On the one hand, New York City Criminal Court Judge Matthew Sciarinno did what all judges do, and what all lawyers do as well. He took the fuzzy rhetoric of precedent and held that the charges against Ronnie Nunez, arrested in Zuccotti Park as part of the Occupy Wall Street movement, were facially sufficient.
The big constitutional issues, for example, were disposed of easily:
The defendant claims that he and others were exercising their first amendment right by setting up the tents and tarps. This argument is without merit. “The First Amendment does not offer absolute protection to all speech under all circumstances and in all places.” (Clark v. Community for Creative Non-Violence, 468 US 288, 293 [1984]). Even in public forums, reasonable restrictions on the time, place or manner of protected speech may be imposed, provided that the restrictions are content neutral, are narrowly tailored to serve a significant government interest, and leave open sufficient alternative channels for communication of that information. (Id. at 294; Thomas v.Chicago Park Dist. , 534 US 316, 323 n.3 [2002]). In Waller v. City of New York , the court found that Brookfield Properties has “the right to adopt reasonable rules that permit it to maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law.” (Supra at 375). The court held that the petitioners had failed to demonstrate that the rules of conduct were not reasonable time, place and manner restrictions permitted under the First Amendment. On the contrary, the court reasoned that the rules appeared to be “reasonable to permit the owner to maintain its space in a hygienic, safe and lawful condition,” to forestall liability for torts or violations of law, and to permit public access to the park by those who live and work in the area. Id. This court agrees.
Persuasive? Eh. What it is not is clearly wrong (aside from his failure to use paragraph breaks), so that Judge Sciarinno is open to a smack down. It’s a safe, vague decision, hitting all the key words that keep it in the vast middle ground that prevent exposure to harsh criticism or reversal.
But Matthew Sciarinno, having ruled that the case against Nunez can proceed, added a tidbit on the back end that demands further attention. He may have played it safe in the body of the decision, but the “rebel” within wouldn’t let him stop there.
While, this court recognizes that the intentions of numerous members of the OWS Movement are laudable, that does not arguably excuse one’s obligations to work within the lawful process allowed in our democratic society. The “99%” is clearly a majority and can make its voices heard in a legal, organized manner if that is its wish. No matter the alleged influence of the “1%” on the political process, at the end of the day it is the majority that determines those that have the privilege of governing this city, state and nation.
A very curious admonishment, utterly unnecessary to reach the decision that the show must go on, indeed. A slight tip of the hat to the “intentions” of the movement, though one that he inherently qualifies by limiting it to “numerous members of the OWS Movement” rather than all involved or the movement itself. A rather typical judge-like point about the “obligation to work within the lawful process,” which is always amusing given that our nation’s existence derived from revolution.
But the strongest piece of the lecture, and the one best grounded in reason, is that “99% is clearly a majority and cam make it’s voices heard . . . if that is its wish.” It’s a damn good point.
While the disaffected usually assume the mantle of speaking for the downtrodden masses, the masses don’t always agree. The disaffected explain this cognitive dissonance as ignorance or fear, and that if only the masses understood how they were speaking for them, doing what’s best for them, they would lock arms as well. Yet it doesn’t seem to either work out that way, or that easily.
We’ve had some efforts to create grassroots movements, ranging from the Tea Party to OWS. They each gain followers and momentum, but still they struggle to have a coherent message beyond the same platitudes that are chiseled into the lintels over government doorways. “Justice is Good” type maxims.
Whether the problem is that a pluralistic society is no longer capable of reaching a consensus, given that it’s comprised of too many narrow interest groups whose belief, though occasionally overlapping, never seem to be coterminous, or that we just have different priorities, and are unwilling to give up what matters to us in order to form a more perfect union, isn’t clear.
What is clear is that OWS, like the Tea Party, had a chance to let the nation know what it stood for and to rally support to buck the existing power structure. Both made a splash. Neither won the day. And as we run headlong into our next presidential election season, little has changed.
Even though I found the message of OWS lacking (which always compels someone to “explain” it to me, while pointing out that I’m thick as a brick for neither getting it nor embracing it with every ounce of my being), I respect, no, admire, the political fervor of its proponents. It’s good that people care. It’s great that people are willing to sacrifice their comfort and convenience to take a stand.
Part of what the “members” of the movement sacrifice is the right to be free of the constraints of the legal system and those who enforce it. In the ’60s, protestors were arrested. Some were shot. Some were killed. They gave their life for a cause in which they believed, no matter how silly it all seems more than 40 years later.
If the OWS movement represented the 99%, they wouldn’t have to take to sleeping bags in Zuccotti Park. They would rule this country. That they don’t reflects the problem with having a great slogan without the backing to make it happen. And so some will be prosecuted for what they believe in. That’s how protest works, fighting the powers that control the ground and suffering for your beliefs, even when the 99% doesn’t agree.
H/T Eugene Volokh
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I think the message was that the economic distribution in the US has become too skewed, not balanced enough, and that this wealth distribution imbalance ends up hurting us economically, as a culture and as a nation that takes pride in meaningful economic opportunity.
I didn’t hear any sing OWSer put it into quite the words of the preceding long sentence, but if you listened to about 100 of them make their various and sundry little comments, the commonality, the pattern, the theme is easy to spot and spot on. And, yeah, a lot of the 99% don’t want to hear it. They are like Boxer in Animal Farm. They are proud of being that way. They don’t want to be told not to be proud of who they are cuz they are living in, a contributing to, a deteriorating, dead end culture that is starting to have a negative, rather than a positive, impact on the world. Who wants to hear that? Its depressing! I don’t think there is a way to communicate that message if it is only legal to communicate it in ways that the rest of the 99% (aka the sheeple) can easily avoid hearing it. Because they will try to avoid hearing it. We KNOW that part.
Man, judges get a lot of stuff wrong, but that’s a doozy.
First and trivially: no, judge, just because the majority wants something doesn’t mean it can happen through the ballot box. There is this little concept called judicial review. And the Bill of Rights.
Second and more importantly: the institutionalized corruption of the electoral process, and review by a Mister Magoo judiciary, is sort of the point.
To the extent there’s a core complaint of the OWS folks, it appears to be that, according to judges, corporations enjoy many of the same civil rights as humans, and to the extent that money = speech, corporations have greater rights than humans. (Or, I suppose, the same right, just exercised far more vigorously.)
If the premise is that electoral outcomes are increasingly illegitimate in part thanks to judicial decisions like “Citizens United” and similar rulings on corporate personhood, what good does it do to lecture people about the virtues of voting?
(I’m not saying the OWS premise is right, though I’m certainly sympathetic. I just think it’s a case of a judge completely missing the point–which is, alas, the point itself, or a big part of it.)
“Or, I suppose, the same right, just exercised far more vigorously.”
That’s an extremely important distinction. We are granted equality of rights, not equality of exercise.
If over the course of a year I write 50 or so essays about the decisions our government should make, and they’re read by a lot of people, and influence a large number of statesmen and other decision makers, I will have vigorously exercised my rights, and will have a disproportionate impact on the government.
Now, it might be bad for one person to have such a large impact, but the solution isn’t to try to limit the number of essays I can write in a year, or to say that essays cannot be organized, edited, funded, and published by corporations. The solution is to get more people writing and making their voices heard.
If every voting-eligible person contributed $100 to a campaign (I think you can save up that much over 4 years, just $2 a month), they would contribute about $21 billion in campaign funds. This year’s election is likely to have no more than $2 billion total spent from Obama and Romney combined, and most of that already comes from small individual donations. It’s incredibly easy for the masses to drown out the influence of wealthy corporate interests. Unfortunately, it’s even easier to not do that. Corporate money is no louder than a whisper in a library.
You influence a large number of statesmen? Who knew?
Your point about campaign contributions is one I’ve made before, that contrary to the complaints of the disaffected that the big contributors, the corporations, etc., own the politicians, the reality is that the 99% contribute almost no money to compaigns, yet complain that they have no voice. They have a voice. They choose not to use it.
I feel that’s disingenuous. For individuals the opportunity costs, transaction costs, and collective action problems are far more burdensome than they are for non-human persons like corporations.
A human who has to work for a living has very tight limits on time and budget–even tighter if he or she has a family. On a pretty good day, I’ve got about 3 hours of “me” time. Even if I were to spend all of that time serving the civic good as I understand it, I’m going to get obliterated by, say, the for-profit prison industry.
The only way I can make a meaningful contribution is by organizing with others–pooling money, time, and ideas.
For the sake of discussion let’s assume that with a wide enough net, the money would be comparable. The 2008 election cycle cost something like $5 billion, so to make any kind of dent in that I figure you’re looking at upwards of $50 million. I feel this is dubious, but will agree to it anyway.
But organizing on the necessary scale imposes huge transaction costs and collective action problems. Just look at the problem the Occupy people are having coming up with a coherent message, even after 6 months–and the ~200 hardcore people there agree on practically everything. On the right, the Tea Party seems to be equally incoherent (and, despite being very vocal and crucial to the 2010 election outcomes, have to endure Romney as their general election candidate).
In contrast, Wells Fargo, Goldman Sachs, Blackwater/Xe, Monsanto, Bank of America, etc. not only have vastly larger reserves of cash, but face few practical obstacles in the exercise of that power.
The problem isn’t that I face these obstacles–the founders likely anticipated them and saw them as necessary to the political process. The problem is that non-human persons don’t face them. I’m starting out at a huge disadvantage compared to the for-profit prison industry is not an accident. I’m happy to do the hard work: that’s part of citizenship. But I’d like it to mean something when I’m done.
You’re right, it would be very difficult. Corps have it easier. Rich folks have it easier. Regular folk have the numbers, but will find it more difficult both to agree and organize. As old Ben Franklin said, “A Republic, if you can keep it.”
And if there were no corps or rich folk money, do you think regular folk would lift a finger to keep it?
Because some find it difficult to get organized, no one should be allowed to organize.
Also, collective action is only relevant if you want to promote a particular interest.
But, if what you want is to decrease the influence of other interests, you only need a large total amount of money, it doesn’t matter if the donors are organized or not. Every dollar given decreases the influence of every other dollar.