PORTLAND — The city is hoping to build on a string of successes in other cities where courts have ruled against attempts by Occupy groups to stay in municipal parks while they protest income inequality and Wall Street excesses.
In its response Friday to the suit filed by Occupy Maine in its attempt to remain in Lincoln Park, Portland’s lawyers cite similar Occupy situations in five other cities along with a 1984 case in which the Supreme Court said communities can set “reasonable” limits on protests and free speech in public spaces.
In those five other cases, judges all ruled that city authorities had the right to ban overnight camping in city parks and could evict the Occupy protesters.
Occupy Maine filed its suit Dec. 19 after the city turned down the group’s application for a permit to remain in the park. The group’s suit argues that the Maine constitution gives the protesters free speech rights that go beyond those spelled out in the federal Constitution.
Occupy Maine say that the city invited the group to stay in Lincoln Park when officials suggested it as an alternative to the protests that were primarily based in Monument Square. The city’s lawyers argue, however, that the move was only a temporary solution while both sides analyzed their legal rights.
The response filed in Superior Court also said that Occupy Maine’s stay in the park was conditional and could only continue if the protestors maintained health and safety standards. The response then lists a number of arrests in the park connected to the protesters and allegations of health and safety violations, accompanied by pictures of tents and heating units that the city says violate Portland’s regulations.
The city’s agreement not to forcibly remove the protesters from Lincoln Park while the legal process unfolds remains in place, Nicole Clegg, Portland’s spokeswoman, said Friday.
Portland’s filing says the court should not grant Occupy Maine’s request for a temporary injunction because it has no chance of winning its bid for a permanent ban on city moves to evict the group from the park. The lawyers also argue that camping is not a form of expression and therefore is not constitutionally protected.
John Branson, the lawyer representing Occupy Maine, said the circumstances in Portland are different from those in other cities where judges ruled against the protesters.
For instance, he noted that the Occupy Boston group never sought a city permit to stay in Dewey Square.
“Each case needs to be looked at individually and there are many circumstances in Occupy Maine’s case that are unique,” Branson said.
Occupy Maine, he added, isn’t seeking to block the city’s ability to regulate the encampment, “but we’ve said they cannot ban this.”
Branson noted that he didn’t have an opportunity to study the city’s response in detail because it was filed late Friday.
He also said he expects to meet with Occupy Maine’s legal working group over the weekend to begin preparing a response.
The city’s filing also asked the court for an expedited hearing on the case, although it didn’t request a specific time frame. Branson said he doesn’t object to a quick hearing schedule, but added that he wants the full seven days allowed under court rules to file a response to Portland’s Friday filing.
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