Occupy Wall Street and First Amendment Rights
By: Jim Byrd
A United States citizen’s exclusive rights guaranteed by the Constitution end at the U.S. border. Each state within the United States has a state line, and rights exclusive to a state end at the state line; each state consists of counties, and rights exclusive to a county end at a county line; each county has cities or towns, and rights exclusive to a city or town end at the city or town limits; and within each city or town exists private property, and the owner’s rights exclusive to that property end at the property line. The United States Constitution guarantees and protects individual and collective rights, but each right ends where another right begins.
One of the intents of the Constitution was the protection of certain rights, but without the supplement of the Bill of Rights as a more specific enumeration protecting certain rights, the Constitution would not have been ratified. What is not included in the Constitution or the Bill of Rights is the right to occupy public or private property, the disregard of local laws and ordinances, and most certainly the right to infringe upon the rights of others.
Supreme Court Justice Oliver Wendell Holmes best explained the boundaries and limits of rights: “The right to swing my fist ends where the other man’s nose begins.”
The very name Occupy Wall Street, and this arbitrary and pedestrious league of misfits’ very purpose for existence, belies constitutional protection. The very action of occupying and setting up permanent encampments on public and private property, violating local ordinances and regulations, replete with myriad felonies, wholesale disregard for public safety, the blatant violation of the rights of others, is simply not reconcilable with the 1st Amendment’s…Congress shall make no law respecting…or abridging the freedom of speech…the right of the people peaceably to assemble….
The right to freedom of speech and the right to peaceably assemble were never intended to be absolute, and the Supreme Court has likewise never ruled either as an absolute right. In Hague v. C.I.O. (1939), the Supreme Court made clear that streets and sidewalks were in fact public forums, and thus protected. In 1937, the Jersey City Mayor, Frank Hague, under the guise of a 1930 city ordinance forbidding the gatherings of groups that advocated obstruction of the government by unlawful means, ordered the police department to shut down a meeting at the Committee for Industrial Organization, and to seize all materials. C.I.O. sued, arguing that the ordinance violated the 1st Amendment’s freedom of assembly.
The Supreme Court, by virtue of the 1st and 14th Amendments, struck down laws and ordinances requiring permits for speech and assemblies on streets, parks, and other public forums as discriminatory, as it was up to the discretion of the government who would or would not be granted a permit.
On July 8, 1939, in a much more subdued and benign exercise of the their 1st Amendment rights than the Occupy Wall Street’s boisterous assault upon cities across the U.S., 68 Jehovah’s Witnesses marched through the town of Manchester, New Hampshire carrying signs and blocking foot traffic on public sidewalks. This was in violation of a New Hampshire statute requiring a license for parades and processions. All 68 were convicted in municipal court for violating the state statute. The Jehovah’s Witnesses sued the state of New Hampshire for violating their freedom of worship, freedom of speech, freedom of the press, and freedom of assembly. In the resulting Supreme Court case, Cox v. New Hampshire (1941), the court ruled that even though the government cannot regulate the content of speech or the right to peaceably assemble, the government can place reasonable time, place, and manner restrictions on these 1st Amendment rights for public safety concerns. After Cox v. New Hampshire, governments were allowed, by requiring the acquisition of permits, to impose reasonable time, place, and manner restrictions on the use of public property.
Forty-five years later, the right of the government to impose reasonable time, place, and manner restrictions on public property was reaffirmed with Clark v. Community for Creative Non-violence (1984). As with the Occupy Wall Street philistines, to bring attention to the homeless, the C.C.N.V. wanted to “occupy” Lafayette Park and the Washington, D.C. Mall by setting up tent encampments. The Park Service granted the C.C.N.V. a permit to demonstrate and to setup a few symbolic tents, but denied their request to make an all-encompassing encampment. The Supreme Court ruled that the Park Service regulation did not violate the 1st Amendment rights of C.C.N.V. The court also made clear that even expression is subject to reasonable time, place, and manner restrictions, and reaffirmed that the government can regulate speech and assembly with permits, fees, and imposing restrictions on time, place, and manner to ensure public safety and to protect the rights of others.
The Occupy Wall Street and its incarnation’s fundamental animus–when one can be discerned–are contrary to 70+ years of Supreme Court precedent regarding 1st Amendment rights. The movement has purposely blocked sidewalk traffic, street traffic, damaged local businesses and other forms of commerce, blocked access to commercial and residential buildings, and nurtured disease, crime, and the systematic violation of the rights of businesses and residences in their immediate area. It would take an implausible stretch of the imagination to believe that these acts would be protected forms of speech, expression, or peaceable assembly by established 1st Amendment standards. This group of intellectual, moral, and wayward vagabonds setting up permanent encampments on public property, straining the limits of their immediate ecological, societal, and economical environments, is exactly what it appears to be: a group of intellectual, moral, and wayward vagabonds living on public property, and through unadulterated ignorance, they actually believe that their 1st Amendment rights protect the infringement upon the rights of others, destruction of their immediate environment, commission of economic terrorism, rape, sexual assault, theft, drug dealing, drug use, prostitution, pimping underage girls, urinating and defecating on public and private property, and public fornication.
What is astonishing on multi-levels regarding the cities being occupied is the deliberate and voluntary lack of mandated action by the representative leaders to enforce each city’s laws and ordinances without prejudice. Each city has its own group of legislators, be it commissioners, councilmen, or mayors who are elected to create legislation but also to enforce the laws and ordinances of their city uniformly.
What is not astonishing is the paradox of Occupy Wall Street’s perambulatory anarchy and chaos—which by its very definition, seeks the elimination of laws, rights, and governmental and court enforcement—and their instantaneous wailing and writhing about in their excrement and urine saturated, apocryphal sanctuaries regarding the violation of their 1st Amendment rights. But as with all fraudulent movements coveting desultory demands, unsystematic protests devoid of substance, constructive ideas, or a plausible reason to exist, Occupy Wall Street is rapidly etiolating under the most unceremonious of conditions: a dramatic drop in a relevancy that never existed, the exodus of the liberal media and its ephemeral infatuation, and like vultures over dried bones, the calculated disassociation by liberal politicians once political expediency ceased to exist.
It is entirely plausible that with its micro-existence, its inanimate legitimacy, and its annulling impact, in one year’s time, Occupy Wall Street’s impact never breached the azoic phase, and thus the question could be asked: did the movement ever really exist, or was it just a spontaneous and promiscuous occurrence of rapes, murders, arrests, prostitution, and drugs, mired in feces and urine?
Jim Byrd's website is A Skewed View.