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« Gandhi and the Ethics and Politics of Social Movements | Main | Illegal Immigration, Re-Visioned »

11/23/2011

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adammarley

The question is whether they should. And the answer to that question is easy: they shouldn’t – at least none that were not already in place and, one might add, well respected by the Occupiers themselves.

Steve Shiffrin

Thanks Patrick. Readers can also go to robertreich.org for that piece and his other columns.

Patrick S. O'Donnell

Here's the link to the Reich piece: http://www.huffingtonpost.com/robert-reich/occupy-protests-first-amendment_b_1108076.html?ref=fb&src=sp&comm_ref=false#undefined

Steve Shiffrin

Patrick
Thanks. I also agree with Bob, but I think the current law is woefully deficient as well. I will post about that later.
Steve

Patrick S. O'Donnell

Hear, Hear.

And I like Bob Hockett's take on a post at Dorf on Law:

"Those arguing the legalities of last Tuesday’s developments around Zuccotti Park are missing what matters most. The real question has never been whether City or other governmental authorities constitutionally may place certain ‘time, place, and manner’ restrictions upon exercises of the right to political speech. The question is whether they should. And the answer to that question is easy: they shouldn’t – at least none that were not already in place and, one might add, well respected by the Occupiers themselves.

First amendment jurisprudence has long recognized that public authorities must balance the core American freedom of political expression on the one hand, with the public health and safety on the other hand. The problem is that how, precisely, this balance is best drawn always varies with circumstances. What restrictions on speech are reasonable in a crowded theatre are different from those that are reasonable in a city park or a forest preserve. For this reason first amendment litigation tends to be what lawyers call ‘fact-intensive’ – much like fourth amendment litigation concerning ‘reasonable’ searches and seizures. And this in turn means that first amendment litigation is prone to substantial expense and uncertainty, not to mention high risk to a foundational American – and indeed human – value.

In light of these uncertainties, as well as of the incalculable value of political expression, wise public authorities seek when possible to make pragmatic accommodations with those wishing to exercise first amendment rights as their Founding forebears did. Why waste resources on needless police action and uncertainty-fraught litigation, not to mention risking harm to our most cherished freedom, when it is easy enough to compromise ‘on the ground’ with protesters so as to satisfy both the values of free political expression and those of public health and safety? Why indeed." [....]

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