In our usual legalistic way, we have entered an earnest debate about whether or not protesters have a right to set up tents in a public space to stay there. We hear a lot about health and safety, public nuisance, the First Amendment, how the encampment smells, how to respond, and so on. Before long, we’ve forgotten that the point of the occupations at their inception was to enact a protest that is provocatively illegal. You can exercise your First Amendment rights in a lot of ways. These protesters choose to exercise their rights in ways that are most likely to provoke a response.
How law enforcement responds is the test. The occupiers demonstratively stayed on good terms with the police during the early stages of their protest. They had the right instincts and the right strategy. After these expressions of good will, the police could not move in with force to remove the protesters without harming their own reputations. They had no justification for abuse.
Civil disobedience is hard. It’s hard on the people who practice it. They suffer all kinds of public abuse for the stand they take. It’s hard on law enforcement officials, as it poses problems for them that they don’t normally face. It raises hard questions about public duties and public rights. Lastly, civil disobedience is hard to sustain long enough to have an effect. It requires discipline, good leadership, effective planning, and clear goals. The Occupy movement had not developed these qualities before policemen all across the country moved in with riot gear and disproportionate shows of force designed to deter future public nuisances.
The occupiers have drawn attention to themselves and to their slogans. In that way they’ve been successful. Because they have not articulated other aims, we don’t know yet whether they’ve been successful otherwise. If we base our judgments about the movement on whether or not the protests are legal, however, we’ll certainly miss the occupiers’ point. They could say, “Of course the occupation is illegal: that’s why we did it.” If it were legal, no one would have paid attention to it.
More specifically, you cannot justify disproportionate force with a claim of illegality. A person may trespass on my lawn, he may urinate on my rose bushes, but I cannot set my Rottweiler on him or attack him with pepper spray. The police who attack occupiers act with disproportionate force not primarily because the encampments are illegal, but in order to intimidate and deter. They do not want the occupiers to return. You don’t need riot gear to turn people out of their sleeping bags. You need riot gear to scare people into obedience.