City's ban on Occupy Austin ruled unconstitutional

Activist Austin Guest dances to music during a protest.(Reuters / Andrew Burton)

  

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A federal judge in Texas has ruled that the City of Austin violated the First Amendment of the US Constitution when it banned Occupy protesters from attending demonstrations in a public park last year.

Federal District Judge Lee Yeakel issued a decision on Thursday condemning the city’s handling of the Occupy Austin protests that began last autumn (.pdf). Bulletins the city circulated among protesters last year that ordered them to vacate or face criminal charges were unconstitutional, Judge Yeakel wrote, arguing that the public plaza that was occupied during the demonstrations has always been intended to host open discussion and debate, and the city’s attempts to remove protesters by issuing warnings violated their First Amendment freedoms.

Shortly after the Occupy Wall Street movement became underway in New York City last fall, an offshoot chapter took hold of a public plaza outside Austin’s City Hall starting on October 6. On October 28, the City issued a notice of cleanup that called for all protesters to immediately stop serving food in the park after dark, and at least two protesters — Rodolfo Sanchez and Kristopher Sleeman — were arrested and charged with criminal trespass when police officers attempted to enforce the ban. Both protesters were freed shortly thereafter, but told by police patrolling the plaza that they had been banned from City Hall property pending the eventual removal of an exclusion cause that barred them from the park until further notice.

“Plaintiffs allege that the bans imposed through their criminal-trespass notices fail First Amendment scrutiny and that the City’s policy on issuing criminal-trespass notices is facially unconstitutional due to its lack of objective standards, vagueness and overbreadth,” Judge Yeakel wrote this week.

Elsewhere in the ruling, Judge Yeakel acknowledges, “the protection of speech and assembly under the First Amendment is not absolute,” and that local governments “need not permit all forms of speech on property that it owns and controls.” In response, however, courts are required to follow a “three-step process” to decide on what locally-imposed restrictions are valid under the Constitution.

“First, the court determines whether the First Amendment protects the speech at issue; second, the court identifies the nature of the forum; and third, the court assesses whether the government’s justifications for restricting speech satisfy the requisite standard,” the judge writes.

“The City concedes that much of the conduct by Occupy Austin and its participants falls within the protection of the First Amendment and the City does not dispute that Plaintiffs’ participation in the ‘occupation’ of the Plaza (even on the October 30, 2011, the day of their arrest) is a matter of public concern and is within the protection of the First Amendment,” Judge Yeakel continues. “Therefore, the court finds that the First Amendment protects Plaintiffs’ protest speech with Occupy Austin at the Plaza.”

The justice later writes that the City “has always held out the Plaza to the public for speech and has always kept it open for use for speech,” thereby making it a court-recognized traditional public forum, which “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.” Should the government want to enforce a content-based exclusion then, the judge writes, “it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”

A government may impose reasonable time, place, and manner constraints in traditional public forums, Judge Yeakel continues, “so long as it does not ban a speaker entirely from engaging in First Amendment-protected speech in those forums without satisfying the strictest of scrutiny.”

“Plaintiffs contend that the ability to be physically present in public forums is necessary to engaging in free speech in those forums,” the judge adds. “Plaintiffs assert that the City’s policy does not merely regulate nonexpressive conduct; rather, it regulates physical presence in public forum, which is intimately related and essential to a broad variety of protected speech conduct.”

“Having determined that the actions of the Occupy Austin protesters, including Plaintiffs in this case, are protected by the First Amendment; that the City’s policy regarding the issuing of criminal-trespass notices does not serve as a valid time, place and manner restriction and is not narrowly tailored to achieve a significant public interest; and that no suitable alternative channels for protected expression exist,” the court concludes that the City’s policy of excluding protesters from the public plaza, “does not survive strict scrutiny” required to issue the bulletins.

“It is therefore ordered and declared,” Yeakel writes, that the “Criminal Trespass Notices on City Property” bulletin that Occupiers were subjected to was not legally sound under the US Constitution.

Jim Harrington, executive director of the Texas Civil Rights Project, tells the Austin Chronicle that that to consider his response "pleased" by the ruling "would be an understatement."