In Portland, protestors are routinely beaten by the police during demonstrations. If they don’t file for a permit before marching, the chance of police violence increases dramatically. In fact, the Portland Police Bureau, in its pre- and post-event press releases basically says that the difference between the violence and a safe, fun event is the permit. To me, that reads as a threat: if you don’t pay us our protection $, you risk violence. I’ve been writing about the violence lately, but I wanted to write a little bit more about the claimed (and largely assumed) legal authority to require a permit in the first place. For example, the police said this in a Nov. 3 press release after pepper spraying a crowd of mostly high school students, veterans, and the elderly:¹

It should be clear that “free speech events” do not require a permit; but, marches or demonstrations occurring in public streets that restrict movement of other community members do require a permit issued by the City of Portland.

This is a curious statement because the City and the PPB simply define “free speech” as something that can’t occur without authorization from the City and the police and the payment of fees. This is eerily reminiscent of the  “free speech zones” that tend to pop up around national political conventions and George W. Bush’s house. Amazingly, free speech zones are literally cages that restrict your movement and keep persons of importance from actually having to witness your protest, which sorta defeats the whole purpose. In other words, when used in this way, free speech isn’t free at all. At the very least, the right is heavily qualified and subject to oversight. Then, speech is only free when it has received the blessings of the authorities at whom people are directing their political discontent. And a peaceful march through the streets, without prior authorization, is not free because…? Of course, this is just an example of language meaning exactly the opposite that is supposed to.²

A “free speech zone” from the 2004 Democratic National Convention.

I’ll attempt to couch my instinctive aversion to this requirement in the language of law and politics, though I do think that underlying any given person’s views on this issue are basic notions of the legitimacy of different kinds of authorities. My views have definitely shifted with time, education, and personal experience. Furthermore, my views on the legitimacy (or lack thereof) of the political system in the United States has a direct effect on how I view the law. If I saw the system as having any relationship to a theoretical social contract that the people could alter at will to fit their whims and desires, I might feel differently. As it stands, the fact that you can readily buy a legislator (or staffer), administrator, or judge (or clerk) through campaign contributions and revolving door employment opportunities gives me little confidence in the integrity of the system, despite knowing that there are some actual public servants in government. Perhaps more troublesome is the fact that even outside of direct corruption and the purchasing of laws and lawmakers, institutional and class biases dominate legal reasoning, and even well-intentioned reformers readily adopt absurd reasoning. The legal system — and the accompanying bureaucracies with operatives trained in its logic — routinely treats theoretical philosophical notions as real and spends massive amounts of energy reproducing and rationalizing the continuation of the existing power structure. It shouldn’t come as a surprise that despite occasional meaningful protections and payouts to persons whose rights to speech had been stomped upon, in-the-moment protections of speech in mass protests are basically non-existent. The police are given the leeway to use force and they do it when they want. At that point, people get hurt, and the message is communicated loudly to the broader public: stay out of the streets or you’re next.

Let’s start with the First Amendment. Though I don’t have nearly the same emotional attachment to the Constitution that some people do, I am fond of this language because it communicates to me the broad respect that an open and free society would have for the communication of political ideas in the public sphere:

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.

(emphasis added).

Of course, in a strict legal sense, the Supreme Court has granted states and municipalities the ability to regulate speech indirectly through so-called time, place, and manner restrictions. Essentially, if said regulations are content-neutral (they don’t directly regulate what is being said), they might pass Constitutional muster. Personally, I find such a decree — from an unelected body that represents the government that people would peacably assemble against and petition for redress of grievances — to be ironic and absurd. What could be more ridiculous and elitist than interpretations reading in institutional protections against grassroots political upheaval? Of course, these restrictions are not justified on the grounds of institutional self-preservation. Instead, we are told that they are the result of years of reflection by wise men who are finding the best balance of competing interests. In addition, the Supreme Court would argue that if people really wanted to change these rules, they’d resort to the open and accessible democratic process and elect different people. Yeah, ok. This logic also assumes that the only valuable political messages are those directly intended to win elections. And despite the assurances of our wise leaders, practicalities trump the tidy and reassuring theories of reform. The political history of this country shows that meaningful reform always comes at the tail end of some open resistance and near rebellion. In other words, change happens in the streets. And in the course of these rebellions, which we later celebrate as victories for democracy, the free speech of our (eventual) heroes is trampled upon by the powers that be. Only after people couldn’t be beaten into submission and the power structure was seriously challenged are concessions finally made. And, then, we report history as though the reforms were granted by the wise and just reformers who, although late to the game, were always acting in the best interests of the citizens.³ Outside of significant Civil Rights Era decisions (like desegregation), the courts have largely supported the abuse of the unruly rabble. I suppose we should expect nothing new in the times we live in.

Judges and bureaucrats, after all, are traditionally members of the elite. Even where historical discrimination and struggle is overcome, members must still emerge from within a specific educational tradition and accept all of its assumptions. As such, class and institutional bias bleeds from the pen. As is often the case, it is near impossible to challenge a system when your job is literally to reproduce its logic on a daily basis. It doesn’t mean that good people don’t try, and I applaud their sincere efforts, but it seems to me a bit like chasing after windmills.

Luckily, in the post-Citizens United era, influential people are actually beginning to question the idea that the Supreme Court is the final arbiter of what the Constitution means.⁴ I mean, The Supreme Court basically just granted itself the right to review acts of Congress for constitutionality in 1803 through the case of Marbury v. Madison; this power doesn’t appear in the text of the Constitution. We’ve just sort of gone along with it and the power structure has adapted to the growing power of the judiciary. And, though I’m not a hyper-textualist, I still feel that this is an important political fact in an era where the Supreme Court consistently manufactures corporate friendly rules out of mid-air and always reaffirms the power of the executive to do just about whatever it wants in time of war (which is always in this country). For me, per usual, we need a radical reinterpretation of the role of the elites (especially unelected) in setting rules on the people’s ability to express political messages. As long as assemblies are peaceable (when haven’t they been in Portland?) and they are petitioning for redress of grievances, they deserve immediate protection and NOT riot police, batons, violent arrests, and pepper spray.⁵ We’ve got to seize on the beautiful language and message of the First Amendment and run with it without seeking approval from judiciaries and administrators.⁶ Let’s take the Constitution at its word (always dangerous), assume it is by the people and for the people, and determine for ourselves what important political speech is and whether it should be trumped by the comically shallow interest of not slowing a person’s commute down by five minutes.

Importantly, the Oregon Constitution also recognizes broad rights for people to dissent and alter their government at will.

Section 1. Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.

&

Section 8. Freedom of speech and press. No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.

(emphasis added). Yeah, you read that right. The text of the Oregon Constitution is pretty kick ass when you read through it. Not only does it incorporate the protections of the First Amendment, but it blows them out of the water. So, again, despite the fact that we’ve got broad authority for open dissent, the authorities, over time, have whittled the right down to something manageable. Control > Free Speech.

Portland, like most municipalities, has a permitting process which makes no distinctions between political and non-political speech. Despite the neutrality espoused, I find it undeniable that city code that regulates where and how you can say things is a law “restraining the free expression of opinion” that definitely “restrict[s] the right to speak [...] freely on any subject whatever.” Of course, I’m willing to grant that there’s a lot of nuance regarding speech which should not be protected⁷ and I’ll readily admit that there are practicalities to be observed, but my main critique of the dominant paradigm is that we should always be biased toward being overprotective of (human) political speech. If it were actually true that people couldn’t get into the streets without violence erupting from within the demonstration, I’d probably be more sympathetic to the restrictions. Instead, in Portland, we put the burden on the political speakers to give assurances that they won’t be violent instead of requiring the authorities actually demonstrate their neutrality. We allow anecdotal assurances about violence from the authorities to dictate our whole approach to protest. This is exactly the inverse of how it would be in a society that actually respected political speech. I’ve repeatedly argued that simply bringing riot police to a peaceful protest undoubtedly has a chilling effect on speech and no “neutral” words in a written code can erase the non-neutrality of the amount of abuse leveled on protestors in the last year. Ironically,⁸ the police are typically the instigators of violence at these events. There’s even a term for it: police riot.

So, what does the City of Portland claim as authority to regulate speech? Let’s start with the code. The relevant portions of City Code are:

7.22.010 Purpose.

The purpose of this Chapter is to regulate walks, marches, parades, athletic events or other processions in streets or on sidewalks held by sponsors that require use of City resources. This Chapter and the administrative regulations that implement it are necessary to maximize the safety of participants and others and to minimize inconvenience to the general public and disruption of public services while providing the public with the opportunity to exercise constitutionally protected rights of assembly and expression.

(my emphasis) &

7.22.030 Permit Required.

A permit issued by the Street and Sidewalk Use Coordinator is required for use of streets or sidewalks for the purposes of, and as provided in, this Chapter and the Street and Sidewalk Use Administrative Regulations.

Of course, the City just asserts that all uses of the sidewalks or the streets will “require use of City resources” whether you want them or not. Because of the inherent distrust of uncontrolled crowds, they simply must use resources. And amazingly, the extraordinary interest that renders your political speech subject to regulation and fees is… wait for it… “minimiz[ing] inconvenience to the general public[.]” Yes, that’s right. The founders of the Federal and Oregon Constitutions enshrined the right to free speech above all others, due to its incredible political importance, but if someone’s commute is interrupted for five minutes, it’s suddenly expendable. Cue the token apologist intellectual telling us about how we need to balance people’s “rights” when making these decisions.

As far as “maximiz[ing] the safety of participants”, this would seem to me to be a fair concern if I’d never had any interaction with the police at a protest. As mentioned before, the arrival of the police to a political event — literally armed, armored, aggressive, authoritarian-minded, control freaks with guns, who have a history of beating you and your friends up — does not ensure the safety of the participants. In fact, it almost assures that someone will get beat up or arrested. Portland Action Lab, as the police well know (since they actually adopted the use of bike cops as a crowd control unit after the Bike Swarm effectively innovated the practice at the Nov. 17 Occupy the Banks day of action), has a history of being extremely safe and organized.

Despite this easily verifiable state of affairs, the PPB had a ready-made excuse for their violence on #N3: it was all about safety:

In past events of an unpermitted nature, demonstrators have been found to have stockpiled fireworks, metal poles and built shields to directly resist the police and at times take direct action against law enforcement as well as inflict damage to community businesses.

Don’t you feel safer?

Not that this had anything to do with what actually happened on #N3, but if you’re going to tell a story about how safety is necessary, I suppose you’ve got to have some evidence. This is the best that PPB could do.

Go back through the video of #N17, #D12, #F29, and #N3 and show me where any of this stuff happened at a PAL organized protest. Here, the police are openly exaggerating and describing instances that they know didn’t take place at PAL events (if at all). I mean, might someone have “stockpiled fireworks, metal poles and built shields” at an unpermitted protest somewhere in Portland at some time? I suppose it’s possible. But you’re telling me that PPB officers are so dense that they don’t know the difference between a night time “Fuck the Police” rally (the only rally I’m aware of where windows were broken in the last year) and a daylight anti-austerity protest with a bunch of teachers, public sector workers, and high school students marching happily with music and a marching band? Please. If so, what are we paying them for?

In the same press release, in an attempt to propagandize the public about the inherent danger of this band of anonymous thugs at PAL, PPB claimed:

In the weeks leading up to this event, the Police Bureau attempted to contact event organizers to discuss the intent of the march and to ensure that the event would be peaceful. To date, no organizers or responsible parties responded to these requests.

“Attempted to contact” apparently means creating an account on FB and sending messages without even bothering to capitalize words at the beginning of sentences:

You gotta admit that this is a pretty piss-poor attempt at contact. Even if we’d seen the message, who the hell is Craig Dobson and why should we know who he is? Anyway, though people may not have responded to these weak ass efforts at contact, to pretend that there was no communication between organizers and police on #n3 is another outright lie. In fact, we had a police liaison informing the police about our route before we made turns. The police were initially responsive to this communication, communicated that the march could use the streets as it pleased, until they decided right around 14th St. that the deal was off. We think it was because they didn’t like the banners (“the shields”), but whatever the rationale, they abruptly changed behavior and used force. So, safety would have been assured if we’d simply asked for a permit… uh huh…

As we go deeper into the Street And Sidewalk Use Administrative Regulations, we see more restrictions. Of particular note is this matrix:

Note the fee associated with “Extra Large”: $2,300 plus insurance to express a political viewpoint in public?! What a deal!!! Again, putting a price on political speech just seems outrageous to me. Legally, it seems to be a significant burden on free speech and apparently the poor are not allowed to demonstrate because you’ve got to buy your rights to speech. Of course, the cost is justified by the inherent risk of crowds. Section 3(F)(8)(b)((5)) describes the “Risk Assessment” of this category of event:

The risk of personal injury and property damage is high because the very large use is held in the street, will have large numbers of participants and/or spectators, and may involve animals and/or motor vehicles.

Oh, really? There’s just an inherent risk in large crowds of people assembling? Why? Just because some bureaucrat decided so? Note that though this is an actual policy rationale, it is not an empirical statement or properly conducted risk assessment.  It’s just blanket distrust of crowds masquerading under a word that is supposed to communicate some sort of extended study of a problem. Someone just assumed into the policy that crowds are risky. This says more about the instinct to control than it does the dangerousness of crowds. And as we’ve seen, the danger and violence the police consistently warn the public about (before they use violence) just doesn’t exist. Just because some fear monger can dream up a scenario where violence could happen doesn’t mean that it will occur.

In April, after the $2 million price tag the PPB sent the City for policing Occupy, “Charles Wilhoite, chair of the bureau’s budget advisory committee, suggested the city rethink how it pays for demonstrations such as Occupy Portland[.]” Not only does the City need to reassess its payment structure, it needs to rethink the entire way it views political demonstrations. Distinguishing between parades and protests would be one way that the City could rethink its approach, but then City bureaucrats and the PPB would have to move away from the control paradigm and empathize with the idea of why people protest in the first place: it is amazingly effective at drawing attention to the political issues that demonstrators want to highlight and grievances that need to be addressed! Once you empathize with someone, though, you necessarily have to view the world through their eyes. And if your world view is built upon control, fear, and reducing everything to economic value, seeing the world through the eyes of those who desperately desire a world that is the complete opposite is simply not an option.

And for those who simply refuse to pay tribute to corrupt system that demonizes and dehumanizes any ideology which is threatening to its hegemony, I suppose they will continue to get out into the streets whenever they have political messages that they feel that the community should hear.

 

1. Notably, the press release also contained lies about attempting to contact “organizers” multiple times before the event and contained information completely irrelevant to the day’s actions which was clearly intended to justify the use of force after the fact. [↩]
2. War is peace. Freedom is slavery. Ignorance is strength. [↩]
3. See the labor movement, suffrage movements, anti-war movements, civil rights movements, etc., etc., etc. [↩]
4. Man, this was fun: http://www.youtube.com/watch?feature=player_embedded&v=w4gckTtjMlY. “Money! Is! Not Free Speech!” [↩]
5. I understand that within Supreme Court jurisprudence there is a ton of nuance about First Amendment law. Frankly, my dear, I don’t give a damn. I am not interested in playing on a field that is so hopelessly corrupt. To the extent that useful insights exist, I utilize them, but I don’t accept that they have the power to restrict peaceable assembly. I interpret the text as giving the broadest possible protection to political speech. [↩]
6. I mean, I dig some of the post-WWI ideas about the marketplace of ideas. [↩]
7. The traditional exceptions – (falsely) shouting fire in a crowded theater, slander & libel, using words that would cause a riot and breach the peace, certain types of hate speech, obscenity (kind of) — seem mostly ok to me [↩]
8. Less ironic, the more you deal with the police. [↩]