Thomas MacMillan Photo
Protesters celebrate word of Wednesday’s court victory.
New England’s last standing “occupation” didn’t have to fold up all its tents today after all.
In a dramatic scene in U.S. District Court in Bridgeport, Judge Janet Hall Wednesday granted a request by a lawyer for Occupy New Haven, Norm Pattis, to enjoin the city from removing some of the tents that have been on the upper Green since Oct. 15 as part of the national anti-corporate Occupy Wall Street movement.
Hall announced her decision at 12:15 p.m. — 15 minutes after the deadline the city had set for Occupy New Haven to take down its encampment.
The protesters filed suit Tuesday, arguing that their removal would be stifling their freedom of speech. Their complaint raises larger issues about who controls the Green: The city, or the Proprietors of the Green, the real owners of the land.
Hall kept Wednesday’s hearing to the issue of the restraining order — essentially, whether to preserve the encampment while the larger legal issues are sorted out.
A full hearing is scheduled for March 28 before U.S. District Court Judge Mark Kravitz. Hall’s temporary restraining order expires at 11:59 that night. It applies to “structures” — including tents and lean-tos — belonging to the eight occupiers named in Pattis’ motion for the order. It does not apply to other protesters. But the initial sense at the courtroom was that the city will not evict others. Mayor John DeStefano later confirmed that the city will not move against non-plaintiff occupiers.
However, the city convinced Hall to require occupiers to post a $1,000 bond to cover the cost of the toilets that have heretofore been provided for free.
“The city won’t let them pee for free” anymore, Pattis told the Independent after Hall’s announcement.
“A great day for the First Amendment,” Kevin Smith, an attorney working with Pattis, declared after Hall’s decision.
The news hit the Occupy encampment at 12:20. A victory march followed.
City Corporation Counsel Victor Bolden represented both the city and the Proprietors at the hearing Wednesday.
During the 90-minute hearing, Judge Hall was clearly troubled by the vagueness of regulations for the use of the Green, and whether they give the city’s parks director and police chief too much discretion.
Pattis argued before her that the encampment constitutes free speech protected by the First Amendment of the U.S. Constitution.
“These aren’t mere structures,” he said. “What these tents do, though, is they convey messages.”
Exercising free speech?: Occupiers prepared for expected eviction Wednesday.
He noted that some of the tents have messages written on the sides. Even those without writing stand as symbols of shantytowns that cropped up during Great Depression, as well as today’s homelessness problem and foreclosure crisis, he argued.
The city’s Bolden said the Green is effectively a public space — something that Drew Days, the chairman of the Proprietors, said the group doesn’t concede. Days spoke briefly just before Hall rose to make her decision in her chambers.
“It is a space that is private” with limited regulations for the public’s use, said Days, a Yale law professor emeritus and former U.S. Solicitor General.
Earlier, Bolden said that the city and the proprietors are “intertwined” in terms of enforcing the rules set by the Proprietors. The city has a right to limit that speech rather than let a group camp indefinitely on the Green, he said.
Hall agreed with that point. But she declared that the city hasn’t set specific enough rules for how to set those limits.
To grant the restraining order, Hall had to consider several tests: Does the matter involve limits on a constitutional right (in this case free speech)? Are the plaintiffs raising a significant legal question? And was there danger of irreparable harm to the occupiers if she didn’t grant the injunction?
The First Amendment question is a “heavy interest,” Hall said. The government can place restrictions on speech by telling protesters what they can do, where they can do it and for how long. But those restrictions must be “narrowly tailored,” Hall said, and it’s unclear whether the rules involving the use of the Green meet that standard. That means a a real legal question was being raised, she said.
Removing the occupiers (pictured) would cause irreparable harm because of the First Amendment claim, Hall said. While people walking by the Green might not get the message the protesters are sending as easily as they might have last fall, “I think that it is nonetheless still symbolic speech,” she said.
Meanwhile, the city has allowed the occupy encampment to stand for five months, she noted. It has even provided toilets. Another two weeks of the encampment wouldn’t impose a big burden, she said.
Hall said her ruling doesn’t mean that Pattis and the occupiers will prevail on the larger arguments when they land in Judge Kravitz’s courtroom. She at one point earlier in the hearing cautioned Pattis and others not to see a restraining order as a “victory.”
She also was emphatic that her order doesn’t stop the city from enforcing its laws.
Hall made it clear that the city — perhaps in concert with the Proprietors — could solve the problem quickly by simply enacting new rules for the Green. To pass constitutional muster, any new rules would have to apply to any message and create alternative avenues for protest, as well as specifics about the time, place and manner of permissible protest. In other words, “narrowly tailored.”
During the hearing, Hall clearly struggled with the conflicting principles in the case: The First Amendment (and the occupiers) on one side, and the rights of everyone else to enjoy the Green on the other.
Bolden noted that the city has been as accommodating of the occupiers as other city in the nation, if not more. He said the city has no problem with ongoing protests at the Green, just with long-term encampments like the one there now. He said the city has tried to negotiate with the occupiers, but failed, at one point joking that he expected to be called into housing court next to argue over whether the protesters have tenant rights.
“The city has tried to figure out how to accommodate people who are, in some ways, fundamentally unreasonable,” Bolden said.
A restraining order “would basically give fodder to those who believe they can do anything they want on the Green,” he said. “Their position is, we can stay forever.”
If everyone has the right to protest indefinitely, Bolden said, that effectively becomes a limitation on everyone’s right to protest, since there’s only so much public space.
Pattis responded that the city’s notice to vacate, issued earlier this week, was much more pointed than the proposals that had been floated during negotiations with the protesters — which included the possibility of their return at a later date. The notice, Pattis said, basically told the occupiers to take down their tents and get out.
The camp is small enough that it doesn’t interfere with other people’s ability to enjoy the public space, he said.
“There’s plenty of room to throw Frisbees on the Green,” Pattis said.