Motion for Preliminary Injunction-OccupyMaine.12.19.11
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Transcript of Motion for Preliminary Injunction-OccupyMaine.12.19.11
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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTIONDocket No. PORSC-CV-11-_____
OCCUPYMAINE,FREDERICK DEESE HAMILTON, )HEATHER LINNET CURTIS,HAROLD JOSEPH )
BROWN,JR., AND PALMA E.RYAN, )
)PLAINTIFFS )
)
v. ))
)
CITY OF PORTLAND,MAINE, ))
DEFENDANT )
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
(With Incorporated Memorandum of Law)
NOW COME Plaintiffs OccupyMaine, Frederick Deese Hamilton, Heather Linnet Curtis,
Harold Joseph Brown, Jr. and Palma E. Ryan, by and through their undersigned counsel, and
move this Court, pursuant to Rule 65 of the Maine Rules of Civil Procedure, for the entry of a
Preliminary Injunction enjoining and otherwise prohibiting the City of Portland from:
(1) enforcing against the Plaintiffs Section 18-18 and 18-41 of its Code of Ordinances, which
enacts a blanket prohibition all speech and conduct in a public park between the hours of 10:00
p.m. and 6:30 a.m. and places an unconstitutional prior restraint on any constitutionally protected
activity expected to involve twenty five or more persons or last for more than three consecutive
days; (2) undertaking any actions to enforce or otherwise give effect to the denial of
OccupyMaines Amended Petition in plain violation of the Plaintiffs rights of non-commercial
expression, assembly and petitioning under the United States and Maine Constitutions; (3)
undertaking any actions to remove from Lincoln Park the individual Plaintiffs or any other
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members of OccupyMaine; (4) undertaking any actions to remove from Lincoln Park the
belongings of OccupyMaine, the individual Plaintiffs or any other members of OccupyMaine;
and (5) undertaking any actions to interfere with the peaceable exercise of constitutionally
protected rights expression, assembly and petitioning by the Plaintiffs or any other individual
members of OccupyMaine in Lincoln Park.
Introduction & Factual Background
Plaintiff OccupyMaine is an unincorporated association of citizens organized in solidarity
with the national free speech and assembly movement known as OccupyWallStreet for the
purposes, among others, of engaging in non-commercial speech and assembly, facilitating public
dialogue about the grave economic, social and political injustices of our time, reclaiming public
spaces for civic engagement, creating direct democracy and civic community, and petitioning the
government for redress of economic and political grievances. OccupyMaine is based in Lincoln
Park, a public park in Portland, Maine and also maintains an office at the Meg Perry Center on
Congress Street in Portland. See Complaint at 1.
Under well established jurisprudence, OccupyMaine has standing to bring this action for
declaratory and injunctive relief on behalf of all its members. United Food and Commercial
Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551-558 (1996) (where injunctive
relief rather than monetary damages is sought on behalf of its members, an unincorporated
association traditionally has standing to bring suit). (citing Hunt v. Washington State Apple
Advertising Commission, 432 U.S. 333, 341-45 (1977)).1
1
Standing jurisprudence in Maine is prudential, rather than constitutional. Lindemann v. Commission on
Governmental Ethics and Election Practices, 961 A.2d 538, 541-542 (Me. 2008) (citingRoop v. City of Belfast, 915
A.2d 966, 968 (Me. 2007)). There is no established formula for determining standing in Maine. Id. Instead, a court
may limit access to the courts to those best suited to assert a particular claim.Id. (quotingRoop, 915 A.2d at 968
(citation omitted). The question of whether a specific individual has standing is significantly affected by the
unique context of the claim.Id. In this case, OccupyMaine and the individual Plaintiffs are best suited to seek
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Plaintiffs Hamilton, Curtis, Brown and Ryan are all legal residents of the City of
Portland, Maine and are members of OccupyMaine. See Complaint at s 2-5. Plaintiffs are
both daytime and overnight demonstrators in OccupyMaines protest encampment in Lincoln
Park. Id. Their use of tents and overnight occupancy in Lincoln Park is intended as a form of
symbolic expression to draw the attention of the public and the government to the grave
economic, political and social injustices of our time, and their continuous presence in the park is
intended to hold that attention until grievances are adequately redressed by those in power. Id.
The OccupyWallStreet movement began on September 17, 2011 in New York City. At
its General Assembly on September 29, 2011, OccupyWallStreet issued a declaration that
included the following language:
We, the New York City General Assembly Occupying Wall Street in LibertySquare, urge you to assert your power. Exercise your right to peaceably
assemble; occupy public space; create a process to address the problems we
face, and generate solutions accessible to everyone. To all communities that
take action and form groups in the spirit of direct democracy, we offer support,documentation, and all the resources at our disposal.
See Complaint at 11 and exhibit thereto. As part of that same Declaration, OccupyWallStreet
formally articulated an initial set of grievances about which it was seeking redress through
peaceable assembly, speech and petitioning activity. Id.
OccupyMaine was formed in response to that national call to peaceable assembly,
expression, petitioning and democratic action. On October 1, 2011, OccupyMaine began a
peaceable assembly in Monument Square for the purposes, among others, of showing solidarity
with OccupyWallStreet, advocating for economic, political and social justice, creating a public
space for citizens to consult upon the common good, and petitioning for redress of grievances.
declaratory and injunctive relief on behalf of themselves and the members of OccupyMaine, who are both numerous
and similarly situated.
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Complaint at 12. OccupyMaine and its members have maintained a continuous and
uninterrupted presence in Lincoln Park since Monday, October 3rd, engaging in expression,
assembly and consultation with ordinary citizens about the need to redress a plethora of
grievances arising from the vast inequality of wealth and income in the United States and
throughout the world; a thoroughly corrupt and unjust financial, economic and political system;
and the corporate takeover of our public spaces and our once democratic government at the
national, state and local levels. Complaint at 13-16.
During the period from December 1, 2011 through the present, Defendant City of
Portland has undertaken a variety of decisions and actions designed to end the Plaintiffs political
demonstration in Lincoln Park and otherwise interfere with their constitutionally protected rights
of expression, assembly and petitioning activity, culminating in a notice dated December 15,
2011 notifying them that they must cease all such activity between the hours of 10:00 p.m. and
6:30 p.m. and remove all expressive structures integral to that activity. Complaint at 31-54.
By way of additional factual background, Plaintiffs hereby incorporate by reference herein all the
allegations set forth in Paragraphs 17-54 of their Complaint filed herewith.
In their Complaint, Plaintiffs assert four separate counts against the Defendant City of
Portland, seeking, inter alia, declaratory relief, injunctive relief, and an award of reasonable
attorneys fees and costs. Through Counts I and II, Plaintiffs seek a declaration from this Court
that the Citys blanket ban on any gatherings of people in Lincoln Park and most other public
parks during the hours of 10:00 p.m. and 6:30 a.m. in the form of an anti-loitering ordinance,
Section 18-18 of the City Code is unconstitutional on its face and/or as applied to the Plaintiffs.
Plaintiffs further request an order enjoining the City from undertaking any action to enforce that
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unconstitutional ordinance as against OccupyMaine or its members, consistent with this Courts
legal and equitable powers under the Declaratory Judgment Act, 14 M.R.S.A. 5951 et seq.
Through Count III, Plaintiffs seek a declaration that the Citys requirement of advance
permission for any demonstration involving more than twenty-five persons or lasting more than
three days as set forth in Section 18-41 of the Code of Ordinances is unconstitutional on its
face and/or as applied to the Plaintiffs, and seek an order enjoining the City from subjecting
Plaintiffs to those unconstitutional requirements. Through Count IV, Plaintiffs challenge the
Citys denial of OccupyMaines Amended Petition for use of Lincoln Park as a violation of their
rights under the First Amendment of the United States Constitution and Article I of the Maine
Constitution. Plaintiffs seek declaratory and injunctive relief pursuant to 14 M.R.S.A. 5951
et seq. and 5 M.R.S.A. 4682 preventing the City from acting upon its denial of
OccupyMaines Petition in violation of their constitutional rights, and request an award of
reasonable attorneys fees and costs for bringing this action.
The essence of Plaintiffs Complaint in this case is declaratory and injunctive in nature,
and is brought for the principal purposes of protecting and defending their rights under the
United States and Maine Constitution to continue to peaceably assemble, speak demonstrate and
petition. The timing and content of this lawsuit is further intended to avert or minimize the harm
associated with the Citys recent, ongoing and threatened actions to terminate those rights,
apparently by force if necessary. In this context, for the reasons set forth below, Plaintiff seek
the immediate entry of a preliminary injunction to maintain the status quo during the pendency
of this lawsuit through and including final judgment.2
2
Plaintiffs are not requesting the entry of temporary restraining order pursuant to M.R.Civ.P. 65(a). Provided that
a lawsuit is filed no later than Monday, December 19, 2011 at noon, the City has provided written assurance to
OccupyMaine, satisfactory to the Plaintiffs, that it will refrain from undertaking any action to remove OccupyMaine,
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Argument
A preliminary injunction maintains and preserves the status quo until the time a final
judgment is entered in the lawsuit. In order to grant preliminary injunctive relief in favor of the
Plaintiffs, the Court must find that: (1) Plaintiffs will suffer irreparable injury if the injunction is
not granted; (2) such irreparable injury outweighs any harm which granting injunctive relief
would inflict on the Defendant; (3) there is a likelihood that Plaintiffs will succeed on the merits
of lawsuit; and (4) the public interest will not be adversely affected by granting the injunction.
See Windham Land Trust v. Jeffords 967 A.2d 690 (Me. 2009); and Womens Community Health
Center, Inc. v. Cohen, 477 F.Supp. 542 (D. Me. 1979).
As set forth more fully below, the irreparable harm that Plaintiffs would suffer if they and
their belongings were removed from Lincoln Park before the conclusion of the lawsuit is beyond
dispute. OccupyMaines protest encampment maintained in Lincoln Park since October 3, 2011
including tents, a library and others structures integral to their message would be destroyed.
The very rights of speech, assembly and petitioning embodied by every aspect of that
encampment and which Plaintiffs are fighting to defend in this lawsuit would vanish with it.
The community of protestors maintaining a continuous presence there would reasonably be
expected to scatter and disperse per the dictates of the Defendant or through its expected use of
force, undermining any legitimate hope of restoring that community protest encampment after a
legal victory is achieved. In the absence of a preliminary injunction, any victory achieved by the
Plaintiffs in this lawsuit would truly be a pyrrhic one. It should be noted that Plaintiffs are not
seeking any monetary damages in this action, but instead are asking that this Court to enjoin the
its members or their belongings from Lincoln Park until such time as this Court has issued a ruling on Plaintiffs
request for a preliminary injunction.
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City from removing them and otherwise protect their constitutional right to remain there for the
purpose of peaceable, constitutionally protected expression, assembly and petitioning activity.
The irreparable harm Plaintiffs would suffer heavily outweighs any harm to the
Defendant associated with the granting of the preliminary injunctive relief. The various burdens
and inconveniences already claimed by the City as a basis for shutting down the OccupyMaine
protest encampment in Lincoln Park public safety, fire safety, sanitation, a drain on City
resources and the like are either all subject to being address pursuant to plans and actions
already outlined and taken by OccupyMaine, or are constitutionally insufficient as grounds for
banning an entire form of political protest. Accordingly, those stated concerns cannot justify the
denial of Plaintiffs request for injunctive relief.
In their Complaint filed contemporaneously herewith, Plaintiffs assert four separate and
independent Counts against the City of Portland for declaratory and injunctive relief. If the
Court finds a likelihood of success on any one of the four Counts of Plaintiffs Complaint three
of which challenge the constitutionality of City Ordinances on their face or as applied to
OccupyMaine, and one of which challenges the Citys unlawful denial of OccupyMaines permit
request then it should grant the pending request for a preliminary injunction. Plaintiffs have
shown a likelihood of success on the merits with respect to each separate Count.
Finally, the public interest will be helped, not harmed, by the granting of the preliminary
injunction. It is well within the discretion of this Court to reject any suggestion by the Defendant
or anyone else that the public interest would be adversely affected as a result of any aesthetic
offense that may be caused to certain members of the public, or any concerns voiced by business
owners that the vocal protests are not good for business, or the financial and other burdens
imposed upon the Citys fire, police and inspections personnel in connection with the multi-
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faceted nature of the Plaintiffs non-commercial First Amendment activity in Lincoln Park. If
our Constitution is to mean anything, and if it is to remain the highest law of our land in fact not
just in theory, then the public interest is best served by preserving the status quo as it pertains to
those engaged in their constitutionally protected rights in Lincoln Park, until such time as a final
judgment is entered in this matter.
I. PLAINTIFFS WOULD SUFFER IRREPARABLE HARM IF THE MOTION
FOR PRELIMINARY INJUNCTION WERE DENIED.
The denial of a Constitutional right, if denial is established, constitutes irreparable harm
for purposes of equitable jurisdiction.Ross v. Meese, 818 F2d 1132, 1135 (4th Cir. 1987). The
First Amendment occupies a unique place in our pantheon of freedoms, and as such is entitled to
special protection. SeeLet's Help Florida v. Smathers, 453 F.Supp. 1003, 1009 (N.D.Fla.1978),
aff'd. 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982). See alsoWooley v. Maynard, 430
U.S. 705 (1977) (injunctive relief appropriate to prevent injury to Plaintiffs First Amendment
rights);Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (The
loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes
irreparable injury.); Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 824 (2d
Cir.1967); Planned Parenthood v. Citizens for Com. Action, 558 F.2d 861, 867 (8th Cir. 1977);
Henry v. Greenville Airport Comm'n, 284 F.2d 631, 633 (4th Cir. 1960). See also CHARLES
ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE 2948.1 (2d. ed. 1995) (When an alleged constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.)
Virtually every aspect of Plaintiffs ongoing activity in Lincoln Park is expressive and
otherwise protected under the Maine and United State Constitutions, including but not limited to
speech, assembly, petitioning, distribution of literature, pitching tents and sleeping overnight,
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housing and feeding the homeless, conducting teach-ins, maintaining a continuous, round-the-
clock presence, engaging in direct democracy and facilitating public discourse about the most
pressing political, economic and social issues of our time. See Complaint at See Complaint at
s 2-5, 11-17, 21-22, 39, 58-59, 67-68, 73-74, 84-85. This activity has continued unabated and
uninterrupted in Portlands Lincoln Park since October 3, 2011. Even a brief disruption of this
constitutionally protected activity will cause, as the Supreme Court has noted, irreparable injury.
II. THE IRREPARABLE HARM PLAINTIFFS WOULD SUFFER FROM
DENIAL OF INJUNCTIVE RELIEF OUTWEIGHS ANY HARM THAT
DEFENDANTS WOULD SUFFER IF THE INJUNCTION IS GRANTED.
Plaintiffs conduct, protest, expression, demonstration and assembly is being curtailed by
the City's recent revocation of their right to remain in Lincoln Park, and its stated intention to
strictly enforce provisions of its Code of Ordinance that are unconstitutional, both on their face
and as applied to OccupyMaine and its members. Peaceful protesters face the stark choice of
continuing to express their controversial message and face forcible removal and arrest, or
remaining silent. Individuals who seek to breathe life into our democracy, and meaning into the
sacred rights enshrined in the federal and state constitutions, have played a vital role throughout
history in changing our nation for the better. Plaintiffs seek the opportunity to follow that path,
and through the Citys recent actions may soon be been stripped of the right to voice their
collective dissent from economic, political and social conditions which they view as both unjust
and gravely injurious to the fabric of our Republic.
Through its application of an anti-loitering ordinance and other ordinances challenged
directly by Plaintiffs lawsuit under the United States and Maine Constitutions, the City seeks to
impose a wholesale ban on 24-hour speech and assembly in Lincoln Park and any other public
park, rather than ensuring that traditional public fora remain freely available for citizens to
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engage in non-commercial constitutionally protected activity so that the collective voice of its
most ordinary and least powerful citizens may be heard. As they have from the outset of their
peaceful protest, Plaintiffs continue to remain ready, willing and able to work with City officials
and undertake any and all actions reasonably necessary to address any legitimate safety or other
concerns voiced by City officials. See Complaint at 23-30 and 38 and Exhibits referenced
therein.
Finally, it is worth noting that, notwithstanding the City Councils stated concerns about
exclusive use of Lincoln Park by OccupyMaine and its members, no evidence has been offered
nor has it ever been brought to OccupyMaines attention since October 3, 2011 that a single
group or individual has sought permission to use Lincoln Park for any purpose, commercial or
non-commercial, during the period of the OccupyMaine demonstration. Complaint at 45.
The balance of the equities clearly favors Plaintiffs who simply wish to continue engage
in peaceful political protest in a public park, and who have repeatedly taken steps and otherwise
offered to reduce the geographic footprint and other impacts necessarily associated with its form
of protest, expression and assembly.
III. PLAINTIFFS HAVE A LIKELIHOOD OF SUCCESS ON THE MERITS OF
THEIR FOUR SEPARATE CLAIMS AGAINST THE CITY OF PORTLAND.
A. Defendant Bears the Burden of Proof in this Case
.
Defendants bear the burden of proof on limits to First Amendment rights. United States
v. Playboy Entertainment Group, Inc., 529 U.S. 803, 516 (2000). Once Plaintiffs show a
restraint on expression, the burden shifts to the government to justify its acts. Restrictions on
political speech in traditional public fora are viewed with extra scrutiny and upheld only if
narrowly tailored to serve an overriding state interest. McIntyre v. Ohio Elections Comm., 514
U.S. 334, 347 (1995).
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B. Plaintiffs Expression and Assembly in Lincoln Park is Protected by the First
Amendment to the United States Constitution and Article I of the Maine
Constitution.
Streets and parks are the quintessential traditional public fora. They have immemorially
been held in trust for the use of the public and, time out of mind, have been used for the purposes
of assembly, communicating thoughts between citizens, and discussing public questions.
Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939); see also United States v. Grace,
461 U.S. 171, 177 (1983) (public places historically associated with the free exercise of
expressive activities, such asparks, are considered without more, to be public forums).
Plaintiffs occupy such a forum for speech, assembly, association and petition, all protected by
the First Amendment as well as Article I, Sections 4 and 15 of the Maine Constitution. See
Shuttleworth v. City of Birmingham, 394 U.S. 147, 152 (1969); Central Maine Power Co. v.
Public Utilities Commission, 734 A.2d 1120 (Me. 1999) (with respect to free speech rights,
Maine Constitution is no less restrictive than the United States Constitution).
The Plaintiffs core expression in the current case direct efforts through discussions,
dialogue, chants and signs to communicate with the general public concerning the grave
economic, political and social injustices of our time, and the manner in which government is or
should be operated enjoy the fullest protection under the free speech clause of the Maine and
United States Constitutions. Central Maine Power Co. v. Public Utilities Commission, supra,
734 A.2d 1120 (Me. 1999).
The protections of the First Amendment and Article I, Section 4 of the Maine
Constitution also extend to symbolic and expressive conduct designed to communicate a
message, including the very modes of expression used by Plaintiffs. See Spence v. Washington,
418 U.S. 405, 409-410 (1974) (conviction for affixing peace symbol to American flag violated
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First Amendment); Univ. of Utah Students Against Apartheid v. Peterson, 649 F. Supp. 1200,
1207 (D. Utah 1986) (shanties erected to protest apartheid are symbolic expression protected
under the first amendment); United States v. Abney, 534 F.2d 984, 985-86 (D.C. Cir. 1976)
(overturning conviction as round-the-clock vigil in a park to protest disability inequities
constituted symbolic expression protected under the First Amendment). See also State v. Drake,
325 A.2d 52, 55 (Me. 1974) (Certain non-verbal conduct is capable of being categorized as
expression which may be constitutionally protected). The Plaintiffs tent city in Lincoln Park,
its round-the-clock vigil, its sheltering and feeding of ordinary citizens victimized by gross
economic and political injustice, and its maintenance of tents and other structures designed to
create a community of teaching, learning, civic discourse, direct democracy and unrelenting
petitioning activity for redress of grievances, encompass both pure speech and symbolic
expression entitled to constitutional protection.
In considering whether symbolic expression is protected by the First Amendment, courts
consider two factors: (1) the intent of those engaging in the conduct to communicate a message
by their activities; and (2) the likelihood those observing the conduct will understand the
message. Spence, 418 U.S. at 409-10; Univ. of Utah Students Against Apartheid, 649 F. Supp. at
1207. In Univ. of Utah Students Against Apartheid, the court found shanties were protected
symbolic expression because they were functional replicas of shanties in South Africa and, thus,
effectively serve as the speech itself. Id. The court noted that shanties had become symbolic
of the anti-apartheid movement and it was likely observers would understand the protestors
message. Id. InAbney, sleeping in a park to protest disability benefits issues was held to be
symbolic speech. 534 F.2d at 985-86.
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From a constitutional standpoint, Plaintiffs expressive protest encampment in Lincoln
Park is no different from those that have been accorded protection by the courts. Plaintiffs have
erected tents and other structures (including a library), and keep round-the-clock vigils as an
integral part of their core message. Similar assemblies have occurred around the country to
convey the same message. At each, tents are symbolic of the Occupy movement. No alternative
public forum exists in the City of Portland where plaintiffs may engage in symbolic expression
in proximity to the government or anywhere else for that matter. In the case of the Plaintiffs,
they have selected a Park in view of Portland City Hall and directly in front of the Cumberland
County Courthouse. Plaintiffs know the message they convey and observers are likely to
understand it. Spence, 418 U.S. at 409-10.
Plaintiffs form of demonstration is protected not merely by the free speech clauses of the
federal and state constitutions, but by the equally important rights of assembly and petition
guaranteed thereby. Public parks are the quintessential traditional public fora, because those
areas have immemorially been held in trust for the use of the public and, time out of mind,
have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983) (quotingHague v. Committee for Indus. Org.,
307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)). See also United States v. Grace,
461 U.S. 171, 177, 103 S.Ct. 1702, 1706-07, 75 L.Ed.2d 736 (1983) ([P]ublic places historically
associated with the free exercise of expressive activities, such as ... parks, are considered without
more, to be public forums.);Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724 (The
rights of speech and petition are not confined to verbal expression and certainly include the
right in a peaceable and orderly manner to protest by silent and reproachful presence); State v.
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Armen, 537 A.2d 1143, 1147-1148 (Me. 1988) (Skolnik, dissenting) (citing Brown v. Louisiana,
supra, 383 U.S. at 142).
OccupyMaine members have maintained a continuous assembly in a traditional public
forum. Their direct and symbolic expressions in this forum concerning grave economic, political
and social injustice and the possibility of a more democratic, just, and egalitarian society and
form of government exemplify political speech, and fall squarely within the guarantees of
freedom of speech, assembly, association and the right to petition the government protected by
the First Amendment to the United States Constitution and Article I, Sections 4 and 15 of the
Maine Constitution. See Shuttleworth v. City of Birmingham, 394 U.S. 147, 152 (1969)
(describing privilege of citizens to assemble, parade, and discuss public questions in streets and
parks);Roth v. United States, 354 U.S. 476, 484 (1957) (explaining that the broadest protection
is afforded to political expression in order to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the people.) Likewise, there is
practically universal agreement that a major purpose of the [First] Amendment was to protect the
free discussion of governmental affairs.Mills v. Alabama, 384 U.S. 214, 218 (1966).
As the First Circuit Court of Appeals reasoned, freedom of speech is designed and
intended to remove governmental restraints from the arena of public discussion, putting the
decision as to what views shall be voiced largely into the hands of each of us, in the hope that
use of such freedom will ultimately produce a more capable citizenry and more perfect polity
and in the belief that no other approach would comport with the premise of individual dignity
and choice upon which our political system rests. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d
8, 11-12 (1st Cir. 2004) (quoting Cohen v. California, 403 U.S. 15, 24 (1971)). This conclusion
reflects the profound national commitment to the principle that debate on public issues should
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be uninhibited, robust, and wide-open.New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964).
As the United States Supreme Court has observed, advocacy of a politically controversial
viewpoint is the essence of First Amendment expression. See e.g., Citizens United v. Fed.
Election Comm'n, 130 S.Ct. 876, 892 (2010) (noting that political speech is central to the
meaning and purpose of the First Amendment);McIntyre v. Ohio Elections Comm'n, 514 U.S.
334, 347 (1995) ([T]he advocacy of a politically controversial viewpoint is the essence of First
Amendment expression.). Given the fundamental nature of the right to unrestrained political
dialogue, laws burdening core political speech are viewed with extra scrutiny and may be
upheld only if narrowly tailored to serve an overriding state interest.McIntyre, 514 U.S. at 347.
The OccupyMaine protest falls clearly within the protection of the First Amendment. As
did the students in the Univ. of Utah Students Against Apartheid (649 F. Sup. At 1204), and the
protestor inAbney (534 F.2d at 985-86), the OccupyMaine protestors erected tents and keep
round-the-clock vigil at the encampment by sleeping at the site. These tents and the consensus-
based, non-hierarchical governance of the encampments is symbolic of the protestors message
that it is possible to create a more democratic, egalitarian and economically just society. Such
tent cities have been built throughout the country, including three in Maine, in order to
communicate this message, and Plaintiffs are expressing their political message in a manner that
the courts have consistently recognized as speech that is protected under the First Amendment.
Clark v. Community for Creative Non-Violence (468 U.S. 288 (1986) does not compel a
different conclusion. In Clark, the Supreme Court held that protestors trying to raise awareness
about homelessness could be prohibited from camping overnight in Lafayette Park on the
Washington Mall under a regulation prohibiting overnight camping on the Mall.Id. at 295-97.
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Although the Court decided that the act of camping was expressive speech, id. at 293, it
ultimately concluded that the campaign prohibition was a reasonable time, place and manner
restriction on that speech.Id. at 298- 99. Clark, however, is distinguishable from this case.
First, and most importantly the Court in Clarkfound that sleeping overnight was not
integral to the protestors' message since it was facilitative rather than expressive.Id. at 296. By
contrast, as demonstrated by the Plaintiffs Complaint and supporting Affidavits, camping at the
OccupyMaine tent city is integral to the protestors message. Second, the Court in Clarkfound
that the regulation left open ample alternative channels for the protestors to express their
message, since there were other federal parks in Washington, D.C. that allowed camping.Id. at
295. In this case, the City of Portland provides no alternate park or other public forum where
OccupyMaine could maintain a continuous round-the-clock presence or establish a tent city
designed to shine a bright spotlight on our countrys economic and political inequality.
Lastly, unlike the National Park Service in Clark, the City of Portlands Code of
ordinances provides no direct ban on sleeping or tenting in City Parks, nor any even-handed
method for regulating or issuing permits regarding the same. Instead, its seeks to prohibit the
Plaintiffs expressive conduct principally by enforcing its anti-loitering ordinance, which as set
forth below is unconstitutional on its face and/or as applied to the Plaintiffs. Tent cities have
become symbolic of the Occupy movement. OccupyMaine has hosted numerous visitors at its
protest encampment in Lincoln Park, including many visitors from out-of-state. Given the
publicity that the OccupyMaine movement has received statewide, the steady flow of visitors to
the encampment, and the ongoing participation of members of the public in the groups daily
General Assembly meetings, observers are aware of the tent city and the message that the
participants seek to convey.
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The Plaintiffs in this matter have amply met the standard set out in Spence they know
the message that their conduct communicates and observers of their conduct are likely to
understand the message. The encampment aspect of Plaintiffs protest is therefore protected
expression under the federal and state constitutions. See Spence, 418 U.S. at 409-10. See also
Central Maine Power Co. v. Public Utilities Commission, 734 A.2d 1120 (Me. 1999) (with
respect to free speech rights, Maine Constitution is no less restrictive than the United States
Constitution).
C. Plaintiffs Challenge to the Constitutionality of Key Provisions of the
Citys Code of Ordinances Has a Likelihood of Success.
1. Section 18-18 of the Portland City Code is Constitutionally
Overbroad because it creates a Blanket Ban on all Forms of Protected
Expression, Assembly and Petitioning Activity in Public Parks During
Extended Hours Every Day.
Section 18-18 of the Citys Code of Ordinances entitled Loitering in Parks bans any
person, or group of people, from appearing in Lincoln Park and most other City Parks between
the hours 10:00 p.m. and 6:30 a.m. and therefore prevents them from engaging in constitutionally
protected speech, assembly or petitioning activities for extended hours every day. The ordinance
specifically provides as follows:
Sec. 18-18. Loitering in Parks.
Except as provided below for Tommys Park and Post Office Park, no
person shall stop, loiter, be or remain in any of the parks of the city or in anyof the paths, drives, streets, boulevards or roadways of the parks between
the hours of 10:00 p.m. and 6:30 a.m. of the day immediately following,
except for the purpose of traveling across or through such parks; nor shallany person park an automobile and remain therein between the hours of
10:00 p.m. and 6:30 a.m. of the day immediately following on any of the
drives, streets, boulevards, promenades or roadways within the parks of thecity, unless said person or persons has the prior written authorization of the
city manager to be in said park or parks or their drives, streets, boulevards,
promenades or roadways during the aforementioned hours.
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No person shall stop, loiter, be or remain in Tommys Park or Post Office
Park or in any of the paths of these two parks between the hours of 1 a.m.and 6:30 a.m. on any given day, except for the purpose of traveling across or
through such parks.
No public park in Portland is available on a 24-hour basis for constitutionally protected activity
including a continuous vigil. Under Section 18-18, the Portland City Manager is granted
unbridled and unregulated discretion to grant or deny written permission to specific groups or
individuals to remain in Parks past the designated closing times.
Portlands City Code provides no exception for any individuals or groups of citizens to
use public parks after 10:00 p.m. and before 6:30 a.m. for expressive conduct. The City of
Portland has therefore created a scheme where it is impossiblefor any person to participate in
any protest, vigil, or political rally located within a public park during certain hours. This
ordinance enacts restrictions on core political speech by enacting an outright ban on expressive
conduct within public parks within the City the quintessential public forum. [The]
venerable tradition of the park as public forum has-as suggested by the attendant image of the
speaker on a soapbox-a very practical side to it as well: parks provide a free forum for those who
cannot afford newspaper advertisements, television infomercials, or billboards. Grossman v.
City of Portland, 33 F.3d 1200, 1205 (9th Cir. 1994).
The fundamental difference between this and other similar ordinances regulating the use
of public parks at night is that this ordinance applies the same approach to loiterers as to those
who wish to engage in assembly, speech, petitioning and/or protest vigils. The ordinance does
not allow any person or group of people to engage in constitutionally protected speech in public
park after hours or seek a permit therefor. Instead of limiting its reach to conduct which is loud,
bright, boisterous, unsafe, or detrimental to surrounding neighbors, the ordinance prohibits all
expressive conduct, political speech and other constitutionally protected activity.
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A law is overbroad under the First Amendment if it reaches a substantial number of
impermissible applications relative to the laws legitimate sweep. New York v. Ferber, 458
U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The overbreadth doctrine prevents the
government from casting a net so wide that its regulation impermissibly burdens speech. Schultz
v. City of Cumberland, 228 F.3d 831, 848 (7th Cir. 2000). Overbreadth analysis, therefore,
requires that cognizable applications of a statute be considered. Hoffman Estates v. Flipside
Hoffman Estates, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). If a realistic
danger exists that the statute will significantly compromise recognized First Amendment
protections of parties not before a court, Taxpayers for Vincent, 104 S.Ct. at 2126 (citing
Erznozik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125)
(emphasis added), it must be declared unconstitutionally overbroad.
First, to establish a point of reference, compare this intrusion on First Amendment rights
to Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296, 104 S.Ct. 3065, 3070, 82
L.Ed.2d 221 (1984), where the Supreme Court upheld a ban on camping in public parks. In that
case, demonstrators sought to engage in a round-the-clock protest in a public place, and planned
to sleep in a public park to express the plight of the homeless. Id. at 293. However, unlike the
present case, the demonstrators were permitted to use the park overnight, and were permitted to
erect temporary structures. The issue presented in the case was solely whether a ban on
camping in a public park could be enforced. The issue here is whether a complete ban on
speech, assembly and petitioning conduct between the hours of 10:00 p.m. and 6:30 a.m. can be
enforced.
Other courts have invalidated bans on expression within public parks as overbroad where
the prohibited conduct was far narrower than the present case. For example, inReeves v.
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McConn, 631 F.2d 377 (5th Cir. 1980), the court held that an ordinance prohibiting all sound
amplification in downtown business district except for certain hours on Sunday was overbroad
restriction of protected First Amendment rights. Moreover, a prohibition on all sound
amplification within 100 yards of schools, courthouses and churches was void for
unconstitutional overbreadth. Likewise, inNash v. State of Tex., 632 F. Supp. 951 (E.D. Tex.
1986) aff'd in part, rev'd in part sub nom. Nash v. Chandler, 848 F.2d 567 (5th Cir. 1988), the
Fifth Circuit held that a section of a mass picketing statute, which made it illegal for more than
two pickets to be within 50 feet of any entrance or of each other at same time, was
unconstitutionally broad. See also Clean Up '84 v. Heinrich, 759 F.2d 1511 (11th Cir. 1985)
(prohibiting the solicitation of signatures on petitions within 100 yards of a polling place on
election day is unconstitutionally overbroad on its face). See also Coates v. City of Cincinnati,
402 U.S. 611, 615, 91 S. Ct. 1686, 1689, 29 L. Ed. 2d 214 (1971)(invalidating an ordinance that
made it a crime for three or more people to gather on a public sidewalk and engage in
annoying behavior).
Further evidence of its overbreadth is that Section 18-18 of the Portland City Code
contains no exception or allowance for spontaneous political protests that arise during certain
hours of each day. The Supreme Court has long condemned permitting schemes that fail to make
allowance for such speech. See e.g. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163
(1969)(timing is of the essence in politics . . . and when an event occurs, it is often necessary to
have one's voice heard promptly, if it is to be considered at all.). See alsoChurch of the
American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 692 (7th Cit. 2003);
Douglas v. Brownell, 88 F.3d 1511 (8th Cir. 1996).
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A city may not make criminal the peaceful expression of unpopular views . . . unless
shown likely to produce a clear and present danger of serious substantive evil that arises far
above public inconvenience, annoyance, or unrest. Terminiello v. Chicago, 347 U.S. 1, 4-5
(1949). The law here bans speech and assembly and does so without regard to any dangers
presented or substantive evil that could arise. Our First Amendment decisions have created a
rough hierarchy in the constitutional protection of speech. Core political speech occupies the
highest, most protected position[.]R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens,
J., concurring in judgment). Moreover, public fora have achieved a special status in our law;
the government must bear an extraordinarily heavy burden to regulate speech in such locales.
NAACP v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir.1984). Here, the City enacted
outright ban on any conduct during certain hours of each day. There are no exceptions to this
rule. There is not a single party, before this Court or otherwise, who is immune from its reach.
A finding of overbreadth invalidates all enforcement of a challenged law, unless it can be
saved by a limiting construction. Virginia v. Hicks, 539 U.S. 113, 11819, 123 S.Ct. 2191, 156
L.Ed.2d 148 (2003). No limiting construction is possible here because the ordinance enacts a
blanket ban on entering a public park during certain hours and no reasonable reading of the
ordinance would countenance any legitimate political demonstration, meetings, protests, vigils,
or other protected expression.
2. Section 18-18 is an Unconstitutional Prior Restraint Because it is
Not Narrowly Tailored to Serve a Governmental Interest and Does
not Leave Open Alternative Channels of Communication
.
a. Prior Restraints are Presumptively Unconstitutional
Prior restraints are presumptively unconstitutional and face strict scrutiny. Church of
Scientology Flag Serv. v. City of Clearwater, 2 F.3d 1514, 154748 (11th Cir.1993).
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The Fourth Circuit reached the same conclusion in Cox v. City of Charleston, where a
lone protestor challenged an ordinance barring any person from participating in any parade,
meeting, exhibition, assembly or procession . . . on the streets or sidewalks of the city without a
permit. 416 F.3d 281, 283 (4th Cir. 2005) (internal quotation marks omitted). The court held that
the application of the [o]rdinance to groups as small as two or three renders it constitutionally
infirm because the city failed to establish[] why burdening such expression is necessary to
facilitate its interest in keeping its streets and sidewalks safe, orderly, and accessible. Id. at 285-
86. The Ninth Circuit relied on similar grounds in striking down an ordinance requiring street
performers at a public park to obtain permits before performing. SeeBerger v. City of Seattle,
569 F.3d 1029, 1035 (9th Cir. 2009) (en banc).
Lastly, a valid time, place and manner regulation must leave open ample alternatives for
communication. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992). Moreover,
these alternatives must exist within the forum in question. Initiative & Referendum Inst. v.
U.S. Postal Serv., 417 F.3d 1299, 1310 (quoting Heffron v. Soc'y for Krishna Consciousness, 452
U.S. 640, 655 (1981)).
Given the nature of the OccupyMaine protest, where the tent city is not only an integral
part of their message, but istheir message, it is clear that there is no other public forum is
available in Portland that would allow the OccupyMaine participants to express their particular
message, which includes not only speech but symbolic conduct. The tent city is an integral, and
necessary, part of the message. As the Supreme Court stated in Reno v. ACLU, [O]ne is not to
have the exercise of his liberty of expression in appropriate places abridged on the plea that it
may be exercised in some other place.Reno v. ACLU, 521 U.S. 844, 880, 117 S.Ct. 2329
(1997).
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Likewise, this Court should declare that OccupyMaine is engaged in both pure and
symbolic speech, protected by the First Amendment and Article I to the Maine Constitution, and
has the right to continue its around-the-clock protest encampment in Lincoln Park.
b. Section 18-18 of Portlands City Code is Not Narrowly
Tailored to Serve a Substantial Government Interest
.
The Eleventh Circuit has previously noted that a city has a significant interest in
regulating the use of its parks and streets by large groups. Certainly, the City needs advance
notice and the cooperation of organizers to plan the services, such as security, sanitation, and
traffic control, that are required for an event which, like the Pot Festival, attracts approximately
30,000 participants. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219
F.3d 1301, 1318 (11th Cir. 2000).
However, this case does not deal with large groups of 30,000 participants, obstruction of
streets, or possible destruction of property. Instead, this case deals with an ordinance that bans
the use of public parks between certain hours by any individual or group of persons, regardless
of its size, no matter what their purpose or message. In this case, the only legitimate
governmental interest the City can advance is its duty to keep their communities streets open
and available for the movement of people and property, the primary purpose to which the streets
are dedicated. Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 160, 60 S.Ct.
146, 150, 84 L.Ed. 155 (1939). Portlands ordinance is not narrowly tailored to meet that goal.
Courts have ruled curfews on being in a public place are unconstitutional and not
narrowly tailored under the First Amendment where those curfews have abridged First
Amendment freedoms. For example,Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th
Cir. 1997), dealt with an ordinance that made it unlawful for any minor under the age of
eighteen (18) years, to loiter, idle, wander, stroll or play in or upon the public streets, highways,
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roads, alleys, parks, playgrounds, wharves, docks, or other public grounds, public places and
public buildings, places of amusement and entertainment, vacant lots or other unsupervised
places, between the hours of ten o'clock p.m. and daylight immediately following. The Ninth
Circuit found this law was unconstitutional and noted that the curfew restricted access to public
forums and prohibit[ed] conduct that is a necessary precursor to most public expression.Id. at
950. Because the ordinance did not contain an exception for expressive association it was not a
reasonable time, place, and manner restriction.Id. at 951.
Likewise, inHodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1064 (7th Cir. 2004),
a curfew banned minors from being in a public place between the hours of 1 a.m. and 5 a.m. on
the weekends and between 11 a.m. and 5 a.m. during the week. Id. at 1051. The ordinance
allowed for an affirmative defense and provided that it would not be illegal to break curfew for
activity involving the exercise of the child's rights protected under the First Amendment to the
United States Constitution or Article 1, Section 31 of the Constitution of the State of Indiana, or
both, such as freedom of speech and the right of assembly. The Seventh Circuit held the curfew
law was invalid in spite of the First Amendment affirmative defense. [The curfew] protects only
those minors whom the officer has actually seen participating in protected activity. This strikes
us as a small subset of minors participating in late-night First Amendment activities, and
therefore we conclude that the statute reaches a substantial amount of protected conduct.Id. at
1062. Moreover, the court noted that the late hour is closely linked with the purpose and
message of the activity and the risk of inhibiting minors from participating in late-night protest
was unconstitutional. Id. See alsoLong Beach Area Peace Network v. City of Long Beach, 574
F.3d 1011 (9th Cir. 2009) cert. denied, 130 S. Ct. 1569, 176 L. Ed. 2d 110 (2010) (failure to
allow for special events in public parks not narrowly tailored);Berger v. City of Seattle, 569
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F.3d 1029 (9th Cir. 2009) (rule requiring street performers to obtain permits before performing in
city's public park violated First Amendment was not narrowly tailored).
The above curfew cases illustrate that late-night curfews that curtail First Amendment
freedoms must be narrowly tailored, and the fact that the only certain hours of the day are
deemed off limits is insubstantial in First Amendment analysis. Moreover, those cases only deal
only with infringing on the rights of citizens under the eighteen to engage in protected expression
during certain hours; the present case infringes the rights ofall citizens.
Returning to the facts of this case, there is no governmental interest in an outright
prohibition on political protest in public park between 10:00 p.m. and 6:30 a.m. Any concerns
over loitering, noise violations, or vagrancy can be enforced with the City's existing criminal
laws or by enacting a permitting scheme to guard against any illegal use. Regardless of how the
City might govern conduct, an outright ban on multiple day and late night protests is not an
inevitable consequence of advancing the City's interests in maintaining public parks and
surrounding areas. Cf. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219
F.3d 1301, 1319 (11th Cir. 2000) (ordinance providing that [n]othing in this article shall be
construed to prevent members of the public from assembling in the parks or streets for the
purpose of making any speech or conveying any message to the public or to the government
without holding an outdoor festival permit was constitutional).
c. Section 18-18 Does Not Allow Alternative Channels of
Communication and Deprives Citizens the Right to Engage in
Late-Night or Overnight Protest in the City
.
The First Amendment mandates that we presume that speakers, not the government,
know best both what they want to say and how to say it. Riley v. Nat'l Fed'n of the Blind of
N.C., Inc., 487 U.S. 781, 790-91, 108 S.Ct. 2667, 2674, 101 L.Ed.2d 669 (1988). [O]ne is not to
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have the exercise of his liberty of expression in appropriate places abridged on the plea that it
may be exercised in some other place. Schneider v. State of New Jersey, 308 U.S. 147, 151-52
(1939). See alsoSchad v. Borough of Mount Ephraim, 452 U.S. 61 (1981).
By removing every City park as a possible location for late-night protest, the City has
effectively denied its citizens any alternative location to express a protest or political message
between the hours of 10:00 p.m. and 6:30 a.m. (with the exception of two parks where such
conduct is prohibited during the hours of 1:00 a.m. and 6:30 a.m. Streets do not provide an
adequate alternative, and any congregation of people would be subject to criminal prosecution
for blocking a public right-of-way. Although an adequate alternative for expression does not
have to be the speaker's best or first choice, it must provide the speaker with sufficiently
adequate alternatives. Weinberg v. City of Chicago, 310 F.3d 1029, 1041 (7th Cir.2002), cert.
denied, 540 U.S. 817, 124 S.Ct. 78, 157 L.Ed.2d 34 (2003). See alsoHodgkins ex rel. Hodgkins
v. Peterson, 355 F.3d 1048, 1064 (7th Cir. 2004) (holding no alternative channels remained open
when minors were banned from engaging in First Amendment expression during late-night
hours).
3. The Provisions of Sections 18-18 and 18-41 Requiring Advance
Permission from City Officials Before Citizens May Exercise Engage
in Non-Commercial Speech, Assembly and Petitioning Activity in
Public Parks Constitute Unconstitutional Prior Restraints on Such
Activity.
On October 3, The City of Portland through its City Manager Mayor Reed issued verbal
permission to allow the OccupyMaine protesters to remain in Lincoln Park between 10:00 p.m.
and 6:30 a.m. and to erect tents there to maintain their continuous form of protest. On or about
November 21, 2011, the City notified OccupyMaine that it must seek and obtain permission from
the Portland City Council pursuant to Section 18-41 of the Code to continue their peaceable
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protest and assembly in Lincoln Park.
Prior restraints that regulate speech and expression by requiring a party to obtain a permit
before engaging in protected expression must limit the amount of discretion exercised by
government officials. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969). An
ordinance that gives public officials the power to decide whether to permit expressive activity
must contain precise and objective criteria on which they must make their decisions; an
ordinance that gives too much discretion to public officials is invalid.Lady J. Lingerie, Inc. v.
City of Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999). Cases show that virtually any amount
of discretion beyond the merely ministerial is suspect. Standards must be precise and objective.
Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1547-48 (11th
Cir.1993)(labeling city clerk's duty to obtain information from applicants for solicitation licenses
purely ministerial). See alsoForsyth County v. Nationalist Movement, 505 U.S. 123, 131, 112
S.Ct. 2395, 120 L.Ed.2d 101 (1992).
In the current case, OccupyMaine was subjected to what amounted to a discretionary
political process to determine whether they could continue its protest encampment in Lincoln
Park. That process which ultimately resulted in the denial of the groups petition was guided,
administered and determined less by any set of precise or neutrally administrable standards, and
more by politicians who sought to respond to public pressure particularly from the private
business establishment in Portland who viewed the protest as a blight on Portlands landscape.
In this context, OccupyMaine continuous efforts to address the public safety and other concerns
raised by the City both through its actions and its repeated responses to shifting City concerns
were entirely unavailing and irrelevant, leading the groups Amended Petition to be denied on
an up-or-down basis. In the end, the Councils decision was based on the whims and political
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considerations of its elected leaders unwilling to waiver from its strict enforcement of the anti-
loitering ordinance challenged herein by the Plaintiffs on constitutional grounds, rather than on
the Councils neutral or careful application of any standards governing its permitting authority
under Section 18-41 of the City Code.3
The United States Supreme Court has consistently condemned licensing systems which
vest in an administrative official discretion to grant or withhold a permit upon broad criteria
unrelated to proper regulation of public places. Kunz v. New York, 340 U.S. 290, 293-294, 71
S.Ct. 312, 315, 95 L.Ed. 280. In other words, [a] municipality may not empower its licensing
officials to roam essentially at will, dispensing or withholding permission to speak, assemble,
picket, or parade according to their own opinions regarding the potential effect of the activity in
question on the welfare, decency, or morals' of the community. Shuttlesworth v. City of
Birmingham, Ala., 394 U.S. 147, 153, 89 S. Ct. 935, 940, 22 L. Ed. 2D 162 (1969). When a
government official decides that certain expressive activity will lead others to break the law as
City of Portland Officials have continuously maintained in this case he is making a content-
based decision. Bourgeois v. Peters, 387 F.3d 1303, 1315 (11th Cir. 2004) (citing Forsyth
County v. Nationalist Movement, 505 U.S. 123, 134 (1992)).
Public safety considerations of the kind expressed by Defendant City of Portland as a
basis for denying OccupyMaines petition are particularly suspect under the Constitution as
applied to citizens seeking to engage in constitutionally protected expression and assembly. See,
3
The City may have been guided by the conclusion that continuous events lasting more than three (3) consecutivedays are simply not allowed in City parks under its Code of Ordinances, or that it could not reasonably grant
permission for such events. Section 18-41, which makes the City Council the exclusive permitting authority for
such events, suggests otherwise. If the City concludes that its Code effectively prevents citizens from engaging in or
otherwise obtaining permission for extended use of City Parks even for the purpose of First Amendment activity,
such an interpretation is constitutionally suspect. See, e.g., Quaker Action Group v. Morton, 516 F.2d 717, 734- 737
(D.C. Cir. 1975) (striking down aper se limit of demonstrations to no more than seven consecutive days, the court
held that the government was instead required to consider reasonable permitting regulations addressing any concerns
arising from the length of a given protest, including a requirement that the petitioner be subject to displacement if
another petitioner seek a similar permit precluding double occupancy.)
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e.g. Sellers v. Johnson, 163 F.3d 877, 881 (8th
The theory that a group of individuals may be deprived of their constitutional
rights of assembly, speech and worship if they have become so unpopular with,
or offensive to, the people of a community that their presence in a public park .. . is likely to result in riot and bloodshed, is interesting but somewhat difficult
to accept. Under such a doctrine, unpopular political, racial, and religious
groups might find themselves virtually inarticulate. Certainly the fundamental
rights to assemble, to speak, and to worship cannot be abridged merely becausepersons threaten to stage a riot or because peace officers believe or are afraid
that breaches of the peace will occur if the rights are exercised.
Cir. 1947). Rejecting public safety concerns
voiced by the Town of Lacona, Iowa in denying a petition by Jehovahs witnesses to hold
meetings and preach their religion in the town park, the Eighth Circuit Court of Appeals held as
follows:
See, e.g. Sellers v. Johnson, 163 F.3d 877, 881 (8th Cir. 1947). The Eight Circuit was guided in
part by an amicus brief submitted the American Bar Associations Committee on the Bill of
Rights of in the case ofHague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct.
954, 83 L.Ed. 1423 (1939), stating as follows on the subject of anticipated disorder as a basis for
the abridgment of constitutional rights (pages 679, 680 of 307 U.S.):
It is natural that threats of trouble should often accompany meetings on
controversial questions. But meetings may not be suppressed on that account.
The practice under ordinary conditions in our large cities is for the authoritiesto arrange with the applicants to have the meeting held in a suitable place, and
to have enough policemen on hand to quell apprehended disturbances.
The real question at issue is whether any threat of disorder, even though onlyby opponents of the speakers, excuses denial of permits. If so, the right of
free assembly will have become a mockery. The right would thus be subject to
destruction by an arbitrary official decision, notwithstanding that the Bill ofRights was intended to protect citizens from arbitrary action of that very
character.
To secure the rights of free speech and assembly against abridgment, it is
essential not to yield to threats of disorder. Otherwise these rights of the
people to meet and of speakers to address the citizens so gathered, could notmerely be abridged but could be destroyed by the action of a small minority
of persons hostile to the speaker or to the views he would be likely to express.'
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As noted by the Eight Circuit in Sellers, the Supreme Court held inHague that uncontrolled
official suppression of the privilege of free speech cannot be made a substitute for the duty to
maintain order in connection with the exercise of the right. Sellers, supra, 163 F.3d at 881
(citingHague, 307 U.S.at page 516, 59 St.Ct.at page 964, 83 L.Ed. 1423).
In Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927), Justice
Brandeis, in his concurring opinion joined by Justice Holmes, stated as follows:
The fact that speech is likely to result in some violence or in destruction of
property is not enough to justify its suppression. There must be the probabilityof serious injury to the State. Among free men, the deterrents ordinarily to be
applied to prevent crime are education and punishment for violations of the law,not abridgment of the rights of free speech and assembly.
274 U.S.at page 378, 47 S.Ct.at page 649, 71 L.Ed. 1095.
The City Managers decision on October 3, 2011 to allow OccupyMaine to assemble and
demonstrate in Lincoln Park on a 24-hour basis constituted a license to engage in constitutionally
protected expression. By revoking the license on December 7, 2011, the City of Portland did not
act pursuant to any established standards for issuing a permit. The fact that the City initially
gave permission to operate pursuant to what amounted to an executive order, rather than
adopting an ordinance or granting a written permit, should not divest Plaintiffs of their rights to
engage in constitutionally-protected speech or seek written permission for such conduct under a
well-articulated standards immune from the political whims of City officials or its elected
officials.
D. The Constitutional Challenge to the Denial of OccupyMaines
Amended Petition Has A Likelihood of Success on the Merits.
Count IV challenges the denial of OccupyMaines Amended Petition by the City Council
on December 7, 2011, as a violation of the Plaintiffs constitutional rights under color of law in
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violation of 5 M.R.S.A. 4682, with respect to which Plaintiffs seek both declaratory and
injunctive relief, as well as reasonable attorneys fees and costs. Count IV is based on: (1) the
Citys strict application of an anti-loitering ordinance that is unconstitutional on its face or as
applied to the Plaintiffs; (2) the Citys application to the Plaintiffs of a constitutionally violative
discretionary process established by Code Sections 18-18 and 18-41 that purport to require
advance governmental permission for First Amendment use of a City Park property after hours
or for more than three consecutive days; and (3) the Citys content-based denial of
OccupyMaines Amended Petition based on the expressive political nature of the activity and its
admitted lack of commercial or monetary value for a City that regularly bends its ordinances to
allow for commercial use of public spaces and large development projects.
With respect to the first and second bases recited above, Plaintiffs have amply
demonstrated their likelihood of success on the merits in Sections III(A), (B) and (C) hereof.
With respect to the third basis cited herein, Plaintiffs do not dispute the highly factual nature of
the inquiry required with respect to the merits of that claim, as it relates not to a content-based
provision of the code but rather a content-based denial of OccupyMaines petition. Content-
based decisions and regulations with respect to expressive conduct presumptively violate the free
speech clause of the federal and state constitutions. See Association of Independent
Professionals v. MLRB, et al., 465 A.2d 401, 409 (Me. 1983). Notwithstanding the fact-
intensive nature of an inquiry in this case, with the opportunity for an adequate evidentiary and
testimonial hearing on this Motion, evidence can be adduced in addition to the existing record
demonstrating the Citys differential treatment of OccupyMaine as compared with commercial
interests that regularly seek and obtain waiver, variances and zoning changes from the City of
Portland for use of public spaces and/or the promotion of large development project with
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financial benefits for the City.4
Based on the rigid and inflexible treatment its Petition received from the Portland City
Council and the majority sentiment that no variance of the code would be forthcoming to
accommodate their political protest unless ordered by a judge Plaintiffs cannot help but believe
that they suffer in part from the distinct absence of any commercial purpose pleasing to
Portlands powerful business community or its elected officials concerned about City revenues.
Although Plaintiffs maintain a store for non-food items at its protest encampment, it is a Free
Store available at no cost to protestors and members who may be struggling to meet the basic
necessities of life. Members of the public reminded the City Council of the 2.8 million dollar tax
break it extended to Portland largest law firm and other accommodations regularly bestowed to
facilitate commercial development and promotional use of public spaces, and pled with the
Council to recognize the arguably less tangible but perhaps more valuable public good
associated with the activities of the civic-minded members of OccupyMaine sustained through its
community protest encampment. In the face of such pleas, the Council as a whole was unmoved.
The City Councils shabby treatment of OccupyMaine and its petition makes a compelling albeit
largely circumstantial case that its decision was based on the content of the groups activity and
its non-commercial, indeed, anti
IV. THE PUBLIC INTEREST WOULD NOT BE ADVERSELY AFFECTED BY
-commercial message broadcast so loudly throughout its 80-day
protest.
THE GRANTING OF THE PRELIMINARY INJUNCTION.
[T]he public interest is always served when constitutional rights, especially free speech
rights, are vindicated. University Books & Videos, Inc. v. Metropolitan Date County, 33
F.Supp.2d 1364, 1374 (S.D. Fla. 1999). There is no public interest in enforcing an
4Plaintiffs have requested in writing herewith an evidentiary and testimonial hearing on the pending Motion.
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unconstitutional ordinance or otherwise infringing upon constitutionally protected liberties.
Florida Businessmen for Free Enter. v. City of Hollywood, 648 F.2d 956, 959 (5th Cir. 1981).
Nothing in the relief sought by Plaintiff will prevent the City from enforcing laws against
property damage, excessive noise, or other unlawful use of Lincoln Park. No third party will be
harmed by the City allowing peaceful late-night and multi-day protests to occur in Lincoln Park.
The free exchange of ideas in Lincoln Park is in the public's interest. [P]ublic places
historically associated with the free exercise of expressive activities, such as ... parks, are
considered without more, to be public forums." United States v. Grace, 461 U.S. 171, 177, 103
S.Ct. (1983). Enjoining the City of Portland from unduly and unfairly burdening the non-
commercial exercise of free expression, association, assembly and petitioning of government in
Lincoln Park is in the public interest.
For the foregoing reasons, and any others this Court deems sound and just, Plaintiffs
respectfully request that this Court issue a preliminary injunction enjoining and otherwise
prohibiting the City of Portland, together with its officers, officials, agents, servants, employees
and attorneys, from: (1) enforcing against the Plaintiffs Section 18-18 and 18-41 of its Code of
Ordinances, which enacts a blanket prohibition all speech and conduct in a public park between
the hours of 10:00 p.m. and 6:30 a.m. and places an unconstitutional prior restraint on any
constitutionally protected activity expected to involve twenty five or more persons or last for
more than three consecutive days; (2) undertaking any actions to enforce or otherwise give effect
to the denial of OccupyMaines Amended Petition in plain violation of the Plaintiffs rights of
non-commercial expression, assembly and petitioning under the United States and Maine
Constitutions; (3) undertaking any actions to remove from Lincoln Park the individual Plaintiffs
CONCLUSION
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