Cultural Enforcement of the First Amendment

Source: ACLU Blog of Rights

Toward the beginning of the Occupy Wall Street protests, Yves Smith observed the following:

I’m beginning to wonder whether the right to assemble is effectively dead in the US. No one who is a wage slave (which is the overwhelming majority of the population) can afford to have an arrest record, even a misdemeanor, in this age of short job tenures and rising use of background checks.

This is an important observation, and in legal terms, she's right and it's very problematic. We've known forever that arrests are the best ways of chilling speech, and the dangers of being arrested are potentially more disastrous now than ever. Personally, as my bar application is pending, I'm not going to risk getting arrested, where I might otherwise be protesting down there. Even without great repercussions, many people simply do not want to go through the hassle of fighting a charge. Every day, the cops are arresting more and more of the protestors, and there seems to be little we can do about it on the legal front.

The First Amendment, as understood today, pretty much only protects against those government actions targeted at speech. So if the cops arrest people in a park because the park has closed for the night, that doesn't violate the First Amendment. Similarly if the cops had kicked people out of Zucotti Park to clean it, as was threatened last week. Of course, if it can somehow be proven that these facially speech-neutral laws were only enforced because of the speech content itself, that would constitute a violation, but that proof is a nearly impossible task.

That actually might not be a problem if there are some unregulated ways to reach an audience. However, in many locations, the parks all have closing hours, making a protest like this one, in which the occupation is part of the message, illegal in an entire locale, but still not cognizable in a First Amendment lawsuit. Marvin Ammori has a great article coming out in the Wisconsin Law Review that explores exactly this problem, albeit more in a mediated speech context. From the abstract:

The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role of judicial doctrines in ensuring the availability of spaces for speech. Indeed, when scholarship addresses doctrines that are explicitly concerned with speech spaces such as public forums and media or Internet forums, it generally marginalizes these doctrines as "exceptions" to standard First Amendment analysis. By overlooking or marginalizing these decisions, scholarship has failed to explicate the logic underlying important doctrinal areas and what these areas reveal about the First Amendment's normative underpinnings.

I agree with him completely, and when thinking about the First Amendment, my most frequent thought is simply "we're doing it wrong."

More generally, though, I think what this speaks to are the limits of law--even Constitutional law--as a tool for social change. If we have greater legal protections, such as outlawing criminal background checks for employment, or if we didn't criminalize so many things, maybe it wouldn't be a problem, but in reality, sometimes civil disobedience is in fact that only way to get noticed. What we must rely on then, is a culture that protects protest. We rely on prosecutors not to press charges and ruin our lives for protesting. We rely on cops to protect, not brutalize, but even more than that, we expect (as we have seen) that when cops do attack in an unjustified way, that fact is itself ammunition and amplification for the protests. We rely on a media that will acurately relay the views of people that are disenfranchised. None of these are things we currently expect the law to be able to provide.

The United States is showing that we do have a culture that is fairly pro-dissent, and we need to be promoting the cultural respect for dissent even more, rather than trying to rely on the First Amendment as a shield, because it is a broken one. This cultural promotion of dissent is the only way to get the media to actually report more views, for example. The ACLU sent out an email recently with the simple title "Dissent Is Patriotic." This is exactly what we need to tell everyone. The appeal to patriotism is a strong social cue that will help promote dissent. This sort of cultural change must accompy any appeal to law in order to make real change happen. That is not to say that law has no place. Personally, I believe we should be thinking about Constitutional regulation of those private companies that affect the democratic process (I'm writing an article about exactly that this year), but cultural norms are a powerful form of regulation in society and one we too often overlook.