The Whole World Is Watching: Why Pepper Spray is Good for Occupy Wall Street

It's the video that everyone seems to be talking about, or at least a lot of people on Youtube. This video depicts a University of California, Davis police officer pepper-spraying a group of protestors who are peacefully seated on the ground. This incident occurred at a time when the Occupy Wall Street movement was starting to lose public sympathy, and relevance. After all, in New York City, protestors had just recently been kicked out of Zuccotti Park.


Leave it up to the cops to win back sympathy for the protestors. (In early October the movement also gained support when New York City police officers pepper-sprayed protestors, and, inadvertently, a local Fox TV reporter. Whoops.)

According to Susan Herman, President of the American Civil Liberties Union, the police reactions have given the movement a tremendous boost. She told Big Think in a recent interview the "very inappropriate reactions from the police" have received a lot of attention because "when the government is trying to prevent people from saying what they want to say or from assembling or having a demonstration in an appropriate way, that really is a problem."

Herman is the author of Taking Liberties: The War on Terror and the Erosion of American Democracy. Below are excerpts from her interview with Big Think on the tension between Constitutional rights and public safety.

Big Think: Recently New York City kicked the protestors out of Zuccotti Park where Occupy Wall Street started, and the city cited residents’ concerns about sanitation, health hazards and that kind of thing, and also the negative impact on businesses with people camping out in the park indefinitely.  So, what kind of tension do you see here with civil liberties? Does Ocuupy Wall Street have the right to occupy public space in this way? 

Susan Herman: I think there is a tension between the right of people to protest and the concerns on the other side of people who are in the neighborhood where protestors want to be camping out. The First Amendment, which is what guarantees us our right to freedom of speech and assembly, is not absolute. So, of course, people have a right to protest, they have the right to make their voices heard, and the ACLU has always defended that. That’s why we were founded in 1920, to help people to speak out. But, the Supreme Court has always said--and this is something you have to agree with in principle--that it is appropriate for governments, at all levels, local, state and national, to impose time, place and manner restrictions on speech.  

So, I have the right to express my opinion, but I don’t have the right to come into your living room at 2:00 a.m. and express my opinion at the top of my voice. Yet that’s just the way it is. So, of course, where the rubber hits the road is the whole question of what’s an appropriate time, place or manner of restriction. Of course, the city can prevent people from screaming in the middle of the night and disrupting the people who live there and keeping them from sleeping.  

The Supreme Court had a case a number of years ago where they said that it was not inconsistent with the First Amendment to prohibit people from sleeping out on public space. So, that’s a baseline, whether or not you agree with that particular decision. So, you know, people can have a right to protest on public land, but they don’t necessarily have the right to live there indefinitely or to protest in any manner they want to.  

The ACLU affiliates have been very busy because of the Occupy Wall Street Movement and in some places the cities would react by making up rules they had never had before. They would suddenly set a curfew just to keep the protestors from protesting in the park. And you know, that’s not appropriate. You can’t react to the content of a speech. You can’t just have a specific reaction to say, “Well, we don’t want you to say what you have to say.”  But in places where there were rules about who was allowed to camp out in the park, if that’s just a neutral rule that doesn’t have to do with the content of the speech, there does have to be some balance there.

Big Think: Do you think that breaking up of this protest will lead to civil unrest? 

Susan Herman:  Well, the Occupy Wall Street Movement started in a very particular way with people camping out and trying to get attention for the views they were expressing in a particular way. We’ve seen many different variations around the country of how that’s played out. And in some places, I think we’ve seen very inappropriate reactions from the police, but, I think the movement was really given a tremendous boost by the pepper spraying that happened in New York City. You know, that got a lot of attention because when the government is trying to prevent people from saying what they want to say or from assembling or having a demonstration in an appropriate way, that really is a problem. So I think that, actually, oddly enough, because of that very poorly judged behavior, I think the movement really got a boost.  

Now, it’s very difficult to say in different places if the Occupy Wall Street people are prevented from actually camping out in physical spaces what’s going to happen. What we’ve already seen in New York is people can move to a different space and maybe the whole thing just continues. I think that, again, the fact that people are not being permitted to physically do a particular thing could be used as a motivator for the movement. You know, it's very difficult to predict what the result would be of a particular action because this movement right now is not restricted to New York City and to Zuccotti Park. It’s all over the city and indeed all over the world. I’ve actually seen the tents in Philadelphia, San Francisco, Los Angeles, Chicago and in Washington D.C. where they were clever enough to camp out right across from the ACLU office just in case. 

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