Civil disobedience requires more than an illegal tent

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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With winter setting in, and occupiers across the country being evicted as cities grow impatient with campers in their public parks, the Occupy Wall Street movement may find that it made a critical mistake. It envisioned a movement, but called itself a tactic. When occupying is what you do, what happens when there are no places to occupy, or when you are forced to occupy places nobody cares about? And how do you sustain a claim to principled civil disobedience when everyone agrees that the laws you have disobeyed are perfectly legitimate?

The participants in the Wall Street occupation and its many spin-offs around the country imagined themselves variously as part of an American version of the Arab Spring and as the successors to Vietnam and civil rights protesters, drawing inspiration from Martin Luther King, Gandhi and even Henry David Thoreau. Their core message was that crony capitalism, and a lot of other things, have created an unjust society of 1% rich and 99% everyone else. Apparently resigned to an inability to achieve their ends politically, even with Barack Obama in the White House, they decided to occupy Wall Street.

What has occupying Wall Street got to do with conveying the message of unjust wealth distribution? Well, though few banks still call it home, Wall Street remains a symbol of big banks and giant corporations, the worst of the crony capitalists. But why occupy? Why not get a permit for a march through Lower Manhattan or a rally at Federal Hall?

Marches and rallies are a dime a dozen in New York. A really big turnout might attract media attention for a day or two, but to grab the attention of the nation for an extended period of time, something bigger is required.

What did the Arab Spring protesters and previous generations of American protesters do to bring attention to their causes? They engaged in civil disobedience. Camping in Zuccotti Park is prohibited, so the occupiers set up camp in the park. And across the nation other camps sprung up in other parks — parks with no connection to Wall Street or even to big banks and big business, but parks where camping is forbidden.

And it worked. The protesters got lots of attention, in both local and national news media. City officials were generally tolerant of the law-breakers. Some, like Mayor Bloomberg of New York and Mayor Adams of Portland, Oregon, even expressed sympathy with the cause of the occupiers. But the homeless moved in, public safety and sanitation became growing problems and finally the occupation had to end, even in Portland and New York.

So now what? The group’s name is a problem. The protesters need a place to occupy. Some cities will probably give them a place to set up camp, a place that is less disruptive to non-protesters’ day-to-day lives and better able to accommodate the realities of dense human habitation. But this won’t do. An occupation isn’t an occupation unless it’s forbidden. After all, these folks are so committed to their cause that they are willing to go to jail. Illegal occupation, as their movement’s name makes clear, is what these protesters do.

And yet, their name is the least of their problems if they aspire to the pantheon of civil disobedience. In the words of Gandhi, whose statute graces Union Square just a couple miles north of Zuccotti Park, “Civil disobedience is civil breach of unmoral statutory enactments.” That’s what Martin Luther King advocated — peaceful violation of immoral laws that discriminated against blacks. That’s what Rosa Parks did when she sat in the front of a bus in defiance of a law requiring her to sit in the back. And it’s what the Arab Spring protesters did by demonstrating in contravention of legal prohibitions on public assembly.

By these examples, just breaking the law does not constitute civil disobedience. The law that is disobeyed must be a law objected to on moral or other principled grounds. The point is in refusing to obey a law because it does not warrant obedience. And though violators willingly go to jail, the justice of their claim is in the eventual public recognition that the law is immoral and should therefore be repealed.

Where is the immorality in ordinances banning camping in public parks? Once they had set up camp, some of the occupiers claimed that eviction would violate their First Amendment rights of free speech and assembly, but that is simply wrong, as a New York judge has already declared. A century of Supreme Court decisions has confirmed that the moral and political values of speech and assembly can be realized in the face of regulation with respect to time, place and manner. In fact, if there is a moral claim to be made, it rests on the right of all citizens to have fair and equal access to their parks.

The Occupy Wall Street movement lacks any legitimate claim to being part of the democratic tradition of civil disobedience. Disobeying a perfectly legitimate law as an expression of moral outrage at other laws makes no sense. Some call it “indirect” civil disobedience, but that is worse than a slippery slope. Can we express our moral disapproval of particular laws and claim the badge of civil disobedience by breaching any randomly chosen legitimate law? If not, how do we know which laws we can disobey as an act of civil disobedience and which we cannot? If illegal camping in Zuccotti Park is an act of civil disobedience, why not camping on Broadway, or on the Brooklyn Bridge? Or why not mugging a few bankers in order to rob a few banks of their ill-gotten gains? At least then there would be some connection between the alleged injustice and the unlawful act.

Some occupiers will argue that camping is symbolic of the wealth distribution injustices they abhor. That is, some people are reduced to sleeping on the ground, so we will do the same in an act of solidarity. But occupying public parks is itself an act of unfairness. The occupiers became the 1%, taking the public parks for themselves while denying them to the 99% who were effectively excluded.

Bernard Harcourt, a professor at the University of Chicago, has argued that Occupy Wall Street represents “political disobedience,” not civil disobedience. The point, he writes, is that “[t]here is, in the end, no ‘realistic alternative,’ nor any ‘utopian project’ that can avoid the pervasive regulatory mechanisms that are necessary to organize a complex late-modern economy.”

So what do the politically disobedient do in the face of this reality? They decline to offer proposed solutions to the unfairness and injustice they see. That would be political obedience. What they do is occupy. In Professor Harcourt’s words, “The resistance movement needs to occupy Zuccotti Park because levels of social inequality and the number of children in poverty are intolerable. Or, to put it another way, the movement needs to resist partisan politics and worn-out ideologies because the outcomes have become simply unacceptable.”

But if the situation is unacceptable, shouldn’t something be done about it? Something more than occupying? Maybe the idea is that the truth will win out, just by being spoken. But history suggests this is a losing strategy. Advocates for justice and fairness will have to get their hands dirty, and not just in the filth of their encampments. Political disobedience of the occupying sort is a recipe for political irrelevance. Civil disobedience, on the other hand, can be an effective political strategy. But breaking the law is just breaking the law.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.