So, it’s done.
Hundreds of Boston police officers swooped down on the Occupy Boston encampment early this morning, arresting dozens of protesters and tearing down tents, bringing an end to the 10-week rally against economic inequality, the longest continual Occupy demonstration in the country.
At least 46 protesters were arrested in the lightning-swift operation, which was over in less than an hour. The vast majority are facing trespassing charges, Boston police spokeswoman Elaine Driscoll said.
The Globe reports that things went fairly smoothly, that the protesters remained peaceful, and that Police Commissioner Ed Davis was on hand to oversee the operation.
All of this was made possible by a 25-page opinion from the Superior Court, which concluded that the demonstrators had no First Amendment right to occupy Dewey Square and therefore gave Mayor Menino and the police the green light to clear it. The opinion, unfortunately, is a disaster (by which I mean that the ultimate conclusion may or may not be correct, but the reasoning set forth in the opinion is totally unconvincing). I haven’t had the time to post on the many errors and internal contradictions it contains, so for now, suffice it to say that this passage (on p. 14):
an act which incites a lawful forceful response is unlikely to pass as expressive speech.
is both entirely circular (if the activity is protected speech, the “forceful response” is not “lawful,” right?), and would probably come as an unpleasant surprise to the people who “unlawfully” sat at segregated lunch counters during the civil rights movement. I do hope that an appeal of this decision goes forward, even if the occupation itself is over, because the decision should not stand.
Anyway, what now?
UPDATE: This just in, from my email:
OCCUPY BOSTON TO HOLD GENERAL ASSEMBLY TONIGHT ON BOSTON COMMON
Tonight, Occupy Boston will discuss how to move forward as a movement in its first General Assembly (GA) since its eviction from Dewey Square.
What: Occupy Boston General Assembly
Who: The 99%
When: Saturday, December 10, from 7 pm to 10 pm
Where: Boston Common Bandstand
eb3-fka-ernie-boch-iii says
“an act which incites a lawful forceful response is unlikely to pass as expressive speech.”
Not sure what your argument is that makes that statement false.
David says
It’s a tautology. If an act is expressive speech, it’s not lawful to suppress it by force. On the other hand, if the act is not expressive speech, then maybe suppression is lawful. But the question under discussion is whether the act constitutes protected speech or not. Unfortunately, the judge assumes that the “forceful response” was lawful, and concludes that, therefore, the act must not be protected speech. But of course, by doing so, the judge has assumed the answer to the question.
And, consider the lunch counter sit-ins. Under the law on the books at the time (these protests were pre-Civil Rights Act of 1964), it was “legal” to bar African-Americans from sitting there. By sitting there anyway, they subjected themselves to arrest, and some of them were arrested. Was the “forceful response” (i.e. the arrests) “lawful”? Under the law on the books at the time, I suppose so. Does that really mean that sitting in at those lunch counters was not “expressive speech”? It sure seems “expressive” to me – the message is delivered loud and clear. In fact, it’s precisely because the message was so clear that they were arrested. That’s why the statement in the opinion makes no sense – especially because, having concluded that “occupying” the land is not expressive conduct, she goes on to conclude that setting up a tent and sleeping outside *is* expressive conduct.
JimC says
The law that segregated the seating violated the principle of equal protection.
eb3-fka-ernie-boch-iii says
Occupy Boston was not protesting the right of people to live on the Greenway. They were protesting something else.
The lunch counter situation was different. The act of sitting at the counter was illegal so the protesters got themselves arrested for violating the law of which they were protesting. Occupy Boston isn’t a protest about uses of the Greenway.
Expressive conduct does not trump illegal conduct. I cannot break into my neighbors house so as to scream out his window that the President stinks.
Free expression? Yes. Breaking and entering? Yes Conviction for breaking and entering will stand.
David says
But it doesn’t change the fact that the statement in the opinion is circular, tautological, and/or an exercise in question-begging. If you don’t like the lunch-counter analogy, fine – I was just trying to use that as an illustration. Fact remains, the “lawful” nature of the police action on October 11 has not been established as far as I know, yet the judge uses the assumption that it was lawful as the basis for her conclusion about whether the act of occupation was protected. Furthermore, the October 11 action is more or less irrelevant to the occupation of Dewey Square itself, right? The problem on October 11 was that the demonstrators tried to expand.
David says
In 1984, burning the US flag was clearly prohibited by a Texas statute, and the guy who burned the flag in Texas v. Johnson were not protesting that law – rather, he was protesting Reagan administration policies that had nothing to do with the statute that made it illegal to burn the flag. He was arrested and convicted, and his conviction was overturned because the Supreme Court said his conduct was sufficiently expressive to allow him to invoke the First Amendment in his defense. His conduct was both illegal and expressive, and in that case, expressive trumped illegal.
Under Justice McIntyre’s opinion, what result?
SomervilleTom says
Perhaps this is why Justice Brennan sat on the 1984 Supreme Court while Justice McIntyre does not.
Sadly, I have very little confidence that today’s Supreme Court would come to the same conclusion in Texas V. Johnson.
David says
they probably would. Scalia and Kennedy both voted with Brennan in that case.
Ryan says
Are you so sure? I think a large part of the movement has become about the movement’s right to exist in these places. So, honestly, I think you’re wrong there.
And local — often silly or petty — city ordinances don’t trump the US constitution.
But you could certainly go out and do that at the Greenway, which is public property.
AmberPaw says
After all, I have done more than 150 appeals and have expertise in this area. A Superior Court decision is not actually reported, in the sense of being “precedent” and having contrary decisions from other courts remains a real possibility. This article is a good preliminary take down, I thought, of some of the worst drafting and most specious reasoning lobbed at us by Judge McIntyre.
AmberPaw says
http://blog.thephoenix.com/BLOGS/phlog/archive/2011/12/07/10-bombshells-from-the-occupyboston-court-decision.aspx
AmberPaw says
My thoughts about the “raid” and its perhaps illegally arrested martyrs is that it is a painful cleansing for a young movement, but a cleansing none the less. And Occupy Wall Street, Occupy Boston, and its supporters are still here, and committed to a cleansing and renewal of Democracy in the United States, and elsewhere. Our country has been largely hijacked – but I have not been hijacked – have you? My 99 year old father called from Detroit to make sure I was alright. He probably figured I was arrested (not). I filled him in on what was really going on in my opinion at least, and he gave me his insights, which is exciting if you think about it, both because he is still so actively engaged at 99, and due to his perspective. He said that real change is not about words and the labels placed on action, but about the effect of those actions over time. He should know. He lay down in front of Mack Trucks on Gratiot Avenue in Detroit to prevent scrap shipments to Japan in the 1930s. The plutocrats of his day choose top dollar for steel. My father & the other “unlawfully acting protesters” with him reportedly stated, “You bastards. That steel will come back in the bodies of your sons and your brothers.” And other statements and chants I won’t report here. And they were right.
Today I & Occupy Boston say to those who served the bidding of the banksters and the bought congress, “You bastards. You are selling democracy and your children’s futures to China for money.” And we will be just as right as my father and his fellow protesters were in the 1930s.
As for the police here in Boston, their job was done in accordance with the orders of their superiors, and that kept their jobs. What was done here in Boston was not lovely, but was more professional and less disgusting than in, say, Oakland or New York City, but no braver than any other raid under cover of darkness to shut up dissent.
The protest against the ultra rich purchase of our government (thank you Kochtopus and Co.) is not going away now, or any time soon.
As to those willing to put their bodies and lives in front of today’s Mack Truck of Corporate Dominance, and to fight the Orwellian shift of government towards facisim: Stay strong. Stay safe. And keep learning.
And if you, gentle reader, wish to become involved, watch this space.
And, on December 10, 2011 you are cordially invited to join a General Assembly discussion “what next’ on the Boston Common by the Bandstand at 7:00 PM.
JimC says
That’s how I read that. You can say whatever you want, but if you take an action that violates other laws, then you aren’t “speaking” any more.
But I am not a lawyer, and David and ernie are.
eb3-fka-ernie-boch-iii says
Who said I was a lawyer.
A few episodes of Perry Mason is all you need.
JimC says
I thought I read that here at one point.
eb3-fka-ernie-boch-iii says
Don’t you know that being in love means never having to say “Sorry”.
nopolitician says
The 1st Amendment of the Constitution says:
Yet governments have made laws that prohibit the right of people to speak freely and peaceably assemble. They have instituted “free speech zones” which are far away from the things that people are protesting. They have made it illegal to assemble unless such assembly is approved and permitted, and in many cases, even paid for with thousands of dollars in fees.
It should not be illegal to protest on public grounds. It should not be illegal to do so on a 24-hour basis, even if that protest involves a bunch of people sleeping in a park. This behavior was very clearly assembly to protest – i.e. speak out – things going on in this country. It was not as though people were doing this just so they could sleep in a park. Free speech and assembly are one of our most precious rights, and this country has been cracking down in a way that would disgust us if it was being done in other countries. It should disgust us when it is done here too.
Mark L. Bail says
There can be limits on speech, but what’s the meaningful difference between difference between a speech that protests and an action that protests? Can the message of the protest be implied?
Occupation of a public property seems to be something more than speech. If Occupy Boston’s encampment had become permanent, what would it mean? Would it still be speech? There are some interesting questions.
This is probably a good way as any to stop this phase of the movement and consider other strategies. Spring will be here soon enough.
michaelhoran says
Thank you, David, for reiterating the example used by Marisa De Franco the other night at the debate. That exchange between Ms Warren and Ms DeFranco was to my mind the most telling part of the whole event. I’d love to see you “post on the many errors and internal contradictions” in the opinion. I’ve read it through twice, and could probably identify a few, but you’re far better equipped to do the job. (For those of a legalistic bent, there is, as usual, a useful discussion at Volokh ).
Thursday night on Atlantic Ave was one of the great nights of my life–the show of support was overwhelming, as was the high spirits of the crowd. We gave the camp the send-off it deserved. Still, I can’t tell you how much I dread my next trip into South Station–in fact, I’ll probably make a point of getting off the commuter rail at Back Bay. That said, though mark-bail is right–I think this may serve as the kick in the rear we needed to go beyond the symbolic encampments.
I do think that “all of this was made possible” by more than Judge McIntyre’s unfortunate decision; it was aided and abetted by the silence on the part of our political establishment. Imagine that, just prior to the hearing, all candidates for the open Senate seat, the Mass Congressional delegation, City Council Members and other leading lights had drafted a petition in support–as opposed to simply chirping that “the protesters must obey the law” (where “the law is an ass.”) I know all the arguments about the need to appeal to the center … but at what cost?
Meanwhile, there are a slew of Occupy-related actions taking place this weekend, and my guess is that occupying foreclosed homes if going to be the trend nationwide. In that vein, I’d love to see OB work extensively with City Life/Vida Urbana, lending that group its muscle and PR and social-media savvy–could work very well indeed to the advantage of both groups.
AmberPaw says
Took notes, confirmed tomorrow’s working group meetings – the metamorphosis (grand word, that) continues.
Christopher says
…why people are getting all tied in knots about “obey the law” especially since from what I can tell the Occupiers are bending over backwards to do just that. Do people really expect our likely nominee for the US Senate to say, “Heck with the law – set Dewey Square on fire”?
bob-gardner says
. . . sending in the police on the occupiers because they overstayed by 24 hours, when the mayor himself has overstayed by about 15 years.
jconway says
I’m over the Occupy movement, for many of the same reasons Ebert is in this great article http://blogs.suntimes.com/ebert/2011/12/_where_i_stand_on_the_occupy_m.html. I support their goals but their means seem to be accomplishing absolutely nothing. Actual working people cannot afford to spend the night in tents, neither can people raising families, the drum circle became passe circa 1968 for causing any real political change. Like the tea party they should co-opt an existing political party and force the DNC to adopt the following items in its platform, could even brand it like the Contract with America was resting on ten principles broadly supported by Americans
1) Reinstating Glass-Steagall and real financial reform
2) Constitutional amendment publicly funding elections and limiting individual contributions, eliminating corporate contributions and superPACs
3) Members of Congress will be subject to the same ethics standards as the average investor and will be prohibited from voting on any bills affecting businesses they hold personal interests in
4) Former members of Congress and the executive branch will be prohibited from engaging in commercial lobbying
5) Any corporation that receives government assistance will freeze all executive pay raises and compensation until government assistance has ceased
6) Pass Huntsman’s financial service taxes to break up the banks
7) End all corporate tax shelters and loopholes
8) Reform the tax code by ending all special interest exemptions replacing it was a graduated flat rate for individuals and corporations
9) Eliminate corporate taxes for all American manufacturers until unemployment is below 6%
10) Overturn the Bankruptcy Reform Act and make student loans dischargeable
nopolitician says
The Occupy Movement had changed the discussion in this country to focus on wealth distribution and inequality. This could not have been done if they had simply marched on a single day. After the march, the discussion would have floated back to whatever the corporate media said it was – likely “the deficit”.
I believe it is important for the Occupy Movement to get back out there and keep talking. Not everyone has to spend the night in tents – people can come and go to the protest as their lives allow, but that can only happen when there is a constant presence.
dhammer says
As someone who couldn’t spend the night at occupy because I’m an ‘actual working person’ with a family, I for one want to thank the occupy movement for not doing anything you suggest.
Being a member of the proletariat doesn’t necessitate having a job and the tactics employed by occupy are far greater than drum circles (although I know a number of people who might be passe, but have gone through real political change around a drum circle).
You don’t have to agree with them, but if the folks behind occupy start putting forward demands, the movement and what it stands for are over. As this guys points out, “Direct action is, ultimately, the defiant insistence on acting as if one is already free.” In other words, they refuse to acknowledge the legitimacy of the state’s power. Anarchists can be annoying, but I wouldn’t underestimate them.