That in itself is a major victory (especially since the city
not only claimed in court that the encampment was not expressive, but also
defied reality and a City Council vote in support of an Occupy petition to
oppose corporate personhood and claimed that protesters were not doing anything
other than camping), but Warren went further.
He left open several doors for either the Occupiers or other
future protesters to use to defend their expressive encampments.
First, he ruled that one reason he upheld the city's safety
concerns is that the Occupiers did not voluntarily undertake to follow the
city's rules, but rather asked for permission to stay and promised to come into
compliance if that permission were received.
Second, he ruled that if the Occupiers wanted to seek a city
permit to conduct a non-camping protest either in the overnight hours or on a
24-hour basis, and if that permit were denied in a way that infringed on
free-speech rights, the group could come back to court.
And third, he suggested that the Occupy proposal for a "free
speech zone" could be successful if it were "‘a Hyde Park
Corner' open to all viewpoints" as opposed to a place that one or another group
would have permission to occupy for a period of time.
While the decision explored whether the Maine Constitution
offers additional protections for free speech and assembly, beyond those in the
First Amendment to the US Constitution, Warren
found it did not. However, none of the parties in court - not the Occupiers nor
a supporting brief from the American Civil Liberties Union of Maine, nor the
city - addressed one aspect of the Occupation that is explicitly protected in
the Maine Constitution in a way that is not included in the federal one: that
they people "have an unalienable and indefeasible
right to institute government, and to alter, reform, or totally change the
same, when their safety and happiness require it."
It is surprising that the direct-democracy self-sovereign
General Assembly did not claim protection under this clause, as they were
instituting government (and/or altering, reforming, or totally changing it)
specifically because of concerns about their safety and happiness.
decision can be appealed, but likely only after OccupyMaine's full case against
the city is heard and decided, and the protesters cannot stay in the park any
longer. (They also have to decide whether or not to continue the lawsuit, which
could cost thousands of dollars, even if attorney John Branson continues to
donate his services.)
Clearing out the park
As it stands now, by Monday, February 6, at 8 am the
Occupiers must have removed everything from the park that they don't want
considered trash. The Occupiers themselves can stay until 10 pm, when the park
closes, according to a notice from City Manager Mark Rees.
What happens at those times remains to be seen, and was the
subject of a very long and well-facilitated GA Wednesday night.
The city originally planned to give the Occupiers two days,
but the Occupiers asked for more time and got two additional days, plus a
conditional offer of a longer extension if the progress in the existing time is
How much the group is able to clear out is unclear, since
the Occupy coffers are empty. "I have more receipts than I have money," finance
workgroup member Rachel Rumson told the GA last night. "I haven't received a
cash donation in over two months."
The group has promised to raise money to help restore Lincoln Park, and may need to spend some
funds to rent vehicles and storage locations for anything they may remove from
the park for later use.
The city is providing a large Dumpster to the encampment for
disposal of trash, and will take care of emptying the Dumpster when the park is
Staying or going?
Also in question is how many of the protesters will leave
voluntarily. It seemed that many attendees at the GA were prepared to practice
nonviolent civil disobedience and stay, with one member specifically saying he
plans to get arrested; others expressed desire to help support the image of the
movement by requiring the police to come in and remove them, for the sake of
Group members agreed that each person's decision was an individual, autonomous one, but also agreed that
protecting the common resources - particularly the OM
Dome (whose owner has said he wants it back if the camp is ever dismantled),
the contents of the library, and the food in the kitchen area - required
removing those community structures from the park.
The food will be donated to a local food pantry, and Occupy
members will store the library materials safely until a permanent home is found.
The group will continue its activities bringing attention to
injustices in Maine
and around the country.
On Friday, February 3, at noon at Senator Snowe's office at 3 Canal
Plaza, ther will be a protest against NDAA, which
allows indefinite detention of US
citizens without access to the courts, and the Enemy Expatriation Act, which
could allow the government to strip people of their US citizenship.
Also Friday, there will be a full-page advertisement in the Portland Press Herald discussing the campaign
contributions of Maine's congressional delegation, and a movie night at the Meg Perry Center.
And on Tuesday, February 7, at noon in the State of Maine
room in City Hall, there will be a People's Press Conference to object to cuts
to heating assistance for poor and elderly Mainers.
Other events are being planned.