Local governments are forcibly removing Occupy encampments, thereby risking large judgments against them for denying first amendment rights of the protesters. Their excuses range from fear of some health and safety consequences to Mayor Bloomberg's statement that protesters must obey the rules.
The Supreme Court in Citizens United and other cases empowering money in politics did not require money to obey the rules. Billionaire Mayor Bloomberg did not have to obey the rules when he bought his office with his personal fortune. The first amendment, as interpreted by the Supreme Court in cases like Davis v. FEC, exempt him from obeying the rules. The Supreme Court's money=speech rulings have established a plutocracy that operates like a fixed slot machine. It spits out billions in exchange for the thousands invested by plutocrats. Occupy demonstrators protest this corrupt system and the vast damage it has inflicted on the 99%. The protesters know a formula that better matches their reality: Money in politics=inequality=unemployment.
Occupy is moving toward a test of the protection accorded by the first amendment against local government claims that health and safety or economic concerns require them to terminate their particular communication strategy. The irony of beating and injuring demonstrators under the banner of health and safety has been noted elsewhere. However weak the arguments may be for attacking demonstrators and removing their encampments, the framework for evaluating when symbolic actions incidental to speech or assembly should be protected is the same test as that used for protecting money as speech. A speech-related action, such as sleeping over-night in public or erecting signs, that creates some arguable danger that the state has the power to regulate, may be prohibited if the prohibition does not place too great a burden on first amendment rights compared to the harms prevented.
The defense of the inevitable lawsuits for false arrest and civil rights violations against New York, Oakland, Denver, St. Louis, Dallas, Los Angeles, Chapel Hill, Portland, Seattle, Minneapolis and other cities which are forcibly removing the demonstrators and their encampments will have to rely on this same test. There can be no serious question that the Occupy strategies have been enormously effective in communicating their general message about the declining prosperity and power of most citizens at the hands of Wall Street and the 1% who dominate the country's economy and politics. Their encampment strategy is an element of this success, communicating the protesters' economic and political dispossession and their mutual solidarity. It demonstrates their determination to recover democracy from those who are responsible for their dispossession, to reverse a jobless stagnating economy, and to fund an indebted government by restoring progressive taxation the 1%.
The outcome of their lawsuits will depend upon the balance that a court -- perhaps ultimately the Supreme Court - strikes between the burden on this communication by prohibiting the demonstrators' particular encampment strategy and other actions, on the one hand, and the potential dangers of not doing so on the other. The courts must look to precedents to strike this balance.
The most significant precedents where the Supreme Court struck a similar balance is Buckley v.Valeo, the 1976 case that invented the concept that money in politics equals constitutionally protected speech. Citizens United and every other case in which various legal restrictions on money in politics have been declared unconstitutional by the Court are variations on the same theme. There have been five such cases since the John Roberts band of 5 judges took over the Court in 2006. The surreal trope that money is speech is the same in kind, though far less plausible than the argument that maintaining an encampment is essential to the speech and assembly rights of the Occupy movement. Both relate to actions beyond minimal acts of speech or assembly, actions which have potentially adverse implications for others. If Occupy makes certain spaces less usable by others - Mayor Bloomberg complained the protesters were "making [the park] unavailable to anyone else" - money in politics has appropriated the far broader public space within which political discourse would otherwise occur. Attempts to regulate money in politics which sought to reopen this space for citizens who lacked the money to buy the space have been invalidated by the Supreme Court.
Money, like tents and sleeping bags, is not speech. As Justice Stevens says, money is property. Investing this property in politics to influence policy is an action -- not speech. Paid political advertising -- where most of the money in politics goes -- is like a particular kind of advertising which can be assessed as to its value for society, much as the "speech" value of pornography, pimping, or fraud is assessed. Money in politics is a tool for what President Jackson called the "prostitution of our Government to the advancement of the few at the expense of the many." Advertising by special interests to buy policies for private gain to the detriment of the public has the same kind of value as advertising cigarettes. It should be subject to regulation if not altogether prohibited. The corrupting influence of this money in politics can be assessed and then weighed against the value of the speech involved.
The damage done by money in politics - the trade, tax, environmental, military, financial and innumerable other policies it has purchased for the profit of the 1% - is the root issue behind the systemic critique expressed by the Occupy movement. The damage resulting from the installation of plutocracy and the death of democracy since 1976 has been enormous. There could hardly be greater damage than the suffering from wars motivated by war profiteering, from tax-cuts-for-the-rich policies that destroy social programs upon which people's lives depend, from trade policies that export jobs, from inequality that causes stagnation and unemployment, from environmental and energy policies that risk health effects from exposures and even threatens the survival of the species. All of these policies are the result of money in politics enabled by the Supreme Court's decision to give less importance to the undermining of democracy by corruption than it gives to political broadcasts that use propaganda techniques and buy an audience by the bait-and-switch paradigm of purchasing time slots hitched to popular programs.
Encampment, though also involving property and actions, is also a form of assembly. In this way it is closer to the first amendment protection of assembly than money is to speech, and should have greater protection. The harm it may do is speculative and minimal compared to the enormous harm done by money in politics. If the encampments of Occupy protesters can be removed from a public forum, then money can be removed from politics.
The kind of speech and assembly engaged in by Occupy has roots right back to the founders. Even Colin Powell observes "demonstrating like this is as American as apple pie." The current gilded age protection for money in politics was the creation of judges in 1976, as expanded since 2006 into an absolutist doctrine. It is as American as robber barons.
In the hands of the Roberts 5 the first amendment strikes down any significant limitation on the capacity of money from the 1% to buy elections and policies. Any less absolute standard for enforcing the right of Occupy encampments to protest this system would necessarily be a double standard -- one for the 1%, another for the 99%. This comparison could very effectively expose the corrupt hypocrisy of the Roberts 5 who routinely make one law to protect their plutocrat benefactors and another for the rest of us.
If a court denies first amendment protection to the protesters' encampment strategy it must similarly deny money in politics the same protection. Though the respective burdens on speech would not in any way be equal, an even handed application of the first amendment, trading the removal of the occupiers' camp for removing the money of the 1% from politics, would be a good deal. Getting money out of politics would be an historic victory for democracy of profound importance. This will not be done without first winning the battle to strip the plutocrat judges of their authority to distort and rewrite the Constitution as if it were a Charter for tyranny.
This battle must be fought on two fronts. One in court to determine if the People have the same traditional first amendment rights required to fight the plutocrats as those new rights the Court created to establish plutocracy. If not, then the discredited John Roberts 5 must be stripped of their jurisdiction to do any more damage to the Constitution. The second front is Congress, which is fully empowered by the Exceptions Clause, Art, III, Sec 2, Cl. 2 of the Constitution to restrict the Court's jurisdiction to perform the alchemy of turning corrupt money into protected speech.
It is up to the People to use the tools at hand to force Congress to use that power, by focusing on this central issue.