CINCINNATI — A special three-judge panel focused on issues of camping, protests, free speech and executive power on Monday during arguments in an appeal of a lawsuit brought by Occupy Nashville protesters arrested on War Memorial Plaza in October 2011.
The panel hearing the case in at the U.S. 6th Circuit Court of Appeals in Cincinnati and made up of judges from around the country questioned whether Tennessee officials acted properly in imposing a last-minute curfew for the plaza and in arresting those who refused to leave War Memorial Plaza in Nashville in October 2011.
"Is camping speech?" Judge Kent Jordan asked attorneys for two Tennessee officials.
U.S. District Judge Aleta Trauger last year ruled that Tennessee Safety Commissioner Bill Gibbons and former General Services Commissioner Steven Cates violated protesters' rights when they promulgated a last-minute curfew for the plaza, then had those who refused to leave arrested. Attorneys for the state asked that the ruling be overturned. Even protected speech can be subject to reasonable time and place restrictions, she said.
Attorney Dawn Jordan, representing Gibbons and Cates and who is no relation to the judge, argued that the protesters had no right to stay on the plaza all day, every day.
Dawn Jordan argued that the job of the two officials to protect state property and maintain order. The curfew and arrests were necessary to deal with reports of crime, sanitation problems, trash and damage to the plaza in front of the state Capitol, she said.
"Occupying 24-7 is not a clearly established First Amendment right," Dawn Jordan said. "The situation on the plaza reached a breaking point. Something needed to be done."
David Briley, an attorney for the protesters, told the judges there were easier and more narrowly tailored ways to handle the protesters and any complaints they may have had about the conditions and safety on the plaza.
By applying a curfew to all gatherings on the plaza and doing it without a chance for the public to comment on the proposed regulation, the state went too far, Briley said.
"If they had done it with the proper procedures, what would be wrong with it?" Judge David Sentelle asked.
"It's improper," Briley replied. "We don't know what a gathering means. It doesn't define what occupancy is."
"This is what trespass laws do," Judge Duane Benton said. "They get to the presence somewhere."
Judges Jordan, based in Philadelphia with the 3rd Circuit Court of Appeals, Benton, of the St. Louis-based 8th Circuit, and Sentelle, with the Washington, D.C. Circuit Court of Appeals, were appointed to the case because Gibbons is married to 6th Circuit Judge Julia Smith Gibbons and all the judges in the circuit have recused themselves.
The Occupy movement began in lower Manhattan in September 2011 with the idea of bringing attention to wealth inequality and corporate influence in government. Occupy Nashville protesters began camping outside the Capitol on Oct. 8. At the time the plaza had no rules governing when or how long citizens could demonstrate there.
By the third week, some homeless people who were not part of the protest had begun camping on the plaza. Protesters grew concerned about sanitation and crime. A delegation met with Cates to express their concerns.
Cates told the protesters they would have to leave the plaza at night. Then he had a curfew and use policy drawn up that the state put into effect the following day.
Protesters who refused to leave were arrested in the early hours of Oct. 28 and again on Oct. 29, but both times, the Judicial Commissioner refused to sign the warrants and the protesters had to be released. They asked for and received an injunction, barring the state from enforcing the new policy.
The state eventually adopted a less restrictive policy, and the Legislature passed a law banning camping on state-owned property not specifically designated for that purpose.
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