For very good and valid reasons, Americans understand the extraordinary importance of the First Amendment to the U.S. Constitution, the right peacefully to assemble for redress of grievances.  That, of course, is the rationale for the Occupy Wall Street (“OWS”) movement by which thousands of protestors are encamping in various public places around the country.

Our courts recognize few exceptions for the placing of limits on this exercise of free speech and in fact have themselves studied the issue in cases unrelated to OWS.  Courts recently have been debating whether limits on speech enacted by legislative bodies are constitutional.  As an example, a law prohibiting candidates for public office from lying about their opponents’ voting records during campaigns is drawing judicial scrutiny as an unconstitutional prohibition on protected free speech.  This matter is a serious one and whether we agree or not with OWS protestors (or tea party assemblies) we need to treat the subject based on constitutional principles rather than our own political predilections.  So why have the authorities suddenly stirred themselves to action to clean out OWS sites?

For one thing authorities have suddenly recognized some very important public principles:

First, public facilities are being taken over for the benefit of a few people as part of their attempt to advance solely their cause.  Parkland in central cities is very scarce and has been misused by groups who pitch tents from end to end in these parks and prevent (and in some instances intimidate) ordinary citizens from using public land.  Often these tent cities are abandoned during the day while the occupiers leave and go about their regular lives (going to work, going home, attending entertainment venues, etc.)

Recently, there has been a major spike in violence including shootings.  In Oakland protestors succeeded in shutting down the ports, which are a major, job producer in that city.  According to the San Francisco Chronicle “OWS protestors gathered up for their general assembly meeting and withdrew a resolution calling for future demonstrations to remain peaceful.  A faction of the protest group has advocated violence as a ‘diversity in tactics’ approach to demonstrating.”  Deaths have occurred in other cities as well, including Burlington, Vermont.   Secondly, there is an important public health issue that has arisen.  Protestors have been overwhelming the sanitary facilities at nearby businesses, cleaning and relieving themselves at bathrooms not built for such volume.  Finally, city authorities who have appeared to be looking the other way see that they have to take action.

The Weekly Standard on November 5 noted, “[a real] occupation of Wall Street isn’t going to happen.  Instead, it is something under which the left marches.  For the left, all politics is about occupation.  One country, one class or one group takes from another.  Politics is seen as national warfare or class struggle, or one group grasping for advantages over some other.”

Moreover, Congressman Denny Rehberg summed it all up with an idea to respond to OWS with a call to liberate Wall Street.

We’re over-taxed in small business, over-regulated, and over-litigated, and you can pick and choose which ones you want to address, but the government should be trying to lessen the tax burden, lessen the regulatory burden, and get the litigation out of the way,” Rehberg said.  More broadly, Liberate Main Street provides a rubric for a conservative agenda that contrasts with Occupy Wall Street.  It would be an agenda that works to foster opportunity, not envy; that seeks change through democratic processes, not mob pressure; that encourages enterprise, not resentment; that enlarges the sphere of personal and civic freedom, not big government; that liberates Americans’ energies, rather than pandering to their weaknesses; that acts to fix Wall Street’s problems, not to demonize American business.

That violence has been on the agenda of elements within the OWS movement from the get-go is really no longer debatable.  Ironically, the right peaceably to assemble is being compromised by those who want to turn thoughtful assembly into aimless mockery and occasional violence not just because of Wall Street, but also in support of every demand on every radical wish list from abolishment of all debt to the end of capitalism, corporations and government itself. Throw in a cheering section here and there for Chavez, Castro, and a sprinkling of crude anti-Semitism, and you have a movement that isn’t a movement at all, but rather a grand gripe conclave where those with real concerns and legitimate grievances are elbowed aside by those with agendas that serve no constructive purpose.

The time has come for law-abiding people of the left and the right to prevent peaceful assembly from being hijacked.  Police, as happened in New York, cannot standby and look the other way.  Finally, on November 15^th, the Bloomberg administration stirred itself and closed Zuccotti Park (itself not a public park) because of the threat of violence and serious concern over public health.

We frequently write about American Exceptionalism by which we mean the unique opportunity our citizens have to legitimately pursue their dreams free from interference by government.  This kind of opportunity cannot exist without the rule of law, which in the case of America is grounded in our Constitution, the centerpiece of which is the Bill of Rights.  If we Americans want to maintain and protect our Bill of Rights  (from which our right to peacefully assemble derives), all citizens must respect and vigorously support law enforcement that protects both the rights of the assembled as well as the rights of the communities in which these assemblages take place.

By Hal Gershowitz and Stephen Porter