Free Speech and Public Space After Occupy Wall Street
July 3, 2012
Conversation with Professors Michael Dorf and Timothy Zick (Transcript Only)
On February 28th, 2012, the Northwestern Law Review hosted a discussion between Professors Michael Dorf and Timothy Zick on the Occupy Wall Street movement, moderated by Colloquy Editor Michael Downey. What follows is a transcription of their conversation.
Colloquy:
Thank you for listening to this edition of the Northwestern University Law Review Podcast. Today’s colloquy will focus on the First Amendment implications for the Occupy Wall Street protests.
My name is Michael Downey, Colloquy Editor for the Northwestern University Law Review, and I will be moderating the discussion this morning.
Today is Tuesday, February 28, 2012, and we are pleased to be speaking with two very distinguished scholars this afternoon. Michael Dorf is the Robert S. Stevens Professor of law at Cornell University Law School. Timothy Zick is the Cabell Research Professor of Law at William & Mary Law School. Thank you both very much for speaking with us today.
Dorf & Zick:
Thank you.
Colloquy:
The subject of today’s podcast is the Occupy Wall Street movement, specifically some of the First Amendment issues that have arisen from it. The First Amendment protects the freedom of assembly from the actions of government officials, but it has not traditionally been thought to place any such restraint on the actions of private citizens. Many of the Occupy Wall Street protests have taken place on property that is owned by private citizens but which has been reserved for public use. An example of this would be a privately owned park. The extent to which the First Amendment protects the right to demonstrate in such privately owned public spaces is a substantially gray area of the law.
I will moderate this discussion by posing each question and then directing it at one of the two professors. The other professor will have an opportunity to add his insights or respond to the initial answer. At that point, the discussion will continue as a back-and-forth as necessary until we move on to the next question.
The first question is for Professor Dorf. Under existing constitutional doctrine, in what circumstances—if at all—can private property owners be seen as government actors for First Amendment purposes? Is this only when private property is designated as public space? After the experience of Occupy Wall Street, is it time to reassess this doctrine?
Dorf:
I’ll take a crack at the doctrinal question first, and then let Tim pipe in with corrections or additions and then we’ll discuss the reassessment question together.
The general answer is that in very limited circumstances private property owners have been subject to the strictures of the First Amendment and the Constitution more generally. With the exception of the Thirteenth Amendment, the Constitution binds government and not private actors. The “state action” doctrine sometimes makes private actors responsible for constitutional violations if they are exercising a certain amount of public power. Generally though, that is a pretty high bar. Being subject to regulation is not, by itself, enough to make an entity a state actor.
Let me give you an example of a rare exception. The leading Supreme Court case in which a private entity was treated as a state actor for First Amendment purposes is Marsh v. Alabama.[1] This was a case of a company town in which the company was the de facto government, and actually exercised some powers that normally are exercised by government. So in narrow circumstances the Supreme Court will subject private actors to the strictures of the First Amendment.
The general rule, however, is that even private spaces that look like public spaces in some important respects are still treated as private for federal constitutional purposes. There may be conditions imposed as a matter of state law or as a matter of contract requiring that where a developer builds a private space there must be certain open spaces. Such conditions may give the public some access to otherwise private space, but the mere fact that the government has secured a right of access for the public does not necessarily convert the private owner into a public actor for purposes of the First Amendment.
I am going to pause there and let Tim correct or add to what I have just said.
Zick:
I would add only a bit of doctrinal material to Mike’s summary, which touches on the important highlights. In terms of private spaces, there are a couple of circumstances where the state might be present such that the First Amendment will apply. One is where the private owner is serving some kind of public function. A public function is one that is traditionally and exclusively served by government, such as operating a municipality. There the spaces within the town might be deemed “public” for First Amendment purposes.
Another doctrinal category would be something courts often describe as “significant state involvement.” That can include situations where the state is maintaining or operating the private property in substantial respects. The state’s connections to the private property could add up to state action and convert a privately owned property into a public space in which First Amendment limitations apply.
Dorf:
Let me just add that private prisons may provide a helpful analogy for protestors. Under the case law, private prisons are generally treated as state actors because running a prison is a quintessentially governmental function. The same thing can sometimes be said of certain other essentially public places that, though nominally private, have a deeply public character.
Zick:
I don’t want to take over the moderator’s role here, but I have a question for Mike. In terms of Zuccotti Park. I know you blogged a bit about this and you probably know the background facts, certainly as well as I do. Do you think that there is a plausible case to be made that it’s covered by the First Amendment?
Dorf:
My understanding is that there were certain reservations in the formal documents setting it up that made it less than fully public.
Colloquy:
I wonder if you might be able to give a very brief outline of the facts for our listeners?
Dorf:
Sure. Tim, do you want to take a crack at it?
Zick:
You may actually know more than I do, based on what you’ve just said.
Dorf:
It is quite common in New York City that, as a condition of building, a developer agrees to create certain public space and then maintain it. But I’d have to look back at the details for Zuccotti Park. My recollection was that the park had a curfew and that they had a certain ability to exclude that went a little bit beyond what a public park has to begin with. The fact that there was a curfew doesn’t tell you very much because public parks, like Central Park, have a curfew also.
Whether this public park falls within the public function doctrine I think would turn on two things. One is what is the formal relationship between the owners of Zuccotti Park and the City of New York? And the second is how has it actually been used? The protestors have tended to use it as though it is a public park.
That is my impression of it. I don’t actually know what the answer would be, but I think I know what the relevant factors would be.
Zick:
I think that the document may have set up a public easement. I’m not sure if there was a curfew originally, although I know there is now. But I think that one of the things that is interesting about Zuccotti Park is that it seemed to allow for twenty-four hour public access.
Dorf:
Yes, now I remember. You’re right, it didn’t have a curfew.
Zick:
Correct. Unlike most public parks, it didn’t have any kind of restriction. The Occupy Wall Street protesters either chose it very strategically and very wisely, or got lucky in that regard. But even with the public easement that had been granted, and even though it had been policed in some sense maybe as a public space would be, I think it might be a difficult state action argument under current doctrine.
Dorf:
When we come into the part of the question that asked whether it is time to reassess the doctrine, my own view would be that a big chunk of this doctrine ought to look at how much other real public space is available. You don’t want to have a doctrine that disincentivizes government from opening up space to the public, even if it is nominally private space. It is a good thing when a municipality conditions building permits on the granting of various public easements. If there is a worry that doing that is going to open the municipality to additional liability, they might not do that as much.
On the other hand, municipalities could try to evade their constitutional responsibility by trying to privatize what are essentially government public functions. So the key inquiry mirrors the time place and manner doctrine, which asks how much alternative space is available.
If Zuccotti Park is one of the few de facto public spaces available, that’s going to make me more inclined to say that this should count as public for First Amendment purposes.
Zick:
I actually think that there is a serious problem in terms of the overall degree of privatization of public property, including what would otherwise be traditional public forum property — public parks, plazas, and those sorts of things. Some federal courts have mentioned the vanishing public square in decisions reviewing public speech restrictions. I think there should be a much more flexible state action doctrine in this context because I don’t think there are adequate spaces for public assembly and protest in most municipalities. I would say that even with regard to New York City, where there are quite a few public parks, due to things like improvements and restrictions on protests and other things, they are not always available for public protests, parades, and the like.
Mike alluded to state constitutions and contract law and those sorts of things, and that is another avenue for opening up space. I know some state courts apply a more flexible version of the state action doctrine. Under this approach, some private malls and other privately owned spaces have been treated as state actors.
I do see privatization of what would otherwise be open and available public places for speaking and assembling as a particular problem. I like Mike’s suggestion that we focus some attention on the time place and manner doctrine’s alternative spaces requirement.
Colloquy:
So would it be fair to say that you think that the current law might be a little bit under-protective?
Dorf:
I think that is fair. I would hope that courts would interpret the existing doctrine in a way that would leave a little bit of wiggle room. But I think that normatively we ought to be permitting more rather than less speech.
Zick:
I think the current doctrinal approaches are under-protective. That criticism relates to the state action, public forum, and time, place and manner doctrines. Together, these doctrines allow for significant privatization, fail to acknowledge the importance of public places to speakers, and don’t express an adequate concern with leaving open ample and adequate amounts of space for expressive activities.
Dorf:
Let me give you one final piece to complicate this. We have been talking about public space as though there were two options. There is government-owned public space, and there is privately owned space to which the public is invited in some regard. And you can ask to what extent the First Amendment should apply to the latter.
There is a third possibility, which is that the government could simply make the space not public at all. The government could sell public real estate to private parties who then use it for clearly private purposes, like office buildings or apartments. It is this greater power of the government to basically eliminate public space that in some sense problematizes all of the doctrine. If the government can decide not to have a park at all, why can’t the government decide to have a park under limited conditions?
I think that the best answer to this question is that the greater power does not include the lesser power. Fortunately, people will demand a certain amount of public space, not necessarily for speech, but for other reasons. Once they’ve got it for those other reasons, the First Amendment should then open it up for speech also.
Zick:
I think that is a really interesting question. I was going to ask Mike whether he thinks there is any First Amendment impediment to the government doing what he just suggested. In other words, taking something that is otherwise a public forum and completely privatizing it? Selling it off, and thereby making it disappear from public space?
Dorf:
Not that I know of. You would have to be able to find something like a motive test in the speech context. It reminds me a little bit of Palmer v. Thompson,[2] the equal protection case, which said that it was permissible for a municipality in Mississippi in the civil rights era, to respond to an order to desegregate its public swimming pools by closing the swimming pools. If that was permissible under the Equal Protection Clause, it is unclear why it would be impermissible under the Free Speech Clause of the First Amendment.
Zick:
I would think you are right under current doctrine, although in a recently published article I suggest that closing the only park in town might be problematic.[3] I also suggest in that article that towns and municipalities have a trusteeship duty to retain as much public forum space as possible.
Colloquy:
The next question is for Professor Zick. Cities frequently expelled the Occupy Wall Street protestors from government property after a certain amount of time had passed. Were these actions generally consistent with your understanding of Supreme Court case law?
Zick:
This question relates specifically to the time place and manner doctrine. First, some background on this doctrine: Whether protestors or speakers are permitted to assemble and occupy public places depends on local “time place and manner regulations” that govern the property in question. In many public places, these regulations are quite numerous, detailed, and—unfortunately in some cases—quite burdensome. Usually, but not always, there are certain times during which protests may take place and limits on the duration of protests and other activities. Where those limits are in place, assuming they were not enacted and are not being enforced for any content-based reason, the courts will generally uphold them. The answer to your question, then, is generally “yes.” If there is a particular time limit in place and it is reasonable, then courts will enforce it.
Protesters have to be careful to check local laws. Where there are no such limits, and protestors are otherwise compliant with regulations, they might be able to maintain a more-or-less permanent presence. Let me give you an example. A U.S. House of Representatives Oversight Committee recently held a hearing concerning the occupation of McPherson Square Park in the District of Columbia. The Park Service regulation that applied to the park allowed for smaller protests to remain in the park indefinitely. Protesters weren’t allowed to camp or to sleep overnight in the park, but they were otherwise allowed to hold what was in essence a twenty-four hour vigil there, and that’s what a lot of the debate was about. Incidentally, the regulations in question were promulgated in response to a Supreme Court decision from 1984, Clark v. Community for Creative Non-Violence,[4] which has been discussed often in connection with the occupation protests. That case upheld a Park Service regulation banning overnight camping in certain D.C. park areas.
Dorf:
Sometimes the community might not have any regulation for a particular park, or it might have only a very loose set of guidelines. Then there is some big event, like Occupy protestors taking over a park or perhaps a chunk of the park. At that point the local authorities decide that they need to have some further restrictive regulations.
It would be very difficult as a third party, whether a judge or somebody else, to tell whether that regulation is a legitimate response to a general problem that has now manifested itself with this particular group—previously they had no idea that anybody would try to occupy the park absent particular regulation)—versus a vindictive effort directed at this particular group to target its message.
The relevant doctrine distinguishes between content-based and content-neutral regulation. A regulation can be content-based simply by virtue of the illicit motive of the regulator. In a lot of these cases, the motive will be to clear out the particular protestors, but that doesn’t necessarily mean that there is hostility to the content of the message.
Although I’m generally quite sympathetic to the free speech claims of the Occupy movement, I do think one has to be careful in dealing with newly crafted regulations not to assume that the newly-craftedness necessarily denotes hostility to the message as opposed to a new awareness of the problem of people physically occupying public or quasi-public space.
Zick:
That issue actually came up in one of the challenges involving an Occupy protest. The case was in Tennessee (I can’t remember if it was Nashville or Memphis), and essentially the same scenario that Mike just described had occurred. After the occupation, new regulations were proposed and enacted and then they attempted to enforce them. A judge at some point enjoined that effort, in part because they hadn’t followed proper administrative procedures, but I think also in part because the judge at the preliminary injunction stage had concluded there was adequate evidence of discriminatory purpose or motive.
I think that Mike is exactly right, that the motive question is a really difficult one for courts. This reminds me of the funeral protests that were occurring leading up to Snyder v. Phelps, which involved imposing civil liability for protesting near a military funeral.[5] Before the Westboro Baptist Church—the group involved in all of those cases—started to protest military funerals, you didn’t see regulations on the books restricting funeral protests. After that you saw quite a few laws and regulations. Thirty-eight or forty states, I think, and municipalities all over the country started to enact them. Courts generally treated these laws as content-neutral, with only a few cases coming out the other way.
It’s a very close question in a lot of cases, including the Occupy protest situations. It’s obvious that the laws were a response to a particular problem or concern, a public order concern, but there was at least a danger that they were based on disapproval of the message conveyed. It is very difficult for courts to sort that out.
Dorf:
You almost need to have an experiment in which you have some other set of protestors come and engage in all of the same tactics, but for a diametrically opposed message, and have the government react to see whether its regulations would change based on the content of the message.
Colloquy:
Professor Dorf, does the law compel the police or other public authorities to respond to private owners of the space used for protesting, as they would to a homeowner whose property is being trespassed upon? Should the police play a different role than they currently do in future protest situations?
Dorf:
That is primarily a question of state and local law. The Constitution does not compel the police and public authorities to respond to private actors’ complaints at all, except to the extent that the Equal Protection Clause forbids them from discriminating on invidious or irrational grounds. I don’t think it would be invidious or irrational for the police to prioritize trespasses in homes as opposed to privately owned public spaces. So as far as the Constitution is concerned, if a municipality made a decision that it was going to withhold or only judiciously employ its police power against protestors, then I think there would be no problem.
As a matter of local law, though, there could be all sorts of duties on the police with respect to how they have to respond, what they have to do, and how to handle protests versus other trespasses. Protests are protected First Amendment activities, presumptively, and so the police ought to be especially sensitive. I would want the police to exercise much greater restraint before breaking up a protest than they would need to exercise in responding to a trespasser who is not exercising First Amendment rights.
Zick:
Speakers have no First Amendment rights to assemble or speak on someone’s front lawn or in their backyard. Whether they are compelled to or not, the police generally do respond to requests to remove a trespasser in those situations. I think that is perfectly appropriate in light of the private nature of the property interests involved.
Private spaces have different characteristics and functions. If you go back to Zuccotti Park, although it was nominally a private park it had some public characteristics. One of the things that the protestors benefitted from is the fact that the police there were reluctant to remove the protestors. Partly because of what Mike alluded to, they realized that there was at least a potential First Amendment issue. Even in a place they considered private there was a reluctance to move in, at least immediately, and to remove protesters. I think that for the most part the police there exercised appropriate restraint.
If Zuccotti Park had been treated as a public park, or if it had been under the mayor and police commissioner’s control from the beginning, that might not have been the case. Brookfield Office Properties, which owns the space, was reluctant to simply have the protestors removed. Their concern was probably more closely tied to public relations than free speech.
Dorf:
Tim points to a really interesting irony, which is that when protesting on private property, just as when protesting against the actions of private actors, the protestors can leverage the private party’s interest in good public relations. Of course, governments are interested in good public relations also, but they tend to be less highly attuned to that at any particular moment.
Colloquy:
Professor Zick, how does the Occupy Wall Street experience alter two prevailing views of the First Amendment’s public space concepts? First, the view that government has an affirmative duty to provide public space that enhances speech, and second, the idea that the free speech guarantee should primarily—or exclusively—restrain governments from meddling with public discourse, either by altering its content or skewing its outcome?
Zick:
I think the Occupy protest activity actually reinforced both of those views. It didn’t alter them so much as remind us of their importance. The first principle is the duty to make public spaces available. Most of these protests actually took place in public parks and several even moved at some point to public university campuses. At least with respect to the traditional public forum, the category that includes public parks, plazas, and things of that nature, the Occupy protests showed that these continue to be critically important venues for public assembly and speech.
I think it is true, as a lot of scholars have pointed out, that people certainly make less use of those forums than they used to. This is due to such things as privatization, restrictions on the use of public property, and public policing practices. What the Occupiers did in a sense was to make a very traditional claim on public forums. That is: the right to commandeer, in a very literal sense, public parks and other public places. So I think they reinforced that first view.
With respect to the second, the Occupation protests played a lesser role, except in the few cases that I mentioned before. These days, content-neutrality remains an important principle. At least some of the restrictions passed in the wake of the Occupation protests reinforced the need to be wary of negative government reactions to speakers’ messages.
Colloquy:
Professor Dorf, do you agree?
Dorf:
I have an amplification, and then either a point of departure or possibly a minor point of disagreement. I do not think that we have disagreed on anything so far.
The amplification is this: one of the shameful pieces of our First Amendment history over the last decade or so has been how the rights of organized demonstrators have been restricted. It appears that the principal culprits are the last two mayors of New York City, Rudolph Giuliani and Michael Bloomberg, both of whom have had policies of confining protestors, nominally in the name of security, but really going far beyond anything that was necessary. If you look at protests that have been officially scheduled in New York City, you have people that are confined to little pens where they can barely move. It is almost impossible to have any sort of really well organized, interesting protest. It is not surprising to me that Occupy Wall Street, before it spread, began as somewhat spontaneous protests in New York City because of the difficulty of having official, formal protests. I think that that ought to shake up the courts a little bit. Hopefully, the Bloomberg administration, and other administrations throughout the country that have adopted the New York model, will begin to realize that they really need to open up more space.
The second point I would make is about content-neutrality. I agree that content-neutrality is central to the existing doctrine. But as our discussion earlier about the difficulty of proving a departure from content-neutrality suggests, I wonder whether we might not shift the focus a bit. My colleague, Steve Shiffrin, wrote a very important book on the First Amendment talking about dissent as the fundamental principle of the First Amendment. To the extent that content-neutrality gets at protecting dissent, great, but if it doesn’t, people who want to protest almost anything ought to be given substantial leeway.
Zick:
I couldn’t agree more about the situation in New York City. It has occurred elsewhere, but that is really the high profile example. This idea that you can confine protest and dissent and pen it in, as occurred recently in places such as New York City, Boston, and Los Angeles, during large scale public events, threatens to chill public protest. One of the first things that the police and officials do during national party conventions and similar events is to carve public space into designated places that are deemed appropriate for protest. These speech zones are typically small, removed from the places of tension and the audience protesters are trying to address, and generally not conducive to conveying effective protest messages. There has been this move, particularly since September 11th, by cities to militarize public places, to essentially engage in military-style policing and intelligence gathering for what are ordinary, lawful protests and demonstrations. This orientation treats protest as a public threat, as disorder per se, rather than protected activity.
I think it is also true that the content-neutrality rule is problematic. And it may not be that we disagree, we may agree on this as well. Courts may not get to, particularly when you are talking about public protest and assembly, the heart of the matter, which is whether the government is disapproving of the message, whether it is attempting to suppress dissent. I think the doctrine in that respect is quite faulty, and it isn’t living up to some of our First Amendment principles and commitments.
Dorf:
I’m sorry that we didn’t disagree.
All:
[Laughter]
Colloquy:
That’s quite all right. Let me ask you another question Professor Dorf. Has the emergence of online public fora reduced the need for the government to maintain physical public space available for protest?
Dorf:
This is a question that people have been talking about for a few years now. Let me just stake out the various positions.
One position would say that online public fora have indeed replaced physical fora. Almost no one takes that position. You could take that position, and say that the real action has moved online and that what is happening in the physical world is inconsequential. I think that is just not true. It is certainly not true in places that are not currently liberal democracies, where you need people on the streets to start a revolution.
The other version of this position, the more interesting one, is the one that says that online fora, especially social media like Twitter and Facebook, are essential organizing tools for traditional protests in the physical world. There is debate about how important the online tools are for organizing real-world protests. I don’t really have a view about that other than to say that such tools probably play some role, and the importance of that role probably varies from place to place.
But if the question is “have the online spaces diminished the need for public spaces?” my answer is certainly not. Malcolm Gladwell writes about the weak connections that people make online. I think Gladwell probably lies on the underestimation side of the importance of social media, but I think he is also right in saying that you can’t adequately protect free speech by protecting online communication without also providing robust protection for speech in the physical world.
I would say that, as framed, the answer to your question is “certainly not.”
Zick:
I agree with most of what Mike said, but let me amplify a little bit. I think that the answer to the question is no. As I argue in my book, Speech Out of Doors,[6] public places remain critical forums for a variety of expressive activities. That leads to the question of what important characteristics and functions different types of forums actually serve. I think both cyber forums and physical forums are both useful, both critical in fact, to exercise of First Amendment rights.
Online forums do certain things very well. They facilitate rapid mobilization, and obviously mass communication and networking, connecting people and keeping them informed. Physical spaces obviously provide different types of opportunities for real connections, which allows people to engage in various forms of social disruption that you cannot replicate online. You can certainly do social disruption online, we have seen that recently in a number of different cases, but it is a different kind of disruption. To actually interrupt people as they walk down the street, or impose certain social burdens or even economic burdens on them, forces them in a sense to take notice. And there are real opportunities in physical forums for face-to-face interaction with audiences and also with fellow protestors to make the sort of thicker connections that we were talking about.
At the end of the day online and offline forums are both critical. I think that they serve different functions, they facilitate each other, and the Occupy protests demonstrated that quite well. At the end of the day you had both an online call to action and a visual, physical presence.
Dorf:
I have one thought in that regard. Zechariah Chafee, who was one of the great scholars and champions of the First Amendment, in discussing the persecution of Jehovah’s Witnesses, referred to their “astonishing powers of annoyance,” even as he went on to defend their free speech rights.
There is a core insight there that can only play out in a physical space. The core insight is that part of the purpose of the First Amendment is to annoy people, not to make them unsafe, not to harass them, but to annoy them. To get under their skin a little bit, to shake them up. That is the philosophy of the First Amendment, and it is much harder to do that online in ways that are not completely destructive and illegal, like a computer virus, than it is to do so in a physical space.
- :
Does Occupy Wall Street demonstrate that, even with the proliferation of technology making widespread dissemination of expression cheap and easy, there is still immense First Amendment value in the historical notion of expression through group assembly? If so, will this affect the courts’ understanding of First Amendment rights, or are these historical notions already so firmly entrenched that it is likely to have little effect?
Dorf:
The short answer to that question is what Zhou Enlai said about the French Revolution. It is too early to tell. It has only been half a year since the Occupy protests got going, so we will have to see. I think it had more of an impact so far on the substantive conversation than on questions of freedom of speech. You see discussion of wealth inequality now in the political discourse in a way that you previously did not, so that is an important effect.
It is possible that we will see an impact on free speech law and policy, depending on the reaction from the courts and public officials. But we will have to wait and see as the weather gets warmer and the protests resume. In a way, the Occupy movement had particularly bad timing in starting in the fall. They should have started around April 1st, to give themselves half a year before they had to go indoors. But we will see what picks up now.
Zick:
In terms of discourse regarding public speech and protest, I think these demonstrations serve more of a reinforcing function rather than acting as catalysts for altering discourse. The Occupy protests focused public attention on the importance of traditional forms of expression in public spaces. Every now and then, our attention is drawn there, such as when we have public outbursts over wars and political issues. The Occupy events generated that sort of consideration of public places and public speech. In that sense the protests did remind us of the importance of some fundamental and traditional First Amendment principles. In form, though, it’s worth noting that the protests were unique. They were an unprecedented permanent, large scale, multiple-location outdoor sit-in. That certainly got the public’s attention in a way that ordinary public demonstrations have not.
I think Mike is right, though, in saying that it is too soon to draw bigger constitutional lessons from the moment or movement, whichever you prefer. I do think we can say that the Occupy protests have at least sparked a public discussion of equality, democracy, and corporate malfeasance. Some of these themes have been amplified in our national political discourse.
- :
Let’s talk about Occupy Wall Street as a model for social movements. Are social movements taken more seriously when they make constitutional claims? Professor Balkin has argued that “the Occupy Wall Street protests offer a still deeper vision of the Constitution than simply a rejection of Citizens United,” one that argues that the government has lost a sense of responsiveness that is essential under the Guarantee Clause. Is this persuasive? In any event, is it important in light of the Occupy Wall Street movement’s primary message concerning wealth inequality?
Zick:
I remember when Jack Balkin made that claim. My initial reaction was that it was a bit of a stretch to find a connection between the Guarantee Clause in particular and the Occupy protests. It is certainly true that many successful protest movements have advanced constitutional claims. While I think resort to the Constitution can be particularly powerful in terms of messaging, I don’t think this sort of framing is a required aspect of a successful protest movement.
I’m not sure the content of the Occupiers’ social, political, or constitutional claim is entirely clear at this point. Although the protesters speak with many voices, one of their principal claims seems to relate to income inequality and the lack of responsiveness of the government to this concern. I suppose you could suggest that this rises to the level of a constitutional claim. The Preamble lists some fundamental constitutional aspirations, and the Occupiers may in some sense be lamenting the breach of those promises. But I think the point so far is to put on display a basic and deep-seated level of discontent in the body politic over a range of issues. This is how social movements often get started; but I don’t think we know what the potential movement’s platform is at this point.
Dorf:
I have two thoughts. One relates to Professor Balkin’s views. He has two new books—one, Constitutional Redemption,[7] the other Living Originalism[8]—in which he makes an argument about the importance of social movements to constitutional change. I should say I have a book review of Living Originalism forthcoming in the Harvard Law Review.[9]
I generally have a lot of praise for Balkin’s work. I am a little bit skeptical of the claim, whether it’s a descriptive claim or a normative claim or both, that American social movements have tended to tie their demands to a vision of the Constitution, as opposed to whatever it is that they actually want at the moment. I think that the better lesson to draw from the themes Balkin explores is that we should understand social movements as engaged in constitutional politics whether or not that is how they actually imagine themselves.
If we do that, then I think that the message of the Occupy movement is much broader than a concern about wealth inequality. They are in the paradoxical position of being a democracy movement in much the same way that protestors throughout the Arab world in the Arab Spring were part of a democracy movement. That is paradoxical because protestors in the Arab World and protestors against dictatorships more broadly demand democracy, while we already have democracy here.
I think that the answer is that from the perspective of the Occupiers we have a very flawed democracy, and what they are demanding is a better democracy. You can connect that up with what Balkin is talking about if you want. The Occupiers want a government that is more responsive to the mass of the People.
The challenge for the Occupiers going forward is to figure out what is the space for a democracy movement within a democracy, albeit a flawed democracy.
Zick:
I’ve also read Balkin’s Living Originalism. As I read it, Balkin characterizes the people involved in social movements as consciously invoking and discussing constitutional claims with the public. Mike’s interpretation is plausible, though—that we should understand these claims as constitutional, even if the Occupiers themselves do not necessarily see it that way.
I think, Mike, you discussed the broad democracy point on your blog yesterday. There is a question whether to affect change in a democracy movement, you have to go indoors, within the system and work through it, or whether you can perpetually stay on the outside. My own view, and I think that this is yours, is that at some point you have to participate in the democratic institutions that currently exist.
Dorf:
Yes I think that is probably true, although you can have an inside–outside strategy. You have got a reasonable person in a tie and jacket stating the demands, as it were. “I’m reasonable, negotiate with me or you will have to deal with my friends playing the drums outside.” You might see some of that.
Part of the problem for the Occupiers is that their natural place in conventional politics is within the Democratic Party, but they want to be able to retain their identity as a democracy movement. Think about the constituencies that make up the Democratic Party’s base. There’s labor. There are groups that engage in identity politics. The Democratic Party is very good at co-opting such groups. How does Occupy bring itself within the big tent of national-party politics without being co-opted? Another way to put that question is this: If you are going to have an inside-outside strategy, who is going to be your person on the inside? I think if it is President Obama, then Occupy is probably going to have to settle for a lot less than what many of the protestors want.
Colloquy:
Thank you very much for agreeing to do this program with us today.
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[1] 326 U.S. 501 (1946).
[2] 403 U.S. 217 (1971).
[3] Timothy Zick, Property as/and Constitutional Settlement, 104 Nw. U. L. Rev. 1361 (2010).
[4] 468 U.S. 288 (1984).
[5] 131 S.Ct. 1207 (2011).
[6] Timothy zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (2009).
[7] Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (2011).
[8] Jack M. Balkin, Living Originalism (2011).
[9] Michael C. Dorf, The Undead Constitution, 125 Harv. L. Rev. 2011 (2012).