October 31, 2011 02:00 AM UTC

Tennessee Judge Says Occupy is Legal

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• by: AndrewBateman

UPDATE: Federal Judge issues injunction protecting Occupy Cleveland. “Protesters may stay 24 hours a day.”

For the last few days, protesters in Nashville have been getting arrested for refusing to leave the public parks at night (sound familiar?).

And for two days, Magistrate Thomas Nelson, has released all of the arrested protesters and dismissed the charges against them, saying that the state had no right to detain the protesters in the first place.

ABC News Reports:

However, in Nashville, a few hours after the protesters were taken into custody Thursday night, Night Court Magistrate Thomas Nelson let them all go.

He did the same thing the next night when troopers brought in another group of protesters, telling the officers “your warrant is denied.”

Nelson released the demonstrators and refused to sign the arrest warrants, arguing that authorities had no legal basis for the arrests.

A little constitutional history and commentary from me after the jump…

The First Amendment of the US Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now, a few of you may have had the thought occur to you “Wait, it says Congress can’t do that. It doesn’t say anything about states or cities.” And you would be right. In fact, in 1833, the Supreme Court ruled that the states did not have to abide by the restrictions of the Bill of Rights, as its provisions specifically and exclusively applied to congress.

But that was only true until 1868, when the Fourteenth Amendment was passed which, among other things, says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

From this point on, the Bill of Rights was understood to apply to all governments, big or small.

So, if a city passes a law that says you are not allowed to protest between the hours of 11pm and 5am, that city is violating the portion of the first amendment which says:

“[Governments] shall make no law… abridging… the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Definition of “Abridge”:

a·bridge   [uh-brij]  Show IPA

verb (used with object), a·bridged, a·bridg·ing.

1.

to shorten by omissions while retaining the basic contents: to abridge a reference book.

2.

to reduce or lessen in duration, scope, authority, etc.; diminish; curtail: to abridge a visit; to abridge one’s freedom.

3.

to deprive; cut off.

The State of Colorado, the City of Denver, and dozens of state and local governments across the nation are violating the constitutional rights of the citizens. There is no reasonable argument to the contrary.

And now, at least one judge is saying so. Expect a lot more very soon.

Denver City Council: Want to be on the right side of history with this issue? Pass a law right now providing an exception to city park hours for the purpose of political protests protected by the First Amendment.

Colorado General Assembly: Same goes for you, but you won’t be meeting again for another two months, so I’ll get back to you then.