This diary started out as a comment on angelajean's excellent diary about the leaderless nature of the Occupy Wall Street, etc., movement and how the lack of structure conflicts with permit requirements. But it got too long.
Ben Masel would have written this diary were he still with us, as he once intentionally took a ticket for "gathering without a permit" in order to test federal regulations applied in national forests to another leaderless movement: the so-called Rainbow Gatherings.
I have some bad news for you. He lost. The good news, however, is because people like Ben and a cast of thousands refused to budge on the issue and fought back, we won. And that victory will help the Occupy movement prevail in the coming permit ordeal.
I met Ben Masel at some Rainbow Gathering somewhere. I think it was in Alabama in 1993, when the US Forest Service had proposed a regulation in the Federal Register attempting to force the non-existent, leaderless non-entity called "The Rainbow Family" to first obtain a permit before "holding" gatherings of up to 30,000 people on remote public lands. Ben predicted at the beginning we would lose the court battle, but win the war.
Like the Occupy movement today, the gatherings had a long history (by 1993, 20 years) of minimizing impacts, acting responsibly, cleaning up afterwards, and (for the most part) acting lawfully. And like the Occupy movement today, everyone came up with solutions much like those in the comments section of angelajean's diary. Some cute and funny. Others that sound nice on paper (every person signs a permit for him/herself, which doesn't work because you need x number of people to need a permit, for example). None that would hold up in a court of law.
Like any leaderless movement, consensus on what to do was impossible, except for One Thing: NO ONE signs a permit in the name of or represents in court the legally non-existent "Rainbow Family," because, like the Occupy movement, no one speaks for the legally non-existent "Rainbow Family."
We spent many years battling it out in court and amongst ourselves on strategy. It didn't help that organizations like the National Lawyers Guild COMPLETELY IGNORED (and we thoughtfully and emphatically requested their help) our calls for help as one legal novice after another was steamrolled in federal courts that also did not take this threat seriously.
It all hinges on what constitutes a reasonable time, place, and manner restriction. The Courts have agreed on the three-pronged test established by civil rights era cases like Shuttlesworth v. City of Birmingham. Essentially, the permit regulation needs to be 1) content neutral; 2) narrowly tailored to serve a significant government interest; and 3) the government needs to leave open ample alternatives for communication. Hate to tell y'all camping at these various protests: the courts universally found that camping is not considered a first amendment protected activity. Sorry. They'll say you could all stay in hotels or some such nonsense.
U.S. v. Kalb 86 F.Supp.2d 509 (W.D.Pa. 2000). This is the case Bloomberg's legal thugs will reference in federal court in the case against its hand-picked "defendants" when the time comes. It's not pretty and has been upheld by three Appellate Courts, all the way to the Supreme Court. Before Roberts and Allito. It's what legal professionals like to call "settled law."
CORRECTION: Kalb was denied cert in favor of Thomas v. Chicago City Parks 534 U.S. 316 (2002) 227 F.3d 921, affirmed. Didn't even need to read the case. Scalia wrote for the majority. In any case, the Kalb defendants were ordered to serve their sentences after this decision was handed down and that was that.
Thus ended the legal challenge phase of the Rainbow Gathering permit struggle. With a SCOTUS ruling behind them, Forest Service Law Enforcement attacked the gatherings with impunity, getting permits signed under duress at smaller regional gatherings, while arresting many and handing out citations to a limited number of hand-picked permit regulation violators--usually people they observed performing an important function like tending to sick people or scouting for gathering sites.
The penalties got worse as compliance was non-existent. Ben's was an early case at a regional gathering in northern Wisconsin in 1998 and he got a $50 fine. That's when they were just looking for a declaratory judgment. The Defendants in Kalb got the maximum penalty: six months in jail and a $500 fine. Repeat offenders got the same plus a one year ban from gathering in any national forest in violation of the regulation. They even sent one repeat offender to Sea-Tac!
Some people got sick of it and volunteered to sign permits for the Annual gatherings in Californina (2004) and West Virginia (2005), with the caveat that they would not sign for anything remotely called "Rainbow" anything and that they didn't actually have any authority to tell anyone anything. These poor souls suffered threats and barbs from people benefiting from their sacrifice, along with getting run ragged by the Forest Service.
In 2006, the Forest Service denied a permit application for the gathering in Colorado on safety grounds (even though they recommended the site), arrested a lot of people, handed out a bunch of citations, blah blah blah. No one bothered to apply in 2007 for Arkansas and it was pretty much the same.
The following year the Forest Service tired of the chase and worked out an operating plan with the gathering (much like those used from 1972-1995 and often proposed by concerned gatherers). Since 2008, it's pretty much reverted to the old days, where Forest Service representatives meet with self-appointed volunteers to work out locations and some logistics, emergency plans, sanitation, etc., and that works very well.
Except that it does not allow the Forest Service to do what it really set out to do, which is to end Rainbow Gatherings forever.
And that's where the Occupy will reap what we have sewn. Yes, Kalb is the prevailing law of the land. But even the Forest Service, who spent countless man hours, DOJ resources, and ill will trying to make a non-organization comply with an impossible regulation...doesn't even use that regulation anymore.
Sure, the government has an interest in public safety and sanitation in lower Manhattan. But there are better ways to deal with that concern than a permit that will necessarily alter the nature of the expressive activities. So if safety and sanitation are your issue, fine. Let's work that out. But if your goal is to appoint "leaders" to "take responsibility" for a bunch of random individuals in Manhattan (or wherever), we refuse to comply. In this case, the government will need to conform with the needs of the people.
If Ben were still with us, he'd be there, in some National Lawyers Guild lawyer's ear sharing this information (welcome to the game, better late than never, mates!) so heads don't start exploding when Bloomberg's legal goons shout "KALB!" Which they will.
As an aside, I'd be shocked if Joannie Kalb "Freedom" herself along with many "Rainbow" regulars weren't somehow involved in the Occupy movement. Occupy's leaderless non-entity consensual model is rainbow through and through. And because Ben and many other non-leaders of a non-entity already did the leg work, Occupy will not need to reinvent the wheel on the permit issue.
In Solidarity.
The Man from Wasichustan