In the space of a weekend, Gov. Bill Haslam, state Safety Commissioner Bill Gibbons and the Tennessee Highway Patrol may have succeeded where three weeks of public protest hadn't. They've given liberals and conservatives, hippies and yuppies, and media professionals who'd normally be at each other's throats reason to rally behind Occupy Nashville — or at least behind its First Amendment right to assemble on Legislative Plaza.
The state's crackdown on protesters in the early morning hours Friday and Saturday in the shadow of the state Capitol brought stern rebukes from both federal and Metro judges, outcry from media outlets across the country, and as yet unanswered questions about who formulated the policy behind the arrests.
What isn't ambiguous is that policy's current legal standing. On Monday, in a victory for Occupy Nashville, the state of Tennessee declined to defend the governor's actions and accepted a court order stopping the arrests. Federal Judge Aleta Trauger said she'd already decided to issue her temporary restraining order anyway, even if the state had opposed it.
"I can't think of any more quintessential public forum than the Legislative Plaza," she said, saying the state was guilty of "clear prior restraint of free speech." She said she was "most gratified" and "not too surprised" that the state was conceding the first round in the lawsuit filed Monday morning by Occupy Nashville and the ACLU.
The two sides agreed to negotiate ways to accommodate the protesters while maintaining public safety at the plaza. They were given until Nov. 21, at which point they'll go back to court. If there's no deal, then Trauger will decide whether to make her injunction permanent.
"Ideally, we're going to get together and talk and see if there's a rational and procedurally open way to establish a set of regulations that both allow legitimate public participation and expression on the plaza while at the same time protecting the public's interest in preserving the physical integrity of the plaza," says David Briley, one of the attorneys who filed suit on behalf of Occupy Nashville.
Meanwhile, the state also agreed to return the protesters' tents, soggy sleeping bags and other possessions that troopers confiscated on the first night of arrests and tossed into the back of a pickup truck in the plaza garage.
The maelstrom began last Thursday, Oct. 27, as the Haslam administration banned public demonstrations at Legislative Plaza without a permit and imposed a new curfew on the Capitol grounds from 10 p.m. to 6 p.m. That afternoon, state spokeswoman Lola Potter told reporters that the protesters wouldn't be arrested until they had an opportunity to apply for one of the new state permits to hold demonstrations at the Capitol. In fact, Potter made the case that it was unfair and unreasonable to arrest the protesters before giving them a little time to ask for a permit.
"Not tonight," Potter said when asked when the arrests would take place. "We're just now announcing the policy after 1 o'clock in the afternoon, so we're not going to enforce it today. We're going to assume that they are going to do the right thing and get a permit tomorrow."
Nevertheless, just after 3 a.m. Friday, state troopers arrested 29 demonstrators and hauled them away in buses to jail, ending the three-week occupation of the plaza.
Metro Night Court Judge Tom Nelson refused to hear the charges, saying the state didn't give the protesters enough notice of the curfew. The judge advised the Highway Patrol to free the protesters. Instead, troopers detained them at the jail and began issuing citations for criminal trespass. They didn't go free until approximately 9 a.m. — a five-hour delay seized upon in the ACLU suit.
In Knoxville for a University of Tennessee trustees meeting the next day, Haslam warned that state troopers would enforce the Capitol's new curfew again that night if Occupy Nashville protesters refused to back down. "If we're going to have laws, we have to enforce laws," he said.
And so they did. Just after midnight Saturday, Oct. 29, troopers moved in and carted away two dozen protesters to Metro Night Court. In their dragnet, they also swept up Scene reporter Jonathan Meador, there to cover the protests — as he does in the story on p. 15 — as well as an MTSU student journalist named Malina Chavez Shannon.
For the second straight time, Judge Nelson rebuffed the troopers and refused to jail anyone. "I have reviewed the regulations of the state of Tennessee," he said in what's become a celebrated rebuke, "and I can find no authority anywhere for anyone to authorize a curfew anywhere on Legislative Plaza."
That included the state's supposed basis for the curfew: TCA 4-8-101, a statute that essentially empowers the state Department of General Services to cut the grass and weed-eat on the Capitol grounds and tidy up in the offices. There's also this provision: "The department, through proper agencies, has the authority to preserve order among visitors who may be in and around the capitol and annexes, and to keep improper persons out of the different offices and rooms, in the absence of the regular occupants."
"Improper persons" or not, from that point on troopers left the protesters alone — perhaps because state officials realized the ACLU lawsuit was inevitable, perhaps because no one wanted to run the risk of facing Judge Nelson again. Throughout the weekend, the number of observers and supporters swelled on the plaza. For proof of the movement's widening base of support, there was the sight of conservative blogger and former Republican spokesman Bill Hobbs on the plaza, handing out cocoa to the media.
The lawsuit filed Monday catalogs all the many ways the protesters say the governor and the state of Tennessee have trampled on their rights. Free speech and free association have been denied at probably the most prominent public forum in the state of Tennessee, and it was done on the fly with flimsy legal authority and without following the state's rule-making process, the lawsuit says.
At the same time, the curfew has been selectively enforced — raising obvious issues about equal protection of the law—with theater-goers from nearby TPAC given carte blanche to stroll freely across the plaza just before the troopers swept in to arrest the protesters.
Haslam claims he acted to protect public safety and because of increasingly unsanitary conditions at the encampment. Protesters say that's merely his pretext for banning their free speech. They say street people were causing all the trouble, and it was the protesters who first came to the state asking for protection.
But Gibbons told reporters Friday after the first round of arrests, "We don't have the resources to go out and, in effect, babysit protesters." So Haslam had the protesters arrested instead.
The exact genesis of the policy remains unclear. Did Haslam, largely seen before now as an amiable squish, knuckle under to pressure from hardliners in his party, or has he suddenly morphed into Dirty Harry? Both Gibbons and Haslam have claimed the policy originated with the obscure Department of General Services, whose duties on the Capitol grounds are mainly janitorial.
And Haslam's flacks at first tried to convince incredulous reporters that questions should go to General Services, not the governor's office, for what clearly are the most potentially unpopular actions of state government since Phil Bredesen dismantled TennCare.
But Haslam did acknowledge after the first night's arrests that he signed off on the policy. The extensive media coverage has all but forced him to take complete ownership of it since then.
"This is like Tiananmen Square," says Patrick Frogge, one of Occupy Nashville's attorneys. "I don't want to overstate it, but Jesus. They sent 75 troopers two nights in a row, and they're telling us they don't have the resources to babysit them? They've outlawed free speech in the most public forum in Nashville."
What happens next depends on agreement between Occupy Nashville and the Haslam administration. First, Briley says, the Supreme Court law is "very clear" on what sort of limitations there can be on public spaces and speech in public spaces. "So we're going to have to touch all of those bases in terms of reasonable time, place and manner restrictions," he says. "We're going to want to ensure that it's not cost-prohibitive to organizations that are especially pursuing speech on behalf of the impoverished and disadvantaged. There [is] a whole list of things."
Then there's the matter of the occupation on Legislative Plaza. Haslam has cited General Services staffers having to clean up "human waste" and complaints about health conditions on the plaza — some of which (the complaints, not the waste) may have come from legislators, if not House Speaker Beth Harwell and Lt. Gov. Ron Ramsey themselves.
But Briley says the occupation of the plaza is a "sticking point" crucial to the public message of the movement.
"My personal opinion is that 'occupy' is an important word," Briley says. "There's something meaningful from the long-term presence in that particular public space. That's important to the message of the group."
Haslam, meanwhile, maintains that no mistakes were made, even as national media such as CNN and the Washington Post continued to pick up on the drama at Legislative Plaza this week.
"Our purpose is to provide a safe environment," Haslam said Tuesday after speaking to higher education officials in Franklin. "If we can come up with rules to make that happen, then that's what we're for. Our goal is not to remove people from the plaza. Never has been, never will be. Period. Our goal is to provide a safe environment. That's not just our goal. That's our legal responsibility."
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