DOVER, Del. — Occupy Delaware protesters can use a downtown plaza in Wilmington as they see fit pending a hearing Friday in a lawsuit claiming that the city is violating their rights of assembly and free speech, a Chancery Court judge ruled Thursday.
Vice Chancellor Sam Glasscock III said he would enter a temporary restraining order that would remain in effect only until the end of Friday’s hearing. He will decide then whether to enter a longer restraining order or an injunction in a lawsuit filed by the American Civil Liberties Union on behalf of Occupy Delaware.
“I take these free-speech issues very seriously… The right to free speech is of utmost importance to a free society,” Glasscock said during a telephonic hearing with attorneys.
Glasscock said Thursday’s order would allow Occupy Delaware protesters to use Spencer Plaza as they see fit, including erecting tents and camping overnight, without having to pay $200 for a permit. Instead, an Occupy Delaware participant who signed an affidavit accompanying the lawsuit will be required only to post a $200 unsecured bond.
The lawsuit argues that the city is violating the rights of the protesters by requiring them to obtain a permit for use of the plaza and prohibiting them from erecting tents or other structures. It also claims the protesters should be able to camp in the plaza overnight, which the city maintains is not allowed.
Assistant City Solicitor Rosamaria Tassone-Dinardo said the protesters can enter the plaza and sit on benches day or night, but they cannot establishment an “encampment” without a permit.
ACLU attorney Richard Morse argued that erection of tents is integral to the Occupy Delaware protesters because they are “symbolic speech.”
“That’s as important to them as the signs they put up,” said Morse.
“The speech here is the occupation itself, and not necessarily the tent,” she said, noting that protesters have been allowed to “occupy” a sidewalk in front of the plaza overnight as long they don’t block it.
Attorneys also argued over the intended use of money from the permit fee.
Tassone-Dinardo said a portion of the fee is dedicated to maintenance of city parks and facilities, and that another portion of the fee can be refunded if a group cleans up after itself.
She also said there is no evidence that the protesters can’t pay the fee.
But Morse said the city cannot charge a fee that is not directly related to the specific costs resulting from protected First Amendment activity. He seized on the city’s suggestion that permit fees could be used to renovate Spencer Plaza.
“That ought to eliminate any discussion of a fee,” he said.
Morse also argued that the code language the city has cited in support of the permit requirement is so broad it could result in a fine for a person who simply walks across a downtown square or plaza without a permit.
Tassone-Dinardo said such a reading of the code was “absurd.”
She also took issue with the ACLU’s contention that the tents do not pose security concerns for the federal courthouse adjacent to the plaza. She said the U.S. Marshal’s Service and Homeland Security officials agree that the tents would pose safety and security concerns.
Given that Occupy Delaware has no formal membership, anyone could take part in the group’s encampment and use it as an opportunity “to basically have a terrorist act” by hiding a bomb inside a tent, she suggested.
Glasscock agreed that erecting tents would raise a legitimate security concern. He urged attorneys to consider whether there could be “reasonable restrictions” in Spencer Plaza or another site in the city that is not next to the federal courthouse.