Occupy and the Tea Party Should Inspire Us to Study the Right to Organize and Protest

The Tea Party and Occupy Wall Street movements have made the right to protest and organize an important legal topic. Thus, it is probably good for all those interested (whether directly or just intellectually) in these movements to familiarize themselves with their first amendment rights to petition the government -- as well as to familiarize themselves with the limits of those rights.

Obviously I have no knowledge whatsoever as to whether these protest movements will lead to any additional arrests and/or litigation of protester first amendment rights. If I am reading the newspapers correctly, with the exception of the 700 arrested on the Brooklyn Bridge in a September protest, for the most part, both groups have relatively enjoyed the protection of their first amendment rights, although there are certainly indications of potential flair ups between the protesters and the Mayor Bloomberg administration.

My recommendation that we use these events as an occasion to study our first amendment rights is not primarily based on a notion that disputes over first amendment law will arise. I certainly hope not. In fact, when listening to some conservative-oriented media commentary on the Occupy Wall Street protests, I have been particularly pleased to hear that although they oppose or dismiss the Occupy Wall Street movement, they recognize the participants' rights of association, assembly and assertion.

On the contrary, I think that these protests have not yet inspired excessive legal disputes is even more of an occasion to study first amendment jurisprudence. I envision, only in part, that the mass study of first amendment jurisprudence would help prevent future dispute.

The study of First Amendment jurisprudence will lead to an appreciation on the left and the right of the role of protest in the American Constitutional tradition and assure that Americans part of these various movements are able to recognize that they share a Constitutional tradition that encourages citizens to speak out on issues of importance.

Although I haven't had occassion to study much First Amendment law since law school, I came across a Spring 2002 article by Steve Bachmann, entitled "Access to Justice As Access to Organizing" that identifies the major 20th century first amendment cases, thereby effectively creating a study course on one's right to petition his or her government, and one's right to protest. (The article's citation is: 4 J.L. & Soc. Challenges 1.)

Bachmann's article has two thesis. First, he argues that "access to justice is less a function of action to the courts than it is access to organizing because justice tends to go to those who are organized." Second, he argues that the right to protest and orgnaize is "greatly dependent on the Court's perspective on property rights versus first amendment rights, and other associational rights."

More importantly for this article, however, he proceeds to address this by presenting four phases of associational law during the 20th century, and particluar casees that make up those phases. In a subsequent article, I will spell out the course that I see coming out of his article.