate beings are running your life, and controlling your government. (Enough to really make an individual mad and protest.) In reality, the corporate being does not exist, and when it comes to face it’s corporate responsibility, it is a piece of paper. (Or a CEO saying; “I do not recall that”, “I did not have that information”, “that was not my responsibility, I was running the company, and not just that department”,,, and on and on. It has bred a corporate culture of abuse, because they keep getting away with it..), Corporate person-hood is plain and simply wrong: A corporation is not a human being. Restore capitalism to individual responsible chains of command, or this struggle will be lost.

    Please Sign the petition to amend the Constitution for revoking corporate personhood at:

    movetoamend.org

    (I feel January 20th, 2012: will be a bigger day in US history than WTO in Seattle. The battle continues, rage against the machine is real.)

    January 20, 2012 – Move to Amend Occupies the Courts!

    Move To Amend is planning bold action to mark this date — Occupy the Courts — a one day occupation on Friday January 20, 2012, of the Federal Courts, including the Supreme Court of the United States and as many of the 89 U.S. District Court Buildings as we can. (I am inspired by Doctor Martin Luther King who said; “a true revolution of values”, … “there comes a time when silence is betrayal”., “people are not gonna be silenced”.). Move to Amend will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights.

    http://bit.ly/uzm2zB

  4. Argument one: Regulations prohibit camping in the parks. “End of story,” the camp must disband.

    During most of the 1900s segregation was the law. Rosa Parks: Get off the bus! MLK, sit down and shut up!

    …Another “bunch of whiners” and lawbreakers.

    Argument two: Tents aren’t necessary for people to occupy space. Neither are food or water, technically. However, if the people want to remain alive so they can continue occupying space – the main purpose you active to the Occupiers, and in so doing reveal your ignorance of your self-chosen topic – shelter is, in fact, terribly important.

    Argument three: Three supposed drug overdoses and a supposed assault, proving the movement values speech over life.

    In two weeks in October, during the occupation, there was one murder, were give rapes, and hundreds of major thefts that took place in Portland, excluding the camp.

    I can’t imagine you think you’ve made any point whatsoever with this argument.

    Re your bullet points: They further reveal your lack of understanding in this matter. You could have visited the camp before you wrote so mockingly of it.

    You write: “The right to free speech is earned,” then make an speak to sympathy, a logical fallacy

    Oh – former lawyer – the right to free speech absolutely IS NOT earned, but guaranteed in some founding document or other.

    Argument four: “One can lose the right to anything through abuse.” Cite a phrase in the Constitution, in state and/or local law that resembles, in any way, what you wrote.

    “Write what you know,” the adage tells us.

    Listen. Stop whining.

  5. Daniel,

    Thanks for the comments. They do a good job of showing how communication needs to be continuous and open to avoid misunderstanding. My responses to what you say suggest that even among people not under stress, miscommunication often occurs. See my points below within the context of your note:

    Daniel Macklin, November 12, 2011 at 6:07 am :

    Argument one: Regulations prohibit camping in the parks. “End of story,” the camp must disband.

    During most of the 1900s segregation was the law. Rosa Parks: Get off the bus! MLK, sit down and shut up!

    …Another “bunch of whiners” and lawbreakers.

    ***
    GREG COMMENT: Segregation was a stupid reality back then. But it was not a law regulating free speech. The two are not comparable and I cannot accept the relationship you’ve drawn above. Read the law about speech regulation and you’ll see a long history of accepted regulation of speech in a public space which is really not challenged. Occupy could challenge the law, but they have not, they’ve just broken it. If they want to challenge it, they need to move to the courts to seek relief against its enforcement.

    I think this would be a great idea and would really like to see how this works out.

    BTW … there’s a bit of a literary device being used when I used the word. “whiners.” It was meant in just the opposite way you took it, an antonym. Hell, you won’t find me camping in the cold. These people are taking on some real hardships being there and making their statements. Please read for context when you read commentary.
    ***

    Argument two: Tents aren’t necessary for people to occupy space. Neither are food or water, technically. However, if the people want to remain alive so they can continue occupying space – the main purpose you active to the Occupiers, and in so doing reveal your ignorance of your self-chosen topic – shelter is, in fact, terribly important.
    ***

    GREG COMMENT: You will see that I agreed that tents were part of the speech act and I analogized it to the act of marching. Please read for fact as well as for context.
    ***

    Argument three: Three supposed drug overdoses and a supposed assault, proving the movement values speech over life.

    In two weeks in October, during the occupation, there was one murder, were give rapes, and hundreds of major thefts that took place in Portland, excluding the camp.

    I can’t imagine you think you’ve made any point whatsoever with this argument.
    ***

    GREG COMMENT: The violence issues were what are claimed by the government. I did not endorse them as sufficient reason to shutter the protest. I merely reported them. I agree with you that violence occurs elsewhere, and that the Portland government has highlighted these instances in an extraordinary way to justify their actions. You ought to write a blog about that.
    ***

    Re your bullet points: They further reveal your lack of understanding in this matter. You could have visited the camp before you wrote so mockingly of it.
    ***

    GREG COMMENT: In fact, I have visited the camp. That visit has nothing to do with my bullet points which deal with cooperative ventures to make the environment wore workable for everyone. Going to the site and spending some time there does inform you about the way people can live and work together in incredibly impossible circumstances and I admire what I saw in that regard.

    But my bullet points were about cooperative action to keep things safe and workable, and really had little to do with my visit. And I did not write mockingly about the encampment.
    ***

    You write: “The right to free speech is earned,” then make an speak to sympathy, a logical fallacy
    ***

    GREG COMMENT: Yes, the right to speech has been earned by everyone who has acted to protect this country, who has given of themselves to speak freely, and anyone who has paid the price of speaking out. Those who have paid the price are the ones who cover the cost for those who speak without realizing there is a cost to speech.

    We have the right to free speech, but it has its burdens. There are consequences. But if you are one who has never had to suffer the consequences of speaking out and freely, good for you. The rest of us will continue to pay our personal price for speech to let you enjoy yours.
    ***

    Oh – former lawyer – the right to free speech absolutely IS NOT earned, but guaranteed in some founding document or other.
    ***

    GREG COMMENT: Again, facts are useful. I state specifically that I am not a lawyer, and have not been one. I have received some training in the field. And about that “founding document or other,” that, and others have been the sources for the necessary compromises we must live with … you have the right to camping speech in the park (Bill of Rights), and I have the right to the pursuit of happiness in a pleasant park experience (Declaration of Independence). We have conflict of rights.

    As a society and as individuals, we work out the head-butting of rights as we work through our daily lives. No right is absolute. It is our responsibility to find working resolutions without losing our rights. And that is exactly what I accuse the Occupy movement and the city of Portland of failing to do.

    I appreciate this forum and your comments. It lets us work our differences out, rather than end up like the Occupy/Portland stupidity.
    ***

    Argument four: “One can lose the right to anything through abuse.” Cite a phrase in the Constitution, in state and/or local law that resembles, in any way, what you wrote.
    ***

    GREG COMMENT: Try using a bullhorn to speak while having a domestic argument with your spouse. The cops will come. Try speaking up out of turn and over another person’s speech in a city hall meeting and you will be removed. And there will be righteous applause. Enough?

    This is, once again, a matter of reason over absolutism.
    ***

    “Write what you know,” the adage tells us.

    Listen. Stop whining.
    ***

    GREG COMMENT: I have written what I know. And I assume you are using the word, “whining,” in the same manner I used it, to mean something quite the opposite … smart, courageous. Thanks.

  6. I live near Portland and know both the mayor and a few of the more Twitter-savvy occupiers. Portland culture is extremely complex – we lean towards the liberal and have since the days of Grand Coulee and Bonneville Dams – think Woody Guthrie’s “Roll On Columbia” along with his other body of works.

    We’ve had some impressive dialogue between the mayor and some of the “leaders” of Occupy Portland, if they indeed have leaders. The mayor sees the “movement”, if it is a movement, as being about righting economic wrongs, and he supports it. He is very social media savvy – perhaps more so than the occupiers and *decidedly* more so than the Portland Police Bureau.

    The decision to close the camp was made mostly because of drug overdoses and assaults. I personally think the ordinances should have been enforced from the start and tested in court, rather than allowing a tent city to form and then have to shut it down. I don’t know how this is going to end, but if the people I know are truly engaged, it will end peacefully and with widespread community support for the victims of economic inequality.

    What I’d like to see come out of the movement as a whole is a “Jimmy Stewart moment” – the mayors of the cities where the occupiers have camped go to Washington and testify before the “super-committee” on how the decades of rising inequality have victimized their cities. I think Mayor Sam Adams would do that – I’m not so convinced about Mayor Bloomberg of NYC. The other mayors I suspect are between Adams and Bloomberg on the spectrum, if there is one.

    Follow #opdx on Twitter if you want to understand the discussion. There’s a fair amount of “truthiness” there, as with all hashtags, but there are wise folks, reporters on the ground, occupiers, and @MayorSamAdams himself as well.

  7. Rights do not have to be earned! A homeless person also has the right to free speech.
    Thank you, Daniel Macklin, for pointing out the fallacies here.

    Greg Stene, you do make some good points about how comlicated this issue is, but a word of advice: do not use irony in making an argument. If you say a group of people are a bunch of whiners, people will not see into your heart and mind and understand that you are being ironic and that you mean the opposite of what you are saying. They will just think you are calling them a bunch of whiners. And others will quote you.

    Another point I’d like to make. Many people keep criticizing the Occupy movement for not having a clearly defined “message”. Let me just point out that this is not one organization; there is not one message. This movement, like other sociopolitical movements, could spawn the birth of many organizations, each with its own specific messages and goals. In the meantime, there is room for a lot of messages, a lot of voices. At least the people are beginning to be heard!

  8. Sam, It is not about dumbing it down. There is a place for irony, but here in a forum for discussion we need to be clear. Otherwise I message is muddled or miscontrued. It doesn’t matter what the topic is. And I certainly wasn’t suggesting dumbing it down for anyone. … or are you being ironic?

  9. So the protests will be more acceptable to the establishment if the protesters start acting more like the establishment. And what they really need is a Stasi-like means to anonymously inform on their fellow citizens:

    “Develop a program to ferret out drugs, including a method by which people holding drugs may be identified by others in the camp in an anonymous way. Though this may not be enough to obtain a search warrant for a tent or person’s body/belonging outside the tent, it may be helpful in the paired patrolling process.”

    I’m going to guess that on any good weekend night, at least one person OD’s somewhere in downtown Portland, similar to how someone getting shot in downtown Oakland usually doesn’t make the national news. By the logic of shutting down a tent city because of some violence/drug use within it, most of our cities should be force-ably disbanded.

    I’m having a hard time not making bigoted assertions about Mr. Stene’s background based on what appears to be an inherent trust of law enforcement. It sounds so white, middle-class and suburban, but maybe there are others who still believe that the police “protect and serve.” All i can say is that if were at an occupation that brought the cops in, first there would be some violence and that would be the last time i had any association with the movement. Snitches get stitches, Greg.

    *I’m not an occupier, nor will i be because of varied and complex reasons, none of which include a deference to delicate bourgeois sensibilities.

    • Lex: You’re WAY off on Dr. Stene. His focus here is to make it impossible for the authorities to undercut the rights of the Occupy movement.

      Bridget: I’m saying that S&R is and always has been a site that publishes for an intelligent audience. There was nothing about Dr. Stene’s post that struck the editors as being obscure.

  10. Bridget,

    Thanks for the comments. I agree with both you and Sam. There’s a smart audience out there on S&R. Irony can work.

    But I must admit to a slight cringing when I re-read what I wrote. I would not change it, but I know it could have been phrased better so that the intent of the use of “whiners” was both more clear, and effective.

    Again, I appreciate your comments.

  11. Lex,

    Sam was pretty close to what my intent on the shared responsibilities for providing security in the camping area was about. You don’t want some asshole’s personal drug or violent tendencies taking away your publicly perceived right to protest, or muddling your issue. To allow otherwise, is pure irresponsible amateur-city political action.

    First, as I noted in an earlier response, the mention of the drug use was a report on what had been offered by the mayor as legitimate reason for the shutdown. It was never suggested in what I wrote that this was indeed acceptable reason.

    Second, the whole damned thing had become an us-them argument. Anything to lessen that negative dichotomy and attempt to find common or working ground is worth considering. Not necessarily adopting, but considering.

    Pairing a cop with an Occupier is a process that has been used generically elsewhere in the past. With some success. It is an idea that would have been worth considering, and rejecting it out of hand because of some knee-jerk belief that it is selling out or something is not smart thinking. All ideas that can bridge the us-them gap need to be considered.

    There is also the responsibility of the Occupier movement to take on the squeaky-clean role. You want to change things, you don’t let yourself get dragged down by people hauling their drugs or firebombing obsessions into your campgrounds. You have the duty to yourself and others of the movement to be seen as representing your issue without complications, not as supporters of some selfish, useless toad needing CPR in the morning to be alive in the afternoon.

    There is inherent duty in being a movement of this kind. If that responsibility has not been learned from the protests from the 60s, I don’t know what to say.

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