Free Speech and Social Movements — Demonstration by Occupation in a Democracy

Abstract

Protest by occupation of public spaces has been a feature of 21st century activism around the world. The Occupy movement, ‘Arab Spring’, Occupy Central in Hong Kong and the Sunflower movement in Taiwan have sparked popular interest in such demonstrations. However, there has been relatively little legal analysis of American occupation-based protests and the role of social movements in a democracy. The article takes the Occupy movement as its case study, examining intermediate court Occupy cases to show how political expression is limited by the US Supreme Court’s free speech principles. It argues that First Amendment free speech principles are ill-suited to protecting the protest activities characteristic of contemporary social movements, and should be revised. The article is interdisciplinary, drawing on the work of well-known social scientist Charles Tilly. It is presented in three parts. The first explains Tilly’s theory of a social movement, then focusses on the intersection between social movement campaigns and the right to free speech. The second part analyses the definitions of freedom of speech developed by the US Supreme Court, relying on Tilly’s work to show that the definitions do not fully recognise the expressive nature of social movements. The failure of the intermediate court Occupy cases can be explained by the courts’ inability to appreciate the significance of occupation-based protest, due to their reliance on the Supreme Court doctrine. The third part contends that Supreme Court principles need to be revised to fully recognise the contribution of the social movement to American public discourse. The article contributes to the journal theme by providing an analysis of the role of today’s social movements as agents of change. It highlights the opportunities for those movements—and the limits on them—to bring about social change through free speech litigation.