Judge sides with Occupy Eugene: ‘1st Amendment does not go to sleep at 5 p.m.’

Judge sides with Occupy Eugene: ‘1st Amendment does not go to sleep at 5 p.m.’
A federal judge ruled that the General Services Administration (GSA) wrongly infringed on the First Amendment rights of Occupy Eugene protesters by severely restricting the hours and days they were allowed to demonstrate.

The group, an offshoot of the Occupy Wall Street movement, sued the GSA for denying a permit so its members could protest in a public plaza in Eugene, Oregon in 2012. The members believed that the reason their application was denied was that the government had targeted Occupy Eugene for its messages concerning financial fairness, homelessness and demands for corporate accountability.

On Wednesday, US District Judge Michael McShane issued a summary judgment in favor of the movement, but denied that they were targeted.

"The First Amendment does not go to sleep at 5 p.m. on Friday afternoon and wake up at 8 a.m. on Monday morning,” McShane wrote in his decision. “Although GSA may generally use a permitting scheme to oversee access to the Plaza, GSA's permitting process, given the facts present in this action, was not narrowly tailored to serve any significant government interest, and was therefore unconstitutional as applied to plaintiffs."

In May 2012, Occupy Eugene (OE) received a 60-day permit for continuous, non-exclusive use of the plaza area outside the Eugene Federal Building from the local GSA office. They chose the plaza becauseit “has always been a lawful place for demonstrat[ors] and picketers to congregate” that is “located on a highly-visible, busy street corner [and] is adjacent to courthouses, federal, state and municipal political offices,” court documents said.

The Wayne L. Morse U.S. Courthouse in Eugene, Oregon overlooks the plaza where Occupy Eugene protested. (Reuters/Richard Clement)

But when OE tried to renew the permit in July 2012, GSA regional director Wayne Benjamin informed the group that, “due to problems with other Occupy groups,” there were new restrictions on the use of the plaza. Instead of a 60-day permit, OE would only be able to receive a 30-day one. They would also only be allowed to protest during the property hours, which were listed as between 8 a.m. and 5 p.m. on weekdays. A sign in the plaza lists the hours of operation for the area as being between 6 a.m. and 11 p.m.

OE applied for a renewal, but changed the hours to 7 a.m. to 10 p.m., seven days a week. The group also informed the GSA that it disagreed with the restrictions and planned to remain at the plaza without a permit.

Benjamin denied the application, and listed the primary reason for denial was that OE sought “to maintain a presence in the plaza 24 hours a day for a period of 30 days,” court documents said. The group appealed the decision, but were again turned down.

OE decided to continue to protest, even without a permit to do so. In mid July, Federal Protective Services (FPS) Area Commander Michael Foster and FPS Officer Thomas Keedy informed the group they needed to leave the plaza or face arrest. All but one member, Florence Semple, left the area. Semple told the two men she believed the eviction was unconstitutional, and would only leave upon receiving a citation or being arrested. She was charged, but the charges were later dropped over her objection.

The group filed the lawsuit in December 2012, after the government again refused to let OE protest in the plaza without the restricted, 30-day permit.

In issuing his summary judgment, McShane found that the time restrictions had a “chilling effect” on those wishing to exercise their right to free speech.

“GSA’s argument that the ordinance was narrowly tailored to support government interests is not supported by the record,” he wrote. “Though public safety, aesthetics, and public use are legitimate government interests, the hours regulations listed in OE’s second permit application were so tightly restricted that they created an impermissible restriction on OE’s First Amendment rights.”

The judge also chastised the GSA for suddenly restricting the hours on the permit without a federally required comment period. He also added, however, that there was “no nefarious intent” on the part of the government or any of the individual defendants, noting that it was a “unique situation in which the defendants were forced to deal with new problems presented by [OE’s] unique form of protest.”