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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.

Gibbons Promises State Law Enforcement Won’t Abuse Anti-Camping Statute

Tennessee Safety Commissioner Bill Gibbons said he doesn’t foresee any unintended consequences from enforcement of the bill intended to de-occupy legislative plaza, despite qualms of some lawmakers.

“I can’t speak for any other law enforcement agency, but in terms of our state troopers, I am confident that we will handle any matter that comes up correctly and professionally,” Gibbons said after speaking to the Tennessee Municipal League Monday.  Prior to coming to work for the Haslam administration, Gibbons was the Shelby County district attorney general.

“Right now we’re in a period where we’re making sure that all citizens have proper notice of the new law, and after an ample period of time, we’ll be prepared to enforce the new law,” he said.

However, not all lawmakers share his optimism.

Knoxville Rep. Frank Niceley, the sole Republican holdout when the House voted to pass the bill on Feb. 16, chose not to vote on the bill because of its overly broad nature.

“I was fine with moving the protesters off of the plaza,” Niceley said last week. “I thought that needs to be done, but the way they wrote the bill, it would affect anyone. If you’re out in the country — and the state owns hundreds of thousands of acres of state land — and you accidentally camp on one, well, some overzealous deputy could get you in trouble.”

The controversial de-occupy bill has passed both chambers, been signed by the governor, posted in public spaces and is now awaiting enforcement, which begins March 9.

Occupy Nashville’s Tent City Has 1 Week to Clear Out

It’s official: It is now illegal to pitch tents outside the Capitol Building or any other state-owned property not explicitly permitting camping.

Department of General Services says it will give Occupy Nashville protesters a week to clear off War Memorial Plaza, a marble topped public square the demonstrators have called home since the fall.

Gov. Bill Haslam signed the legislative measure into law Friday, giving the state authority to begin enforcing the law today. However, Haslam has said he’s not interested in playing a game of “gotcha” with protesters and wants to give them a heads up before he puts the statute into play.

He told the Tennessean Wednesday he was still consulting with the Attorney General about whether the state should exercise the new law or first finish up changes to rules governing use of War Memorial Plaza.

He told reporters two weeks ago he planned on signing the bill into law but added it would be a matter of “months, not weeks” before the new rules would be finished, and he was unsure whether his administration would wrap that process up first before evicting protesters. That hearing is scheduled for April 16.

“We’re following the rule making process. We’ll have to talk with the attorney general and others to decide, once you pass the law, what does that give the state the authority to do,” he told reporters then.

Protesters can still demonstrate over night under the law, but tents and any other bedding must be removed by Friday, March 9. Punishment is a Class A misdemeanor criminal offense punishable with up to 364 days in prison and a $2,500 fine.

State Gives 7-Day Warning Against Illegal Camping

Press release from the Department of General Services; March 2, 2012: 

NASHVILLE – Tennessee Department of General Services Commissioner Steve Cates today announced that notices are being posted statewide to inform the public about a new law that prohibits camping on state-owned property, except for areas specifically designated by the appropriate department or agency, such as the Department of Environment and Conservation that oversees state parks.

“These notices are designed to inform citizens and visitors to our state about the new law and its impact on state-owned facilities across Tennessee,” Cates said.  “Although the legislation calls for an immediate prohibition of unauthorized camping on state property, we believe a seven day notification period, beginning today, is an appropriate time frame to make sure the word gets out.  After that time, the state will be prepared to enforce the statute.”

The law, HB2638/SB2508 sponsored by Rep. Eric Watson (R-Cleveland) and Sen. Delores Gresham (R-Somerville), makes unauthorized camping on state-owned property a Class A misdemeanor criminal offense, which calls for the maximum sentence of 11 months and 29 days in jail and/or a maximum fine of $2,500.  It also subjects items associated with illegal camping to seizure and forfeiture.

The General Assembly approved the measure by a vote of 67 to 21 in the House of Representatives and 21 to 9 in the Senate.  The governor signed the bill into law today.

Occupy Nashville Eviction Bill Gets Final Legislative Approval

Tennessee legislators tired of seeing tents camped outside their windows gave final approval to a bill Monday making it a crime to erect shelters or lay bedding on state property not sanctioned for camping.

The legislation is targeted at Occupy Nashville protesters who have made the marble roof of downtown’s Legislative Plaza their home since the fall, but the pending new law is prone to unintended consequences, according to Rep. Frank Niceley, a Strawberry Plains Republican.

“I was fine with moving the protesters off of the plaza. I thought that needs to be done. But the way they wrote the bill, it would affect anyone,” he told TNReport. “If you’re out in the country, and the state owns hundreds of thousands of acres of state land, and you accidentally camp on one, well, some overzealous deputy could get you in trouble.”

Niceley opted not to cast a vote on the measure which passed both chambers easily with Republican and some Democratic support. But he said he wants to see legislation next year narrowing the language to protect people who simply need a place to camp.

“I’ve done a lot of camping in my life, under bridges and on the roadsides. You have the European college students come over here, and they trek across the country on their walkabout, and I thought it just was too broad,” he added.

HB2638, which heads to Gov. Bill Haslam’s desk, would ban anyone from camping, including “laying down of bedding for the purpose of sleeping,” on government-owned property not designated for camping, punishable with a fine up to $2,500 and up to 364 days jail time.

Haslam has said he will likely OK the bill but won’t pull the trigger on evicting Occupy Nashville protesters until after his administration finishes a new rule-making process dictating how War Memorial Plaza is used. That task may wrap up after lawmakers have gone home for the year, he said.

Administration officials will meet April 16 on Capitol Hill to publicly review potential rules governing how War Memorial Plaza is used.

Effort to Expel Tent-Dwellers from TN Statehouse Plaza Passes Senate

A bill requiring that Occupy Nashville protesters break camp on War Memorial Plaza passed the Senate Thursday, 21 to 9. The legislation is in need now of only one more formalizing vote in the House before heading to the desk of Gov. Bill Haslam.

Known as the Equal Access to Public Property Act of 2012, the proposed new law states that camping will be prohibited on any state-owned public property not designated as a campground. It also defines camping as erecting any temporary structure, or laying down bedding materials for the purposes of sleeping.

An amendment on the bill also states that “camping” includes cooking activities and storing of personal belongings, as well as engaging in digging.

Some lawmakers believe the measure’s language is too open-ended.

Sen. Roy Herron, D-Dresden, who said he originally expected to vote for the bill, argued against the bill, saying its language is too broad and subject to on-the-spot interpretation. It might cause a law-abiding citizen — like, for example, a hunter in a duck blind warming up some food to eat on public lands — to unintentionally commit a crime, he said.

Other critics voiced disapproval of the bill on grounds that it restricts the fundamental right to assemble for peaceful protest.

“If it were not for protest in this country, we would not have had a civil rights movement, we would not have had people have the opportunity to gain the rights that should have always been afforded to them, the Vietnam War might still be going on if it weren’t for a certain number of protesters,” said Sen. Beverly Marrero, D-Memphis.

Two other Memphis Democrats, Jim Kyle and Ophelia Ford, expressed similar views. “I would just like to briefly remind everyone in this senate, that this country was created out of civil unrest,” Kyle said. “And I would only say to you that if the government silences civil unrest, it’ll find itself with uncivil unrest.”

Sen. Douglas Henry, D-Nashville, also opposed the bill and suggested that creating a regulation, instead of writing a law to deal with this problem, is preferable.

“If you put this into statute, and something comes up – times change, situations change – it takes another public act to amend it,” Henry said, and explained that a regulation is easier to remove or change than a law.

Sen. Dolores Gresham, R-Somerville, sponsor of the legislation, defended the bill, saying it has nothing to do with limiting constitutionally protected freedoms. The only intent is to help ensure public land “be managed responsibly for everyone,” she said.

Although the Senate conformed to the House Bill, HB 2638, it also amended the bill to incorporate a severability clause. Even though the substance of the bill wasn’t changed Thursday from the House’s version passed earlier this month by a wide margin, the bill now needs one more vote of approval from the House.

After it goes to Gov. Haslam and he signs it, Ramsey said he expects that there will be a short grace-period to allow anyone still camped out on the plaza time to remove themselves and their belongings.

“We want to be reasonable about this — to give some warning to the people that are permanently camped on the legislative plaza, to say you have a week, 10 days, whatever the administration decides, to get off or you will be removed,” said Ramsey. “I think that’s being very reasonable.”

Occupiers, Pack Up Those Tents, House Says

House lawmakers OK’d a measure Thursday that would oust tent-living Occupy Nashville protesters from the Capitol Hill grounds.

The bill would prohibit people from pitching tents on state government property where camping is not expressly permitted. For example, the bill could be broadly interpreted to forbid, say, camping outside rest stops along I-40 to lobby for better vending machines, as well as any overnight demonstrations to bring attention to the state flower at this state-run iris garden. Most assuredly, there would be no 24-hour vigils at the cosmetology board for tougher standards for state-licensed manicurists.

The Equal Access to Public Property Act of 2012 still has a little ways to go before it lands on the governor’s desk. Gov. Bill Haslam said this week he expects to sign the measure although he plans to exercise little enforcement until his staff irons out policies for using state government space and queries the state’s top lawyer about the next legal move.

“We’ll have to talk with the Attorney General and others to decide once you pass the law exactly what does that give the state the authority to do,” Haslam said.

The bill – HB2638 – bans anyone from camping, including “laying down of bedding for the purpose of sleeping,” on government-owned property not designated for camping, punishable with a fine up to $2,500 and up to 364 days jail time.

The measure easily passed the House, 70-26, with seven Democrats breaking ranks to join the GOP.

The legislation clearly would change the nature of the Occupy Nashville protests that target corporate influence on government.

Republicans have seen the protest as an eyesore. Dozens of tents line the perimeter of the plaza just outside many of their office windows. Haslam ended up on the losing side of a federal injunction last year when a federal judge said the state didn’t have the authority to arrest protesters camping outside the seat of state government.

Democrats argue banning tents on properties like War Memorial Plaza — which the movement claimed as its home — equates to an infringement on free speech rights.

Republicans argue the issue is about protecting taxpayer property.

“When do you have to have a tent to protest?” bill sponsor Eric Watson, R-Cleveland, asked rhetorically on the House floor as Rep. Joe Towns, D-Memphis, argued against the bill.

Towns’ answer: “When it’s cold.”

One Republican suggested lawmakers opposing the camping ban exempt legislative offices in their own districts so protesters would have a place to pitch tents.

House Democratic Caucus Chairman Mike Turner, who has hinted an interested in running for Nashville mayor someday, said there are too many rules about when and where to protest, including city rules forbidding Occupy Nashville from camping on Metro property.

“The act of protest itself is kind of rubbing up against the system as-is,” Turner, D-Old Hickory, told reporters. “So if you have to protest, but the government laid out the rules of how you’re supposed to protest, your protest probably wouldn’t be very effective.”

The Senate is set to pick up the bill next Thursday.

Costs of ‘Blanket Requests’ for Public Information Concerning to Haslam

Gov. Bill Haslam says it may be time to reset the state’s policy for handling requests for public documents.

Haslam’s administration is examining how each department handles requests for public records, saying the state needs to standardize how it responds and charges for the labor and time to provide records.

“A lot of times I see open records requests that I think 10 years ago, the reporter was doing a lot of legwork on his own before he ever asked the open records request,” Haslam told the Tennessee Press Association conference in Nashville last week.

The number of requests is “going up dramatically,” Haslam said, including 22 requests to his office since his inauguration.

Some queries are “blanket requests” for information that can take significant man hours to fill, begging the question of “how to make certain that we’re doing the right thing both by our taxpayers and by people who need information,” Haslam said.

“I don’t think that’s what people pay taxes for,” he said.

According to the Tennessee Public Records Act, “all state, county and municipal records shall, at all times during business hours … be open for personal inspection by any citizen of this state.”

State agencies applied the law in different ways in response to requests for documents related to the October midnight raids on Occupy Nashville protesters, according to the Tennessee Coalition for Open Government. The problem is the Haslam administration includes many officials with private-sector backgrounds, who aren’t used to such high levels of interest from the public, said Kent Flanagan, TCOG executive director.

Officials at the TPA and TCOG say the administration has asked to meet with them this spring about crafting standard open records policies.

Haslam is also pushing legislation to keep secret certain information from businesses seeking millions of dollars in economic development grants. Haslam wants to shield corporate financial statements, budgets and ownership information.

“There’s certain things in life that we feel like, for the good of that negotiation, we need to keep to ourselves,” Haslam told the TPA.

Haslam was the only major candidate in the 2010 gubernatorial race who refused to release his tax forms.

After his election, he exempted himself and Cabinet members from a Bredesen-era requirement to disclose the amounts of income from various sources. Those high-ranking officials must still disclose income sources.

Legislators considered tweaking the state’s open meetings laws earlier this year so local officials could discuss business in private if no quorum was present. The idea died before a bill was filed, partly at the behest of House Speaker Beth Harwell. Lt. Gov. Ron Ramsey disagreed.

“Bottom line is, we want open meetings, we want everything to where you can discuss it,” Ramsey said. “All I’ve ever said is to make sure people don’t get in trouble accidentally for something.”

Occupy Bill Occupies Legislators

A bill to make camping on public property illegal passed both the House and Senate Judiciary Committees Tuesday, over the protest of members of the Occupy Nashville group.

Lt. Gov. Ron Ramsey, who has been an outspoken critic of the protesters’ encampment, says the issue is one of safety, not squelching of First Amendment rights.

“I support our constitution and embrace with open arms our rights of free speech and assembly,” Ramsey wrote in a statement posted to his Facebook page after the measure passed overwhelmingly through committees in both chambers. “Liberal judges here in Nashville and on the federal bench can try and twist the law however they want but the reality is clear: this occupation has gone beyond speech and assembly and become an embarrassment — both to causes Occupy purports to support and the state of Tennessee at large.”

House Bill 2638 passed the House committee, 14-2, with the only dissenting members being Reps. Karen Camper, D-Memphis, and Mike Stewart, D-Nashville.

It also passed in the Senate committee, 7-1, with one legislator, Memphis Democrat Ophelia Ford, abstaining from the vote.

In the Senate hearing, Sen. Stacey Campfield, R-Knoxville, expressed concern over the wording of the bill, and that it might be interpreted to prevent protesting in general. Sen. Beverly Marrero, D-Memphis, voted against the bill.

The bills now go to scheduling committees before being heard on both chamber floors of the General Assembly.

The bills were each amended to make a violation a Class A misdemeanor, which carries a maximum punishment of a a $2,500 fine and nearly a year imprisonment. It would have previously been a Class B offense.

“I think this bill is very redundant, because the acts that they’re pointing to are already illegal,” said Megan Riggs, member of Occupy Nashville.  “They do have the power to patrol the plaza and make sure it’s safe, not just for who they’re concerned about, the people that work here, but also the protesters on the plaza, the people that they’ve been elected to protect.”

The bill is being opposed by Occupy Nashville on the grounds that it negatively affects their constitutional right to protest and that it would criminalize being homeless.

But Judiciary Committee Chairman Eric Watson, R-Cleveland, the bill’s House sponsor, disagrees.

“It’s totally different,” Watson said. “They’re the ones bringing up that issue. They’re saying the that homeless are going to be arrested. Well, they can be arrested now, and that’s something they need to do the research on.”

Watson said homeless people could be arrested for violating local loitering laws.

Watson said that while he supports the Occupy Nashville members’ right to protest, he doesn’t perceive their activities to be a protest. He said he hadn’t seen signs or placards recently, for example. He was also upset that some members had been arrested for drug use and theft, and that a protester had urinated on a Capitol staffer.

“One of the employees that works at the plaza here was peed on,” Watson said. “You ought to be ashamed of yourselves, and if you approve of that – if you think that’s peaceable assembly – you need to be peed on, see how you like it.”

There were a couple dozen Occupy Nashville members present at the hearings, with a few members speaking to the committee.

“When we the people said we want money out of politics, the U.S. Supreme Court said money was free speech,” said Michael Custer, an Occupy Nashville representative. “Well, if money is free speech, then surely a 24-hour vigil, seven days a week, through the rain and cold of our Tennessee winters must also count as free speech.”

Corporations have money to buy advertising on television and billboards so that their voices are heard, but the Occupy movement doesn’t have the money to buy advertising for their voices, Custer said.

“Those tents, they are our billboard,” Custer said.

This sentiment is shared by several other Occupy members.

“If money, in our country, constitutes free speech, then so does protecting yourself from the elements,” said Lindsey Krinks, a member of Occupy Nashville, “So does being out on a 24-hour vigil and keeping yourself dry and being able to sleep and maintain acts of daily living.”

There was some brief discussion between Rep. Vance Dennis, R-Savannah, and Reps. Stewart and Camper in the House committee.

Dennis backed the bill, saying that it was the responsibility of elected officials to determine the best use for public property, and to protect it for use by all.

Stewart claimed that the bill was an attempt to take a peaceful protest and turn it into a crime, while Camper identified the Occupy movement with sit-ins from the civil rights movement of the ‘60s.

The Occupy Nashville group has been camped in Legislative Plaza since the beginning of October of last year in protest of the corrupting influence of corporate money on politics. Since then, a federal court judge issued an injunction barring the state from removing the protesters.

The Haslam administration attempted to remove the protesters from the plaza in October. A federal judge halted the arrests.

Bill to Make Occupy Nashville Decamp Moves Along

Tents and other “living quarters” would not be allowed on public spaces, under a bill advancing at the Capitol aimed at the Occupy Nashville protest – whose members have been camped on War Memorial Plaza for four months.

Members of that group say the bill would limit free speech and criminalize homelessness. On Wednesday it moved out of a subcommittee to the House Judiciary Committee.

The bill, HB2638, aims to prevent “people from living on publicly-owned property not designated for residential use and prohibits people using publicly-owned property from posing a health hazard or threat to the safety and welfare of others.”

“It is not a bill that will make the protest on the plaza end. It is not a bill that denies First Amendment rights to any individual,” said Rep. Eric Watson, R-Cleveland, the sponsor of the bill. “What this bill does, though, it restores the entire public’s right to utilize all the public property around the state, not just a single group.”

Occupy Nashville released an open letter to Gov. Bill Haslam, the General Assembly and the Highway Patrol in response to this bill’s filing.

The bill was amended Wednesday morning to provide the state with the right to prevent people from camping on public grounds where camping is not permitted.

The new amendment, which is named the “Equal Access to Public Property Act of 2012,” is based on a 1984 federal law, supported by a U.S. Supreme Court decision, that gives the states the right to do this, Watson said.

Additionally, the amendment would change a violation of the no-camping law from a Class C to a Class B misdemeanor, raising the fine from $50 to $500. However, the amendment doesn’t allow for incarceration as a form of punishment.

“This seems to me to be sweeping legislation that could be used to silence dissent and punish our unhoused brothers and sisters for their poverty,” said Bill Howell, a member of Occupy Nashville and the progressive group Tennesseans for Fair Taxation at the subcommittee meeting. “What we see on the plaza every day is the direct result of bad public policy, both state and federal, that has served to further enrich the rich and impoverish the poor.”

Howell said people participating in the round-the-clock protest could catch cold if tents were banned.

The Occupy movement claims the bill is unconstitutional.

“The $500 fine is an infringement of free speech because it would have a negative effect on 24-hour vigils,” said Jane Steinfels Hussain, a group spokeswoman.

Last fall, when the Occupy movement was evicted from Legislative Plaza, Gov. Bill Haslam said that the reasoning behind the new policy was public safety, not to prevent free speech.

A few weeks later Lt. Gov. Ron Ramsey said that although he believes in freedom of speech, the Occupy movement had overstepped its bounds.

The Occupy Nashville group has said it is opposed to the corrupting influence of corporate money on the political process.