Court: Arrest of 'Occupy Cleveland' protestors 'unconstitutional'

1:08 PM, Dec 10, 2012   |    comments
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CLEVELAND -- The Eighth District Court of Appeals ruled has ruled that the arrests of Occupy Cleveland members on Oct. 21, 2011, were unconstitutional, and the ordinance requiring a permit to protest while camping on Public Square are unconstitutional and limits on the First Amendment right to free speech.

The court reversed the convictions of Erin McCardle and Leatrice Tolls, saying "We conclude that the activity of the Occupy Cleveland group, including the appellants, was speech-related activity and is protected under the First Amendment. The police identified the appellants' activities in the police report as protesting the economic inequities between Wall Street and the rest of America. Thus, their activity advanced a public purpose and spoke to a public issue."

The judges also wrote, "We conclude that the City ordinance is an unconstitutional violation of the First Amendment rights to free speech and assembly."

The judges noted, as did the police report, that the protestors were arrested in the Tom L. Johnson quadrant in Public Square.

In a footnote in the ruling, the judges noted that "Tom L. Johnson was the 35th Mayor of the City of Cleveland. His full name was Thomas   Loftin Johnson. In his book, "My Story: the Autobiography of Tom L. Johnson," he explains why tents are useful for campaigning as opposed to public halls. He said "tent meetings have many advantages over the hall   meetings. Tent meetings can be held in all parts of the city -- in short, the meetings are literally taken to the people. " In the final section of that chapter, he writes about a man trying to speak at one of   the meetings and someone shouted "come on, come on! Speak where you are." We take judicial notice that this park is dedicated to him, and his statue is erected there as a testament to free speech."

In closing, the judges wrote "We take judicial notice that had this law been in effect when Tom L. Johnson was running for public office, he would have been arrested for erecting a tent regardless of his purpose.  Public and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing questions."

The city's ordinance detailing prohibited hours on Public Square, which went into effect in August, 2007, is also unconstitutional, according to the appellate judge.

The ordinance reads: "No unauthorized person shall remain on or in any portion of the area known as the Public Square area between the hours of 10:00 p.m. to 5:00 a.m. Persons may be authorized to remain in Public Square by obtaining a permit from the Director of Parks, Recreation and Properties."

On Sept. 17, 2011, approximately a thousand demonstrators   assembled in Zuccotti Park, near Wall Street in New York City, to protest against the claimed increasing income disparity between the highest income earners, now known as the "one percent" and everyone else, now known as the "99 percent."

The protesters erected tents and remained in Zuccotti Park around the clock and the movement called "Occupy Wall Street" began. In the days and weeks that followed, this movement spread to other cities, including Cleveland.

In Cleveland, members of the Occupy Movement began a   symbolic occupation of Public Square, in an area consisting of three out of a four quadrant park. The city of Cleveland granted the members of the Occupy Cleveland movement a permit to remain in the southwest quadrant past 10 p.m.

The First Amendment provides in part that "Congress shall   make no law * * * abidging the freedom of speech * * *." First Amendment to the U.S. Constitution.

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