The Right to Occupy - Occupy Wall Street and the First Amendment

Article excerpt

Eternal vigilance is the price of liberty--power is ever stealing from the many to the few. (1)

Wendell Phillips, January 28, 1852

Introduction
  I. Symbolic Speech
 II. Symbolic Sleeping and the Courts
III. The Landscape of Symbolic Sleep Protection After Clark v.
     CCNV
 IV. The Occupy Movement in the Courts
Conclusion

INTRODUCTION

The Occupy movement, starting with Occupy Wall Street in Zuccotti Park in New York City, captured the public imagination and spread across the country with a force and rapidity that no one could have predicted. The original occupation in New York, the product of the efforts of a number of groups, (2) was fueled by a call put out by Adbusters magazine in July of 2011 featuring the image of a ballerina posing atop the iconic bronze buli sculpture of Wall Street--while protesters gather in the background amida cloud of tear gas--and the following text:

WHAT IS OUR ONE DEMAND? #OCCUPYWALLSTREET SEPTEMBER 17TH. BRING TENT (3)

The image was resonant and electrifying. "Charging Bull," the giant bronze sculpture that stands in Bowling Green Park near Wall Street, the symbol of the financial optimism that characterizes a "Bull Market," was to be challenged. The October 2008 stock market crisis--together with bank bailouts, high unemployment, and the increasing income disparity between the highest earners and everyone else--had fostered discontent and hopelessness among those who bore the brunt of disastrous financial decisions that appeared to have enriched the few at the expense of the many. To occupy Wall Street was an empowering way to give voice to this outrage. It was also an assertion of control over Wall Street as a symbol, and the power of the people to change its meaning.

On September 17, 2011, about a thousand demonstrators answered the call to Occupy Wall Street, converging in Zuccotti Park in lower Manhattan near the New York Stock Exchange. (4) Several hundred spent the night, and from that day forward, the park was "occupied" by demonstrators on a twenty-four-hour basis. (5) The numbers were small by New York City protest standards; hundreds of thousands of New Yorkers had taken to the streets to demonstrate in opposition to the imminent Iraq War in 2003. (6) But the concept of occupying Wall Street was provocative. "We are the 99%," a popular chant at Occupy protests, and the movement's core slogan, pointed not only to the vast wealth inequality between rich and poor, but to the power that Occupy movement protesters--that all of us--have to combat inequality and injustice: the power of numbers. Over the course of the weeks that followed, many others visited Zuccotti Park, widely known in the movement by its original, pre-2006 name of Liberty Square or Liberty Plaza. (7) Once there, it was difficult to remain a bystander or spectator. Everyone was invited to participate directly in the process of determining what Occupy Wall Street was all about, through the democracy of the "General Assembly," daily meetings at which collective decisions were made in an open, participatory manner. (8)

Adbusters had called for a single demand to emerge from the action. (9) As the Occupy movement continued over weeks, the press focused on the lack of a clear demand or demands of the protesters. (10) What was their purpose? What were they asking for? The protesters themselves, through the General Assemblies, struggled with this issue. (11) Various lists of demands were circulated, some held forth by the press. But over time, it became clear that the "demand" was the occupation itself and the direct democracy that was taking place there. (12) The occupation of Zuccotti Park in New York, and of other parks and plazas across the country, became model communities that literally demonstrated the protesters' vision of the form a more just society might take. But it was the round-the-clock nature of the protests that was--and continues to be--the source of their expressive power, as well as the concept that unified Occupy protests across the country. …