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STATE OF MAINE CUMBERLAND, ss.

SUPERIOR COURT CIVIL ACTION Docket No. PORSC-CV-11-_____

OCCUPYMAINE, FREDERICK DEESE HAMILTON, HEATHER LINNET CURTIS, HAROLD JOSEPH BROWN, JR., AND PALMA E. RYAN, PLAINTIFFS v.

CITY OF PORTLAND, MAINE, DEFENDANT

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PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION (With Incorporated Memorandum of Law) NOW COME Plaintiffs OccupyMaine, Frederick Deese Hamilton, Heather Linnet Curtis, Harold Joseph Brown, Jr. and Palma E. Ryan, by and through their undersigned counsel, and move this Court, pursuant to Rule 65 of the Maine Rules of Civil Procedure, for the entry of a Preliminary Injunction enjoining and otherwise prohibiting the City of Portland from: (1) enforcing against the Plaintiffs Section 18-18 and 18-41 of its Code of Ordinances, which enacts a blanket prohibition all speech and conduct in a public park between the hours of 10:00 p.m. and 6:30 a.m. and places an unconstitutional prior restraint on any constitutionally protected activity expected to involve twenty five or more persons or last for more than three consecutive days; (2) undertaking any actions to enforce or otherwise give effect to the denial of OccupyMaines Amended Petition in plain violation of the Plaintiffs rights of non-commercial expression, assembly and petitioning under the United States and Maine Constitutions; (3) undertaking any actions to remove from Lincoln Park the individual Plaintiffs or any other

members of OccupyMaine; (4) undertaking any actions to remove from Lincoln Park the belongings of OccupyMaine, the individual Plaintiffs or any other members of OccupyMaine; and (5) undertaking any actions to interfere with the peaceable exercise of constitutionally protected rights expression, assembly and petitioning by the Plaintiffs or any other individual members of OccupyMaine in Lincoln Park. Introduction & Factual Background Plaintiff OccupyMaine is an unincorporated association of citizens organized in solidarity with the national free speech and assembly movement known as OccupyWallStreet for the purposes, among others, of engaging in non-commercial speech and assembly, facilitating public dialogue about the grave economic, social and political injustices of our time, reclaiming public spaces for civic engagement, creating direct democracy and civic community, and petitioning the government for redress of economic and political grievances. OccupyMaine is based in Lincoln Park, a public park in Portland, Maine and also maintains an office at the Meg Perry Center on Congress Street in Portland. See Complaint at 1. Under well established jurisprudence, OccupyMaine has standing to bring this action for declaratory and injunctive relief on behalf of all its members. United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551-558 (1996) (where injunctive relief rather than monetary damages is sought on behalf of its members, an unincorporated association traditionally has standing to bring suit). (citing Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 341-45 (1977)). 1

Standing jurisprudence in Maine is prudential, rather than constitutional. Lindemann v. Commission on Governmental Ethics and Election Practices, 961 A.2d 538, 541-542 (Me. 2008) (citing Roop v. City of Belfast, 915 A.2d 966, 968 (Me. 2007)). There is no established formula for determining standing in Maine. Id. Instead, a court may limit access to the courts to those best suited to assert a particular claim. Id. (quoting Roop, 915 A.2d at 968 (citation omitted). The question of whether a specific individual has standing is significantly affected by the unique context of the claim. Id. In this case, OccupyMaine and the individual Plaintiffs are best suited to seek

Plaintiffs Hamilton, Curtis, Brown and Ryan are all legal residents of the City of Portland, Maine and are members of OccupyMaine. See Complaint at s 2-5. Plaintiffs are both daytime and overnight demonstrators in OccupyMaines protest encampment in Lincoln Park. Id. Their use of tents and overnight occupancy in Lincoln Park is intended as a form of symbolic expression to draw the attention of the public and the government to the grave economic, political and social injustices of our time, and their continuous presence in the park is intended to hold that attention until grievances are adequately redressed by those in power. Id. The OccupyWallStreet movement began on September 17, 2011 in New York City. At its General Assembly on September 29, 2011, OccupyWallStreet issued a declaration that included the following language: We, the New York City General Assembly Occupying Wall Street in Liberty Square, urge you to assert your power. Exercise your right to peaceably assemble; occupy public space; create a process to address the problems we face, and generate solutions accessible to everyone. To all communities that take action and form groups in the spirit of direct democracy, we offer support, documentation, and all the resources at our disposal. See Complaint at 11 and exhibit thereto. As part of that same Declaration, OccupyWallStreet formally articulated an initial set of grievances about which it was seeking redress through peaceable assembly, speech and petitioning activity. Id. OccupyMaine was formed in response to that national call to peaceable assembly, expression, petitioning and democratic action. On October 1, 2011, OccupyMaine began a peaceable assembly in Monument Square for the purposes, among others, of showing solidarity with OccupyWallStreet, advocating for economic, political and social justice, creating a public space for citizens to consult upon the common good, and petitioning for redress of grievances.

declaratory and injunctive relief on behalf of themselves and the members of OccupyMaine, who are both numerous and similarly situated.

Complaint at 12. OccupyMaine and its members have maintained a continuous and uninterrupted presence in Lincoln Park since Monday, October 3rd, engaging in expression, assembly and consultation with ordinary citizens about the need to redress a plethora of grievances arising from the vast inequality of wealth and income in the United States and throughout the world; a thoroughly corrupt and unjust financial, economic and political system; and the corporate takeover of our public spaces and our once democratic government at the national, state and local levels. Complaint at 13-16. During the period from December 1, 2011 through the present, Defendant City of Portland has undertaken a variety of decisions and actions designed to end the Plaintiffs political demonstration in Lincoln Park and otherwise interfere with their constitutionally protected rights of expression, assembly and petitioning activity, culminating in a notice dated December 15, 2011 notifying them that they must cease all such activity between the hours of 10:00 p.m. and 6:30 p.m. and remove all expressive structures integral to that activity. Complaint at 31-54. By way of additional factual background, Plaintiffs hereby incorporate by reference herein all the allegations set forth in Paragraphs 17-54 of their Complaint filed herewith. In their Complaint, Plaintiffs assert four separate counts against the Defendant City of Portland, seeking, inter alia, declaratory relief, injunctive relief, and an award of reasonable attorneys fees and costs. Through Counts I and II, Plaintiffs seek a declaration from this Court that the Citys blanket ban on any gatherings of people in Lincoln Park and most other public parks during the hours of 10:00 p.m. and 6:30 a.m. in the form of an anti-loitering ordinance, Section 18-18 of the City Code is unconstitutional on its face and/or as applied to the Plaintiffs. Plaintiffs further request an order enjoining the City from undertaking any action to enforce that

unconstitutional ordinance as against OccupyMaine or its members, consistent with this Courts legal and equitable powers under the Declaratory Judgment Act, 14 M.R.S.A. 5951 et seq. Through Count III, Plaintiffs seek a declaration that the Citys requirement of advance permission for any demonstration involving more than twenty-five persons or lasting more than three days as set forth in Section 18-41 of the Code of Ordinances is unconstitutional on its face and/or as applied to the Plaintiffs, and seek an order enjoining the City from subjecting Plaintiffs to those unconstitutional requirements. Through Count IV, Plaintiffs challenge the Citys denial of OccupyMaines Amended Petition for use of Lincoln Park as a violation of their rights under the First Amendment of the United States Constitution and Article I of the Maine Constitution. Plaintiffs seek declaratory and injunctive relief pursuant to 14 M.R.S.A. 5951 et seq. and 5 M.R.S.A. 4682 preventing the City from acting upon its denial of OccupyMaines Petition in violation of their constitutional rights, and request an award of reasonable attorneys fees and costs for bringing this action. The essence of Plaintiffs Complaint in this case is declaratory and injunctive in nature, and is brought for the principal purposes of protecting and defending their rights under the United States and Maine Constitution to continue to peaceably assemble, speak demonstrate and petition. The timing and content of this lawsuit is further intended to avert or minimize the harm associated with the Citys recent, ongoing and threatened actions to terminate those rights, apparently by force if necessary. In this context, for the reasons set forth below, Plaintiff seek the immediate entry of a preliminary injunction to maintain the status quo during the pendency of this lawsuit through and including final judgment. 2

Plaintiffs are not requesting the entry of temporary restraining order pursuant to M.R.Civ.P. 65(a). Provided that a lawsuit is filed no later than Monday, December 19, 2011 at noon, the City has provided written assurance to OccupyMaine, satisfactory to the Plaintiffs, that it will refrain from undertaking any action to remove OccupyMaine,

Argument A preliminary injunction maintains and preserves the status quo until the time a final judgment is entered in the lawsuit. In order to grant preliminary injunctive relief in favor of the Plaintiffs, the Court must find that: (1) Plaintiffs will suffer irreparable injury if the injunction is not granted; (2) such irreparable injury outweighs any harm which granting injunctive relief would inflict on the Defendant; (3) there is a likelihood that Plaintiffs will succeed on the merits of lawsuit; and (4) the public interest will not be adversely affected by granting the injunction. See Windham Land Trust v. Jeffords 967 A.2d 690 (Me. 2009); and Womens Community Health Center, Inc. v. Cohen, 477 F.Supp. 542 (D. Me. 1979). As set forth more fully below, the irreparable harm that Plaintiffs would suffer if they and their belongings were removed from Lincoln Park before the conclusion of the lawsuit is beyond dispute. OccupyMaines protest encampment maintained in Lincoln Park since October 3, 2011 including tents, a library and others structures integral to their message would be destroyed. The very rights of speech, assembly and petitioning embodied by every aspect of that encampment and which Plaintiffs are fighting to defend in this lawsuit would vanish with it. The community of protestors maintaining a continuous presence there would reasonably be expected to scatter and disperse per the dictates of the Defendant or through its expected use of force, undermining any legitimate hope of restoring that community protest encampment after a legal victory is achieved. In the absence of a preliminary injunction, any victory achieved by the Plaintiffs in this lawsuit would truly be a pyrrhic one. It should be noted that Plaintiffs are not seeking any monetary damages in this action, but instead are asking that this Court to enjoin the

its members or their belongings from Lincoln Park until such time as this Court has issued a ruling on Plaintiffs request for a preliminary injunction.

City from removing them and otherwise protect their constitutional right to remain there for the purpose of peaceable, constitutionally protected expression, assembly and petitioning activity. The irreparable harm Plaintiffs would suffer heavily outweighs any harm to the Defendant associated with the granting of the preliminary injunctive relief. The various burdens and inconveniences already claimed by the City as a basis for shutting down the OccupyMaine protest encampment in Lincoln Park public safety, fire safety, sanitation, a drain on City resources and the like are either all subject to being address pursuant to plans and actions already outlined and taken by OccupyMaine, or are constitutionally insufficient as grounds for banning an entire form of political protest. Accordingly, those stated concerns cannot justify the denial of Plaintiffs request for injunctive relief. In their Complaint filed contemporaneously herewith, Plaintiffs assert four separate and independent Counts against the City of Portland for declaratory and injunctive relief. If the Court finds a likelihood of success on any one of the four Counts of Plaintiffs Complaint three of which challenge the constitutionality of City Ordinances on their face or as applied to OccupyMaine, and one of which challenges the Citys unlawful denial of OccupyMaines permit request then it should grant the pending request for a preliminary injunction. Plaintiffs have shown a likelihood of success on the merits with respect to each separate Count. Finally, the public interest will be helped, not harmed, by the granting of the preliminary injunction. It is well within the discretion of this Court to reject any suggestion by the Defendant or anyone else that the public interest would be adversely affected as a result of any aesthetic offense that may be caused to certain members of the public, or any concerns voiced by business owners that the vocal protests are not good for business, or the financial and other burdens imposed upon the Citys fire, police and inspections personnel in connection with the multi-

faceted nature of the Plaintiffs non-commercial First Amendment activity in Lincoln Park. If our Constitution is to mean anything, and if it is to remain the highest law of our land in fact not just in theory, then the public interest is best served by preserving the status quo as it pertains to those engaged in their constitutionally protected rights in Lincoln Park, until such time as a final judgment is entered in this matter. I. PLAINTIFFS WOULD SUFFER IRREPARABLE HARM IF THE MOTION FOR PRELIMINARY INJUNCTION WERE DENIED. The denial of a Constitutional right, if denial is established, constitutes irreparable harm for purposes of equitable jurisdiction. Ross v. Meese, 818 F2d 1132, 1135 (4th Cir. 1987). The First Amendment occupies a unique place in our pantheon of freedoms, and as such is entitled to special protection. See Let's Help Florida v. Smathers, 453 F.Supp. 1003, 1009 (N.D.Fla.1978), aff'd. 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982). See also Wooley v. Maynard, 430 U.S. 705 (1977) (injunctive relief appropriate to prevent injury to Plaintiffs First Amendment rights); Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.); Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 824 (2d Cir.1967); Planned Parenthood v. Citizens for Com. Action, 558 F.2d 861, 867 (8th Cir. 1977); Henry v. Greenville Airport Comm'n, 284 F.2d 631, 633 (4th Cir. 1960). See also CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE 2948.1 (2d. ed. 1995) (When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.) Virtually every aspect of Plaintiffs ongoing activity in Lincoln Park is expressive and otherwise protected under the Maine and United State Constitutions, including but not limited to speech, assembly, petitioning, distribution of literature, pitching tents and sleeping overnight,

housing and feeding the homeless, conducting teach-ins, maintaining a continuous, round-theclock presence, engaging in direct democracy and facilitating public discourse about the most pressing political, economic and social issues of our time. See Complaint at See Complaint at s 2-5, 11-17, 21-22, 39, 58-59, 67-68, 73-74, 84-85. This activity has continued unabated and uninterrupted in Portlands Lincoln Park since October 3, 2011. Even a brief disruption of this constitutionally protected activity will cause, as the Supreme Court has noted, irreparable injury. II. THE IRREPARABLE HARM PLAINTIFFS WOULD SUFFER FROM DENIAL OF INJUNCTIVE RELIEF OUTWEIGHS ANY HARM THAT DEFENDANTS WOULD SUFFER IF THE INJUNCTION IS GRANTED. Plaintiffs conduct, protest, expression, demonstration and assembly is being curtailed by the City's recent revocation of their right to remain in Lincoln Park, and its stated intention to strictly enforce provisions of its Code of Ordinance that are unconstitutional, both on their face and as applied to OccupyMaine and its members. Peaceful protesters face the stark choice of continuing to express their controversial message and face forcible removal and arrest, or remaining silent. Individuals who seek to breathe life into our democracy, and meaning into the sacred rights enshrined in the federal and state constitutions, have played a vital role throughout history in changing our nation for the better. Plaintiffs seek the opportunity to follow that path, and through the Citys recent actions may soon be been stripped of the right to voice their collective dissent from economic, political and social conditions which they view as both unjust and gravely injurious to the fabric of our Republic. Through its application of an anti-loitering ordinance and other ordinances challenged directly by Plaintiffs lawsuit under the United States and Maine Constitutions, the City seeks to impose a wholesale ban on 24-hour speech and assembly in Lincoln Park and any other public park, rather than ensuring that traditional public fora remain freely available for citizens to

engage in non-commercial constitutionally protected activity so that the collective voice of its most ordinary and least powerful citizens may be heard. As they have from the outset of their peaceful protest, Plaintiffs continue to remain ready, willing and able to work with City officials and undertake any and all actions reasonably necessary to address any legitimate safety or other concerns voiced by City officials. See Complaint at 23-30 and 38 and Exhibits referenced therein. Finally, it is worth noting that, notwithstanding the City Councils stated concerns about exclusive use of Lincoln Park by OccupyMaine and its members, no evidence has been offered nor has it ever been brought to OccupyMaines attention since October 3, 2011 that a single group or individual has sought permission to use Lincoln Park for any purpose, commercial or non-commercial, during the period of the OccupyMaine demonstration. Complaint at 45. The balance of the equities clearly favors Plaintiffs who simply wish to continue engage in peaceful political protest in a public park, and who have repeatedly taken steps and otherwise offered to reduce the geographic footprint and other impacts necessarily associated with its form of protest, expression and assembly. III. PLAINTIFFS HAVE A LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR FOUR SEPARATE CLAIMS AGAINST THE CITY OF PORTLAND. A. Defendant Bears the Burden of Proof in this Case.

Defendants bear the burden of proof on limits to First Amendment rights. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 516 (2000). Once Plaintiffs show a restraint on expression, the burden shifts to the government to justify its acts. Restrictions on political speech in traditional public fora are viewed with extra scrutiny and upheld only if narrowly tailored to serve an overriding state interest. McIntyre v. Ohio Elections Comm., 514 U.S. 334, 347 (1995).

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B.

Plaintiffs Expression and Assembly in Lincoln Park is Protected by the First Amendment to the United States Constitution and Article I of the Maine Constitution.

Streets and parks are the quintessential traditional public fora. They have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions. Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939); see also United States v. Grace, 461 U.S. 171, 177 (1983) (public places historically associated with the free exercise of expressive activities, such asparks, are considered without more, to be public forums). Plaintiffs occupy such a forum for speech, assembly, association and petition, all protected by the First Amendment as well as Article I, Sections 4 and 15 of the Maine Constitution. See Shuttleworth v. City of Birmingham, 394 U.S. 147, 152 (1969); Central Maine Power Co. v. Public Utilities Commission, 734 A.2d 1120 (Me. 1999) (with respect to free speech rights, Maine Constitution is no less restrictive than the United States Constitution). The Plaintiffs core expression in the current case direct efforts through discussions, dialogue, chants and signs to communicate with the general public concerning the grave economic, political and social injustices of our time, and the manner in which government is or should be operated enjoy the fullest protection under the free speech clause of the Maine and United States Constitutions. Central Maine Power Co. v. Public Utilities Commission, supra, 734 A.2d 1120 (Me. 1999). The protections of the First Amendment and Article I, Section 4 of the Maine Constitution also extend to symbolic and expressive conduct designed to communicate a message, including the very modes of expression used by Plaintiffs. See Spence v. Washington, 418 U.S. 405, 409-410 (1974) (conviction for affixing peace symbol to American flag violated

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First Amendment); Univ. of Utah Students Against Apartheid v. Peterson, 649 F. Supp. 1200, 1207 (D. Utah 1986) (shanties erected to protest apartheid are symbolic expression protected under the first amendment); United States v. Abney, 534 F.2d 984, 985-86 (D.C. Cir. 1976) (overturning conviction as round-the-clock vigil in a park to protest disability inequities constituted symbolic expression protected under the First Amendment). See also State v. Drake, 325 A.2d 52, 55 (Me. 1974) (Certain non-verbal conduct is capable of being categorized as expression which may be constitutionally protected). The Plaintiffs tent city in Lincoln Park, its round-the-clock vigil, its sheltering and feeding of ordinary citizens victimized by gross economic and political injustice, and its maintenance of tents and other structures designed to create a community of teaching, learning, civic discourse, direct democracy and unrelenting petitioning activity for redress of grievances, encompass both pure speech and symbolic expression entitled to constitutional protection. In considering whether symbolic expression is protected by the First Amendment, courts consider two factors: (1) the intent of those engaging in the conduct to communicate a message by their activities; and (2) the likelihood those observing the conduct will understand the message. Spence, 418 U.S. at 409-10; Univ. of Utah Students Against Apartheid, 649 F. Supp. at 1207. In Univ. of Utah Students Against Apartheid, the court found shanties were protected symbolic expression because they were functional replicas of shanties in South Africa and, thus, effectively serve as the speech itself. Id. The court noted that shanties had become symbolic of the anti-apartheid movement and it was likely observers would understand the protestors message. Id. In Abney, sleeping in a park to protest disability benefits issues was held to be symbolic speech. 534 F.2d at 985-86.

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From a constitutional standpoint, Plaintiffs expressive protest encampment in Lincoln Park is no different from those that have been accorded protection by the courts. Plaintiffs have erected tents and other structures (including a library), and keep round-the-clock vigils as an integral part of their core message. Similar assemblies have occurred around the country to convey the same message. At each, tents are symbolic of the Occupy movement. No alternative public forum exists in the City of Portland where plaintiffs may engage in symbolic expression in proximity to the government or anywhere else for that matter. In the case of the Plaintiffs, they have selected a Park in view of Portland City Hall and directly in front of the Cumberland County Courthouse. Plaintiffs know the message they convey and observers are likely to understand it. Spence, 418 U.S. at 409-10. Plaintiffs form of demonstration is protected not merely by the free speech clauses of the federal and state constitutions, but by the equally important rights of assembly and petition guaranteed thereby. Public parks are the quintessential traditional public fora, because those areas have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983) (quoting Hague v. Committee for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)). See also United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706-07, 75 L.Ed.2d 736 (1983) ([P]ublic places historically associated with the free exercise of expressive activities, such as ... parks, are considered without more, to be public forums.); Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724 (The rights of speech and petition are not confined to verbal expression and certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence); State v.

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Armen, 537 A.2d 1143, 1147-1148 (Me. 1988) (Skolnik, dissenting) (citing Brown v. Louisiana, supra, 383 U.S. at 142). OccupyMaine members have maintained a continuous assembly in a traditional public forum. Their direct and symbolic expressions in this forum concerning grave economic, political and social injustice and the possibility of a more democratic, just, and egalitarian society and form of government exemplify political speech, and fall squarely within the guarantees of freedom of speech, assembly, association and the right to petition the government protected by the First Amendment to the United States Constitution and Article I, Sections 4 and 15 of the Maine Constitution. See Shuttleworth v. City of Birmingham, 394 U.S. 147, 152 (1969) (describing privilege of citizens to assemble, parade, and discuss public questions in streets and parks); Roth v. United States, 354 U.S. 476, 484 (1957) (explaining that the broadest protection is afforded to political expression in order to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.) Likewise, there is practically universal agreement that a major purpose of the [First] Amendment was to protect the free discussion of governmental affairs. Mills v. Alabama, 384 U.S. 214, 218 (1966). As the First Circuit Court of Appeals reasoned, freedom of speech is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 11-12 (1st Cir. 2004) (quoting Cohen v. California, 403 U.S. 15, 24 (1971)). This conclusion reflects the profound national commitment to the principle that debate on public issues should

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be uninhibited, robust, and wide-open. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). As the United States Supreme Court has observed, advocacy of a politically controversial viewpoint is the essence of First Amendment expression. See e.g., Citizens United v. Fed. Election Comm'n, 130 S.Ct. 876, 892 (2010) (noting that political speech is central to the meaning and purpose of the First Amendment); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995) ([T]he advocacy of a politically controversial viewpoint is the essence of First Amendment expression.). Given the fundamental nature of the right to unrestrained political dialogue, laws burdening core political speech are viewed with extra scrutiny and may be upheld only if narrowly tailored to serve an overriding state interest. McIntyre, 514 U.S. at 347. The OccupyMaine protest falls clearly within the protection of the First Amendment. As did the students in the Univ. of Utah Students Against Apartheid (649 F. Sup. At 1204), and the protestor in Abney (534 F.2d at 985-86), the OccupyMaine protestors erected tents and keep round-the-clock vigil at the encampment by sleeping at the site. These tents and the consensusbased, non-hierarchical governance of the encampments is symbolic of the protestors message that it is possible to create a more democratic, egalitarian and economically just society. Such tent cities have been built throughout the country, including three in Maine, in order to communicate this message, and Plaintiffs are expressing their political message in a manner that the courts have consistently recognized as speech that is protected under the First Amendment. Clark v. Community for Creative Non-Violence (468 U.S. 288 (1986) does not compel a different conclusion. In Clark, the Supreme Court held that protestors trying to raise awareness about homelessness could be prohibited from camping overnight in Lafayette Park on the Washington Mall under a regulation prohibiting overnight camping on the Mall. Id. at 295-97.

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Although the Court decided that the act of camping was expressive speech, id. at 293, it ultimately concluded that the campaign prohibition was a reasonable time, place and manner restriction on that speech. Id. at 298- 99. Clark, however, is distinguishable from this case. First, and most importantly the Court in Clark found that sleeping overnight was not integral to the protestors' message since it was facilitative rather than expressive. Id. at 296. By contrast, as demonstrated by the Plaintiffs Complaint and supporting Affidavits, camping at the OccupyMaine tent city is integral to the protestors message. Second, the Court in Clark found that the regulation left open ample alternative channels for the protestors to express their message, since there were other federal parks in Washington, D.C. that allowed camping. Id. at 295. In this case, the City of Portland provides no alternate park or other public forum where OccupyMaine could maintain a continuous round-the-clock presence or establish a tent city designed to shine a bright spotlight on our countrys economic and political inequality. Lastly, unlike the National Park Service in Clark, the City of Portlands Code of ordinances provides no direct ban on sleeping or tenting in City Parks, nor any even-handed method for regulating or issuing permits regarding the same. Instead, its seeks to prohibit the Plaintiffs expressive conduct principally by enforcing its anti-loitering ordinance, which as set forth below is unconstitutional on its face and/or as applied to the Plaintiffs. Tent cities have become symbolic of the Occupy movement. OccupyMaine has hosted numerous visitors at its protest encampment in Lincoln Park, including many visitors from out-of-state. Given the publicity that the OccupyMaine movement has received statewide, the steady flow of visitors to the encampment, and the ongoing participation of members of the public in the groups daily General Assembly meetings, observers are aware of the tent city and the message that the participants seek to convey.

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The Plaintiffs in this matter have amply met the standard set out in Spence they know the message that their conduct communicates and observers of their conduct are likely to understand the message. The encampment aspect of Plaintiffs protest is therefore protected expression under the federal and state constitutions. See Spence, 418 U.S. at 409-10. See also Central Maine Power Co. v. Public Utilities Commission, 734 A.2d 1120 (Me. 1999) (with respect to free speech rights, Maine Constitution is no less restrictive than the United States Constitution). C. Plaintiffs Challenge to the Constitutionality of Key Provisions of the Citys Code of Ordinances Has a Likelihood of Success. 1. Section 18-18 of the Portland City Code is Constitutionally Overbroad because it creates a Blanket Ban on all Forms of Protected Expression, Assembly and Petitioning Activity in Public Parks During Extended Hours Every Day.

Section 18-18 of the Citys Code of Ordinances entitled Loitering in Parks bans any person, or group of people, from appearing in Lincoln Park and most other City Parks between the hours 10:00 p.m. and 6:30 a.m. and therefore prevents them from engaging in constitutionally protected speech, assembly or petitioning activities for extended hours every day. The ordinance specifically provides as follows: Sec. 18-18. Loitering in Parks. Except as provided below for Tommys Park and Post Office Park, no person shall stop, loiter, be or remain in any of the parks of the city or in any of the paths, drives, streets, boulevards or roadways of the parks between the hours of 10:00 p.m. and 6:30 a.m. of the day immediately following, except for the purpose of traveling across or through such parks; nor shall any person park an automobile and remain therein between the hours of 10:00 p.m. and 6:30 a.m. of the day immediately following on any of the drives, streets, boulevards, promenades or roadways within the parks of the city, unless said person or persons has the prior written authorization of the city manager to be in said park or parks or their drives, streets, boulevards, promenades or roadways during the aforementioned hours.

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No person shall stop, loiter, be or remain in Tommys Park or Post Office Park or in any of the paths of these two parks between the hours of 1 a.m. and 6:30 a.m. on any given day, except for the purpose of traveling across or through such parks. No public park in Portland is available on a 24-hour basis for constitutionally protected activity including a continuous vigil. Under Section 18-18, the Portland City Manager is granted unbridled and unregulated discretion to grant or deny written permission to specific groups or individuals to remain in Parks past the designated closing times. Portlands City Code provides no exception for any individuals or groups of citizens to use public parks after 10:00 p.m. and before 6:30 a.m. for expressive conduct. The City of Portland has therefore created a scheme where it is impossible for any person to participate in any protest, vigil, or political rally located within a public park during certain hours. This ordinance enacts restrictions on core political speech by enacting an outright ban on expressive conduct within public parks within the City the quintessential public forum. [The] venerable tradition of the park as public forum has-as suggested by the attendant image of the speaker on a soapbox-a very practical side to it as well: parks provide a free forum for those who cannot afford newspaper advertisements, television infomercials, or billboards. Grossman v. City of Portland, 33 F.3d 1200, 1205 (9th Cir. 1994). The fundamental difference between this and other similar ordinances regulating the use of public parks at night is that this ordinance applies the same approach to loiterers as to those who wish to engage in assembly, speech, petitioning and/or protest vigils. The ordinance does not allow any person or group of people to engage in constitutionally protected speech in public park after hours or seek a permit therefor. Instead of limiting its reach to conduct which is loud, bright, boisterous, unsafe, or detrimental to surrounding neighbors, the ordinance prohibits all expressive conduct, political speech and other constitutionally protected activity.

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A law is overbroad under the First Amendment if it reaches a substantial number of impermissible applications relative to the laws legitimate sweep. New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The overbreadth doctrine prevents the government from casting a net so wide that its regulation impermissibly burdens speech. Schultz v. City of Cumberland, 228 F.3d 831, 848 (7th Cir. 2000). Overbreadth analysis, therefore, requires that cognizable applications of a statute be considered. Hoffman Estates v. Flipside Hoffman Estates, 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). If a realistic danger exists that the statute will significantly compromise recognized First Amendment protections of parties not before a court, Taxpayers for Vincent, 104 S.Ct. at 2126 (citing Erznozik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125) (emphasis added), it must be declared unconstitutionally overbroad. First, to establish a point of reference, compare this intrusion on First Amendment rights to Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296, 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 (1984), where the Supreme Court upheld a ban on camping in public parks. In that case, demonstrators sought to engage in a round-the-clock protest in a public place, and planned to sleep in a public park to express the plight of the homeless. Id. at 293. However, unlike the present case, the demonstrators were permitted to use the park overnight, and were permitted to erect temporary structures. The issue presented in the case was solely whether a ban on camping in a public park could be enforced. The issue here is whether a complete ban on speech, assembly and petitioning conduct between the hours of 10:00 p.m. and 6:30 a.m. can be enforced. Other courts have invalidated bans on expression within public parks as overbroad where the prohibited conduct was far narrower than the present case. For example, in Reeves v.

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McConn, 631 F.2d 377 (5th Cir. 1980), the court held that an ordinance prohibiting all sound amplification in downtown business district except for certain hours on Sunday was overbroad restriction of protected First Amendment rights. Moreover, a prohibition on all sound amplification within 100 yards of schools, courthouses and churches was void for unconstitutional overbreadth. Likewise, in Nash v. State of Tex., 632 F. Supp. 951 (E.D. Tex. 1986) aff'd in part, rev'd in part sub nom. Nash v. Chandler, 848 F.2d 567 (5th Cir. 1988), the Fifth Circuit held that a section of a mass picketing statute, which made it illegal for more than two pickets to be within 50 feet of any entrance or of each other at same time, was unconstitutionally broad. See also Clean Up '84 v. Heinrich, 759 F.2d 1511 (11th Cir. 1985) (prohibiting the solicitation of signatures on petitions within 100 yards of a polling place on election day is unconstitutionally overbroad on its face). See also Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S. Ct. 1686, 1689, 29 L. Ed. 2d 214 (1971)(invalidating an ordinance that made it a crime for three or more people to gather on a public sidewalk and engage in annoying behavior). Further evidence of its overbreadth is that Section 18-18 of the Portland City Code contains no exception or allowance for spontaneous political protests that arise during certain hours of each day. The Supreme Court has long condemned permitting schemes that fail to make allowance for such speech. See e.g. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 (1969)(timing is of the essence in politics . . . and when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all.). See also Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 692 (7th Cit. 2003); Douglas v. Brownell, 88 F.3d 1511 (8th Cir. 1996).

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A city may not make criminal the peaceful expression of unpopular views . . . unless shown likely to produce a clear and present danger of serious substantive evil that arises far above public inconvenience, annoyance, or unrest. Terminiello v. Chicago, 347 U.S. 1, 4-5 (1949). The law here bans speech and assembly and does so without regard to any dangers presented or substantive evil that could arise. Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position[.] R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring in judgment). Moreover, public fora have achieved a special status in our law; the government must bear an extraordinarily heavy burden to regulate speech in such locales. NAACP v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir.1984). Here, the City enacted outright ban on any conduct during certain hours of each day. There are no exceptions to this rule. There is not a single party, before this Court or otherwise, who is immune from its reach. A finding of overbreadth invalidates all enforcement of a challenged law, unless it can be saved by a limiting construction. Virginia v. Hicks, 539 U.S. 113, 11819, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). No limiting construction is possible here because the ordinance enacts a blanket ban on entering a public park during certain hours and no reasonable reading of the ordinance would countenance any legitimate political demonstration, meetings, protests, vigils, or other protected expression. 2. Section 18-18 is an Unconstitutional Prior Restraint Because it is Not Narrowly Tailored to Serve a Governmental Interest and Does not Leave Open Alternative Channels of Communication. a. Prior Restraints are Presumptively Unconstitutional

Prior restraints are presumptively unconstitutional and face strict scrutiny. Church of Scientology Flag Serv. v. City of Clearwater, 2 F.3d 1514, 154748 (11th Cir.1993).

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Nevertheless, a prior restraint may be approved if it constitutes a time, place, and manner restriction. Those restrictions are valid if: (1) they are justified without reference to the content of the regulated speech; (2) they are narrowly tailored to serve a significant or substantial government interest; and (3) they leave open ample alternative channels of communication. Phillips v. Borough of Keyport, 107 F.3d 164, 172 (3rd Cir. 1997). Although prior restraints are not per se unconstitutional, there is a strong presumption against their constitutionality. See FW/PBS V. CITY OF DALLAS, 493 U. S. 215, 225 (1990) (O'Connor, J.) (plurality decision), citing Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 562 (1975). The Supreme Court has held that any prior restraint on speech must include procedural safeguards. Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965). The Supreme Court has been critical of those regulations that target much more than is necessary, stating that [i]n order to be narrowly tailored, the regulations must target[ ] and eliminate[ ] no more than the exact source of the 'evil' [they] seek to remedy. Boardley v. U.S. Dep't of Interior, 615 F.3d 508, 520-523 (D.C. Cir. 2010) (striking down a National Park Service regulation requiring a permit for free speech activities in park's free speech zone), citing Frisby, et. al. v. Schultz, et. al, 487 U.S. 474, 485 (1988). Boardley is especially instructive: [Boardley's] argument draws considerable support from this and other circuits. The Sixth Circuit, for instance, has found that "[p]ermit schemes and advance notice requirements that potentially apply to small groups are nearly always overly broad and lack narrow tailoring." Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down licensing scheme for public parades because the city's "significant interest in crowd and traffic control, property maintenance, and protection of the public welfare is not advanced by the application of the [o]rdinance to small groups"). Boardley, 615 F.3d at 523.

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The Fourth Circuit reached the same conclusion in Cox v. City of Charleston, where a lone protestor challenged an ordinance barring any person from participating in any parade, meeting, exhibition, assembly or procession . . . on the streets or sidewalks of the city without a permit. 416 F.3d 281, 283 (4th Cir. 2005) (internal quotation marks omitted). The court held that the application of the [o]rdinance to groups as small as two or three renders it constitutionally infirm because the city failed to establish[] why burdening such expression is necessary to facilitate its interest in keeping its streets and sidewalks safe, orderly, and accessible. Id. at 28586. The Ninth Circuit relied on similar grounds in striking down an ordinance requiring street performers at a public park to obtain permits before performing. See Berger v. City of Seattle, 569 F.3d 1029, 1035 (9th Cir. 2009) (en banc). Lastly, a valid time, place and manner regulation must leave open ample alternatives for communication. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992). Moreover, these alternatives must exist within the forum in question. Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1310 (quoting Heffron v. Soc'y for Krishna Consciousness, 452 U.S. 640, 655 (1981)). Given the nature of the OccupyMaine protest, where the tent city is not only an integral part of their message, but is their message, it is clear that there is no other public forum is available in Portland that would allow the OccupyMaine participants to express their particular message, which includes not only speech but symbolic conduct. The tent city is an integral, and necessary, part of the message. As the Supreme Court stated in Reno v. ACLU, [O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. Reno v. ACLU, 521 U.S. 844, 880, 117 S.Ct. 2329 (1997).

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Likewise, this Court should declare that OccupyMaine is engaged in both pure and symbolic speech, protected by the First Amendment and Article I to the Maine Constitution, and has the right to continue its around-the-clock protest encampment in Lincoln Park. b. Section 18-18 of Portlands City Code is Not Narrowly Tailored to Serve a Substantial Government Interest.

The Eleventh Circuit has previously noted that a city has a significant interest in regulating the use of its parks and streets by large groups. Certainly, the City needs advance notice and the cooperation of organizers to plan the services, such as security, sanitation, and traffic control, that are required for an event which, like the Pot Festival, attracts approximately 30,000 participants. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1318 (11th Cir. 2000). However, this case does not deal with large groups of 30,000 participants, obstruction of streets, or possible destruction of property. Instead, this case deals with an ordinance that bans the use of public parks between certain hours by any individual or group of persons, regardless of its size, no matter what their purpose or message. In this case, the only legitimate governmental interest the City can advance is its duty to keep their communities streets open and available for the movement of people and property, the primary purpose to which the streets are dedicated. Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). Portlands ordinance is not narrowly tailored to meet that goal. Courts have ruled curfews on being in a public place are unconstitutional and not narrowly tailored under the First Amendment where those curfews have abridged First Amendment freedoms. For example, Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997), dealt with an ordinance that made it unlawful for any minor under the age of eighteen (18) years, to loiter, idle, wander, stroll or play in or upon the public streets, highways,

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roads, alleys, parks, playgrounds, wharves, docks, or other public grounds, public places and public buildings, places of amusement and entertainment, vacant lots or other unsupervised places, between the hours of ten o'clock p.m. and daylight immediately following. The Ninth Circuit found this law was unconstitutional and noted that the curfew restricted access to public forums and prohibit[ed] conduct that is a necessary precursor to most public expression. Id. at 950. Because the ordinance did not contain an exception for expressive association it was not a reasonable time, place, and manner restriction. Id. at 951. Likewise, in Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1064 (7th Cir. 2004), a curfew banned minors from being in a public place between the hours of 1 a.m. and 5 a.m. on the weekends and between 11 a.m. and 5 a.m. during the week. Id. at 1051. The ordinance allowed for an affirmative defense and provided that it would not be illegal to break curfew for activity involving the exercise of the child's rights protected under the First Amendment to the United States Constitution or Article 1, Section 31 of the Constitution of the State of Indiana, or both, such as freedom of speech and the right of assembly. The Seventh Circuit held the curfew law was invalid in spite of the First Amendment affirmative defense. [The curfew] protects only those minors whom the officer has actually seen participating in protected activity. This strikes us as a small subset of minors participating in late-night First Amendment activities, and therefore we conclude that the statute reaches a substantial amount of protected conduct. Id. at 1062. Moreover, the court noted that the late hour is closely linked with the purpose and message of the activity and the risk of inhibiting minors from participating in late-night protest was unconstitutional. Id. See also Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) cert. denied, 130 S. Ct. 1569, 176 L. Ed. 2d 110 (2010) (failure to allow for special events in public parks not narrowly tailored); Berger v. City of Seattle, 569

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F.3d 1029 (9th Cir. 2009) (rule requiring street performers to obtain permits before performing in city's public park violated First Amendment was not narrowly tailored). The above curfew cases illustrate that late-night curfews that curtail First Amendment freedoms must be narrowly tailored, and the fact that the only certain hours of the day are deemed off limits is insubstantial in First Amendment analysis. Moreover, those cases only deal only with infringing on the rights of citizens under the eighteen to engage in protected expression during certain hours; the present case infringes the rights of all citizens. Returning to the facts of this case, there is no governmental interest in an outright prohibition on political protest in public park between 10:00 p.m. and 6:30 a.m. Any concerns over loitering, noise violations, or vagrancy can be enforced with the City's existing criminal laws or by enacting a permitting scheme to guard against any illegal use. Regardless of how the City might govern conduct, an outright ban on multiple day and late night protests is not an inevitable consequence of advancing the City's interests in maintaining public parks and surrounding areas. Cf. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1319 (11th Cir. 2000) (ordinance providing that [n]othing in this article shall be construed to prevent members of the public from assembling in the parks or streets for the purpose of making any speech or conveying any message to the public or to the government without holding an outdoor festival permit was constitutional). c. Section 18-18 Does Not Allow Alternative Channels of Communication and Deprives Citizens the Right to Engage in Late-Night or Overnight Protest in the City.

The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it. Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 790-91, 108 S.Ct. 2667, 2674, 101 L.Ed.2d 669 (1988). [O]ne is not to

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have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. Schneider v. State of New Jersey, 308 U.S. 147, 151-52 (1939). See also Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981). By removing every City park as a possible location for late-night protest, the City has effectively denied its citizens any alternative location to express a protest or political message between the hours of 10:00 p.m. and 6:30 a.m. (with the exception of two parks where such conduct is prohibited during the hours of 1:00 a.m. and 6:30 a.m. Streets do not provide an adequate alternative, and any congregation of people would be subject to criminal prosecution for blocking a public right-of-way. Although an adequate alternative for expression does not have to be the speaker's best or first choice, it must provide the speaker with sufficiently adequate alternatives. Weinberg v. City of Chicago, 310 F.3d 1029, 1041 (7th Cir.2002), cert. denied, 540 U.S. 817, 124 S.Ct. 78, 157 L.Ed.2d 34 (2003). See also Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1064 (7th Cir. 2004) (holding no alternative channels remained open when minors were banned from engaging in First Amendment expression during late-night hours). 3. The Provisions of Sections 18-18 and 18-41 Requiring Advance Permission from City Officials Before Citizens May Exercise Engage in Non-Commercial Speech, Assembly and Petitioning Activity in Public Parks Constitute Unconstitutional Prior Restraints on Such Activity.

On October 3, The City of Portland through its City Manager Mayor Reed issued verbal permission to allow the OccupyMaine protesters to remain in Lincoln Park between 10:00 p.m. and 6:30 a.m. and to erect tents there to maintain their continuous form of protest. On or about November 21, 2011, the City notified OccupyMaine that it must seek and obtain permission from the Portland City Council pursuant to Section 18-41 of the Code to continue their peaceable

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protest and assembly in Lincoln Park. Prior restraints that regulate speech and expression by requiring a party to obtain a permit before engaging in protected expression must limit the amount of discretion exercised by government officials. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969). An ordinance that gives public officials the power to decide whether to permit expressive activity must contain precise and objective criteria on which they must make their decisions; an ordinance that gives too much discretion to public officials is invalid. Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999). Cases show that virtually any amount of discretion beyond the merely ministerial is suspect. Standards must be precise and objective. Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1547-48 (11th Cir.1993)(labeling city clerk's duty to obtain information from applicants for solicitation licenses purely ministerial). See also Forsyth County v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). In the current case, OccupyMaine was subjected to what amounted to a discretionary political process to determine whether they could continue its protest encampment in Lincoln Park. That process which ultimately resulted in the denial of the groups petition was guided, administered and determined less by any set of precise or neutrally administrable standards, and more by politicians who sought to respond to public pressure particularly from the private business establishment in Portland who viewed the protest as a blight on Portlands landscape. In this context, OccupyMaine continuous efforts to address the public safety and other concerns raised by the City both through its actions and its repeated responses to shifting City concerns were entirely unavailing and irrelevant, leading the groups Amended Petition to be denied on an up-or-down basis. In the end, the Councils decision was based on the whims and political

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considerations of its elected leaders unwilling to waiver from its strict enforcement of the antiloitering ordinance challenged herein by the Plaintiffs on constitutional grounds, rather than on the Councils neutral or careful application of any standards governing its permitting authority under Section 18-41 of the City Code. 3 The United States Supreme Court has consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places. Kunz v. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 315, 95 L.Ed. 280. In other words, [a] municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question on the welfare, decency, or morals' of the community. Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 153, 89 S. Ct. 935, 940, 22 L. Ed. 2D 162 (1969). When a government official decides that certain expressive activity will lead others to break the law as City of Portland Officials have continuously maintained in this case he is making a contentbased decision. Bourgeois v. Peters, 387 F.3d 1303, 1315 (11th Cir. 2004) (citing Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992)). Public safety considerations of the kind expressed by Defendant City of Portland as a basis for denying OccupyMaines petition are particularly suspect under the Constitution as applied to citizens seeking to engage in constitutionally protected expression and assembly. See,
The City may have been guided by the conclusion that continuous events lasting more than three (3) consecutive days are simply not allowed in City parks under its Code of Ordinances, or that it could not reasonably grant permission for such events. Section 18-41, which makes the City Council the exclusive permitting authority for such events, suggests otherwise. If the City concludes that its Code effectively prevents citizens from engaging in or otherwise obtaining permission for extended use of City Parks even for the purpose of First Amendment activity, such an interpretation is constitutionally suspect. See, e.g., Quaker Action Group v. Morton, 516 F.2d 717, 734- 737 (D.C. Cir. 1975) (striking down a per se limit of demonstrations to no more than seven consecutive days, the court held that the government was instead required to consider reasonable permitting regulations addressing any concerns arising from the length of a given protest, including a requirement that the petitioner be subject to displacement if another petitioner seek a similar permit precluding double occupancy.)
3

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e.g. Sellers v. Johnson, 163 F.3d 877, 881 (8th Cir. 1947). Rejecting public safety concerns voiced by the Town of Lacona, Iowa in denying a petition by Jehovahs witnesses to hold meetings and preach their religion in the town park, the Eighth Circuit Court of Appeals held as follows: The theory that a group of individuals may be deprived of their constitutional rights of assembly, speech and worship if they have become so unpopular with, or offensive to, the people of a community that their presence in a public park . . . is likely to result in riot and bloodshed, is interesting but somewhat difficult to accept. Under such a doctrine, unpopular political, racial, and religious groups might find themselves virtually inarticulate. Certainly the fundamental rights to assemble, to speak, and to worship cannot be abridged merely because persons threaten to stage a riot or because peace officers believe or are afraid that breaches of the peace will occur if the rights are exercised. See, e.g. Sellers v. Johnson, 163 F.3d 877, 881 (8th Cir. 1947). The Eight Circuit was guided in part by an amicus brief submitted the American Bar Associations Committee on the Bill of Rights of in the case of Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), stating as follows on the subject of anticipated disorder as a basis for the abridgment of constitutional rights (pages 679, 680 of 307 U.S.): It is natural that threats of trouble should often accompany meetings on controversial questions. But meetings may not be suppressed on that account. The practice under ordinary conditions in our large cities is for the authorities to arrange with the applicants to have the meeting held in a suitable place, and to have enough policemen on hand to quell apprehended disturbances. The real question at issue is whether any threat of disorder, even though only by opponents of the speakers, excuses denial of permits. If so, the right of free assembly will have become a mockery. The right would thus be subject to destruction by an arbitrary official decision, notwithstanding that the Bill of Rights was intended to protect citizens from arbitrary action of that very character. To secure the rights of free speech and assembly against abridgment, it is essential not to yield to threats of disorder. Otherwise these rights of the people to meet and of speakers to address the citizens so gathered, could not merely be abridged but could be destroyed by the action of a small minority of persons hostile to the speaker or to the views he would be likely to express.'

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As noted by the Eight Circuit in Sellers, the Supreme Court held in Hague that uncontrolled official suppression of the privilege of free speech cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. Sellers, supra, 163 F.3d at 881 (citing Hague, 307 U.S.at page 516, 59 St.Ct.at page 964, 83 L.Ed. 1423). In Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927), Justice Brandeis, in his concurring opinion joined by Justice Holmes, stated as follows: The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. 274 U.S.at page 378, 47 S.Ct.at page 649, 71 L.Ed. 1095. The City Managers decision on October 3, 2011 to allow OccupyMaine to assemble and demonstrate in Lincoln Park on a 24-hour basis constituted a license to engage in constitutionally protected expression. By revoking the license on December 7, 2011, the City of Portland did not act pursuant to any established standards for issuing a permit. The fact that the City initially gave permission to operate pursuant to what amounted to an executive order, rather than adopting an ordinance or granting a written permit, should not divest Plaintiffs of their rights to engage in constitutionally-protected speech or seek written permission for such conduct under a well-articulated standards immune from the political whims of City officials or its elected officials. D. The Constitutional Challenge to the Denial of OccupyMaines Amended Petition Has A Likelihood of Success on the Merits.

Count IV challenges the denial of OccupyMaines Amended Petition by the City Council on December 7, 2011, as a violation of the Plaintiffs constitutional rights under color of law in

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violation of 5 M.R.S.A. 4682, with respect to which Plaintiffs seek both declaratory and injunctive relief, as well as reasonable attorneys fees and costs. Count IV is based on: (1) the Citys strict application of an anti-loitering ordinance that is unconstitutional on its face or as applied to the Plaintiffs; (2) the Citys application to the Plaintiffs of a constitutionally violative discretionary process established by Code Sections 18-18 and 18-41 that purport to require advance governmental permission for First Amendment use of a City Park property after hours or for more than three consecutive days; and (3) the Citys content-based denial of OccupyMaines Amended Petition based on the expressive political nature of the activity and its admitted lack of commercial or monetary value for a City that regularly bends its ordinances to allow for commercial use of public spaces and large development projects. With respect to the first and second bases recited above, Plaintiffs have amply demonstrated their likelihood of success on the merits in Sections III(A), (B) and (C) hereof. With respect to the third basis cited herein, Plaintiffs do not dispute the highly factual nature of the inquiry required with respect to the merits of that claim, as it relates not to a content-based provision of the code but rather a content-based denial of OccupyMaines petition. Contentbased decisions and regulations with respect to expressive conduct presumptively violate the free speech clause of the federal and state constitutions. See Association of Independent Professionals v. MLRB, et al., 465 A.2d 401, 409 (Me. 1983). Notwithstanding the factintensive nature of an inquiry in this case, with the opportunity for an adequate evidentiary and testimonial hearing on this Motion, evidence can be adduced in addition to the existing record demonstrating the Citys differential treatment of OccupyMaine as compared with commercial interests that regularly seek and obtain waiver, variances and zoning changes from the City of Portland for use of public spaces and/or the promotion of large development project with

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financial benefits for the City. 4 Based on the rigid and inflexible treatment its Petition received from the Portland City Council and the majority sentiment that no variance of the code would be forthcoming to accommodate their political protest unless ordered by a judge Plaintiffs cannot help but believe that they suffer in part from the distinct absence of any commercial purpose pleasing to Portlands powerful business community or its elected officials concerned about City revenues. Although Plaintiffs maintain a store for non-food items at its protest encampment, it is a Free Store available at no cost to protestors and members who may be struggling to meet the basic necessities of life. Members of the public reminded the City Council of the 2.8 million dollar tax break it extended to Portland largest law firm and other accommodations regularly bestowed to facilitate commercial development and promotional use of public spaces, and pled with the Council to recognize the arguably less tangible but perhaps more valuable public good associated with the activities of the civic-minded members of OccupyMaine sustained through its community protest encampment. In the face of such pleas, the Council as a whole was unmoved. The City Councils shabby treatment of OccupyMaine and its petition makes a compelling albeit largely circumstantial case that its decision was based on the content of the groups activity and its non-commercial, indeed, anti-commercial message broadcast so loudly throughout its 80-day protest. IV. THE PUBLIC INTEREST WOULD NOT BE ADVERSELY AFFECTED BY THE GRANTING OF THE PRELIMINARY INJUNCTION. [T]he public interest is always served when constitutional rights, especially free speech rights, are vindicated. University Books & Videos, Inc. v. Metropolitan Date County, 33 F.Supp.2d 1364, 1374 (S.D. Fla. 1999). There is no public interest in enforcing an
4

Plaintiffs have requested in writing herewith an evidentiary and testimonial hearing on the pending Motion.

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unconstitutional ordinance or otherwise infringing upon constitutionally protected liberties. Florida Businessmen for Free Enter. v. City of Hollywood, 648 F.2d 956, 959 (5th Cir. 1981). Nothing in the relief sought by Plaintiff will prevent the City from enforcing laws against property damage, excessive noise, or other unlawful use of Lincoln Park. No third party will be harmed by the City allowing peaceful late-night and multi-day protests to occur in Lincoln Park. The free exchange of ideas in Lincoln Park is in the public's interest. [P]ublic places historically associated with the free exercise of expressive activities, such as ... parks, are considered without more, to be public forums." United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. (1983). Enjoining the City of Portland from unduly and unfairly burdening the noncommercial exercise of free expression, association, assembly and petitioning of government in Lincoln Park is in the public interest. CONCLUSION For the foregoing reasons, and any others this Court deems sound and just, Plaintiffs respectfully request that this Court issue a preliminary injunction enjoining and otherwise prohibiting the City of Portland, together with its officers, officials, agents, servants, employees and attorneys, from: (1) enforcing against the Plaintiffs Section 18-18 and 18-41 of its Code of Ordinances, which enacts a blanket prohibition all speech and conduct in a public park between the hours of 10:00 p.m. and 6:30 a.m. and places an unconstitutional prior restraint on any constitutionally protected activity expected to involve twenty five or more persons or last for more than three consecutive days; (2) undertaking any actions to enforce or otherwise give effect to the denial of OccupyMaines Amended Petition in plain violation of the Plaintiffs rights of non-commercial expression, assembly and petitioning under the United States and Maine Constitutions; (3) undertaking any actions to remove from Lincoln Park the individual Plaintiffs

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