"The Framers may not have anticipated modern business and media corporations. Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media." -Justice Anthony Kennedy, majority opinion, Citizens United v. Federal Elections Commission. 508 U.S. 8 (2010).
"(A) more just, democratic, and economically egalitarian society, responsible to people rather than corporations, is possible. That message can only be effectively communicated through the literal occupation of Boston in the financial district, as it symbolically communicates that just as corporations have occupied our government, the Occupy Boston movement will occupy Boston." -Kristopher Eric Martin, Affidavit submitted to Suffolk Superior Court Judge Francis A. McIntyre.
"Essentially, (Occupy Boston) is viewed as a hostile act, an assertion of possession against the rights of another. The act of occupation, this Court has determined as a matter of law, is not speech. Nor is it immune from criminal prosecution for trespass and other crimes." -Hon. Francis A. McIntyre, Suffolk Superior Court, order denying injunction against eviction.
"You can't evict an idea whose time has come."
- Occupy Wall Street
Last week, in Boston, we saw yet another stomping on the average American's rights to free speech and equal protection of the laws as against the corporate oligarchy that controls both the economy and the media. That was the ruling by Suffolk Superior Court Judge Francis A. McIntyre that the Occupy Boston's habitation in Dewey Square, near Boston's financial district, was not protected speech under the First Amendment.
On the face of it, one might agree that simply being in one place or another is not speech per se, nor conduct as the equivalent of speech. One might also agree that groups occupying a public space, to the exclusion of others, are subject to traditional "time, place and manner" restraints on speech, as in Holmes' famous quote from Schenck v. United States in 1919 about yelling "fire" in a crowded theater. And those arguments might well have been valid against the occupation of Dewey Square prior to the United States Supreme Court's 2010 ruling in Citizens United v. Federal Elections Commission, which was as much an exercise in judicial metaphysics as Constitutional jurisprudence, turning unlimited corporate cash into political free "speech."
The appellant in Citizens United was a purportedly non-profit corporation expressing the political views of a membership which included, along with a number of individuals, sponsorship by for-profit corporations who had an agenda to demonize Hillary Clinton as a potential presidential candidate. The non-profit corporation sought to broadcast a highly derogatory documentary film about Ms. Clinton within thirty days prior to a primary election, but that kind of corporate "electioneering" on mass media was prohibited by federal legislation and regulations.
Here, one might ask why an FEC regulation that bans political advertising or advocacy on federally licensed and regulated mass media within a specified time did not come under the traditional "time, place and manner" exception for reasonable governmental restraints on speech. The cable and broadcast media both occupy public spaces for dissemination of content, including easements over public lands for transmission equipment and/or exclusive allocations of limited bandwidth in the public airwaves.
Those spaces occupied by the corporate mass media are no less public than, say, Zuccotti Park in New York or Dewey Square in Boston. Indeed, those mass media facilities are public spaces normally used by a vastly larger portion of the public than the public parks the Occupy movement chooses near big city financial districts to get its message heard. Moreover, under Citizens United, unrestricted corporate cash has now become the means, the key enabling the corporate elite to enter and occupy many millions of private spaces, living rooms and t..v. dens all over America, whether welcome or not by residents who are primarily seeking entertainment and/or supposedly unbiased news reports when they tune in to that mass media.
My friend Henry suggested to me that maybe Judge McIntyre was correct about Occupy Boston depriving others of use of the park, so I asked him how often he himself had just decided to take an afternoon stroll over to Dewey Square from his downtown Boston law office. It was not even once during the forty plus years he's been in practice. The Occupy movement specifically targets public spaces near urban financial districts, areas not frequently visited by the wider general public, but close enough to the specific target of the protest for occupation of that location to have significant meaning.
It's not like the Occupy movement was taking over Central Park or Boston Common where a wide spectrum of the public might conceivably be deterred from enjoying a sizable downtown patch of well-manicured nature, and the symbolic meaning of the occupation less focused. Meanwhile, the spatially limited incursions into public space by the Occupy movement are vastly less of an imposition on the American public than the intrusion of corporate free speech, enabled by unlimited cash expenditures, over the public airwaves into private homes throughout the United States after Citizens United.
Despite the fact that the FEC limited restriction on electioneering was neutral as to political content, focusing only on corporate entities as opposed to individuals and the timing when such entities could occupy the corporate mass media with their electioneering, the 5-4 regressive majority on the Supreme Court ruled that the FEC had exceeded the permissible scope of "time, place and manner" limits on free speech. In doing so, the majority overruled a long standing precedent, Austin v. Michigan Chamber of Commerce , 494 U.S. 652 (1990), which held that political speech may be banned based on corporate identity -and you still wanna talk about all those "liberal judges" and their "judicial activism", huh?
So now, after Citizens United, corporations including both non-profit and for-profit, are deemed to be persons having full First Amendment rights to political speech in the mass media whenever and wherever they can buy their way in, to occupy those limited public areas to the exclusion of others. And the reasons why this must be so, as articulated by Justice Anthony Kennedy, have clear import for upholding the Occupy movement's First Amendment right to occupy public parks as against the municipal authorities who seek to evict them.
It begins with Justice Kennedy's recital as to the singular importance of access to the mass media for the exercise of political speech in today's America.
The Framers may not have anticipated modern business and media corporations. Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media.
This reasoning by the Citizens United majority is, beyond any doubt, absolutely correct. If it doesn't violate the First Amendment to ban yelling "fire" in a crowded theater when that is not true, it doesn't serve the First Amendment's overriding purpose if you can only protest laying off firemen in an empty theater.
Thus, Justice Kennedy expanded on the importance of judicial restraint in limiting free speech with the following:
While some means of communication may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communication are to be preferred for the particular type of message and speaker would raise a question as to the courts' own lawful authority.
He then added that "substantial questions would arise if the courts were to begin saying what means of speech should be preferred or disfavored." (Emphasis added).
Justice Kennedy then got right to the point on his concerns about judicially applied restrictions on the manner of exercising our First Amendment rights:
Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on politically commentary during a campaign," that statute "necessarily reduced the quantity of expression by restricting the number of issues discussed, the depth of their explanation, and the size of the audience reached. . . . "
Here, however, the "size of the audience reached", for purposes of the corporate elite's exercise of free speech, turns on the amount of money they can spend to reach that audience. That, in turn, without some way for cash poor individuals or unincorporated groups to access that same audience, establishes a means test for any truly effective exercise of the First Amendment right of free speech.
So what about the rest of us, you and me? What about We the People, the 99 percent of Americans who don't have billions of dollars to pour into the corporate mass media to influence elections, never mind to pay lobbyists to influence policy and legislation afterwards? How can we communicate our message through the all-important mass media in which the corporate elite has unlimited access to occupy the public airwaves and public transmission lines by simply spending unlimited amounts of money, when we don't got the do-re-mi?
That question was answered clearly and cogently by Kristopher Eric Martin in an Affidavit submitted to Judge McIntyre for Occupy Boston:
That message can only be effectively communicated through the literal occupation of Boston in the financial district, as it symbolically communicates that just as corporations have occupied our government, the Occupy Boston movement will occupy Boston.
But he might as well have been addressing a locked, stainless steel bank vault, because Judge McIntyre's response, stripped of all the legalistic jargon, was simplistic and stark. "Hey, money talks and bullshit walks." And so much for Justice Kennedy's concern for unrestricted access to the all-important mass media audience.
As is the case in many Supreme Court rulings, the factual findings on which Citizens United was based were not strictly limited to evidentiary presentations in the lower courts. Justice Kennedy's recital as to the importance of mass media today to reach enough people for free speech to be effective was based on what is best termed "judicial notice," basically common knowledge, as opposed to the recital of any hard, statistical evidence presented at trial in a lower court. And this is clearly a case of what's good for the goose is good for the gander.
Justice Kennedy's taking notice as to the importance of the corporate mass media in today's political dialogue and the exercise of free speech under the First Amendment is beyond question. That is a fact of life in 21st Century of America, whether we like it or not. But there is an equally important fact that the courts must also take notice of in this context, that for the individual citizen whose First Amendment rights are neither greater nor less than those of a Wall Street financial corporation, equal access to that mass media is denied by the simple fact that individuals, and ad hoc groups of individuals like the Occupy movement, don't have billions of dollars to spend on buying access to the mass media while the corporate elite does.
There are only two ways for any political message to reach that all-important mass media audience. The first, as noted by Justice Kennedy, is to pay cash for access, and the only other way is to do something in public that is newsy enough that local t.v. stations, the networks and the press cannot ignore it. After Citizens United the corporate elite is free to pollute the mass media with content promoting its dishonest, self-serving agenda and, without any effective means of access to that same mass audience, the opposition who speaks for everyone else who can't funnel tax-free profits to an offshore account, is effectively silenced. That, clearly, is not what the Framers anticipated when they drafted the First Amendment.
The Occupy Boston encampment was, no less than corporate spending to buy media access, a means of exercising the right of free speech under the First Amendment, which cannot be summarily dismissed by the courts under the rubric of some purportedly neutral law regulating the time, place or manner of expression. That is the clear point made in Mr. Martin's Affidavit, and it was simply ignored by Judge McIntyre.
Here, Judge McIntyre ruled that the act of occupation itself was not speech per se, as opposed to what the Occupy campers were saying. By the same logic, however, simply spending unlimited wads of cash to occupy the public airwaves is not speech either. As Justice Kennedy ruled in Citizens United spending money is really just the means used by corporations to occupy our living rooms through broadcast and cable television during prime time, and the act of occupation is just such a means for exercising free speech rights, entitled to as much protection by the courts as corporate spending.
Not having unlimited cash to buy media access during prime time, the individual citizens acting collectively through Occupy Boston must have some other means of getting equal access in the big, full theater that is the mass media audience every week night between five and seven p.m., or on the front pages of big city daily newspapers, just as business corporations buy access to that audience with cash. Justice Kennedy in Citizens United took notice of how important access to the mass media was for truly effective free political speech in 21st Century America, and that holds for everyone, We the People, not just the corporate elite.
The courts must therefore take equal notice of the undeniable fact that encampments like Occupy Boston are the only effective means for the great majority of Americans to compete with the corporate elite for access to the mass media that is essential to any effective exercise of our free speech rights in 21st Century America. There is no other way to protect our Constitutional rights to both free speech and equal protection of the laws after the Citizens United ruling, unless we want to adopt a new version of the Fairness Doctrine or start a serious discussion about public financing of all political campaigns.
Citizens United held that it was essential to the right of corporate free speech that the government not use politically neutral laws, whether intentionally or incidentally, to restrict corporations from spending unlimited money to buy access to the mass media, and the same reasoning must apply to governmental restrictions on the only means we average citizens, we flesh-and-blood real people within the true meaning of the Constitution, have to gain even a semblance of equal access to that all-important venue.
In light of the Citizens United decision, overruling Austin and emphasizing the importance of mass media access to the exercise of First Amendment free speech in 21st Century America, the 1998 precedent of Clark v. Community for Creative Nonviolence must also be reconsidered. In Clark, a citizens group began camping in Washington's LaFayette Park to emphasize generally the plight of homeless people in America. The Supreme Court ruled that the Park Service's neutral regulations against camping did not violate the organization's First Amendment rights to symbolically convey that message by camping out.
Citizens United, however, has changed the game significantly. When Clark was decided, there were effective restraints on corporate political spending under federal law, as upheld by Austin. Now, however, Austin has been overruled and those effective and reasonable time, place and manner restraints on corporate "free speech" have been removed, giving corporations unlimited access to a vastly wider audience than can ever be reached by any group of ordinary citizens without the kind of corporate funding the Tea Party gets. The law now gives greater protection to the corporate elite and their bogus "populist" shills than it does everyone else. In effect, Citizens United has created a means test for exercizing the right of free speech in the mass media.
Like the municipal governments who seek to evict Occupy encampments from public parks, the Park Service argued in Clark that it was only enforcing content neutral regulations having broad application, with no intent to suppress speech or target any specific group. In Citizens United, however, Justice Kennedy wrote:
(Political) speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest."
* * *
If the First Amendment has any force, it prohibits (government) from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."
Here, the "strict scrutiny " test clearly applies to uphold Occupy Boston's right to remain encamped at Dewey Square.
The first question to be asked is the nature of the expression seeking First Amendment protection, not the content nor the speaker, but simply the means of expression and the reasonably intended scope. Again, as Justice Kennedy wrote in Citizens United, restrictions affecting the size of the audience reached is a critical factor in evaluating the constitutionality of any purported restriction on free speech, and where corporate cash guarantees unlimited access to the vast mass media audience, any governmental restriction on the only means available to the Occupy movement to reach that same audience, whether specifically intended or not, must be subjected to the very highest judicial scrutiny.
After Citizens United, which struck down governmental restrictions on the means of access to mass media as included within First Amendment protection, Judge McIntyre's dismissal of the Occupy Boston encampment as being simply a hostile act of trespass and not speech is plainly wrong, both as a matter of fact and as a matter of law under principles of substantive due process and equal protection of the laws. The camping itself, as the only effective means to reach the vast mass media audience on parity with unlimited corporate cash, must be considered as "speech" on equal footing under the First Amendment with corporate spending.
Any other conclusion would clearlycreate a means test for exercising the First Amendment right of free speech, no less onerous than the long outlawed poll taxes that Southern states used to disenfranchise black voters in decades past. It would thus effectively allow government to decide who is and who is not worthy of exercising the First Amendment right of free speech, giving fictional corporate persons a virtual monopoly on access to the all-important mass media audience after Citizens United, leaving Occupy Boston and other groups of real persons without sufficient cash to buy media access the right to free speech only in an empty theater.
Therefore, the next question that must be asked in the Occupy Boston case is what compelling governmental interest the City had in evicting the Occupy campers. This is not simply a "legitimate" interest, e.g.. to enforce a by-law against sleeping in parks generally, as Judge McIntyre presumed, nor even an "important" interest such as protecting the health and welfare of the campers who willingly accept all risks to health and welfare associated with the encampment.
Instead, the City must assert and prove some interest so compelling that it has City has no other reasonable choice but to evict the campers, and that was not shown in the Occupy Boston case. Police and fire personnel testified as to several perceived and potential threats to safety, but after several months with no serious incidents affecting health or safety actually occurring, that self-serving testimony was speculative at best and hardly can be considered so compelling as to justify trampling the Occupy Boston campers' First Amendment rights.
Moreover, even where a compelling interest obtains, it is the City's burden to go a giant step further to assert and prove that restricting the speech or expressive activity is the only feasible means of protecting its interest, that there are no reasonable accommodations that can be made to uphold Occupy Boston's free speech rights in Dewey Square. Once it is established that the encampment itself is protected expression under the First Amendment, the City bears the burden of proof, and a very high one, to show that the expression must, not may but must be restricted because there is no other way to protect a compelling governmental interest.
The City of Boston has failed to meet that very high burden of proof as to the purportedly important governmental interests it did assert. Instead, Occupy Boston's evidence has shown a clear pattern by the City of actively preventing the campers from effectively addressing the City's expressed concerns about health and safety. At every turn, where issues of safety have been raised, Occupy Boston has attempted to address them with appropriate and practical improvements, only to have the police confiscate materials and prevent the improvements.
The campers tried to bring in solid and stable wooden pallets to make the walkways safer, and the police confiscated them. After buying fire extinguishers, posting no smoking signs and installing smoke alarms, the Fire Marshall still insisted that cooking activities created a risk of stray sparks igniting nearby canvas tents. So the campers tried to bring in a large fire-retardant military style tent for cooking, and that was confiscated with the Fire Marshall claiming that they didn't have a necessary building permit.
Now that's really compelling, isn't it, Judge McIntyre? The free speech rights of several hundred ordinary citizens can be trampled on simply because the City doesn't want to send an inspector to Dewey Square to issue a temporary building permit for a fire-proof tent so the campers can make their demonstration safer as the Fire Marshall demands.
The City has thus clearly failed to meet its burden to show both a compelling governmental interest in evicting Occupy Boston from Dewey Square and that the eviction is the only feasible means of protecting the governmental interests it did assert. The City could simply have issued a permit for the tent, as it does routinely for official and other uses of public spaces, and it is obvious that the City simply wanted to evict Occupy Boston from Dewey Square by any and all means, and to hell with the campers' First Amendment rights.
So Judge McIntyre's ruling must be appealed, or a separate civil rights action be filed against the City, to advance through the state appellate courts, if declined by the Appeals Court then directly to the Supreme Judicial Court, and then through the federal court system and a petition for certiorari to the Supreme Court. Such litigation might conceivably end with the Supreme Judicial Court finding in favor of Occupy Boston under the Massachusetts Declaration of Rights only, which would end the case but foreclose the issue only here in Massachusetts. Our Constitution was adopted before the federal Bill of Rights, and it has repeatedly been held to provide greater protection against governmental denial of individual rights than the Constitution of the United States.
Absent such a ruling by the Supreme Judicial Court under the Declaration of Rights, then the case would proceed through the lower federal courts as occurred with Citizens United. It would be discretionary with the Supreme Court whether to hear such a case on certiorari from the First Circuit Court of Appeals, but failure to do so if Occupy Boston loses on the record in this case would clearly be an abrogation of the Court's duty to protect our precious First Amendment right to free speech as so ardently articulated by Justice Kennedy in Citizens United in favor of those fictional corporate persons.
Personally, I respect Justice Kennedy as an independent and truly "conservative" judge, although I don't always agree with his opinions. He is, however, frequently the swing vote on important issues arising under the Bill of Rights, and I therefore believe there is a chance he would vote with the liberal minority on the Court to hear Occupy Boston, or a similar case, and then vote with them to uphold the right of access to the all-important mass media audience via expressive conduct such as camping on public property, on equal footing with corporate spending.
He might even write the majority opinion, and it would be difficult if not impossible for him, after Citizens United , to write an opinion that upholds Judge McIntyre's ruling on the First Amendment issues without raising additional and larger issues of substantive due process and equal protection of the law under the Fourteenth Amendment. It would be difficult to write an opinion upholding Judge McIntyre's ruling without having to acknowledge that Citizens United would then have established a means test for exercising our First Amendment right to free speech. I trust that the attorneys presenting the appeal for Occupy Boston will be briefing all those issues thoroughly, under both the Massachusetts Declaration of Rights and the Constitution of the United States.
After all, you can't evict an idea whose time has come, and free speech is free speech no matter how much money you have to spend or whether somebody thinks you need a bath or not.