SUNG: –roam and I ain’t got no home in this world anymore. Brothers and my sisters are stranded on this road, a hot and dusty road that–.
DAVID DOUGHERTY, TRNN: As local city governments in the US crack down on Occupy movement protesters and encampments through arrests and eviction raids, new battles surrounding the freedom of speech and assembly in public places are being waged in federal courtrooms across the country. Lawyers representing Occupy movements are raising questions over the constitutionality of local ordinances being used to drive protesters and campers out of public parks and spaces. They say some ordinances are being implemented or modified as a targeted response to the Occupy movement, which could be in violation of the First Amendment right to freedom of speech. Many local governments say they are ensuring public safety and health by fairly enforcing laws and regulations on a content-neutral basis, irrespective of the message or views of the Occupy movement, which would not be a freedom of speech violation. At the heart of the conflict lie questions over who controls public spaces and whether or not protesters have a constitutionally protected right to occupy them.
MICHAEL BLOOMBERG, MAYOR OF NEW YORK: No right is absolute, and with every right comes responsibility. The First Amendment gives every New Yorker the right to speak out, but it does not give anyone the right to sleep in a park or otherwise take it over to the exclusion of others, nor does it permit anyone in our society to live outside the law. There is no ambiguity in the law here. The First Amendment protects speech. It does not protect the use of tents and sleeping bags to take over a public space.
SAM ADAMS, MAYOR OF PORTLAND, OREGON: While the Constitution requires city governments to facilitate speech by citizens, city governments also have the authority and the responsibility to regulate associated behaviors on behalf of the general public.
DOUGHERTY: Occupy Cincinnati was the first of the movements to file a First Amendment federal lawsuit against the city for its response to the occupation, with dozens of movements in other cities filing similar injunctions in recent weeks. After demonstrators moved to occupy downtown Cincinnati’s Piatt Park, the city park board and police ordered the area closed to the public at 10 p.m., with anyone found in violation of the rule subject to arrest and citation. Police have cleared the park of tents, dozens of people have been arrested, and more than $25,000 in citations have been issued to the occupiers. J. Robert Linneman is one of the attorneys who filed the federal lawsuit against the city, which he said was violating citizens’ free-speech rights in its handling of the Occupy movement.
J. ROBERT LINNEMAN, ATTORNEY, SANTEN & HUGHES: What the lawsuit was trying to do was stop the police from citing people, from giving them tickets or threatening arrest, which under our theory was inhibiting some of the participants from expressing their First Amendment views. It was the classic illustration of the legal doctrine of the chilling effect, where in effect a person censors himself, they choose not to engage in protected speech, because of their fear of the consequences. Our plaintiffs in this lawsuit were people who had not yet been issued a citation, who had not been arrested, and who told us overtly that the reason that they kept–that they chose not to participate was for fear of the professional consequences, the financial consequences of that law enforcement action.
DOUGHERTY: Three days after the lawsuit was filed, Cincinnati’s park board met and changed the park regulations in response to the suit, revising the rules over who is allowed to be in the park after hours and under what circumstances. The revisions were followed by multiple arrests that same evening. Sherry Baron is a federal employee and one of the four plaintiffs listed in the lawsuit, alongside Occupy Cincinnati as an organization. She says the city’s handling of the occupation does not allow her to exercise her First Amendment rights because of the potential consequences that could result from participating in the movement.
SHERRY BARON, PUBLIC HEALTH PHYSICIAN: Well, I’ve been–I was a member of the Occupy movement, but because of my employment situation, I was concerned about getting multiple citations or arrests. I didn’t want anything to jeopardize my employment. And so I, because of that, left the park at ten o’clock and didn’t engage in other activities that I might have chosen to engage in. For about two weeks, people were sleeping in the park, and the people could only do that by getting a citation that costs about $105 for each citation. For that reason, I couldn’t fully participate in it. I couldn’t fully express my First Amendment rights to express my political views. And therefore I decided to file the suit, because I felt that the city’s actions were interfering with those rights, which is unconstitutional.
DOUGHERTY: A federal judge met with the attorneys, plaintiffs, and the Occupy movement in a Cincinnati public library overlooking Piatt Park, which remains empty of tents following the city eviction. A hearing has been postponed in hopes that the Occupy movement will be able to negotiate a settlement with the city, which could face massive court expenses if it prosecutes every arrest and citation in court. Other localities have tried similar federal lawsuit tactics that have been met with varying results. In Nashville, Tennessee, a federal judge ordered a temporary restraining order on the arrests of occupation participants after the city’s imposition of a park curfew was found to be unconstitutional in a federal lawsuit filed by the ACLU. Other cases have not ruled in favor of the occupation movements, citing a 1984 Supreme Court decision which held that tent cities were not constitutionally protected acts of free speech, because expression can be held subject to reasonable time, place, or manner restrictions.
LINNEMAN: The movement in Cincinnati, we think, typifies a particular issue that is at the heart of the Occupy movements generally. You know, the question that has been asked over and over in this movement is: whose park is this? Whose public space is this? And it’s symbolic of the greater question that the Occupy movement poses to the people of the United States, which is: whose democracy is this? Whose country is it? Whose economy is it? And does our political system, does our economic system reflect our democratic values? The way our society’s come to look at public land is reflective in some way of the greater changes in society that reflect on our democracy and the greater control that’s been concentrated in fewer hands. And it’s another piece of how the fight itself, over where we go, where the group can meet, where it can actually get together, and where it can make its views heard, are symptomatic of the problems that they’re attempting to address on a larger level.
DOUGHERTY: With local officials citing health and safety concerns as the motivating factors for raiding occupied public spaces, and with the occupation participants accusing officials of stifling free speech, it remains to be seen which way the federal courts will continue to rule on Occupy movements and control the public spaces as more First Amendment lawsuits are filed across the country. This is David Dougherty with The Real News Network.
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