Volunteers from the National Lawyers Guild, wearing bright green caps, have been on hand in cities throughout the country to represent protesters who get arrested and to review ordinances and police conduct. The back-and-forth between law enforcement organizations, which say they must protect public spaces and businesses, and lawyers for the protesters who advocate for the right of free speech in public spaces, is by now familiar (more on this below).
But there are a number of lesser-known legal advocates like Akshat Tewary, Matthew Edge, and Dan Massoglia who quietly pour over complex legislation that is at the heart of the Occupy movement’s 99 percent slogan. They work in small groups, come up with proposed policy fixes to laws they believe disproportionately benefit the wealthy, and they present their findings to the organization’s General Assembly.
“If you don’t understand the law, your interests are not served,” says Tewary, an attorney in New Jersey who has a small practice in administrative, immigration, employment, and corporate law. “People are disenfranchised who don’t have that institutional understanding.”
The Occupy movement offers a “ripe opportunity” for lawyers to get involved, Tewary adds.
Tewary, of the Law Offices of Kamlesh Tewary, P.C., discusses the 500-page federal banking reform law, known as the Volcker Rule, the way a freshly prepped bar-exam candidate rattles off the exceptions to the hearsay rule. He had read about the section of the Dodd-Frank Wall Street Reform and Consumer Protection Act—a measure that is designed to curtail propriety trading by banks, and prevent a repeat of the 2007 industry collapse and subsequent government bailout. But it was at an Occupy Wall Street lecture in October 2011, presented by a financial expert, that his months-long education and participation in a small group known as Occupy the SEC began. He is the only lawyer in the group, which is composed mostly of financial experts who used to work on Wall Street. And for a period of time, he became a go-to expert source for cable news programs.
Together, members of Occupy the SEC poured over the Volcker Rule, which was passed by Congress, and, after some tweaks, a number of federal agencies, including the SEC, the FDIC, the Federal Reserve, and The Office of the Comptroller of the Currency. (The regulatory provisions of the rule, which will amount to about 30 pages, are scheduled to be implemented later this year.) The Occupy the SEC group drafted a 325-page comment, addressing what they believed were loopholes in the law that allowed banks to continue to engage in proprietary trading—investing for their benefit federally insured customer funds even though the law was meant to curtail such practices.
Opponents of the Volcker Rule, largely members of the banking industry, complained that the law was too costly to implement and impedes their ability to compete in the global marketplace. Of the estimated 17,000 comment letters that the government received in response to the Volcker Rule and the regulatory scheme, about a dozen came down on the same side as Occupy the SEC. The rest were on behalf of, or on the side of, the banking industry, complaining that the law and regulations would place too many restrictions on the financial industry.
Still, in March, Tewary and the other members of Occupy the SEC were granted a meeting with representatives from several federal agencies in Washington about their objections to the Volcker Rule.
“It was a very interesting experience,” Tewary says. “We ended up essentially becoming lobbyists on the other side, except that we were unpaid,” a slight but important distinction, he notes. “We were sitting in a conference room with a lot of people in suits. Most of them had read our comment letter. They asked us a lot of questions. And we were well versed by this time.”
It’s not likely that regulators will change the Volcker Rule to suit Occupy the SEC’s opinion, but they participated in a tangible way. “We’re smart, but we’re not geniuses,” Tewary says. “Any group of people that dedicates itself to some regulatory or legislative issue, if they band together and work hard, they can have some impact,” Tewary says. “No one would have read our letter if we wrote it as seven individuals. It really speaks to the power of a small group. We met with 100 regulatory officials and not a single one of us is a banking financial lawyer.”
Campaign Finance Reform
Matthew Edge, 30, graduated from City University of New York School of Law in May. A self-described full time activist, Edge, of Berne, New York, has an answer to Occupy critics.
On the upcoming anniversary of the September 17 Occupy Wall Street protest in New York, Edge says he and members of a working group of the organization—The Occupy Democracy Project—will make public a final version of a campaign finance reform bill that they will ask New York lawmakers to consider passing into law.
“This will help us to contextualize for the media and the general public the sentiment behind the movement with a concrete example,” Edge says. “Here’s a bill. Is that specific enough? We’re not just marching in the streets to get attention.”
He and several other students in a law school class wrote the bill after studying a number of campaign finance reform laws and case law from the US Supreme Court. Other Occupy members joined in the effort, including a chemist, an architect, and some public policy experts. Mirrored after Clean Elections ballot initiatives and legislation that had been proposed and passed in several states over the last decade, the Occupy bill allows public financing for candidates who collect a certain number of small donations; typically $5, and matching funds if they are wildly outspent by opponents who are not accepting public funds.
In an important 5–4 ruling largely ignored, Edge complains, the US Supreme Court held that Arizona’s Clean Election law, which was passed by voters in 1998, was unconstitutional because it chilled the First Amendment rights of those candidates who chose not to accept public funding. Clean election laws are a form of campaign finance reform intended to limit the influence of large, private donations in elections. Under the laws passed in some states and cities, candidates can refuse to receive practically any private money in exchange for receiving public funds; in some cases in amounts matching what their opponents receiving private funds are spending. The laws are wildly popular by the so-called “clean elections” movement, but are considered complex and an infringement on free speech by opponents.
Although he strongly disagreed with the Supreme Court’s ruling in the Bennett case, Edge says the proposed New York campaign finance reform bill was written to address some of the constitutional concerns cited by the majority in the Arizona ruling. He says the bill has the support of working groups in a number of Occupy movements. “We were able to use our expertise in law to help guide the Occupy movement, to help activists achieve their ends,” Edge says. “We have this great independence. So much of campaign law is typically drafted by interested parties.”
Edge says he learned in college, when he was a member of Democracy Matters, “that every issue wasn’t going in the direction I wanted it to because politicians were dependent on the contributions from special interests. I decided to stop fighting against the symptoms and go to the root cause.” The root cause, he explains, was money; specifically campaign contributions from special interests that he believed were influencing politicians’ positions of key issues. So he began tackling campaign finance reform with the hope that candidates elected to office would be beholden to the public rather than special interest groups.
Heidi Boghosian, executive director of the National Lawyers Guild in New York, had no idea that the Occupy movement would last so long and become part of the group’s work from coast to coast when she was contacted a few weeks before demonstrations began in New York and asked if the Guild would provide assistance if needed.
“We haven’t seen anything like it since the anti-war protests of the Vietnam War era,” she says.
What she’s seeing and what other volunteers are reporting to her do not bode well for the First Amendment rights of protesters, she says. Vast public spaces have been closed off; parks in the small cities in the middle of the country that were opened all night all of a sudden were closing at 1 a.m.; police in riot gear would show up in Union Square Park in New York and say it was time to clean the park.
Spontaneous protests in many cities are simply unlawful. Instead, permits are required in advance. Most arrests are for trespassing and civil disobedience. Guild lawyers keep copious track of arrested protesters, representing them through arraignment, although most cases are dismissed or result in a small fine,
Dan Massoglia, who just completed his second year at Chicago-Kent College of Law in Chicago, is an active member of Occupy Chicago and started a small Occupy group at his school. He has worked closely with Guild lawyers and got an interesting taste of cyber law.
Massoglia writes for a publication and website called “Occupied Chicago Tribune,” which has had three 20,000 print runs but primarily is web-based. The website and publication, calling itself a news organization for the 99 percent, states that it has no affiliation with the Chicago Tribune newspaper. But its clear poke at the establishment did not go unchallenged. Lawyers for the Chicago Tribune newspaper took legal action seeking to seize the group’s domain name. On July 5, the World Intellectual Property Organization (WIPO) ruled against the Chicago Tribune, saying the Occupy movement was by now so well known, there is no possibility that the two organizations would be confused with one another.
“The Panel agrees with Respondent’s assertion that no reasonable person in the Chicago area would confuse the Domain Names with Complainant or Complainant’s publication,” said WIPO panelist Michael A. Albert.
“The web is a battleground,” says Massoglia. “It’s really important that all interests are represented equally.”
Another cyberlaw case, which received national attention, was decided in favor of Manhattan prosecutors who successfully subpoenaed the tweets of an individual user who got arrested on the Brooklyn Bridge during an Occupy march. Prosecutors argued that the tweets were necessary to rebut a defense that police forced protesters into the streets during an October 2011 demonstration across the bridge when 700 people were arrested, according to published reports. An individual defendant, Malcolm Harris, and lawyers for Twitter had moved to quash the subpoena on privacy grounds and a number of legal organizations filed amicus briefs on their behalf. But Judge Matthew Sciarrino said the tweets were public; likening them to bank record, or to someone shouting out the window. Lawyers for Twitter insisted that the tweets of its users are protected by the first amendment and said they would appeal the ruling in the case, which is being closely watched by First Amendment and social media experts alike.
Lawyers and law students say they will continue to lend their skills to the Occupy movement, be it to protect the right to protest or to draw public attention to policy issues. Tewary is currently working on an analysis of an SEC regulatory implementation of the JOBS Act, which he says would leave small investors vulnerable to fraud. The National Lawyers Guild plans on continuing to file challenges to unconstitutional protest ordinances, freedom of information act requests, and civil rights lawsuits on behalf of protestors, Boghosian says. Edge has a 3,000-member voting bloc in New York and a fair-trade coffee roasting business to raise funds, which he plans to use to unseat or elect state lawmakers.
“It’s pure citizen action,” Tewary says.
True, the streets are not brimming with protesters as they were last fall. Members of the movement, sometimes depicted on television news spots sitting in circles waving their fingers to show support or disagreement with one principle or another, have been at the receiving end of derisive commentary from the right and the left who complain that the protestors should get a job or find a cohesive message, respectively. Will it evolve or peter out? Will it splinter into several smaller groups? Will it become a political force to be reckoned with? Will it be co-opted by mainstream organizations or rendered ineffectual by law enforcement? Those with legal expertise will be instrumental in shaping Occupy’s future.