Chipping Away at the First Amendment in Memphis, Tennessee

“No single encroachment upon liberty, considered alone, ever seems worthy of great effort to destroy. Ultimately, the established precedents justify the greater invasion, and the aggregate of these tyrannies become unbearable. Then comes the revolution…”

Free Speech for Radicals: Seven Essays 

--Theodore Albert Schroeder

When the First Amendment is conquered and handed over to der Trump or such a future embodiment, it will not have happened with advance notice, parades in the street, or Blue Angels flyovers. It will be death by a thousand cuts.

This is what we are witnessing in America, especially since Sept. 11, 2001, and now primed for acceleration in the Trump era.

The City of Memphis is not exempt.

A recently proposed replacement of the current “Parades and Public Assembles” ordinance, Chapter 12-52, has drawn attention, partly because it has been pitched as less than what it is.

Link to newly proposed ordinance:

https://drive.google.com/file/d/15o1ag4oiLvh0sKDjhDCac-bMpheShNv9/view

Link to existing ordinance which would be replaced:

https://library.municode.com/tn/memphis/codes/code_of_ordinances?nodeId=TIT12STSIPUPL_CH12-52PAPUAS

“This only applies to parades and races,” City Council member and ordinance sponsor Reid Hedgepeth told the City of Memphis Public Safety Committee on Tuesday when only committee members Worth Morgan, Hedgepeth and Mativius Jones were in attendance. The ordinance passed unanimously out of committee and will begin its three-reading trek through the larger City Council on Dec. 5. 

Hedgepeth said citizens had complained to him about 3K and 5K races screwing up traffic in neighborhoods. One family complained that streets were so blocked that their child missed his Saturday morning sports event. Thus, the new ordinance requires that parade and race organizers apply with the city no less than 90 days before their proposed events and that they must give notice to affected neighbors, receive negative feedback and pay the police department for its costs. 

People unable to make it to a soccer match because of marathon runners in the streets might not be the only ones affected by this revised law, which is headed, “Parades, Races and Public Assemblies.”  Those desiring to partake in “public assemblies” are also required to make sure it’s OK with the neighbors, pay police for costs and get permits for any public gatherings.

Here are some of the differences between the existing ordinance and what is proposed, and the usurpations of the First Amendment, small and large, which could be used to block and make difficult future freedom of assembly in Memphis.

Permit 25 Persons or More

“Public Assembly” definition is changed from “a gathering of 25 persons or more” to “a gathering…” of no number specified. So, that means two or more?

Ask the Neighbors

Organizers of an event which involves movement of the group must post for seven consecutive days notification to “affected residents and businesses along said route” and file with the city its plan for such notification.  The new ordinance also would require the permits office to notify said residents and businesses. A condition of the permit considers whether MPD has received “written or verbal opposition from affected residents.”

Permit Filing Deadline

The ordinance for public assemblies is changed from 14 business days to 15 in advance of the event.

Spontaneous Events

Present ordinance waives the 14-day thing if an assembly is a “spontaneous event, occasioned by news or affairs coming into public knowledge within three days of such public assembly.” The proposed ordinance calls for seven days, so in this way it is less restrictive than the present law.

For example, after the city first said it would deny a Feb. 1 assembly protesting Trump’s anti-Muslin immigration order, it changed course and tried to save face by saying the assembly was allowed under the “spontaneous” clause.

Nonrefundable Permit Fee

The current fee is $25; the proposed ordinance states a fee of $___ left blank. Where “closure of public streets or diversion of the normal flow of vehicular traffic” is required, an additional nonrefundable fee of $100 – versus $50 currently – is required.

Explain Your Lane

A new provision requires that the permit applicant submit a statement justifying the need to “occupy an entire rather than a portion of a pedestrian or vehicular right-of-way.” 

The Price of Protest

A provision of the current ordinance states the applicant must pay for any police protection deemed necessary by the police director. The newly proposed ordinance adds details about the applicant paying for police services. We do not know of any instances when this has been pushed by MPD in assemblies over injustice or public policy issues.

However, language in both the present and proposed ordinances provides the police director with the leeway to deny a permit if the applicant does not pay for police to show up. The idea of policing an event which blocks or congests traffic should be just for that – directing traffic, not for policing free speech as we have seen.

One problem with all of this is the city’s paranoia over so-called “protests.” This has needlessly cost the city a lot of money as police have massively overreacted with personnel and even military equipment to such events as July and August 2016 protests outside Graceland; the afore-mentioned protest of the Diamond Pipeline on MLK Day this year at the Valero Refinery, and an Aug. 19 protest of Confederate statues at UT Health Sciences Park, where a 9,500-pound bronze statue of Rebel General Nathan Bedford Forrest rides high. 

The city also pays when its practices get it sued as it now has legal fees and exposure for police turning away African-Americans who sought to attend the 2016 candlelight vigil at Elvis Presley’s former home.

Out of 28 persons arrested at those three locations, every case out of Graceland and UT Health Sciences Park has been dismissed, several when officers did not show up at preliminary hearings.  Five cases out of 12 persons arrested at Valero were dismissed, including one independent journalist, one observer recording police with a cell phone and three who were standing on the sidewalk. 

Those arrests were prompted by free speech and public assemblies which discomforted the status quo. One University of Tennessee officer who made two arrests at the Rebel statue wrote in his affidavit, “an unlawful protest was underway.”  City attorney Bruce McMullen later claimed no one was arrested for protesting but for violating the law.  What law was that if all cases were dismissed? 

Police Move in to Arrest Rebel Statue Opponents Aug. 19, 2017

In the case of four persons remaining from 12 originally arrested at the Valero Refinery on MLK Day, the Shelby County District Attorney asked them to pay $24,000 to compensate emergency services in order to have their cases dismissed. Such an offer – extortion? -- was “illegal,” according to defense attorney Michael Working, and the four are going to trial in January. 

The four “water protectors” were chained together through concrete-filled barrels in the Valero entrance and exit driveways.  The four did not take the DA’s “deal” to come up with $24K as a get-out-of-jail pass in October.  Those charged, by the way, are being prosecuted for a Class C misdemeanor, “obstructing a highway or passageway,” which along with disorderly conduct are go-to charges for police when no specific laws are being violated. It is rare that a Class C misdemeanor would go to trial, but the defendants are unwilling or unable to buy their way out of it, and the DA is apparently too set on making an example of people who would embarrass a multinational corporation about its preference for oil over water. 

Valero Pipeline Opponent Olivia Ramirez Awaits Court Fate at 201 Poplar 

Does the DA’s move foreshadow that the city’s policy is shifting to charge citizens for police services in public assemblies which may involve political protests?

The proposed ordinance also interjects City Council where its authority was not asserted before, such as to arbitrate opposition to a permit and to give “feedback” in denying an application. 

With this newly proposed ordinance on public assembly, its greater fees and requirements imposed on citizens, it appears the price of the First Amendment in Memphis is going up.

Broad Latitude for the Authorities

Regardless of how the permitting policies have been enforced in the past, will be in the future, or if the permit ordinance would discourage First Amendment practitioners from even trying, there is ample language in the law to allow for capricious denials and limitations based on political and other discretionary metrics.

For instance, the police director has broad authority to revoke a permit “instantly” when an emergency elsewhere makes police unavailable for the public assembly if there would be an “adverse effect upon the welfare and safety of persons or property.” What makes an “emergency” and what affects “welfare and safety” are solely determined by the police chief.

Another for instance: Any person in a public assembly may not be engaged in disorderly conduct – but police can claim almost anything is “disorderly conduct” as a catch-all charge, much like “obstructing a highway or passageway.” Those are the two Class C misdemeanor charges typically put to citizens who are arrested for protesting – those charges usually are dismissed, but the effect of police moving in to make arrests is that the public assembly is stopped. 

How may these clauses be interpreted in the future?

This year some political gatherings – such as the April 4 march down pedestrian-only Main Street in commemoration of the murder of Dr. Martin Luther King Jr. – have obtained permits, and some events have not, such as the March 10 event organized by local indigenous Americans in support of Earth and water protections and opposing the Dakota Access Pipeline.

Police Prepare to Arrest 'Water Protectors' at Valero Refinery on MLK Day

While police at the April 4 march accommodated a path through side-street traffic, in the unpermitted but widely publicized March 10 event police rimmed the perimeter of City Hall, where the group had gathered after a short walk from Riverside Drive.  There was no traffic disruption. (The lights over the Hernando-DeSoto Bridge were turned off at about 8:30 that night, apparently a reflex of paranoia nurtured by the July 10, 2016, bridge shutdown by more than a thousand citizens who joined a nationwide outcry after police killings of unarmed men.)

Nobody was arrested or challenged by police on March 10 because the organizer had not gotten a permit. This seems to be the preference of activists now, not to bother with a permit – the First Amendment is enough of a permit, right? – and police become aware of a planned event through social media.

So, the city has not been clamping down hard on the permit law, but police have been showing up large for announced rallies which challenge institutions and multi-national corporations.

Funeral-Like Exemption

The newly proposed ordinance includes this provision, which does not appear in the existing law:

“Funeral-like processions by vehicle or foot for the purposes of honoring the deceased, raising awareness of the deceased’s death, or celebrating the life of the deceased.”

Is this the golden loophole? The words under which social justice supporters can slip down streets and sidewalks? The “subsection B” which will cause every rally to have the stated commemoration of MLK or another deceased person?

Opportunity to Reexamine

If it becomes City Council’s intent to deal only with 5K races coming to your neighborhood, the ordinance should be limited to that and not take this opportunity to hinder public assemblies. 

If City Council feels it must get into this, the whole ordinance should be examined. In fact, we have some proposals which are not specific to just permits but do involve public assemblies:

1—When officers make bad arrests, those officers should be written up and suspended without pay the number of days the defendant had to appear in court. A bad arrest is one wherein the defendant’s actions do not support the charge as we saw in several cases from the Rebel statue protest Aug. 19.  In other words, there was no good reason stated for the arrest.

2—When officers fail to appear for preliminary hearings, the same sanctions should apply.  A person who is charged is put through the wringer, has his or her mug shot plastered on TV and the Internet as a “suspect,” and misses time from life and work and is subject to attorney fees and court costs. This is in addition to the anxiety, embarrassment, humiliation or sense of fear that accrues to the citizen wrongly charged. 

3—All stipulations, fees, permits, requirements and langauge about “public assemblies” should be deleted. If someone is breaking an actual law, we already have that covered. We don’t need no stinkin’ permit to talk and show up. We got one, aka, First Amendment.