They are not what democracy looks like and are looking less and less like a serious protest movement. Nevertheless, much can be learned from the Occupy Wall Street crowd’s protracted seizure of New York’s private Zuccotti Park, similar unlawful tactics around the country and the much delayed official response. The most important lesson is that when government fails to do its duty in a timely manner, ordinary citizens must consider using existing laws to protect themselves from unruly Occupiers.
The park protesters have been camping out in the urban environment, unsuitable for such activities. They have created sanitary problems and noise pollution by beating drums and other instruments. Crime has shot up in and around the park, including rapes and physical assaults. Police officers have been injured in confrontations with protesters — problems that are not limited to Occupy protests in New York City. Yet, for weeks, public officials — afraid of being labeled as hostile to the First Amendment — have gone to great lengths to avoid confrontation with the protesters.
Maintenance of public order is government’s most basic charge. Forcing protesters to comply with reasonable restrictions for their activities — obtaining proper permits and obeying safety and sanitation rules — is supported by well-established Supreme Court jurisprudence and does not manifest a hostility to free speech. Tolerating unlawful conduct on a mass scale, however, debases the rule of law and suggests a portion of the political establishment has lost faith in our system of government. It is the job of public officials to ensure the rights of the entire community, not just its most vocal elements.
Residents surrounding Zuccotti Park are a case in point. Many appeared sympathetic to the protesters, but others resented the disruption and public safety issues Occupy caused. They too have legal rights, not least of which is the peaceful enjoyment of their homes. Local business owners also have a right not to have their customers threatened or driven away.
Given that government officials have been slow to re-establish law and order, the injured parties would be justified in filing nuisance actions seeking damages from private property owners, who also failed to take the legal actions against the protesters.
Such actions by citizens would have a number of salutary effects. First, while the Zuccotti Park tents and similar structures around the country have been dismantled, the protesters have challenged these long-overdue reassertions of public authority in court, arguing that their First Amendment rights have, indeed, been violated. The outcomes of these cases remain uncertain. The First Amendment, however, does not bar private nuisance actions.
Second, bringing such cases would send a powerful signal that ordinary Americans disapprove of law-breaking and violent tactics of the Occupy protesters. This could even serve to put a little marrow back into the spines of those public officials who have mistaken the abdication of their responsibilities for a measured response to protest. After all, their authority does not come from the barrel of a gun, or the business end of a loudspeaker, but from the orderly conduct of the voters on Election Day.
That is what democracy looks like. The Occupy campers should try it sometime.
David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker Hostetler LLP.