Kohn (2013) lionsreadtheory.com 1 Kohn, Margaret 2013

Kohn (2013)
Kohn, Margaret
2013 Privatization and Protest: Occupy Wall Street, Occupy Toronto, and the
Occupation of Public Space in a Democracy. Perspectives on Politics
11(1):99-110.
-----------------------------------------------------------------------------------------------------------The author explores the “tactic of occupation and the theories of public and private that
were used to justify removing the encampments” (Kohn 2013:99)
Kohn challenges “the view that the occupation of parks and plazas was an illegitimate
privatization of public space, a view endorsed by US and Canadian courts.” She goes on
to suggest that the “appropriation of space was the most visible aspect of a broader
assertion of collective control of the common wealth of society” (Kohn 2013:100).
Article focuses on Occupy Toronto and uses Occupy Wall Street as a backdrop.
Explains why critics described Occupy as the privatization of public space.
Introduces two different theories of the public:
1) sovereigntist model
2) populist model
The article ends with elite-led criticisms of the populist model and how they give insight
into the challenges that the “post-eviction” OWS movement must contend with (Kohn
2013:100).
“Yet the tension is obvious when we consider that the economy (“private”) is public in
the sense that it affects the entire society” (Kohn 2013:100).
The article focuses on the Canadian court case, Batty v. Toronto, because it provides a
“detailed defense of the view that the tactic of occupation should be treated as a
privatization of public space” (Kohn 2013:100).
Occupy Toronto
October 15, 2011 2,000 participants marched in solidarity with OWS, while 100 camped
out that night in St. James Park, jointly owned by the City of Toronto and the Anglican
Cathedral (Kohn 2013:100).
“Occupy Toronto was shaped by new participants, including ones who had taken part in
the Spanish plaza protests. Local labor unions supported the initiative by donating
nineteen portable toilets and three yurts” (Kohn 2013:100).
“The site became a nodal point for marches and demonstrations against economic
injustice, and, at the height, there were up to 300 campers including an estimated 100
homeless people” (Kohn 2013:100).
Local business immediately opposed the occupation, some pressuring Mayor Rob Ford to
remove the encampments (Kohn 2013:100).
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Kohn (2013)
On November 14, Toronto police and bylaw officers posted eviction notices in park. The
eviction was stayed pending the outcome of another court hearing on the constitutionality
of the issue.
“The Superior Court of Ontario rejected the claim that the right to free speech and
protest entailed a right to camp in public space.” After ruling on the issue 39 days
after the start of the protest, most campers left freely before facing arrest (Kohn
2013:100).
The main claim against the occupation was the occupation of public space
at St. James Park “amounted to a privatization of public space” (Kohn
2013:100).
“Justice Brown concluded that the occupation was anti-democratic,
at its very core because it denied the city government’s authority to
regulate the use of public space” (Kohn 2013:100).
The court decision raises certain questions: 1) “what is public space and how should it
be regulated?”
2) how can democracy be both a way of
legitimizing the state and a practice of
dissent and critique?” (Kohn 2013:101).
“The Occupy movement is a response to the perceived shortcomings of this model. It is
neither democratic nor liberal in the conventional sense of these terms. It is not
democratic insofar as it uses tactics that used to be called ‘extra-parliamentary’“ (Kohn
2013:101).
“It is also a practice that tries to challenge the values of individualism, self-interest, and
autonomy that underpin liberal theory and practice” (Kohn 2013:101).
“Instead, I want to consider whether the underlying logic and argumentation should
convince citizens who are trying to decide on the legitimacy of occupation” (Kohn
2013:101).
“The Charter does not permit the Protestors to take over public space without asking,
(and) exclude the rest of the public from enjoying their traditional use of that space”
(Kohn 2013:101).
“Opponents of the occupation came to interpret it as a struggle between traditional,
legitimate uses of pubic space (dog walking, strolling, and enjoyment of nature) and
illegitimate, private uses such as camping, preparing food, protesting, and sub-cultural
community building” (Kohn 2013:101).
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Kohn (2013)
Two Approaches to the Public
The court case involved two different views on the concept of ‘public’:
1) sovereigntist
2) populist
Sovereigntist: Based on the Hobbesian theory of sovereignty.
Something is public if authorized by legitimate state institutions
draws on Hobbes’s use of the terms ‘political’ and ‘private’ (Kohn
2013:101).
The public is synonymous with sovereignty (Kohn 2013:102).
public “refers to a centralized, unified state apparatus that governs
society by enacting and administering laws” (Kohn 2013:102).
Private – systems constituted by subjects amongst themselves, or by authority
System – “any numbers of men joined in one interest or business”
Hobbes contrasts private system with political systems (Kohn 2013:101).
Political Systems – authorized by the sovereign state
such as municipal or provincial governments and other
corporate bodies (universities, churches, trade associations)
that are legally under state authority (Kohn 2013:102).
Understanding of public use similar to Habermas’ “German Hobbessianism,” which he
uses to “describe the theoretical grounds for conservative opposition to the blockades,
which was based on the assumption that legitimacy stems from sovereignty” (Kohn
2013:102).
Habermas contested the above perspective by suggesting that “even in a
democracy there are times when law and rights diverge and in these
situations the citizens may have to disobey the law in order to draw attention
to their cause” (Kohn 2013:102).
“...the sovereigntist model of the political is also hegemonic in Canada and the United
States today. According to this approach, the public is synonymous with sovereignty and
refers to a centralized, unified state apparatus that governs society by enacting and
administering laws” (Kohn 2013:102).
The sovereigntist model has two important features:
1) “it takes for granted the separation between rulers and ruled”
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Kohn (2013)
2) “the state has a monopoly over legislating and enforcing the law and citizens
have a responsibility to comply” (Kohn 2013:102).
*”Dissent is a crucial component of this [sovereigntist] model”
Dissent:
Legitimizes the state today, make sovereignty legitimate
Refers to non-violent expressions of political disagreement
e.g. political speech, petition and assembly
Dissent legitimizes sovereignty because the “protection of non-violent dissent within the
bounds of the law is supposed to guarantee that the law reflects the will of the people,
which is the source of legitimacy” (Kohn 2013:102).
The sovereigntist model, as criticised by Habermas, “rests on an unrealistic view of
democratic procedures,” since a “range of factors…the impact of money on politics
and the structure of the mass media distort the process of political representation.
Nevertheless, the right to dissent is consistent with key sovereigntist assumptions”:
First: “dissent is justified in terms of the need to prevent internal violence…the
primary goal of the state” (Kohn 2013:102).
Second: “dissent is acceptable” only if it “functions ‘within the bounds of the
law’”
The second point is significant, insofar that it
“reinforces sovereignty…as government officials
decide what constitutes legitimate dissent and
what constitutes disobedience” (Kohn 2013:102).
The Populist Model
“…signals the political mobilization of the people outside the institutional structures of
the state” (Kohn 2013:102).
Uses Machiavelli’s Discourses to exemplify the populist idea. She describes this as a
“populist reading of Machiavelli” (Kohn 2013:102).
Machiavelli describes the “state as something produced and reconstructed through
the struggle between conflicting groups” (Kohn 2013:102).
This populist reading differs from the republican reading, which highlights 3 parts:
1) importance of balancing interest of ppl and elite
2) the rule of law
3) prudential benefits of promoting the common good
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Kohn (2013)
Kohn focuses on a “different feature: the extralegal expression of popular dissent” (Kohn
2013:102).
In a passage from Discourses, Kohn states how Machiavelli “implies that the people are
not doing anything wrong when they stampede like a herd of wild animals. It is precisely
this bestial quality that is the source of their strength. It is the expression of power, unity,
and resolution that wins concessions from the government” (Kohn 2013:103).
The author argues that the cited passage describes key features of populist theory.
1) Machiavelli notes that the rule of law requires the extralegal as a supplement
2) The supplement “involves the claim that the people assembled on the plaza or
marching down the street serve as a more legitimate expression of the demos than
does the government enacting laws in the Senate” (Kohn 2013:103).
3) “Because aggrieved citizens can express the intensity of their discontent
through protest and non-compliance, the government is forced to negotiate and
compromise, thereby incorporating the people’s desires into the law”
4) “From the populist perspective, the public is an important way of ensuring a
free way of life” (Kohn 2013:103).
5) The populist approach is “collective rather than individualistic and it makes
claims based on power and interest rather than petitioning for the recognition of
rights” (Kohn 2013:103).
Kohn then takes the analysis of sovereigntist and populist models, and suggests that the
“polarized response to the OWS movement reflects these two very different
understandings of the term public” (Kohn 2013:103).
OWS and the Two Models:
Sovereigntist model: Identifies public with the state
Public space is owned, authorized or regulated by the state
From this viewpoint, encampment within a park is considered
privatization because it violates ordinances that prohibit camping
(Kohn 2013:103).
Populist model:
Public is a force that emerges outside of state institutions
Emerge to challenge policies and publicize issues that do not make
it onto the agenda of the government
Defends contentious politics as necessary form of persuasion
Justifies the ‘extra-legal’ as a method to ensure the law does not
protect elite interests and not those of the people (Kohn 2013:103).
The OWS movement took the idea of ‘no rule’ seriously, as this strand of populist theory
inspired many of the open and democratic features of the campsites.
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Kohn (2013)
e.g.: free stores, general assemblies, communal kitchens, decentralized decisions
The idea of ‘no-rule’ also founded the basis that the state should not prohibit people from
engaging in peaceful activities like camping, distributing food in public spaces (Kohn
2013:103).
Privatization and Protest
In Waller v. New York Justice Michael Stallman decreed that “evicting the protestors
from Zuccotti Park constituted a reasonable time, place, and manner of restriction that did
not place an excessive burden on free speech” (Kohn 2013:104).
The Justice endorsed the NYPD’s view that the camp was a threat to fire and
health safety, so effectively the “NYPD is authorized to draw the line |b|
peaceful protest and unlawful disruption” (Kohn 2013:104).
This seems to be the same in Montreal with regards to the students’
strikes, whereby the police have the legal authority to declare a
protest illegal (Kohn 2013:104).
The Justice also noted that the right to free speech should not override the rights
of those who most frequented the park beforehand. Kohn suggests that this
statement “hints that public space is not really intended to be used by all of the
people. It is there for people who ‘live and work in the area” (Kohn 2013:104).
In this way, the public is described in “terms of their private identities as
workers and the occupants of private dwellings” (Kohn 2013:104).
In contrast, the Occupy protestors described an understanding
of public that flourishes outside of the state and serves the
purpose of critique (Kohn 2013:104).
According to the defendant Bryan Batty and Lana Goldberg, the Toronto encampment
had three main purposes:
1) a real shelter for the homeless
2) symbolic expression of dispossession caused by financial crisis
3) place to create a new form of community that put the values promoted
by the protest into practice (Kohn 2013:104).
These aims position the “citizen as an agent rather than a supplicant who is asking the
state to provide some good or service” (Kohn 2013:104).
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Kohn (2013)
Legal Issues and Occupy Toronto
“The legal issues that the courts had to settle was whether the erection of tents and the
occupation itself could be construed as a kind of symbolic expression that should be
protected as a form of free speech” (Kohn 2013:105).
Due to legal precedent, Justice Brown accepted that the encampment was a legitimate
manner by which to express a political message (Kohn 2013:105).
Central question was whether or not the government’s right to regulate the park as
private property was a reasonable limit, and the court decreed that the ban on
camping was a reasonable limit (Kohn 2013:105).
The Populist Conception Reconsidered
The 99% phrase was an “artful populist move,” as it “invoked the people; it
signaled a fundamental antagonism between the people and elites; and it advanced
an argument for direct participation in order to overcome institutional dysfunction”
(Kohn 2013:105).
“the people are a political claim…not a pre-given, unified, or naturally bounded
empirical entity” (Kohn 2013:105).
“Occupy was not only an occupation of public space, but also an attempt to represent the
people. At first this might sound like an odd claim, give the movement’s strong emphasis
on direct democracy and its critique of representative democracy” (Kohn 2013:105).
Kohn asks: “in what sense could a motley assortment of activists, street youth, students,
homeless people, aging hippies, and leftist intellectuals claim to represent the public?”
(Kohn 2013:106).
Turn to Jacques Rancière’s notion of the police and politics:
The police: “broader category that includes aggregating consent,
regulating behavior, distributing resources, defining roles, and legitimizing
these distributions”
Politics: “an activity that is disruptive and antagonistic to policing” (Kohn
2013:106).
“The political is the rupture produced when the excluded
confront the regulatory order of the police” (Kohn 2013:106).
This confrontation does not provide answers but it does pose new
questions, and OWS did just this by asking: “What is the public
good and how is it secured when private interests are so
powerful?” (Kohn 2013:106).
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Kohn (2013)
Conclusion
OWS’s success was in part due to the “uncertainty…created by linking an assertion of
sovereignty outside the law with the practice of ‘no-rule.’ After the evictions, however,
the main source of solidarity–physical co-presence and collaboration–was gone.
Moreover, the uncertainty created by the growth of an alternative in the heart of the city
disappeared as well” (Kohn 2013:106).
Public space is needed not only for recreation, consumption and leisure, but also for
survival, communication and dissent.
The four ways space can be public: 1) they are owned by the government
2) inclusive and accessible to everyone
3) they facilitate sociability among friends and
encounters with strangers
4) a site where conflict between opposing interests
is made visible and subject to dispute (Kohn
2013:107).
“These polemical scenes do not have to convince the spectators and elicit sympathy, but
the actors must at least be able to confront them” (Kohn 2013:107).
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