by Charlene Smith
President Barack Obama has remained silent about violent police actions to remove Occupy Wall Street protestors across the nation whether New York, Oakland, Chicago, Los Angeles or elsewhere. As president, Obama should be the primary defender of the Constitution, yet he remains silent as violent police actions against peaceful protestors take place.
A friend wrote from London after the 1am raid on Zuccotti Park in New York to evict Occupy Wall Street protestors: "Seems like the U.S. police are resorting to measures more reminiscent of a dictatorship. I hope Obama is happy!" How similar that early morning raid was to those in South Africa during the dark days of anti-apartheid repression when police would conduct raids during the early morning hours knowing that their victims would be groggy and fearful in the dark.
New York's Mayor Bloomberg, who claims he is a defender of the constitution's First Amendment, used the health excuse we heard from the Oakland mayor for her attacks on Occupy Wall Street protestors. If Mayor Bloomberg has suddenly developed an interest in the health of New York residents he may want to do something about the New York subway, which is a filthy, poorly air-conditioned sewer that millions of New Yorkers are forced to use daily, and sometimes skirt rats the size of cats.
Bloomberg said: "No right is absolute and with every right comes responsibilities. The First Amendment gives every New Yorker the right to speak out -- but it does not give anyone the right to sleep in a park or otherwise take it over to the exclusion of others -- nor does it permit anyone in our society to live outside the law. There is no ambiguity in the law here -- the First Amendment protects speech -- it does not protect the use of tents and sleeping bags to take over a public space. Protestors have had two months to occupy the park with tents and sleeping bags. Now they will have to occupy the space with the power of their arguments."
Bloomberg is wrong in his views morally and legally, the U.S. Constitution, Amendment One says:
" Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Originally, Wikipedia informs us, the First Amendment applied only to laws enacted by Congress . However, starting with Gitlow v. New York , 268 U.S. 652 (1925), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the First Amendment to each state , including local government .
In United States v. Cruikshank , 92 U.S. 542 (1875), the Supreme Court held that "the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States." For most of the 20th century tests to the First Amendment were about those espousing socialism or communism, most were defeated. There were challenges to burning draft papers during the Vietnam war, but the Supreme Court enshrined the right of protestors to do this, even the right to wear a jacket saying "Fuck the Draft" in the corridors of the Los Angeles County courthouse In Cohen v. California , 403 U.S. 15 (1971), this act was seen as legitimate comment and not punishable. Even burning the flag has consistently defied tests to view it as desecration.
The right to petition was an echo of the English Bill of Rights 1689 which, following the Seven Bishops case, stated it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.
It's worth noting that attacks on the First Amendment by Congress or local government have always preceded necessary changes in law -- the people have led, and local or federal government have always resisted. For example, in 1835 the House of Representatives adopted the Gag Rule , barring abolitionist petitions calling for an end to slavery. In 1865, 30 years later, slavery was abolished.
These freedoms are not ours alone; they are beloved in every nation that calls itself democratic.
"We don't want to make this about police and protesters," said Stephen Squibb, an organizer with Occupy Boston, "It is about jobs and other things. That has been our message for two months and we are going to keep saying it." The fat cats in New York, Washington and elsewhere have jobs, they have stretch limos that drive past the unemployed, they don't care today, but someday they will be forced to stop, get out and speak to those with banners on the sides of roads.
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Charlene Smith is an award winning journalist and writer. Her authorized biography on Nelson Mandela, "Mandela" is a best seller and "Mandela in America" will be released in 2012. She is presently writing a book, "America the Overmedicated," on (
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