Judge Lets Occupy Fort Myers Back Into Park

(CN) - Occupy Fort Myers demonstrators may camp in Florida's Centennial Park as long as they don't cause trouble, a federal judge ruled.

In an injunction issued last week, U.S. District Judge John Steele blocked city officials and police from enforcing certain ordinances that may violate protesters' First Amendment rights.

Thirteen individual protesters sued the city on behalf of the Occupy Fort Myers movement, saying local ordinances regulating use of the park were unconstitutionally vague and violated their rights to free speech, assembly and due process.

After authorizing a rally in downtown Fort Myers on Oct. 15, the city said protesters needed a permit to stay in the city-owned Centennial Park overnight. But first the protesters would need a $1 million liability insurance policy. If granted, the activists would have to renew their permit and insurance policy every 10 days.

Occupy Fort Myers claimed it had no money to pay for insurance, even if it could find a company willing to issue such a policy. Since the protesters were unable to comply with the insurance requirement, Fort Myers enforced its ordinance prohibiting afterhours park camping and ticketed offending protesters.

Fort Myers has issued at least one $135 citation to 11 individuals for "their involvement in symbolic First Amendment-protected speech," according to the complaint.

Occupy Fort Myers argued that its participants' activities, which include 24-hours-a-day camping in the city park, with demonstrators "rotating" in and out, represent expressive conduct protected by the First Amendment.

Countering that the activities constitute commercial speech that falls outside the First Amendment, Fort Myers noted that protesters solicit donations of money, food and supplies.

The court disagreed last week. "The court finds that in the context of this case the tenting and sleeping in the park as described by plaintiffs' counsel is symbolic conduct which is protected by the First Amendment," Steele wrote. "The conduct of tenting and sleeping in the park 24 hours a day to simulate an 'occupation' is intended to be communicative and in context is reasonably understood by the viewer to be communicative. This expressive conduct relates to matters of public concern because it can be fairly considered as relating to matters of political, social, or other concern to the community and is a subject of general interest and of value and concern to the public."

Requiring a city permit for parades or processions on public streets and meetings on public property is unconstitutional, the judge found. Fort Myers had even promised to repeal certain sections of the ordinance in 2004, but failed to do so and instead re-enacted the "parades and processions ordinance" in 2006, according to the 40-page decision.

Though Fort Myers claimed that it does not plan to enforce the law against Occupy protesters, Steele said the plaintiffs need not rely on such representations.

Occupy Fort Myers also challenged an ordinance that allows the recreation manager to extend park hours for specific activities, such as athletic, cultural or civic events. The plaintiffs claimed that the law was content-based and gave the recreation manager unbridled discretion to enforce it against them.

While limiting extended park hours to certain events is unconstitutional, Steele refused to strike down the whole ordinance because it serves the city's legitimate interest to close the parks at night.

Since revocable permits do not guarantee against enforcement of the ordinance, the court also rejected Fort Myers' claim that the plaintiffs lack standing to challenge city laws prohibiting "unauthorized persons" from sleeping or lounging on benches and other areas in the park.

It is also unconstitutionally vague for the ordinance to prohibit "protracted lounging" in the park, as well as conduct "tending" toward breach of the public peace, Steele ruled. But the plaintiffs "have not established that they are likely to succeed on their claims to a fundamental right to lounge where, when and for how long they wish in a public park or to meet in a public park during hours it is closed to the public," the Nov. 15 decision states.

In the meantime, Fort Myers can continue enforcing a law that establishes a "special events advisory board" to make recommendations about public events within the city. Since the board has no power to implement any of its recommendations, the ordinance does not violate the First Amendment, according to the order.

Fort Myers rejected the protesters' permit-renewal application on Thursday and forced the group to move out of Centennial Park. Demonstrators moved their camp to the Unitarian Universalist Church of Fort Myers in South Fort Myers after Lee County Sheriff Mike Scott evicted them from the Old Lee County Courthouse on Friday.

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