October 11, 2011
While there is much that is lamentable as well as ludicrous concerning the politically pathetic "Occupied Portland," a protest of self-righteous, narcissists suffering from prolonged adolescence who are in search of a cause which they just can't quite articulate, which does not prevent them from holding themselves above the law and identifying themselves as "representing the 99%," the fact is that a serious precedent has been set by Mayor Sam Adams in according special privileges to this group of protesters in Portland. The unintended consequences of the Sam Adams precedent are serious, and should not be minimized.
As an activist in the civil rights movement, and in the labor movement, I have participated in and served as an attorney for literally hundreds of protest marches and demonstrations. As a civil rights attorney for some thirty years, I have represented numerous individuals and organizations in civil litigation regarding issuance or denial of permits, injunctive actions, and criminal prosecutions for violations of permit ordinances or other laws pertaining to the conduct of demonstrations.I am very familiar with the well-established body of law holding that it is constitutional under the First Amendment for governmental bodies to impose reasonable time, place, and manner restrictions, including requiring demonstrators to obtain a permit if marches are going to utilize public streets, or to occupy public areas, depriving others of the use thereof. However, governmental bodies cannot exercise "standardless discretion" in issuing permits, and must apply its standards in a non-discriminatory, equal manner, to all, regardless of the content of the speech or expressive activity at issue.Portland's protesters, in arrogant as anarchistic defiance, deliberately flouted the law that applies to all others by refusing even to seek a permit, publicly announcing in advance that they would not do so. Thereafter, among other things, they marched down city streets, including Broadway, a major thoroughfare, and occupied public property, e.g., Pioneer Square, and then parks for a prolonged squat-in. Thus, the protesters, their totalitarian-streak showing, arrogantly infringed the rights of others for the use of those public areas. This included the Portland Marathon, which had obtained a permit for the important Portland "qualifying" marathon.Mayor Sam Adams, a self-declared liberal "progressive" has decided not to enforce the law, nor to apply it equally to"Occupied Portland" protesters, who appear to be, it must be said, very much like Sam Adams, liberal "progressives" who believe they are above the law and should not have it applied to them equally as their motives are so pure and their intentions so good.Instead of enforcing the law equally, Mayor Adams chose, acting on behalf of all the citizens of Portland, who have neither elected nor otherwise agreed to be "represented" by the motley crew camping out in public parks (in which overnight camp-ins, sleep-ins, or squat-ins are otherwise forbidden), chose not only to bend but to break the law in favor of these particular protesters. Indeed, he coddled them to the extent that purported "negotiations" took place between the protesters, the city, and the Portland Marathon, resulting in the Mayor of Portland publicly thanking and praising the ragtag self-righteous protesters for agreeing to "share" the "occupied" part of Portland with the Portland Marathon, as if they, the protesters, were a sovereign, and not arrogant liberal "progressive" lawbreakers placing themselves above all others of Portland.Further, Adams has had these particular lawbreakers protected in their lawbreaking by Adams' police, at great taxpayer expense.Thus, based upon my long experience, I believe that the precedent set by Sam Adams in his discriminatory favoritism in regard to these particular protesters, including Adams' non-enforcement of the law pertaining to them, will have to be followed generally. Simply stated, all others have the right to equal treatment in their protests or demonstrators. If others are arrested or prosecuted for failing to obtain a permit, or otherwise violating ordinances or state statutes pertaining to demonstrations, it is likely if not certain to result in litigation claiming discriminatory enforcement of law, denial of equal protection of the law, and other claims based on the Sam Adams precedent.Consider, for instance, the phenomenon of "flash mobs" across the country, which which mobs of people had demonstrated in streets, stopped traffic, and used the distraction of their acts to invade and commit larcenies in businesses. While they can be prosecuted for thefts, of course, how could they be prosecuted in Portland, in light of the Sam Adams precedent, for disrupting traffic and causing danger by suddenly marching in the street in protest over anything they might dream up; how could they, or anyone, be prosecuted for setting up a sleep-in, camp-in, squat-in in any public park on any pretext, since Sam Adams has granted a "right" to do so to the favored few of "Occupied Portland"?
What if, next time, the "protesters" are not those so much like Sam Adams in their political orientation, but, for instance, the Ku Klux Klan; or the New Black Panther thugs who were not prosecuted by the discriminatory policies of President Obama's Attorney General Holder after waving clubs about and threatening white voters at the polls in the 2008 election; or the Muslim Brotherhood or open supporters of Islamic terrorists, Al Quedistas, so speak?
Will Mayor Sam Adams bend over for them, too? Will they not insist on equal treatment under the Equal Protection Clause of the Constitution, citing the Sam Adams Occupied Portland Precedent and demand to be treated as Portland through Sam Adams has treated the lawbreakers of Occupied Portland?Does anyone doubt that there are lawyers out there who will take such cases and posture about how noble they are in defending the First Amendment and Equal Protection of the Law, and then hold their hands out for court-appointed attorney fees in criminal defense representation or judge-ordered, taxpayer-paid attorney fee "awards" under the Civil Rights Attorney Fees Act of 1976 (42 USC Section 1988) in civil actions claiming rights violations?
In short, there are many reasons to be disgusted by the arrogant antics of Occupied Portland, not the least of which are the acts of Mayor Sam Adams in settling a dangerous precedent by refusing to equally apply the law to the Occupied Portland protesters. It should be resoundingly repudiated.
[Rees Lloyd is a longtime civil rights lawyer, and writes for the Victoria Taft Blog.]