September 27, 2012 was a great day for the First Amendment. Not only did a Cook County Illinois judge rule that Chicago’s park curfew law was “unconstitutional both on its face and as applied” and dismiss all charges against 92 Occupy Chicago activists who were arrested while exercising their First Amendment Rights, a federal judge in Texas 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, September 27, condemning the city’s handling of last autumn’s Occupy Austin protests. You can read that decision here.
It seems that a bulletin that was circulated among Occupy Austin protesters last year ordering them to them to vacate or face criminal charges has been judged unconstitutional. Another notice was issued on October 28, 2011, this called for all protesters to immediately stop serving food in the park after dark. At least two protesters were arrested and charged with criminal trespass when police officers attempted to enforce the ban. Both protesters were later freed and barred from the park until “further notice”.
The protesters “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 over breadth,” and the judge agreed.
Judge Yeakel wrote 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 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”.
Judge Yeakel also wrote in his ruling…
“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 over breadth.”
“The City concedes that much of the conduct by Occupy Austin http://occupyaustin.org/ 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,”
“Therefore, the court finds that the First Amendment protects Plaintiffs’ protest speech with Occupy Austin at the Plaza.”
“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,”
Read More: City’s ban on Occupy Austin ruled unconstitutional
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