Occupy Wall Street, One Year Later: Lessons for Corporate America and Its Counsel

Yesterday marked the one-year anniversary of the start of the Occupy Wall Street protests. Just outside my Manhattan office, there were marches, demonstrations, music, and mayhem. Drum circles pounded all day and puppets paraded while the police struggled to keep traffic, both vehicular and pedestrian, flowing.

And in the aftermath, both protesters and their ostensible targets in corporate America are looking around and asking (to steal a line from Robert Redford in the movie The Candidate): “What do we do now?”    

For the purpose of this column, there is an additional question: is there anything to be learned? A year later, what does the rise and fall of the Occupy Wall Street movement teach us about message and protest, public perception, and crisis response?

First, let’s acknowledge that those in the Occupy movement don’t necessarily believe their moment is past, their cause dissipated. Protests persist, particularly in cities like Oakland, and it’s quite possible that new momentum will grow out of this anniversary, thrusting the protests back onto the (now-proverbial) front page.

Moreover, in many ways Occupy Wall Street has already succeeded. As I argued last year in this column, while the movement may have lacked direction and cohesion, there was little doubt that the main thrust of the protestors’ message had gotten through. “The 99%” has now taken a permanent place in the political, economic, and social lexicon. Issues of disparity between those at the top of the economic ladder and the growing numbers at the bottom have come into sharp relief. The impact of large financial institutions on the lives of ordinary Americans is now a daily topic of conversation in many quarters. Student loan debt as a lifelong shackle on the lives of many college graduates has been universally acknowledged. And if the “middle class” were always going to be an issue in the 2012 presidential elections, OWS certainly help to ensure it remains front-and-center throughout the campaign (although it is interesting to note that both presidential candidates seem to think the “middle class” include those who make up to $250,000 per year—which, if not the top 1% in annual income, is certainly within the top 5%).

So despite the perceived failings of the movement after police disbanded their encampment in lower Manhattan’s Zuccotti Park last November, their message has survived. And that, I believe, is a testament to the simplicity and strength of the phrase “The 99%”—which immediately conveys its meaning in a manner that has resonated with audiences throughout the land.  

Therein lies a significant lesson, in fact, particularly for those of us who are lawyers and have been trained to believe that the strength of a message lies in its argument. Build a well-reasoned, unassailable argument, we believe, and your message will prevail. But such is not always the case, particularly outside the courtroom, before audiences who have not been similarly trained. We don’t all worship at the altar of argument, after all. At times this can be bitter hemlock indeed for those of us trained in Socratic logic.

Much of the time, in fact, strength of a message lies not in its argument but in its resonance. Whether playing offense or defense, your message must be memorable, sharp, and succinct. “Sticky” is the term now en vogue in many messaging circles. If your message is logical and irrefutable to boot, all the better. But remember: even the most logical argument will fail to persuade if no one ever hears it.

Occupy Wall Street, and the various responses to the protests, have also served to reinforce the fact that most, if not all, public perception battles come down to a question of reasonable versus unreasonable. In other words, if I can properly convey the fact that I am being reasonable in my positions and demands, and my adversary unreasonable, I win. Conversely, if I seem unreasonable in my position (even if, by the way, the law is ultimately on my side), I lose—perhaps not in the courtroom, but in the broader court of public opinion (where the stakes can sometimes be even higher).

In the case of Occupy Wall Street, despite the effectiveness of the 99% message, when the movement and its tactics got so wild as to seem unreasonable, they were far less effective. At first, the demonstrating garnered supported and sympathy as the police appeared to overreact.

Tolerating crime and abuse at the Zuccotti Park encampment, for example, or preventing other members of the 99% from getting to work, just served to blunt the impact of more effective central themes regarding income inequality and our allegedly rigged financial system.

So, too, with public officials and corporate executives in their response. As Americans, we quite reasonably believe that allowing citizens to march, publicly assemble, and state their grievances are ideals that make our country great. Attacking the protesters’ right to do so sends—at best—the message that you are unreasonable and intolerant of dissent, and—at worst—that you have something to hide. Conversely, however, you can reasonably draw the line at trespassing or the destruction of property. Where public officials and corporations have done so, they have been quite effective in their response.

Finally, the Occupy Wall Street experience shows once again the importance of crisis communication preparedness. The time to be making decisions regarding which messages and responses work, or what is reasonable or unreasonable in response to a protest or other crisis, is not after the first protester has shown up at your door or occupied your courtyard.

A big mistake that both New York City and the corporate owners of the privately owned Zuccotti Park made in the initial hours of the Occupy Wall Street protest was to allow protesters to camp in the plaza overnight. As I’ve written, this was primarily because the rules governing so-called “privately owned public spaces” in New York hadn’t been updated in more than 20 years. With a little planning and foresight, rules could have been properly defined well before the Occupy Wall Street protesters first took up residence. Which would have made the response to the protesters seem all the more reasonable—and would have made the subsequent razing of the protester’s encampment, in November 2011, unnecessary.