The hearing began with an explanation of the proposed rules by Thaddeus E. Watkins, the department's attorney who rather enjoyed his first run-in with the Occupy protesters last October. Things took on a strange tone as Watkins went through the proposed rules one by one, asking various members of the panel to explain the rationale for them, as if he were a neutral overseer acting on spontaneous curiosity.
"Why could this be a problem?" he would ask, prompting detailed explanation's of the plaza's design, the specific dimensions of its granite slabs and the fragility of the "roof membrane" underneath them. These concerns, among others, they claim, were the primary impetus for the new rules, not the inconvenient presence of lefty protesters. Those concerns along with rampant defecation, which, of course, was mentioned.
The rules are available for public perusal here, in PDF form.
Among them are prohibitions on camping, using sound amplifying equipment and using electrical outlets without prior approval. Another provision states vaguely that "picketing or the distribution of literature shall not impede or interfere with state business." It also says that groups picketing or distributing literature would be responsible for trash left behind by passers by, who might take a flyer and drop it somewhere else on the grounds.
During time set aside for public comment, a long line of Occupy members and supporters came forward to speak in opposition to the rules. The most forceful comments came from one of Occupy Nashville's most public faces, and voices, Michael Custer and attorney Brian Paddock, whose statements are excerpted below. Opponents of the rules found trouble with most of the proposed provisions, but primarily with what they saw as an open door for selective enforcement in vague phrases like "unless prior approval has been granted."
They also took issue with references to "fees charged for an application to reserve use of the premises" and a requirement to either agree not to sue the state for any personal injury or death resulting from use of the plaza or to carry $1 million in insurance.
See, one of the things that really disturbs me with these rules, is they appear on the face to give more rights to those willing to pay for public space than the rest of the citizens. That's why we came here. That's what we came here to fight. You don't have a right to rent our space out to a wedding and tell us we can't be there. You don't have a right to charge us money to go across a bridge that our tax dollars paid for. You just don't have a right to sell our property to the highest bidder. That's why we came here. That's what Occupy movement is about. The slow destruction of our democracy, by privatization of everything.
Paddock, who went about a line-by-line legal takedown of the rules, undresses a few here. He told the panel there was "a great deal of problem" with the proposed regulations because they were vague, incomplete and too reliant on the personal discretion of whatever official might be handling a case:
You do not make clear anywhere here, that none of this is to turn on the person who gives permission or who handles an application. [They] can in no way — and I think you need to state this affirmatively — can not impose a different rule based on the content of what is proposed to be said. This is a free speech area and we don't say, 'Well what do you want to talk about, and then we'll tell you whether you can have a loudspeaker.' And you need to make that very clear to a person who has lax legal training and who needs to be handling the implementation of whatever [regulations] you come up with.
You talk about prior approval several times, in the first part of your general approved procedures, in addition to a couple of times later on, and nowhere do you specify any recognized method, path for approval. There's no process, there's no time limit, it doesn't say where to go, what to do. It doesn't say, as you do in the proposal to 'reserve a time,' that we'll give you an answer by a certain time. I mean, this is sort of left that there's somehow a place to go and get prior approval. That kind of vagueness is the death knell of limitations on time, place and manner of activities for both freedom of assembly and freedom of speech.
The requirement as a general requirement that people who are gathered there are responsible for removing discarded items. As a prior speaker noted for you quite frankly, the Supreme Court has decided again and again that you can't use anti-littering laws as a way of controlling the distribution of literature. The first time that is tried to be enforced, if not before, you will face a litigation, which you will lose and because it will be brought in a federal court under the federal civil rights act, you will pay the attorney's fees for the people that tell you that is no longer valid.
Watkins assured those in attendance that there was no permit requirement — something the state has been unclear on for some time — and said the department might well try to make that more clear.
General Services will accept written public comment at their offices on the proposed rules for two days before closing the record and reconvening to decide whether or not to adopt the rules, with any changes. At that point, they will go to the state's attorney general, Robert Cooper, for review.