26 October 2011: Free speech part of Occupy Movement

Free speech part of Occupy Movement

If money is a form of political speech, is “free speech” an oxymoron?

The 1st and 14th Amendments guarantee no federal or state law can abridge the right of speech or to assemble peaceably unless you’re an Occupy Denver protestor in John Hickenlooper’s Colorado and Michael Hancock’s Denver.

To be fair, the Occupy issue(s) motivates my thinking, but the argument I present here has meaning regardless of issue, from reproductive rights to shutting down college fraternities.

It’s important to note that while political speech might not involve assembling, political assembly necessarily involves political speech.

For several weeks, the protesters were peaceably assembling in state-owned Lincoln Park and after Hickenlooper got a burr under his saddle, later in Denver’s Civic Center Park. Hick wound the clock and time ran out on protesting: It was after 11:00, and for safety sakes, you cannot assemble and express your opinion unless you remain on the sidewalk. Timeout for speech and assembly!

So it goes in the “land of the free.”

While school law, given it almost always involves minors in a special setting, does not completely serve well as a precedent or model for law in the larger arena, an example from it gets at the contradiction in what has come down to us in the form of Supreme Court rulings that have shaped our legal basis for speech and assembly.

In Tinker v. Des Moines, the Supreme Court ruled schools could not ban armbands worn by students protesting the Vietnam War.

The court said students should not be expected to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In other words, there’s no timeout on individual liberties even during school hours.

“Under our Constitution,” Justice Abe Fortas wrote, “free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots.”

Consider that last phrase in light of the right’s dominance of our electronic media: talk radio and cable TV

Fortas continues: “The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.”

Or a public park between 11:00 PM and 5:00 AM? Might not sleeping in a public park be in itself a form of dissent? Should it be considered among the “carefully restricted circumstances” Fortas prescribed?

Given the 24/7 state of our media and business world, cannot the need to protest without interruption, as what is happening in Zuccotti Park in New York, be considered an essential aspect of the message the protestors are conveying?

Why is resting during a protest movement a cause for safety? It’s not, after all, like “a man falsely shouting fire in a theater and causing a panic,” as Justice Oliver Wendell Holmes wrote in Schenck v. United States in 1919. Remember, the Occupiers had been safely doing it for weeks.

The governor tried to portray reason when he said that while he understands from where the protestors are coming, safety is his primary concern. But that’s bogus. The idea that unkempt protestors presenting an embarrassing backdrop for button-down business owners Hickenlooper has been wining and dining comes to mind about his real thinking: They were and are not about to go home.

In addition to economic justice and undue influence by Corporate America and the uber-wealthy having over our political process, the Occupy Movement ought to be raising questions about what exactly constitutes free speech and assembly and why it’s legal to restrict it in public parks near the witching hour by underprivileged Americans but not to the cash spent by the privileged buying candidates.

The irony is that in 21st-century America, speech is not free: It’s proportional to the wealth and power one or a group has.

While the Occupy Movement has changed the national conversation from national debt to jobs and the injustices perpetuated by a bankrupt system, it can and should be more. Rights not defended are non-existent.

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