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20 December 2011 @ 04:58 pm
Constitutional Right  
I need to finally say this, though I know it will fill my inbox with lots of irate emails.

You do NOT have a Constitutional Right to Civil Disobedience.

You DO have a Constitutional Right to Free Speech. If you choose to exercise that right in a fashion that is against the law, either as a protest to that specific law or as a way to call attention to your protest, you are choosing to take the consequences, NOT claiming immunity from the law.

You DEFINITELY DO have a right to what I call Civil Arrest, and law enforcement that goes beyond what treats people with dignity and human rights is in and of itself illegal.

Let us not confuse the right to be treated properly during arrest with a right to disobey laws without consequence simply because of the subject matter. Doing so distracts those who may disagree with the subject from being able to agree that inhumane treatment of protestors is un-American.
Current Mood: scaredcringing
scifantasy on December 20th, 2011 10:06 pm (UTC)
That depends what you mean by "civil disobedience."

I would argue that civil disobedience is the refusal to obey laws one believes as unjust, and the willingness to accept the consequences of doing so, meaning being arrested.

However, as to (for example) the protests in Zuccotti Park in New York City, arguably the arrests themselves are not only unjust but unconstitutional. Especially in the manner they've been carried out. Really, this should be our generation's Kent State, even before (as I fear will happen) the cops shoot someone.

So, resisting unconstitutional arrest--is that civil disobedience? Is that something people are allowed to do?

Edited at 2011-12-20 10:07 pm (UTC)
Bill Suttonbedlamhouse on December 20th, 2011 10:21 pm (UTC)
So are you saying it is unconstitutional for a civic entity to make laws regarding the use of public space and then have those laws enforced? Or for a civic entity legally elected and responsible to do so to attempt to correct something perceived as a problem by those not participating in it?

Let's be clear - using the levels of force and humiliation like we have seen in many cases is NOT legal nor is it constitutional.

But I want to also be clear that by extending the use of the park for protest into a use of the park not normally allowed, the protest became civilly disobedient. One may applaud this as a way to command the attention the Occupy movement needs in order to counteract the disadvantages they face in getting the message out, or one may condemn it as grandstanding and/or not serious or with merit, but the perception of the message should not affect how it is treated.
scifantasy on December 20th, 2011 10:28 pm (UTC)
It might well be unconstitutional for a civic entity to make laws regarding the use of public space, yes. For example, a civic entity can't say "only pro-life people may use this space." This is why the courts developed First Amendment doctrines such as "time, place, and manner versus viewpoint."

As to "correcting something perceived as a problem by those not participating in it," well, I merely go back to the point that the Bill of Rights exists to protect the minority from the majority. What the people not participating in think is a problem does not mean it is a problem.

But neither of those goes to what I asked, which is, if you are being illegally arrested, do you have the right to resist?

(Not an academic question, really. Earlier this year the Indiana Supreme Court said that if the police unlawfully enter your home, you have no right to resist.)

Edited at 2011-12-20 10:28 pm (UTC)
Bill Suttonbedlamhouse on December 20th, 2011 11:09 pm (UTC)
If I understand correctly what you are saying, there are two parts:

1) is whether what was being enforced against the protestors was discriminatory or otherwise unconstitutional. So far I do not believe so, I have not seen any other instances of groups being allowed to stage 24-hour occupations of public spaces over more than a two-week period without permit, so I don't know of any reason to say the regulation being enforced was on its face unconstitutional (for other reasons besides a perception that it is somehow unconstitutional to enforce laws that are being broken in the name of sending a message, which is the whole point of the original distinction).

The Bill of Rights exists to protect the minority from the majority, but it does NOT exist simply to absolve a united minority from reasonable adherence to the laws of society. In this case, the Occupy movement was not protesting being discriminated against in their use of public land, they were using public land in contravention of its normal use to protest something else. It seems to me this is not an instance when a majority is required to allow civilly disobedient disruption

2) is the question of what is the right of a person to act if being illegally arrested.

Without getting deep into constitutional law discussions to which I am not trained to respond (fascinated by them as I am), we should at least agree that this subject does not lend itself to some simple cut-and-dry 25-words-or-less-summation response. As in above, I currently don't see that the initial enforcement was in-and-of-itself unconstitutional. By becoming unconstitutional through its enforcement methods, did it absolve the occupiers of any wrongdoing because now they weren't occupying space in contravention of ordinance but were resisting unconstitutional means to remove them? There are nuances in that kind of question that could keep well-meaning and intelligent people arguing for a long time - but I think it isn't something that will be solved by the kinds of quick cartoons and one-liners so many bring to the discussion.

It is a very good point, but not the point I was making - if you are being illegally arrested for something you didn't do wrong then you aren't being civilly disobedient in the first place, and I believe (lacking other proof) that this is a case of non-violent civil disobedient protest.

My main point is that civil disobedience as a way of protesting unjust laws carries with it a responsibility to accept the consequences as foreseen when the action was taken. In this case, being evicted from the land or arrested for violation of the ordinances governing the land use would be expected. Violent and humiliating arrest procedures is NOT.
scifantasy on December 21st, 2011 12:51 am (UTC)
1) Yes. As yet, I admit that the one judge to examine the question concluded that the enforcement was constitutional, but I believe I am justified in being...skeptical.

The majority is not required to allow the protests, but neither can it object to them on the simple grounds that it doesn't like them. Breaking the laws, sure. Mere presence? Nnn.

2) Right, but I'll accept that such is tangential to the point.

I agree with your central point, of course. And I think you'd find that most of what's going on falls into the violence-and-humiliation spectrum more than the simple arrest or eviction universe.
Bill Roperbillroper on December 21st, 2011 04:03 am (UTC)
Well, actually the majority is required to allow the protests, to the extent that the protests constitute speech. First Amendment and all that.

However, they are not required to allow a protest that breaks a law which is applied equally to all protest groups, save that you are not allowed to write a law that would prevent all protest speech from being delivered.

Richmond, Virginia is having an interesting dispute with the Tea Party groups in their neighborhood which were required to pay substantial fees in order to engage in protests similar to those which the Occupy protesters are not being charged for. In this case, it would seem that the law is not being applied equally.
Bill Suttonbedlamhouse on December 21st, 2011 01:51 pm (UTC)
Which is something I've avoided - commenting on those folks who were mightily indignant that Tea Party protests didn't get treated with evictions. I'm unaware of Tea Party protests that did not follow the permit system and that fully intentionally broke use regulations for over two weeks before being reacted to.

You can't choose to contravene regulations and then compare your treatment to groups that followed the rules.
אליזהkestrels_nest on December 21st, 2011 01:29 am (UTC)
I'd missed that one. I'm with the minority. Avoiding violence does not abrogate the Constitution. Not saying that one should shove an officer against a wall, but blocking the door and telling them to get a warrant? It may be unwise, but it should not be illegal.

I have often had occasion to think about our Constitutional Law prof's advice regarding arguing with police officers about one's rights: "One should treat a police officer like any other armed and dangerous individual."
judifilksignjudifilksign on December 20th, 2011 10:18 pm (UTC)
Thank you for clarifying for the masses.

At school, this was a key point when I taught Thoreau, and Ghandi. The students were amazed to discover that the British government at the time had no respect for Ghandi at all, because despite his peaceful platitudes, crowds he spoke to often whippped up violently and killed people.

Ghandi and Dr. King were both jailed for their civil disobedience several times, and the laws only changed after massive protests across many years in both cases.
(Deleted comment)
Bill Suttonbedlamhouse on December 20th, 2011 11:19 pm (UTC)
And there we run into the difference of meaning and what hits the paper that can derail things. I know what I meant, but obviously was not clear.

Is "distract" perhaps too light a word to mean "lose focus on the priority during the discussion"? I believe communication is a responsibility for both the speaker and the listener, so if I want to see things fixed rather than just see my side's comedians come up with better one-liners, I have some responsibility to make sure the people I am dealing with focus on the thing I want fixed.

You are right about people getting sidetracked by trivia in the face of rank inhumanity. Does it clarify that my meaning was not "do not do something that might upset people because when bad things happen they will be distracted by what you did", it is "when discussing the bad thing that happened don't focus on the side issues that could cause the discussion to become unproductive"?
fabricdragonfabricdragon on December 20th, 2011 11:00 pm (UTC)
i was always taught that to BE "civil disobedience" meant also being willing to be arrested to make your point...
Maia Cmaiac on December 21st, 2011 12:20 am (UTC)
I've always thought the point of civil disobedience was to call attention to the injustice of a law by accepting the consequences of breaking it. Rosa Parks' refusal to give up her seat is the perfect example.
madfilkentist: CarlWindowmadfilkentist on December 21st, 2011 12:48 am (UTC)
As Thoreau defined it, civil disobedience is the refusal to obey an unjust law. An example which he gave was refusal to pay taxes that support an unjust war, so the injustice can be indirect (the consequences of the tax, rather than the tax itself).

But since then, many people have interpreted "civil disobedience" as breaking any law simply because it's inconvenient to their protest. The obscuring of the difference may be the result of the way Jim Crow laws worked in the Civil Rights era; in refusing to obey segregation laws, protesters were technically committing the crime of trespassing, not the crime of refusing to observe race lines. But when people trespass just because it's a way to protest, that's not civil disobedience.
judifilksignjudifilksign on December 21st, 2011 02:40 am (UTC)
Thoreau also spent a night in jail because he would not pay a poll tax, instead rushing the locked box and dropping his filled out ballot in. He counted himself well satisfied, because he got away with it, as they could not tell which ballot was his.