“I’m calling you to update you on what we did,” Deputy Mayor Howard Wolfson told the chair of the Lower Manhattan Community Board. “We came in the middle of the night.” Thus ended the occupation of Wall Street, after police executed Mayor Bloomberg’s order to clear Zuccotti Park of tents and protestors around 1am Tuesday morning. After a series of temporary injunctions and contradictory judicial rulings, protestors are no longer camping at the Occupy Wall Street demonstration. They trickled back into the park during the day, but no one is allowed to lie down. As winter sets in, more than one person is probably relieved not to have to do the sleeping on the cold ground part of civil disobedience. Yet the clearing of the park feels undeniably like the end of something, and it raises plenty of questions. “Is it over?” is not the only one.
As Raymond Vasvari points out in Slate, the events of Tuesday morning have some significant First Amendment implications. Zuccotti is not the first park to be occupied by unruly protestors, and reams of case law have been devoted to what we do when public demonstration begins to rub up against public use. That’s been Mayor Bloomberg’s argument since the protest began, arguably a metaphor for his entire mayorship: that the demonstrators prevented other people from enjoying the park, that they were loud and unpleasant and vaguely dirty. It’s the broken-window theory of public discourse, and it holds that civil disobedience must be subordinated to civic tranquility. No one could argue that it is inconsistent with Bloomberg policy. And yet, from a mayor whose name is synonymous with the financial industry, it feels like a pretext.
Probably it is. The rule against tents in Zuccotti Park was drafted after the Occupy Wall Street protest began, which is A) suspect and B) a major sticking point in the argument that Bloomberg acted only to enforce city policy. First Amendment law makes it clear that the content of speech cannot provide legal grounds for its restriction, so public safety has become the aegis under which modern demonstrations are put down. Iraq war protestors cannot be sent home, but they can be cordoned into free speech zones to preserve traffic patterns. Government cannot regulate the content of speech, but it can regulate the “time, place and manner” of expression. Since virtually any mass demonstration is timed, placed and mannered to maximize exposure by maximizing inconvenience, public protests occupy a tenuous position. In theory, we can do them. In practice, the mayor can almost always shut us down.
In 2011, it is worth comparing America’s approach to this kind of First Amendment expression with our approach to another kind: money, which the Supreme Court recently declared a form of speech in Citizens United v. FEC. We hold the speech that expresses itself through cash expenditure so important that its time, place and manner must not be restricted, even in time and place of a public vote. General Electric can spend unlimited amounts of money to influence the 2012 general election in any way it pleases; that speech is protected unequivocally by the First Amendment. Actual speaking is protected as long as it doesn’t mess up the park.
I submit that the obvious unreason of these two positions held together is, ultimately, what the Occupy Wall Street movement is about. The United States is dangerously close to creating a system in which corporations have more rights than people. Like the democratically elected representatives willing to alienate 66% of the electorate in order to fight taxes on 1%, we are steadily implementing policies that do not serve us. It’s not because we’re stupid. It is because a very small portion of this country is richer than it’s been for a century—so rich that it can derail the economy and get a trillion-dollar bailout while the rest of us decide whether to cut Social Security or student loans.
That’s the kind of money that can make Supreme Court decisions and general elections. Eventually, it will become the kind of money that turns police into security guards and governments into store managers. I don’t know what Bloomberg’s clearing of Zucotti Park means. I do know that there is something sickening about the mayor arresting hundreds of political demonstrators in the name of a camping ordinance. Corporatocracy is possible. I don’t know exactly what it will look like, but I am certain we will call it democracy for many years after it sets in.