The Other 99% of the Expressive Conduct Doctrine: The Occupy Wall Street Movement and the Importance of Recognizing the Contribution of Conduct to Speech

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I. INTRODUCTION. 2

II. THE OCCUPY WALL STREET MOVEMENT. 9

A. The Message of Occupation. 9

B. Eviction and Legal Action. 12

III. THE EXPRESSIVE CONDUCT DOCTRINE. 13

A. A Burning Desire to Express Oneself: United States v. O'Brien. 14

B. What is Speech, Anyway?. 17

C. When You Assume. Community for Creative Non-Violence and the Protection of Speech. 19

IV. LOCATION, LOCATION, LOCATION: THE IMPORTANCE OF THE FORUM AND THE FIRST AMENDMENT. 23

A. The Public Forum and Free Speech. 24

B. The Importance of Location to Speech: Or, How to Occupy Wall Street from a Distance?. 28

V. FROM THE BOSTON COURT HOUSE TO LIBERTY PARK: APPLICATION OF O'BRIENTO OCCUPY WALL STREET. 34

A. Assuming, Without Deciding, that the Occupation of Zuccotti Park Constitutes Speech. 34

B. There is Nevertheless a Countervailing Government Interest Sufficiently Substantial to Justify Abridgement of OWS's Speech. 36

VI. When Actions Speak Louder than Words: Creating a Speech-Protective Test for Expressive Conduct.39

A. "Go Ahead and Occupy, Just Make Sure You Vacate by Nine P.M.": The Silencing of Essential Elements. 39

B. What to Do: Treating Conduct that Forms an Essential Element as Speech Per Se. 42

VII. Conclusion: The Pro-Speech Effect of the Essential Elements Test on the Broader Expressive Conduct Doctrine. 45

OCCUPY, v.: to gain access to and remain in (a building, etc.) or on (a piece of land), without authority, as a form of protest.1

I. Introduction

On December 17, 1773, dozens of colonists dumped tea from aboard three merchant vessels into the Boston Harbor.2 Their intent in so doing was not to create a record-breaking batch of iced tea, 3 but to protest the monopoly held by the East India Company and the British Tea Tax imposed upon the colonies without the benefit of parliamentary representation.4 This expression of defiance was understood throughout the colonies to symbolize discontent with British rule, 5 and was one of the key events credited with sparking the American Revolution. The American Revolution resulted in the creation of a new democratic form of government dedicated to protecting individual rights. Yet today, nearly 250 years later, the United States Constitution, forged on the heels of the Boston Tea Party and other acts of defiance against perceived corporate oligarchy and political tyranny, 6 would not protect the very acts of protest that led to its genesis.7

The historic Boston Tea Party began when a three-day long meeting was held at Faneuil Hall in Boston, Massachusetts to seek redress from the British government's representatives in the colony.8 Government-imposed taxes on tea were astronomically high, owing to a government-created monopoly on its import by the East India Company, which was struggling in business because its prices were undercut by smugglers.9 To bolster the failing company, British Parliament permitted the company to export tea directly to the colonies, without having to first move the tea through England and pay an export tax to the British government. 10 Colonists resisted the Tea Act: in several ports, ships carrying the taxed tea were refused entry, or were disallowed to unload their cargo.'1 In Massachusetts, however, the loyalist governor refused to embargo the tea and instead ordered the ships blockaded into the harbor until the duty was paid. 12 The crowds meeting at Faneuil Hall defied orders to vacate the public space, held votes on how to proceed, and sought to persuade the governor that his constituents wanted the tea returned to England. 13 Participants railed against the monopolistic power of the East India Company and the government's imposition of taxes on the common man to protect corporate interests. As is, perhaps, obvious from history, discourse and speeches were unsuccessful in persuading the governor of the need for change, so protestors resorted to famously more unconventional means of protest. …