'Civil disobedience isn't meant to be tolerated'

A few weeks ago in Albany, a local Republican party chief staged a photo op in front of the Occupy Albany encampment in Academy Park. He was there to denounce the Albany County district attorney for refusing to prosecute trespassers and curfew violators and to demand that Governor Cuomo appoint a special prosecutor to overrule the DA's inaction. During his appearance he was heckled by Occupiers, whom he called "hypocrites" for being unwilling to tolerate his opinion or engage in meaningful dialogue with him. I remembered that sound bite when one of the local papers recommended a Wendy Kaminer blog for the Atlantic Monthly that also denounced Occupiers across the country as hypocrites. Kaminer is a "civil libertarian" who appears to belong to the "you're not accomplishing anything" school of critics of the Occupations. She finds the emphasis on occupying public space a self-defeating distraction from the more appropriate purpose of forging "an effective, left leaning counter movement to the Tea Party." Perhaps strangely for a civil libertarian, she's completely unwilling to entertain the Occupiers' assertion that the public's right to use public space for political expression trumps any state or municipal regulatory power -- in short, she seems to dismiss the possibility that parks may belong to the people rather than to governments. Instead, she affirms in an October post that "cities may impose reasonable time, place and manner restrictions on mass protests." What makes restrictions reasonable, at least in her opinion, isn't so much public health or safety as a general principle of equal accessibility that has been violated, in her view, by all the Occupiers.

In both the October article and the subsequent November piece cited by the Albany paper, Kaminer takes for granted that an indefinite occupation on the Zuccotti Park model is inherently exclusionary and therefore more a violation of the First Amendment rights of other people than a legitimate expression of the Occupiers' own rights. This critique depends on an assumption that the Occupiers would not permit dissenting viewpoints or counter-demonstrations wherever they make camp.

What if a group of Tea Partiers seek to establish camp in the same space [Dewey Square in Boston]  in order to demonstrate a contrary vision of community or communicate a contrary view of economic justice? What if the Tea Partiers also argue that camping in Dewey Square is "a core component of their message" because of its location in the financial district? Private associations have First Amendment rights to formulate and control their own messages. So would Occupy Boston have the right to exclude the Tea Partiers, in order to prevent them from muddying its message, simply because they got there first?

Kaminer's charge of hypocrisy is largely speculative. She repeats a suspicion that Occupiers would not tolerate any imitation of their example by politically-opposed entities, be they Tea Parties, "Christian nationalists," or white supremacists. Even were they not as intolerant emotionally as she suspects, the mere fact of their occupation of parks sufficiently denies other groups their equal right to assembly to earn Kaminer's "hypocrite" label. Unless the Occupiers are prepared to yield so others can have a turn, even if no one else has demanded a turn, their encampments violate Kaminer's understanding of the First Amendment as a guarantee of everyone's turn at political expression.


Reading Kaminer's pieces, you get the impression that she regards the Occupiers as so many spoiled brats -- not because of their political demands but because they don't seem, to her, to take civil disobedience seriously. She singles out one Boston Occupier's lament that "civil disobedience won't be tolerated" by the city's mayor, and replies that  "Civil disobedience isn't meant to be tolerated; it's meant to expose official intolerance and injustice. Civil disobedience includes both a commitment to violating arguably unjust laws and a willingness to submit to lawful arrests."

Bradley Russell of Occupy Albany might come closer to Kaminer's ideal of civil-disobedience for his willingness to provoke arrests by crossing the border from city-run Academy Park, where Occupy Albany is tolerated and a curfew ignored, and state-run Lafayette Park, where nightly trespasses and arrests occurred until the lack of courtroom drama apparently bored the Occupiers. In any event, there probably is a confusion over the meaning of "civil disobedience" that explains Kaminer's impatience with the Occupiers. As she notes, "civil disobedience" is not the same thing as constitutionally-protected free speech. The term usually denotes a conscious violation of an unjust law, and the civility of it comes not from any presumed immunity from arrest but from peaceful submission (if not "passive resistance") to it as a consciousness-raising exercise. If the Occupiers are hypocritical, it may be because they seem to seek shelter under the Constitution at the same time that they assert a more fundamental, primal democracy, if not a "higher law," that would put them at odds with the rule of law and at personal risk. Their democratic imperative requires them to occupy public spaces and call people's attention to their grievances until those grievances are redressed or they are evicted from their encampments. In such a situation they can assert their rightful immunity from eviction but they can't take it for granted. Raw democracy, which admittedly often fell short of the ideal, was a matter of who showed up.  While I have no evidence of any Occupier vowing to throw out counterdemonstrators, any confrontation between Occupiers and  hostile groups in raw democratic conditions would be a test of will and numbers. Neither side might seek to drive out the other, but they might well seek to shout each other down or drown each other out. Whoever breaks would lose.  It wouldn't be truly democratic or even representative, since each group would be self-appointed, but it would come down to who showed up. Under such conditions, Occupiers can be faulted for assuming that they should win or can't lose, but that attitude is more self-righteous than hypocritical. It might clarify things further to view the Occupations not as "civil disobedience," which apparently requires a willingness to submit to arrest, but as a nonviolent insurrection, with an implicit refusal to submit. If even a self-styled civil libertarian takes for granted that public parks belong to government and not to the people, the Occupiers' assertion to the contrary is inevitably insurrectionist in its implication. It is more obviously raw democracy in action -- at least until governments shut it all down.