Federal judge rules against city in 'Occupy' lawsuit

[William769]

Source: NBC-2.com

FORT MYERS, FL - Protestors in the "Occupy Fort Myers" encampment in Centennial Park in Fort Myers will be allowed to stay after a late-night ruling in federal court.

Judge John Steele granted a preliminary injunction against the the City of Fort Myers, saying it is likely the city violated the First Amendment by requiring protestors to have a permit and kicking them out of the park.

About a dozen tents were set up at the park as of midday Wednesday, and people have been staying in the park 24 hours a day - sometimes sleeping there - during the protest.

While sleeping in a public place isn't necessarily protected by the First Amendment, Steele ruled that in this case the camping' in the park was addressed by Judge Steele, saying "The conduct of tenting and sleeping in the park... is symbolic conduct which is protected by the First Amendment."


Read more: http://www.nbc-2.com/story/16056138/2011/11/16/federal-judge-rules-against-city-in-occupy-lawsuit

---

Occupy Fort Myers has had it's ups & downs, but this is definitely great news!

[Uncle Joe]

1. I wonder if this judge will be removed from the case like the one in N.Y.?

Kicked and recommended.

Thanks for the thread, William.

[KansDem]

5. Really! Is it time for Ft. Meyers to go "judge shopping?"

I never knew you could buy and sell judges according to your wishes. Had I known, I might have tried harder to get into the 1%!

[SleeplessinSoCal]

14. Is that really what happenedin NYC? The judge was replaced with a co-opted one?

[Uncle Joe]

17. That's my take on it.

When the cops raided Zuccotti Park, lawyers for Occupy Wall Street woke up a judge with a civil liberties background and asked for help.

Manhattan Supreme Court Justice Lucy Billings signed an early-morning order temporarily barring cops from keeping protesters and tents out of Zuccotti Park.

But within hours, she was off the case as court administrators chose a new judge — and excluded Billings’ name from the list of candidates.

Billings’ biography notes that before she became a judge in 1997, she spent three years as a lawyer for the American Civil Liberties Union and also worked work community legal services.

Read more: http://www.nydailynews.com/new-york/judge-lucy-billings-signed-occupy-wall-street-order-aclu-veteran-article-1.977725#ixzz1duQbbdbP

[PoliticAverse]

27. Not reallty. She was woken up in the middle of the night and issued a temporary order...

During the day there was a hearing scheduled on the order and the judge for that
hearing was picked at random from the pool of judges.

[Uncle Joe]

34. It wasn't at random, she was excluded from the pool, so the pool was manipulated.

Judge Billings had extensive experience in civil rights and they cite some crap about her being a real estate judge!?

Furthermore most of the evictions took place at night when the majority of the occupiers were sleeping and there would be less chance of video or media coverage so time was of the essence with the occupiers, but the city could have waited.

[yodermon]

2. "The conduct of tenting & sleeping in the park..is symbolic conduct..protected by the 1st Amendment"

Bears repeating. It's been adjudicated in federal court now.

[hootinholler]

4. Yep need it in other benches now

So the Supremes can show us their support for the constitution. Especially the Strict Constructionistas

[Mr Gerrity]

8. It's already been ruled on by the Supreme Court

1984 - 7-2 decision

"Camping" is not protected by the 1st amendment at least as far as national parks go.

http://classweb.gmu.edu/jkozlows/ccnv.htm

[William769]

10. Was it ruled on as camping while protesting?

[Mr Gerrity]

11. It was specifically about that.

Clark v. Community for Creative Nonviolence

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0468_0288_ZS.html

[William769]

12. Thank you for the link.

I also forgot .

[hootinholler]

16. Interesting

I wonder why the court didn't follow precedent?

Thanks for the link and the case cite.

Oh BTW, I loved CCNV, always admired Mitch.

[JDPriestly]

29. Because the facts of the case are different from the past cases.

"Camping" is not just camping in the case of OSW. The role of the tents is to protest the fact that the 99% has really no meaningful voice in our politics.

Congress is bought by the rich through their corporations who hire lobbyists to write a lot of the bills and control the actions of our so-called representatives.

Money is king.

The media is owned by the rich. It does not speak for most of us, does not listen to us and could care less about what happens to us.

What is left? How are we who are poor or middle class to petition our governments in a country in which the seats of government are located so far from where most of us live and our representatives have sold themselves to the highest bidders?

I live, for example, in California. The capitol of California is Sacramento. I have never been there, and I doubt that I will ever have the opportunity to go there. If I went there to petition my government, I would have to fly or drive all day, and I would have to pay a hotel bill for the night. That's a trip I cannot afford.

I can't even imagine going from California to D.C. to speak to my senators and representative there. Impossibly expensive if I had to stay in a hotel.

But, if it were possible to take a bus to D.C. (I doubt that it is), I might be able to go provided I did not have to also pay for a hotel and could sleep out in a tent on the mall all night.

Generally, our congressmen and women talk mostly with their big donors, their close friends, lobbyists and each other.

So if we get together, camp out and talk with each other, that is our only chance to show our numbers and maybe, just maybe balance the money power of the rich.

Citizens United has made a joke of democracy. It must be done away with.

Lobbyists should be shown the door in the Congress. We should demand that our congressmembers provide a written report of each meeting they or any member of their staff attends with a paid lobbyist or lawyer for a corporation or any special interest group.

We need accountability in government. The tents in the Occupy movement symbolize our need for direct communication with members of our government and our unhappiness with the dominant role of corporations in the media and in our government.

[JDPriestly]

28. Even the Supreme Court changes its mind, and here, the argument

is that, in the light of Citizens United and the role that money has played in determining whose speech is heard and whose is ignored, the only way to petition the government and to compete with the money of the 1% is to camp out in public parks and speak, discuss political ideas and live democracy in a public place.

So, the camping out actually is the free expression. It is a form of protest against the control by the wealthy few of political information and the process of political discussion in the US.

The Supreme Court and other courts will not "get it" right away, but eventually they probably will, assuming that what is left of our democracy, our representative government, survives the megalomania of the 1%, their desire for complete control of every aspect of our lives and our nation and their obsessive greed.

[happyslug]

36. Here is the actual Court Opinion. it was a 7-2 opinion

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=468&page=293 The short outline of the case missed the most important paragraph of the MAJORITY:

We need not differ with the view of the Court of Appeals that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment. We assume for present purposes, but do not decide, that such is the case, cf. United States v. O'Brien, 391 U.S. 367, 376 (1968), but this assumption only begins the inquiry. Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984); United States v. Grace, 461 U.S. 171 (1983); Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 -46 (1983); Heffron v. International Society for Krishna Consciousness, <468 U.S. 288, 294> Inc., 452 U.S. 640, 647 -648 (1981); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976); Consolidated Edison Co. v. Public Service Comm'n of N. Y., 447 U.S. 530, 535 (1980).

Notice even the Majority agreed that "camping" could be protected First Amendment right if done to communicate a message. The issue was the ban by the Park Service "reasonable time, place, or manner restrictions". Then the court ruled the ban was "Reasonable:

Contrary to the conclusion of the Court of Appeals, the foregoing analysis demonstrates that the Park Service regulation is sustainable under the four-factor standard of United States v. O'Brien, 391 U.S. 367 (1968), for validating a regulation of expressive conduct, which, in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions. No one contends that aside <468 U.S. 288, 299> from its impact on speech a rule against camping or overnight sleeping in public parks is beyond the constitutional power of the Government to enforce. And for the reasons we have discussed above, there is a substantial Government interest in conserving park property, an interest that is plainly served by, and requires for its implementation, measures such as the proscription of sleeping that are designed to limit the wear and tear on park properties. That interest is unrelated to suppression of expression.

We are unmoved by the Court of Appeals' view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives that could have satisfied the Government interest in preserving park lands. There is no gainsaying that preventing overnight sleeping will avoid a measure of actual or threatened damage to Lafayette Park and the Mall. The Court of Appeals' suggestions that the Park Service minimize the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the total allowable expression in which demonstrators could engage, whether by sleeping or otherwise, and these suggestions represent no more than a disagreement with the Park Service over how much protection the core parks require or how an acceptable level of preservation is to be attained. We do not believe, however, that either United States v. O'Brien or the time, place, or manner decisions assign to the judiciary the authority to replace the Park Service as the manager of the Nation's parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained.

In fact the dissent agreed with the first paragraph I cited above:

"Restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ante, at 293 (citations omitted). I conclude, however, that the regulations at issue in this case, as applied to respondents, fail to satisfy this standard.

Thus the issue is NOT sleeping or camping BUT if the regulations to prevent such activity is "Reasonable". Given that this has been happening over the last few months, a much tougher thing to prove then denying CONTINUED "camping and sleeping". Just a comment on the decision of the US Supreme Court has to be read narrowly given BOTH sides agreed as to the actual legal test, the FACTUAL findings that support that legal Finding will be the issue, as it was in "CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE, 468 U.S. 288 (1984), 468 U.S. 288

[99th_Monkey]

19. There was a similar ruling in Orange County CA of all places, but by the CITY COUNCIL

Late last night after a 5 and-a-half hour marathon city council meeting,
in which 72 speakers took the floor to express the need for the Occupy OC
Tent Village to be accepted as a form of free speech, the city council
passed an emergency motion to add the needs of “The 99%” to their official
agenda. This was a feat which, according to one more conservative
Councilman, he had never seen in 7 years of service."

http://www.occupy-oc.org/tears-stream-as-city-council-unanimously-agrees-occupy-tents-are-a-form-of-speech/

[Iwasthere]

3. Symbolic conduct

True... aren't camping cause we have no where to go. How do we make this case grow legs

[Imajika]

6. If this ruling stood, it would mean anyone can pitch a tent in a park...

...anytime they want and for as long as they want, so long as they call it a protest. It also apparently means the protestors do not have to pay for permits to use public parks.

If the ruling actually stands the test of court challenges, the entire process of use of public parks will have changed.

[William769]

9. And maybe thats the point.

After all public is a liberal definition.

[Divine Discontent]

22. you sure would think so. that's why they're going off on Bloomberg's fascism & judge

Haven't people stayed in their little encampments in D.C. protesting the wars over the years by the monuments and such, also? I don't think people doing protesting at night and sleeping is somehow anti-American! The ruling in NYC by the new judge that brought down the final ruling for the judicial level they're permitted to speak upon seems like a direct violation of previous SCOTUS decisions. The NYC case claims dangerous conditions, as they ALL seemed organized into using the past week, in one fell swoop in an organized attack against OWS across the country. I'd hate to believe the WH was involved...




Get it now, or one of a million other designs! http://www.zazzle.com/republicans_2012_keeping_millions_out_of_work_bumper_sticker-128659602907896843?rf=238107662556833486

[JDPriestly]

30. Precisely. After all, the corporations can afford people to hang out

in the capitol and lobby our representatives all day and then wine and dine and party with those same representatives at night.

The rich and their lobbyists are in a sense camping out in Congress.

That's what should not be allowed.

Camping in parks is does not cause nearly the problems that the camp-outs by lobbyists in our legislatures, governors' mansions and the direct participation of former members of companies like Morgan Stanley on the cabinet and staff or the President.

The halls of our capitols are occupied by big business. All that is left for the poor and middle class is to occupy Wall Street and parks and squares across the country.

[nbcouch]

7. The concept of other forms of expression

being equivalent to speech, and thereby meriting First Amendment protection, has long been recognized by the SCOTUS. E.g. see Texas v Johnson (1989). But it need not be considered speech - there's also the Peaceable Assembly clause. Occupation in protest is thus doubly protected, and will no doubt be upheld as such in other courts. It is debatable whether the current SCOTUS would agree, however.

[Imajika]

15. No, it probably wouldn't be upheld...

Because anyone and every group from now on would just call their protest some form of occupy since it means they can stay for as long as they want and pay no permits. Every protest group both right and left could just march out to every public park with tents and say camping is now part of their protest since it is legal - and pay no fees. Anyone who happens to like a park could pitch a tent, claim they are occupying for some cause or another and stay forever. There are some nice beachfront public parks near me with a spectacular view, can I pitch a tent and call it an occupy and stay for as long as I want? How about all my friends? Can I bring a trailer and my family - so long as I call it an occupy? ANYONE can call what they are doing a protest, and the law can not pick favorites so all forms of park protests would have to be recognized. That's why this ruling will be overturned at some point.

[JDPriestly]

31. Ahhhhh! Pay no permits!!!!

You mean like the mortgage companies and banks did not pay the fees required to record changes in the names of the the parties to the mortgages? That kind of not paying fees and permits.

The camping out represents a whole lot of things. And you have just put your finger on one of them.

Only little people have to pay the fees.

Our local and state governments would get a big boost in the budgets if the mortgage companies and banks repaid the money they owe for the recording fees that they did not pay on the mortgages they turned into derivatives.

[nbcouch]

32. what nonsense

Calling something a protest doesn't make it a protest. In the case of the Occupy movement there is no doubt that the occupations are a form of expression, nor any doubt that the occupiers have a message and grievances to be addressed. So they are covered under the First Amendment, both the speech and assembly clauses.

Occupying a public space 24/7 is absolutely part of the message, by the way. The statement is that the space belongs to all of us, just as the government is supposed to belong to all of us, and not just the 1 percent.

There are no curfews on our Constitutional rights. The First Amendment does not cease to apply at 11 pm. Nor is there anything compelling the various municipalities to treat these peaceful assemblies the way they have, beyond their own fear of direct and effective democratic action.

[Maineman]

13. If money is protected speech, then pitching a tent in a strategic location is protected speech.

[Flatulo]

18. That's exactly what I was thinking. It's a much more convoluted process

that would lead one to conclude that money = speech.

[onethatcares]

20. if public parks are paid for by public tax payer dollars

they should be open to the public 24/7

the bullshit about them being health and safety concerns can be addressed without riot police.

[Sarah Ibarruri]

23. They use all kinds of bs excuses to deny the guaranteed right of free assembly nt

[Beartracks]

21. If money is free speech, so is camping! n/t

[happyslug]

37. And the US Supreme Court would agree with you

But as seen in CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE, 468 U.S. 288 (1984)
468 U.S. 288, the Court found any first amendment activity is subject to "reasonable" restrictions. The problem is the ban on money was ruled by the court NOT to be a "reasonable restriction", but a ban on Sleeping in Lafayette park was a "reasonable restriction", even if the purpose of the tents and sleeping bags was to show the Nation the affect of being homeless.

CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE, 468 U.S. 288 (1984) 468 U.S. 288,:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=468&page=293

[lonestarnot]

24. Woohoo! Some justice!

[William769]

26. Ain't that the truth!

[Stellar]

25. K&R +++

Yahoooo! :hippie:

[Kingofalldems]

33. Yeah but the polls say OWS is bad and and and

[harun]

35. Word