“The police can see the defeat in our eyes. They know they’ve beaten us,” an Occupy Wall Street organizer told me a few days after the 2012 May Day demonstration that marked the movement’s fizzled attempt to stage a spring resurgence. “They used to look at us as adversaries. There was a certain respect. Now we’re objects of contempt, an excuse for them to get paid overtime. A safe, live-action game.”
This account of Occupy’s self-image was telling. In the space of seven months a galvanizing national protest movement had dwindled to the status of a policing problem before disappearing almost entirely from public view. Part of the blame can be attributed to Occupy itself; its inviolable purity of principle (“We don’t talk to people with power, because to do so would be to acknowledge the legitimacy of their power”) eventually became its own form of corruption.
More established left-leaning organizations that sought to support Occupy Wall Street were regarded by many in the movement with suspicion, if not outright paranoia. In April, Adbusters, the anticonsumerist magazine that put out the original call to occupy a space near Wall Street in the summer of 2011, sent out an e-mail blast identifying Moveon.org, The Nation magazine, and Ben & Jerry’s ice cream as the most dangerous threats to OWS’s survival. This “cabal of old world thinkers” of “the old left,” as Adbusters put it, with its “insidious campaign of donor money,” was on a mission to defang OWS and turn it into a handmaiden for President Obama’s reelection campaign.1
Norman Siegel, a former executive director of the NYCLU, negotiated with police for Occupy on the rare occasions that organizers allowed him to do so. Siegel told me of his “frustration” with Occupy’s intransigence and naiveté, “though I love their message.” He has a great deal of experience navigating New York’s complicated legal and institutional shoals, and has been adept at making “mutually beneficial” accommodations with the police on behalf of protesters who take to the streets without an official permit. “An understanding can be struck,” Siegel said, so that the meaning of the protest isn’t drowned out by clashes with police, a battle that can’t be won. It’s a delicate process but not an impossible one. “Cops want to know what to expect, and when you offer them the courtesy of a heads up, they give you more latitude, more space.” In December 2006, for example, Siegel helped arrange an unofficial march for 18,000 people protesting the police shooting of an unarmed black man, Sean Bell. “The police ended up giving us all of Fifth Avenue,” which, in turn, amplified media attention, increasing the demonstration’s impact.
When cooperation is withdrawn, so is “discretionary good will”—police won’t bend the rules. Occupy’s general refusal to seek permits or negotiate with police has consigned their events to “sidewalk marches,” strictly legal but subject to innumerable infringements that can lead to arrests, like failing to stop at a red light or stepping off the curb and “obstructing traffic” even when there is none. Siegel believes that Occupy protesters limit their rights when they choose to march on sidewalks. “That’s a stroll, not a march,” he said. It makes them seem unserious and small. “If you don’t get a permit, you can go to court and challenge it,” he added. “It becomes a First Amendment issue. You get publicity. Sympathy.” Presumably Occupy organizers believe in the First Amendment, and to appeal to its principles would not amount to an act of ideological hypocrisy. But their idea that to play by the rules means to surrender to the rules—and to the rulers—prevented them from making their case. “There are ways to use the system to challenge the system,” said Siegel. “Unfortunately, Occupy wasn’t willing or sophisticated enough to maneuver in this manner.”2
To be sure, OWS’s no-negotiation policy wasn’t the only, or even the main, cause of the harsh police crackdown. But on the street level it did serve to exacerbate an atmosphere of escalating confrontation. Some activists regarded every officer as the representative of an enemy state, cursing in their faces across the metal barricades, hoping to provoke a violent response, it sometimes seemed, that could be digitally recorded and then broadcast on Occupy’s global Internet feed. During the movement’s early days last fall, scenes of police brutality dramatically fueled Occupy’s popular rise. But after protesters were evicted from Zuccotti Park on November 15, clashes with police followed a law of diminishing returns, isolating activists, diverting attention from the social and economic injustices the movement had set out to challenge, and scaring away less militant supporters.
During the movement’s heyday in Zuccotti Park in the autumn of 2011, I heard many blue-collar officers express sympathy for its message. In a financial district bar one night in early November, a group of six or seven off-duty cops told me they disapproved of the aggressiveness of some of their superiors and colleagues. There were always a few “sadistic types,” they said, who used the opportunity of a free-for-all demonstration to have “what to them is a good time.” In general, the group agreed that “these kids are making sense,” as one female officer put it. They all considered political demonstrations to be “a great gig. There are no guns pointed at us and we get time and a half.” Obviously, the personal political beliefs of New York’s 36,000 police officers vary widely, a fact that Occupy protesters, for the most part, seemed either to ignore or not understand.
The First Amendment right that activists fatally seemed to misinterpret is that of freedom of assembly. Their confusion is understandable. Freedom of assembly is a concept, not a fixed law, a shifting proposition that is constantly being challenged, if not entirely redefined. The confusion that perennially surrounds it derives from the fact that it is not an absolute right; it depends on circumstances and must take into account the interests of competing groups. Reasonable time, place, and manner of assembly are among several governing factors. You can’t, for example, trespass in the name of free assembly or obstruct the free movement of others or appropriate a public space in a way that excludes those who have an equal right to use it.
Enforcement of the right becomes especially obscure in the heat of a protest. Occupiers chant, “Whose streets? Our streets!” But from a civil liberties point of view, this isn’t true. The chant should be, “Whose Streets? Everyone’s streets!” Occupiers’ failure to grasp this may have cost them Zuccotti Park at a time when they were in a position to negotiate their continued presence there in a different, but no less effective, manner.
In June 2000, Norman Siegel and Chris Dunn, a fellow attorney at the NYCLU, argued a case against the city before US District Judge Kimba Wood on behalf of protesters for a tenants’ advocate group who sought to sleep on the sidewalk in front of Gracie Mansion to dramatize the plight of certain tenants as a result of rent control laws that were being overturned. Wood ruled that sleeping or lying on the sidewalk for such a purpose was a legitimate “symbolic” expression of political protest, as long as protesters took up no more than 50 percent of the sidewalk and did not block people from entering or leaving adjacent buildings. She took pains to point out that nothing prevented larger numbers of protesters from joining the vigil during nonsleeping hours.3
The 50 percent rule presented a new working guideline for freedom of assembly. If occupiers had made strategic use of Wood’s decision, agreeing to limit their occupation to half of Zuccotti Park and leaving the rest for office workers and residents of the area, they may have been able to remain there indefinitely. Overflow occupiers could have slept at nearby churches and other indoor spaces, spending days at the park.4
The strategy would have neutralized Mayor Bloomberg’s main public objection to the occupation, by following Wood’s standing court decision about the constitutionality of using public space for protest. Conceivably, occupiers could have set up additional camps, in reasonable numbers of eighteen to thirty-five people per location, in front of Bank of America’s New York headquarters, for instance, or that of Citigroup, Goldman Sachs, JPMorgan, or the New York Stock Exchange, establishing a kind of legally protected ubiquity across New York. In April about forty Occupiers began sleeping on Nassau Street near the Stock Exchange, successfully invoking, for a brief time, the 50 percent rule. When word spread and larger numbers of protesters joined them, occupying more than 50 percent of the sidewalk, the police cleared everyone away.
Still, the overwhelming policing of OWS was out of proportion to any threat to civic order that the protest posed. Many New Yorkers took anxious note of this. It seemed emblematic of psychological and cultural changes that had been taking place within the police department since September 11, 2001. It confirmed what Michael Powell of The New York Times called “the decade-long trajectory in New York toward expanded police power [in which] officers routinely…toss demonstrators and reporters around with impunity.”5
Typically, thirty or more officers in full riot gear and with vehicle support would show up at peaceful “actions” involving fifty or fewer protesters. A legal observer I spoke with recalled a Joan Baez concert in support of OWS at Federal Plaza in early November. “They had a permit for five hundred people. Three hundred showed up—children, families. I counted at least one hundred police officers there.”
By this time, Occupy’s message had been publically embraced, at least rhetorically, by President Obama and Vice President Biden; Virkam Pandit, the CEO of Citigroup; Bill Gross, founder of the PIMCO investment fund, who memorably remarked that protesters were just “fighting back after 30 years of being shot at”; and a conservative member of the Dallas Federal Reserve—to name just a few of the public figures who acknowledged Occupy as a salutatory cry against America’s growing economic imbalance.
Protesters who took part in further actions were hemmed in like invaders, barricaded, blocked, arrested, and harassed. The urban landscape was completely shut down to them, a ruinous state of affairs for a movement that relied on theatrical public displays and symbolic street actions. On the night of March 21, I saw hundreds of policemen in riot gear, with dozens of vehicles supporting them, waiting on the periphery of Union Square Park for the stroke of midnight, when Parks Department rules would allow them to swoop in and “muster,” as a ranger put it, a modest number of potential occupiers who hoped to establish an encampment there.
The siege-like atmosphere extended to casual passersby. A few days later, in the middle of the afternoon, the writer Janet Malcolm, walking past Union Square on her way home after shopping, paused near a circle of about fifty police in blue uniforms who were listening to instructions from a white-shirted officer about how to handle Occupy protesters. One of the policemen told her it was “a private conversation” and ordered her to “move on.” Malcolm pointed out that she was merely standing on a public sidewalk. “The sidewalk is for walking,” said the cop. “Take a walk or we’ll remove you.” Malcolm told me, “If I had stayed put I’ve no doubt he would have arrested me.”
2 OWS has spawned a few offshoot “working groups” that do believe in pragmatic legislative solutions. The Alternative Banking Group, consisting of former and current bankers, mutual fund associates, and corporate lawyers, is energetically pushing the SEC and Congress to enact stricter investment regulations, stiffer penalties for financial malfeasance, and implementation of the Volcker Rule. See Le Monde, July 16, 2012, and The Washington Spectator, July 15, 2012. ↩
4 Since Zuccotti Park is owned by Brookfield Properties, the corporation that owns a building facing the park, its status with respect to the 50 percent rule remains undefined; but Norman Siegel believes it would probably be treated in court as a public space. ↩
5 Michael Powell, “ The Rules on News Coverage Are Clear, But the Police Keep Pushing,” The New York Times, January 2, 2012 ↩
OWS has spawned a few offshoot “working groups” that do believe in pragmatic legislative solutions. The Alternative Banking Group, consisting of former and current bankers, mutual fund associates, and corporate lawyers, is energetically pushing the SEC and Congress to enact stricter investment regulations, stiffer penalties for financial malfeasance, and implementation of the Volcker Rule. See Le Monde, July 16, 2012, and The Washington Spectator, July 15, 2012. ↩
Since Zuccotti Park is owned by Brookfield Properties, the corporation that owns a building facing the park, its status with respect to the 50 percent rule remains undefined; but Norman Siegel believes it would probably be treated in court as a public space. ↩
Michael Powell, “ The Rules on News Coverage Are Clear, But the Police Keep Pushing,” The New York Times, January 2, 2012 ↩