ACLU Protects Free Speech Rights of Capitol Protester
Intervention Stops Haphazard ‘Policy’ Enforcement
December 2008 -- The ACLU of Oregon intervened on behalf of a protester on the state Capitol steps whose constitutional right to free speech was being squelched by the rigid enforcement of vague state “policy.”
Since early November, Michele Darr has been staging a round-the-clock anti-war protest on the Capitol steps in Salem. Specifically, Darr is calling for an end to the Oregon National Guard’s role in the Iraq war.
On at least two occasions, Darr was arrested and charged with criminal trespass. The charges stemmed from a vague -- and vaguely enforced -- state policy that appears to give the Legislative Administrator at the state Capitol some discretion in prohibiting use of the Capitol steps between the hours of 11 p.m. and 7 a.m.
In the past -- routinely since 2000 -- the state has allowed participants in a 24-hour Salem Bible Reading Marathon to use the steps. Darr’s protest is no different in that it causes no harm to any person or property and does not disrupt public access.
Following the arrests, the ACLU of Oregon intervened on Darr’s behalf, sending a Dec. 8, 2009, letter to the Marion County District Attorney and to Scott A. Burgess, Legislative Administrator at the Capitol building.
The letter outlined the ACLU’s belief that the state’s actions resulted in several constitutional violations, namely:
- Violations of Sections 8, 20 and 26 of Article 1 of the Oregon Constitution, which protect Darr’s right to protest on the Capitol steps, including candlelight vigils, her 40-day hunger strike, her display of political signs, her right to assembly and her right to petition the Governor for redress; and
- Violations of the First and Fourteenth Amendments of the U.S. Constitution, based on selective enforcement where she is being charged with a crime while carrying out activities others have been allowed to do for many years.
“The State cannot allow those expressing favored views to access the Capitol steps and then suddenly discover a ‘policy’ and decide to ‘reaffirm’ and enforce it in a manner which denies access to others,” the letter said.
Following receipt of the ACLU letter, the District Attorney dropped all charges against Darr. It is unclear, however, whether and how the state will continue to enforce its “policy.” The ACLU will continue to monitor Darr’s treatment as her round-the-clock protest continues.
ACLU Cooperating Attorneys on the case are Michael E. Swaim of Michael E. Swaim P.C., and Timothy R. Volpert and David W. Blasher of Davis Wright Tremaine LLP.
