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The Constitutional Substitute For Revolution

"It never fails. The G8 or some similar international summit comes to town and local officials invoke something akin to martial law. They call out massive officer brigades, engage in surveillance and covert acts, and cordon off public spaces where protest is permitted so that attendees can be kept safe from the rabble. Now came Mayor Rahm Emanuel," writes Timothy Zick, author of Speech Out of Doors: Preserving First Amendment Liberties in Public Places.

"[Rahm's new protest ordinance instates] an increased number of surveillance cameras; closing of parks and beaches until 6 a.m.; parade restrictions and higher fees for parades and protests. The police supt. is also empowered to 'deputize' out-of-state law enforcement personnel experienced in handling civil unrest. If the past is a reliable guide (and I'm betting it is), these and other measures will lead to substantial limits on public protest, many lawsuits, and settlement liability imposed on the City of Chicago.

"This is not the 1968 DNC. It's too bad we have progressed so little in terms of how we often characterize, and how officials treat, lawful protest activity. Before the first parade has hit the streets, the Mayor is seeking emergency powers and police are preparing to do battle with boots on the ground. It's true that mass protests come with some threat to public safety. So do state fairs, holiday parades, and large conventions. But the act of public protest is not itself a threat. Chicago officials would do well to keep that in mind as they prepare for May."

From Zick's book:

"During the Civil Rights Era and is aftermath, the Supreme Court firmly embraced the view earlier expressed by Justice Douglass in Termiello v. Chicago (1949): "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

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"John Inazu's Liberty's Refuge: The Forgotten Freedom of Assembly and Timothy Zick's Speech Out of Doors: Preserving First Amendment Liberties in Public Places investigate the disappearance of the First Amendment 'right of the people peaceably to assemble,' in contemporary America," Jeremy Kessler writes in The New Republic.

"Although Inazu and Zick wrote their books before the Occupation emerged, their histories help to explain - and even to justify - the Occupy Wall Street movement's extreme mode of assembly: an assembly that insists on peculiar decision-making procedures, engages in twenty-four-hour protest, and refuses to cooperate with government officials and their permitting regimes."

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"The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement," an abstract of the paper that led to Inazu's book says.

"Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution.' In 1939, the popular press heralded it as one of the 'four freedoms' at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the 'basic liberties.'

"But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric?"

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See also: City Council Demands You Shut Up And Sit Down, Just Like They Do

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Comments welcome.



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Posted on January 20, 2012


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