In cities across the country, police are rousting Occupy Wall Street encampments. But Gov. Bill Haslam appears to have all but surrendered — at least for now — to Nashville’s version of the nationwide protest against corporate greed and wealth inequality.
Last week, at the governor’s request, prosecutors dropped trespassing citations against 49 protesters who were arrested last month in Haslam’s failed attempt to clear Legislative Plaza. Also, the state agreed to an extension of federal Judge Aleta Trauger’s order barring new arrests. In legal parlance, the temporary restraining order became a preliminary injunction — the next step toward a trial of Occupy Nashville’s lawsuit alleging free-speech violations.
Lt. Gov. Ron Ramsey wants to oust the protesters. (“I think they ought to be removed. I do,” he told reporters flatly.) State Republican Party chairman Chris Devaney castigates the occupiers as a gang of filthy slackers, and legislative aides and others who work at the plaza raise a seemingly never-ending litany of complaints of unsightly and unsanitary conditions.
(One secretary said someone urinated on her from above as she took a smoke break in a below-ground-level courtyard. Occupy Nashville denied any protester did it.)
But after drawing withering criticism in the media and elsewhere for his crackdown, Haslam is biding his time and walking gingerly around this topic. The public swamped the governor’s office with complaints about the arrests. Of 400 emails to the governor’s office, only 11 supported Haslam. He now acknowledges both sides in the controversy and casts himself as caught in the middle.“
You know, this is one of those that there’s a lot of opinions on. I have a lot of people who thought that when we went in and tried to implement a curfew that we were wrong,” the governor told reporters last week. “I’ve had a whole lot of people say I can’t believe that’s happening on that property. If I went and set up a tent there four weeks ago, would you have let me stay? So there’s a lot of passionate feelings around it on both sides.”
Haslam has no choice but to back down. The state’s attorneys so far have declined to defend him in court, apparently recognizing their unsound legal grounds, and Judge Trauger already has declared from the bench that she sees what Haslam did as a free-speech violation.
In most of the other cities where authorities are shutting down camps, curfews already exist in the law, according Occupy Nashville’s lawyers. In Nashville, that wasn’t the case. The Haslam administration hatched its new regulations in secret and enforced them only hours after springing them on the public.
The encampment already had been established for three weeks, and the curfew obviously was intended to oust Occupy Nashville, not to provide for some general public good that Haslam could try to cast as a legitimate government purpose.
One of Trauger’s main problems initially with Haslam’s actions was his failure to follow the state’s statutory process for making the new regulations that he imposed on the Capitol grounds — his 10 to 6 p.m. curfew and permit requirement for demonstrations.
In a reversal, Haslam now has embraced transparency and inclusiveness in developing a new set of regulations that he hopes will pass court muster.“
There’s a rule-making process that we need to go through, which we will do,” Haslam said. “We’re going to involve a lot of different people in that discussion. What is the right use for state property, whether it be on the Capitol grounds or the plaza or anything else? We intend to get a lot of input from constitutional lawyers and users of the space and other folks, so we can then start the rule-making process.”
Once those regulations are in place — a process that could take months — it seems likely that the governor will return to federal court for some kind of resolution, assuming Occupy Nashville remains ensconced at the plaza then and that the new rules are unacceptable to the protesters.Haslam almost certainly will insist on banning camping on the plaza — no tents or sleeping bags allowed — and that’s a deal-breaker for the occupiers.“
The goal is for the state to promulgate regulations that our clients are comfortable with and that meet the standards of the First Amendment,” Occupy Nashville lawyer David Briley said, declining to predict whether the administration will succeed.
In the event of an impasse, the two sides will be back to square one in federal court arguing about Occupy Nashville’s lawsuit. According to constitutional law experts, the occupiers will have to prove Haslam is singling them out to stop their protesting and that he could secure public safety by other means without imposing a curfew at the Capitol.
Lawsuits like Occupy Nashville’s have been filed around the country. But Occupy Nashville’s case may be stronger than many, the experts said. To make its case, Occupy Nashville can point to both the curfew’s after-the-fact imposition and its inconsistent enforcement.
On both nights of Haslam’s crackdown, Tennessee Performing Arts Center theater-goers were given special permission to cross the plaza after 10 p.m. TPAC even threw a gala fundraiser in plain view of the rag-tag protesters on the crackdown’s second night. Tuxedoed arts patrons broke the curfew with impunity.
Safety Department emails disclosed since then have revealed that highway patrol troopers went undercover and infiltrated the protesters — more evidence that the regulations were aimed, not generally to promote public safety, but specifically at the protesters in possible violation of their free-speech rights.“
Certainly the sequence of the events … and the inconsistent applications might support” the protesters claims in the lawsuit, says Steven Mulroy, a constitutional law professor at the University of Memphis.