Protecting the Right to Protest and Assembly

June 13, 2013 - Today, the ACLU of Oregon stood before the Oregon Supreme Court to defend the rights of the people of Oregon to protest at the seat of government. In the oral arguments in State v. Babson, we argued against the state’s efforts to break up a round-the-clock vigil on the steps of the state capitol by closing the steps at night.

The case concerns the state’s ability to shut down specific protests by passing broad prohibitions on the use of public space, and how protestors arrested for violating those prohibitions might challenge those laws in court.

The constitutional issues involve the protestors’ rights to free expression and assembly. Unfortunately, the Oregon Court of Appeals decision in this case didn’t provide a clear answer. Two important rights are at issue in our appeal to the Oregon Supreme Court.

The first issue concerns how courts should evaluate laws that restrict protesting and petitioning the government for redress. The state’s position would allow state and local government wide latitude to pass neutral-seeming laws in order to quash protests they don’t like. Protestors wouldn’t be able to directly challenge the constitutionality of the laws, but only whether the government applied the law against them in a manner that is unconstitutional. That can be a very difficult proposition, as the second issue illustrates: how much access should defendants have to legislators’ deliberations.

Under the state’s preference, an arrested protestor needs to be able to present evidence of legislators’ intent to suppress speech and assembly when crafting the rule in order to challenge the application of a rule or law. But the state argues that such access should be very hard to get. And practically speaking, thoughtful administrators and legislators will very often be able to offer a credible motivation for a rule such as public safety, in this instance.

Taken together, the state’s arguments would make it nearly impossible to challenge rules, like the one here, that use neutral-sounding language to shut down protests and arrest protestors. We argue that the state constitution does not allow such results—courts should be able to examine whether a law focuses on suppressing speech and assembly, even where the text has been drafted to sound neutral. And people defending themselves against such laws should have access to the information they need to prove violations of their constitutional rights.

It all started with a protest that began back in November 2008.

The Iraq and Afghanistan wars were still in full swing, and Oregon National Guard troops were set to deploy to those contentious foreign conflicts. Michele Darr decided that she needed to do something about this, so she went right to the seat of state government to plead her case.

She set up on the steps of the state capitol building and began a 24 hour vigil of candlelight and prayer. She intended to remain there, bringing attention to the issue and calling for action, until the Oregon legislature agreed to intervene to prevent the deployments and the governor finally agreed to meet with the families of guard members whose lives would be thrown into distress by the upheaval. Other concerned citizens joined in with Darr and Michael Babson, and the small group braved severe weather and the cold of winter to maintain their protest.

Under long-standing rules that governed the capitol steps, people weren’t generally supposed to be out on the steps at night, but the building administrator could make exceptions, which was done for things like all-night bible reading marathons, and midnight basketball events. Frustrated with Babson and Darr’s protest, the legislative administrative committee changed the rules—now no-one could use the steps overnight, period. Darr and her companions continued their protest, undeterred, and for that they were arrested and convicted of trespassing.

In the Oregon Supreme Court we argued that this rule should be struck down because it violates free speech guaranteed by the Oregon Constitution and emphasized the unprecedented nature of this restriction—the state enacted the rule in order to quash Babson’s and Darr’s protest. The state constitution doesn’t permit government regulation that is based on the content of speech, we argued, and since this rule did just that, the whole rule should be struck down.

The Justices challenged us about how, under the usual rules for interpreting legal texts, they might use evidence of the legislature’s discussions and intent to figure out whether the rule here, which doesn’t expressly mention the content of speech, was unconstitutional.

We responded saying the only way that a reasonable person could conclude that this rule wasn’t obviously about expression is to put on blinders – to only look at the words of the statute. Why would this court decide to put on blinders that would favor the government rather than the speaker? We also argued to the court that the rule unconstitutionally restricts rights of assembly that are guaranteed by the Oregon Constitution.

We stressed the distinction between speech and assembly—speech is about content, about a message, while assembly is about the right of the people to gather together to consult for the common good, and to bring their issues directly to the seat of government to petition for redress. The right of assembly is just as fundamental to our free society as the right to freely express opinions. The capitol steps are a special place and the Oregon Constitution requires government to leave that space available to the people to apply to their legislature or petition their representatives.

ACLU Defends Capitol Steps Protestors Against Trespassing Charges

On January 9, 2009, the Legislative Administration Committee (LAC) adopted new “guidelines” that prohibit all activities on the Capitol steps between 11:00 PM and 7:00 AM, unless there are hearings or floor sessions in progress. The State Police then used these guidelines to cite Michele Darr and her fellow protestors Mark Babson, Teresa Gooch, Greg Cleland, and Margaret Morton for trespass. The State Police also cited George Meek, who was also present, but who was there to take photographs of the event rather than to protest.

On June 17, 2009, the Marion County Circuit Court heard the ACLU’s motions to dismiss the charges against Michele Darr and her five fellow protestors, but did not issue any rulings.  

In August 2009, the trial court denied the defendants' motions to dismiss and the case was tried on November 30 and December 1, 2009. At trial, LAC administrator Scott Burgess admitted that he had discussions with Senate President Courtney about the protesters on the steps before the LAC rule was amended and the protestors were arrested in January 2009. However, the trial court sustained objections to Mr. Burgess testifying as to what Senator Courtney instructed him to do.

As part of our defense, ACLU had subpoenaed President Courtney and House Speaker Dave Hunt, but the trial court quashed those subpoenas—without even waiting for defendants to respond to the motions. President Courtney and Speaker Hunt refused to testify on the grounds of the Speech and Debate Clause of the Oregon Constitution. As a result, the trial court essentially precluded the defendants from attempting to prove that they were arrested for trespass because the LAC and/or other state officials had the protesters arrested with the express purpose of preventing them from conveying their message.

Although the LAC cited concerns for fire and the safety of the protestors, Mr. Burgess admitted there had never been a fire on the concrete and marble steps and plaza of the Capitol and that the State police actually has an office in the basement of the Capitol, with State Police personnel present until 2 a.m.

The trial court then found all of the defendants guilty, fined them $603 each and ordered that they appear at the Marion County Correctional Facility to be booked and fingerprinted. Five of the six defendants immediately filed notices of appeal and moved the Court of Appeals to stay execution of the judgment. The appellate court stayed that part of the judgment requiring booking and printing, pending outcome of the appeal.

December 2008 -- The ACLU of Oregon intervened on behalf of a protester on the state Capitol steps whose constitutional right to free speech was being squelched by the rigid enforcement of vague state “policy.”

Since early November, Michele Darr has been staging a round-the-clock anti-war protest on the Capitol steps in Salem. Specifically, Darr is calling for an end to the Oregon National Guard’s role in the Iraq war.

On at least two occasions, Darr was arrested and charged with criminal trespass. The charges stemmed from a vague -- and vaguely enforced -- state policy that appears to give the Legislative Administrator at the state Capitol some discretion in prohibiting use of the Capitol steps between the hours of 11 p.m. and 7 a.m.
In the past -- routinely since 2000 -- the state has allowed participants in a 24-hour Salem Bible Reading Marathon to use the steps. Darr’s protest is no different in that it causes no harm to any person or property and does not disrupt public access.

Following the arrests, the ACLU of Oregon intervened on Darr’s behalf, sending a Dec. 8, 2008, letter to the Marion County District Attorney and to Scott A. Burgess, Legislative Administrator at the Capitol building.

The letter outlined the ACLU’s belief that the state’s actions resulted in several constitutional violations, namely:

  • Violations of Sections 8, 20 and 26 of Article 1 of the Oregon Constitution, which protect Darr’s right to protest on the Capitol steps, including candlelight vigils, her 40-day hunger strike, her display of political signs, her right to assembly and her right to petition the Governor for redress; and
  • Violations of the First and Fourteenth Amendments of the U.S. Constitution, based on selective enforcement where she is being charged with a crime while carrying out activities others have been allowed to do for many years.

“The State cannot allow those expressing favored views to access the Capitol steps and then suddenly discover a ‘policy’ and decide to ‘reaffirm’ and enforce it in a manner which denies access to others,” the letter said.

Following receipt of the ACLU letter, the District Attorney dropped all charges against Darr. It is unclear, however, whether and how the state will continue to enforce its “policy.” The ACLU will continue to monitor Darr’s treatment as her round-the-clock protest continues.

ACLU Cooperating Attorneys on the case are Michael E. Swaim of Michael E. Swaim PC, Timothy R. Volpert, Alan Galloway and David W. Blasher of Davis Wright Tremaine LLP and Jossi Davidson (Law Office of Jossi Davidson LLC).