Skip to main content

Our First Amendment can be slow to respond. After all, it's two-hundred and twenty years old, give or take, and its attackers are often vigorous individuals in their twenties, thirties and forties.

But today the ACLU of Northern California filed lawsuits against stay-away orders demanded by Power-mad District Attorney Nancy O'Malley of Alameda County, challenging them on First Amendment grounds.

You don't lose your First Amendment rights because you have been arrested at a previous demonstration. Censorship in anticipation of possible illegal conduct in the future isn't just creepy, it’s also unconstitutional and just plain wrong.

That's why the ACLU of Northern California filed petitions for habeas corpus today on behalf of four Occupy Oakland demonstrators. The demonstrators are challenging the court orders, imposed on them as a condition of pre-trial release, that force them to stay away from the public plaza in front of Oakland City Hall as violating their First Amendment rights. The demonstrators had been arrested at previous Occupy Oakland demonstrations. Many of the order keep demonstrators between 100 yards and 300 yards away from Frank Ogawa Plaza.

It's not just the General Assembly and Committee meetings of Occupy Oakland that are held in Oscar Grant Plaza / Frank Ogawa Square in front of City Hall. Draw a radius of 300 yards around that square and you will find

  -- City Hall itself, where City Council and other meetings open to the public by California law are held.

  -- The main offices of Congressperson Barbara Lee, State Senator Hancock and State Assemblyperson Skinner.

  -- The Federal Building. (My guess is there are some important things going on in there that some people might need access to. What do you think?)

  -- The nexus of BART stations in the East Bay. It is impossible to travel on BART from one part of the East Bay to another or to San Francisco without technically violating the stay-away order.

Stay-away orders have been issued on an on-going basis, starting in early January. Along with charges such as "malicious blocking of a sidewalk," "umbrella" and "lynching" they have constituted part of an orchestrated attack on the first amendment rights of Occupy Oaklanders.

In this country, it's unacceptable to keep demonstrators out of the public square because the government thinks they might engage in illegal conduct in a future demonstration. Courts have made clear that there is a special value to being able to speak in front of the seat of government authority, be it the White House or City Hall.

In this instance, the government has failed to show that the orders are necessary to serve any purpose. The orders are also overly-broad and vague.

The only conceivable reason to keep someone from the Plaza for alleged criminal activity or misdemeanors committed elsewhere is to keep them from exercising their first amendment rights of freedom of assembly and freedom of speech. The hypothesis that they might do something illegal at some unspecified time in the future at some unspecified event in some unspecified location because they are participating in a peaceful assembly or swimming in Quan Lake is, shall we be blunt about it, patently absurd.

PhotobucketFrank Ogawa Plaza / Oscar Grant Park -- photo courtesy of Smellybeast

When someone is issued a stay-away order it's usually because there is a reasonable probability of an injury to a specific person, physical entity or organization (e.g., making a threat against an individual, a serious chance of spousal abuse, or perhaps making veiled threats against, say, City Hall).

One could conceivably argue that someone who had been accused of vandalism to the storefronts and businesses around the plaza on the night of the General Strike, November 2nd, might warrant a stay-away order. But nothing like any of this is true -- no one has ever made any threat against the plaza itself or any of the occupants of the surrounding buildings; none of the people with stay-away orders have, to my knowlege, been accused of vandalism. What they have been accused are offenses that range from stupid to petty to serious-if-true-but-almost-certainly-bogus; still almost none of them have occurred anywhere near the Square.

In a recent San Francisco Chronicle Op-Ed, the Alameda County District Attorney admitted that she sought the orders in part because of her perception that the demonstrators are anti-police and anti-government. That is viewpoint discrimination, which also violates constitutional guarantees of equal protection.

The rights to speak, to assemble for demonstrations and protests, and to petition the government are among the most fundamental protections guaranteed by our state and federal Constitutions. They are also the fundamental building blocks of our democracy. Seeking to prohibit certain protesters from demonstrating in front of, or coming near, City Hall undermines these rights and values.

This is by far the worst of it. Besides her Op-Ed consisting of blatant lies, O'Malley thinks that her opinion of what someone might or might not believe gives her the right to override constitutional guarantees on people who have been convicted of no crime, and, at least in eyes of non-District Attorneys, should be presumed innocent. Even if this view were defensible, which it is not, a significant percentage of Oakland residents are "anti-police." Some percentage more probably have pretty hostile feelings towards government in general. Very few of them are members of Occupy Oakland.  Can you say "selective enforcement?"

What remains to be seen now is whether judges in their fifties, sixties and seventies will give our venerable elder the support it needs, or whether they will kowtow to a prosecutor, police and City officials  whose only goal with these tactics is to smash dissent, not protect the public safety.

I'm rooting for the old guy. I wonder, though, what price Intrade would give?


3:02 PM PT: Jury decides for First Amendment:

DES MOINES, Iowa -- A Polk County jury reached a verdict Friday in the first trespassing trial for an Occupy Iowa protester.

The jury found Ed Fallon not guilty of trespassing.

Fallon was charged with trespassing on the Statehouse grounds. He was one of the Occupy Iowa protesters who refused to leave the grounds after authorities said they violated an 11 p.m. curfew.

Juror Aimee Mairs told KCCI's Amanda Lewis that the decision was a matter of putting the U. S. Constitution above a state imposed curfew. She said four jurors were on board right away, but it took some time to convince the other two jurors.

Mairs said the jury decided Fallon was justified in being on the grounds for the purpose of exercising his First Amendment rights.

Read more:

4:12 PM PT: Link to actual court petition (pdf)

Originally posted to jpmassar on Fri Mar 09, 2012 at 02:52 PM PST.

Also republished by Occupy Wall Street, ClassWarfare Newsletter: WallStreet VS Working Class Global Occupy movement, California politics, SFKossacks, Progressive Policy Zone, and Progressive Hippie.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site