On Friday January 24, Judge Forrest Bridges heard Occupy Charlotte’s motion for a temporary restraining order seeking to enjoin the city’s enforcement of the anti-camping provision of Chapter 15, Section 15-26 — one of the so-called “DNC Ordinances.” Ken Davies argued on behalf of Occupy Charlotte while City Attorney Bob Hagemann along with Charlotte-Mecklenburg Police Attorney Mark Newbold represented the City of Charlotte.
Davies opened by pointing out that the Ordinance unconstitutionally infringes on the rights of free speech and assembly under the North Carolina Constitution and effectively eradicated symbolic protest on a site traditionally recognized as a public forum. Davies asserted the City passed and selectively enforced the anti-camping ordinance in order to quash Occupy Charlotte’s political speech. Occupy Charlotte then fleshed out both procedural and substantive arguments to support their requested relief.
Davies argued that the process city council followed to enact the Ordinance was “fundamentally flawed.” Specifically, the City allowed one public comment period regarding the Ordinance then made substantial changes to the Ordinance. After it made these changes, City Council prohibited anyone opposed to the Ordinance from speaking at their meeting, while several police officials were permitted to speak at great length in support. Clinic member Isaac Sturgill was instrumental in developing and researching this theory. Included below is a link to the Memo in Support of Procedural Claims which makes for an interesting read concerning how the government may restrict free speech in various types of arenas.
In reply, the City argued that there is no constitutional right to address City Council and that there is no legal requirement to hold a public comment period on police power ordinances such as these. Mr. Hagemann further stated that it is “preposterous” to argue that every time a city official is allowed to speak on an issue that those on the other side should be allowed to speak as well. Even if the procedure was flawed, the City contends that it does not provide valid grounds to invalidate the Ordinance.
Davies contends, and case law supports, that tents are a form of symbolic speech and therefore may only be restricted if the regulation is supported by a compelling government interest. This is the strictest form of scrutiny under constitutional law. The City believes that it has several compelling interests in restricting Occupy Charlotte’s right to speak including aesthetics, preservation of a public space, public health, and preventing exclusion of other members of the public from a public space.
Addressing the first and second alleged interests, Davies posed the rhetorical question of whether we are willing to allow free speech to be trumped by aesthetics. The City responded by identifying the brown patches in the lawn resulting from Occupy Charlotte’s prolonged presence on the site.
Regarding public health, the City contended that Occupy Charlotte members were using a storm drain as a toilet. In response Davies pointed out that the City’s own testing was inconclusive. Davies went on to note that Occupy Charlotte had tried months earlier to obtain portable toilets for use near the demonstration site. By frustrating these efforts, Davies said, the City “has done everything possible to make this as uncomfortable as possible” for the Occupiers.
Finally, the City argued that Occupy Charlotte should not be allowed to camp on the Old City Hall Lawn because it would exclude others from using public property. The City introduced no evidence to support this and the court did not explore this issue in great detail. However, Clinic members learned through their work that Occupy Charlotte never excluded anyone from the property.
In conclusion, Davies drew the court’s attention to North Carolina’s Constitution itself. The North Carolina Constitution provides higher protection for free speech than even the Constitution of the United States. Article I, Section 14 of the North Carolina Constitution powerfully reads “freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.” In fact, so greatly did North Carolina value these rights, it refused to ratify the US Constitution until a Bill of Rights was added. In Ken Davies words, the Occupiers are “true patriots trying to affect their government.” Their right to speak should not be restrained lightly.
Judge Bridges decided to take the weekend to consider the motion.
We’ll update you with the court’s decision and more documents as they become available. Here are the documents that are currently available, several of which were entirely or partially prepared by Clinic members:
Take a look at the WCNC article and the Charlotte Observer article for more information.
Tell Us What You Think: Do the government interests the City has asserted justify the restrictions placed on Occupy Charlotte and free speech?
– By: Evan Carney