BANGOR, Maine — A federal judge late Wednesday upheld Occupy Augusta’s right to protest in Capitol Park across from the State House but found that the no-camping rule and the requirement that demonstrators apply for a permit were reasonable restrictions on their constitutional rights.
U.S. District Judge Nancy Torresen denied the motion filed last week by James Freeman of Verona Island and Diane Messer of Liberty for a temporary restraining order to keep Capitol Police from requiring them and other members of Occupy Augusta to obtain a permit for their activities.
“The plaintiffs claim that their First and Fourteenth Amendment rights would be violated were they to be prohibited from maintaining indefinitely into the future a round-the-clock tent city at Capitol Park,” Torresen wrote in her 27-page opinion posted on the federal court system’s electronic filing system about 8 p.m. Wednesday. “Although the court finds that the Plaintiffs‟ demonstration is protected by the First Amendment, that is not the end of the story.
“The state may impose reasonable time, place and manner restrictions on conduct or speech protected by the First Amendment,” she continued. “The court finds that the state’s permit requirement, its closing-hours regulation, and its long-standing no-camping rule are reasonable time, place and manner restrictions which are narrowly tailored to further the significant government interests of public safety and of ensuring that the park is adequately preserved and available for all comers.”
Torresen issued her decision after hearing oral arguments on the motion for 90 minutes Monday.
Freeman and Messer sued Public Safety Commissioner John E. Morris in U.S. District Court in Bangor on Nov. 28. Morris supervises Russell Gauvin, chief of the Capitol Police. The Friday before the lawsuit was filed, Gauvin told protesters they no longer could camp out overnight in the park across from the State House. He also said they would have to remove all but one tent and would have to obtain a permit to continue activities there, according to the complaint.
Torresen brokered a standstill agreement with Torresen on Nov. 28. Protesters agreed not to move any tents back into the park or to have any open fires, propane heaters or other incendiary devices in the park, according to previous reports.
The police agreed not to ask the group to apply for a permit until Torresen had issued a decision on the motion for a temporary restraining order.
Protesters and police most likely will communicate Monday about how they will proceed. Some protesters have said they would face arrest rather than apply for what they believe is an unnecessary permit.
In the complaint, the plaintiff’s attorney Lynne Williams of Bar Harbor said that the rules governing use of Capitol Park across from the State House are unconstitutional because they fail to distinguish “between large groups engaging in First Amendment activities and small groups, or even a lone speaker” and they give too much discretion “to the administrative decision maker regarding whether to grant a permit and what the time frame for making that decision must be.”
Assistant Attorney General Paul Stern, represented Morris at Monday’s hearing, told Torresen the park’s 10 p.m. closing time and no-camping rule both are established practices and do not violate the First Amendment rights of Freeman, Messer or Occupy Augusta. Stern said the Capitol Police have been patient with the protesters and allowed them to stay since Oct. 15 without a permit.
“Their position is that the First Amendment allows them to live in that park forever,” Stern said at an impromptu press conference outside the Margaret Chase Smith Federal Building after the hearing. “They have no case law to support that.”