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Occupy Nashville wins ruling that TN violated their First Amendment rights

5:33 AM, Jun 13, 2013   |    comments
Katy Wolf, left, Lamercie Saint Hilaire and other protesters sing 'We Shall Overcome' at a candlelight vigil on Legislative Plaza during an Occupy Nashville Rally in 2011. / John Partipilo / File / The Tennessean
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By Bobby Allyn, The Tennessean

The state unlawfully arrested members of the Occupy Nashville group two years ago during a protest encampment on War Memorial Plaza, which violated their First Amendment rights to free speech, according to a ruling by a federal judge on Wednesday.


Attorneys for the American Civil Liberties Union of Tennessee, representing members of Occupy Nashville, filed a lawsuit in federal court in October 2011 challenging the arrests and the way in which new state rules governed the use of the plaza near the Capitol.

In the ruling, federal judge Aleta Trauger declared that state and local agencies did have not "carte blanche to respond in any manner they see fit." In other words, "they cannot make law by fiat," Trauger wrote.

The ACLU's complaint listed Gov. Haslam; Bill Gibbons, the state's safety commissioner; and Steven Cates, the general services commissioner, as defendants. The plaintiffs, Occupy protesters who were arrested, include Paula E. Painter, 56; Malina Chavez-Shannon, 35; and others. They sued for violations of the First and Fourteenth amendments. The latter guarantees the right to due process.

Occupy protests spread around the country in 2011, mostly by citizens who were taking aim at the country's income disparities and what they saw as an overly cozy relationship between federal politicians and Wall Street financiers.

In Nashville, the first few weeks of the protest went without any major incidents. But eventually, the protesters' ranks began to swell, in part because of homeless people who were drawn to the demonstration for the free food. Occupy Nashville protesters also erected tents near the Capitol.

Soon after, fights broke out, trash started piling up and some reported seeing lewd encounters.

Throughout, there was a notable law enforcement presence - state troopers and Metro police - but the protesters were unfazed.

In late October, state officials adopted a "use policy" that effectively prohibited overnight use of the plaza for assembling. Protesters vowed to spend the night on the plaza despite the new 10 p.m.-6 a.m. curfew.

After protesters refused to leave, the Tennessee Highway Patrol arrested 55 people over the course of two nights on Oct. 28 and Oct. 29. The arrests ended after a federal court issued a restraining order, barring the state from enforcing the new curfew.

In November 2011, Haslam called on authorities to drop charges against protesters, who were charged with misdemeanor criminal trespassing.

State officials, citing public safety concerns, have maintained that the Occupy encampment presented an unusual situation that called for a unique response.

That may be true, Trauger wrote, although authorities still were bound by state and federal laws.

"Instead, without providing adequate notice to the public at large, they informally attempted to change the law overnight, made no record of the proceedings, and failed to consult with the Attorney General."

The ruling is a victory for proponents of free speech, said attorney David Briley, among the attorneys who represented the plaintiffs.

"We hope the governor will work with Occupy Nashville to resolve the remaining issues without delay or further expense."

Trauger cited federal case law, which clearly affirms that the First Amendment guarantees that protesters can peacefully express their views on public property.

"The operative point is that no existing law prevented the plaintiffs from utilizing the Plaza for overnight free speech activities,'' the judge ruled. "The plaintiffs protests contained a fundamental constitutional core, regardless of the secondary effects that resulted from the manner in which they chose to exercise it."

Trauger dismissed some of the claims, including unlawful seizure of personal property and a retaliation claim.

"The ruling is being reviewed," said Dave Smith, the governor's spokesman.

State officials could appeal the ruling to the Court of Appeals for the Sixth Circuit, though Smith did not say whether they plan to do that.

The ruling means that state officials must pay all the plaintiffs monetary awards and attorneys' fees. The precise amount will be determined at a later date.

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