Subverting Rule of Law in Nashville

In the second chapter of his book Arguing About LawAndrew Altman proposes five principles restricting governments which can be said to operate under the “rule of law.” The third of these principles imposes seven obligations which governments need to fulfill to ensure that citizens have fair warning of the laws which apply to them:

The general and authoritative rules should give individuals fair warning: the rules should be (a) made public, (b) reasonably clear in meaning and specific in what they prohibit, (c) in force for a reasonable period of time, (d) applied prospectively, (e) applied impartially, (f) possible to comply with, and (g) enacted in accordance with preexisting legal principles.

Late last fall, when the Occupy Movement in Nashville was in full swing, Governor Haslam and several other Tennessee Republicans drafted and passed a permit requirement and curfew on Legislative Plaza, precisely where the Occupiers had set up camp. Haslam argued that the curfew was necessary to remedy the “unsafe and unsanitary” conditions which the Occupiers had allegedly created on the premises, while Tennessee GOP Chairman Chris Devaney claimed that Nashville police had received complaints of violence, “personal theft, sexual obscenities, and defecation on the grounds” outside the State Capitol.

The curfew and permit requirements were publically announced alongside heavy media coverage from local and national outlets, so that the Occupiers were fully aware of the law. Likewise, the new policies seemed rather clear in what kinds of actions were being prohibited, even though the justification offered by Haslam did not seem to make sense to many protesters: why create new laws barring people from freely using the premises if the disruptive and criminal behavior could already be punished under preexisting law?

However, even state officials later came to admit that the state failed to enforce the policy in a judicious manner. On October 27th, State spokeswoman Lola Potter had explained to journalists and the Occupiers that the demonstrators would be given some time so they could have a chance to apply for a permit before there anyone would be arrested. That didn’t happen. At 3 a.m. on October 28th, twenty-nine protesters were arrested.

That morning, night court magistrate and former police officer Tom Nelson rejected the trespass warrants, and later Potter herself criticized the state’s actions. The following night, the TN Highway Patrol arrested a second group of protesters. According to Nelson, Potter, the TN chapter of the ACLU, and a federal judge, the state failed to give the Occupiers a reasonable period of time to comply and apply for permits. Some even accused Haslam of deliberately lying to the Occupiers. It appeared that the state had arrested people for breaking a law without giving them a chance to comply with it. Meanwhile, the police did not apply the law equally and impartially, as crowds of theater-goers were allowed to the break curfew en route to their parked cars.

These factors gave rise to accusations from the ACLU and Occupiers that the law and its associated fees had been created to “chill or eviscerate” the Occupier’s First Amendment rights. In the past, permits had only been required to set the space aside for private gatherings such as weddings, and Tea Partiers and other protesters had made use of the public forum of Legislative Plaza without being expected to apply for any permits.

In the end, the federal judge hearing the case sided with the protesters, seeing the curfew as a clear infringement on their freedoms of speech and assembly as guaranteed by the Constitution. After all, it’s difficult to see how a government can be held accountable by the voice of the people if their freedoms are limited to certain hours and subject to the approval of the government officials the people are speaking out against. To me, this case seems to be a prime example of how even a progressive government can suppress dissent while still nominally adhering to liberal principles.

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