Abstract
This paper deals with the relationship between law and social protests, a topic that seems particularly relevant at this time, when recent public events show the existence of growing tension between citizens and public officers. The paper does not explore the ultimate causes that triggered these social protests, but rather the normative and legal questions raised by these conflicts. The main question that it addresses is the following: How should the law act in the face of these growing expressions of social discontent? The main point that it defends is that social protests are political expressions that, as such, deserve a special public (and particularly judicial) protection. The argument is particularly directed at studying the legal consequences of taking the expressive components of social protests seriously. The exploration may have a further theoretical interest for those who are interested in reflecting upon the scope and limits of the theory of deliberative democracy.
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Notes
See, for example, Alais, Julio Alberto, n. 4859/04, decision of 23rd April 2004, Cámara Nacional de Casación Penal.
Cox v. Louisiana, 379 US 536. The Court’s position has varied according to the context and different characteristics of the different cases under analysis. Its decisions varied, for example, taking into account the time of the day of the demonstration; the place where they took place; the number of participants; safety requirements; the possibility of carrying out the demonstrations in other locations, etc. We will explore some of these variations, with more detail, below.
See, for example, People v. Knight 35 Misc. 2d 216, 228 N.Y.S. ad 981 (Magis. Ct. 1962); Farmer v. Moses 232 F. Supp. 154 (S.D.N.Y.). The issue whether the demonstrations have or not obtained permission has also raised lots of discussion. In general, courts have found these requirements permissible (e.g., Cox v. New Hampshire (312 US 569, 1941), although this has not always been the case (Freedman v. Maryland 380 US 51, 1965). Questions regarding whether these permissions constituted impermissible “prior restraints” to speech have also been common. One could think that heavy requirements in this respect could cause “death by a thousand cuts” to the picketers’ right to protest. In Europe, the European Court of Human Rights has found prior authorizations lawful, for example in Rassemblement Jurassien Unité Jurassienne v Switzerland, Application No 8191/78, 17 DR 93 (1979), where it maintained that the subjection of massive meetings “to an authorization procedure does not normally encroach upon the essence of the right.”
Cameron v. Johnson, 390 US 611 (1968).
See a discussion of this possibility in a decision by the Colombian Supreme Court, Process n. 12.486, 21th April, 1998.
This was through the Chilean Antiterrorist Law, n. 18.431.
This is Ronald Dworkin’s initial description of how judges need to approach difficult cases, in Dworkin (2006, 25).
Schifrin, Marina, n. 3905/02, Fallos 304:1524. The court also quoted other cases, such as Fallos: 199:149 y 483, 200:450, 249:252; 262:205; 268:364; 283:364; 283:98; 296:372. These views seemed to be widely shared by local doctrinaires, who used to back those judicial decisions by stating, for example, that the particular liberties that the protesters invoked in their favor were “legitimate but not absolute”; or that “the freedom of each man ends where the freedom of his fellows begins”. See, for example, Badeni (1999a, b), (2001); Cassagne (2002).
In this decision, written by New York Judge Michael Stallman, the court denied Occupy Wall Street's Temporary Restraining Order issued by Judge Lucy Billings on 11/15/12 which would have allowed tents and tarps to remain to shelter demonstrators in Zuccotti Park. Judge Stallman did not pay attention to the fact that the rules preventing occupiers to occupy the Park were written after the protesters occupied the park. Long before that case, the US Supreme Court had defined its general view on social protests in Cox v. Louisiana. In that case, the Court had to examine the constitutionality of an ordinance that required a permit for any “parade or procession upon any public street or way.” In its decision, the Court maintained, first, that the idea that civil liberties “as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses” (312 US at 574). Then, it made reference to the need to accommodate the different rights, preserving “the safety and convenience of the people in the use of public highways” without totally abridging “the right of assembly and the opportunity for the communication of thought and the discussion of public questions immemorially associated with resort to public places” (ibid.).
Remarkably, the Court did not accept the argument according to which the protesters had left alternative venues for the drivers to use. In its opinion, “this claim has not been proved” and even if it were, the action would still be illegal because Argentine law not only condemns the total obstruction of national roads, but also actions that “disturb or in other ways make more uncomfortable” the use of public services.
In this respect, a decision such as New York Times v. Sullivan (376 US 254, 1964), which was frequently quoted in Argentina, became exemplar. The case involved extremely sharp criticisms against a public officer that included false statements of fact (even though they were not pronounced with “real malice” or “reckless disregard”), and the clash of two important rights, namely the right of freedom of expression and the right to personal reputation. In its famous opinion, the Court stated at least three important things: (i) it decided the case from the perspective of a robust notion of democracy; (ii) it emphasized its exceptionally strong commitment to freedom of expression, which tolerated—as in the case under analysis—the inclusion of “erroneous statements,” “vehement, caustic, and sometimes unpleasantly sharp attacks,” and even false statements of facts; and (iii) it gave an even stronger protection to criticisms directed at public authorities.
See, for example, Annual Report 2001, chapter. IV, section 2.1.
A similar story can be told, in principle, about the United States, where the activity of picketing was promptly assimilated to freedom of speech, which ensured a stronger protection to this activity. The process began with Justice Brandeis’ opinion in Stenn v. Tile Layers Protective Union (301 US 468), where he stated: “Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution” (ibid., at 478). This dictum became central to the arguments made by the Court in Thornhill v. Alabama, where picketing was seen as a means to “enlighten the public on the nature and causes of a labor dispute”. See Cox (1951), 59s. On other occasions, judges rejected blanket prohibitions directed against all peaceful picketing, on grounds of over breadth. This is what happened, for example, in the landmark case of Thornhill v. Alabama, 310 US 88 (1940). In another case decided a few days after Cameron, and leading the opinion of the Court, Justice Marshall declared that, even where picketing is concerned, access to “streets, sidewalks, parks, and other similar public places” could “not be denied broadly and absolutely,” given the importance of those places for exercising First Amendment rights (Amalgamated Food Employees Local 590 v. Logan Valley Plaza, 391 US 308, 1968, at 315).
See Cassagne, op. cit.
In the words of another of the Judges that intervened in the Alais decision: “(the offenders violated the rights of others) with the excuse of protecting their constitutional rights,” using “primitive mechanisms for the pseudo-defense of their interests” to achieve this goal.
See, for example, Pritchard v. Downie, 326 F. 2d 323 (8th Cir. 1964); Milk Wagon Drivers Local 753 v. Meadowmoor Dairies, Inc., 312 US 287 (1941); New Negro Alliance v. Sanitary Gorcery Co., 303 US 552 (1938).
Thus, Justice Goldberg maintained, in Cox v. Louisiana, that the Court rejected the notion that “the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways as these amendments afford to those who communicate by pure speech” (However, it was in Giboney v. Empire Storage (336 US 490, 1949), when the Court exclude picketing from First Amendment protection, arguing that picketing was more than speech). Similarly, Justice Black claimed that those Amendments protected “freedom of speech, press, and assembly where people have a right to be for such purposes.” This protection did not grant, however, “a constitutional right to engage in conduct of picketing or patrolling whether on publicly owned streets or privately owned property.” Ibid., at 555, 578. See these references in Kalven (1965, 23).
See, for example, Kalven, ibid.
Geoffrey Stone maintained a similar idea. He stated: “Nearly all forms of communication necessarily interfere with some legitimate state interest. Leafleting leads to littering; billboards and posters may be deemed unaesthetic; public speaking, whether or not amplified, may annoy passersby; picketing or marching may obstruct traffic; and so on” See Stone (1974, 240).
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, 2 October 2001.
In NLRB v. Fruit Packers (377 US 58, 1964), and examining the issue of picketing, Justice Black maintained that when the action of patrolling and that of speech were so intertwined, court should “weigh the circumstances” and “appraise the substantiality of the reasons advanced” for the regulation of the activity of picketing (ibid., at 77–78). As M. Scott summarized his position, Black stated that “If information conveyed by the picketers is lawful, picketing to convey that information cannot be deemed unlawful”.
Texas v. Johnson, 491 US 397 (1989); Tinker v. Des Moines Sch. Distr. 393 US 503 (1969).
FCC v. Pacifica Found, 438 US 726 (1978).
For example, see Feiner v. New York 340 US 315 (1951).
Sentencia T-456/92, 14th July 1992.
Jane Mansbridge and Iris Marion Young, for example, affirm that through their emphasis on consensus the exchange of arguments and reasons, deliberative theories have improperly relegated other forms of communication as rhetorical and strategic communication. In this respect, Iris Young challenges Jurgen Habermas’ view on deliberative democracy for considering arguing as the privileged and legitimate discourse in the public sphere. For her, prevailing deliberative theories improperly establish exclusionary norms of dispassionateness, orderliness, civility and articulateness (Young 2000, 45). Contrary to Habermas’ view, Young maintains that alternative forms of speech (which may include rhetoric, street demonstrations and protest) should also be considered valuable forms of discourse. In her opinion, many of these acts are oriented toward inclusion. “[In] a deep democratic society—she affirms—the presumption should be in favor of the protestors that their purpose is to persuade” (ibid., 48). Similarly, Mansbridge tries to resist the predominant understanding of deliberative democracy. She maintains that “[too] frequently deliberation has seen only as aiming at an understanding that produces substantive consensus,” thus unduly relegating conflict. However, she adds, “good deliberation should also illuminate conflict. It should lead participants to a more nuanced understanding of their selves and their interests, ideally less influenced by hegemonic ideas, in a way that may put them in direct conflict with other participants” Mansbridge (2005, 1–2).
307 US 501-18.
Ibid., at 515-6. Going beyond this principle, in Food Employees Local 590 v. Logan Plaza Valley, 391 US 308 (1968) the Court recognized the right of workers to organize a pacific picket in a shopping center. However, the Court departed from this principle in other cases (see, for example, Hudgens v. NLRB, 424 US 507, 1976; or Lloyd Corp. v. Tanner, 407 US 551, 1972); and also refused to extend the category of “public forum” to other non-traditional forum (see, for example, Ikscon v. Lee, 112 S.Ct. 2701, 2718, 1992).
Greer v, Spock, 424 US 828.
This, unless they are narrowly drawn and serve a compelling state interest. See, for example, Burson v. Freeman 504 US 191 (1992).
The idea of content-neutral regulations has been only occasionally used in Argentina’s legal discussions, although it plays a fundamental role in these types of disputes (for example, Justice Rodríguez Basavilbaso made reference to that doctrine in his dissident opinion in the Schifrin case, where he quoted US judicial opinions on the topic). For that reason, most of my discussion on the topic shall be based on foreign sources.
Linmark Associates, Inc. v. Township of Willingboro, 431 US 85 (1977).
See Landwehr (1993, 171). Notably, both judges at the level of the US Supreme Court and in the European Court of Human rights have defined a list of conditions that content-neutral regulations need to respect, in order to be upheld. Thus, for both these courts it is clear that regulations cannot come to undermine disfavored political views; must be aimed at serving a significant State interest; be narrowly tailored; leave open ample alternative means of expression; and be applied in non-discriminatory ways (see, for example, “Grace v. United States,” 461 US 171, 19, 1983). In the European context, probably more than in the US, “there is a reasonable degree of academic consensus regarding the need to protect public protest in order to safeguard minority interests” (see Fenwick 1999, 493). It is generally recognized that the “denial of a public forum for the exercise of expressive rights bears unequally on different groups: it may amount in effect to a denial of the free speech rights of certain minority groups since equal access to other means of exercising those rights will tend to be unavailable” (ibid., 494). Meanwhile, in the US, the Supreme Court has tended to be very deferent towards content-neutral regulations, upholding them on most occasions (the Court uphold, for example, regulations of these type establishing restrictions of time; number of participants; the decibel level of speeches; or the placement of signs. But even in this case, the openness of the Court did not mean that the established rules became toothless (and, of course, even if this were the case, that would not be a good reason for not taking seriously reasonable standards like the ones defined by both courts). In particular, the US Court has paid attention to the differential impact of the content-neutral regulations, and made sure that the speaker was afforded “a forum that is accessible and where the intended audience is expected to pass” (Students Against Apartheid Coalition v. O ‘Neil, 660 F. Sup. 333, 339). Accordingly, in Dr. Martin Luther King Jr. Movement v. City of Chicago, 419 F. Supp. 667, the Court struck down a regulation that prevented a civil rights organization from marching through a white neighborhood, because the very idea of the protesters was to reach that particular audience; and in Schneider v. State, the Court struck down an ordinance requiring a permit for any house-to-house canvassing, which in principle appeared as a permissible content-neutral regulation, because it disproportionably burdened groups with fewer resources (308 US 147, 1939).
In this respect, it is worth recalling the opinion of Judge Frank Johnson, when he made reference to the “enormity” of the “wrongs” suffered by the Negroes, which—as Burke Marshall put it—“created an expanded right of protest in those who were mistreated” (Marshall 1965, 789). In Johnson’s words, his decision needed to take notice of “an almost continuous pattern…of harassment, intimidation, coercion, threatening conduct, and, sometimes, brutal mistreatment toward these plaintiffs and other members of their class who were engaged in their demonstrations for the purpose of encouraging Negroes to attempt to register to vote and to protest discriminatory voter registration practices in Alabama” (Williams v. Wallace, 240 F. Supp. 100, 104 (M.D.Ala 1965). Finding that the “wrongs” were actually “enormous,” the court measured the right to demonstrate accordingly.
This gradual openness shown by certain judges toward disruptive messages and actions accompanies the (equally slow) changes that have taken place within deliberative theories of democracy in this respect. Thus, for example, David Estlund has maintained that in conditions of “power imbalance” certain disruptive acts may appear justified as ways of restoring “some presumptive normative significance to [the discourse’s] conclusions.” The final rationale of this approach is to authorize “the remediation of certain deviations from an epistemically valuable ideal deliberative arrangement”. See Estlund (2005, 12). For Iris Young, it may be “wrong to cooperate with policies and processes that presume unjust institutional constraints. The problem is not that policy makers and citizen deliberations fail to make arguments but that their starting premises are unacceptable” (Young 2001, 683).
Segunda Sala Penal de la Corte Superior de Justicia de Loreto, decision of the 10th December 2009.
In Brown v. Louisiana (383 US 131, 1966), a similar case (although without Justice Brennan’s vote), the minority group maintained the same position than in Adderley. In Tinker v. Des Moines, (393 US 503, 1969) the majority of the Court accepted part of the arguments of the minority (at least regarding a more expansive theory of the public forum), and claimed that the First Amendment permitted “reasonable regulation of speech-connected activities in carefully restricted circumstances.” But, it added “we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom” (ibid., at 513).
Decision from the “Juzgado Federal en lo Criminal y Correccional Federal,” July 1999.
Decision from June 14th, 2001.
Article 22 states: “The people do not deliberate or govern except through their representatives and authorities created by this Constitution. Any armed force or meeting of persons that attributes to itself the right to stand for the people and to petition in their name, commits the crime of sedition”.
In the US, for example, the democratic argument has played a subtle but crucial role, for example, in the discussions about the judicial enforcement of social rights. At the beginning of the twentieth century, conservative judges invalidated progressive legislation by invoking the democratic “will of the people” that they claimed to find in the Constitution. They invoked (what we could call) a pluralist notion of democracy, where a politically passive citizenry were bound by the decisions of a technocratic elite in charge of interpreting the “true, original meaning” of the Constitution. However, in recent years, conservative judges sometimes invoked an applied (what we could call) populist conception of democracy, which recognized the “locus” of democracy in (conservative) state legislatures, whose will the judiciary was bound to protect. So, here we also see what seems to be a manipulative use of the democratic argument, in order to reach pre-defined (heavily ideological) solutions. In this sense, Judge Robert Bork asked: “Why should the Court, a committee of nine lawyers, be the sole agent for overriding democratic outcomes?” See Bork (1979). Another conservative judge, Frank Easterbrook, came to the same conclusion, asserting the need to interpret the Constitution according to what the people wrote into that document, hundreds of years ago. See Easterbrook (1992).
Similarly, we cannot accept them simply jumping from one conception to another one, particularly when we recognize the impact that these changes may have on the content of their decisions. An analysis and criticism of the most common judicial responses in the area, for the case of Chile, and particularly taking into account the democratic argument, may be found in: Annual Report on Human Rights, 2009, from the Human Rights Center at the University Diego Portales, http://www.derechoshumanos.udp.cl/informe-anual-de-derechos-humanos-en-chile-2009/.
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Gargarella, R. Law and Social Protests. Criminal Law, Philosophy 6, 131–148 (2012). https://doi.org/10.1007/s11572-012-9140-6
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DOI: https://doi.org/10.1007/s11572-012-9140-6