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We Have a First Amendment Right to Protest -- So Why All These Arrests Around Occupy Wall Street?

Many of those detained won't face charges, but the arrests take them off the streets.

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Another issue underlying these widespread arrests is what, exactly, constitutes “legitimate government interests.” According to Ratner, “A lot of general ordinances are being used illegally. They're using general statutes that are very vague, and subject to a cop's own feelings.”

He noted that the vast majority of those arrested in New York were charged with disorderly conduct, a statute that prohibits people from making "unreasonable noise," obstructing "vehicular or pedestrian traffic," or congregating "with other persons in a public place” after receiving “a lawful order of the police to disperse." Ratner notes that most of these “arrests won't stand up,” but, in the words of former police chief John Timoney – the architect of what's come to be known as the Miami model of aggressive crowd control – “you can beat the wrap, but you can't beat the ride.” In other words, activists subject to arrest may have their cases thrown out of court, but not before being taken off the streets for a period of time.

There are also questions about whether these ordinances are truly content-neutral. At the site of Occupy Wall Street, rules are being put into effect “after the fact,” says Ratner. “In New York, there were a bunch of regulations issued around Zuccotti Park once the occupations got underway. No camping, no tarps – that already tells me that there's a question here about whether these rules are truly neutral. It looks like they're specially tailored toward the people doing the occupation.”

Another question is whether these myriad ordinances are narrowly tailored. On its face, in the context of a political movement premised on occupying public space, passing or enforcing laws that forbid any manner of occupation appear to be overly broad. The courts have long ruled that the exercise of our First Amendment rights justifies some minor inconvenience to the public.

“If you look at the history of these kinds of regulations of public spaces,” says Ratner, “even though they should be the preeminent place for dissent in this country, they are loaded with regulations essentially intended to limit dissent.” Ratner predicts that most of the cases brought under these kinds of restrictions won't lead to convictions, but in all likelihood the underlying issues also won't be subjected to judicial review.

Joshua Holland is an editor and senior writer at AlterNet. He is the author of The 15 Biggest Lies About the Economy: And Everything else the Right Doesn't Want You to Know About Taxes, Jobs and Corporate America . Drop him an email or follow him on Twitter.

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