Does Portland have a First Amendment problem?

Posted Nov. 29, 2013, at 12:32 p.m.

PORTLAND, Maine — Free speech. America’s founders felt so strongly about it they protected it in the very first amendment they tacked on to the U.S. Constitution.

But in Maine’s largest city, more than 220 years after the Bill of Rights was adopted, free speech has become a regular point of dispute. Over the past two years, the city has landed in court twice to fight claims it infringed on the First Amendment rights of demonstrators, and might a third time if a larger U.S. Supreme Court decision in 2014 doesn’t clear up the debate over buffer zones around abortion clinics.

On multiple other occasions — such as when opponents of the controversial sale of the publicly owned Congress Square Park to private developers gathered there to protest the move — city officials and police officers faced challenging decisions outside of the courthouse when weighing First Amendment rights against conflicting city rules or the rights of others.

“These are issues that governments are supposed to struggle with,” said Zachary Heiden, legal director of the American Civil Liberties Union of Maine. “They need to proceed very deliberately and very carefully when they’re dealing with people’s free speech rights.”

Is Portland, widely viewed as the most liberal city in Maine, really an aspiring totalitarian state seeking to stamp down dissenting opinions, as some residents have alleged during long and arduous City Council debates?

Or is the city doing the best it can to allow free discourse when economic conditions and the ghosts of the Occupy movement have driven more people to the streets and public squares than has been seen in three decades?

“Governments have tried to squelch unpopular free speech going back all the way to colonial times,” said Kevin Martin, a Goodwin Procter attorney helping represent a trio of plaintiffs who believe the city has impeded their free expression. “That’s why it’s the first amendment.”

In early 2012, Portland kicked members of the Occupy Maine encampment out of Lincoln Park, public property where they had been demonstrating for nearly five months against wealth inequality in America. The occupiers ultimately dropped a lawsuit against the city after a judge’s initial ruling sided with Portland.

This month, the city returned to court to argue that it similarly wasn’t trampling free speech rights when it passed a controversial ordinance preventing people from standing in median strips to panhandle or hold political signs.

Anti-abortion protesters have claimed their First Amendment rights were being infringed upon when the city passed another ordinance last week establishing a 39-foot buffer around the Congress Street Planned Parenthood office, effectively pushing their regular demonstrations across the street and away from patients trying to enter the facility.

Members of the Pro-Life Missionaries of Maine are reportedly watching a Supreme Court case over similar buffer zones in Massachusetts with interest to see if a precedent will be set or if they might have a window for a similar lawsuit locally.

And those cases don’t include a free speech debate that flared up when city officials this past spring considered new restrictions on who could set up street tables to sell arts or crafts. Many of the proposed rules fizzled in committee meetings when it became clear another legal challenge loomed if the City Council went too far.

“We’re constantly in a situation of trying to balance issues related to First Amendment free speech with other issues like public safety and access to health care,” said Portland Mayor Michael Brennan. “That’s why we typically have a fairly lengthy process of public participation and public discussion, and we debate back and forth in order to understand where it’s best to draw some of those lines. … [The First Amendment is] not a license to be able to do whatever you’d like to do. Freedom of speech is always balanced off the rights of other people and the safety of people.”

‘The resort to direct action’

But why has that debate come up so frequently in Portland during the last two years?

John Branson, the Portland attorney who represented Occupy Maine in 2012, said the occupiers should be credited with starting the snowball by reminding people of all political persuasions they have a right to protest conditions they consider unjust.

“Occupy, although it was a controversial movement and not everybody supported it, kind of gave courage to a wide range of people,” Branson said. “I think it’s a positive sign that citizens are engaged more in their democracy than they were before. As much as a lot of folks don’t like to see conflict and strife, the exercise of free speech and expression is a sign that citizens are engaged in their democracy in a direct way.”

Going a level deeper, behind the Occupy movement — and subsequently behind discontent over the median strip ordinance and the sale of Congress Square Park — are a struggling economy and disenfranchisement with government, Branson and others said.

“I think as poverty and long-term unemployment have gone up, people have gone into the streets to ask their neighbors for help,” said Martin, who alongside Heiden is representing a panhandler and two political activists challenging the median strip ban.

“The resort to direct action is a symptom of public frustration with the ballot box and how hard it is to effect change by electing politicians to office, whether they be Democrats or Republicans,” Branson said. “We don’t see a lot of change happening that way. The development that is troubling is that more and more politicians are responsive only to the needs of the corporate and moneyed establishment. Whether it’s the Democrats or Republicans — or at the national, state or local level — those with money or power have the most influence over the government process.”

Branson said in Portland, city leaders are aggressively steering toward gentrification, and are trying to push poor people out of sight by prohibiting them from begging in median strips and selling Congress Square Park, where many homeless people regularly gather, to wealthy hoteliers.

But while city attorney Trish McAllister acknowledges that a sharp increase in the city’s homeless population — and by extension panhandlers — has brought the median strip issue to the forefront, for example, sweeping them under the rug has never been the city’s goal.

McAllister said an individual’s freedom to express himself or herself, whether by protesting a government or asking for spare change, does not equate to a freedom to endanger himself or herself. Or anybody else.

At the Occupy encampment, city inspectors worried about open-flamed campfires and space heaters running in closed-off tents, she said, and Portland officials have been overrun with letters from drivers concerned that it’s only a matter of time before a median strip panhandler is hit by a passing car.

In the case of Planned Parenthood, McAllister said patients also have a legally protected right to access health care, and the demonstrators there were infringing on that right while exercising their free speech rights.

Contrary to the image of an uncaring, iron-fisted City Hall, McAllister said she and other Portland officials visit the demonstration sites in person and attempt to seek middle ground that respects people’s rights and safety alike.

“I was the one helping hold a tape measure when we figured [the buffer zone distance] out,” she said. “Did 39 feet push the protesters past the other sidewalk? That wouldn’t have been fair either. But when there is an acknowledged First Amendment right, which is very precious and very guarded, is it absolute? No.”

Dmitry Bam, an associate professor at the University of Maine School of Law, said First Amendment challenges aren’t new to this decade or to the city of Portland, recalling disputes over war protests and flag burnings in the 1960s and 1970s.

“Some of these issues have been around for a long time. Panhandling has been around for a long time and courts have been considering that issue for a long time,” Bam said. “Part of the panhandling case is: Is this speech or is this conduct? If you’re regulating conduct, that doesn’t receive strict First Amendment protections.”

Even if panhandlers can successfully argue that what they’re doing is free speech, Bam said, they still can’t necessarily do it anywhere they want. As with the oft-cited example of yelling “fire” in a crowded theater, governments have long been allowed by courts to establish so-called “reasonable time-place” restrictions as long as they’re content neutral and not too extreme, Bam said.

In Portland, police used a longstanding 10 p.m. nightly park closure time to help justify asking occupiers and Congress Square Park protesters to move, even after bending the rules to allow both parties to stay later.

“One big issue is defining what is speech and what’s expression. And the court has gone pretty broad in defining those things,” Bam said. “You’ve got to figure out if it’s ‘speech’ or if it’s not ‘speech.’ If it’s speech, you’ve got to think about what forum we are in? If it’s a public place, like a sidewalk or a park, it gets heightened scrutiny.

“But the government can still win these cases as long as they’re reasonable restrictions and the law is the least-restrictive alternative,” he continued. “In any of these cases, with any constitutional rights, none of the rights are absolute. But you’ve got to show as a government that you couldn’t [protect public safety] in any other way.”