Motion for Preliminary Injunction-OccupyMaine.12.19.11

8/3/2019 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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Motion for Preliminary Injunction-OccupyMaine.12.19.11

Documents

Transcript of Motion for Preliminary Injunction-OccupyMaine.12.19.11