OccupyMaine can claim victory, even as it prepares to remove its encampment from Lincoln Park. On Wednesday, Maine Superior Court Justice Thomas Warren ruled that the encampment is expressive and therefore is protected by the Maine and US constitutions. However, he also ruled that safety concerns expressed by city officials, as well as worries about damage to the park and access to the space by others wishing to use it, are reasonable limitations on the expressive protest, and so the encampment must end.
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.
Warren's 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 significant.
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 cleaned up.
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 publicity.
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.