Occupy Wall Street and democratic protest

Williamsburg, VA – When Americans in various cities took to the streets in significant numbers and stayed there indefinitely, many drew comparisons between the earlier Arab Spring demonstrations and the Occupy Wall Street protests.

There are some rather obvious differences between these events. One comes immediately to mind: the Arab protesters were hoping to achieve democracy, while the American occupations took place in a country that is already democratic.

So what, if anything, can the recent Occupy Wall Street protests tell us about democratic protest in general, and in the United States in particular?                

One of the lessons from the occupation is that democratic protests come in many different forms, shapes and sizes. The Arab protests were about regime change. Although they were more modest in scope, the Occupy Wall Street events were also classic democratic protests. Under the First Amendment, Americans have the right to speak, assemble and petition government officials for the redress of grievances. 

Public places such as parks and streets – “traditional public forums”, as they are referred to under First Amendment doctrine – are made available to members of the public so that they may gather with others to communicate on matters of public concern. The occupiers were attempting to use, indeed to commandeer, these public forums in order to complain about the form or condition of democracy in the US. 

In this sense, the occupiers stood with public protesters of the past, including abolitionists, suffragists and civil rights protesters. Although their message has not been conveyed in the most explicit terms, the occupiers’ general complaint seems to be something like the following: American democracy has failed the people by facilitating a wildly unequal distribution of wealth, diminishing opportunities for future advancement and prosperity by all citizens, and allowing corporate interests to hijack democratic institutions and processes.

By their lights, our democratic system has not functioned, as the US Constitution’s preamble promises, to “form a more perfect union, establish justice, insure domestic tranquility [,]… promote the general welfare and secure the blessings of liberty to ourselves and our posterity”. Indeed, according to Occupy Wall Street participants, in its current form, American democracy disregards the welfare of 99 per cent of its rightful beneficiaries.

In sum, the Occupy Wall Street protests were not about achieving democracy, but rather perfecting or redeeming it. Like other notable democratic protests, the occupation originated within an established democratic system.      

Second, the occupations showed that democratic protest is difficult and can even be dangerous. That is undeniably the case in countries where autocratic regimes use lethal and others kinds of force against their own citizens. It is true even in the US, with its long history of public speech and dissent.

During the Occupy Wall Street protests, some police officers used excessive force, including pepper spray and physical force, against protesters who appeared to be engaged in peaceful and lawful activities. Many protesters, and even some journalists, were wrongfully arrested. 

Protesters face a host of other significant challenges. The restrictions placed on parades, marches and other forms of public display in the US are numerous and, in many municipalities, quite burdensome. These limits range from the legal privatisation of public places, where protesters might lawfully assemble, to the bureaucratic maze of regulations that typically limit the time, place, manner and other conditions under which protesters may gather and speak, to contemporary methods of protest policing that cabin, pen and zone public protest. 

As a result of these and other limitations, which are often held by American courts to comply with First Amendment requirements, protesters are often marginalised, displaced and arrested for failing to comply with regulations and police orders. In the US, this problem has become more acute since the terrorist attacks of September 11, 2001.

Challenge for OWS

In places like New York City, officials have sometimes treated lawful forms of public protest as presumptive security threats. In light of these various burdens, the Occupy protesters were remarkably successful. Using a combination of traditional and technological organisation tactics, they were able to mount a substantial, spontaneous and sustained presence in various public places across the US. 

The most notable and effective public protests are acts of civil disobedience – which is precisely what makes them difficult and potentially dangerous. The occupiers demonstrated just how uncomfortable, burdensome and risky public protest is, even in a nation that generally respects the rule of law and freedom of speech. 

Democratic protest does get easier over time, as it becomes part of the democratic system of government. However, by its nature protest is never as easy as casting a ballot, signing a petition or writing a letter to a legislator. Whatever one might think of their message or tactics, there is no doubting the conviction of occupiers who essentially lived outdoors for several months. 

In the end, however, courts and officials across the nation enforced regulations that banned overnight camping in public places. No public protest can last indefinitely. Public opinion and public officialdom will not allow that. 

This brings me to my third and final point: as the Occupy demonstrations also showed, democratic protests, while necessary, are obviously not sufficient substitutes for other forms of political activism. Participants in the Occupy Wall Street protests chose the streets over traditional democratic institutions precisely because those institutions were some of the central targets of protest.

They believed that these institutions had utterly failed them. That point has been successfully made. The plight of the “99 per cent” has become a story of national import and has caught the attention of some in national politics. However, history teaches that if they are ultimately to be successful, democratic protests cannot remain completely out of doors in terms of locus or orientation. 

To be sure, some element of the Occupy Wall Street movement may continue to engage in public protests in order to raise public awareness and to remind fellow citizens and officials of their central claims. Democratic protests help the people to continually keep their rulers in check, to hold officials accountable and to remind governors that sovereign power lies not in the institutions of government or public officialdom, but with the governed. 

So citizens should return from time to time to public streets and parks, engage in mass protests and demonstrations, and maintain a physical presence in public places. In this sense, democratic protest helps to ensure that the people continue to govern themselves. However, democratic institutions generally cannot be reformed solely from the outside. 

At some point, if a democratic protest is to become an effective democratic movement, its members will need to engage in indoor politics. They will need to occupy legislatures, agencies and boards. This will be a unique challenge for the Occupy Wall Street participants, who generally eschew formal hierarchies and engage in non-traditional forms of communication and political decision-making. 

The challenge for Occupy Wall Street, as for any democratic protest, is to remain true to its core principles while seeking systemic changes from within. The American occupation teaches us that in any democracy, public protest is a necessary but not a sufficient condition for systemic change.           

Timothy Zick is Cabell Research Professor of Law at William & Mary Law School, Williamsburg, VA. He has written on a wide variety of constitutional issues, with a special focus on issues of free speech and federalism. His Speech out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge University Press, 2009) examines the dynamic intersection of place and the First Amendment.