Sunday, January 29, 2012

Is civil disobedience constitutionally protected?

At least some members of the Occupy [Wall Street] movement seem to believe as a matter of principle that civil disobedience is constitutionally protected, when it is obvious that the constitution offers no such free pass for breaking laws even if the otherwise illegal conduct is cloaked in a claim of exercising free speech. I have seen some arguments on the Web in favor of why civil disobedience should be constitutionally protected, but the courts have not taken any such position.
In short, although free speech is constitutionally protected, the mere claim of exercising free speech while otherwise breaking the law is not constitutionally protected.
One of the most defective arguments in favor of constitutionally protecting civil disobedience is the suggestion that the civil rights movement could not have happened without civil disobedience. Yes, the civil rights movement did depend on civil disobedience, but the racist laws they were violating as being clearly unconstitutional (color segregation) actually had credible arguments for being held unconstitutional, but the laws the Occupy arrestees are accused of violating have no such credible constitutional  arguments and have been for the most part issues of non-discriminatory disorderly conduct.
Occupiers certainly have a disdain for the legal requirement for a permit for rallies and protests, but the legal basis for such permit requirements have been thoroughly constitutionally vetted, provided that the permit requirements remain non-discriminatory and have a legitimate purpose in protecting the public interest.
Part of the issue for the Occupiers is that quite a few of them are avowed anarchists or sympathizers whose core belief that the concept of "the state" is invalid and as a result they simply cannot tolerate restrictions on their perceived "natural rights" by "the state."
In the end, it is quite farcical that Occupiers would seek protection from "the state" when they insist that "the state" is not legitimate.


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