Mumia Abu Jamal: A Lesson in Murder, Race, Police Brutality, Political Dissent and a Commencement Speech in Vermont

March 5, 2015

By: Carla Vestal

Mumia Abu Jamal, described by the New York Times as “perhaps the world’s most famous death row inmate” was convicted of killing Philadelphia police officer, Daniel Faulkner in 1981. He was sentenced to death for the crime, and spent the next thirty years living in isolation on Death Row. The latter ten of those thirty years, he spent isolated on Death Row even though a Federal Court judge overturned his death sentence in 2001. Currently, Mumia is still in prison under a life without parole sentence, and living in general population. So, why is this convicted cop killer giving a graduation speech via a pre-recorded phone call to a class from a Vermont college?

Philadelphia, 1981

Philadelphia during the early 1980’s was a city plagued with racial tensions. Just two years before the death of Officer Faulkner, the United States Department of Justice had filed a federal lawsuit against the city’s mayor, Frank Rizzo, and other city officials for condoning police brutality. The suit claimed that in the years 1975-1979, 290 persons had been shot by the Philadelphia police force. During Rizzo’s tenure as mayor, fatal shootings by the police department had increased annually by 20 percent. When Rizzo left office in 1980, fatal shootings decreased by 67 percent. The Pennsylvania House of Representatives Sub-Committee on Crime and Corrections found that the police force lacked internal leadership and that cops frequently engaged in acts of “lawlessness.”[1] [2]

During this time in the city, there was a growing political movement called MOVE. MOVE is described by CNN as a “a loose-knit, mostly black group whose members all adopted the surname Africa, advocated a ‘back-to-nature’ lifestyle and preached against technology.” In 1978, the police began a siege of a house that was occupied by MOVE members. Although it remains disputed who fired the first shot, a Philadelphia police officer was fatally wounded during the hostilities. As television cameras filmed the members of MOVE surrendering to police, the cameras also caught an officer striking the leader of the MOVE political group, Delbert Africa, in the head with the butt of his shotgun as he dragged his body through the street while other officers repeatedly kicked him. The very next day officers had the house bulldozed; completely destroying the crime scene. MOVE members that surrendered to the police that day were charged with third-degree murder, conspiracy, and aggravated assault; all were found guilty and sentenced from thirty to 100 years in prison.[3]

The Shooting

Mumia, born Wesley Cook, was active within the MOVE organization. In his youth, he was involved with the Black Panther party until 1970. It was at this time, when he was a fifteen year old high school student, that he was put under surveillance as part of the FBI’s Counterintelligence Program, COINTELPRO. This program was operated in conjunction and with the cooperation of the Philadelphia police department.   Later in his life, Mumia was a popular radio journalist. He was also the President of the Philadelphia Association of Black Journalists. Often his stories were critical of the police department and other city leaders. At the time of his arrest for the murder of Officer Faulkner, he also drove a cab to earn extra money.

Photo courtesy of National Lawyers Guild.

Photo courtesy of National Lawyers Guild.

At almost 4:00 a.m. on the morning of December 9, 1981, Officer Faulkner stopped a car driven by Mumia’s brother, William Cook, and a passenger nicknamed, “Poppi”.[4] A struggle was occurring between Cook and Faulkner as Mumia, on his shift as a cab driver, happened to drive by. Moments later, as other officers are arriving, Faulkner was dead with two gunshot wounds to his head and back. Mumia sat on the curb with a gunshot from the officer’s gun to his chest, and his legally owned and registered hand-gun a few feet from him on the ground. Mumia and his brother were arrested. Cook was released a couple of days later. Mumia was charged with first degree murder and possession of an instrument of crime.

The Trial and the After Effects

Mumia’s trial began in June 1982, in the midst of heavy media coverage. The interest remains today—a general Google search of “Mumia Abu Jamal trial” brings back 182,000 hits. Proponents of Mumia claim that the adjudication process was fraught with grave injustices to Mumia’s protected civil rights of having a fair and unbiased trial and these concerns were confirmed by the report from Amnesty International. Opponents of Mumia assert that the trial was conducted in an honorable fashion and the initial sentence of death was the correct result.

Mumia has had his death warrant signed two times in the course of post-conviction appeals. In December 2001, the United States District Court of the Eastern District of Pennsylvania upheld the conviction, but vacated the death sentence because egregious errors during the sentencing portion of the original trial. In particular finding, “the jury instructions and verdict sheet in this case involved an unreasonable application of federal law. The charge and verdict form created a reasonable likelihood that the jury believed it was precluded from considering any mitigating circumstance that had not been found unanimously to exist.” Mumia continued to live in solitary confinement, confined for twenty-three hours a day on Death Row for ten years, despite having his death sentence confirmed unconstitutional by the United States Supreme Court. He was finally moved into the general prison population in December of 2011.

Goddard College and the Restriction of Speech

Goddard College is not the run-of the mill institute of higher learning. Students do not have a set schedule, textbooks or a syllabus. Faculty and students meet on campus only twice a year for two weeks at a time and students are “encouraged to question received knowledge and the status quo and to create new understandings of the world and of human experience.” Goddard College is also where Mumia began his college education in the late 1970’s, and where he later finished his degree while serving time on Death Row.

Photo courtesy of Goddard College.

Photo courtesy of Goddard College.

The latest graduating class of Goddard, which consisted of 20 students, unanimously voted to have Mumia as their commencement speaker. The class cited that they wanted Mumia to speak for his “ability to think critically and radically.”

Police and supporters took to the streets of Philadelphia to protest the speech by standing in silence at the spot Officer Faulkner was shot for thirty minutes to “drown out the voice of Mumia Abu Jamal.”

And that is not all the supporters did to try to silence Mumia once more: Pennsylvania state legislators introduced HS 2533, which amends the Crime Victims Act of 1998, by allowing a district attorney in the county were a “personal injury” crime had occurred or by allowing the Attorney General, after conferring with said district attorney, to institute a cause of action against an offender whose actions “perpetuates the continuing effects of the crime on the victim.” The bill defines actions that perpetuates the continuing effects of the crime on the victim as “conduct that creates a temporary or permanent state of mental anguish on the victim.”

Impact on the First Amendment

HS 2533 severely restricts any person ever convicted of a personal injury crime from exercising the freedom of speech found in the First Amendment. This bill does not account for the severity of the crime, the nature of the circumstances surrounding the crime, the length of time from when the crime was committed until the person does any type conduct which creates mental anguish in the victim. That is because not one of those factors matter when addressing rather or not an offender can communicate. The bill restricts all forms of speech the offender can engage in rather it is related to the crime or not.

When Mumia delivered the commencement speech to Goddard via a pre-recorded message accompanied by a slideshow, he never spoke of the crime of which he has been convicted. He never spoke about Daniel Faulkner, Faulkner’s widow, the police, his trial or any other related topic to the controversial episode that occurred back in December 9, 1981. He simply spoke.

Mumia spoke of finding one’s passion in life and following that passion. He spoke about education and how education is the key to expanding the mind, to cultivate awareness and to make change in oneself. He spoke about the perils around the world and how the world desperately needs new ideas to eradicate old problems. Mumia cited classic literary works like the Pedagogy of the Oppressed by Paulo Freire and works of John Dewy. Social change and social transformation is what Mumia impressed upon the graduates of Goddard by telling those listening, “That your job is not to get a job. Your job is to make a difference.”

The issue that remains is not whether or not Mumia killed Faulkner, or whether Mumia got a fair trial; those opinions are for the reader to decide once he or she reviews all of the facts. The court in Pennsylvania holds that he did; thus he remains in incarcerated. The very act of Mumia still being alive is causing the victim, Faulkner’s widow, mental anguish. By HS 2533’s vague and broad standard that alone is enough to ask for a permanent injunction against Mumia. But an injunction against Mumia from doing what? Being alive? How can you place an injunction on someone’s life?

The question is when can the government silence an offender, incarcerated or not, because people do not like what that person is saying or doing. The answer is never. But it is happening. It is happening to Mumia because he spoke about making the world a better place. It is happening to federal prisoners who want to challenge their convictions by prison officials censoring the Jailhouse Lawyer’s Handbook. A conviction of a crime does not simply obliterate a person’s constitutional rights.

And that is the beautiful thing about the country in which we live. All people get to have a voice. It doesn’t matter if you agree or not; it doesn’t matter if you like it or not; and it doesn’t matter what color a person may be; or what religion a person may practice; or where a person may fall on the social hierarchy; or what crime the person may have committed. It shouldn’t matter, but oh, how it does.

[1] For an in-depth analysis on the case of Mumia Abu Jamal see Amnesty International’s full report: http://www.amnesty.org/en/library/asset/AMR51/001/2000/en/0987a185-dfd3-11dd-8e17-69926d493233/amr510012000en.pdf.

[2] For the response to the Amnesty International’s report from Faulkner’s representatives: http://danielfaulkner.com/docs/response.pdf.

[3] “A similar incident occurred in 1985, when a stand-off developed between police and members of MOVE. The siege was ended when a police helicopter dropped an incendiary device on the house, killing 11 of its occupants, including six children (only two occupants survived). The device also started a fire that destroyed over 60 houses in the predominately black area. In 1995, a federal jury awarded MOVE members $1.5 million after determining that the city of Philadelphia had violated their constitutional right to protection against unreasonable search and seizure when the police dropped the bomb.” (Amnesty International Report, 4).

[4] It is disputed by the prosecution that this person even exists.


Election Day: The President, the Supreme Court, and the Cost of Free Speech

November 6, 2012

“[The] government of the people, by the people, for the people, shall not perish from the earth.” – Abraham Lincoln, The Gettysburg Address, 1863

“Corporations are people, my friend” -Mitt Romney, Iowa State Fair, 2011

Free speech has historically functioned as a bedrock for self-expression and empowerment of the people.  A series of close Supreme Court decisions has changed the nature and balance of this right, resulting in more speech for some and less for others.  The next president will most likely have the opportunity to appoint one or more Justices to the Court.  As we approach this presidential election, whose winner will likely determine the Supreme Court’s direction for some time, we must consider that this essential element of democracy is in danger.  Our union survived the Civil War, but can it survive a corporate takeover?

Like many of our principles and rights, the idea and practice of freedom of speech has evolved. Free speech, as a right, has constricted and expanded since we adopted the Bill of Rights as part of our constitution.    In the mid-1930s, free speech, as we have come to understand it, was established by the Supreme Court and maintained through the mid-1970s as a fundamental component of American democracy.

Since the mid-1970s, however, the Court has unjustifiably shaken this constitutional and cultural understanding.  Coincidentally, the Court has had a conservative majority since 1969.  During this time, the Court expanded corporate, business, and wealthy people’s constitutional speech, while restricting the speech most available to people of ordinary means.  The Court did this, most notably, by instituting the principles that money is speech and corporations are people!

Money Is Speech and Corporations Are People

Prior to 1976, well established First Amendment laws allowed limits on campaign financing because: (1) limits were imposed on money and not directly on speech; and (2) these limits were not total prohibitions on money but, rather, limits on amounts of money.

The Court went about removing the first obstacle to unlimited campaign financing by ruling in Buckley v. Valeo that money is speech; therefore, limits imposed on money are essentially limits imposed on speech.  They then set in motion the removal of the second obstacle, limits on amounts of money, by determining that government may not limit the quantity of protected speech.  This means that limits on the quantity of speech are treated the same way courts have handled complete prohibitions of speech–with the highest level of constitutional protection–and, remember, money is speech.

Viewing speech in this way makes for an attractive argument, as it reinforces the traditional belief that government should not dictate the quantity or intensity of speech.  This supports the idea that limiting the quantity of speech suppresses some measure of speech.  However, the main reason to reject extending heightened constitutional protection to unlimited quantities of money (ahem) speech is ignored: When money is defined as speech and that “speech” is unconstrained, the “speech” of the wealthy drowns out the voice of the common person.  In matters of public debate, the Court has given an almost infinitely large megaphone to one side, and one side only.

In the Buckley decision, in effect, the Court began to really expand constitutional speech rights for persons of means, such as wealthy persons and corporations.  This culminated in the much-debated 2010 case, Citizens United v. Federal Election Commission, which further favored the expansion of the free speech rights of the wealthy by declaring that the government could no longer restrict independent political expenditures by corporation and unions.  These decisions radically diverged from the text and purpose of the First Amendment, now confirming that the person –who is a corporation, is allowed speech–which is money!

But Not All Money/Speech Is Equal

While courts have been expanding the more expensive forms of speech, culminating in ridiculous acts masquerading as free speech, such as massive anonymous contributions to Super-PACs, many limits have been placed on the amount of speech where speech costs less.  Limits placed on non-monetary speech include determining the number of picketers or demonstrators, the number of permits for demonstrations and parades, the level of amplifiers, and the amount and size of protest signs.  The Court justified this in Frisby v. Schultz by considering whether the quantity allowed is “ample” or if more quantity is “necessary to convey [their] message.”  However, courts do not apply this same standard to campaign finance cases and they seem to be oblivious to the hypocrisy of limiting the number or picketers while removing limits on campaign finance.

Restricted Political Speech: The Time, Place, and Manner Doctrine

The Court also has a history of using “reasonable” time, place, and manner restrictions to control speech when it jeopardizes government functions or social interests.  This includes restrictions, such as noise limits in the middle of the night or the classic prohibition of yelling “fire” in a crowded theater.  I agree that some restrictions may indeed be necessary, but the modern Court has expanded the time, place, and manner doctrine so much that lower courts and municipalities are now using the doctrine as a basis for confining First Amendment protected demonstrations, and to selectively restrict the quantity of speech.

Public Property, But No Public Discourse: Public Forum Doctrine

The public forum doctrine is another barrier that the Court has used to limit speech of those with ordinary means.  In 1939, the Court ruled in Hague v. CIO that certain public areas, such as sidewalks and parks are open to free speech regardless of that speech’s point of view and that it is constitutionally forbidden to limit access.  The Court expressly stated, “Wherever the title of streets and parks may rest, they 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.  Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens.”

In the 1980s the Court began to use the doctrine to redefine the concept of a public forum by instituting a threshold for speech.  They rejected protected speech in open, public areas, arguing that speech was not the “principal purpose” of the public space at issue.  This makes no sense.  Speech is rarely the principal purpose of a public facility.  The primary purpose of a meeting oak is to turn sunlight into food so that acorns can be produced, not as a locus for public speech.  We, as a society, have made a constitutional, social, and cultural commitment to freedom of speech, rooted in a traditional understanding of the purpose of speech as a means to further and promote democracy.  That is why public forums have been places of free speech, not because it was the “primary purpose” of the forum.

Appointer-in-Chief

The Court’s modern interpretation is not completely for or against free speech, but, rather, for expanding some speech–specifically speech rights available to very wealthy people, corporations, and businesses, while for limiting some speech–particularly the variety more accessible to the ordinary person.  The Court, beginning with the Buckley decision, set us in this direction by declaring, without a coherent explanation or consistent approach, that money is speech and that government may not limit the quantity of protected speech.  The recent Citizens United decision has expanded and reinforced this idea by declaring that government may not place limits on corporate and union campaign expenditures.  Is this the right track or intent of free speech rights?

The Supreme Court will likely have several vacancies during the next Presidential term.    One presidential candidate’s party has clearly demonstrated a will to expand “speech” of the extremely wealthy time and time again.  While the other candidate has the opportunity to make appointments that could lead to a liberal majority in the Supreme Court for the first time since 1969.  Who we elect as President will determine who is appointed, and that one determination will dictate how free speech rights are interpreted for a very long time; “of the corporations, by the corporations, for the corporations …” just doesn’t have the same ring.


Brandy Hagler is a third year student at Charlotte School of Law.  She is the student chapter President of the American Constitution Society and the student chapter Co-Chair of the National Lawyers Guild.  She is a member of the Civil Rights Clinic at Charlotte School of Law.  She was an advocate for free speech rights during the 2012 Democratic National Convention, organizing National Lawyers Guild efforts in Charlotte, NC.


Free Speech for People Amendment: A Legislative Alternative to the Judicial Decision of Citizens United

October 18, 2012

Do independent expenditures by entities, such as corporations, create corruption or even the appearance of corruption thus diluting the people’s ability to control government?  The majority of the Supreme Court answered the question in the Citizens United v. Federal Election Commission ruling with an emphatic “No.”

What this ruling did, in effect, is give corporations much of the same rights to political speech as individuals.  It means that virtually all restrictions on corporate money in politics have been removed.  In a Slate article, titled The Numbers Don’t Lie, Richard L. Hasen, a leading expert on campaign finance and professor at the University of California at Irvine stated, “after Citizens United, the courts . . . and the FEC [Federal Elections Committee] provided a green light for super PACS to collect unlimited sums from individuals, labor unions, and corporations for unlimited independent spending.  The theory was that, per Citizens United, if independent spending cannot corrupt, then contributions to fund independent spending cannot corrupt either.  . . . So what was once questionable legality before the court’s decision was fully blessed after Citizens United.”

This summer the Supreme Court had an opportunity to take another look at the Citizen’s United ruling and declined.  The Montana Supreme Court upheld the state’s 1912 Corrupt Practices Act limiting independent political spending by corporations.  In a 5-4 ruling the U.S. Supreme Court voted to summarily dismiss the Montana case without oral arguments.

Montana’s Attorney General, Steven Bullock, argued that overturning the Corrupt Practices Act would “make our political process unrecognizable.”  He provided instances of not just the appearance of corruption, but actual corruption caused by this type of spending in the case.  Montana’s Supreme Court held in Tradition Partnership v. Bullock that the ban on such funding in Montana state elections was constitutional.  The U.S. Supreme Court’s 5-4 decision to not hear the case, unfortunately, proffered no rebuttal to the facts presented by Mr. Bullock and appears to have shut out the possibility of Citizens United being overturned by the current Supreme Court.

Is there anything we can do to change this unfortunate precedent? Well, yes, there is a grass roots movement to support a constitutional amendment!  The amendment, banning independent expenditures by special interest groups, has already been introduced in Congress.   Free Speech for People is helping organize efforts amongst concerned citizens to stir municipalities and other local governmental entities to call for Congress and states to act.  Their site provides an opportunity to sign a petition supporting H.J. Res. 88, a bi-partisan Congressional resolution that will amend the Constitution and overturn the Citizens United ruling.  The organization also provides resources to help you promote this amendment in your local and state governments.

The amendment process will eventually require ratification by2/3rds of the states and this grassroots effort helps to inform the electorate of the Amendment and gives representatives notification of what the People want.  According to a survey of 1,000 likely voters, 62 percent of all voters oppose the Supreme Court’s Citizens United decision.  In a poll conducted by Free Speech for People 82 percent of independent voters, 68 percent of Republican voters, and 87 percent of Democratic voters support the amendment.  This isn’t a political issue, this is voter’s rights issue, as Citizens United has allowed special interests to supplant the power of our founding principle of “one man, one vote” with the idea of “more money, more influence.”

For further reading, Corporations Are Not People, by Jeffrey D. Clements, and Republic Lost, by Lawrence Lessig, provide a thorough overview of the problem and its effect on our country. Also, the nationally-recognized expert in election law and campaign finance regulation, Professor Richard Hasen, will be joining the American Constitution Society for an event on Monday, October 22nd at noon.  Professor Hasen will be joining us via Skype and UNC Charlotte Professor of Political Science, Martha Kropf, will be on campus.

The time to act is now.  If you are interested in becoming part of this movement, please email Brandy Hagler, haglerb@students.charlottelaw.edu, or Cleat Walters III, waltersc@students.charlottelaw.edu for more information.

By Cleat Walters III and Brandy Hagler


DNC Parade Route and Free Speech Zone Schedule

September 3, 2012

The City has established two main areas open to First Amendment activity during the DNC. A free speech zone and a parade route. Speakers and marches on a wide variety of issues will try to make their voices heard in these venues over the next three days.

All manner of topics will be addressed in the free speech zone ranging from abortion issues, to student justice, to anti-war topics. Just as diverse are the marches to take place on the designated parade route. Groups including NC HEAT, NORML, Doctors for America, and several Occupy organizations and members are scheduled to hold demonstrations.

Here’s the full schedule of speakers and marches. Maps showing the location of the free speech zone and the parade route can be found here, just click the day you’re planning on attending.


Hundreds March on Uptown Charlotte

September 2, 2012

A Coalition to March on Wall Street South led the parade. Photo Credit: Evan C.

Hundreds of demonstrators took to this streets today in what is likely to be one of the largest marches of the DNC. Activist groups from all over the country, advocating on a wide array of issues took part in the March. The groups converged in Frazier Park this morning for speeches and to prepare for the march. At one, the march began.

In an overabundance of caution, there were nearly as many police officers present as there were protesters. The march essentially took place in a moving bubble of police lines. Police on bicycles and on foot lead the marchers through the streets. Lines of officers marched along side the protesters as well, preventing them from leaving the street. A police helicopter circled low overhead.

Hundreds of police officers from all across North Carolina, Virginia, Georgia, and beyond line the streets as demonstrators pass by. Photo Credit: Evan C.

A police helicopter circles extremely low above the marchers. Photo Credit: Evan C.

The demonstrators marched through the city chanting slogans and displaying a variety of creative signs. The march stopped in front of the Bank of America building and the Duke Energy building where activist leaders gave speeches emphasizing the importance of clean energy, a clean environment, and decried the prevalence of home foreclosures and the corrupt practices of the Wall Street 1%. One protester’s sign summed it up well:

One protester is generally displeased. Photo Credit: Evan C.

As with the Bank of America shareholder meeting and Duke Energy protests earlier this year, the police were very restrained. There have been no reports of police abuse or violence. Currently, it appears that only one person was arrested for wearing a scarf over her face, something that is prohibited by the DNC Ordinances. As the protesters had pledged from the beginning, the protest was entirely peaceful. It appears for now that officials’ cries of impending anarchy are not coming to pass.

Leave Us A Comment: Do you think demonstrations such as this are an effective method of communicating a message? Do they play a real part in changing the system or the country’s policies?

For more information see these articles from WCNC and WBTV.

UPDATE: It appears that a second person was arrested for disorderly conduct, resisting arrest, and assaulting a government official. Notably, it appears that the man was a bystander, not a protester. Activists report that a third person was pulled over and arrested for driving without a license shortly after leaving the demonstrators’ convergence space.


Occupy Charlotte’s TRO Denied

March 9, 2012
The Occupy Camp as it appeared before the eviction. Photo Credit: Grant Baldwin

Occupy Charlotte’s quest to prevent enforcement of the City’s new camping ban suffered a setback when Judge Bridges conditionally denied their request for a temporary restraining order. The Judge made clear that the City must permit Occupy to have a single information tent on the Old City Hall lawn provided that no one sleeps in it and that it is not left unattended.

While the outright ban on camping seems to run contrary to the plain language of the ordinance, such is the way of the law. It is important to keep in mind that this is simply a preliminary determination on the matter and a hearing on the merits of Occupy Charlotte’s complaint is still pending. Occupy Charlotte’s battle is far from over, and the Clinic will continue to lend its support to those fighting for free speech.

For more information check out the Charlotte Observer’s article.


Occupy Charlotte Asks the Court to Prevent Enforcement of the Camping Ban

February 27, 2012

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.

Procedural Argument

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.

Substantive Argument

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


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