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ACLU: Victory for Free Speech in Occupy Lawsuit Ruling

Press release from American Civil Liberties Union-TN; June 13, 2013:

NASHVILLE – In a ruling underscoring Tennesseans’ right to political speech, a federal judge ruled late yesterday that the state of Tennessee’s arrest of Occupy Nashville protesters was an unconstitutional violation of their First Amendment rights.

“The Court’s ruling is a resounding victory for the principles of free speech and protest championed by Occupy Nashville and the ACLU,” said ACLU-TN cooperating attorney David Briley, of Bone McAllester Norton PLLC. “This decision reinforces that the state cannot just arbitrarily limit free speech in any manner it wants to.”

In the ruling, Judge Aleta A. Trauger wrote, “The First Amendment cannot yield to the enforcement of state regulations that have no legal effect…In choosing to adopt and implement new regulations by fiat without seeking necessary approval from the Attorney General, they made an unreasonable choice that violated the plaintiffs’ constitutional rights in multiple respects.”

“The right to free speech and political protest is crucial to a healthy democracy, perhaps today more than ever,” said ACLU-TN Executive Director Hedy Weinberg. “We applaud the Court for safeguarding the essential guarantees of the First Amendment.”

ACLU-TN filed the lawsuit, Occupy Nashville et. al., v. Haslam et. al., in October 2011 after the State of Tennessee met in secret and revised the rules controlling Legislative Plaza to implement a curfew and require use and security fees and $1,000,000 in liability insurance prior to community members engaging in assembly activity. The state then arrested the Occupy Nashville demonstrators under the new rules. Prior to their arrests, the demonstrators had been gathered at Legislative Plaza in downtown Nashville to peacefully express their frustration with the government for a couple of weeks.

The lawsuit was filed in the United States District Court for the Middle District of Tennessee, Nashville Division.

In addition to Briley, the plaintiffs are represented by ACLU-TN Legal Director Tom Castelli; ACLU-TN Cooperating Attorney Patrick Frogge of Bell Tennent & Frogge PLLC; and ACLU-TN Cooperating Attorney Tricia Herzfeld of Ozment Law.

The decision for this case can be found here.

The order for this case can be found here.

Revised Cyberbullying Law Awaits Governor’s Action

Tennessee lawmakers this year narrowed the scope of a law that criminalizes bullying over the Internet, responding to national criticism that the law potentially violates free speech rights.

The new proposal, HB2556, was sent to the governor for approval May 2. It adds to the legal definition of harassment the sending of an image through electronic means “with the malicious intent to threaten” another person — replacing a broader definition that included efforts to “frighten,” “intimidate” or “cause emotional distress.”

The revision is an attempt to make the bill “more acceptable to lawmakers but still clear enough where people understand how serious it is in how it needed to be addressed,” sponsor Sen. Bill Ketron, R-Murfreesboro, said. Ketron says the move would focus the law on intentional cyber harassment and not the exercise of free speech.

Minors now found guilty of cyber bullying could be forced to do 30 hours of unpaid community service, a punishment Ketron said he may want to give “stronger teeth” to in future years. A violation by an adult would be a Class A misdemeanor punishable by up to a $2,500 fine and a year in prison.

“I think it goes as far as we could get it passed this year,” Ketron said. The bill was passed within months of the suicides of a 14-year-old Gordonsville boy and a teen from Ashland City who were both apparently bullied for being gay.

The bill passed unanimously in the Senate with little debate. In the House it passed 76-14, with some Republicans arguing the bill makes prosecutable offenses out of childhood and adolescent behavior that, while it shouldn’t be condoned, shouldn’t be criminalized either.

“Since the beginning of time, we’ve had bullies,” said Rep. Jeremy Faison, R-Cosby. “We can’t continue to legislate everything. …

“There’s children who have actually committed suicide. I would submit to you they did not commit suicide because of somebody bullying them. They committed suicide because they were not instilled the proper principle of where their self esteem came from at home.”

The Tennessee Democratic Party leapt upon Faison’s remarks, firing off a press release calling his comments “a disgrace.” The House floor video of Faison’s remarks posted by the party was picked up by the Huffington Post and others.

“It is unfortunate that some in the Republican Party have become the protectors of bullies,” the Democratic Party said in its release. “Of course, it is not terribly surprising, because as a legislative group they are nothing but bullies, disparaging and demeaning those without power in this country in order to build themselves up.”

Faison later apologized for a “poor choice of words.”

Under this year’s bill, school principals are required to investigate student claims of bullying, intimidation, harassment and cyber bullying that involve threats of physical harm. Schools will also track the number of harassment complaints and share that data annually with the Department of Education beginning in 2013.

Schools will also have to provide teachers, school counselors, parents and students information about bullying prevention beginning next year.

When the Legislature passed the cyber bullying law last year, a firestorm erupted.

Critics derided the legislation. Liberals like film critic Roger Ebert and MSNBC commentator Rachel Maddow lampooned state lawmakers by publishing satirically “disturbing images.” Conservative UCLA law professor and blogger Eugene Volokh wrote that the law seemed “pretty clearly unconstitutional.”

Tennessee’s chapter of the ACLU last year threatened to sue the state on the basis that the new law violated First Amendment rights and left a “a chilling effect on expressive political, artistic and otherwise lawful speech and also turns political activists, artists and others into criminals.”

“Anyone with an online presence would be quite vulnerable,” said Hedy Weinberg, executive director of the Tennessee ACLU, who worked this year with Ketron to refashion the law’s language.

“It’s a balancing act any time you’re protecting and insuring the security of individuals against bullying and other types of abuse of speech, but at the same time, protecting the guarantees of freedom of speech,” she said.

Looking back, Ketron says he didn’t realize his bill would cause a free speech uproar.

“It’s a new phenomenon,” Ketron said. “Fifteen years ago, nobody had a fax machine, and now we’re at a point where somebody can actually bully somebody over the Internet.”

Both last year and this year the measure passed with bipartisan support. Questioned in June about the unintended consequences or free-speech-stifling perils of the legislation, House Democratic Leader Craig Fitzhugh appeared a little caught off guard and somewhat conflicted.

“We have to reach out and try to rein in some of those things that are clearly not in the best interest of the public,” Fitzhugh said.

At the time Fitzhugh left open the possibility that the General Assembly could revisit the measure. “One of the things we do in in the Legislature is clean up some mistakes we made in the past Legislature,” said the Ripley Democrat.