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.]