By: DIANE POSTi
The May Day Action Committee, a group of local activists, organized a May Day event for 29 April, 2012 in conjunction with national actions called “Reclaim the Commons.” “Reclaim the Commons” refers to citizens reclaiming the public spaces (parks, land, streets, beaches) and natural resources (water, air, animals, fish) that belong to the people but that are being “privatized” and sold to corporations who then block public access or charge exorbitant prices while destroying the resource.
The group had organized well and worked with local residents and business owners on their plan to plant a garden in the long vacant lot at Ash Avenue and University Drive where Gentle Strength, a coop grocery store, had stood for years. In their research, they discovered the owner of the lot is Brookfield Asset Management, ironically the same company that owns Zuccotti Park in New York City, the original home of Occupy Wall Street. I participated in the action as a legal observer for the Central Arizona National Lawyers Guild.
The day before the action, the Tempe Police distributed a letter to the businesses and neighbors in the area regarding the 29 April “Reclaim the Commons” event. The letter accused the organizing group of lying, called them anarchists, and attempted to tie them to an unidentified photo of two unidentified men with bandanas near a car. During the action, the Tempe Police responded in riot gear as if planting a garden was a violent act. The following is an abridged and edited copy of the letter of protest that I sent to the Tempe police on behalf of the action organizers after the event.
The actions of the city represent unconstitutional content discrimination.
Requiring individuals to obtain permits prior to engaging in protected speech violates the First Amendment.ii Expressive or symbolic conduct can be regulated, but if such regulation is content based, the court must analyze it under strict scrutiny.iii It is clear that the arbitrary rule enforced by the police was not content neutral but specifically taken because the action was in connection with the protest. If the Garden Club had planted petunias, the city would not have responded with fourteen decked out riot police.
To restrict the usage of a public place, the government must have a legitimate purpose, and the protesters must have means of expressing the message another equally effective way.iv The police claimed that the vacant lot was private property, but on the very lot where the group planned to build a garden, several large campaign signs for upcoming elections had been placed. Prohibiting free speech by disfavored groups while allowing it by others is a violation of the First Amendment. v
The organizers could not afford to purchase signs like the campaign posters even had they been allowed to place them on the property. An ordinance that is facially content neutral but that discriminates between the rich and poor who do not have the resources to promote their message is not content neutral.vi Instead, when an ordinance burdens fundamental rights, it must be narrowly tailored to serve those compelling interests.vii By targeting groups who communicate their message in a manner disfavored by the police, the police actions are not content neutral. Their actions are subject to strict scrutiny and cannot survive.
The activities of the Tempe police had a chilling effect on First Amendment rights.
Police have become increasingly militarized as if protesters were foreign enemies.viii Two recent lawsuits have been filed against such activities.ix Such aggressive actions by police, such as Tempe’s response on 29 April, violate fundamental free speech rights and undermine the concept of a democratic society. A chilling effect occurs when government actions instill fear of engaging in free speech activities.
Preemptive actions by police in the absence of illegal activity are unconstitutional.
The Ninth Circuit has reaffirmed that First Amendment activity may not be banned merely because similar activity resulted in instances of violence in the past.x The Collins court said, “The courts have held that the proper response to potential and actual violence is for the government to ensure an adequate police presence and to arrest those who actually engage in such conduct rather than to suppress legitimate First Amendment conduct as a prophylactic measure.”xi Clearly the action of the Tempe police on 19 April is direct reprisal for protected speech that offends the First Amendment because it chills speech.xii
The attempt of “Reclaim the Commons” to plant a garden in vacant space was clearly political speech. Political speech is at the core of the protection offered by the First Amendment,soany interference must be analyzed under strict scrutiny.xiii The right of assembly is intrinsically linked to the right of speech and is equally fundamental.xiv Not only does a group have the right to speak, but it also has a right to assemble and join together to petition the government and educate the public, which has a right to listen.xv That is precisely what the group did – assembled to deliver a political message. Criticism of government, of private property, or a call for change may not be suppressed because it comes from those with little or no means.xviAn expression of anguish about domestic and foreign affairs is protected and cannot be criminally punished except in the most compelling circumstances.xvii The Supreme Court has recognized that even facially neutral laws can discriminate against disfavored viewpoints and speakers. xviii No matter how neutral a law may appear, there is a vast difference between prohibiting the rich and poor from sleeping under bridges.
Conclusion
The 29 April 2012 “Reclaim the Commons” action was political expression that has the highest level of protection under the First Amendment. The activities of the Tempe police had an unlawful chilling effect on the exercise of protected activities and must be stopped.
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i Dianne Post is an international human rights attorney who spent 20 years in Phoenix working on family law cases primarily involving battered women and molested children before embarking on her international career in 1998. She has worked in 14 countries on gender-based violence issues. She graduated in 1979 from University of Wisconsin Madison adding a JD to a masters in psychology and a bachelors in corrections.
ii McFadden v. City of Bridgeport 422 F.Supp.2d 659 (N.D. W. VA 2006).
iii Texas v. Johnson, 491 U.S. 397, 402-04, 109 S.Ct. 2533, 2538-39, 105 L.Ed.2d 342 (1989).
iv Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of Customs, Region II 459 F. 2d 676, (3rd Cir. 1972).
v White v. City of Sparks, 341 F. Supp. 2d 1129 (2004).
vi New Jersey Environmental Federation v. Wayne Tps. 310 F. Supp. 2d 681 (2004).
vii Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 2226, 124 L.Ed.2d 472 (1993); New Times, Inc. v. Arizona Bd. of Regents, 110 Ariz. 367, 371, 519 P.2d 169, 173 (1974).
viii The Policing of Political Speech: Constraints on Mass Dissent in the U.S., National Lawyers Guild, 2010.
ix (Campbell et al v. City of Oakland, CV 11 5498, U.S. D.C. N.D. Ca, filed November 14, 2011; Rodriquez v. Winski et al, 12 CIV 3389, U.S. D.C. S.D. N.Y. filed April 30, 2012).
x Collins v. Jordan, 110 F. 3d 1363, 1372 (9th Cir.1996).
xi Id.
xiiHartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006).
xiii Richmond Newspapers Inc., v. Virginia, 448 U.S. 555, 575, 578, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).
xiv Id.
xv (Coalition to Protest the Democratic Nat’l Convention v. City of Boston, 327 F. Supp.2d 61 (2004)).
xvi (International Caucus of Labor Committees v. Montgomery, 856 F. Supp. 1551 (1994)).
xvii (Cline v. Rockingham County Superior Court, 502 F.2d 789 (1974)).
xviii Martin v. Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 864, 87 L.Ed. 1313 (1943).
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