City of Asheville Staff Emails: Occupy Asheville

From: Bob Oast

Subject: RE: Following up on Occupy Asheville

Date: 2011-10-12 16:44:11

To:

Jennifer:

Thanks for this response.

In answer to the question in your earlier e-mail, we have researched the
issue, and that research is ongoing. We are finding that some degree of
content-neutral regulation, including regulations that prohibit camping,
is constitutionally permissible. See, e.g., Clark v. Community for
Creative Non-Violence, 104 S. Ct. 3065 (1984). The purpose of my e-mail
this morning was to ask if you knew of cases reaching a different
conclusion. Sorry if I was not clear.

As Council directed last night, we have been reviewing possible ways to
address your request. Can you be available for a meeting tomorrow at 3
PM?

Bob Oast



________________________________

From: Jen Foster [mailto:fosterthejen@hotmail.com]
Sent: Wednesday, October 12, 2011 2:47 PM
To: Bob Oast
Subject: RE: Following up on Occupy Asheville


Hi again Bob. Sorry to be short earlier, but I've just been under a lot
of stress and trying to hold this together from many angles to ensure
peace. It has not been easy. I hope you can appreciate my proactive
role to make the Asheville Occupation different than the rest of the
country.

I guess where we stand after the meeting last night was working with
staff to create a temporary spot?
• directed city staff to find a temporary location for the Occupy
Asheville protesters to camp overnight.
The move followed lengthy public comment, when representatives and
members of the demonstrations asked Council to allow them to use part of
Pack Square Park. The speakers asserted that the move would respect
their constitutional right to assemble and give the protests a peaceful
outlet. Council members generally expressed sympathy for Occupy
Asheville and praised the protesters' conduct, but noted that they were
considering the needs of other groups who had already reserved the area,
and that they had concerns changing park rules without publishing notice
on the printed agenda or having more time to deliberate. In the end,
Council agreed to find a temporary space and consider the matter again
at its next meeting Oct. 25 in hopes of finding a more lasting location.

I don't have time right now to write you a brief, and, it is clear this
is new territory..... Here are some case blurbs.....Feel pretty strongly
a curfew ordiance can't trump the right to peacefully assemble in a
public park, and there are no anti-camping ordinances locally.


United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court said
that the "right of the people peaceably to assemble for the purpose of
petitioning Congress for a redress of grievances, or for anything else
connected with the powers ...and duties of the national government, is
an attribute of national citizenship, and as such, under the protection
of, and guaranteed by, the United States." The high court applied the
liberty only to any federal government's encroachment.

De Jonge v. Oregon, 299 U.S 353 (1937), the U.S. Supreme Court
unanimously ruled that the right to peaceably assemble "for lawful
discussion, however unpopular the sponsorship, cannot be made a crime."
The decision applied the First Amendment right of peaceful assembly to
the states through the due process clause of the Fourteenth Amendment.
Hague v. C.I.O., 307 U.S. 496 (1939), the high court ruled that peaceful
demonstrators may not be prosecuted for "disorderly conduct." This case
also secured streets and sidewalks as public forums.

Thornhill v. Alabama, 310 U.S. 88 (1940), the Supreme Court held that
orderly union picketing that informs the public of issues is protected
by the constitutional freedom of speech of the press and the right of
peaceable assembly and cannot be prosecuted under state loitering and
picketing laws.

Edwards v. South Carolina, 372 U.S. 229 (1963), in an 8-to-1 decision,
the high court overturned the breach of peace convictions of 180 black
students who had peacefully marched to the state capitol to protest
discrimination. The police stopped the demonstration and arrested the
students because they were afraid that the 200-300 who gathered to watch
the demonstration might cause a riot. The court held the state law
unconstitutionally over-broad because it penalized the exercise of free
speech, peaceable assembly, and the right of petition for a redress of
grievances. A disorderly crowd, or the fear of one, cannot be used to
stop a peaceful demonstration or cancel the right of peaceable assembly.



________________________________

From: fosterthejen@hotmail.com
To: boast@ashevillenc.gov
Subject: RE: Following up on Occupy Asheville
Date: Wed, 12 Oct 2011 10:58:47 -0400



Shouldn't you have done that already?


________________________________

Subject: RE: Following up on Occupy Asheville
Date: Wed, 12 Oct 2011 10:43:19 -0400
From: boast@ashevillenc.gov
To: fosterthejen@hotmail.com


Jennifer:

Please provide me with citations to case law that supports your
position, "[W]e strongly believe we have the right to do exactly what we
are doing under the First Amendment Assembly rights," and I will be glad
to review.

Thanks,

Bob Oast

________________________________

From: Jen Foster [mailto:fosterthejen@hotmail.com]
Sent: Wednesday, October 12, 2011 10:20 AM
To: Mayor Terry Bellamy; Wade Wood; Kelly Whitlock; Sandra Cole;
terrybellamy@avlcouncil.com
Cc: rosettastarshine@gmail.com; Gary Jackson; Bob Oast
Subject: Following up on Occupy Asheville


Good morning Asheville leaders! I just wanted to write this morning on
a few points. First, Bob, we just want to be clear, in response to
Esther's comments, that "beggars can't be choosers," that we strongly
believe we have the right to do exactly what we are doing under the
First Amendment Assembly rights, and we are seeking your cooperation
rather than mass arrests and court challenges to so prove, but that, as
always, is an option.

Second, ya'll really should come to our General Assembly meeting.
Council does in fact need a "direct response" mechanism, that the
occupier who was ejected last night has written you about madam Mayor.
"Direct response" is insertion of factual information to a point that
would clear something up immediately. For example, whether we were
asking for night camping, that was again misunderstood by Esther. This
is an occupation, and the only ordinance in the way is the curfew. The
point is not night camping, but an ongoing occupation. 24/7

Oh, and thank you for coming out last night Chief Wood. Very good
experience.

Our group is very serious about public park access space, not a side
city parking lot etc. I suggested the upper northwest corner of the
park, from the Arcade, McGuire little amphitheater up to the top street,
thinking that other permitted events would not be impacted as seriously
there. We also would likely agree to move between now and the "month"
break for any events that actually needed that space, and then occupy
that space thereafter. There may be other city park space you may
suggest. I still think this upper McGuire space is perfect, especially
after the date the park is vacant. When was that again?

Obama is coming to town as you know. We need to have our peaceful
assembly firmly established by Saturday. Obama, as well as you guys,
needs to come see what this people's movement is about. Perhaps that is
why he is coming?

We would like to create a working group to discuss by day's end. We do
have a lot of children involved in this movement and are very excited
about Mark Case and the AFL-CIO's offer to build our infrastructure and
keep everybody safe.

This IS what democracy looks like! We can all learn from each other!
Thanks again! Let's make history!

Jennifer

828-279-9538; office 828 255 7703

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