27 October 2011


I didn’t know there was an Occupy Nashville, but there is. Protesters have been camped out in the Legislative Plaza since October 7. There are dozens there around the clock. And if you’re homeless in Nashville it is totally the place to be now. :-\

Amazingly, the state is trying to ban this protest. Effective today, there is a new curfew. Nobody is allowed in the plaza at night. If you want to protest near the state capitol during the day, you must get a permit that costs $65 per day and get liability insurance coverage for $1 million, in case you break something.

On the plus side, the Tennessean is doing its job.

The latest: State imposes new curfew to evict Occupy Nashville protesters

Earlier: Occupy Nashville protesters may be ousted from Legislative Plaza

To me it doesn’t seem like “there’s a bunch of people out there who disagree with my politics, and homeless people” is a good rationale for making emergency rules changes and starting curfews. I sure hope this kind of action to ban a specific protest is unconstitutional.

Right now I have the feeling you get when you’re being trolled. You know the right response is to keep your head and be an adult. You know yelling will not help. Nothing will help, except to walk away.

Only the people trolling me are my government. …Actually I feel like that a lot lately.


Jeff Walden said...

Traditional restrictions for these sorts of things fall into three categories: restrictions in time, restrictions in manner, and restrictions in place.

Closing the plaza at night is a restriction in time that has wide precedent. I'd think that would comfortably pass muster.

Requiring a permit to use a park is also not unusual. $65 sounds maybe steep to me, but I hardly know the usual range for a fee like this. (And would it be $65 per demonstration? That's a pittance if so.) Generally the law tries to stay away from distinguishing judgments based on animus, as I understand, so I suspect the timing of the enactment of the permit requirement wouldn't affect the legality of "this kind of action to ban a specific protest". (And of course it's not a ban from the sounds of it, merely cordoning it off into a specific time and manner. If it were enforced contrary to this, of course, there could be room for an as-applied challenge.)

But requiring a permit specifically to protest might be an issue. Speech exclusion must be viewpoint-neutral: if the rules and requirements discriminate based on the content of the speech being made, that won't fly. Without seeing the actual text of the regulation it's impossible to say if it really is a restriction specifically on protesting, or if it's worded more generally but the news articles are describing it as targeting protesting. So there might be an issue, or there might not.

The liability insurance coverage condition also sounds like it might be problematic. Requiring protesters to pay for the costs of the extra policing needed to cover events treads pretty close to the edges of Forsyth County, Georgia v. The Nationalist Movement, in which a regulation requiring demonstrators to pay for extra policing, as judged by government officials, was struck down. You don't exactly have that with a $1m insurance requirement here, true. But see this line from that opinion: "As construed by the county, the ordinance often requires that the fee be based on the content of the speech." It would seem to me that the entity providing that insurance might well base the amount to charge for insurance on the content of the speech. And since the regulation in effect deputizes the insurer for this purpose, the insurer's decision might be treated as that of a government agent.

All this said, if someone is using a public area to the extent that it can't be kept clean, and is deteriorating as I understand is happening to many of these occupied places, should that really be ignored? The government has a responsibility to keep public areas clean and accessible. Suppose someone becomes sick from some sanitary hazard resulting from occupation. Is the city liable for not keeping the area clean? Strategically, waiting them out is probably the smartest move. But there are risks to doing so, risks which disputably cannot be ignored.

jto said...

Thanks for the great comment. I was really hoping to hear from you on this!

If I understand correctly, the new permit is for any public gathering on the plaza. So, weddings too, for example. And the curfew forbids anyone from being on the plaza from 10 to 6, not just hippies.

The specific thing that bothers me about this change is, of course, the thing you said courts try to avoid ruling on: the intent of the action. Here the government literally made rule changes during an ongoing political assembly such that they could then have the Highway Patrol arrest the participants and haul them away, which they did. I'd be lying if I said that wasn't the main thing bugging me.

Again—it isn't clear to me whether anything the state did here is unconstitutional, but I hope it is, because this kind of arrest is an affront to free speech whether it’s legal or not.

I don't think sanitary issues or vandalism have to be ignored, obviously, but the state and city have existing laws for those things. They should enforce those—to the same degree that they are also enforced in practice against other parties, of course.

I'll wander down the the plaza this weekend (between 6AM and 10PM) and see how much it has "deteriorated". Some libertarian you turn out to be! ;-) But I greatly appreciate your comments.

Jeff Walden said...

Circling back a whole lot later, but: regarding passing regulations in response to something like this, it seems like a a sort of tragedy-of-the-commons issue. If no need had previously been seen for some regulation, it wouldn't be particularly surprising for existing regulations to not address it. When it becomes an issue, that seems the natural time to correct the lack.

The alternative seems to be that when some new nuisance arises, and a party creating the nuisance can argue what would be newly prohibited is the exercise of some constitutional right, that nuisance must continue -- regardless of the neutrality of the regulation in question. And at what point does whatever "taint" you propose disappear from a new prohibition, such that it would be permissible?

Instead of these judgments being subjective divinations of the intent of lawmakers (sometimes an easier thing to do, sometimes a harder thing to do -- although, which lawmakers' intent? and what of different lawmakers having different intents? how many bad intents are too many?), they are objective determinations of the appropriateness of the statutes in question. As is often the case, intent isn't what matters, it's the actual action.

Oh, regarding cases on point, Clark v. Community for Creative Non-Violence is even moreso than the one I previously mentioned. In that case the Court upheld a prohibition on camping on the National Mall against CCNV's challenge. CCNV had received a permit for a demonstration on the National Mall and in Lafayette Park. Their demonstration was partly to call attention to the plight of the homeless, so they wanted to erect symbolic tents and have some protesters use them. The Court upheld the prohibition on camping as a valid time-manner-place restriction. Except for the expressiveness of camping in that case being somewhat clearer to me than in the Occupy case (and more fittingly appropriate), it seems a near carbon copy of the Occupy situation as it's played out in courts across the country since your original post. (Not that either of those differences is legally relevant.)