Protestor’s First Amendment Rights Violated by Federal Agency’s Unusual Enforcement of Plaza’s Business Hours

The U.S. District Court for the District of Oregon granted summary judgment in favor of the protestors, holding that a federal agency’s permitting scheme and the changing of the hours of the protestors’ use of a public area violated both established procedure and the protestors’ First Amendment rights.

Occupy Eugene (OE), a group of protestors, agreed to apply for a sixty-day permit form the U.S. General Services Administration (GSA) to protest at the plaza of the Eugene Federal Building (Plaza) in Oregon. The permit was granted and soon before the permit expired, OE would not accept new conditions imposed by GSA restricting the time OE could continue protesting at the Plaza, and OE was consequently evicted. OE returned at a later date to protest again despite warnings to leave. Refusing, OE subsequently filed a suit in the district court, challenging GSA’s permitting scheme, and OE later sought summary judgment on several grounds. On September 10, 2014, the district court granted summary judgment, finding that GSA’s failure to provide notice and comment violated a federal act and that GSA’s unjustified time restriction violated OE’s First Amendment rights.

OE, a movement with the ideal of furthering fairness in the United States government, gathered at the Plaza with some of its members on May 1, 2012 to demonstrate. Upon a federal officer’s request, OE submitted a permit application to GSA for use of the Plaza for sixty days, with one of OE’s members, Terrill Purvis, listed as the contact for OE. GSA approved the application, which contained no time restrictions for the Plaza’s use.

Shortly before the permit’s expiration, the Regional Director of GSA, Wayne Benjamin, informed OE that a renewed permit would allow its use of the Plaza for thirty additional days, but only from 8 AM to 5 PM, Monday through Friday (“business hours”). Nevertheless, on June 27, 2012, OE filed an application with no time restrictions for the thirty days. GSA then offered the hours 7 AM to 10 PM, seven days a week, though OE rejected that as well. On July 9, 2012, GSA ultimately denied the permit, citing OE’s insistence “to maintain a presence in the Plaza 24 hours a day” and GSA’s “interest in preserving the Plaza for use by the general public, maintaining an aesthetically pleasing area, and keeping all public safe.”

On July 10, 2012, GSA informed OE’s members that they must leave within 24 hours or police would be called to the scene. OE refused, believing to be justified to protest without a permit. The next day, police arrived at 2:45 PM. Threatened with arrest, all OE members, except Florence Semple, vacated the area. She stated that she would not leave without an arrest or citation. Semple was arrested but charges were eventually dropped. OE returned to protest on December 13, 2012, and on the following day, Kimberly Gray, Associate Director of GSA, delivered a letter declaring that OE must leave or risk arrest. The letter contained no justification or alternative.

OE continued to protest anyway, and on December 18, 2012 OE and its members Semple and Purvis filed a suit in the district court against GSA and its officials Benjamin, Gray, and Acting Administrator Dan Tangherlini. The plaintiffs challenged the permit’s denial under the Administrative Procedures Act (APA) and raised two Bivens claims. The district court dismissed the Bivens claims on December 3, 2013, and then turned to the plaintiffs’ APA claim and subsequent motion for summary judgment.

In support of their motion, the plaintiffs argued First Amendment violations through the permitting process when GSA (1) did not allow spontaneous protests, (2) restricted the plaintiffs due to the content of their speech, and (3) applied a restriction not specifically targeted to serve a significant government interest. Additionally, the plaintiffs claimed that GSA violated the APA by not providing notice and a period of comment on the change to the business hours. GSA rejected these arguments and counter-moved for summary judgment.

First, the district court found no evidence of the plaintiffs’ spontaneous protests. Next, the court examined whether GSA’s imposed time restriction was content based or content neutral. GSA asserted that its decision arose from a codified regulation governing “access to the public area” and “approved uses of the property by tenants or the public” while the plaintiffs countered that the decision originated from GSA’s own regulations mentioning Occupy groups. The district court concluded that neither set of regulations indicated the content of OE’s message, with GSA’s regulations “aimed at handling a certain type of protest,” i.e., OE’s protesting 24 hours a day despite public health or safety concerns. The regulations were held to be content neutral and not a violation.

However, the district court determined that GSA’s business hours restriction was not “narrowly tailored to support legitimate government interests,” which violated plaintiffs’ First Amendment rights. As evidence, the court pointed out that the Plaza’s listed hours of operation were from 6 AM to 11 PM, that it was normal for groups to plan events outside business hours and without a permit, and that GSA could not justify its position against the plaintiffs. Using the example of Semple’s arrest and OE’s eviction, the district court rejected GSA’s argument that it never enforced the business hours limitation.

Finally, stating that [o]nly substantive [rather than interpretive] rule changes require a notice and comment period under the APA,” the district court determined that GSA’s enforcement of business hours was one such rule that required this period. While the court recognized that “GSA is entitled to use its discretion in enforcing its permitting scheme,” GSA’s switch from an initial unrestricted permit to one suddenly more restrictive then the posted open hours was held unacceptable and to violate the APA.

The district court therefore granted summary judgment for the plaintiffs. See: Occupy Eugene v. United States GSA, 43 F. Supp. 3d 1143 (D. Or. 2014).

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