Noelle Swan

Occupy Boston Sets Stage for Legal Tug of War Over Right to Assemble

Noelle Swan
New England Post
November 21, 2011

In Boston, modern revolutionaries aim to walk in the literal and philosophical footsteps of the founding fathers as they engage the city in a legal tug of war over their right to assemble.

Occupy Boston protesters are leaving some footprints of their own. Last week, they became the first occupation to successfully obtain a temporary injunction preventing the Boston Police Department from evicting their tent city in Dewey Square until a hearing can be held on December 1. Protesters in Los Angeles and Nashville have since applied for similar injunctions protecting their occupations.

In Boston, Suffolk Superior Court Judge Frances A. McIntyre coupled the injunction with court-ordered mediation. Occupy Boston has selected three “temporarily empowered” representatives to meet with city officials in the weeks leading up to the hearing. The issues to be addressed in these talks are part of a larger national discussion, as a string of violent police crackdowns on encampments in various cities over the last few weeks have spurred an increase in demonstration participation and raised questions about the limits of freedom of assembly.

The First Amendment guarantees that Congress can pass no law “abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances.”

What is peaceable assembly? When does it become unlawful?

“The line moves,” said Harvard Kennedy School Professor Timothy McCarthy, “because protesters embrace and define freedom of assembly on their terms, and the police and the state and private companies and corporations define it on their terms. So those definitions are always being renegotiated.”

This push and pull over the right to protest and the desire of authorities to maintain public control and safety has been a common thread throughout American history, McCarthy noted. Former U.S. Secretary of State Colin Powell, also the former chairman of the Joint Chiefs of Staff, told CNN that these kinds of demonstrations are “as American as apple pie.”

“The original revolutionaries took assembly really seriously and understood that freedom of assembly is especially important in the face of the presence of police or troops of the state,” said McCarthy. Up to and during the Revolutionary War, the British sent troops and colonial governors to “occupy” the colonies and to keep the colonists in line. Each time troops increased so did rebellion. McCarthy said the ever-increasing presence of enforcers only deepened the American values of freedoms of speech, press, assembly, and petition. “There’s a reason why [freedom of assembly] is the first thing in the Bill of Rights and a reason the Constitution couldn’t be ratified without the Bill of Rights.”

“The whole point of the amendment is to restrict the government,” said attorney Jonathan Albano of Bingham McCutchen in Boston, a First Amendment specialist and activist with the ACLU. However, he said that “very fuzzy lines” separate the preservation of an individual’s First Amendment rights and the government’s responsibility to maintain law and order

“It is easy to say at one end of the spectrum that this is right and at the other end that is wrong,” said Albano. “But once you get away from the extremes it gets very hard to figure out what the right balance is.”

Albano explained that while the right to protest cannot be restricted based on subject matter, it can be restricted based on time, place, and the manner of the protest. In the case of Occupy Boston, the line between the two restrictions blurs, he said. On the one hand, the location of the protest in Dewey Square is an issue of place, and the overnight camping is an issue of manner. On the other hand, Occupy Boston lawyers argue that the place at the feet of the city’s Financial District is a necessary component of their protest, and the overnight occupation defines their protest.

These arguments could be applied to the other Occupy protests around the country. Whatever happens in Boston in the coming weeks will set a legal precedent that will likely inform how other occupations are addressed in the future.

The organizers of Occupy Boston made a decision when they first settled in Dewey Square to ignore the permitting process established by the city. One organizer told a small group that first night, “We are a permitless society. We are illegally taking this public space for our protest.”

Occupy Boston attorneys have argued in court documents filed in support of the injunction that despite the lack of a permit, the group’s permitless presence in Dewey Square is in itself a form of protest and is protected under freedom of assembly.


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