Author: Timothy Zick


Public Protest 1.0

The “occupation” of wall street and other spaces across the country originated online, and the protesters have set up their own media camps to disseminate videos and other information to the public.  These are some of the unique features of contemporary protests.  But what has been striking so far is the extent to which these protesters have relied on older forms of contention and information dissemination. 

Like previous protests, this one has claimed public space in order to make a public statement — of discontent and dissatisfaction so far, and perhaps a more affirmative statement in the days to come.  (Interestingly, the most prominent space in lower Manhattan — Zucccotti Park — is privately owned, and thus not technically one of the quintessential public forums open for public assembly and debate.)  The occupation is  physical; like other demonstrations, a substantial part of its power derives from the visual solidarity of its participants and the disruption the occupation is creating (of course, these things may have downsides and costs in terms of the efficacy of protests).  The occupation is relying on traditional protest repertoires such as marches and sit-ins — indeed, the Wall Street occupation is in one sense an extended outdoor sit-in.  Many of the protesters, though tech-savvy, carry makeshift placards and signs.  Some dress in costumes.  Some sit in drum circles.  Some advocate anarchy.  They have trouble finding suitable bathrooms, and have clashed with merchants.  To this point, the protesters have sought to move by consensus — a method of organizing that has led to frustration in past movements.  They even have their own newspaper , which they circulate to passersby and others (who says the traditional press is dead?).  The press and police have dutifully played their roles too — the cops have used escalated force and the media have demonstrated conflict reporting biases. 

This reliance on traditional forms of public contention should not come as a complete suprise.  Technology is undeniably useful to protest movements.  It can facilitate organization and dissemination of information.  It can help protesters bypass media filters, at least to some extent.  It can even facilitate sousveillance, or surveillance from the bottom.  But as I argued in Speech Out of Doors, online protests simply do not have the same communicative impact as those that take place out of doors.  That impact derives from their physicality, their presence, their human dimension.  As one veteran journalist observed with respect to the fledgling newspaper:  “[N]ewspapers convey a sense of place, of actually being there, that digital media can’t. When is the last time somebody handed you a Web site?”  In a broad sense, that is what traditional protests provide — a sense of place.


Our Exceptional Constitution

Scholars have long debated the extent to which the U.S. Constitution has influenced constitution-making and constitutional interpretation abroad.  David Law (Washington University) and Mila Versteeg (Virginia) have recently posted an interesting empirical study of the extraterritorial influence of the U.S. Constitution, entitled “The Declining Influence of the United States Constitution.”   I recommend it to anyone interested in comparative constitutionalism and formal constitutional modeling.  

As the title suggests, the authors conclude that in recent decades (particularly since the 1990s), other nations have become increasingly unlikely to model their rights-related (or structural) constitutional provisions on the U.S. Constitution.  Their study, which is based on 60 years of data, offers a systematic analysis of the declining influence of U.S. constitutionalism abroad.  With regard to rights in particular, the authors conclude that the U.S. Constitution is increasingly far from the global mainstream, both in the sense that it contains provisions not found in most constitutions (i.e., a right to bear arms, a formal separation of church and state) and in the sense that its Bill of Rights does not contain what the authors refer to as a developing “generic component” of constitutional rights (the existence of which casts some doubt on the notion that constitutions are strongly expressive instruments).  Lack of formal modeling is only one datum concerning the declining influence of the Bill of Rights.  Many commentators have argued that the Supreme Court’s reluctance to cite or rely upon foreign legal and constitutional sources may be diminishing the global influence and appeal of American constitutional jurisprudence and norms.  

Insofar as countries still look to the U.S. as an example, Law and Versteeg conclude that it is likely not to imitate but rather to avoid the Constitution’s perceived flaws.  Although there is no emergent global model, the authors conclude that at least with respect to nations sharing an Anglo-American legal tradition, Canada’s constitution has become far more influential than the U.S. Constitution.  The causes for the decline of U.S. constitutionalism are varied.  The authors point to several possible factors, including the rise of a superior model, a “general decline of American hegemony,” “judicial parochialism,” the “obsolescence” of the U.S. Constitution, and America’s exceptionalist creed.   

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Trans-Border Exclusion and Execution

Two trans-border First Amendment issues I plan to address in my book-in-progress are ideological immigration exclusions and the challenges posed by harmful expression in the emerging global theater.  Both issues have been in the news recently.

Civil liberties groups continue to complain that the Obama Administration is excluding aliens based on speech or associational concerns.  In the most recent case, the visa of Kerim Yildiz, a Kurdish human rights activist, was delayed.  According to the ACLU, teh delay was owing to his advocacy and criticism of American foreign policy.  (The visa has recently been granted, without explanation for the delay.)  Cases like this will continue to arise.  Whether the executive has the constitutional authority to exclude aliens on ideological grounds has never been definitively resolved.  Kleindienst v. Mandel (1972) held that the government must have a “facially legitmate and bona fide” reason for exclusion and strongly implied that courts were not empowered to look behind the government’s explanation.  The Obama Administration has lifted previous exclusion orders that appeared to be based at least in part on ideological concerns.  However, the Administration has refused to disclaim the constitutional authority to exclude aliens who espouse terrorism or whose advocacy otherwise threatens national security.  Other countries openly engage in, and even tout, ideological exclusion of aliens.  As I’ll argue in the book, this is one area in which I think the First Amendment ought to be exceptional.   

The recent drone attack that claimed the lives of two American citizens in Yemen involves a potentially more troubling practice.  The target of the drone strike was Anwar Al-Awlaki, an American citizen who, according to the government, was a principal propagandist for Al Queda and an organizer of terrorist attacks in the U.S. and abroad.  A companion, Samir Khan, also an American citizen, was killed in the strike.  Khan was reported to be an editor of a pro-jihadi publication.  The legality of the drone program in general is beyond my scope here.  I am interested in the free speech implications of this practice.  No court had ever heard evidence of the allegations against Al-Awlaki (a lawsuit brought by his father was dismissed on justiciability grounds), or Khan.  Insofar as the targeting of a citizen is based in part on his speech or associational activities, the First Amendment is at least implicated ( the Supreme Court has assumed, but never actually decided, that the First Amendment applies to citizens extraterritorially).  Could a citizen be executed in this fashion solely for expressive activities?  Even accepting the CIA’s allegations against Al-Awlaki, Khan’s death would seem to raise this uncomfortable question.  If, as the Supreme Court recently held in Holder v. HLP, speech that is “coordinated” with foreign terrorist organizations can be criminalized, then it may not be a giant leap to target a citizen for execution based solely on his propagandist activities.  The answer may depend, as it does in the detention area, on the propagandist’s status as an enemy combatant or as an agent of the enemy.  (Some old cases suggest that enemy-aiding speech might support a treason conviction.)  Al-Awlaki and others have demonstrated that remotely located speakers can pose real threats to American interests and security.  Determining whether targeted execution is a constitutional response to that threat may require in some cases that we consider not only due process concerns, but free speech ones as well.


Sustaining a Movement

Thanks to Danielle and the regulars for inviting me to extend my guest stint a bit longer. 

Like others, I’ve been watching with great interest the “Occupy Wall Street” protest, and have noticed that this nascent movement has begun to receive more extensive media coverage (see here and here, for example).  I’m encouraged that such a diverse and passionate group has devoted time and energy to public dissent, and has used traditional public places like parks and streets to do so.  And they’ve been savvy about it so far — using technology in innovative ways, creating public space, etc.  But I’ve also expressed some kepticism that a movement with no official leadership or hierarchy, uncertain intellectual and public relations foundations, a diverse menu of grievances, a relatively apathetic public, a media generally focused on conflict rather than message, and a police force that is apparently dedicated to escalating its use of force can actually develop into an effective long-term protest movement.  (In this post, Frank Pasquale has collected links to more optimistic commentary, and offers some encouraging comments of his own.) 

In the short term, the last characteristic mentioned above may actually help to sustain the protest for some period of time.  Like other movements, including most prominently the civil rights movement, the Wall Street occupation appears to be benefitting somewhat from the conflict dynamic with NYC authorities.  Pepper-spraying, netting, harassing, and arresting protesters will engender at least some measure of sympathy from the public.  As distasteful, unpleasant, and dangerous as these encounters may be, some movements need them in order to garner public attention and sympathy and to energize current and would-be participants.   

Not all movements need this sort of conflict.  Although it relied in part on public demonstrations, the Tea Party movement, which faced many of the same limitations now affecting the Wall Street demonstrators, seems thus far to have succeeded without any significant conflict with authorities (although there were certainly some tense moments at some public rallies).  Of course, there may be demographic and, more importantly, organic reasons for this distinction.  For all their grousing about the political process, Tea Partiers want access to it — ostensibly in order to effect fundamental change.  Sharp conflicts with police and other authorities serves no real purpose for such a movement, which wants to retain legitimacy after the tents are folded and the placards stored away.  For the occupiers, though, the agenda (insofar as one is becoming clear) seems to be opposition to private greed — banking excesses, corporate welfare, etc.  It may take time for that message to develop and be disseminated.  In the meantime, conflict will help keep the occupation in the news and in the public eye.  Here as elsewhere, resort to escalated force is a counter-productive policing method.  

Of course, the protesters will need more basic forms of sustenance as well.  So kudos to the local pizzeria offering a special on “occu-pies.”  Clearly, the movement does not object to all aspects of free enterprise.


Pepper-Spraying of Wall Street Protesters Under Investigation

According to this report, the actions of a New York City police officer who used pepper spray on some Wall Street protesters are under investigation by the NYPD and the Manhattan District Attorney.  The use of this kind of force might be appropriate in some circumstances.  However, based on the videos I have seen, use of pepper spray in this instance appears to have been unwarranted.  Of course, I’m aware that video evidence like this is subject to differing interpretations and that not all of the activity on the street is visible in any one video.  We will have to wait for the results of the internal and external investigations to draw conclusions. 

As police officers in New York City and elsewhere have learned, their public policing activities will almost certainly be recorded.  In what seem like ancient times, before the networking of public places and persons, this incident would likely have received little if any public or official attention.  Today, as Danielle points out in this post, protesters are recording police and police are recording protesters.  Meanwhile, particularly in places like Manhattan, CCTV cameras are recording everyone and everything.  Whether this will ultimately lead to more or less protection, for civil liberties in general and public protest in particular, remains to be seen.


More on the Wall Street Protest

The Occupy Wall Street protest is now in its second week.  As I mentioned in my last post, this social-network inspired demonstration faces several obstacles.  Among these, two deserve special attention.  One obstacle is short term and the other is a more long-term concern. 

As the protesters have recently learned, the police do not have unlimited tolerance for occupation of public spaces and permit-less demonstrations.  It is illegal to march in the streets of New York City without a valid permit.  Protesters typically work in advance with police officials to map routes and even to arrange for peaceful arrests.  This ensures a space for protest.  But it diminishes the disruptive impact and symbolism of public dissent.  In this instance, the Wall Street protesters declined to negotiate the terms of their demonstrations.   Although they were initially allowed to peacefully occupy park space and were tolerated so long as they did not obstruct traffic, the police have turned up the heat.  The orange mesh netting first used at the 2004 Republican National Convention has been taken out of storage and put to use.  Pepper spray has been used on several protesters — including some who claim that they were peacefully protesting and in compliance with police demands.  The protesters’ determination and resolve will be tested as conditions on the ground intensify.  They will have to endure escalated uses of force by police.  In addition to the sacrifices of time and physical comfort, some will have to be willing to risk arrest and jail time.  These challenges are in addition to the usual problems of message control, rogue violence within the movement, and negative press accounts that focus more on violence and conflict than the substance of protesters’ grievances.

All nascent social movements face these sorts of short-term challenges as they vie for public attention and attempt to take root in public consciousness.  But there is a bigger challenge, one I alluded to at the end of my last post.  The challenge is broader and more deeply ideological than day-to-day street politics on Wall Street or the protests in Madison, Wisconsin (a more appropriate analog than the Arab Spring for what is happening on Wall Street today).  As Michael Kazin, a history professor at Georgetown University, observed in a recent op-ed, “unionists and other stern critics of corporate power and government cutbacks have failed to organize a serious movement against the people and policies that bungled the United States into recession.”  As Kazin notes, the successes of earlier populist movements (of the left and the right) depended on decades of organizing, institution-building, funding, and articulation of populist platforms.  For Wall Street’s putative occupiers, the reality of corportate greed and economic mismanagement is evident.  But as Kazin points out: “If activists on the left want to alter this reality, they will have to figure out how to redefine the old ideal of economic justice for the age of the Internet and relentless geographic mobility.”  That serious long-term challenge cannot be met on the streets of Manhattan or in the Capitol building in Madison.          



Arab Spring on Wall Street?

Although the mainstream media has given it little attention, this past week there has been a public protest near Wall Street in Manhattan.  Fueled largely by social media, “Occupy Wall Street” demonstrators have descended on Wall Street to protest corporate greed.  Who are the protesters?  According to the Occupy Wall Street Web page:   “Occupy Wall Street is [a] leaderless resistance movement with people of many colors, genders and political persuasions.  The one thing we all have in common is that We Are The 99% that will no longer tolerate the greed and corruption of the 1%.”  As the name implies, the group plans to “occupy” — i.e., remain in the vicinity of — Wall Street for some indefinite time.

As public protests go, this one seems to have all the usual elements.  (One of my former students has been at the protest site, and I’ve followed reports of the protest online.)  There’s been a heavy police presence.  Police have arrested several protesters for blocking access to sidewalks, wearing masks, and other public disorder offenses.  They’ve set up barricades and protest zones (which, in this case, demonstrators have largely refused to use).  The protesters have communicated their overarching message by various means — including, in the case of a few women, going topless and proclaiming that they cannot afford shirts.  Although it is not clear whether the police have actually attempted to block or interfere with wireless networks in the protest area, some on the scene have claimed that officers demanded that tarps and other items that facilitate social networking and digital transmissions be removed.   

It was only a matter of time before disgruntled, unemployed and financially insecure twenty-somethings did something to protest the state of the economy.  Their complaints are serious, and the protesters have thus far acted with restraint and demonstrated peacefully.  The protesters are drawing comparisons between their protests and the Arab Spring protests in Egypt, Tunisia, Yemen, and other countries.  Mayor Bloomberg drew the same comparison when he said of the protests:  “You have a lot of kids graduating college can’t find jobs,” he said in response to a question about the poverty rate. “That’s what happened in Cairo. That’s what happened in Madrid.  You don’t want those kinds of riots here.”  Read More


Cosmopolitanism and First Amendment Exceptionalism

In my last post, I discussed some of the ways in which First Amendment norms and standards might be exported beyond our shores.  Of course, in a globalized and digitized world, constitutional norms and standards flow in many directions.  The bending of territorial borders may result in importation of foreign expressive and religious norms.  This transmission may pose a threat to America’s exceptional protection for freedom of speech as well as national norms regarding religious liberty. 

Challenges to First Amendment exceptionalism and religious liberty norms will come from many sources and directions.  These include international treaties and multi-national agreements; transnational processes that bring American and foreign jurists and officials into more frequent contact with one another; judicial citation of and reliance upon foreign legal sources; enforcement of foreign judgments and religious principles in U.S. courts; and resolution of trans-national speech conflicts that will arise as digitized expression is distributed in multiple sovereign territories at once.  In these and other respects, First Amendment norms and values will be in more frequent conflict and tension with foreign norms and values.

I do not suggest that any of these forces or events will ultimately dilute free speech exceptionalism or religious liberty within the U.S.  As Mark Tushnet has observed, globalization is not likely to lead to uniformity or global constitutional norms (whether derived from the First Amendment or from foreign sources).  Even if foreign speech norms could constitutionally be imported by treaty, in negotiations with other nations the U.S. remains steadfastly committed to resisting foreign speech norms and standards (through reservations and other mechanisms).  Further, American courts are unlikely to adopt free speech or press principles that are at sharp variance with longstanding doctrines.  But this does not mean that the forces of globalization, digitization, and internationalism can or will have no domestic effects in terms of expressive and religious liberties.  It may be politically, diplomatically, and otherwise possible to maintain parochial resistance to foreign speech and religious norms.  But ought that to be our posture?    Read More


Exporting the First Amendment

One of the trans-border concerns I’ll address in my book, The Cosmopolitan First Amendment, relates to the exportation of First Amendment norms and standards.  Generally speaking, provincialism and cosmopolitanism both aspire to facilitate the spread of First Amendment norms and standards — although, as I will explain in the book, they differ in important respects with regard to the preferred means of exportation.     

In a broad sense, exportation can take many forms.  For example, refusal to recognize foreign libel judgments may indirectly result in the exportation of American libel standards.  Extraterritorial application of some U.S. laws may effectively export U.S. free speech principles to foreign countries.  Voluntary, or court-ordered, compliance with First Amendment standards in cases where aliens’ expressive or religious liberties are affected abroad would also constitute a form of exportation.  Conditional spending measures could prohibit American companies working abroad from assisting repressive foreign regimes.  Federal legislation might commit the U.S., at least in principle, to facilitating and protecting religious and expressive liberties throughout the world.  Exportation through legislation may be somewhat effective in terms of expanding the domain of First Amendment norms.  These and other measures may result in expansion of the First Amendment’s actual domain, or at least signal an intent to facilitate expressive and religious liberties regardless of location.  In truth, however, these measures are not likely to produce substantial exportation of First Amendment norms and standards.    Read More


First Amendment Cosmopolitanism

In my last post, I posited the existence of three distinct First Amendments and focused on a number of issues relating to the First Amendment’s trans-border dimension.  In this post, I will sketch a conception or orientation regarding the First Amendment that I contend ought to be applied in considering and resolving those and related issues.  Although my theory or conception may have certain local, domestic implications it is applicable primarily to and in the trans-border dimension.         

My book will advance a First Amendment conception that I call “cosmopolitan.”  I use this term recognizing the sometimes misleading and distracting nature of labels.  In this case, the label is descriptively and normatively pertinent.  To be clear, I am using the label “cosmopolitan” more in the ordinary dictionary than in the philosophical sense.  In that more limited sense, I will offer a conception of the First Amendment that is (a) free from local prejudices or attachments, (b) widely distributed in terms of geographic domain, (c) to some extent a product of influences beyond our borders, and (d) part of an international system of human rights.  I will compare this cosmopolitan orientation with its antonym — the “provincial” First Amendment.  Here, too, I think the label is descriptively and normatively apt.  Some have suggested that I use “democratic” instead.  However, for reasons that will become apparent, I critique the conceptions of “democracy” and self-government adopted under the traditional, provincial approach to trans-border First Amendment concerns.  A summary of the provincial and cosmopolitan approaches follows after the break.  Read More