'Occupy Nashville' Appeal Seems an Easy Case for the 6th Cir. - U.S. Sixth Circuit
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'Occupy Nashville' Appeal Seems an Easy Case for the 6th Cir.

As the Second Circuit wraps up its Occupy Wall Street case, the Sixth Circuit is just getting started with its own Occupy issues.

On Monday, the court heard oral arguments in Occupy Nashville v. Haslam. While there are no transcripts available yet, the contours of the issues follow established case law that should result in another win for the Occupy Nashville protesters, who previously won at the district court level.

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Up All Night

The city of Nashville had no curfew in place for Nashville's War Memorial Plaza, meaning people could stay there all night if they liked. That all changed on October 27, 2011, when city officials met with each other -- and no members of the public -- to establish a new "use policy" that would forbid anyone from being in the Plaza after 10 p.m. Interestingly, the new policy was to take effect immediately -- like, immediately. Occupy protesters were arrested around 3 a.m. on October 28, just hours after the new policy was created.

In fact, we've already been here. In Clark v. Community for Creative Non-Violence, the U.S. Supreme Court upheld a National Park Service rule prohibiting camping outside designated campgrounds. Notably, the Court agreed with the protesters that "overnight sleeping in connection with the demonstration" is protected by the First Amendment. But it also said that the rule requiring sleeping only in designated campgrounds was a reasonable restriction.

It's Got to Be Reasonable

At oral argument before the Sixth Circuit, attorneys for Nashville argued that the city has a right to protect its property and prohibit trespassing. That's certainly true, and the city can pass reasonable time, place, and manner restrictions. But the key word is reasonable.

Nashville seems to have crossed the boundaries of reasonableness when it deviated from normal legislative procedures. There was no opportunity for public input on the new use policy; in fact, there wasn't even a record of what was said or done at the meeting.

Constitutional limitations on permit requirements exist for a reason: They prevent cities from acting capriciously by denying parade or marching permits exclusively for the purpose of squelching speech. The ability to use the government power this way is tempting, which is why the burden is on the government to show that its regulations were narrowly drawn to further a substantial government interest, that interest being unrelated to the suppression of speech.

No Notice Before Arrests

Even if the Sixth Circuit finds the time, place, and manner restriction valid, they can still find for Occupy protestors on a procedural due process violation. Procedural due process requires that people be notified of what's allowed and what's prohibited so that an average person can comply with the law. The hurried, furtive nature of the new policy, combined with its almost immediate enforcement creates a notice deficiency and a due process violation.

It may be fun to focus on questions like "Is camping speech?," but the Supreme Court decided it was -- 30 years ago. The real question is why Nashville adopted a new policy in secret and what they really hoped to accomplish.

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