Judge Rules for Free Speech

From the Register Guard

By Greg Bolt

The Register-Guard



SLEEPS protestors Peter Grotticelli (left) and Bethany Clement walk their tents down Sixth Avenue in Eugene from their campsite near the Ferry Street Bridge to the Wayne Morse Free Speech Plaza at the Lane County Courthouse after being evicted by Eugene Police. (Chris Pietsch/The Register-Guard)

Lane County is 0-for-2 in its efforts to control the use of a public plaza after a judge on Thursday threw out trespassing citations issued to 21 protesters earlier this year, again saying the action violated their free speech rights.

It’s the second time in a week that the county’s actions against protesters in the Wayne Morse Free Speech Plaza have been found to violate the state and federal constitutions. Last week, the same judge dismissed a trespassing charge against a single protester who remained in the plaza after the county said it had to be closed for cleaning.

Eugene attorney Lauren Regan, executive director of the Civil Liberties Defense Center, said the two rulings show that government must tread lightly when it comes to rules that put any kind of burden on the rights of people to assemble and speak out.

“Our intentions in bringing this case before the court in this way was to have a court rule on what our constitutional rights are at this very public forum in this community,” she said. “We will continue to zealously advocate on behalf of our community’s First Amendment right to exercise free speech and to protest.”

Anne Marie Levis, a spokeswoman for Lane County, said county officials hadn’t had a chance to review the ruling Thursday and couldn’t yet comment on it. But she said the curfew rule that sparked the protest is likely to come up for discussion by county commissioners at a future meeting, possibly in two weeks.

Some protesters returned to the Morse Plaza Thursday night, both to continue a protest over the rights of homeless people and to celebrate the court ruling. The group moved to the plaza from a site under the Ferry Street Bridge next to East Sixth Avenue, where they had been camping to protest police treatment of homeless people.

“We’re exercising our rights to freedom of speech and that was our goal, to protest for the homeless for safe places to sleep,” said James Chastain, a protester who was helping to erect tents at the plaza early Thursday evening.

Thursday’s court ruling centered on a county-imposed curfew on the Morse plaza that closes the public space from 11 p.m. to 6 a.m. In January, a group of activists defied the curfew in a protest over free speech rights and the county asked Eugene police to cite them for trespassing, charges that were then challenged in court.

Attorneys for the protesters asked Eugene Municipal Court Judge Karen Stenard to dismiss the citations, saying the curfew does not pass constitutional muster. In her ruling issued Thursday, Stenard did not strike down the curfew itself but agreed that the citations were unconstitutional.

Stenard said she empathized with the county’s challenges in maintaining its facilities with a limited budget and its claim that the curfew was not aimed at stifling speech but keeping the plaza safe and clean.

“Nonetheless, enforcement of a curfew which closes the very area that the county designated ‘Free Speech Plaza’ (much of which is barely distinguishable from a sidewalk) for a third of every day significantly limited defendants’ rights to speech and assembly, regardless of the curfew’s intent,” the judge wrote in her decision.

Even under the least stringent analysis of the case, “the curfew does not withstand constitutional scrutiny,” Stenard wrote.

Regan said she is willing to work with county officials to rewrite the curfew rule in a way that doesn’t infringe on people’s legal rights. She said that would be cheaper for the county than facing another lawsuit in state or federal court asking that the rule itself be revoked.

Stenard stopped short of saying that the curfew rule itself was unconstitutional, limiting her ruling only to the 21 citations issued in this particular case. She suggested that a city judge might not have jurisdiction to rule on the constitutionality of what is essentially an internal county rule.

But given the judge’s analysis, it’s unlikely anyone else brought before her for violating the curfew under similar circumstances would be convicted. Regan said that essentially makes the rule unenforceable, and she called on the county to change it.

“If there is common sense among any of our county officials, they will sit down with us and figure out a way to resolve this situation in a way that protects the constitutional rights of all our community members,” she said.

The curfew was added to the county’s administrative procedures manual by former county administrator Liane Richardson, who has since been fired over alleged improprieties in how she was paid. She made the change in December after she shut down a protest, claiming she had smelled human feces in a planter and needed to have the plaza cleaned, an argument that Stenard also rejected as unconstitutional in her earlier ruling.

Although the curfew rule allows people to apply to use the plaza at night, Regan said the county did not have any clear procedures or application form for requesting an exception and no clear criteria for deciding whether to grant such requests. One protester testified that she tried to get a permit to use the plaza at night but was told she didn’t need one and that county employees seemed unaware of any process for granting one.

Stenard said she found that testimony troubling and indicated it weighed in her finding that curfew citations were unconstitutional.

“Any permitting or exception process should be so transparent and accessible that all government staff involved in the process are well aware of it, can explain it to the public and laypersons can navigate the requirements,” she wrote. “The curfew imposed by the administrative procedures manual is unconstitutional as applied to the defendants.”

Reporter Samuel Stites contributed to this report.

“We’re exercising our rights to freedom of speech, and that was our goal.”

— James Chastain, protester

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