Legal Ease: 10 fun things in the OccupyMaine-Portland lawsuit

Published in the Portland Phoenix

OccupyMaine sued Portland late last year, seeking a court's permission to stay in Lincoln Park, given that the City Council has refused to brook any possibility of anyone remaining overnight in a city park for any reason (including free speech, expression, or assembly). The city has now replied with a court filing even longer than Occupy's. Together they provide the first full airing of the differences between the two groups' positions on the Occupation in Lincoln Park. We've read the lot, and found some fascinating passages in both filings.

From OccupyMaine

• Occupy observes something rarely considered in Maine courts: that the state Constitution provides additional rights beyond those recognized in the US Constitution and its First Amendment. One such Maine-specific right is "to institute government and to alter, reform, or totally change the same, when their safety and happiness require it." The Occupy suit stops short of saying this is what the Occupiers are doing — though it does suggest that it's what they want.

• While tacitly admitting that the decision-makers at least paid lip service to content-neutrality while denying OccupyMaine's petitions to stay in Lincoln Park, the suit argues that the markedly colder reception given by the City Council (as compared with the inviting welcome given to businesses) constitutes a content-specific action.

• OccupyMaine cites the oft-vilified Citizens United ruling by the US Supreme Court as offering protection to the encampment, saying the Supreme Court "has observed advocacy of a politically controversial viewpoint is the essence of First Amendment expression."

• The Occupiers say that tenting is "integral to the protestors' message," though many Occupiers have been working very hard to establish the Meg Perry Center as a base of operations, and to expand protest activities well beyond the encampment.

• The Occupiers say Portland's anti-loitering ordinance prevents any assembly in the overnight hours, with no exceptions for Constitutionally protected speech or other permissible actions, and argue that this is too restrictive.

From the city of Portland

• Under cover of claiming that descriptions of several discrete parts of relevant public meetings are "summaries" of those entire meetings, the city denies reality by, apparently, claiming certain interactions never happened — such as, for example, the December 7 comments by Martin Steingesser that the city granted a multi-million-dollar tax break to the Pierce Atwood law firm.

• In a further departure from actual facts, the city claims OccupyMaine has not demonstrated in the park, nor protested on sidewalks, nor marched in the streets. The group members "have done absolutely no active protesting other than just living in the park 24 hours a day, 7 days a week," says the city's filing.

• The city admonishes OccupyMaine for filing suit, despite the clear expression by councilors that a lawsuit would be preferable — with councilors Jill Duson and Kevin Donoghue specifically urging getting to court quickly. And it claims suffering "significant harm," though the primary municipal expenditure is as much as $15,000 in hiring an outside lawyer to handle the case, rather than using the city's staff attorney.

• The city says it will not forcibly evict the Occupation. Responding to a passage in the Occupy suit saying "Absent . . . relief by this Court . . . the [Occupiers] face . . . forcible removal by the Portland Police Department," the city says: "City denies the . . . allegations."

• The city gives express written permission for a 24-hour continuous march through Lincoln Park: "OccupyMaine members could march through the park after 10:00 p.m. while expressing their message in a peaceful way, and there would be no ordinance violation." It also gives OccupyMaine specific permission to engage in "their expressive activities twenty-four hours a day on adjoining sidewalks or in other public spaces not subject to the City's Parks Ordinance."

Press releases: New faces

Published in the Portland Phoenix

The Portland Press Herald/Maine Sunday Telegram and its sister papers announced at 4 pm last Friday that an effort was under way to bring in new owners to take over the papers, in the wake of Richard Connor's abrupt departure back in October.

Led by Chris Harte, who back in the pre-Blethen 1990s was president of the Press Herald, the prospective investors say they want to add capital to the papers, and talk nicely about committing to the community. (Personally, Harte has long been a generous giver to causes in town and around the state.) But the announcement also mentioned "disciplined management," which could be corporate-speak for additional cuts.

Releasing news late on Friday afternoons is often a way to limit aggressive reporting on controversial announcements, because fewer reporters work weekends, and because sources can safely claim to be out of the office, and thereby avoid tough questions — at least until the initial round of stories comes out with the news itself.

In any case, there are plenty of important details to be fleshed out over time.

First, there's the deal itself, which is not yet done — rather, the existing owners and the new investors have agreed "terms" under which the investment would happen. So it's really an announcement of nothing except what most Press Herald watchers assumed was happening: talks with potential investors about who is going to run the company now that its only media-experienced leader, Connor, is gone.

Next, the prospective new investors haven't yet met with the union representing most of the company's workers. That's actually two problems. The union is a part owner of the company, and apparently hasn't had any say in the terms of this deal; it is a minority owner, but being denied a seat at the table for discussions like this is a serious blow to the union's claim to a voice in management. And it raises extremely big questions about worker compensation; while the union trumpeted the fact that in September it reached a contract that did not include wage or benefits cuts, that's only true because the new agreement punted talks about pay and extras to the middle of 2012.

Those are the most pressing questions, but there are others. Harte, an heir to the Harte-Hanks newspaper fortune, is a major investor in Current Publishing, a group of community weekly papers covering the southern and western suburbs of Portland. (I worked at Current Publishing for four years, ending in 2005.) It will be interesting to see whether his involvement will lead to increased competition — or perhaps collaboration — between the weeklies and the Press Herald.

Harte politely declined to comment for this piece, saying it was "too early" to say anything. But over the years, in previous conversations with me, he had always specifically denied there was any substance to the recurring rumors that he was interested in purchasing the paper. Perhaps it was a much lower cost than ever before that got him this time, or public-spiritedness on the part of a longtime newspaperman. It's certainly not without bitter awareness of the risk; when the Minneapolis Star Tribune exited bankruptcy in 2009, he walked away empty-handed, leaving millions in investments behind.

Other major investors' effects on the paper will be worth watching, too. The group includes greeting-card executive Aaron Kushner, who told Boston magazine in 2011 that he would not guarantee editorial independence from owners' influence if he were able to purchase the Boston Globe from the New York Times Company.

And there's Jack Griffin, often described as former Time Inc. CEO — but he held that post for just five months before being booted in February 2011 because "his leadership style and approach did not mesh with Time Inc. and Time Warner," according to an email to Time employees from Griffin's boss at the time. Before that, he had been head of the Iowa-based company publishing Better Homes and Gardens,Family Circle, and Ladies' Home Journal.

As for Connor, remember the houses he transferred into his wife's name the day before abruptly tendering his resignation? The Falmouth one (oceanfront, with six-bay garage) is on the market, asking $2.7 million.

Better by the dozen: Twelve sweet ideas for Maine in 2012

Published in the Portland Phoenix; what's below are my parts of a longer piece co-written with Deirdre Fulton and Nicholas Schroeder

Improving opinion polling

Pretty much as soon as the champagne glasses are empty, the state — and the nation — will return to Election Mode. With the presidency, one of Maine's US Senate seats, and the entire state legislature in the running, it'll be impossible to avoid the blitz of advertising, reporting, campaigning. At the core of much of that noise will be public-opinion polls, asking about issues, candidates, political parties, and anything else campaigns and pollsters can think up.

Polls obviously influence campaign efforts and media coverage, but they can also affect campaign contributions and support, particularly in multi-candidate races, as many of 2012's are shaping up to be. For all those reasons — and because polls can offer deeper insights into our collective psyche — it's important that opinion polling be done well.

But what, exactly, does that mean? The central piece is that the way the poll is conducted — from selection of the people who are polled, as well as how they are screened (to find likely voters, for example), and reporting of the results with complete statistical information (margin of error, confidence level) — is made public, so we can know how to respond to the results.

Of course, this takes a degree of public comfort and familiarity with the mechanics of polling — most especially, understanding the statistics behind why, and how, properly sampled groups of 400 to 700 people can, in fact, truly represent the opinions of much larger populations (like a 1.3-million person state, or a 300-million person nation).

The Maine People's Resource Center, a non-profit affiliated with the progressive Maine People's Alliance, has been working for the past couple years on establishing a poll-savvy culture here in Maine. By doing its own polls and releasing not only the results but the underlying data, and critiquing the available information about other polls conducted in Maine (by pollsters in-state and from away), MPRC is elevating the discourse around what Maine people actually think and want.

As the only group that conducted a poll for Portland's first-ever ranked-choice voting mayoral slate, by releasing all of its raw data as well as its methodology and analysis, and certainly as an organization willing to engage in discussions about polling, MPRC is bringing transparency and accountability to a challenging area of public debate. "When people make an argument based on public opinion, they are in a way speaking with the voice of all of us," says MPRC communications director Mike Tipping, explaining why his group is working to improve understanding of what public opinion actually is, and how various pollsters measure it — and is putting its own polls at the forefront of transparency, accountability, and open discussion. With MPRC's help, we'll all be better informed about the real state of Maine politics in 2012, no matter which polls we're looking at.

Wine by the tap

The Maine incarnation of an emergent global trend popped up at Havana South in Portland a couple years back, but is only now gaining momentum, and may really expand in 2012. It's wine in a keg. A boon to wineries, shippers, distributors, restaurants, and wine drinkers alike, wine that is "bottled" in sixth-barrel-sized kegs saves on materials, shipping, and storage, and keeps wine fresher longer. One such keg holds 220 glasses of wine, says Eric Agren, owner of Fuel, a Lewiston restaurant that joined the wine-keg movement a couple months ago. "That's equivalent to cases and cases and cases of wine," he says, marveling at the reduction in glass, cork, cardboard, and fuel needed to package and ship it all.

Kept under pressure with nitrogen, and with white wine run through a cold plate to chill it before dispensing, the kegs save Agren "about 30 percent on the cost of the wine," allowing him to charge $7 a glass for each of his two kegged wines, instead of the $9.50 he would charge if that same wine were poured from a bottle. With an investment of just a few hundred bucks for a tap and pressure system, it's a relatively easy way to save money for restaurants — and isn't out of reach for aficionados at home.

The major stumbling block, Agren says, is consumer perception. Keg wine is not box wine; rather, it comes from the high-end boutique wineries that are most concerned with green practices (like organic vineyards, carbon-neutral production, and so on), so the quality is not a concern. Best of all, like beer kegs, the wine kegs get reused, going back to the winery for cleaning and refilling over and over. It's almost like a neverending supply of eco-friendly, delicious wine!

Looking ahead to 2012

Published in the Portland Phoenix; part of a longer piece co-written with Deirdre Fulton - what's below is my part

Occupy Maine (and everywhere else)

While its members (and the rest of the 99 percent) wait to see about how OccupyMaine fares in court — and in possible multiple rounds of appeals and requests for reconsideration — they're not resting on their pallets and sleeping mats. After the lawsuit was filed, OccupyMaine's outward-looking activist efforts stepped up noticeably, with several rallies and events, including screening an inspirational film about the Arab Spring, supporting clean air and peace on Earth, attending a ceremony remembering homeless people who have died, and continuing the weekly series of community discussions and potluck meals.

In Augusta and elsewhere around the state, Occupiers no longer in encampments are planning how to approach lawmakers when the Legislature comes back into session. And nationally, the movement is retooling as well, with possible futures ranging from spreading the movement across the nation (in the style of Spain's indignados), continued General Assemblies (like in Boston), official recognition (such as Portland Mayor Mike Brennan's offer to create a mayoral task force reviewing issues Occupy has brought to the fore), and continued spotlighting of human-services needs (as seen in the OccupyMaine meetings with Portland officials that resulted in housing for several homeless protesters). Around the country there have been Occupy actions protesting foreclosures; look for something along that line to happen locally too. There's even a suggestion (from former Wall Street regulator Eliot Spitzer) that the slogan change to We Own Wall Street, and that efforts shift to shareholder activism by the millions of Americans who own mutual funds, retirement accounts, and other investments — with the goal of demanding that corporate officials respond to not just the needs of our democracy, but also of their real owners, the American people.

We'll also see how the Occupy message and its larger philosophies affect the 2012 presidential race. President Obama has already issued some 99-percenter rhetoric, and GOP candidates are struggling to respond to their financial backers and their voters, who have never seemed to overlap less. Closer to home, the Occupy movement appears ineffective in penetrating Governor LePage's single-minded neoconservative agenda, but it remains to be seen whether state Republicans in a legislative election year will stick with him or shift left with their constituents.

Portland City Council to #OccupyMaine: No dialogue here

Published at thePhoenix.com/AboutTown

It appears time to consider the possibility that the pro-business, anti-public ethos that plagues American politics has also started to infect Portland's city council.

To wit: Most Portland city councilors love to make deals with corporations, but have no interest in finding a way for people to protest overnight in city parks, despite repeated attempts on the part of OccupyMaine members, the city manager, the city attorney, and even a fellow councilor to persuade them to try it.

Perhaps they were swayed by statistics from the police department showing increased activity right outside the police station's back door, at the Lincoln Park encampment. Perhaps they were unpersuaded by an Occupy supporter's mention that comparing police calls at Lincoln Park today to a year ago is like comparing police activity at a stadium on game day as opposed to a midweek afternoon, or from another's that the same activity has happened in Lincoln Park for years but nobody called the cops until Occupy started.

In any case, despite repeated and increasingly clear statements that the petition from OccupyMaine was a starting point for discussion and could be amended to the council's pleasure - the same way all proposals from businesses are - seven councilors and the newly elected mayor, Mike Brennan, voted to reject the application as written, with no dicussion of modifications that would have a better chance of being acceptable in the future.

Here are several interesting statements from the councilors, followed by particularly sharp points from the public comments section, at which 53 people spoke, with just five opposing the Occupation.

IMPORTANT: So far, city officials - including Brennan and Acting Police Chief Mike Sauschuck - have been very clear in their assurances to the Occupy group and to the media that no forcible eviction is planned, and that the group has time to react to the city's decision without fear of violence, as has happened in other cities.

The councilors

When councilors spoke, they typically followed a basic pattern, stating their First Amendment support and respect, and then shutting down the most innovative, disruptive form of free speech, expression, and assembly the country has yet seen in its history.

Ed Suslovic appeared stuck for quite a while on technicalities of paperwork, and several times said he wanted city staff's guidance on whether what OccupyMaine had submitted would be considered legally complete.

His major issue, though, was about limiting the numbers in the park, a key request from city staff on public-safety grounds. Suslovic was worried about who would control or enforce that limit. He did not propose a solution, but simply observed that it was a problem for him, calling it "giving one group exclusive license over public property."

He also claimed "we gave ample feedback" at the Public Safety Committee meeting, which he chaired - and which unanimously rejected an earlier version of OccupyMaine's petition, without proposing any specific amendments that might have passed muster.

He specifically said he doesn't want to open parks to the public 24/7.

Cheryl Leeman initially claimed that the council was to be voting on the petition as is, and said "there's no negotiating those terms," triggering yet another round of assurances that it, like any other request that comes before the council, could be entirely rewritten by the council if they chose.

She outright admitted she didn't get the message: "I disagree that a permanent encampment is required to support the mission of OccupyMaine."

She objected to the "contradictory" nature of limiting the size of the protest - though the city wanted that, not the occupiers - and called it "exclusionary."

She also admitted that never in her many years on the council has she dealt with anything like this.

And said "from a technical standpoint, it's all wrong" and specified that while she is interested in talking about the issues OccupyMaine is raising, she is not interested in talking about the encampment.

John Anton, in heartfelt comments, seemed earnestly to be seeking dialogue with the Occupiers, telling his fellow councilors that "there is a third path" they could take: "there is yes, no, or continue to talk."

He also summarized the disconnect well: "We have two very earnest cultures that are expressing themselves in very different ways" - the council and Occupy.

Inviting a new application with more specifics, he said it was his belief that the "First Amendment trumps municipal ordinances, and the boundaries of that are unclear."

Urging them to continue, he told Occupy: "I feel like we do our best work as a council when we're out of our comfort zone. That's what you're doing."

But then, having said a lot of nice things about dialogue, he didn't take the "third path" he had suggested. He voted no.

David Marshall took up the mantle he declined at the public safety committee meeting, and became a voice for continued conversation with Occupy. "I feel we should really continue dialogue," he said. "It would be a great gesture on the part of the city."

"We're in this position because of decisions the city has made" and requests the city has made that Occupy has honored. "I don't see that the Occupiers are doing anything illegal."

He said he had expected that the council would go through the petition closely and work on it, making changes and suggestions along the way. But instead, "We have a council that's not willing to negotiate" - even though the city makes exceptions to rules all the time.

He said the First Amendment is "more than just freedom of speech . . . it says that you cannot abridge the freedom of assembly" - and therefore, he supported the Occupiers' right to assemble 24/7 in Lincoln Park.

Jill Duson said she supports 24/7 protests "anywhere in the city" but said freedom of speech is not "freedom to convert a public park into a residential community."

"I think it's better for us to get to court as soon as possible," she said, adding: "We ought to just deny it and allow a court to decide whether freedom of speech includes occupation of a public park."

Nick Mavodones, like Leeman, admitted he didn't grok the concept of the Occupy movement: "I don't think it has to be a 24-hour protest."

He also said some other confusing things: "taking over and living in the park right across the street is problematic" - thereby admitting that Occupy's existence is a message, and suggesting he didn't want to see it.

Then he got really mixed up. "I have no issue with people protesting in that park whenever they feel it's appropriate," he said, going on to contradict himself by telling the Occupiers that even though they clearly did think it "appropriate" to protest overnight, he had an issue with that.

John Coyne, among the most militantly Occupy-opposed councilors from the early days of the protest, suggested that the sum total of "what goes on down there" is crime, and then went so far as to suggest that kicking them out of Lincoln Park would "reduce crime by 30 percent." He appeared to draw that figure from statements by Sauschuck that 30 percent of the arrests in the Old Port area between October 1 and December 5 were in Lincoln Park. He appeared not to assume that several of those arrests, including of a man wanted on a warrant from New York, would have happened elsewhere in the city.

He also drew smirks when he called the Occupy movement a "special-interest group."

Kevin Donoghue also seemed to be mixed up about the inclusive nature of the movement, and the reason Occupy proposed limiting protesters' numbers. "We are talking about exclusive use of space," he said, urging the Occupiers to seek redress in court "not as a confrontational venue but as a clarifying venue." In closing, he dismissed much of the evening's work by saying, "I do appreciate the exercise."

Mike Brennan acknowledged that both OccupyMaine and the city recognize the current situation isn't working, and said what's been submitted doesn't address the problems yet. He said he wants to work with Occupy on this (and followed that up after the meeting with a request to meet with Occupy attorney John Branson on Thursday afternoon).

"I do believe that the issues here are deep enough, are important enough" to warrant additional work by the city, he said, "to see if in fact there is a permit that can cross the Ts" that other councilors were concerned about.

In the event of no approval, he expressly promised no excessive force in removing the protesters: "We are not interested in being Oakland. We are not interested in being New York."

And even when it was clear that the council would vote no (with Brennan among them) that night, he said, "there's still an opportunity tomorrow to engage in dialogue."

The public

OccupyMaine attorney John Branson observed that the protest is against "the corporate takeover of our public spaces and our democratic government," and said the nature of the protest is "a form of speech, assembly, and demonstration that requires by definition the ability to maintain a continued presence in public space."

Former US Senate candidate Bill Slavick reminded the council that during the Great Depression, the government put millions to work in a matter of weeks - and observed that no such action is happening now. "Enough of greed rampant."

Rachel Lyn Rumson read OccupyMaine's statement for redress of grievances, as approved by the December 4 GA: "OccupyMaine seeks initial redress of grievances and hereby requests that the City of Portland take the following actions:

1. Withdraw all City funds from TD Bank and transfer those funds to a locally owned bank or credit union.

2. Develop methods for increased direct democracy and public engagement, including, as a starting point, making the State of Maine Room available for a weekly City of Portland General Assembly that would develop proposals and recommendations for consideration and action by the City Council.

3. Increase support for homeless people in Portland including those who have come to live at Lincoln Park. Begin by working with homeless people in Lincoln Park to get them into housing and address other needs that they have.

4. Create a 24-hour free speech and assembly space in Monument Square where people can assemble at any hour to engage in non-commercial First Amendment activity."

Local activist and business owner Jonah Fertig said "our democracy is getting bought out by corporations," and specifically said "I want to hear the city council talk about the corporations and the bankers."

Corporate lobbyist Chris O'Neil of the Portland Regional Chamber revealed much of the hypocrisy the Occupiers are decrying, both by saying he wasn't going to talk about constitutional questions and then spending most of his time doing exactly that, and by admitting he represents "the chamber who is often here decrying regulations" but said the ones preventing free speech in public spaces "are there for a reason"

Zachary Heiden, legal director of the American Civil Liberties Union of Maine, said negotiations were possible, and were indeed the right way forward. "There is a way to address these concerns" of safety and health, he said, urging the councilors to "try to find a way to say yes to this group rather than trying to find a way to say no."

Francis Martin, known in camp as "Seamus," said "I have lived in Portland in a tent for years . . . I live in a tent hidden in the woods" but only now that he is living in a tent in Lincoln Park does he feel like he belongs.

Robert Witham Jr. said the city right now provides no place to protest 24/7, but for people who take things very seriously, that's a limit - the law actually prevents people from taking things so seriously that they're willing to protest 24/7.

Martin Steingesser said the city supports corporations all the time, including the Pierce Atwood tax break. He also said that if the encampment must be removed, city councilors should be on site to observe and supervise

John Newcomb of the Maine AFL-CIO and the Southern Maine Labor Council suggested the city spend some money on free speech, pointedly observing, "look at the money some of you have spent just on this election, Mayor Brennan." (Brennan spent $41,075, according to campaign-finance filings.)

Brian Leonard said chief city building inspector Tammy Munson was thorough, but suggested she was overzealous and drew a parallel to the tough conditions earlier patriots endured: "I'm terribly sorry she wasn't there in General Washington's encampment at Valley Forge."

Alan Porter said peace in Lincoln Park is possible. "For five weeks we did enjoy peace . . . "It wasn't until the closing of Milestone that it all fell apart." That happened on November 1, when federal funding problems forced the 41-bed emergency shelter to shut down, which lasted about 10 days. Then, Porter added, "once-traditional camping areas for our city's homeless were broken up."

In a final observation that Lincoln Park has always been home to the homeless, he said, "No matter your decision, there will be people who stay in the park after you tell them to go."

Other speakers, whose names I didn't hear, and who I was unable to track down in the crowd, said several interesting things.

One man decried the encampment as a "magnet" for problems that previously occurred in less visible places in the city, and seemed to suggest those issues should go back into hiding.

Another noted that the city spends massive resources supporting corporations with TIFs and tax incentives, and lamented that it is apparently unwilling to spend even a little bit to support free speech.

Another supporter observed the alternatives to working with the Occupiers, describing the police violence in other cities that led to standoffs, even larger protests, and lawsuits. Suggesting the city could choose, she asked if they wanted a forcible eviction with cartoonishly disproportionate municipal violence, or "do you want to just call us up and say that's not allowed under the permit."

A woman observed that no permit was necessary for the "early patriots" who gathered and sometimes camped, nor for the lunch-counter sit-ins of the Civil Rights Movement.

A senior at UNE who is studying to be a teacher spent his three minutes of talk time lecturing Occupy on how to be effective, suggesting the group work "through the system that we have," apparently without irony, and definitely without observing that they seek to change that system, not perpetuate it by participating in it.

One person said the Occupiers were using toilets belonging to local businesses, but the claim rang hollow with no business owner (nor even any business-group lobbyist) saying there was a problem.

One warning may ring truest of all, from a Marine veteran quoting John F. Kennedy: "Those who make peaceful revolution impossible will make violent revolution inevitable."