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November 23rd, 2011 COREY PEIN | Hot Seat
 

Hotseat: Occupy the Law

First Amendment experts talk protest tactics and free speech.

news2_hotseat(from left) NO: Jim Huffman MAYBE: Steven M. Wilker YES: Stu Sugarman
Occupy Portland has commanded media attention by camping in two city parks for 39 days, staging marches downtown and, last week, taking their protest inside local bank branches. Both the U.S. and Oregon constitutions guarantee freedom of speech and assembly, but city leaders and other critics call some of the movement’s tactics illegal. WW asked three local constitutional law experts whether Occupy Portland has a stronger legal standing than the city.

NO: Jim Huffman, Dean Emeritus of Lewis & Clark Law School, was a 2010 Republican candidate for U.S. Senate.


WW: Do protesters have a right to camp in a park?
Huffman: I don’t believe they do. The law is pretty clear: You can limit speech with respect to time, place and manner. The Oregon Supreme Court could take a different read and conclude the only way they could convey their message effectively is to camp in the park. But I don’t see how camping in the park relates to the issues they have.

Couldn’t the homeless campers make that argument?
I think so. I guess their message is, “This is our only option, we’re homeless anyway.” They have a more persuasive case than the middle-class individuals who think wealth distribution is unfair. From day one, [Occupy Portland’s] camping in the park was not an exercise of First Amendment rights. They were doing that at the good graces of the mayor.

Did the city put itself in a bind by not immediately enforcing the camping ban at Lownsdale and Chapman squares?
If there’s anybody I’ve been offended by, it’s the mayor and the failure of the city to enforce the ordinance. [The decision] was content-related. The mayor was so forthcoming in his agreement with their position. The tea party and lots of other groups have jumped through hoops, applied for the permits, and then done their rallies or whatever they wanted to do.


MAYBE: Steven M. Wilker, a partner at Tonkon Torp LLP, is the ACLU of Oregon’s vice president of litigation.

WW: What precedents does the law provide for restricting speech?
Wilker: You can’t say it violates the constitution to prosecute me for fraud because it involves speech. If a law or an ordinance is directed at speech, it is unconstitutional except in the most exceptional circumstances. But if legislation is directed at non-speech conduct, such as blocking sidewalks, blocking streets, health and safety, the analytical framework is, “Does it burden speech more than is necessary?”

Does the same reasoning apply to assembly?
Maybe. In federal case law, it’s pretty clear that camping bans have been upheld. We [may not] have an entirely clear answer under Oregon law. The city says we have a ban on camping for health and safety reasons. The protest movements say, “But camping is an essential element of our protests.” This isn’t burning draft cards. This is sleeping.


YES: Stu Sugarman is a criminal lawyer who joined Occupy Portland and leads the defense of arrested protesters.

WW: You would argue the anti-camping ordinance is unconstitutional?
Sugarman: Other courts have recognized that occupations are constitutionally protected. I do believe that the occupation itself is speech. In United States v. Abney—a federal case—the court in that case decided that sleeping in a park was sufficiently expressive in nature to indicate First Amendment expression. If the city can’t support the allegations that it has been forwarding through the media, that the camp [was] not clean, we would have [had] an excellent chance of remaining in the camp. They would have the burden of showing a health and safety problem.

You suspect cities coordinated Occupation crackdowns to save the Christmas shopping season. If true, would that even matter legally?
It could because the court would say, “What’s the city’s interest?” If the city’s interest is political, that’s not going to impress a court the way health and safety will.

Could civil disobedience be a mitigating factor?
The “necessity defense” has been used in political protests successfully. A group called the Seriously Pissed Off Grannies put water-soluble paint on a [military] recruiting center. They were arrested and tried, and the court allowed the necessity defense, saying we were stopping the greater harm of killing our youth for a senseless war. The jury loved these women. The foreman criticized the D.A.’s office for prosecuting them.

Can you defend occupying banks on free-speech grounds?
Is the Bank of America branch a public forum? It’s a hard argument to make. Shopping malls are. Fred Meyer used to be. It’d have to be more of a public forum than Fred Meyer. It’d have to be one heck of a bank branch

 
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