The Closing of the Public Square

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BOOKS JANUARY 12, 2012

The Closing of the Public Square

Liberty’s Refuge: The Forgotten Freedom of Assembly | by John Inazu
Speech Out of Doors: Preserving First Amendment Liberties in Public Places | by Timothy Zick
Yale University Press, 288 pp., $68.50 | Cambridge University Press, 344 pp., $38.25

BROOKFIELD PROPERTIES, the owners of Zuccotti Park, never imposed rules restricting the use of their space until Occupy Wall Street arrived. Only then did Brookfield prohibit (among other activities) “camping and/or the erection of tents or other structures,” “lying down on the ground, or lying down on benches,” and “placement of tarps or sleeping bags or any other covering on the property.” Standing before Justice Michael Stallman of the Supreme Court of the State of New York, OWS’s lawyers argued that Brookfield’s post-facto rules and the city’s enforcement of them—which entailed evicting their clients—were clearly intended to suppress First Amendment rights of speech and assembly. Justice Stallman disagreed. While repeatedly noting the belated nature of Brookfield’s rules, Stallman found those rules—and their enforcement by the police in the name of public safety—to be “reasonable,” and therefore compatible with the First Amendment.

And really, who could disagree with the judge’s conclusions? To most readers, the demand of two hundred people to sleep in a cement square overshadowed by skyscrapers will seem manifestly unreasonable. Yet Stallman’s ruling did not stem from some universal principle of reason. Rather, the judge was only affirming the current—and contested—reading of the First Amendment. That reading represents a reversal of the increasingly permissive approach to public speech and assembly pioneered by the Supreme Court in the middle of the twentieth century. As John Inazu writes, “in the past thirty years, the freedom of assembly has become little more than a historical footnote.”

Both John Inazu’s Liberty’s Refuge: The Forgotten Freedom of Assembly and Timothy Zick’s Speech Out of Doors: Preserving First Amendment Liberties in Public Places investigate the disappearance of the First Amendment “right of the people peaceably to assemble” in contemporary America. Although Inazu and Zick wrote their books before the Occupation emerged, their histories help to explain—and even to justify—the Occupy Wall Street movement’s extreme mode of assembly: an assembly that insists on peculiar decision-making procedures, engages in twenty-four-hour protest, and refuses to cooperate with government officials and their permitting regimes.

Zick’s contention is that the past several decades have witnessed the erosion of America’s “expressive topography.” By this clunky phrase, Zick means the “supply of material space” in which citizens are able to exercise their First Amendment rights of speech and assembly. Drawing on legal history as well as sociological and anthropological theory, Zick traces the increasing institutionalization of once-public space, as private land developers, public officials wary of dissent, and police forces crowd out normal citizens who desire to congregate and be heard. This closure of the public square perversely transforms protest—a lawful form of politics enshrined in the Constitution—into a dangerous act of civil disobedience.

While Zick focuses on the external conditions without which assembly becomes impossible, Inazu’s primary concern is the internal composition of assemblies. For Inazu, to protect assembly means to protect groups of citizens whose political, social, and religious practices dissent from and even threaten politically correct forms of group behavior. In recent decades, however, the Supreme Court has shifted from defending the right of assembly to defending the “right of association,” a phrase that does not appear in the Constitution. The problem with “association” jurisprudence, according to Inazu, is that it offers “diminished protections for dissenting and destabilizing groups” by imposing very narrow definitions of what counts as political expression.

One of Inazu’s bêtes noires is the recent Supreme Court case, Christian Legal Society v. Martinez (CLS). In CLS, the Court denied “the right of a religious student group to limit its membership to those of its choosing,” that is, to other Christians. What troubles Inazu about CLS is the way in which the government imposed its own pluralistic vision of a proper assembly on a group whose very reason to exist was to escape such pluralism.

Historically, both authors contend, the function of assemblies in America has been to pursue and to exemplify modes of public life—such as suffragette conventions and civil rights sit-ins—that challenge mainstream social and political arrangements. But if the government can dictate the location and composition of each and every assembly, then there will remain only one kind of public life available to citizens—the kind that political officials and their police enforcers permit.

Since colonial times, Inazu explains, Americans have assembled beyond the corridors of official power in order “to disrupt the polity,” to provide “a check against majoritarian standards,” and to resist “the attempt of government to control dissent.” While there were no First Amendment guarantees in the colonies, government forces were far weaker than most contemporary Americans can imagine. “At the time,” Zick explains, “there was no extensive bureaucratic apparatus—municipal ordinances, permit schemes, large police forces, and so forth—to regulate or suppress public contention.” When public officials called on the militia to disperse protesters, militiamen would often “refuse to report for duty.” As government grew, however, such assemblies became threatened by professional police forces and standing armies that deployed violence—or refrained from doing so—at the whim of the politically powerful.

At the turn of the twentieth century, government officials routinely barred the people from meeting in public to discuss and to protest economic and political injustice. When groups were allowed to meet, officials restricted them to carefully watched “free speech zones” far from intended audiences. Zick points to one local ordinance that “barred labor activists from speaking within a 49-block zone in the heart of the city.” When protesters challenged this urban repression on First Amendment grounds, they found a stalwart enemy in the Supreme Court. In those days of laissez-faire capitalism, the Court insisted that public space should be treated as property owned by the government; just like a private owner, the government could forbid trespassers on its land.

Only as massive labor unrest roiled the country during the Great Depression did the federal judiciary begin to put meat on the bones of the First Amendment’s “right to peaceably assemble.” In 1939, in Hague v. CIO, the Supreme Court invalidated the mayor of Jersey City’s attempt to bar labor organizers from meeting on public property. Public spaces such as streets and parks, the Court wrote, “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly.” In vindicating the right of the CIO to assemble, the Court described a new legal space—the public forum—in which certain kinds of expression could not be restricted. Ironically, in later years, the public forum concept, and the equation of a particular act of assembly with the more general category of “expression,” would become ways of limiting rather than liberating assembly. 

In the 1960s and early ’70s, however, civil rights activists pushed the boundaries of the Hague decision, assembling out of doors and sitting where they didn’t belong, often in violation of public safety and trespass laws. The Supreme Court responded positively to these efforts, reversing dozens of local convictions, including that of five African-American men who staged a silent protest in the “whites-only” public library and eighty-five demonstrators who protested school segregation outside the home of the mayor of Chicago. The simple fact that local officials found the use of public land by civil rights activists to be a threat to public safety did not give them the authority to disperse the assembled protesters.

While the tactics of civil rights protesters “were generally peaceful,” Zick helpfully reminds us of how disruptive they actually were, attracting outraged crowds and paralyzing city centers. The solicitation of mob violence was a civil rights strategy, and officials often used the possibility of such a hostile audience reaction to shut down protest. In the ’60s, however, “the Court appeared to impose an obligation on police officers to protect public speakers rather than seek to suppress public contention based upon the mere possibility that violence or public disorder would occur.” The Court went even further in some cases, protecting even sit-ins at privately owned venues, such as segregated drug stores.

In 1972, Justice Thurgood Marshall articulated the animating spirit behind these civil rights decisions when he wrote that the “right to use a public place for expressive activity may be restricted only for weighty reasons.” As long as the manner of the people’s expression was “compatible” with the normal use of space—reading at a library, eating at a diner, standing on a sidewalk—it would be unreasonable for the government to restrict such expression.

By the time Marshall developed this “compatibility” test, however, the backlash had already begun. “As the civil rights protest era gave way to the Vietnam protest era, tolerance for public disorder began to wane,” Zick explains. In the ’70s and ’80s, an increasingly conservative judiciary rejected Marshall’s compatibility test and returned to the laissez-faire vision of public space as property. Courts reasoned that the government, like any other property owner, had the right to impose “reasonable time, place, and manner” restrictions on the people’s use of its property—even in those spaces, such as city parks and sidewalks, where people had assembled “time out of mind.”

These “reasonable time, place, and manner restrictions” have come to include complex systems of permitting. Today local governments generally require citizens to seek pre-approval and pay licensing and insurance fees before they may acquire a permit to assemble peaceably. As a result, those who want to protest the political status quo must ask those who maintain the status quo for permission to do so. The government’s “prior restraint” of speech is the oldest and most obvious example of a First Amendment violation. Yet today, those who march down a city street are declared lawless until they pay and persuade the right government officials.

This bureaucratic control of assembly enabled by permit regimes has been exacerbated by what Zick calls “militarization,” “a new form of public protest policing” that seeks to control “public places and public expression through repressive measures like expressive zoning, surveillance, infiltration of protest groups, mass arrests, and use of force.” Such militarization has rapidly accelerated in the wake of September 11.

The most insidious tool of this new form of policing is “expressive zoning,” which marks a return to early twentieth century “free speech zones.” A technique used at the presidential conventions of 2004 and 2008, expressive zoning involves the designation or construction of areas—often far from a protest’s intended audience of political officials or business leaders—in which free speech “activity” is allowed. Outside of these “designated demonstration zones,” marching, sign-waving, and excessive shouting are all arrestable offenses. One federal district judge who toured the demonstration zone at the 2004 Democratic National Convention wrote that the “overall impression created” by the mass of chain-link, concrete, and razor-wire was “that of an internment camp.”

These days on the streets of Manhattan, police use more mobile methods of expressive zoning as they rapidly deploy metal barricades, mesh netting, and motorcycle cordons to make certain sidewalks or streets off-limits to protesters—all in the interest of “public safety.” When a group of Occupy Wall Street protesters traveled to East 79th Street, where Mayor Michael Bloomberg lives, with the intention of playing drums and other musical instruments in non-violent protest against their eviction from Zuccotti Park, heavily armed police quickly set up barricades, to bar the protesters from accessing the Mayor’s block. Anyone who did not rent or own property there would be arrested if they tried to walk down the street. As the civil rights attorney Norman Siegel remarked, the police had simply created a “no First Amendment zone.”

Meanwhile, the nature of the threat to public safety posed by the protesters’ syncopations—which wafted over from Fifth Avenue, where the musicians had been corralled—remained unclear. This moment of “expressive zoning” provides a perfect example of the privileging of property over protest that the American legal and political establishment has enforced since the late 1970s.

The essence of assembly, John Inazu writes, is its promise of a kind of politics “distinct from the politics of the state.” Suffragette conventions and civil rights sit-ins, to name two significant forms of assembly, were not simply vehicles for speech or “association.” They combined discussion, organization, and physical context in peculiarly vivid critiques of the status quo. When women who did not have political rights engaged in political deliberation, when blacks who did not have the right to lunch together in a restaurant broke bread anyway, these citizens went outside the given legal and political structures to craft their own model of civic life together, a model that they felt then—and we feel now—was more just than official politics and settled law. Any right to assembly that respects these historical precedents, Inazu argues, must both protect “a group’s autonomy, composition, and existence” and recognize that “the existence of a group and its selection of members and leaders are themselves forms of expression.”

It is certainly reasonable to doubt whether the Occupy Wall Street movement’s peculiar approach to deliberation, organization, and physical space offers an immediate practical alternative to the United States’s current political economic system. But it is quite clear that the movement’s baroque methods express a critique of that system. This is what Inazu means when he writes that the composition and the leadership structure of an assembly are “themselves forms of expression,” deserving of judicial protection. Yet today permit regimes and expressive zoning impose what Timothy Zick calls “a hierarchy of command” on assemblies that stifle their experiments with novel forms of collective expression.

Would Zick’s and Inazu’s critiques of the modern law of assembly have changed Justice Stallman’s mind about the legality of the eviction of Occupy Wall Street from Zuccotti Park? Probably not. The case law upon which Justice Stallman relied is clear. In 1984, a community group set up an encampment at Lafeyette Park in Washington, D.C., to shelter and feed the local homeless population and, in doing so, rebuke the economic policies of the Reagan Administration. While earlier regulations had allowed “symbolic campsites,” after the community group had run an encampment for seven weeks the National Parks Service adopted new regulations banning all sleeping in parks in the D.C. area. The Supreme Court held that however “expressive” the campsite might have been, the government’s new refusal to allow people to sleep in the park was a “reasonable time, place, or manner restriction of expression.”

Unsurprisingly, Thurgood Marshall, whose forgotten compatibility standard had sought to constrain the vague use of such a “reasonable” standard, issued a stirring dissent. He argued that the braving of the elements was essential to the campers’ “expression.” As Bruce Ackerman and Yochai Benkler recently summed up Marshall’s insight, “People must be allowed to lay down their bodies, not only their wallets, to advocate [for their] deepest beliefs.”

Although neither Marshall’s dissent nor Inazu and Zick’s historical interpretations of assembly are legally binding, they should give us pause when contemporary judges such as Stallman defer to local officials’ decisions about when and where a protest may safely take place. If the value of an assembly lies in the political alternative it offers to the “politics of the state,” then judges, and all citizens, should be skeptical when state officials repeatedly seek to eliminate a novel form of assembly, however absurd it may seem. While public safety is undoubtedly important, citizens who wish to live in an open democracy must keep vigilant watch over that boundary where “public safety” becomes synonymous with “political stability.”

Jeremy Kessler is a JD/PhD student at Yale Law School and Yale University’s Department of History, where he works on the history of conscientious objection. He has written for n+1, The Los Angeles Review of Books, and The New Atlantis, among other publications.

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