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.
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.
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.