A Note About OWS and Pre-Trial Diversion in Los Angeles
I have seen a lot of garment rending on Twitter and in discussion forums I participate in about the Los Angeles Times report that a pre-trial diversion option is being offered to some Occupy Wall Street-Los Angeles protesters:
Many Occupy L.A. protesters arrested during demonstrations in recent months are being offered a unique chance to avoid court trials: pay $355 to a private company for a lesson in free speech.
Los Angeles Chief Deputy City Atty. William Carter said the city won’t press charges against protesters who complete the educational program offered by American Justice Associates.
He said the program, which may include lectures by attorneys and retired judges, is being offered to people with no other criminal history and who were arrested on low-level misdemeanor offenses, such as failure to disperse.
“Tin eared!” “Propaganda!” “Re-Education!” “Stupid!” “Tone-deaf!” “By a private corporation??” “Seriously, LA, this is the worst ever!” “Unbelievable!”
Those are a smattering of the responses I saw, and all are from people I know and respect greatly. And they are all wrong to take such umbrage at this report. Here is why.
Pre-trial diversion of criminal misdemeanor charges is an extremely common tool in municipal and other misdemeanor courts (and in some felon courts on the lowest grade offenses such as marijuana possession). It is, from a policy perspective, considered a win-win for both sides; the state and taxpayers avoid the cost of processing the defendant through the court system, and the defendant avoids having a conviction on their record (often avoid even having a formal charge lodged). But whether or not to offer pre-trial diversion lies entirely within the prosecutorial discretion of the state’s attorney. It is an option that can be offered, but certainly is not mandatory.
Just as pre-trial diversion is a voluntary option that does not have to be offered in the first place, the decision on whether to accept the offer is entirely up to the individual facing the charge. There is no punishment whatsoever for declining – none – they will stand in the EXACT same position vis a vis the state as if they had not been offered pre-trial diversion at all, i.e. there will be a municipal offense that has either been charged, or is pending charge, with a one year statute of limitation running.
There has been a hue and cry that – gasp! – the program will be administered by – gasp! – a private company. Well, they always are. I have never seen a diversion program with an educational component that was not farmed out to a private or non-profit outside entity. That is simply how it is done; cities and individual courts are not structured and funded to have classrooms, instructors and curriculum for these matters. And, being as it is a discretionary option to resolve outside of the criminal process (most are contractual, not court compelled) it just does not make fiscal or judicial sense to have it run by the court or state.
As to the content suggested for this particular diversion program offer, it is precisely what you would expect to be offered under the circumstances. Pre-trial diversion at the misdemeanor level almost always involves a perfunctory remedial/instructive class in the subject of the offense. This is the case with defensive driving class to get out of a ticket, it is the case with anger management for assault and domestic violence, it is the case for shoplifting and solicitation programs as well. For the OccupyLA cases, it is hard to imagine a more appropriate subject than a free speech centered program, as that lies at the heart of why the individuals face the prospect of criminal process in the first place.
So, in sum, the offer of pre-trial diversion is but an extra option offered people that are facing the criminal justice system. It did not have to be offered, that it is should be considered positive not negative if the individuals are going to be facing the criminal system anyway. Whether or not one feels these individuals should be charged in the first place is a different discussion; since they do face the system, having an extra option should be cheered not jeered.
Lastly, a word about the “Free Speech” rights that are at issue here. The long and short of it is free speech has never been completely free nor absolute. Living in the west, and being still a little bit of a night person, I have seen a lot of the television reports and internet live stream coverage of the raids on various OWS camps including, notably, the infamous ones in Oakland and Los Angeles. I constantly saw protesters screaming about their First Amendment rights being trampled on. I have also seen a lot of very bright people I know repeating this mantra on Twitter, in discussion forums and in published articles. At least as to the actions that have been about the OWS tent encampments on public property, they have been wrong.
I support the intent and message OWS set out to propel into the public consciousness completely and with every fiber of my being. There is no more critical message right now than the burgeoning income inequality, financial suffering and human loss being caused by the rapacious elements in the global financial sector epitomized by Wall Street. That said, the simple fact of the matter is that there are, and long have been, time place and manner restrictions on free speech and that is what is at play here.
So, let’s look for a moment about what the real state of the law is regarding the tent encampments that OWS keeps screaming are protected by the First Amendment, because the simple truth is they most certainly are not if there are appropriate local laws and/or regulations prohibiting overnight sleeping and camping, as there have been in most all of these cases. These are called “time, place and manner restrictions” (TPM), and they are long engrained into the very heart of American First Amendment law.
The complete history of TPM restrictions is to long too go into in a blog post, but perhaps the key case for modern general TPM law is Cox v. New Hampshire, 312 U.S. 561 (1941) where the court stated:
Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.
….
If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constitutional right.(citations omitted)
Time, place and manner restrictions thus having been ratified by the Supreme Court into modern law in Cox, the issue then becomes how this applies to the issue of tents in the OWS encampment paradigm. Well, it turns out the Supreme Court has an app for that too. SCOTUS, in the directly on point case of Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984), addressed the free speech issues surrounding tent encampments on public property:
We need not differ with the view of the Court of Appeals that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment. We assume for present purposes, but do not decide, that such is the case, cf. United States v. O’Brien, 391 U.S. 367, 376 (1968), but this assumption only begins the inquiry. Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions.
….
Symbolic expression of this kind may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech. United States v. O’Brien, supra.Petitioners submit, as they did in the Court of Appeals, that the regulation forbidding sleeping is defensible either as a time, place, or manner restriction or as a regulation of symbolic conduct. We agree with that assessment.
….
The requirement that the regulation be content-neutral is clearly satisfied. The courts below accepted that view, and it is not disputed here that the prohibition on camping, and on sleeping specifically, is content-neutral, and is not being applied because of disagreement with the message presented
There is a lot of discussion in Clark that is spot on point with the OWS situation. Suffice it to say, it has proven to be decisive in nearly every state and federal court challenge brought by OWS, and so long as there is some statutory or regulatory basis for camping and/or sleeping prohibition at a given locale, it will continue to so be decisive against the tent encampments of OWS. And, as demonstrated by, among others, Federal Judge Cameron Currie in South Carolina yesterday, this logic will stand even for regulations and laws passed after the encampments started, so long as the proscriptions are content neutral.
In conclusion, the OWS protesters, well meaning as they may be, are flat wrong when they scream that their First Amendment rights are being trampled upon when cities and governments no longer tolerate the long term residence on public property. Similarly, there is nothing wrong whatsoever about a jurisdiction offering an appropriate pre-trial diversion program to folks that have been arrested in these dismantling raids.
That’s probably not the way you want to frame an answer–on anything–to OWS protesters.
All the points are well-taken. But if the state has no real interest in imposing punishment for these misdemeanors, it should seek to avoid the expense by offering a direct payment system, and capture the revenue for itself. The state is the aggrieved party, and though it makes no financial sense for the state to administer remedial classes, it doesn’t have a serious interest in the outcome of the “training”, anyway. So why divert potential revenue to private interests when the state is offended?
You’re right, as to the current state of the law. I consider this moving the Overton Window as to what constitutes free speech. The police and government are only too happy to thug up and further limit what little freedom we have left. The countervailing screaming you’re deriding is necessary to roll back the anti-freedom tide the 1% are pushing.
And, if you want to argue about it, think about this: 40 years ago, a whole lot of criminal cases got tossed because the warrant requirement was a requirement and hadn’t been riddled with exceptions that have swallowed the whole, and gun control was both widely accepted and unquestioned in responsible circles. Now, after 40 years of screaming, being derided as crackpots and nuts, being told they were wrong wrong wrong, and fighting, the warrant requirement is an unenforceable joke and the Supreme Court has declared the Second Amendment is a personal right, enforceable (in some circumstances) in court.
The wingnuts knew what they wanted, went after it and largely succeeded. You might take a lesson from their success. It seems the OWS screamers you deride have.
@scribe: This will not move the illusory “Overton window” for squat on the issue of tents and camping as expressive conduct, except for perhaps in the wrong direction. If the Roberts Court gets ahold of this, it will make it worse, not better. And the more these protesters belligerently fight and argue over their silly tents, the further from the critical inequality and bankster message they get, and the more working class citizens are going to be turned off and tune out the important message that is supposed to be being conveyed.
@David Waldman: But for the state to collect, it likely necessitates a conviction. The intent of diversion is to offer a non-punitive state outcome. How do they take fine money without an offense?
Legalities such as “time, place and manner restrictions” upon the First Amendment and all this other crap would be a little more convincing if the USA were still a nation of laws.
This type of thinking brings us such innovations as “free speech zones.”
OWS folks understand that they are engaging in civil disobedience and likely expect to face the music. Also that their claims that their First Amendment rights are being violated is just movement propaganda.
But arguing that anti-corporate occupiers should abandon their propaganda and be happy that they can pay to enter a corporate diversion program to teach them to moderate their militancy is kinda special.
You are doubtlessly right on the law. Not quite sure about the politics though.
@bmaz: I don’t know. How does the state collect settlements with no admission of guilt when it fines Wall Street firms?
@bmaz: Or how about a “fixed penalty notice”?
@David Waldman: Civil consent agreements and federal civil regulatory schemes.
@David Waldman: As to the fixed penalty notice, many county and local jurisdictions have done something analogous by redesignating most non-serious traffic offenses as civil in nature. But, that would almost certainly have to be done before the conduct, as since it is still quasi-criminal, it would otherwise run afoul of ex-post facto.
Clearly the provisions arrested and/or charged on are criminal in nature here. That said, I wonder if there is some environmental reg that could be utilized and handled administratively in a non-criminal manner? I don’t know the answer to that. I kind of doubt they have something handy in that vein, and if you want it to hold up, it has to fit some construct; but it is a decent question.
@bmaz: Alternatively, the state could admit it has no serious interest in what people absorb from the remedial classes they outsource, and simply collect the fees for the class directly and then… not hold them.
Who complains?
@David Waldman: I dunno, but you can bet someone will!! I think it could be argued that it is pretty much a bribe under those circumstances. There has to be some modality it is attached to that makes it reasonable. I actually like the enviro fine idea better if one could be found.
Interestingly, I contacted the lawyer that runs the diversion program about its curriculum and sources, and they seem to not want to respond….
I don’t disagree with anything you said here, but part of the point of OWS is the unequal application of the law – effective immunity for the wealthy and powerful while the 99% get hammered for petty shit.
I won’t criticize anyone who takes this offer, but I kind of hope most will demand their day in court with all the inconvenience and expense that means for the state.
I spoke with the people running the diversion program for the Los Angeles City Court, described in the LA Times article, regarding the scope of the diversion program that will be offered to the OWS people. It has essentially two components:
this is very useful info, bmaz, in helping us non-lawyers understand how things work.
of course, the MOST sensible solution for “the state” would be for it to be tolerant and patient and not waste public money on mass arrests, detention, gasoline, over-time, medical aid, and garbage trucks to smash protesters’ equipment.
the most sensible, legitimate, legal course of action for “the state” would be to let the protesters express themselves under very broadly interpreted free speech as was originally intended by the constitution.
but those approaches would be too sensible, to patient, too decent, and too much in keeping with the intent of our constitution for our political betters to adopt them in today’s brave-nouveau-america.
@orionATL: Well, at least in Los Angeles for instance, the camps were ruining the grass, defacing structures with graffiti, damaging trees by building structures in them, and there was a real problem with alcohol and drugs. Oh, and the encampment displaced a weekend farmers market that normally was there during weekend daytime hours. There were very real property damage, crime prevention and property damage issues, not to mention gross liability for the city government. So, it is really not all that simple. In fact, the reports I got back from people that personally visited the LA encampment was that it was getting very disgusting. It is not quite as simple as you let on.
So, when can we expect city officials who authorized and/or countenanced military-level violence against peaceful political protesters to be required to attend classes, or perhaps a helpful Re-Education Camp, to rectify their deficiencies as servants of the people?
@Story of O: My understanding as to LA is that, with only a few exceptions, it went pretty well and there was very little violence. So, I think that description is emotionally charged, and may have some bearing as to other locales, but does not particularly ring true overall for the Los Angeles action. Above and beyond that, militarized policing, and liability therefore, is a valid discussion point, but is not really the point of this post.
@bmaz:
i was aware of that info; my argument does not depend on “simplicity”.
take for example, a police strike in a major city.
can this do anything but “endanger public safety” (make some crime easier to commit, more likely to be committed, or get away with)?
do we arrest the police for endangering public order? of course not.
why not (other than because they are all heros) ?
it’s because they are sanctioned to strike and we agree to tolerate the consequences to allow the right to be exercised.
and speaking of disgusting.
how about a strike by garbage collectors.
all over a large city there will be bags and bags of rotting garbage – rats, germs, feral dogs.
public health hazard? sure, you could argue that, but does anyone?
no.
why?
because we have rules (laws) that not only tolerate but sanction such activity.
a coal miners strike in southwest virginia? jackrocks all over the roads. huge truck tires going flat everywhere. rocks smashing thru windows, fights, shots fired.
the union heads are fined huge sums of many daily, but the strike goes on. in the end, an agreement is reached and the fines are rescinded.
a certain amount of violence, property destruction, untidiness, and dirtiness goes along with protests and must be tolerated
else arguments to the need to “protect” public order, public health, and public safety arguments will slowly dissolve the first amendment right to public protest.
that is just was had been happening these days with the occupy movement in many big cities, but not in all.
why not all? officials tolerance combined with officials fear of public electoral retribution.
the most positive thing that can be said of the calculated, officially sanctioned, police thuggery, mugging, and intimidation that has accompanied many of the occupy suppressions is that it puts the protesters in a more positive light and the police in a more negative light – emphasizing what a nytimes article on a recent sunday referred to as the increasing militarization of our police forces.
@orionATL: as far as I am concerned, I do not particularly have much tolerance at all for violence, property destruction and other sundry lawlessness, and if that is the way people want to conduct themselves, they are properly dealt with in the criminal justice system. What that describes is rank criminality, not freedom of speech.
@orionATL: On a better note, I saw in another thread that “your son’s went to James Madison”. Is that JMU the university? If so, that is where my wife went to college. Great place.
I got the impression that it was the combination of having to pay for the diversion program with the ‘free’ in ‘free speech’ that was getting some people. (I’ve never heard of a diversion program that didn’t cost the participant something.)
@bmaz:
bmaz, the part of the City Hall ‘lawn’ they were on had almost no grass to begin with, because it’s surrounded by dense-foliaged trees. I know; I walked by there a couple of weeks ago (due to the subway being down). The part where there’s grass is mostly on the north lawn, the one they weren’t using. And it’s not much of a lawn anyway. (They haven’t been watering that end, either.)
These are the same arguments made by supporters of the recent proposal in Alabama to let nonviolent offenders opt for one year of church attendance in lieu of formal charges/trial. “If you don’t like it you can CHOOSE to go to trial instead, no biggie.”
@comfychair: That would be inappropriate; this offer is completely appropriate in every regard. I have done criminal defense and civil rights plaintiffs work for the better part of 25 years as a lawyer. and this is a pretty plain vanilla type of diversion offer. With the possible exception of that many are offered as completely take home or internet based now. I actually think the live classroom portion of this program is an outstanding idea not only for the people attending, but to the instructor who could interact with them and report back as to that experience.
By the way, you missed the best option of all: Don’t get your ass arrested so as to have to deal with the criminal justice system.
@P J Evans: I have heard there are sparse spots from others too, especially in the winter, but that there was some grass damage. They stand very firm behind the description I gave as to the other elements though.
@bmaz: “By the way, you missed the best option of all: Don’t get your ass arrested so as to have to deal with the criminal justice system.”
I recall that someone dealt with this before, he wrote:
“While confined here in the Birmingham city jail, I came across your recent statement calling my present activities “unwise and untimely”
…
…
…
“One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”
http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html
==========
“If torture produced national security, the regimes in the Middle East would be the safest places in the world.” Reem Bahdi, a law professor at the University of Windsor
@bmaz:
They probably did displace the farmers’ market from City Hall, but that could have been moved over to the mall on the other side, which is not used as much as they hoped. (They’d probably get more people there, it has space. And on a weekend, the only people downtown are the locals, not the politicians. There’s not much downtown on weekends.) As to the rest – I’d think they had some of the downtown homeless there, too, and some, but not all, of them are problems. The graffiti I’m aware of was on the fence around a fountain, and possibly on the fountain itself, but I only know what the city said.
Not every problem can, or should, be laid at the feet of OWS, although it’s certainly easier for the establishment to do so.
@jerryy:
very well said.
these are important quotes to bring to our attention right now.
tx
@bmaz: Preachers in the Alabama town thought the ‘sentenced to church’ thing was appropriate, and I still don’t see a meaningful distinction between your opinion on this and theirs on that.
“Don’t exercise your rights, and we’ll have no reason to violate them.” That doesn’t trigger your gag reflex, not even a little? Really?
@bmaz:
it was indeed jmu, one of the best teaching universities (that’s teaching with a “T”) in the country.*
*prejudice freely acknowledged
@jerryy:
jerryy,
permit me to add a few more words from rev king’s letter:
martin luther king – letter from the birmingham jail
“… I am in Birmingham because injustice is here…
…Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.
You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative…”
@jerryy: Here is the key difference between Dr. King and the OWS crowd whining because they were given yet an extra option in how to deal with the circumstances:
What bugged the crap out of me was the complaining that they were given an additional option they did not have to be offered. That is a far cry from “willingness to accept the penalty”. That is my point. That and that they are blatantly wrong in saying their 1st Amendment rights are violated by the prohibition of tents and camping. That law is VERY established and directly contrary.
@P J Evans: There was also the drugs, alcohol and damage to the trees. I’ll be honest, if it were my city, I would not want 400 tents encamped there. Take a look at this essay by the semi-official OWS liaison at DKos. One of my colleagues in LA was at OccupyLA regularly, if not every day and reported the same conditions and also noted that there was simply a lot of filth and unhealthy people and unsanitary conditions by the time the end came. Along with a fairly anarchist/violent/destructive group that was very belligerent; same as this guy at the link notes. I think the city had every right and just cause to terminate the encampment.
I also meant what I said about the importance of the OWS message and movement in the post though. I simply think there has to be some rationality and collaboration/compliance with the law and civil norms in accomplishing the message.
@orionATL: My wife went to JMU on a music scholarship, apparently they are very good in that too; ended up with a great overall education.
@bmaz:
yeah, it’s just a great university for undergraduates – or was. nothing in our society is stable these days, so for all i know some politician or univ president could have decided to turn it into a cal tech – or a miami or georgia :)
but we (parents) were very pleased with the outcomes and the university.
So if at some point in the future there’s a proposed law that would make authoritarianism a felony, which side would you stand on? LOL (head asplodes)
@comfychair: I try to comply with the law and will represent whatever side I am paid to represent. What I do on my own, well I just call them as I see them.
@bmaz: I would point out that Dr. King was able to put in the words we today find beautiful the thoughts that many had then that were considered ‘whining’ by those in charge. The folks marching often made the same sort of charge that some right was being violated in spite of established law to the contrary.
I am not trying to be contrary for the sake of contrariness, (I think that is mental masturbation) but we have a history of law being used not to lift people but to benefit the upper echelons. As long as the OWS folks can hold out, I can use the jury nullification idea to give them some latitude, plausibly poetic license in their claims.
@orionATL: Go fer it!
@jerryy: They are gonna do whatever they are gonna do; I have no voice or control; so what I say has no effect in that regard. From a legal point of view though, it does bug me when I see them screaming that their rights are being violated because they are not allowed to camp wherever they want for however long they want. The law is actually pretty clear and long established in that regard and, no, I do not think that is on anywhere near the level of segregation laws that violated equal protection on its face.
Above and beyond that though, I am absolutely convinced that constant battles with city officials, police, and the public over the right to pitch tents, as opposed to the real point of the OWS message against income inequality and banksterism is a self defeating prophecy. It will slowly rot the positive message and sour the greater part of the public that you need engaged and on board. A few hard core people in tents is not going to win shit over the long term, you need the masses. And the masses I know are very quickly souring and losing interest over the belligerent tent antics. I concur.
@bmaz:
“whining”
How charmingly ineffable you are.
I’ll make a note that in future, all civil disobedience must be done with civility. The only riots will be Brooks Brothers riots, no others need apply. Indeed, Rosa Parks should have just sent a strongly worded letter. The bus company would have kindly changed their policy after being so shamed, and the cultural upheaval in the South would have been a quiet after-dinner burp.
@bmaz:
the central problem with the law, bmaz, is that it is of differing textures: squishy for the wealthy; extra- firm for homeless such as those who attached themselves to the ows protest sites.
squishy also for the protesters themselves and their right to express their opinions publicly,
and permissively very, very, very squishy toward seriously abusive police conduct amounting to mild torture. in fact, nothing could more clearly signal this squishiness better than the serious mistreatment which the police in some cities visited on demonstrators.
were jamie dimon ever arrested, would you expect him to be “handcuffed” using the sort of long, “pull tite” nylon ties (used in san fran, i believe) which one places around large AC ducts to hold the parts together, cinching them tight with pliers?
would you expect jamie dimon to be placed in a bus and not allowed to pee, except on himself, for seven hours?
would you expect jamie dimon to be placed in a 6×7 cell with 40 other people and a single toilet as jane hamsher was?
this is not necessary law and order; this is abusive use of state police power to suppress dissent under the pretext of protecting law and order.
again, the point i made earlier is central: we tolerate some actions that may “harm” some public inteterest -like strikes, but drop the hammer on others that are pretty much identical in nature but unprotected by law – like ows protests.
that this action should be treated as protected speech is clear from the very nature of the name – “occupy —-“.
a corporation can dump millions upon millions of dollars into a political campaign to defeat a public interest at odds with their corporate intetest, but individual human beings cannot band together temporarily to support each other and express their joint concerns?
it’s no wonder uber-bama and bush both have worked to outfit the police as if they were soldiers in iraq.
ows is just the first mild wave of the protests that are coming.
@orionATL: Yeah, I don’t think that wave of the masses is coming to the rescue of these people and their tents; in fact I would bet good money that, while the majority of Americans actually support the OWS message, the VAST majority think this tent nonsense is repulsive and negative. That percentage will grow the longer they make the protests about their tents and making permanent camp on public property designed for the quiet use of all, and not about the real message. Did you read the link at DKos I gave by the OWS guy himself who admitted THEY were the reason they got evicted in LA? Did you know that due to the intransigence of the violent and destructive portion of OccupyLA they refused alternative space, including office space to conduct their protest? Yeah, I do not think all that many of the 99% are going to be overly impressed with those antics. The OWS leader himself said just that. It is a failing message if it does not evolve above and beyond such negative conduct and self defeating belligerence. Personally, I am interested in seeing the real message succeed, not be dragged into the mud.
@bmaz:
this has been a most interesting discussion for me. i have not read another like it.
your stating a position in your post and then persistently defending it has created the backbone of an intetesting discussion.
i do not expecy any “wave of masses” coming to ows’ rescue.
there will be no “rescue”; none is needed.
ows has done its job ( though i would guess, not intendedly).
there is now a model for contemporary protest, something that was badly needed.
my point was not about “rescue”, but about the inevitability of other mass protests in this country.
they will happen, and they will not be neat, and nice, and polite – thst is never what revolution is about.
you should have lots of business other than drugas in the next ten years.
@bmaz:
… and I would question whether the law prohibiting tents is unjust. The income inequality under protest is unjust. The ability to make permanent residence in public space is not. I so not think it reasonable or just that anyone with a strong opinion have the ability to indefinatly occupy a public space any more than I think a government can indefinatly detain potentially dangerous individuals. In both cases there are ‘reasonable’ limits defined by law. In either case there may be different interpretations of ‘reasonable’, rights have limits.
@orionATL: Well, something has to happen. I think. But, on the other hand, I am not sure. Society is so desensitized, politically polarized and consumeristic, that another side of me is not sure that type of action can even metastasize any more. But, assuming it could, why not channel that power in numbers into a different political climate? Despite what anybody says, sheer numbers of voters can and will still control electoral politics. If you have the numbers, you will get the action. I don’t know; but while I agree completely with the message, I am pretty much a Constitution and rule of law guy. I would like to see the movement take over the process, not destroy it through anarchy. Maybe that is naive, I dunno, but I am getting old and kind of set in my ways these regards. We shall see I guess.
@bmaz: And for this they are charging a “punitive” $355. Sounds like a state sponsored cash cow for the private corporation to me.
As for the “legalities” you hide behind how about a little morality and common sense thrown in. Laws are made by people that want to keep other people “in line”. Laws can be enforced or not depending on the “pull” that some people have. Banks, Oil companies etc. do not fear the “laws” that have been made to keep them in line because they know that the prosecutors and government officials will not enforce the laws.
As a protestor that has been put behind bars more than once because I refused to admit “guilt” over trying to stop the Seabrook Nuke edifice I can tell you I was given a number of options to “avoid” persecution but I refused, rather I wanted to put the state enablers through the trouble of prosecuting me.
What does “free speech” have to do with anything here? The pertinent part of the First Amendment OWS is dealing with is “peaceable assembly”, namely, “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Why should they pay for lessons in a part of the Constitution they’re not dealing with? Do they get lectures on quartering soldiers as well?
@Tom Allen: Actually I believe it is a crafty way of the greedy lawyers to refresh their own memories about the constitution and get the public to pay for it.
@nomolos: So, should Jerry Sandusky also have his charges ignored because Banksters are not prosecuted? How about the guy from the run down motel who murdered Ronni Chasen? Just how much criminal conduct should be overlooked because not enough rich and powerful people are being prosecuted to suit your fancy? At what point does one stop this false equation you have made out?
So, you were given options and took one, but you think the options given these putative defendants should be reduced? Really? Of what right or place is it for you to so decree? Why should they not have the maximum number of options? Then they can, like you did, choose how they wish to proceed, what is wrong with that? Also, did you actually read the post? Because the reason it is farmed out to a private entity is explained in depth.
@Tom Allen: As explained in comment 12 above at this link @bmaz: The course is centered on First Amendment law, which, of course, contains and includes Freedom of Assembly as well. However, that is, despite your claim, not the basis of action or response at issue here. Both OWS and the government have stated that the tents were expressive conduct, which puts the consideration within the ambit of free speech, not assembly. Either way the Constitutionally trained instructor will be able to deal with and discuss the issues with any who choose to participate in the program. I think that addresses your concern.
@bmaz: I made no false equation. You, however, made false assumptions. I did not mention anywhere that criminal activity should be overlooked. In fact I intimated that laws should be enforced equally.
Yes I read the post and yes I looked up the private organization and the lawyers involved. Real estate lawyers, many of them, corporate lawyers, many of them, not one public defender did I find. I also found that the Pres of the organization garnering the money is a lawyer in LA…coincidence? I leave that for the lawyers to decide.
@bmaz: And the Patriots will win……
@nomolos: Hey, Trash Talk is coming if you are talking about those Patriots!
Perhaps I did make a false assumption in that regard; there have been so many of those kinds of comments, I may have read that into yours. And I fully agree with you there should, nee must, be better policing and prosecution of those that have created this mess. I will say this though as to general crime, the rich get charged same as regular people for the most part, though it is true they can marshall very good defenses. That does not hold true, however, on financial and corporate crimes, which I think may be a substantial part of your and others’ point.
@bmaz: Hey, Trash Talk is coming if you are talking about those Patriots!
Interesting. I was talking about Bills’s Boys but I also think that the OWS protesters are the “real” patriots. The financiers, money lenders, corporate whores and government lackeys that got us into this bloody mess are not in any way patriotic, their driving force and loyalty is to greed.
By the way. Beannachtaí an tSéasúir
@nomolos: Heh, I kind of agree about the protesters being patriots, and am serious as to how important I think the OWS original message and point is. I do wish it could evolve into a new form and get back to that message. I know a lot of very good people are trying to get that going, I have talked to several of them.
And top of the season to you too! Gotta go make some Trash now!
I think the diversion programs are popular with the establishment because they offer an opportunity for retired judges and well connected attorneys to rack in some really big bucks for little effort.
@bmaz: You wrote: Despite what anybody says, sheer numbers of voters can and will still control electoral politics.
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Sheer numbers may get someone elected, but the system is now so corrupt that that alone is close to useless to the 99%.
I can’t express the feeling of sadness that comes with the conclusion I’ve reached that the only option left to pull this country back to any semblance of a representative democracy will be massive non-violent civil disobedience. Whether the populace has/will have the will is another question.
You wrote: I don’t know; but while I agree completely with the message, I am pretty much a Constitution and rule of law guy. I would like to see the movement take over the process, not destroy it through anarchy. Maybe that is naive, I dunno, but I am getting old and kind of set in my ways these regards. We shall see I guess.
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There has to be some means to get one’s message out. If governments (fed, state,county,city), along with the corporate media, can effectively strangle the message what point is a constitutional protection of free speech?
As for anarchy, I don’t think we’re anywhere close to anarchy (except from the authorities). I don’t even think I’ve heard that kind of message from anything I’ve read or seen.
Speaking of age, I’m 69.
To paraphrase Jefferson: When you make peaceful revolution impossible, you make violent revolution inevitable.
Thanks for the legalities, but I just don’t buy the nitpicking. These people ARE assembling to seek redress AND a return to the rule of law. Fuck the legal mumbo jumbo
I’m sure this opinion will be applied with an even hand; banksters likewise will be forbidden to sleep in public parks.
Bmaz,
the problem is the Occupy kids are…kids. They are stuck on ‘Occupy’ needing to actually occupy a piece of dirt to appropriately get their message out, not getting that they are ‘occupying’ the public narrative and that is the point. We had arrests in NY a week ago trying to occupy a lot owned by Trinity Church that is more than a mile from Wall Street near the Holland Tunnel. A haven for exhaust fumes without the nearby public services Zuccotti had, e.g. the McD and other friendly public bathrooms, etc and absolutely no pedestrian traffic, much less financial sector traffic. We actually dodged a bullet when Zuccotti got swept. The west side of the park was inhabited by not so good people doing things I don’t want to write about here. Occupy security was doing nothing about it even though it violated stated rules for behavior at the park to say the least. More generally, the kids and movement grownups are going off message IMO. A lot of personal issue and meaningless political actions and planning actions ‘for theatre’ that are ‘arrestable events’ that actually aren’t much as theatre or art go and are more public nuisance than poignant political statements, e.g. I think you can make a better statement re Goldman Sachs than 60 scruffy people with drums dancing around the lobby of their building singing ‘occupy Wall Street.’ I’m hearing a lot of clueless stuff being planned. We’re going to lose a lot of the public. I’d give you some ‘listen to this crap’ in private conversation. Merry Christmas, man.
@stephen dossick: This is VERY much what I heard from multiple trusted sources about the LA and Denver camps near the end. The physical camps coalesced people and helped get the initial message out, but the message has got to stay focused on Wall Street, income inequality and rapacious financial and corporate greed. Instead, it seems the main fight is over the right to maintain commune camps in urban public space. As I said, that was effective to get going, but becomes counterproductive and draining after a while. When the focus is more on the camp than the message, you have started losing.
I’m trying to catch up after Christmas festivities, so I haven’t read through the comments yet, and maybe this has been covered.
First, thanks for this educational post. My first reaction was that it was the governing authorities who needed the lectures on the First Amendment, not the OWS folk.
Second, I guess part of my visceral reaction was the use of the word “lectures,” which implies a hierarchical, badgering kind of exchange that carries with it the subtext, “You are dummies and idiots. We are going to teach you how to follow instructions and shut up.” However, having read the post, the “educational program” *could* be administrated in a friendly manner, with an attitude like “here are some aspects of the law that you may not be familiar with, and this is what you can do, and that is what you can’t do.” The “educators” could cooperate with the “pupils” to produce an OWS booklet as a “guide to occupation do’s and don’ts,” IOW here’s how your demonstrations can work better without conflict. After all, what many OWS camps feature, IIRC, is mutual education.
But I fear that many of these “educational programs” will be hostile and confrontational, coming from an “obey or else” position. I hope this fear is baseless.
Bob in AZ
@Bob Schacht: Bob, as I described at comment 12 above, I actually spoke to one of the head AJA in California that handles the diversion programs for LA Municipal Court. The program planned for these cases has two components, the first of which is done at home and is very standard about the criminal justice system and why you should not be in it kind of rote stuff. The second component, however, is a seminar type of activity that will be live and taught by either a law professor and/or attorney specializing in First Amendment law and will detail the nuances that many folks are likely not truly aware of and will also permit give and take questioning and discussion. I actually think this is a fantastic deal for both sides of the equation, as I think you intimate.
@bmaz: and you don’t make friends in the public getting in the middle of a longstanding fight between two churches where I read in the NYT an occupier telling the rector of the richer church who pleads that they’ve given to the movement, “we want more,” i.e. their lot. I go to meetings and hear of planned actions that are self indulgent, meaningless re what the movement is purported to be about and from a PR standpoint completely counterproductive.
@scribe:
“40 years ago… gun control was both widely accepted and unquestioned in responsible circles.”
40 years ago, 1970 Joseph Tydings losses reelection, for a number of reasons, attempting to implement gun registration among them.
An article from 1975, http://www.saf.org/lawreviews/zimring68.htm :
“The proposals, encountered stiff opposition from industry and gun-user groups, and the regulations adopted in 1958 were somewhat less ambitious: the record requirement was set at ten years, and serial numbers were required for all firearms except .22-caliber rifles.” – When commenting on proposals made for gun control in 1957, so 40 years ago it seem most people were not for gun control as some wanted to implement it.
Polls done during the 1970’s found 60%+ were against banning handguns. Around 50% were for record keeping of gun sales by gun dealers. And only about 50% thought stricter laws would prevent crime. The same percentage by the way felt gun registration might lead to confiscation. http://davekopel.org/Media/MediaBias.htm speaking about Under the Gun: Weapons, Crime, and Violence in America
Gun control as many (but not all) of its proponents today call it was not widely accepted. Because when some people say gun control those of us who have read those same people’s other words and heard them speak know they mean gun prohibition and confiscation.
Your qualifier “in responsible circles” is a transparent attempt to color those who disapprove of some of the attempted bans and/or registrations of private firearm ownership as being unreasonable. Gun control, in those circles, is simply a phrase they use rather than saying gun ban.
“The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.” – Anatole France.