A policy which shaped the history of Occupy Austin has been ruled unconstitutional by the U.S District Court. The ruling comes just over a week before the group celebrates its first birthday on October 6.
On that day, Occupy Austin first encamped on the amphitheater steps outside Austin City Hall; because of a legal loophole, the camping and sleeping ban which applies to most of Austin did not apply at that site.
Almost from the start of the movement’s history, police, security guards and city officials used criminal trespass notices banning occupiers from City Hall as a way to break up and divide the movement’s key volunteers and those most dedicated to direct action. Even recently, when Austin Police want to justify the eviction, infiltration, and suppression of the movement they point to the over 100 arrests which took place at the encampment — over 80 of which were for ‘Criminal Trespass.’
Today, the United States District Court For the Western District of Texas, Austin Division, ruled those bans unconstitutional:
Having carefully considered the evidence presented at trial, the parties’ stipulated facts, the case law applicable to this action, the argument of counsel, and the parties’ post-trial letters, the court concludes that the City’s policy on issuing criminal-trespass notices violates Plaintiff’s First and Fourteenth Amendment rights under the United States Constitution.
The case was brought on December 21, 2011 by Rodolfo “Rudy” Sanchez and Kristopher “Kris” Sleeman, with the help of the Texas Civil Rights Project. Both Sanchez and Sleeman were among 38 arrested on the night of October 30 and the morning of October 31, 2011. The arrests came in three waves — first the arrests were over a food table when city officials insisted food service must stop at night, then more when some staged a sit-in to resist the thrice-weekly power washing which disrupted the encampment. Finally, the remaining arrestees were hand-selected by an undercover operative named “Trevor,” who went behind police lines to point out key Occupy organizers to police.
The criminal trespass notices and arrests had a profound effect on Occupy Austin. Suddenly dozens of its key members could not longer come onto the site of its major encampment. Some took to protesting and holding meetings across Cesar Chavez Street on a tiny patch of land which is technically Margaret Hoffman Oak Park, but became known as ‘Exile Island.’ Some were energized by the Halloween weekend arrests — they inspired this reporter to join the movement; I witnessed one of the newly released prisoners mic-check a demand that Occupy Austin march in the street, not on the sidewalk, a commandment we follow to this day.
The city provided a review process where someone banned could ask for it to be lifted as long as they applied for review within a short window after their ban. Sometimes, our ‘exiles’ would return to City Hall and be surrounded by our bodies to protect them from sight. Yet many of those arrested or who witnessed the police’s show of force left and never returned. At one point, Kris Sleeman returned after his ban had been lifted and was threatened with a new arrest by a police officer ignorant of his reprieve; the chilling effect of these bans was clearly far-reaching
A Long-Awaited Ruling
Though US District Court Judge Lee Yeakel promised a ruling near the first of the year, the decision was only made today. Whatever the reason for the delay, Yeakel’s 18 page rulng goes into great detail on the first amendment issues surrounding the case, including a single footnote which takes up almost an entire printed page that cites precedents in other Occupy cases where free speech rights were suppressed. The document lays out the factors which govern limits on free speech, noting that cities are not required to protect all forms of speech in public space, depending on the nature of that space. Yet in the end, the court finds:
In traditional public forums, which ‘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,’ the rights of government to limit expressive activity are sharply circumscribed. … Thus, for a government to enforce a content-based exclusion, it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.
The City of Austin argued that the ban was not ‘content-based’ — that is, that they enacted the policy to protect the City Hall grounds from damage and to allow its use by more groups than just Occupy Austin. The plaintiffs argued in return, and the court agreed, that because City Hall was intended to be a place of speech it needed to remain so.
Although the City’s policy does not specifically address speech, however, by completely banning Plaintiffs from the Plaza it precludes Plaintiffs and others from being physically present to participate in clearly protected activities such as those of the Occupy Austin protest. … The City’s policy prevents a banned person from engaging in any form of speech, assembly, or other protected activity at the Plaza for the duration of the ban. The policy imposes such a ban without first using less restrictive alternatives … Moreover, by banning Plaintiffs from the Plaza, the City reduces the quantity and quality of expression available.
Also of note, court found that the way bans and the review process were implemented violated the plaintiffs right to due process as well as their right to free speech.
The ruling should invalidate all arrests and pending charges based on criminal trespass notices, but occupiers are still a long way from the use of City Hall they once enjoyed. Regulations put in place on eviction night, February 3, 2012, require a reservation for the use of certain parts of City Hall, though this is regularly ignored by occupiers who continue to hold meetings on the amphitheater steps. Police seem more eager to enforce the ban on sleeping, tents, and the curfew. Occupiers have not yet found legal counsel willing to fight these rules.
Almost a year since Occupy Austin began and eight months since the encampment’s eviction, City Hall is almost as rarely used for free speech as it was in pre-Occupy days. Occupy Austin remains one of its most regular visitors until 10pm, after which it is almost solely used by drinkers and revelers returning to their cars to drive home from City Hall’s underground parking lot.
Update: Also today, a judge dismissed over 90 arrests at Occupy Chicago.