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.
– First Amendment to the US Constitution
“Because, if the First Amendment will protect a…scumbag like me…then it’ll protect all of you.”
– The People vs. Larry Flynt (1996)
“Police used batons to try to push the students apart. Those they could separate, they arrested, kneeling on their bodies and pushing their heads into the ground. Those they could not separate, they pepper-sprayed directly in the face, holding these students as they did so. When students covered their eyes with their clothing, police forced open their mouths and pepper-sprayed down their throats. Several of these students were hospitalized. Others are seriously injured. One of them, forty-five minutes after being pepper-sprayed down his throat, was still coughing up blood.”
– Open Letter to Chancellor Linda P.B. Katehi
This is the battleground.
When we discuss the First Amendment, in moments of non-crisis, we usually focus on the first bits: speech, religion, press. These are contests of ideas, the right to have them and express them, whatever they are. And while all of them are still, even today, under attack—see the SOPA bill currently pending in Congress, or the fight by Wiccan armed servicemen and women to have their religion treated with the same respect (especially in death) as Judeo-Christian religions, or the ongoing cancerous anti-Muslim rhetoric eating away at certain parts of the country and our national psyche since 9/11—the base level of these rights, to think and believe and say whatever you want, is as much a given, accepted right as anything has been in human history. It’s one of the greatest accomplishments of the Enlightenment, and it’s telling that opponents have realized that a frontal assault on them is futile, and for the most part expend their efforts obliquely, challenging not the ideas but the vehicles by which they’re conveyed. It’s a subtle distinction, but a crucial one. And those efforts are seldom if ever couched in terms of restricting speech, or beliefs, because to openly come out and campaign against those rights is still—thankfully—abhorrent to most Americans.
And yet, the First Amendment doesn’t end there. After guaranteeing the right to think and believe whatever you want, it goes on to protect something that’s not tied directly to ideas: the right to peacefully assemble. And this is the battleground, and always has been.
There’s a reason the Founding Fathers wrote the Bill of Rights in the first place. They knew that the exercise of these rights would not always be a pleasant thing. It’s very easy, and obvious, to agree that a person can think and believe and say whatever they want when they’re thinking and believing and saying the same things you are, that most people are. You don’t need a law to guarantee the right of someone to stand next to you in your own church, singing the same hymns you are, mumbling the same prayers you are.
But they knew that wasn’t and wouldn’t always be the case. That more often than not, people were going to disagree, and think and say and believe things that were unpopular, and uncomfortable, and even completely offensive to the majority of those around them. Left to their own devices, the majority will always try to stamp out those who are different, and the more uncomfortable that difference, the harder they will work to get rid of it. And so, they set out to explicitly make sure that those differences could not be stamped out.
The Bill of Rights wasn’t written to make us feel good about ourselves and those who agree with us; they were written to protect those who do the exact opposite. I have no idea if Larry Flynt actually said the words above, taken from the movie made about his life, but they strike at the very center of why the Bill of Rights—and especially the First Amendment—exist: it is precisely the things that most offend and inconvenience you, that you most want to do away with, that are protected by law.
And time and again, it’s not speech or religion or press that needs such clear and direct protection: it’s the right to peacefully assemble and petition the Government for a redress of grievances. The government didn’t arrest Martin Luther King Jr. for saying that blacks should be treated the same as whites, he was arrested for assembling peacefully in a place where only whites were allowed to sit. Plenty of people spoke out openly that blacks should be allowed to vote, or go to whatever school they wanted to, or that the war in Vietnam needed to end, or any of the dozens of things that have been protested over the last half century. It’s only when they gathered together, peacefully assembling to combine their voices into one loud chorus, that the powers that be moved in to physically put a stop to it.
Ideas are powerful, and can shape the path a society and a nation takes over the long run. But time and again, it’s this action, peaceful assembly, that produces actual results, that poses the greatest threat to those in power, that triggers the most violent and disturbing retribution, and that needs the protection that the Bill of Rights guarantees.
Because, ultimately, the people with active, financially and militarily-backed power can and do acknowledge the things people say or print, smiling and nodding, maybe even including a noncommittal statement of understanding or support, and then head home to check which interest groups’ checks arrived in the mail that day.
Thoughts, beliefs and ideas are powerful, and can change people’s minds, but they cannot cause those who don’t change their minds to either join with them or get out of the way.
The entire point of peaceful assembly is to turn thoughts, beliefs and ideas into a physical presence that can no longer be ignored or placated. It is, by definition, an obstruction, an inconvenience, a peaceful way to metaphorically grab someone by the lapels and shake them until they stop what they’re doing.
That’s why the Occupy movement is so important, and the violence against it simultaneously so disturbing and so encouraging. Plenty of people have been writing and speaking about the social and financial injustices that have reached critical mass over the last few years, but it wasn’t until those most affected showed up, in person, and refused to leave that those in power were forced to take notice.
And that notice, with only a few exceptions, has been horrific. Pepper-spray—a “non-lethal” weapon intended and legally sanctioned only as a replacement for bullets when a citizen’s or officer’s safety is in danger but you don’t want to shoot someone dead—is being used like fucking ketchup at a French Fries convention. Police are regularly cloaking themselves in riot gear and using their batons on anyone who happens to be standing in the wrong place, which is mostly being defined as “where you happen to be standing right now,” and includes attacks on journalists reporting on police activity, and city council members—and even a federal judge—who were there not to protest but just to observe.
And the link above, while not the only incident of this kind, is the most horrific visual presentation of what’s quickly becoming the default response by those in power in such a blatant violation of the First Amendment that despite the length of this essay, my initial and ongoing response to it all is speechless disbelief.
But the reason why this is encouraging: those in power are finally scared. If there is no threat to them, they can ignore you. They will possibly mock you, in passing, but by and large they will not give you the time of day. It’s only when they realize that you are a clear and present threat that they will act to put a stop to what you’re doing.
That’s why peaceful assembly is so important. This is the battleground, the Occupy encampments all across the country, normal people sleeping in tents and staying where they are—and then returning, after being thrown out, and setting it up all over again—so that those in power, those who have wronged them, can no longer ignore them.
This is the battleground.