The First Amendment is not absolute, Mayor Bloomberg told the press this morning after the NYPD had cleared Zuccotti Park of the Occupy Wall Street demonstrators. When freedom of speech and assembly conflict with public health and safety, as Bloomberg claims had happened at the occupation, public safety comes first. At the same time, the mayor claimed that the occupiers had violated everyone else's First Amendment right to express opposing viewpoints, or no viewpoint at all, in the park. Had the occupiers compelled visitors to endorse their agenda? Had they attacked someone who'd challenged their beliefs? It's more likely that Bloomberg was endorsing the implicit American right to be left alone, which in the public-park context means that you have a right not to see or hear protests. Not even that right is absolute, of course, since Bloomberg has said that protesters will be allowed to return for daily demonstrations. But there seems to be some point of in-your-face offense when the right to demonstrate conflicts with the right to be left alone. New York City did not act specifically to affirm this latter right -- the public health and safety concerns raised by the park owners were paramount -- but the mayor made a point of invoking that right in justifying his action. He'll have a chance to explain the principle in more detail when the city responds to the restraining order issued this morning temporarily forbidding authorities from stopping people from bringing tents to the park. In the meantime, unless the same court can compel the city to open the park, Bloomberg will keep it closed.
Most Americans would be outraged by any comparison between the evictions of occupiers across the country this fall and the clearing of Tiananmen Square by the Chinese government in 1989. Skeptics will note that violence against protesters has been kept to a relative minimum, especially compared to the Beijing atrocities. But isn't the principle in play essentially the same? How many Americans conceded the Chinese government's right to clear the square? Few if any, as I recall. This was another case when Americans gave foreign dissidents the benefit of the doubt against a foreign government's invocation of the rule of law, and another in which many denied the premise that a "totalitarian" country like China even had a rule of law. The measure of China's lawlessness, of course, was the way the country treated dissidents. Perhaps it's because most Americans are satisfied with our own rule of law that we seem less inclined to privilege civil disobedience on our own soil. Our attitude toward dissidents abroad is conditioned by our attitude toward their governments. We make heroes of dissidents in China, Iran and other theoretical or potential "enemy" countries, while we often ignore dissidents in friendly lands -- and in places like the Middle East, where we fear that the cure of Islamist democracy could be worse than the disease of dictatorship, we throw up our arms in confusion. A consistent attitude toward dissent and civil disobedience should grant American occupiers the same latitude that editorial cheerleaders have granted occupiers in Tiananmen Square, Tahrir Square and elsewhere in the past. But if people prefer to say that the rule of law is valid in some places, and trumps the prerogative of civil disobedience, and invalid elsewhere, that compels us to question whether a true rule of law exists anywhere. Occupations themselves and other forms of civil disobedience raise the same question, and for that reason participants should never expect immunity from arrest or harassment. Protest presumes injustice, as opposed to mere lobbying. If actions like today's rout of the Wall Street occupiers leave more Americans skeptical about the rule of law in this country and whom exactly it benefits, the occupiers may have continued their work in defeat.
Update: A judge has ruled in Bloomberg's favor, determining that the ban on encampment in the park doesn't violate anyone's First Amendment rights, and Zuccotti park was reopened to protesters and other park-goers. The next test for the city is the protesters' previously-announced plan to "shut down" Wall Street on Thursday. The challenge for the erstwhile occupiers, as it has been all along, is to contest the complacent assertion of a general right not to be confronted by bad news or warnings of worse.