Saturday, May 17, 2014


On Monday May 5th, Cecily McMillan was found guilty of felony assault against officer Grantley Bovell. Facing seven years in prison, McMillan was led out of the courtroom in handcuffs headed to Riker’s Island to await sentencing scheduled for May 19. I’m not going to argue the details of the case here - that’s not what Missing Point is about. I would like instead to call attention to some of the larger ideas that I believe are getting lost in the shuffle.


The United States Constitution isn’t written to give you your rights, it’s written to protect them. Take for example the First Amendment:

“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.”

Pretty clear, right? These are what are commonly referred to as a negative rights, and these are the type of rights we see throughout much of the constitution. In this case, the amendment is a restriction on the legislative power of Congress to prohibit them from passing laws that curtail your rights. But if the rights themselves are not bestowed on us through our Constitution then where do they come from?

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.”

This familiar passage from the preamble of the Declaration of Independence would seem to suggest that our inalienable liberty rights are a gift from God. So then if your rights are violated, should you take it up with Him/her/it? Who do you appeal to? This is where it can get tricky. Most citizens don’t spend a lot of time exercising their rights, testing them out to see if they really have them. When and if they do, they are often shocked to find that the freedom they thought they had is not absolute, but conditional, conditioned upon the authority of local law enforcement and those who control those forces. Citizens are of course “free” to indulge in the grand illusion of freedom marketed to them through multiple channels; freedom to choose Coke or Pepsi, Paper or Plastic, Democrat or Republican. Providing those who might otherwise feel powerless with ample opportunity to participate in this illusion of freedom distracts them from ever really exercising their rights, reinforcing the illusion of freedom while simultaneously avoiding the complications that come with actual freedom. 

One aspect of negative rights is that they may need to be enforced. Imagine for a moment that you are peaceably assembled outside of a bank that has illegally foreclosed on your home. If the bank’s hired security attempts to restrict your right to be there, is it not the responsibility of your local police force to protect your right to peaceably assemble? But what if your local police force has received money from the bank? If the police then arrest you, charging you with disorderly conduct for instance, what recourse do you have available to you? You can file a lawsuit for damages stemming from your illegal arrest, but this does nothing to restore your rights. Did you even have them to begin with? In this type of illegal arrest, it is the responsibility of other non-arresting officers at the scene to stop their brethren from acting outside the law, and ultimately the responsibility of the city that has contracted the individual officers to protect and serve. This no win scenario model is being replicated on multiple fronts, in cases of voter disenfranchisement, corporate negligence, etc. It is fast becoming the norm in our society, putting folks into situations where their only solace may be compensation for the violation of their rights, but only if they can prove they have been “damaged” by the violation. The litigation can be very costly, going on for years, the ultimate outcome never certain. Involvement in such cases is challenging, requiring those whose rights have been violated to relive the experience again and again as their political views, their character, their very psychological stability are questioned through the legal process. These arrests are a sink hole to siphon off the energy of activists long after the violation has occurred. Prior to the 2008 DNC and RNC the democratic and republican parties respectively took out insurance to cover potential lawsuits, allowing authorities to act with impunity knowing that these “costs” were covered. Looking beyond the semantics, this is a privatization of local police forces as a security detail directly beholden to the political parties. Needless to say, this use of local police to enforce the will of a particular political organization should not be allowed to continue.


When it comes to the First Amendment, we are seeing a strategy of get ’em off the street, sort ’em out later put into practice ever more blatantly, and forcefully, over the last decade. This illegal mass incarceration of citizens exercising their freedom of speech and assembly is a preemptive strategy to minimize the effectiveness of the action. It is an attempt to make dissent invisible. Arrests are often made the day or night before a major demo is scheduled, arrestees are then detained until after the events are over. Another component of this strategy is the wholesale privatization of public space, effectively making peaceable assembly all but impossible. Many people still adhere to the media myth of an Occupy movement that collapsed due to an inability to follow through on its demands, while remaining completely unaware of the massive systematic repression of the movement. Bloomberg’s “army” was out in force the night of the OWS six month anniversary. I have read numerous articles recently concerning Cecily’s trial and the specifics of her arrest, but I have seen no mention in these articles of the other 72 occupiers brutally arrested that night or the more than 7000 Occupy related arrests across the country. This is not an isolated incident and it should not be treated as such. The police claim that they made an announcement that they were going to clear the park so it could be cleaned. This is the same absurd claim they had made to clear the occupation of the park six months earlier, the same kind of unnecessary posturing and provocation that has played out at demonstrations over and over, the same ginned up conflict over essentially nothing. Those that seek to stifle the movement would like nothing better than to sidetrack all the passion and energy of those involved into a conflict over which they ultimately have no control. Six months later, just after the OWS one year anniversary, I wrote a post titled “To PVC, or not to PVC, is not the question.”

“So big deal. It’s just a tube. Why is this so important to me? Well, it’s easy to recognize that the police presence, tactics, actions are intended to intimidate protestors; but I believe community intimidation to be the real focus of these overwhelmingly disproportionate displays of force. These police spectacles are staged over and over at Occupy events, an over reaction to fabricated danger that is simply not present at these events. In a self-validating cycle, it is the police presence itself that creates the appearance of a conflict that they must then police. The 1% are aware just how unpopular their policies are, and the consistent repetition of their “occupiers clash with police” mantra (delivered through their corporate media) is meant to discourage others from joining the movement. While OWS works to broaden the movement and make protest more accessible - the NYPD is tasked with forming a barrier between OWS and the community; via police lines, barricades, vehicles, etc. The implied message is “if you join these folks in protest, you may be subject to arrest.” The heavy police presence can be alarming to those of us who are not faced with it every day in our communities. For those at greater risk of arrest, deportation, etc. these patterns are all too familiar; but the choice to run the gauntlet, when NYPD has been deployed as a barrier to participation, cannot be an easy one to make. It’s a set up. The 1% want you to believe that in order to join the movement, you have to be willing to breach that barrier, to risk arrest. But this is a distraction - the police should not be the focus of Occupy, a manufactured conflict to siphon off our creative energy. The NYPD officers are by definition part of the 99%, being played as pawns to protect the king. It is up to us to stay focused and not let the one percent use us in a similar fashion.”
What is the “implied message” now after the Cecily McMillan trial verdict? “If you join these folks in protest, you may be subject to sexual assault, battery, arrest and a seven year prison sentance”? Whatever your perspectives are about the NYPD, Cecily McMillan, the trial and the specifics of the case, one must consider the underlying question - why are the police there? There is no crime being committed, no property being damaged, no counter protest in sight. The banksters and Wall Street fat cats have all gone home for the day, so they couldn’t possibly threaten the rights of those demonstrating, right? If this country truly stands for freedom, then why is it acceptable when authorities arrest and detain those exercising that freedom?


Over the last several years, the democratic party (with ample republican assistance) has engineered an entire electoral platform based on protection of rights that you already have, rather than on the expansion of those rights. On the 50th anniversary of the Civil Rights Act, President Obama delivered a speech at the LBJ memorial.

“But we are here today because we know we cannot be complacent, for history travels not only forwards, history can travel backwards. History can travel sideways. And securing the gains this country has made requires the vigilance of its citizens. Our rights, our freedoms -- they are not given. They must be won. They must be nurtured through struggle and discipline and persistence and faith.”
A day later at the National Action Network Conference the President made an impassioned speech urging people to get out the vote. Here again he brought up the idea of “being vigilant.”
“The principle of one person, one vote is the single greatest tool we have to redress an unjust status quo. You would think there would not be an argument about this anymore. But the stark, simple truth is this: The right to vote is threatened today in a way that it has not been since the Voting Rights Act became law nearly five decades ago.”
While there are most certainly attempts being made all over the country to disenfranchise voters I question the veracity of these statements for a number of reasons. The first quote seems to conflict with that line from the Declaration of Independence I mentioned earlier, the one about God giving you your rights. Perhaps these are positive rights that Obama is talking about, like for instance the right to housing or healthcare, but that seems unlikely. Clearly he is talking more specifically about the right to vote in the second quote - perhaps that one doesn’t fall under “life, liberty and the pursuit of happiness”? With a couple stolen elections in our recent past, each very much a function of the disenfranchisement of voters in urban centers (majority “minority” voters), is it disingenuous to claim that “the right to vote is threatened today in a way that it has not been since the Voting Rights Act became law nearly five decades ago”? Does a focus on not losing rights redirect organizing power away from expanding those rights? Should the democratic party, and the power base they are beholden to, become the defacto recipient of all of the votes in question simply for taking the role of voting rights champion in yet another convenient dualistic conflict? And finally, is the principle of one person, one vote actually “the single greatest tool we have to redress an unjust status quo”? Occupy Wall Street, and the multiple popular movements that have manifested around the globe over the last few years, do not subscribe to this notion. These movements are based in the idea of direct democracy; empowering, respecting, and honoring all involved; rather than delegating (surrendering) authority to a representative few. Many continue to claim that the President is simply stating the reality of the situation, that change only comes incrementally - so don’t be discouraged. But as someone who studies communication I cannot help but note that his speeches are like opiates, soothing the pain while calling us to action to vote for more of the same. There are those who loudly exclaim “freedom is not free,” but it is this very view of freedom as something that must be won, rather than something that should be intrinsically recognized, that fuels this absurd dualistic dance.

Apathy? No, not really. It isn’t that people don’t care, it’s that they don’t believe that their efforts can make a difference. When they stand up, they are ignored and/or mocked by the media. They are dispersed, detained, or arrested by the (their) police. Any gains they might make can just be rolled back at anytime in the future. Their government, and the corporate shills that populate it, will continue doing whatever is in their best interest regardless. The list of seemingly insurmountable obstacles is long. So why should you bother to take action? Well one of the obvious reasons is because you know that the powers that be are expecting you to stay home, that they are engineering the whole damn experience to be as frustrating and appear as futile as possible, and you think that is bullshit. In our success and results oriented culture it is easy to lose sight of what happens on the journey, to put the goal before the process itself, this is why we can talk about being “free” without ever really exercising our freedom. Freedom is not about about picking the winner or choosing a side. It’s not about the endless artifacts that you can choose to purchase or display to represent your “self.” It’s the exploration that counts, the discoveries you make, the relationships that develop along the way. The ideas that evolve exponentially when our adherence to the dualistic conflict falls away. There is nothing quite like experiencing the realization of your own freedom, of manifesting the indomitable spirit that is within each and all of us. If you haven’t taken to the streets before then perhaps it is time for you to test those inalienable rights of yours, to find out how they work, to experience what it means to be free.

To tell McMillan’s story and assess its consequences, a group of editors revived the Occupy! Gazette in anticipation of her May 19 sentencing. Their hope is to enter into evidence what the court ignored. “Any meaningful conversation about McMillan must address the nationwide trend of suppressing protest, the NYPD’s ongoing assault on communities of color, the justice system’s failure to investigate wrongdoing by the police, and the tendency to disbelieve women’s testimony in cases of sexual assault.” Free Cecily McMillan! A Special Issue of the Occupy Gazette (pdf).

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