Slippery Slopes

Now, I’ve read some dumb things in my life at the Atlantic (especially since Megan McArdle came along), but this is ridiculous.  Wendy Kaminer, an “author, lawyer, and civil libertarian,” which in plain English means “wingnut welfare queen,” leapt into the fray with one of the silliest “slippery slope” arguments against OWS I’ve ever heard, complete with the snidely dismissive title, “The Hypocrisy of Occupy Wall Street.”  Though any actual “hypocrisy,” as you’ll see, only exists in her own mind, her words seemed eerily familiar, having been parroted verbatim by a concern troll caller on Thom Hartmann’s radio show around the time the article appeared.  If this specious drivel in fact spewed out of the Frank Luntz quote-a-matic, as it appears to have done, that machine needs to be unplugged before smoke starts pouring out and it burns the house down.

They criticize the “1 percent” for taking too much wealth, but they claim the right for a small group to inhabit public space indefinitely.

The nerve of those filthy hippies;  thinking they have a right to protest where their betters can actually see them.  Still, getting the smear right into the subhead helps for Drudge hits, so you can’t blame her.

It’s too soon to tell whether Occupy Wall Street’s drive to appropriate public spaces will entirely obscure its protests of economic injustice, but the dangers of its morphing into an ineffectual Occupy Whatever movement are already evident. Occupation is more exhilarating and instantly gratifying than the hard slog of advancing political and social change, and so far, one of the movement’s primary achievements has been a remarkable judicial ruling implying a new First Amendment right of occupation.

“New?”  As usual, it’s those “activist judges” again.  Everyone knows that free speech is only for those who can pay for it.  That’s what  Jesus told the Founders, and those lazy hippies should just shut up and get jobs, so they can buy their own politicians, presumably.

Public protests have long been subject to reasonable time, place, and manner restrictions …. But a Superior Court judge in Boston has effectively enjoined the city from imposing routine time, place, and manner restrictions on Occupy Boston and evicting the 24/7 occupation from a small square in the financial district, pending a December 1 hearing.
If you mean by “long,” “since Bush was elected,” and if you mean by “reasonable,” “mass arrests and fenced-off pens,” then Wendy is right on. And, if you want to be outraged about what Bill O’Reilly is outraged about today, but more tastefully, read the Atlantic.  She does realize she’s on shaky Constitutional ground, though, so it’s time to hit  the slippery slopes:
What’s so remarkable — and, in my view, so remarkably wrong — about this order? It suggests that an infinitesimal percentage of the population may appropriate a public park indefinitely, to the exclusion of more than 99 percent of the people the appropriators claim to represent. In Boston, the occupation hasn’t raised many practical problems of exclusion because the small square in which it’s based (Dewey Square) is relatively dead urban space. But what if occupiers grow in number and try to take over a heavily used park like the Boston Common, now host to a diverse array of political, charitable, and recreational activities? Whose rights to occupy would take precedence?
You see, even though their numbers are so infinitesimal and all, they could suddenly take over (by their numbers?) the whole city, even nicer parts.  Hand her the smelling salts, she’s going down with her hilariously self-refuting “argument” against something that has not, well, happened. Which makes the way she starts the next paragraph so unintentionally funny:

Facts matter, of course, and it seems unlikely that the courts would allow one group to appropriate the Common indefinitely. But Occupy Boston’s legal arguments suggest a right to do so. The occupation is itself an “expressive,” First Amendment activity, Occupy Boston asserts. Occupiers are “creating a functional direct democracy to demonstrate the possibility of a more just, democratic, and economically egalitarian society. … The Occupy protesters’ 24 hour per day/7 days per week actual physical occupation of a portion of the city in which they are located is a core component of the message of the Occupy Movement. They express their message through actual, physical occupation of a city through the establishment of a tent city.”

Lamenting that those activist judges are always susceptible to “reading” the Constitution, rather just than going with the latest Fox News interpretation, Wendy has to dig deep into the barrel of tired straw men, so it’s no wonder all she could come up with was,

This is an interesting argument, but it begs for a limiting principle. What standard of review should courts employ in deciding if or when the rights of occupiers unduly infringe on the rights of others? Consider just a few questions raised by Occupy Boston’s claim:

In non- Red Queen parlance; she’s saying the argument is correct, but pesky.

What if a group of Tea Partiers seek to establish camp in the same space (Dewey Square) in order to demonstrate a contrary vision of community or communicate a contrary view of economic justice? What if the Tea Partiers also argue that camping in Dewey Square is “a core component of their message” because of its location in the financial district? Private associations have First Amendment rights to formulate and control their own messages. So would Occupy Boston have the right to exclude the Tea Partiers, in order to prevent them from muddying its message, simply because they got there first?  What if either Occupy Boston or the Tea Party or any other group decided to take over a much larger, more popular space, like the Boston Common, insisting that it was, after all, the only place in which their messages could effectively be conveyed?

First of all, if more than three teabaggers ever deign to appear together in any venue, there will be Koch-funded buses, a star studded Fox News contingent, and the rest of the MSM hanging on their every misspelled word.  Occupiers would be left in the dust in any such a scenario. Does this woman ever read a newspaper?  Well, no:

What if a group of Christian nationalists set up camp in a public park and excluded all non-Christians from their encampment in order to demonstrate the possibility of a purified Christian America? What if they purposefully chose a park across the street from a mosque or synagogue, claiming that the location was essential to their message? What if a group of White Supremacists set up a tent city in a public space that admitted only white people?

Evidently Wendy hasn’t been told that Christian crazies have been “occupying” abortion clinics, for instance, non-stop for decades, often to the point of violence,  all white militias are forming heavily armed “communities” all over the country, and many elected Republicans routinely call for all kinds of discrimination against Muslims.  I guess she hopes her readers haven’t noticed these things, either.

If you believe that rights enjoyed by Occupy Boston should not be extended to the Christian nationalists and White Supremacists, among other private groups that discriminate based on race, religion, or other protected categories, then you’re endorsing content-based discrimination against speech — a fundamental violation of First Amendment freedoms. If the right to disseminate a particular message is contingent on popular or official approval of its content, then it’s not a right at all. It’s an unreliable, arbitrary privilege. Occupy Wall Street and its satellites are supposed to represent the interests of the unprivileged many; they should perhaps refrain from demanding occupational “rights” that can only be extended to a privileged few.

The fact that no one at OWS, or anyone outside the right wing noise machine is actually making any such argument, of course, is immaterial, since the point is they might.  And, that thing they haven’t done makes them not just hypocrites, but, get this, “privileged” ones; the few against the many.  If this is the best they can come up with, OWS has already won.



  1. retzilian says:

    but they claim the right for a small group to inhabit public space indefinitely.

    There is an Aesop fable about a dog in the manger that comes to mind. The dog didn’t need the manger, but he didn’t want anyone else to have it, either. Nobody cares about the public park space the OWS groups use. Anyone who complains should grow up beyond the mentality of a 3-yr old.

  2. retzilian says:

    What if a group of Christian nationalists set up camp in a public park and excluded all non-Christians from their encampment in order to demonstrate the possibility of a purified Christian America?

    What do you characterize Mangers, Shepherds, religious iconography, sacred music (not all bad, by the way) and other accoutrements of a pagan holiday turned Xian Xmas stuffed down our throats from November 15 til Jan 1 every year?

    Key-rist, what a load of crap.

    • cocktailhag says:

      Has she ever been to a Rick Perry rally? I’m guessing she hasn’t.
      The entire article has no basis in fact, only her dire imaginings dressed up as legal reasoning. Where do they find these people?

  3. daphne says:

    Is it just my impression, or is Ms. Kaminer’s article but one long false equivalence? And, by the way, who exactly is checking the OWS attendees’ credentials at the non-existent door?

  4. dirigo says:

    Be that as it may: Happy Thanksgiving! k

  5. mikeinportc says:

    I may have missed somthing ,but has any Occupy group sought to exclude anyone? To the contrary , I thought that they’ve been encouraging more to show up. To answer the slippery-slopista, 1) Yes the TPers or the United Knights of White-istan, or whomever, could show up and protest, 2) and no , nobody could exclude anyone* , and 3) yes, they could protest where it is uncomfortable for the neighbors. There’s no right not to be offended . ( See Whitesboro Baptist Church ) There! Simple! You can un-clutch your pearls now. ;)

    I’ve seen some elements of her tangential points elsewhere, ( Cornell Review, Binghamton Review, etc – Don’t want to give any linky-love ) , so there probably has been a bulletin sent out from Wingnut Central.

    * If there’s a potential conflict , the cops will separate ‘em. They’re already there. It’d give them something constructive to do. See the recent fracking hearings , in Dansville, and Binghamton, for example. Probably more people there, in opposing camps,than at any of the Occupy sites. A lot more heated too, and nothing untoward happened.

  6. mikeinportc says:

    Something going on in Napa, CH :!/StarAppleEdibleGardens

    (Love the Star-Apples’ work, btw :) )

  7. meremark says:

    yeah ditto what everyone says here, kind of Generally Assembled, and add an individual thing:

    So I’m about 5 blocks from you, CH, this week condo-sitting dog-walking for Thanksgiving among the toni’s in town, the definite definite 1%-ers, while the toni owners-proper are out of country but still in the limited distribution list of friends of friends who call for my estate-&-animal-caretaking renown.

    Ah, inhabiting the Park hillmansion while my heart-&-sensibility is so pre-Occupied, sympathetically socialistic; ah, living with the 1%-ers while thinking like the 99%-ers which is to say normal — the disparity is sublime, the contrast is grotesque. Then there is this funny word involved: ‘Thanks giving,’ translated from some buddhist koan no doubt.

    Charmed existence maintains me. Almost every day a Boston friend calls me for an hour of actual pseudo-intellectualism, neo-performance art of the telephone. Today he was concerned again to reform the sense in his mind of ‘tradition’ as pertains to his beloved Harvard, or all-WASP life course, made over for the next hundred years and, really, the future ‘tradition’ evermore, with a sense of ecological environmentalism. And what tradition is not ecological must decease, and what ecology vitality requires must be made traditional.

    Anyway, H. in Boston’s primary question is whether the Occupy occupation threatens to flatline the retirement nest egg he left parked on Wall Street. or not. And if he has to move his financial vehicle, for Wall Street cleaning, where else is a safe neighborhood to park it in? I am his ‘street connection’ for tips on where the mutinous Occupy rebels might strike next.

    Harvard Yard, I tell him. “The Yard!,” he panics, “sacre bleu!” As in: ‘you kids get outta my Yard,’ past sense is lost in Millennial consciousness.

    So we talked about the following. A Harvard Crimson editorial deploring a camp of tents in ‘The Yard’ and propounding their eviction, published on the ‘official’ Crimson website but it’s not ‘traditional’, followed by blogger-comment banter. Bashing and unabashed, which supposedly is ‘traditional’ but not discussing ‘provincial’ issues. And everyone (commenting) is dilemma-fied between wearing the Harvard pretense but acknowledging the pretense is transparent and so admitting ‘their’ naked 1%-er is unadorned.

    Out of the Yard
    Occupy Harvard should move out
    By The Crimson Staff
    Published: Tuesday, November 15, 2011

    … Meanwhile, the Yard remains closed to anyone without Harvard identification, so long as there remains the threat of larger or more unstable protest. Occupy Harvard participants declare that they will not move until the University begins to meet their goals, including that the Yard be reopened to the general public as soon as the sit-in ends.

    In a bitterly ironic twist on the protesters’ slogan of “taking back Harvard for the 99 percent,” their actions have truly closed off Harvard’s campus to all but a select few.

    One commenter mentions that the campers didn’t block the public from the Yard, the police did.

    Another commenter exactly cites the Occupational ‘demands’.

    And someone here concerned with “attendees’ credentials” may find the truth is: Yes, they’re credentialed, and that’s funnier in reality than in parody.

    Ah, how to keep one’s sense in our swirlpool? So I study and agree in things like [Gloom-&-Doom ALERT] this:

    The Anthropocene: A primer.
    The Anthropocene. We’re already there. This is our time, …

    and this:

    Monday, November 07, 2011
    The Russian Soul and the Collapse of the West
    [Guest post by Sandy, ClubOrlov's Siberia correspondent]

    … the path charted and engineered by Western civilization spawned a mindset that is rapidly overtaking the globe, socially, economically, and culturally. This ascendancy has unleashed a domination of values, which, unlike political hegemonies of the past, are spreading with lightning speed, virtually unchallenged, and artfully enabled by the very technologies it has spawned.

    Many Americans are convinced that their culture represents the apex of this historical legacy, the best in scientific and technological advancement, as well as political and economic leadership. What America has achieved, so they believe, is a dream come true. It was this “American Dream” that has been held out to (or thrust upon) the rest of the world as the ultimate expression of the “good life”—the proper locus of human happiness. However, it was cheap energy, in the form of fossil fuels, that has enabled this cultural and industrial progress, and the recent recognition that world oil extraction has peaked surely signals the prospective collapse of industrial economy, and, with it, the dissolution of its core institutions. The trajectory of Western civilization, now characterized by accelerating energy decline and global climate change … is nearing its end.

    Parked here above the Vista my car battery discharged and now I have to go do my Sidewalk Mechanic skit, an authentically detailed historical (p)re-enactment from America’s past (and future), in these hi-toned deadend streets.


  8. Ché Pasa says:

    Who would have thought tents would become the most threatening items in the country?

    All these people fretting over… tents.

    Pretty soon, WalMart will ban their sale, and a permit and background check will be required to order one from REI.


    I hear the demonstrators cleared out Oakland’s Camp II this morning, don’t know what the word is on re-establishing. Snow Park is still operating.

    Most of the Oakland twitterchatter is about Cairo right now. People are getting killed in Tahrir Square. Solidarity.

    Meanwhile tensions are building in Davis. There is to be a big rally at noon tomorrow (Monday), on the quad, with Katehi supposed to be in attendance. We’ll see whether she shows. There have been reports of University retaliation against some of the students involved in the Occupation and the coverage of it.

    As for the legal issues the key understanding is that it doesn’t matter what the camping ordinances say. Not only that but the Movement doesn’t exist as a legal entity, so there is no one to apply for or receive permits assuming anyone wanted to get one. Some occupations do, but many don’t. There are court rulings but they really don’t apply to… this. Heh.

    Might go over to Davis tomorrow to check on the happenings…