Free Speech for the Rich and Pepper Spray for the Poor

John Kenneth Galbreath famously remarked that the United States has socialism for the rich and capitalism for the poor. Now comes Robert Reich (robertreich.org) to argue that we have free speech for the rich and intimidation of the poor. After detailing the disproportionate power of the rich, Reich says, "Yet when real people without money assemble to express their dissatisfaction with all this, they’re told the First Amendment doesn’t apply. Instead, they’re treated as public nuisances – clubbed, pepper-sprayed, thrown out of public parks and evicted from public spaces.

"Across America, public officials are saying Occupiers have to go. Even in universities – where free speech is supposed to be sacrosanct – peaceful assembly is being met with clubs and pepper spray.  

"The First Amendment is being stood on its head. Money speaks, and an unlimited amount of it can now be spent bribing and cajoling politicians. Yet peaceful assembly is viewed as a public nuisance and removed by force."

Comments

[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." [....]