I am generally skeptical of the “Occupy” movement and have expressed my ambivalence and criticisms here, here, and here in the past. However, for all of my disagreements and reservations, I will defend the rights of fellow human beings when they are infringed. And, without question, “Occupy” protesters have rights, too – rights that have been shamelessly violated in the brutal crackdowns on “Occupy” protests which occurred last year.
In response to my passing mention of the pepper-spraying incident at University of California Davis in November 2011 (for which the University has now offered to generously compensate the victims), Dr. Charles Steele wrote, “Mr. Stolyarov responds that he’s concerned about ‘Occupy’ protesters being pepper-sprayed at UC Davis. I’m uncertain what this event has to do with the Romney v. Obama choice, but he and I have very different definitions of ‘peaceful.’ My definition of peaceful does not include forcibly blocking public thoroughfares and occupying public spaces so that others cannot exercise their legitimate rights to use them. It’s shameful that taxpayer money is now going to these ‘victims.’”
First, the facts of the situation do not bear out the allegation that anyone’s ability to use the UC Davis facilities was substantially impeded. The protesters blocked a sidewalk; that is all. Surely, anyone who wished to get from one facility to another could have walked around.
Second, the protesters were students who were paying customers of the university. Even though the right to use public property is a somewhat nebulous area (since it is funded through the payments of large numbers of people with competing preferences), it is clearly the case that a paying user of property – especially one who pays the immensely generous sums that often constitute tuition these days – should have a considerable degree of prerogative, as long as the property is not damaged and remains usable to others. This whole incident is a glaring demonstration of the power asymmetry between universities and their students. What other institution (especially a privately owned and funded institution) would treat its customers in this way? Would any private country club be able to get away with pepper-spraying its donors who happened to be sitting on the sidewalk approaching a golf course (without being in the way of the game)?
It is clear that the protest was not intended to obstruct the everyday goings-on at the university. Rather, like the many special events that regularly occur at every university, it was intended to attract attention to an issue important to students – in this case, the protesters’ grievances, justified or not. There is no evidence that the protesters befouled the grass and sidewalk they occupied, or that they prevented other students and faculty from passing through on unrelated business.
Third, even if the protesters violated a formal rule of the university (which is itself unclear), proportionality was not followed in the response. To physically damage a person for breaking a prohibition whose violation physically hurt no one is clearly not a proportionate punishment. Nor was the attempt to evict the protesters through any kind of force justified with respect to this kind of petty violation (if it was one). Even if it could justifiably be said that the protesters were clearly, unambiguously in the wrong in occupying the sidewalk, they should not have been interfered with forcibly during their occupation. An appropriate remedy would have been to inform them of the nature of their violation and to present them with a subsequent punishment that did not involve bodily harm. Preferably, the punishment should have been related to any alleged harms. Examples could include sidewalk-cleaning duty, or fines that reflect the estimated “economic cost” of the obstruction (if there indeed was one).
But, even more importantly, I fail to see how a clear criterion can be established to delineate which “occupations” of the sidewalk would constitute violations of other people’s rights. With regard to genuine public thoroughfares (e.g., roads and railroads), the delineation can be clearly made with regard to whether the flow of vehicle traffic is obstructed. But, on a mere sidewalk, how long would one need to dally in order to be considered a violator? Would sitting for a mere minute suffice? What about standing for a minute? What about standing for five seconds? What about walking really slowly so that others have to walk around? What about walking really slowly because one has a disability? What about walking at a moderate pace when the culture of the university encourages most people to be ultra-rushed and adopt a rapid pace at all times? What if a person occupies the sidewalk for a much longer time period, but no one else is around to use it? Ultimately, no such arbitrary delineation can be made – and if none can be made, then we must err on the side of permissiveness. The ability for people to peacefully express themselves is too precious for anything less to be done in the attempt to preserve it.