Tuesday, November 15, 2011

A Treatise on Breaking Laws during Protest

Definition of TREATISE : a systematic exposition or argument in writing including a methodical discussion of the principles involved and conclusions reached.
*Note: I have added website links in place of citations. In several places, I have used Wikipedia, but only where such links provide a nice, readable, well-reference summary of the topic.

There is a lot of debate going on about the Occupy Wall Street protestors getting arrested and worse under the reasoning that they are breaking laws. These broken laws include Pedestrian Interference, illegal camping, and more. Not only are these laws being used as an excuse to take away the right to effectively protest, but many people make comments online similar to this: "If you are going to break the law, you get what you deserve."

The pain that these comments cause me is almost indescribable, but I will attempt to do this, as well as explain the reasons behind the pain.

First of all, I am going to approach this from a historical aspect. In the past, there have been many laws that were in effect in the US that by today's standards are simply expressions of the bigotry and discrimination of the "Legal Majority". This includes, but it by no means limited to:

Women's Suffrage: According to this site, a website outlining historical activities "On July 14, 1917, Amelia Himes Walker was arrested and jailed for picketing the White House in the suffrage cause. She was one of 16 women arrested that day and sentenced to 60 days in the workhouse for "obstructing traffic.""  Furthermore, it states "The traffic obstruction charge was a shaky pretext. The women were political prisoners, of course, and they knew it."

Sounds familiar, doesn't it? Is anyone going to argue that women's suffrage is not a "duh" movement by today's standards? And what is the difference between making sure that men could not subjugate, through legal and financial means, the rights of women to be free and independent and making sure that corporations, in the same way, cannot subjugate the "non-wealthy" of this country?

On a final note, one of the banners that the Silent Sentinals of the women's suffrage movement carried said "We shall fight for the things which we have always carried nearest our hearts--for democracy, for the right of those who submit to authority to have a voice in their own governments." I think that can be directly applied to the protests going on right now.

Black Suffrage: Though, at the time, blacks had legal freedoms that women had lacked during their suffrage movement, blacks suffered many indignities revolving around the segregation and Jim Crow laws, as well as the discriminatory practices that blurred the edges of legality, but were largely ignored or outright supported by the legal system.

The protests for both groups often turned violent, not because of the protestors, but because of the tactics used by police and opposition to the movements. The Civil Rights movement was, by and large, more violent, either because of the higher percentages of male protestors (eliminating a protective attitude that may have come into play with women) or because of the greater outrage at the protests and protestor goals themselves.

"Parks was arrested, tried, and convicted for disorderly conduct and violating a local ordinance." Local ordinances and "disorderly conduct" are fabulous excuses for taking away the right to peaceable protest.

"When Parks refused to give up her seat, a police officer arrested her. As the officer took her away, she recalled that she asked, "Why do you push us around?" The officer's response as she remembered it was, "I don't know, but the law's the law, and you're under arrest."(Rosa Parks Interview, Academy of Achievement, 2 June 1995, accessed 13 November 2011.) I will address the officer's attitude below, regarding the psychological perspective. However, there is little stretch of the imagination to link the atrocious behavior of police with the "It's just my job" attitude that was so common in the Nuremburg Trials of Nazi officers. ("Superior orders (often known as the Nuremberg defense or lawful orders) is a plea in a court of law that a soldier not be held guilty for actions which were ordered by a superior office.")

Even when it is apparent and planned for a protest to occur peaceably, that isn't good enough for those who wish to punish the protestors. "After careful planning and training, nine members of the NAACP Youth Council — Meredith Anding, Samuel Bradford, Alfred Cook, Geraldine Edwards, Janice Jackson, Joseph Jackson, Albert Lassiter, Evelyn Pierce, and Ethel Sawyer — attempt to use the white-only Jackson public library on March 27. They sit quietly at different tables reading books that are not available in the "colored" library. When the nine refuse to leave, they are arrested for "Disturbing the Peace"."

Additionally, there is this: "During the next few days images of children being blasted by high-pressure fire hoses, clubbed by police officers, and attacked by police dogs appeared on television and in newspapers, triggering international outrage." Apparently, young people being attacked has become a blame-the-victim situation in the Great US of A.

Again, how poignant that such historical events should so closely match the goings-on of today's protestors and the police that arrest them. One wonders if it is a matter of using what they believe works, or if it is lack of creativity, or even lack of any REAL actions available, that causes the established system to use the same tactics over the course of an entire century.

Secondly, I am going to approach this from a legal/constitutional aspect. The question being: At what point does a legal ordinance or local law be held above the rights granted in the Constitution.

The answer, in the Constitution itself, is as follows: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." For those who do not speak "legalese," that means NEVER. The local laws are to maintain peace under NORMAL, everyday situations. They do not have the authority to trump the 1st Amendment rights of the Constitution... unless the established system refuses to perform their duties appropriately and Constitutionally.

Well, this is embarrassing. I had believed that this section would require more searching and interpretation, making it longer. But that's pretty cut'n'dried, so I guess I'll move on.

Thirdly, I am going to approach this from a psychological aspect. Now I could go into the psychology of groups, mobs, officials, etc., but you can look up that stuff for yourself. What I want to focus on is the psychology of MORALITY and ETHICS.

This isn't nearly as abstract as one would at first believe. In fact, there is a straight-forward, non-dogmatic thesis on this very topic. Lawrence Kohlberg's Stages of Moral Development (For further reading, I recommend Moral stages : a current formulation and a response to critics by Lawrence Kohlberg, Charles Levine & Alexandra Hewer. I also recommend looking at the Heinz Dilemma as a further analysis of how these stages work). It breaks down as follows:
Level 1 (Pre-Conventional)
1. Obedience and punishment orientation (How can I avoid punishment?)
2. Self-interest orientation (What's in it for me?)(Paying for a benefit)
Level 2 (Conventional)
3. Interpersonal accord and conformity (Social norms)(The good boy/good girl attitude)
4. Authority and social-order maintaining orientation (Law and order morality)
Level 3 (Post-Conventional)
5. Social contract orientation
6. Universal ethical principles (Principled conscience)

As you can see, there are 6 stages broken into 3 levels. Pre-conventional stages are essentially how we grow prior to gaining a "conscience". Conventional are when we have a modern, adult concept of right/wrong. Post-conventional stages are what most consider "enlightened" (socially OR spiritually) persons.
(I should disclose at this time that I have taken the "test" for the Stages of Morality, and scored at a high 5, low 6.)

As a country, and perhaps the world, we have become stuck socially on Stage 4: Authority/Law & Order. "If you are going to break the law, you get what you deserve." This is completely legitimate in Stage 4, if narrow-minded (taking into account legality, but not necessarily the maintenance of social order that may be a part of protest situations). But the major problem with it is that it does not take into account the principals of Stages 5 & 6, the more advanced, if more abstract, stages of morality.

In effect, Stage 5 could suggest that it is the moral obligation of the protestors to exercise the rights given to them in the Constitution to make the lives of the collective community (the country) better, thereby fulfilling their duties as US Citizens. It could be said that the corporations that the protestors are working against have BROKEN their social contracts by not entirely living up to their obligations, both legal and perceived.

It could even be argued that corporations and government have gotten stuck in some limbo using Stage 4 arguments to justify Stage 2 behaviors. It could also be said that teaching lower-stage entities (persons, governments, corporations) to evolve into higher stages is another social contract or moral obligation.

Stage 6 suggests that material/legal matters are irrelevant when held up to the lives, health and well-being of individual people, with the well-being of the whole as the most important. By that concept, the ability of the 99% to function in an acceptable fashion is the most MORAL and ETHICAL tactic the country can take. A belief that I strongly suspect the founding fathers would agree with.

But more importantly, I questions the motivations, the moral reasoning, used by the anti-protestors to justify their judgments and criticism of the Occupy Protestors. Are they using Post-Conventional morality, believing that this will actually harm society or the Greater Good? Or are they stuck in the apparently abused system of Law, taking legality as dogma, never mind the intent or abuse of said Laws?

I began this treatise talking about pain.
I see the pained faces of the women's suffrage movement, the civil right's movement, even the protestors of wars over the years, on the faces of the Occupy Protestors. People attacked by "non-lethal" yet abusive tactics such as water cannons, rubber bullets, and pepperspray.
I am stung by the use of minor legal infractions being misused to bully the protestors away. I see the same legal infractions used to (ineffectively) bully the forces of justice throughout the tainted history of this (supposedly) free nation.
I ache to show people the morality issues that I see being broached with these protests. I see the way others see things from a perspective that I barely understand (from grown, educated adults, that is) anymore.

The pain I feel is that of a mother watching the news coverage of child-abuse, of the heartbreak of watching loved ones experience loss, of watching the world miss - time after time - the next rung on the ladder of its own development.

Do you suffer this pain, too?


  1. I'll ask the question again. Sorry to cause you such indescribable pain, but I don't think you've really thought this one out. Assuming you are right here, does this grant the pro life crowd the right to blockade Planned Parenthood or another healthcare provider without police interference? How about if the tea party decided to shut down the welfare office? That covered? And the gods alone know what Westboro Baptist would do with this newfound right. You see, these are not acts of protest, they are crimes and infringments on the rights of others. Some of what Occupy is doing are as well. While they should be left alone to wave their signs and say whatever they want to, their freedom stops where everyone else's begins. That includes the freedom to go into a business, move freely on the road or sidewalk.
    Phil Helwick

  2. Phil I think it's important to distinguish between a protest and a direct action. A blockade is, in my opinion, a direct action to impede or directly interfere with the 'freedom of others' to make particular choices in the name of a political cause. A protest however is the waving of signs and so forth - an expression of idea without impediment for others. Occupy started as a protest with certain affinity groups taking direct actions against particular institutions like Bank of America. I admit when a protest is large enough this may stop the freedom of movement for some urban dwellers, but to suggest that such Occupy actions are the same as blocking other citizens legal rights to enter a health clinic seems a false analogy. There is no legal standard for access to Bank of America or any private business in that regard. Impeding entrance to a church however would induce police interference whether it's Occupiers or the Tea Party. I think it's important to distinguish between interference in expression of political/religious/cultural belief and interference with the flow of money and capital - a flow that already directly inhibits the movement, assembly and fundamental rights of citizens in our democracy.

  3. There is actually a legal standard for access to Bank of America. You have it. Same with access to any business, or anywhere you have a right to go. That includes Bank of America, Planned Parenthood, the local park, a strip club, wherever you want to go so long as whoever owns it allows you there. You also have a right to use a public street or sidewalk. Any "direct action," that interferes with your rights is by it's nation illegal. You have a right to protest whatever you want, but you don't have a right to arrest the movement of others. That does not mean that you can't crowd a sidewalk, it does mean that if someone wants to get past you, you must let them. The occupyers are not respecting that in all cases. Sometimes its not deliberate, but often it is. Watch the videos of the Americans for Prosperity events in DC. That mob committed breaking and entering (atempt) unlawful detention, harrassment, assault, menacing, and a few others that I can't think of. The police are obligated to respond in those cases, and have been remarkably restrained. As to camping enmasse in a park in the middle of a large city, if you aren't allowed to do that normally, you aren't allowed to as part of a protest. Protesting does not give anyone any special rights or privelages, you must still obey the law when you do it.

  4. I disagree. Sometimes the breaking of the law IS the protest. See the Jim Crow Laws during the Civil Right's Movement.