Tennessee Judge Says Occupy is Legal

UPDATE: Federal Judge issues injunction protecting Occupy Cleveland. “Protesters may stay 24 hours a day.”

For the last few days, protesters in Nashville have been getting arrested for refusing to leave the public parks at night (sound familiar?).

And for two days, Magistrate Thomas Nelson, has released all of the arrested protesters and dismissed the charges against them, saying that the state had no right to detain the protesters in the first place.

ABC News Reports:

However, in Nashville, a few hours after the protesters were taken into custody Thursday night, Night Court Magistrate Thomas Nelson let them all go.

He did the same thing the next night when troopers brought in another group of protesters, telling the officers “your warrant is denied.”

Nelson released the demonstrators and refused to sign the arrest warrants, arguing that authorities had no legal basis for the arrests.

A little constitutional history and commentary from me after the jump…

The First Amendment of the US Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now, a few of you may have had the thought occur to you “Wait, it says Congress can’t do that. It doesn’t say anything about states or cities.” And you would be right. In fact, in 1833, the Supreme Court ruled that the states did not have to abide by the restrictions of the Bill of Rights, as its provisions specifically and exclusively applied to congress.

But that was only true until 1868, when the Fourteenth Amendment was passed which, among other things, says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

From this point on, the Bill of Rights was understood to apply to all governments, big or small.

So, if a city passes a law that says you are not allowed to protest between the hours of 11pm and 5am, that city is violating the portion of the first amendment which says:

“[Governments] shall make no law… abridging… the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Definition of “Abridge”:

a·bridge   [uh-brij]  Show IPA

verb (used with object), a·bridged, a·bridg·ing.

1.

to shorten by omissions while retaining the basic contents: to abridge a reference book.

2.

to reduce or lessen in duration, scope, authority, etc.; diminish; curtail: to abridge a visit; to abridge one’s freedom.

3.

to deprive; cut off.

The State of Colorado, the City of Denver, and dozens of state and local governments across the nation are violating the constitutional rights of the citizens. There is no reasonable argument to the contrary.

And now, at least one judge is saying so. Expect a lot more very soon.

Denver City Council: Want to be on the right side of history with this issue? Pass a law right now providing an exception to city park hours for the purpose of political protests protected by the First Amendment.

Colorado General Assembly: Same goes for you, but you won’t be meeting again for another two months, so I’ll get back to you then.

22 Community Comments, Facebook Comments

  1. ssalxs says:

    In this youtube video – “Full Press Conference: Gibbons Discusses Occupy Nashville Arrests”

    http://www.youtube.com/watch?v

    Gibbons says he can do it based on numerous past cases.

    Thanks.

    • AndrewBateman says:

      … the judge keeps letting them go.  

      • ssalxs says:

        I was trying to ask how the state and cities are able to stop Occupy from being in parks etc 24/7 if its against the constitution.  

        Been reading conservative bloggers (research) who write that should be able to protest 24/7 if holding a sign and don’t stop moving.  Tents, tarps, tables, and now bookshelves (Austin) are not protesting, until they want to do it…

        How have cities and states been able to stop Occupy Movements from being in public spaces 24/7 based on what you have written here.

        Gibbons is saying there is case law to back him up.  Forget the farce they tried to do on Thursday, I mean more generally.  As in if they had done this a year ago or whatever.

        We have a situation where I am, all parks are closed period.  End of story.  Will be arrested after 10pm.  How is that even possible?

        Hope that is clearer.

  2. nancycronk says:

    people were not arrested for their speech, but for camping, or for orders to move when the camping equipment was being removed. I have to say they might be right in that situation, from a strictly legal point of view. Unless they can make the case that people have the right to camp while protesting in city parks, we might have a problem.

    From a PR point of view, the Mayor and the Governor have been terrible about communicating on this issue. The Governor has eroded a lot of support from his base by not taking the opportunity to speak in support of the reasons people are protesting, as Senator Carroll and  Congressman Perlmutter have done. The Governor is giving the appearance of protecting his relationship with the banks and with big business, which is a huge political mistake for him, and is causing the protesters to get even more riled up. It also gives the appearance his huge election margin means he doesn’t have to care. I suspect he does care. (Either that, or at least his wife, Helen Thorpe, probably does. After all, she did write a book sympathetic to children of immigrants, so she has to have a heart and a pulse.)

    Governor Hickenlooper — you need different advisors. Call me, dude.

  3. OrangeFree says:

    The State of Colorado, the City of Denver, and dozens of state and local governments across the nation are violating the constitutional rights of the citizens. There is no reasonable argument to the contrary.

    Actually, there is.

    Constitutional Law, and thus the legal definition of the “rights” in this country to the selective understanding and cherry picking of both those on the right and the left, is actually based on two things:

    1) The Constitution as written

    2) 200+ years of judicial precedents interpreting what is written.

    Now, to why state and local governments can ban you from being in a park over night

    See: Time, Place and Manner Restrictions.

    The Supreme Court has ruled, interpreting the 1st Amendment as such, that under certain circumstances, public spaces can be closed off without violating your rights. Those narrowly construed circumstances include:

    1) Be content neutral – NO ONE is allowed to camp in the park over night, liberal, conservative, libertarian or otherwise.

    2) Be narrowly tailored – Only parks, only during a certain time unless one holds a permit.

    3) Serve a significant governmental interest – maintenance of the park

    4) Leave open ample alternative channels for communication – The sidewalk, right next to the park, is continuously open for all your 1st Amendment needs.

    I’m sorry, but constitutionally, as it stands right now, you don’t have a right to camp in the park overnight.

    Don’t like it? Appeal to the Supreme Court and have them change the precedent. Or, as you said, urge City Council to change the law regarding Civic Center Park.

    And since I like to throw down the History Hammer: the 14th Amendment didn’t automatically apply the Bill of Rights to state and local governments. It took decades of Supreme Court rulings (that tricky other side of the constitutional coin again!) to apply them, many times one amendment and court case at a time, to anything but the Federal Government (called incorporation cases). It was even only recently that the 2nd Amendment, of all things, was incorporated to apply to state and local governments (D.C. and Chicago gun ban cases incorporated them officially I believe).

    • Aggie says:

      for “strictly scrutinizing” Bateman’s weak legal analysis.  

    • AndrewBateman says:

      I’ll admit to being somewhat brief, but yes I recognize that the 14th amendment didnt immediately correct things, and I understand that judicial precedent matters.

      As for what is reasonable in Time, Place and Manner, I’ll respond point by point.

      1) Be content neutral – NO ONE is allowed to camp in the park over night, liberal, conservative, libertarian or otherwise.

      That may be what the law says, but it has not been enforced against other groups, ever, the way it has been against this one. And remember, they are citing the camping rule as their justification. Yet, as I pointed out a few weeks ago, people camping out waiting for the new iPod were allowed to do so and homeless people have been sleeping in those parks for years. It is only when the political message was added that the law was enforced. That means its not neutral.

      2) Be narrowly tailored – Only parks, only during a certain time unless one holds a permit.

      But since parks are the only available place to protest in Denver, that eliminates the ability to protest between those hours and reach the people who would be driving down the street at that time.

      3) Serve a significant governmental interest – maintenance of the park

      If you can show me anything that supports this point, or any evidence that the protesters have, in any way, prevented the maintenance of the park, I will concede this point, but so far, no one has been able to. I was there, in fact, when organizers told the Governors chief of staff, to her face, that they would be happy to work out a system of rotating the placement of structures and people so that workers could do what they needed to do. The Governor’s CoS said it didn’t matter.

      4) Leave open ample alternative channels for communication – The sidewalk, right next to the park, is continuously open for all your 1st Amendment needs.

      Actually, the sidewalk is considered part of the park. And many of the people who have been arrested thus far were on the sidewalk.

      • OrangeFree says:

        1) Be content neutral – NO ONE is allowed to camp in the park over night, liberal, conservative, libertarian or otherwise.

        That may be what the law says, but it has not been enforced against other groups, ever, the way it has been against this one. And remember, they are citing the camping rule as their justification. Yet, as I pointed out a few weeks ago, people camping out waiting for the new iPod were allowed to do so and homeless people have been sleeping in those parks for years. It is only when the political message was added that the law was enforced. That means its not neutral.

        Were those in line for an iPod camping in a park? Is every single homeless person ignored? If so (and it’s not) your issues with with equal protection and due process, not the 1st amendment.

        2) Be narrowly tailored – Only parks, only during a certain time unless one holds a permit.

        But since parks are the only available place to protest in Denver, that eliminates the ability to protest between those hours and reach the people who would be driving down the street at that time.

        Last time I checked, parks are not the only places to protest in Denver. You guys have marched down the streets and the 16th St. Mall the past several Saturdays. Is every public space to be considered a park now?

        3) Serve a significant governmental interest – maintenance of the park

        If you can show me anything that supports this point, or any evidence that the protesters have, in any way, prevented the maintenance of the park, I will concede this point, but so far, no one has been able to. I was there, in fact, when organizers told the Governors chief of staff, to her face, that they would be happy to work out a system of rotating the placement of structures and people so that workers could do what they needed to do. The Governor’s CoS said it didn’t matter.

        I’m not saying they have prevented it. I’m saying that is the “compelling government interest.” If you want, bring it up in court saying that some “lack of maintenance” undercuts the interest. My guess is your argument won’t hold.

        4)

        Leave open ample alternative channels for communication – The sidewalk, right next to the park, is continuously open for all your 1st Amendment needs.

        Actually, the sidewalk is considered part of the park. And many of the people who have been arrested thus far were on the sidewalk.

        Show me where in the code it says the sidewalk is part of the park. Those who have been arrested on while on the sidewalk were detained because of their interactions with the police.

    • AndrewBateman says:

      You will notice that I never mentioned camping in my original post.

      I actually agree with you that the camping is illegal and will probably hold up in court. But so far, no one has actually been charged with that.

      We are talking about the issue of a person, fully awake, protesting in the park at midnight.

      That is not camping.

      • OrangeFree says:

        Sec. 39-3. – Curfew and closures.

        It shall be unlawful for any person, other than authorized personnel, to go upon or remain in any park, mountain park or other recreational facility between the hours of 11:00 p.m. and 5:00 a.m. (“curfew”) or at any time the same is declared to be closed to the public by the manager (“closure”). Closure occurs when the property is posted for “no entry,” “no trespass” or similar language or is barricaded so that entry can only be achieved by crossing or bypassing the barricade. This provision shall not be applicable to persons attending events for which a permit has been issued by the manager which expressly authorizes use of the park, mountain park or other recreational facility during curfew or closure; however, it shall be unlawful for any person to fail to comply with the terms and conditions of said permit. If security is needed for an event for which a permit has been issued, the manager may waive the curfew or closure requirements for security personnel.

        (Ord. No. 1041-96, В§ 1, 12-2-96; Ord. No. 436-05, В§ 1, 6-27-05; Ord. No. 55-08, В§ 1, 2-4-08)

        It’s actually not just camping that’s covered in the code. Unless otherwise permitted, no one, doing any activity, on any day, is allowed to remain in the park over night.  

        • AndrewBateman says:

          My argument is that the curfew serves no government interest and is therefor not a reasonable restriction on free speech and assembly.

          That said, I am not the one who will be arguing this in court.

          I am approaching this strictly from a public policy point of view, where I see absolutely no compelling reason or argument that banishing protesters from the park at night is necessary. And if it is not necessary and it doesn’t accomplish anything, then we shouldn’t be spending hundreds of thousands of dollars to stop them from being there if they want to be.

          • OrangeFree says:

            …the group could have applied for a permit, thus taking the financial liability of any property damage out of the hands of the city and into the hands of the protesters.

            There was a budget deficit again this year. There will probably be one next year as well. Civic Center just went through a massive landscaping project that will be at tax payer expense through the Bond Project. There is the possibility that all that work could be undone and then have to be redone. From a public policy stand point, Seems compelling enough a reason for me.

            Get a permit, take on all financial responsibility, and protest/camp to your hearts content.  

            • AndrewBateman says:

              If they hadn’t been kicked out of Lincoln Park. That said, do you have any evidence that there has or will be any damage to the park or its new landscaping?

              Permits are like poll taxes, they’re a way to keep certain people from having their voice heard.

              As someone who has run dozens of permitted events in the city, I can tell you firsthand that the city finds ways to make the process more difficult or impossible if they don’t like what you’re doing and will clear the path if they do.

              The protesters aren’t hurting anyone and I found that all of them I spoke to are more than happy to accommodate reasonable needs of the city and state to maintain the space. This has been true since day one. Unfortunately, when they ask if a compromise can be reached, the only answer they have received from the city and state is “no”.

              The suppression of the protests does not serve the city or state in any way and is a monumental waste of tax dollars. And if you want to argue against that, than answer this one question:

              What has the city/state gained for the hundreds of thousands of dollars already spent on police action against the protesters?

              • OrangeFree says:

                ….if they would have had a permit.

                That said, do you have any evidence that there has or will be any damage to the park or its new landscaping?

                Do you have evidence that there hasn’t been or won’t be any damage?

                And I don’t believe the using the teenage girl defense is very effective (I just know Daddy won’t let me go out tonight anyway, so why ask him?) Has Occupy Denver tried applying for a permit? The city has said ‘no’ to ‘accommodations’ because you have said ‘no’ to even basic permitting laws that would leave you free to do what you want so that any financial burden because of your “occupation” would be on you and not the city.

                Change the law or get a permit. In the mean time, the original analysis is the correct: What is happening (though unfortunate) is not unconstitutional until ruled otherwise.

                • dukeco1 says:

                  Do you have evidence that there hasn’t been or won’t be any damage?

                  I am not sure the cities’ “concern” for “potential” damage is relevant, is it?

                  And um…Jason asked you first…you answered with a question. Bad form, I think.

                  Just sayin’

                  • OrangeFree says:

                    His question: Can I prove there has been or will be damage. I can’t prove that there will be.

                    My question: Can he prove that there hasn’t been or won’t be damage. He can’t prove that there won’t be.

                    Could there be damage now and none later on? Yes and no. Could there be no damage now and plenty later on? Yes and no. It’s not bad form to reply to a question that can’t be proved with it’s completely legitimate opposite that also can’t be proved. It shows the weakness of both sides of the argument.

                    In the face of two unknowns, I would side with caution over trust, as many cities would and are doing. It’s called responsible governing (minus the cops and paintball pepper spray, that’s just silliness)  

                    • dukeco1 says:

                      It seems to me that the issue lies in the importance you place on the permit.

                      Many object to the notion that getting a permit to exercise a constitutional right is required… seems out of place or improper.

                      Democracy is pretty messy, but it beats the alternative…a plutarchy that sets itself up as the arbiter of your freedom to express your grievance.

                      I guess I just think the onus is on the government to respond appropriately…and Hickenlooper and Hancock are failing the test.

                      I am extremely disappointed with Governor Hickenlooper.

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