Do OCCUPY tent encampments constitute constitutionally protected free speech?
This question is of critical importance because the tent encampments have become the effective no-cost/low cost media message medium behind OCCUPY WALL STREET.
The following rationale is provided in support of the arguments for viewing public camps as political expression protected by the US Constitution:
Consider first that a primary purpose of public protest is publicity. From the Viet Nam protests to the Civil Rights Movement we all know that ONLY with massive PUBLICITY can free speech be effective at making legislative change.
In order for any message to be widely broadcast there must be some type of publicity. When the Constitution was written, publicity was promoted either by printed broad sheets or by word of mouth. The democratic system requires, even demands, publicity to sway citizens to vote and vote in a particular way.
Our democratic system does not allow physical coercion, or blatant financial coercion (it does allow de facto financial coercion) to influence our vote. Our democratic system relies on publicity to inspire discussion which in turn influences citizens to vote in a particular manner.
In 2011 almost all political and commercial lobby ideas are publicized in commercial media including TV, newspaper, magazines, internet using capital – money. Just running for office as a US Representative costs capital – at least a ½ million dollars is needed for a realistic candidacy. Corporations and PACs spend millions on media publicity in their effective lobbying to induce legislation favorable to their bank accounts or beliefs.
The amount of money required to publicize any political objective is generally so large that only those in the upper income levels of the population are able to afford the luxury of media. In order to create media “buzz” not only is a spectacular amount of air time expense required, but on top of the air time money a memorable “hook” is necessary to grab the public’s attention and to improve the media campaign’s opportunity for success. Madison Avenue develops "hooks" in exchange for money.
As a practical matter the fact that it is so expensive to hire the media means that only the political objectives of the wealthiest 1% are broadcast.
Because Corporations and PACs are generally advancing the interests of the wealthy, the wealthy “own” the political system in much the same manner as the wealthy “own” the US legal system.
IT TAKES LOTS AND LOTS OF MONEY TO PLAY SUCCESSFULLY IN THE DEMOCRATIC GAME.
In grass roots political campaigning low budget media is used – painted faces, bumper stickers, T shirts with a silk screened message, paper placards nailed on sticks, cloth banners held between marching protesters, bullhorns, graffiti, u-tube videos, songs, drums, etc. etc.
Contrast the low budget medias’ physical impact on the public with the physical impact of big budget media campaigns where even the sky is used - with the Good Year blimp & sky writing planes.
There are two components to the argument here that sleeping in a tent in a public park as part of a political demonstration constitutes protected free speech: 1. The tent speech is not different that types of free speech now clearly protected. 2.Tent speech is media because it is iconic and has become the logo/hook of the protesters no-budget media campaign – (and this is recognized by the establishment as one of the most effective aspects of the Occupy movement and that is why the encampment – not the movement itself – is the target for “sanitation” and removal from the public eye)
1. THE TENT SPEECH IS NOT DIFFERENT THAT TYPES OF FREE SPEECH NOW CLEARLY PROTECTED
What about tents in a public park? How can a tent be free speech?
My argument would go something like this – it needs more refinement.
A fabric tent is no more physically intrusive than a fabric banner held in a public place – we have all seen political issues advertized on street corners and on the public common with a 4 foot high by 16 foot long banner emblazoned “END THE WAR” or whatever.
I don’t know of any court which would rule that a banner held between two standing persons is not protected speech.
And we all have seen protesters lying down in protest.
Now parse this accepted free speech by changing the standing persons to sitting persons, or persons lying down, or persons asleep.
Does a citizen lose their right to free speech as soon as the citizen falls asleep?
I don’t think so – certainly sleep termination of free speech isn’t in the Constitution.
Replace the constitutionally protected fabric banner with a fabric tent – now with the protester not outside in view holding the banner but inside the fabric tent laying down asleep - turn the message media inside out.
Is there any language in the Constitution which distinguishes this inside out media situation? I don’t believe there is.
2. TENT SPEECH IS a form of MEDIA (like the peace sign, a bumper sticker, or a TV station)
BECAUSE IT IS ICONIC AND HAS BECOME THE LOGO/HOOK OF THE PROTESTERS NO-BUDGET MEDIA CAMPAIGN – (AND THIE POWER OF THE TENT IMAGES IS RECOGNIZED BY THE ESTABLISHMENT AS ONE OF THE MOST EFFECTIVE ASPECTS OF THE OCCUPY MOVEMENT AND THAT IS WHY THE ENCAMPMENT – NOT PHILOSOPHY OF THE MOVEMENT ITSELF – IS THE TARGET FOR “SANITATION” AND REMOVAL FROM THE PUBLIC EYE)
The clear purpose of local Mayor and other officials for clearing out/shutting down the Occupy tent camps is not “public safety for first responders” or for the purpose of pressure washing the park – the clear but unspoken purpose of eradicating the tent camps is to STOP FURTHER NATIONAL VISUALIZATION OF THE OCCUPY MOVEMENT AND THE FURTHER POPULARIZATION OF THE OCCUPY MESSAGE – THE 1% vs the 99%.
The argument before the court in support of the tent occupation must ALSO specifically analyze (through discovery of emails, contacts, etc.) the motivation of those officials who clear or attempt to clear the tents. If it can be effectively, persuasively demonstrated that the motivation to clear tents is primarily an effort to stop or diminish the effectiveness of al message and the motivation is not because of the excuse of “public safety” – then that ill motivation clearly constitutes the suppression of legal free speech.
As I wrote above, these arguments need considerable further refinement – with more examples of physically large support speech props which are now clearly legal. I have been thinking about this since the Occupy movement began - the analysis is important. I am putting my thoughts/arguments out here on the internet so they will get banged up and refined in the fray.
If anyone is aware of any public tent cases which may have established any legal precedence pertinent to this discussion, please contact me by clicking on the name at the top of this report or log in as a Realneo user and report your thoughts. Thanks