Hot Docs: Occupy Cleveland sues over overnight assembly ban

November 3, 2011

Public Square ClevelandOccupy Wall Street (OWS), a series of demonstrations against social and economic inequality, has been ongoing for almost seven weeks.

As the movement has spread across the country (and the world) clashes with local police – and arrests of demonstrators – have also occurred.

Naturally, lawsuits have arisen out of these arrests, with civil complaint claims ranging from false arrest (as is the case with the 700 arrested in New York), to unconstitutional city ordinances.

This case is one of the latter.

Hot Doc: Turturice v. City of Cleveland

Source: Thomson Reuters News & Insight – National Litigation

Several of the demonstrators from the “Occupy Cleveland” movement (an OWS expansion in Cleveland, Ohio) are suing the city of Cleveland over an ordinance that the complaint claims is unconstitutional.

Unconstitutional how?

The ordinance prohibits any “unauthorized person” from remaining “on or in any portion of…the Public Square area between the hours of 10:00 p.m. to 5:00 a.m.”

The Public Square area just happens to be one of the main locations of Occupy Cleveland’s demonstrations, and this ordinance obviously interferes with the organization’s planned 24-hour occupation of the area.

While it could have been entirely possible that this ordinance was one that the city rarely enforced, possibly raising the question of the action’s ripeness, police have already arrested “a number” of the demonstrators for violation of the ordinance.

That leaves the question of whether the ordinance violates constitutional protections of free speech, specifically in regards to the forum issue.

As I’ve said in the past, I don’t like the topic of fora vis-à-vis First Amendment free speech discussions, but since this case is going to completely center on the issue, it looks like there’s no avoiding it.

For those who don’t regularly practice in constitutional law and have blocked from your memory that part of law school, a “forum” refers to the “where” of free speech, rather than the “what” (i.e. the content).

The Supreme Court has, just as it always does, created classifications of different fora: traditional public, designated public, and nonpublic.

Thankfully, we’ll only need to look at the first one, which encompasses places like public sidewalks, streets, and parks, because Cleveland’s Public Square would almost certainly be considered as within that category.*

When it comes to traditional public fora, a state actor may only restrict access to it based on time, place, or manner of expression, and such restrictions must be “narrowly tailored” to serve a “significant government interest.”

That gob of legalese just means that there has to be a good reason to restrict access, and you can’t just have a blanket prohibition (without a very good reason).

It may seem like Cleveland’s ordinance amounts to such a prohibition, but there is an exception if the individual or group has obtained a permit.

Unfortunately for the city, as the plaintiffs’ memorandum points out, the criteria to be considered in issuing the permit closely resemble those found in the Supreme Court’s 1992 decision Forsythe County, Georgia v. The Nationalist Movement.

Those ordinances were struck down as an unconstitutional content-based speech restriction.

Granted, there are some differences between that case and this one, but the differences probably aren’t enough to distinguish Forsythe County (and a federal judge will probably err on the side of following Supreme Court precedent).

Regardless, OWS seems to be well on its way to leaving its mark, at least legally, since a strikingly similar lawsuit was filed in California about Sacramento’s version of the ordinance.

Even if OWS’s impact on inequality is relatively insignificant, successes in either or both of these suits may invalidate similar city ordinances (and by consequence expand free speech rights) nationwide.

*Public Square is governed by the Cleveland Public Parks District, establishing it as city-owned and probably definable as a public park.