The Power of Law: The Problems of the Freedom to Assemble

-- By Main.JaredMiller - 16 Feb 2012

At 1 a.m. on November 15, hundreds of New York Police Department officers stormed into Zuccotti Park and forcibly removed the 200 or so Occupy Wall Street protestors who had been sleeping in the park for the last two months. The raid wasn’t carried out in the dead of the night“to minimize disruption to the surrounding neighborhood,” nor were journalists and legal observers kept away from the scene so that police could provide them with “protection.” These actions were taken because Mayor Michael Bloomberg understood just as well as the protestors that it is not protest itself that effects change but the visual images that accompany protest and the meaning that those visual images import.

This essay is an exploration of the mechanics of statement-making through the lens of Occupy Wall Street. I wrote previously that I thought the law’s weakness as a form of social control was overstated. I still think there is merit to the position that law is sometimes an important force in the way that it gives government officials an added authority to accomplishment their ends. Law is often perceived as a collection of the public’s moral sentiments, which derives its force solely through its public stature; whether or not a majority of people necessarily agrees with a particular law’s substance can often be overcome by the fact that the law exists in the first place. As a result of its passage and ossification in the public sphere, a law becomes an important marker especially for those who may be more-or-less ambivalent about the law’s implications. This, I think, is relevant for Occupy Wall Street; the fact that Supreme Court jurisprudence has put the law squarely on the side of the police has made it easier for those who are not sure if camping out in a semi-public park is appropriate to not rally to the cause of those being disadvantaged by the law in question. The buttress of the law, in the end, helped give the police some “moral” ground on which to stand.

But while I do think the law has some important implications for the effectiveness of protest, I also believe that in some ways I got that importance backwards. In the end, the high points of the Occupy Wall Street movement thus far – the events that ultimately did the most to amplify the statement it was making – were ones in which the law was imposed directly against the movement. The pepper-spraying of two young women on September 24, the arrests of 700 people on the Brooklyn Bridge on October 1 and the pepper-spraying of UC-Davis students – these were all events that directly helped the movement make the statement that power was being levied in an unfair way, through the apparatus of the government, against the weak and the peaceful. These were events in which the government was perfectly within its right to do what they were doing, but they were successful because they showed the unjustness of that legal power. And they were also events that were accompanied by images – images that gave the public a vivid representation of that very statement.

An implication of this dynamic is that protest actually requires illegality to be effective. When the Occupy Wall Street protests started, I participated in quite a few. I also traveled to Washington, DC, and witnessed some of the related protests going on there. The contrast was marked: In DC, where the police rarely confronted protestors and allowed them their space, the protests became infantilized. The lack of confrontation took the tension out of the air, robbing the protests of their effectiveness. In New York, on the other hand, where police have been trained as a paramilitary force designed to wage conflict against protestors, the animosity is palpable. There is very much an us-against-them feeling that gives the protest – and, as a result, the protest’s message – an added significance.

The recent growth of the student protests in Quebec is also illustrative. They attracted substantial numbers from the beginning, but their popularity and force outside of Montreal-based students spread in part because of a law passed by the legislature requiring advance notice to police of any protest of more than 50 people. Protestors’ fight against that law, seen as draconian by many, galvanized the greater population; that fact, combined with videos of protestors banging on pots and pans, allowed the protest’s message to gain steam.

The passage of the anti-protest law in Quebec and the subsequent response to it show that law is a weak form of social control. It also shows that, while law can be used to quash protest, the opposite can also be true: Laws perceived to be unjust, combined with images that encapsulate that unjustness, can serve as a galvanizing force that makes a protest's message that much more effective.

-- JaredMiller - 16 Feb 2012