COLUMBUS -- On Tuesday, the City of Cleveland will defends its local law requiring people to obtain a permit to remain in downtown's Public Square at night.
The case pits the city against two Occupy Cleveland protesters -- Erin McArdle and Leatrice Tolls -- who participated in 2011 Occupy Cleveland activities in the square and were arrested for refusing to leave the area after 10 p.m.
In October 2011, city officials issued permits to allow Occupy Cleveland to demonstrate on Public Square 24 hours a day, seven days a week through Nov. 9 of that year. The permits came after attorney J. Michael Murray filed an injunction in federal court, saying the city was denying Occupy Cleveland members their constitutional right to free speech by limiting access to Public Square.
The city and Murray reached an agreement after discussions before U.S. District Court Judge Dan Polster so Polster did not have to rule on the injunction. City officials issued permits for Occupy Cleveland to demonstrate from 10 p.m. to 5 a.m. when the city curfew is normally in effect.
In December 2012, the Eighth District Court of Appeals ruled 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 judges.
Occupy Cleveland claims the language in the law is unconstitutional because it requires city officials to consider the content of the speech that may take place when deciding whether to grant a permit.
In addition, they say that the city has not shown it has a compelling interest to prohibit speech on the square between 10 p.m. and 5 a.m.
Attorneys for the city argue that the ordinance is content-neutral and narrowly tailored to advance the government's significant interests, such as public health, safety, and welfare.
They counter that the law is limited in scope, allows people to remain in the square if they simply obtain a permit, and provides "unfettered and completely unrestricted access at all other times of day."