A federal judge Monday afternoon granted a temporary restraining order putting a stop to the arrests of Occupy Nashville protesters on Legislative Plaza. In a surprise move, the state did not oppose it.
A preliminary injunction hearing is set for Nov. 21.
U.S. District Judge Aleta Trauger said she would have issued the order, even if it had been opposed.
"I can't think of a more quintessential public forum than Legislative Plaza," she said, adding that the new policy represented "clear prior restraint of free speech rights."
In a statement at the beginning of the hearing, attorney William Marett spoke on behalf of the state, saying they would not oppose the order and that the Department of General Services had returned plaintiffs' property seized by state troopers last week.
David Briley, one of three local attorneys who filed the lawsuit Monday morning along with the ACLU of Tennessee, said the two sides were close to an agreement before the hearing began, but that the talks were "derailed by minor issues."
The suit claims the state’s new policy — which includes an overnight curfew and a requirement for a $65 permit — violates Occupy Nashville’s First Amendment rights, calling it unconstitutionally vague and overbroad as well as arguing that the fees associated with the policy “chill or eviscerate” protesters’ rights to assembly and free speech.
ACLU-TN legal director Tricia Herzfeld called the order a victory for free speech.
“The state cannot arbitrarily create restrictive policies just because it does not like how people are using a public space,” said ACLU-TN Legal Director Tricia Herzfeld. “Today’s decision is the first step in restoring demonstrators’ free speech rights.”
State officials have claimed a permit policy for use of Legislative Plaza was always in place, but was simply not enforced. Despite multiple inquiries by The City Paper, officials have been unable to produce evidence of such a requirement.
The lawsuit argues that the Plaza has been the site of various demonstrations for many years and cites a 2008 letter from the Department of General Services’ general counsel to the ACLU as evidence of that precedent.
“I wish to assure you, however, that any person or organization is free to engage in any activity protected by the Constitution on the War Memorial Plaza without having to provide the State of Tennessee with advance notice, obtain liability insurance or pay event and security fees,” said Thad Watkins, counsel for the department.
Among the plaintiffs in the suit is Adam Knight, an eighth-grade teacher who was reportedly arrested in front of several of his students and their parents. Also listed as a plaintiff is 34-year-old Malina Shannon, a student-journalist who was documenting the events for the MTSU student paper, Sidelines.
Along with being a working journalist, the suit claims that Shannon was arrested while on a sidewalk — which falls under city jurisdiction and where protesters and observers stood to avoid arrest. The lawsuit, along with media reports, claims that Shannon was handcuffed with zip ties so tightly that a nurse had to use surgical scissors in order to remove them. Shannon’s photography equipment was allegedly damaged as well.
Nashville Scene reporter Jonathan Meador was also arrested early Saturday morning despite identifying himself as a reporter. In a video taken by Meador himself, one of the arresting troopers can be heard telling another to book Meador for "resisting arrest" — a charge for which he has not been cited.
After Meador’s release several hours later, the Tennessee Highway Patrol issued a release revealing that Meador had instead been issued a citation for criminal trespassing — as were all those arrested — and public intoxication, an allegation that Meador and others who interacted with him that night have denied.
Meador is not a plaintiff in the lawsuit filed Monday morning.
The THP has made 55 arrests since the General Services department announced the new policy.
No arrests were made Saturday or Sunday night, despite protesters’ continued presence at the plaza, in defiance of the overnight curfew.