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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.

Judge Declines to Add Library Cards to Voting ID List

Chastising the General Assembly’s cherry-picking of the kinds of photo IDs voters can use at the polls, a district judge ruled against an attempt to add library cards to the list in time for Thursday’s primaries.

U.S. District Court Judge Aleta Trauger called provisions of the state’s new voter ID law “ambiguous” Tuesday and called on the Legislature to revise what kinds of photo identification election officials will accept.

“There are parts of this act that make no sense to this court,” she said, adding it’s “nonsensical” that officials can legally accept a hunter’s license from Nebraska but not a library card from Memphis.

Trauger said she was “not convinced” by arguments from the city of Memphis to issue a preliminary injunction, which would have allowed voters there to use library cards as a type of ID.

At issue was whether the Memphis public library system was an entity of the state, whether the individual plaintiffs suffered irreparable harm and the effect a preliminary injunction would have on the election system if the initial ruling were overturned.

“We can’t turn back the clock,” said Janet M. Kleinfelter, Tennessee deputy attorney general. “In a close election, that can make a difference between who wins and who loses.”

Lawmakers in 2011 passed a law requiring voters to produce certain government-issued photo identification to prove their identity at the polls.

Attorney Douglas Johnston Jr., representing the city of Memphis, said his goal wasn’t to get the entire law thrown out but to give registered voters who lack a photo ID more tools to vote this week.

He said state officials should have embraced an opportunity to add library cards to the list of valid IDs, not issuing a “knee-jerk reaction without thinking through what’s attempting to be done here.”

“We are attempting to facilitate this statue, not stop it,” said Johnston. “All we were trying to do was to assist in a small way some of those citizens in Memphis.”

Photo IDs that will be accepted at the polls include a valid or expired driver’s license from any state, passport, federally-issued ID, state employee ID, military ID or gun permit card with a photo.

Ramsey on Occupy Nashville: Move’em Out

Hours before the Haslam administration announced it would ask District Attorney Torry Johnson to dismiss charges against the Occupy Nashville protesters at War Memorial Plaza, Lt. Gov. Ron Ramsey expressed a get-tough stand.

“I think they ought to be removed,” Ramsey said. “I do.

“I’ll bet you that if I took a Boy Scout troop up there and camped out over the weekend, they wouldn’t allow them to do it. That’s just my opinion. I think they’ve gone way too far.”

But David Smith, press secretary for Gov. Bill Haslam, said Thursday afternoon that because of the temporary restraining order issued against the state in taking protesters away from the plaza, the state is seeking to drop the charges against those who were arrested.

State troopers arrested 29 protesters the night after curfew rules were put into effect at the site on Oct. 27, and 26 people were arrested the next night. The administration said it made the decision to arrest protesters in the interest of safety and because of unsanitary conditions involving the protesters, many of whom have set up tents at the plaza, which sits downhill from the front steps of the Capitol.

“As part of the effort to resolve issues surrounding the use of War Memorial Plaza, we’re beginning the process of establishing rules for use of the area by all citizens,” Smith said in a statement Thursday.

The administration had declared a curfew would go into effect at the site forbidding people from being there from 10 p.m. to 6 a.m. each day, after it began to hear complaints related to the protesters. After the arrests, for two nights in a row, a magistrate refused to put the protesters in jail. U.S. District Judge Aleta Trauger issued a temporary restraining order on the arrests, and the state did not contest the order.

With the help of the American Civil Liberties Union, the protesters filed suit against the state, claiming an infringement on their First Amendment rights of free speech.

Smith said the process for establishing new rules will involve the pursuit of a “variety of perspectives to honor the plaza as a public space for all to enjoy. We look forward to having ground rules in place to ensure that it is a safe and clean environment.”

Smith said the state will work under the assumption that the temporary restraining order would be extended. He noted, however, that the state is not blocked from enforcing existing laws regarding public safety and health.

Ramsey said Thursday he never talked at all to Haslam about the protesters.

“The allegations that have been there that have gone on, with sexual misconduct, things of that nature, there is a limit to this, and I do think this is a public place, and everybody has their First Amendment rights, but I think they’ve overstepped their bounds, I do,” Ramsey said of the protesters.