Sixth Circuit Offers Immunity in ACLU-TN's Occupy Nashville Lawsuit

Affiliate: ACLU of Tennessee
October 8, 2014 12:00 am

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ACLU of Tennessee
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Lawsuit Still a Victory for Free Speech

October 8, 2014

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CINCINNATI – The United States Court of Appeals for the Sixth Circuit today ruled that two Tennessee officials are entitled to qualified immunity in the ACLU-TN lawsuit Occupy Nashville et. al., v. Haslam et. al. While the opinion indicates that the state officials cannot be held personally liable for damages, it does not alter the lower federal court ruling that the state violated the First Amendment rights of Occupy Nashville protesters.

The following can be attributed to David Briley, ACLU-TN cooperating attorney:

The right to free speech and protest are crucial to democracy. The state cannot just arbitrarily limit free speech in any manner it wants to, and state actors should be held accountable for their actions. We disagree with this opinion, issued by judges from outside of the Sixth Circuit, and are currently evaluating an appeal.”

The following can be attributed to Hedy Weinberg, ACLU-TN executive director:

“While today’s ruling is disappointing, the lower court opinion safeguarding Tennesseans’ free speech and the essential guarantees of the First Amendment still stands. This case is ultimately a win for Tennesseans’ right to assemble and protest.”

In a ruling underscoring Tennesseans’ right to political speech, a federal judge ruled last summer that the state of Tennessee’s arrest of Occupy Nashville protesters was an unconstitutional violation of their First Amendment rights.

ACLU-TN filed the lawsuit in October 2011 after the State of Tennessee met in secret and revised the rules controlling Legislative Plaza to implement a curfew and require use and security fees and $1,000,000 in liability insurance prior to community members engaging in assembly activity. The state then arrested the Occupy Nashville demonstrators under the new rules. Prior to their arrests, the demonstrators had been gathered at Legislative Plaza in downtown Nashville to peacefully express their frustration with the government for a couple of weeks.

William L. Gibbons, Commissioner of the Tennessee Department of Safety, and Steven G. Cates, Commissioner of the Tennessee Department of General Services, filed the appeal for qualified immunity. The entire Sixth Circuit recused themselves from the appeal because Gibbons is married to Sixth Circuit judge Julia Gibbons. Three judges selected from other circuits heard the appeal.

The plaintiffs are represented by ACLU-TN cooperating attorneys David Briley of Bone McAllester Norton PLLC; Patrick Frogge of Bell Tennent & Frogge PLLC; Tricia Herzfeld of Ozment Law; and ACLU-TN legal director Thomas H. Castelli.

The Sixth Circuit opinion can be found here.

ACLU-TN’s brief to the Sixth Circuit can be found here.

The original order for this case can be found here.

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