"I can't think of any more quintessential public forum than the Legislative Plaza," she said, calling the governor's actions "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 this 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. Oh yes, 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.
At the same time, the curfew has been selectively enforced—raising obvious issues about equal protection of the law—with theater-goers given carte blanche to stroll freely across the Plaza just before the troopers have swept in to arrest the protesters.
Gov. Bill 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 Safety Commissioner Bill Gibbons told reporters, “We don't have the resources to go out and, in effect, babysit protesters.” So Haslam had the protesters arrested instead.
On both nights of the crackdown, Metro Night Court Judge Tom Nelson has scolded the highway patrol, telling them to release the protesters because—in what’s become a celebrated rebuke—there’s “no authority anywhere for anyone to authorize a curfew anywhere on Legislative Plaza.” But on the first night, demonstrators still were detained for five hours. That, too, is cited in the lawsuit as evidence of what the plaintiffs are calling the state of Tennessee’s brazen disregard for the law.
“The commissioner of safety kidnapped these kids. That’s what he did,” says Patrick Frogge, one of the lawyers for Occupy Nashville. “He took them down to night court. Tom Nelson said, ‘No, release them,’ and they kept them in a bus for five hours.”
“This is like Tiananmen Square,” Frogge says. “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.”
For the past two nights, troopers have left the protesters alone, perhaps because state officials realized the ACLU lawsuit was inevitable and the state’s actions are, ahem, shall we say a little difficult to defend?
After this afternoon’s hearing, we talked with David Briley, the former Metro council member and attorney who’s also representing Occupy Nashville in this lawsuit. Here's some of what he said:
Q: What happened?
Briley: The gist of it was, the judge looked at what we filed and it was very clear to her from what she said that (1) the Legislative Plaza is the quintessential public forum and it has to be protected and (2) that the regulation they adopted was done improperly and they have to start from scratch on that.
Q: So now you guys are going to get together and try to figure out a way to accommodate the protesters?
Briley: 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.
Q: Would accommodating the protesters necessarily include an encampment or overnight occupation?
Briley: Obviously, that’s important to Occupy Nashville, and our clients will ultimately make the decision about what we can agree to. My personal opinion is that occupy is an important word. There’s something meaningful from the long-term presence in that particular public space. That’s important to the message of the group. My sense is that’s going to be a sticking point.
Q: What other sticking points are there?
Briley: 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. 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 are a whole list of things.
Q: If there’s nothing by Nov. 21, the lawsuit goes forward?
Briley: As it currently stands, if we can’t reach agreement by Nov. 21 on injunctive relief we would have a preliminary injunction hearing, and the court would make a determination about whether to extend the injunction for a longer period of time.
Q: Do you think the state realized they were fighting a losing battle here and decided to surrender?
Briley: I think to his credit, the attorney for the state made it pretty clear that they looked at the facts and conceded.
Q: What do you think? The attorney general called Haslam and said, ‘Dude, you can’t do this?’
Briley: Um, I seriously doubt that was the gist of the conversation.