The following is the text of the Occupy Salt Lake City motion to dismiss criminal charges.

COME NOW, the above named defendants by and through their attorneys of record, L. Monte Sleight and Trenton Ricks, and hereby move this court to find the ordinances under which the defendants were charged in this case—Salt Lake City ordinance § 15.08.020—park curfew—and § 11.12.020—disturbing the peace (“the ordinances”)—constitutionally impermissible as applied to the defendants under the Utah Constitution. In addition, the defendants move this court to find that the Mayor of Salt Lake City and the Salt Lake City Police Department violated the due process rights of the defendants by revoking the license to peacefully assemble and camp at Pioneer Park without adequate notice and opportunity to be heard regarding the revocation.

STATEMENT OF FACTS

1. The defendants in these cases are all associated with Occupy SLC, which is part of the larger Occupy Movement, a loose affiliation of groups throughout the United State that formed to draw public attention to the growing economic and social inequality between the rich and poor in this country.

2. The Occupy Movement first gained national attention on September 17, 2011, when a group of protesters moved into Zuccotti Park in New York City, calling themselves Occupy Wall Street. This “occupation” of a public space—symbolically protesting “corporate occupation” of government and the economy—resonated throughout the United States, giving birth to a number of sister protests across the country.

3. On October 6, 2011, a protesters identifying themselves as Occupy SLC marched from the Capitol in Salt Lake City, through downtown—passing the most significant investment banks and federal buildings in the city, and ending in Pioneer Park, where the group began a peaceful, 24-hour, daily protest.

4. Occupy SLC had received permission by the Salt Lake City Mayor’s Office to set up a camp in Pioneer Park. The City informed the group that so long as they kept the area clean and there was no evidence of drug, violent or other criminal activity attributable the group, they would be allowed to remain. Members of the group—including the defendants—were lead to believe that they could continue their protest without fear of prosecution under city ordinances or State laws designed to regulate the use of public spaces such as those in question here.

5. Like its sister groups around the country, Occupy SLC’s purpose—primarily through its occupation of the park and supported by education and outreach activities—was (and still is) to draw local attention to the growing economic inequality between the wealthiest Americans, who continue to accumulate wealth and political power, and middle and working class Americans, who are fighting poverty, unemployment, home foreclosures and falling standards of living.

6. During the five weeks Occupy SLC members were protesting in Pioneer Park, its encampment utilized only the southwest corner of the park, never monopolizing the public space to the extent others were kept from its use or enjoyment. The size of the group varied from day to day, with approximately 150 protesters at its height. To meet its obligations to the city, Occupy SLC kept the space relatively clean and peaceful. It maintained a stocked kitchen, ran a free school, distributed a community newsletter and created one group dedicated to keeping their space free from litter and another that served as a night watch against activity that ran afoul of its purposes.

7. During the group’s occupation, there was no evidence of criminal activity attributable to Occupy SLC, although police officers continued to make arrest for drug and alcohol violations at a pace consistent with the period prior to the occupation. Most of these arrests involved members of the homeless population that has gathered in Pioneer Park for many years. Although the homeless in the park were never officially incorporated in Occupy SLC, the occupiers—true to its opposition to economic and social inequality—befriended, comingled, fed and assisted many of the homeless.

8. In addition to its symbolic occupation of a public space, Occupy SLC displayed a number of signs and banners with messages such as, “Choose Human Need Over Corporate Greed,” “Honk If Wall Street Fails You,” “People Are Not Commodities,” “Corporate Profit is Human Theft” and “Corporations are not People and Money is Not Speech.”

9. During this period of protest at Pioneer Park, Occupy SLC invited the public to tour its encampment and spend time talking with Occupy SLC representatives. For example, on October 14 the group hosted an event entitled “Friday Forum: You Are the 99%. Learn Why,” during which members of the public and media could walk freely among the tents, listen to keynote speakers and participate in a question-and-answer session with Occupy SLC members. Occupy SLC also established an Internet presence—www.occupyslc.org—encouraging people passing by to better understand the purpose behind its occupation of the park.

10. On November 11, 2011, a homeless man was found dead in his tent, alone with a propane heater and drug paraphernalia. The man was not a member of Occupy SLC, although he had become a friend with many members of the group. No determination was made that Occupy SLC’s presence in the park contributed to the man’s death. However, later that day, Salt Lake City Police Chief Chris Burbank announced that Occupy SLC would be evicted from Pioneer Park within 24 hours. When representatives of Occupy SLC asked for a period of time to discuss alternatives with the City, they were denied, even though no effort was made to determine that the group’s continued presence at the park represented a threat to the public or had broken the terms of the permission granted them.

11. On the evening of November 12, 2011, Salt Lake City police officers arrived at the park and demanded the protesters leave. While the eviction of Occupy SLC from the park was relatively peaceful, police arrived with more than 30 police vehicles, dump trucks and a front end loader. Within a few hours, the encampment was completely removed.

12. While almost 100 protesters present at the time simply chose to walk away, a group of 19 individuals refused. Of these 19, 18 protesters were arrested and the 19th was issued a citation.

13. Those arrested or cited were charged with violation of park curfew and disturbing the peace.

14. Since November 2011, two of the 19 cited or arrested have entered guilty pleas (one via a plea in abeyance), one resolved her case through a bench trial and another’s case was filed in juvenile court.

15. Most of the remaining defendants have chosen to join in this motion challenging the constitutional validity of the ordinances as applied to them and their circumstances.

ARGUMENT

I. AS APPLIED TO THE DEFENDANTS IN THESE CASES, SALT LAKE CITY’S ORDINANCES RE PARK CURFEW AND DISORDERLY CONDUCT VIOLATE THEIR FREEDOM OF SPEECH RIGHTS AS PROTECTED BY THE UTAH CONSTITUTION.

The Utah Constitution, in Article I, § 1, protects Utahns’ rights “… to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.” In Article I, §15, it adds that “no law shall be passed to abridge or restrain the freedom of speech …” Taken together, these two sections constitute what many refer to as the “freedom of speech provisions” of the Utah Constitution, and, as defendants argue below, protect Utah’s citizens’ right to protest, demonstrate and express themselves publically to a greater degree than does the First Amendment.

It has been established for at least two decades that the protection of speech provided Utah’s freedom of speech provisions is independent of its federal counterpart; the Utah Supreme Court held it may either be broader or narrower than the protection provided by the First Amendment. American Bush v. City of South Salt Lake City, 140 P. 3d 1235, 1239 (2006) citing West v Thomson Newspapers 872 P.2d 999, 1004 (Utah 1994). However, in deciding American Bush, the Utah Supreme Court confronted what it called “the poverty of both Utah case law and scholarly analysis of the history and meaning of the freedom of speech provisions of the Utah Constitution.” Id at 1239. For that reason, the Court’s holding was understandably narrow—ruling that, “the provisions of the Utah Constitution that guarantee Utah citizens’ rights to ‘communicate freely their thoughts and opinions’ do not extend protection to nude dancing,” even though the First Amendment might offer such protection. The Court offered no examples of what circumstances might trigger the state constitution’s broader protection.

The Court did, however, establish a model of analysis for subsequent inquiry into what activities are protected by Utah’s freedom of speech provisions and to what extent that protection proscribes government abridgement and restraint of those activities. This analysis has two steps: The first is to determine whether the expressive activity at issue is a protected right under the Utah Constitution. If it a protected … the answer to the first question is yes, the second question is whether the statute or ordinance at issue “impermissibly abridges or restrains this right.” To answer these two questions, the American Bush court held that, “in interpreting the Utah Constitution, prior case law guides us to analyze its text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting” and, while not binding, also looks for guidance to federal constitutional principles when state provisions are not dispositive. Id. at 1239, citing West v. Thomson Newspapers, 872 P.2d 999, 1004-07 (Utah 1994).
It is important to note at this point that in a number of cases since American Bush, the Utah Supreme Court has clearly adopted the “primacy model” for answering constitutional questions that invoke both the Utah Constitution and the Constitution of the United States. In State v. Tiedemann, 162 P.3d 1106, the Court held that, “if state statutes, rules or constitutional principles preclude the state action in question, there is no need to assess the federal constitutionality of that action. (citation omitted) This analytical approach is known as the ‘primacy model,’ (citation omitted), and we have endorsed it in a number of cases.” Id. at 1113. The defendants’ argument in this motion follows this model.

a. The 24-hour Daily Protest in , and Occupation of, Pioneer Park by the Defendants in These Cases is a Communicative Act Protected by the Utah Constitution.

Without a clearly established state provision for when symbolic expression or conduct would be a protected communicative act under the Utah Constitution, it’s illustrative to establish a baseline by considering when and why similar communicative acts have been found to be protected speech under the First Amendment. In at least two cases, federal courts have established that 24-hour protests in public parks and other public forums can be communicative acts and, therefore, expression protected by the First Amendment. University of Utah Students Against Apartheid v. Peterson, 649 F. Supp. 1200, at 1205-1207 (1986) (holding that “shanties” erected and occupied on a college campus by students protesting South Africa’s policies of apartheid was protected symbolic expression under First Amendment analysis); also United States v. Abney, 584 F. 2d 984, 985-986 (D.C. Cir. 1976) (sleeping in a park under some circumstances was sufficiently expressive to be protected by the First Amendment).

In University of Utah Students Against Apartheid, United States District Court Judge Aldon Anderson applied the two-part test articulated in Spence v. Washington, 418 U.S. 405 (1974) and held that, “as a result, a Spence analysis compels this court to hold that the shanties are symbolic expression protected under the First Amendment.” University of Utah Students Against Apartheid at 1207. The first part of the test focuses on the whether the actor intends to convey a particularized message; the second part focuses on whether there is a substantial likelihood that the message will be understood by those who view it.
In addressing part one, Judge Anderson noted that the shanties themselves—recognizably connected to poverty and social inequality in South Africa—inherently had an expressive characteristic that was then enhanced by the words and illustrations that were either on the shanties or in close proximity. He added that because the students themselves held a constant vigil at the shanties and discussed their opposition to apartheid with people passing by, maintaining the shanties was a clear attempt to convey a particularized message. Id at 1205. In addressing part two of the Spence test—whether the students’ target audience was likely to understand the message—Judge Anderson again noted the symbolic nature of the shanties themselves, adding that, quoting Spence, as the audience viewed the shanties “in (their) surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Id, citing Spence, at 411 (“the nature of the (plaintiff’s) activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that they engaged in a form of protected expression).
Just like the university students protesting apartheid in the 1980s by maintaining shanties, the defendants and the other members of Occupy SLC clearly intended to convey a particularized message through their 24-hour, daily protest and occupation of Pioneer Park. While it might be argued that occupying a public space lacks the immediate and inherent symbolic character of a shanty town, any disconnect between the symbolism and the message was soon remedied as the national media and social networks began educating the publi. By the time Occupy SLC marched into Pioneer Park and began pitching tents—almost three weeks after Occupy Wall Street moved in to Zuccotti Park— the idea of representatives of “the 99 percent” occupying a public place as a symbol of the corporate occupation of the government and the economy had begun to solidify in the country’s collective imagination. Like other effective uses of symbolic expression, the medium and the message were merging and the Occupy Movement protests brought attention to their intended, particularized message: Something must be done about the growing economic and social inequality in America and around the world.

And, just like their counterparts in University of Utah Students Against Apartheid, Occupy SLC enhanced their protest’s symbolic occupation with continuous efforts to converse with and educate members of the general public. Signs and posters reinforced their message with slogans such as:

• Human Need over Corporate Greed

• Honk if Wall Street Fails You

• I Am Not a Commodity

• Corporate Profit is Theft

• Corporations Are Not People and Money is Not Speech

The group found other ways to engage the public in their protest. For example, on October 14, one week after arriving at Pioneer Park, Occupy SLC hosted the equivalent of an open house, advertising it as: You Are the 99 Percent. Learn Why. The event included tours of the encampment, a keynote speaker and a question-answer session with members of the different Occupy SLC committees. This established a model for other events that brought members of the public and both new and traditional media to walk among the tents and better understand their message and the symbolism behind the group’s occupation of the park. Some members of Occupy SLC also published blogs from the encampment, regularly updating video shot from among the tents. During the group’s short occupation of the park, it included a school and a community kitchen where as many as 200 meals were prepared each day.

Occupy SLC’s occupation of the park also passes part two of the Spence test—because of the circumstances surrounding the group’s symbolic, 24-hour, daily protest, the likelihood was great that the message would be understood by those who viewed it. For example, the group’s slogan, “We are the 99 percent,” has become ubiquitous in public conversation and iconic. The fact that there’s an ongoing debate over whether the Occupy Movement will have a lasting and positive impact on economic and social equality implies that, even among those who disagree with the Occupation Movement, the message is understood.

Ultimately in University of Utah Students Against Apartheid, Judge Anderson wrote that, “having concluded that the shanties are a form of speech, however, does not mean that any infringement of the right to display them would be unconstitutional.” Id. at 1207-1208. Citing Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), in which the U.S. Supreme Court held that sleeping as part of round-the-clock vigil was not protected by the First Amendment, Judge Anderson ultimately held that because the shanties caused a certain amount of disruption on campus, the University of Utah could “enforce regulations of the time, place and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Id. at 1209, citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 at 45 (1983).

However, under the primacy model espoused by the Utah Supreme Court, while the case is useful as a beginning to understand what types of communicative acts are protected by the Utah Constitution by articulating the federal counterpart, it is not dispositive. This is especially important in determining if government action unconstitutionally infringes or restrains protected speech. In American Bush, the Court held that, “while the government restriction clause concerning freedom of expressions contained in the Utah Constitution is broader than its federal counterpart, this does not expand the range of expression protected … (r)ather, it narrows the scope of permissible governmental action in relation to forms of expression protected by the liberty and responsibility clause” of the Utah Constitution. Id. at 1242.

By first looking at the text of Utah’s freedom of speech provisions and, then, the historical context in which they were drafted and ratified by the citizens of the proposed State of Utah in 1885, it becomes clear that the Utah Constitution protects the right to protest more broadly than the First Amendment not because the federal freedom of speech provisions don’t protect the right to protest but because Utah law severely limits the scope of restraint governments can impose upon protest.

b. On Its Face, the Utah Constitution Provides Broader Protection of Speech and Communication than the U.S. Constitution, and Explicitly Protects the Right to Protest Against Wrongs, Unlike Its Federal Counterpart and Those of Its Sister States

In State v. Tiedemann, 162 P.3d 1106 (2007), Utah Supreme Court stated that, “In theory, a claimant could rely on nothing more than plain language to make an argument for a construction of a Utah provision that would be different from the interpretation the federal courts have given similar language.” Id. at 1115. This position assumes that, especially when drafting a constitution, words are chosen and used carefully and deliberately For example, the Utah Supreme Court has previously recognized broader protection of speech on the state level at least on one prior occasion. In that case, the Court primarily used a textual analysis, holding Utah Const. Art. 1 § 15 “by its terms, is somewhat broader than the federal clause.” Provo v. Willden, 768 P.2d 455, 456 (Utah 1989),(noting the broader language of Utah Constitution but deciding case under United State Constitution because no claims were made under the state constitution).
So, first and foremost, it should be noted that, unlike its federal counterpart, “protest” is a specifically protected right under the Utah Constitution: “All men have the inherent and inalienable right . . . to assemble peaceably, protest against wrongs and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.” Utah Const. Art. I § 1 (emphasis added). Further, “[n]o law shall be passed to abridge or restrain the freedom of speech.” Utah Const., Art. I § 15. Also, again by its plain language, the Utah Constitution incorporates broader protection of communication and freedom from prior restraint, neither of which is mentioned in the plain language of the First Amendment, which references only laws which abridge freedom of speech and press without reference to restraint or communication.
Further, and more relevant to the present cases, the Utah Constitution recognizes a broader right to “protest against wrongs” found nowhere in the First Amendment. For example, while the federal clause specifically limits the right to petition for redress of grievances to the Government, the State provision makes no such limitations. See United State Const., Amend. 1 and id.

The significance of this language cannot be overstated—choosing language that explicitly mentions a right to protest and removing the limiting language of the Government on the right to petition for redress of grievances also sends a clear message—the framers of Utah’s constitution placed great value on citizens participating in a broad, robust, public debate, utilizing a number of channels of communication.
This singular, deliberate protection to protest wrongs becomes even more significant when the text of Utah’s freedom of speech provisions is compared to the freedom of speech provisions of other state constitutions drafted and ratified during the period of time that Utahns were petitioning the federal government for statehood. Because it is illustrative to note both similarities and differences in the various texts, the defendants have provided the freedom of speech provisions of these sister states in the entirety:
• California (ratified in 1849): “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions on indictments for libels, the truth may be given in evidence to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.” Art. I, §9 … and, “The people shall have the right freely to assemble together, to consent for the common good, to instruct their representatives, and to petition the legislature for redress of grievances.” Art. I, § 10.

• Oregon (ratified in 1857): “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.” Art. I, § 8. … “No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing the Representatives; nor from applying to the Legislature for redress of grievances.” Art. I, § 26.

• Nevada (ratified in 1864): “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and justifiable ends, the party shall be acquitted or exonerated.” Art. I, § 9. … “the people shall have the right freely to assemble together to consult for the common good, to instruct their representative and to petition the Legislature for redress of grievances.” Art I, § 10.

• Colorado (ratified in 1876): “That no law shall be passed impairing the freedom of speech; that every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact. Art II, § 10. … “That the people have the right peaceably to assemble for the common good, and to apply to those invested with the powers of government for redress of grievances, by petition or remonstrance.” Art II, §24.

• Montana (ratified in 1889): “That no law shall be passed impairing the freedom of speech; that every person shall be free to speak, write, or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.” Art. I, § 10. … “That the people have the right peaceably to assemble for the common good, and to apply to those invested with the powers of government for redress of grievances, by petition or remonstrance.” Art. I, § 24.

• Washington (ratified in 1889): “The right of petition and of the people to peaceably assemble for the common good shall never be abridged.” Art. I, § 4. … “Every person may speak freely, write and publish on all subjects, being responsible for the abuse of that right.” Art. I, § 5. …

• Wyoming (ratified in 1889): “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right; and in all trials for libel, both civil and criminal, the truth, when published with good intent and (for) justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts of the law, under direction of the court.” Art. I, § 21. … “The right of petition, and of the people to consult for the common good, and to make known their opinions, shall never be denied or abridged.” Art I, § 21.

• Idaho (ratified in 1890): “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Art, I, § 9. … “the people shall have the right to assemble in a peaceable manner, to consult for their common good; to instruct their representatives. And to petition the legislature for redress of grievances.” Art. I, § 10. …

Of the eight examples provided, not one state constitution explicitly protects a right to protest, even though most of the other parts of Utah’s freedom of speech provisions find overlap and commonality in at least some, if not most, of her sister states’ counterparts. In the middle of appears to be an exercise of “cutting and pasting” from one state constitution to another, the Utah framers broke from that pattern and deliberately inserted the “right to protest against wrongs.” It would be disingenuous to argue that such an inclusion was accidental or done without the clear intent to go beyond the language they saw in other constitutions. It is inescapable to conclude that the framers had something very deliberate in mind when they chose to include the right to protest in the document’s text.

However, just because “we look first to the text’s plain meaning, State v. Willis, 2004 UT 93, ¶ 4, we recognize that constitutional language … is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them.” American Bush at 1239, citing Dennis v. United States, 341 U.S. 494, 532 (1951) (Frankfurter, L. concurring). A brief examination of the historical and social context of the men and women who drafted and ratified the Utah Constitution in 1895 further supports what the purpose behind carefully choosing the text: To create broad, robust, public debate in a state whose citizens had been marginalized, ignored, rejected and oppressed for most of the five decades they had settled and populated the territory.

c. Utah’s Framers Intended to Protect Broad and Robust Participation in the Protest Against Wrongs and Would Have Seen the Peaceful 24-Hour Protest in a Public Place As a Symbolic, Communicative Act Protected by the Utah Constitution When It was Ratified.

At this point in their argument, the defendants could almost rely on the text alone to support the idea that public protest was protected speech at the time of the ratification of the Utah Constitution. However, placing the text in its historical and social context will illustrate just how broad the framers intended that protection to be; and just how narrow they intended the government’s right restrain and abridge protest would have been. The Utah Supreme Court encourages this type of analysis to, “inform our textual interpretation with historical evidence of the framers’ intent. State v. Betensen, 14 Utah 2d 121, 378 P.2d 669, 669-670 (1963) (“It is proper to look not only to the (constitution) itself, but back to the background out of which arose and its practical application in order to determine the (framers’) intent.”) American Bush, at 1239.
The Mormon pioneers first entered the Salt Lake Valley in 1847, with the first group of many who were fleeing religious persecution at the hands of both fellow citizens and by government actions and agents. While some of the early settlers were simply looking for a new beginning, most were members of the Mormon Church (“the Church”) who had been prosecuted and persecuted since the Church was organized in 1830. For the first year of their settlement, these pioneers built a fort, erected homes, raised families and planted crops in Mexican Territory, having crossed the established boundaries of the United States. (It is an interesting fact, given the facts in this case, that the first settlers constructed their first permanent encampment on the site of what is now Pioneer Park.) In 1848, at the end of the Mexican-American War, the Salt Lake Valley and surrounding territory became part of the United States. Shortly after the war, the Organic Act that was part of the Compromise of 1850, created the Utah Territory, creating a territorial government that would be seated in Salt Lake City. However, the citizens of the Utah Territory immediately became interested in a greater degree of self-government and began an unexpectedly-frustrating 50-year struggle to become a state. During this period of time, most of the men and women living in the territory would experience a series of events that, by 1885, left them feeling marginalized, ignored, disenfranchised and oppressed by the federal government and their fellow countrymen.

Even the youngest of those who drafted and ratified the state constitution in 1895—Mormon and non-Mormon alike—would have understood and shared many of the experiences of those first pioneers and settlers who had left behind homes and farms in order to escape not only personal prejudice, but also official government actions and they would have shared desire for greater self-government. However, beginning with their first petition for statehood in 1849, they had seven petitions rejected: In 1849, 1856, 1862, 1867, 1872, 1882 and 1887. With each of these petitions, citizens of the Utah Territory sent a proposed state constitution to Washington D.C. Most of these attempts were dismissed with little discussion and debate.Adding insult to injury, in between these petitions, these frustrated men and women watched several other territories have their petitions accepted, enabling acts signed and statehood granted: California in 1850, Minnesota in 1858, Oregon in 1859, Nevada 1964, Nebraska in 1867, Colorado in 1876, Washington, Montana, North Dakota and South Dakota in 1889, and Idaho and Wyoming in 1890. Few of these territories had to petition more than once—Washington and Montana both were admitted after two attempts; many were approved with smaller populations, less stable economies and fewer established towns and cities than the Utah Territory.

This frustrating struggle for statehood and greater self-government was obviously complicated by the Mormon Church’s public acknowledgement of its practice of polygamy and federal concerns about theocratic politics and the increased in-fighting within the territory after the completion of the intercontinental railroad. This was a time punctuated with a series of federal laws—beginning with the Morrill Act of 1862 and culminating with the Edmunds-Tucker Act of 1887—that steadily increased the severity of consequences for those found guilty of practicing polygamy. These consequences ranged from criminal prosecution and imprisonment for those found guilty of practicing polygamy, to the dis-incorporation of the Church, to breaking up families, and finally the removal of the right of from polygamists and other Church members to vote and hold public office. (The Edmunds-Tucker Act took the right to vote away from all women living in the territory, Mormon and non-Mormon alike).

During this period, citizens of Utah were often, but not always, governed by federal appointees who remained in the territory for short, unproductive terms, caring little for the long-term welfare of the area. The struggle for statehood and self-government finally ended in 1894 when President Grover Cleveland signed the Enabling Act that would lead to the drafting and ratification of the Utah Constitution and, on January 4, 1896, Utah’s statehood. However, this only came after the Mormon Church officially announced the end of the practice of polygamy in 1890 and members of the two local political parties—the People’s Party and the Liberal Party—dissolved their formal organizations and affiliated themselves with one of the two national parties.

During these five decades, most Utahns never stopped the struggle. By the time the State Constitutional Convention opened on March 4, 1895, they had become veterans of protest, petition and dissent. A long line of emissaries and representatives had been elected and sent Deseret to Washington D.C., most of whom had to fight just be recognized by the House of Representatives; many were not.. Mass meetings were held frequently throughout the territory to keep the people interested and united in what seemed to some an ironic struggle for statehood in a union that seemed to hate and oppress them.
While brief and incomplete, this brief history begins to inform the question at hand: What did Utahns intend when the included the right to protest in their state constitution? An article published in the May 5, 1885, edition of the Deseret News offers some telling clues to finding the answer. The article appeared under the following, layered headline:

THE MASS MEETING

A Multitude of People

Assemble and Declare Protest

In Relation To Their Wrongs

An Enthusiastic Gathering

And An Earnest And Unmistakable Demonstration

The article memorializes a mass meeting that was held a few days earlier in the Tabernacle on Temple Square. It gives small excerpts from a number of men who spoke about the history of oppression endured by the citizens in the territory and what could be done about it. It was a pep rally of sorts for the idea and ideal of public protest. According to the article, the Tabernacle was filled to capacity and in between speakers a brass band and a choir played music for the applauding and chanting crowd. One speaker, F.S. Richards declared that, “there were men among us who had never broken any law and they were being prosecuted and persecuted. When we protest against this injustice we are told that it doesn’t concern us as long as we are not molested personally. God forbid that I should ever see the day when the troubles of my people are not my own troubles and their wrongs my wrongs.” Several other speakers took turns offering similar rhetorical flurries over the course of several hours.

The centerpiece of the meeting, however, was the reading and adoption of what was entitled, “A Declaration of Grievances and Protest,” which chronicled, in the spirit of the Declaration of Independence, a long list of grievances and offenses suffered by Utahns. One sections begins, “We are unpopular with our fellow countrymen; it is our religion that makes us so; we are a small minority in their midst; but we have yet to learn that these are grounds upon which to justify, in a land of liberty, these acts of oppression.” In the final section, after bemoaning the fact that so many federal officials have ignored the territory’s “numerous petitions, protests and memorials in our own defense that have been usually passed over unnoticed” the Declaration makes a clear demand: “Now hear our protest.” This demand is followed by eight paragraphs each stating a specific grievance.

B.H. Roberts spoke after the Declaration was read and told the crowd that, in order to get the attention of the territorial and federal officials, protests just like the one at the tabernacle were taking place in cities and towns throughout the territory at the same time as the mass meeting in Salt Lake City. This, he said, was an example of citizens “exercising the duties of freemen to oppose tyranny” in a dramatic and symbolic manner that federal officials and fellow Americans could no longer ignore. The meeting ended with a choir singing America. On May 13, 1885, the Declaration was delivered to President Grover Cleveland.

On March 4, 1895, almost 10 years after the Mass Meetings were held throughout the Utah Territory, 107 delegates met in the City County building in Salt Lake City and over the next 66 days drafted the Utah Constitution. The minutes of the convention indicate that the freedom of speech provisions were adopted with almost no debate or discussion. On March 12, 1895, Art I, § 1, was read into the record and passed without debate. When Art I, § 15, was read into the record there was some discussion about the meaning of the language regarding libel before it was passed. This absence of debate might seem surprising—especially when compared with the rousing speeches and music-making of the mass meetings and other demonstrations that had been a part of the struggle for statehood. However, it makes sense when you think about how familiar the men and women at the convention were with the importance of being able to publically, symbolically and dramatically protest against wrongs. After all, these were members of a community who, in mass, abandoned their homes and had prepared to burn them to the ground—a powerfully expressive and symbolic act— to protest President Buchanan’s decision to send 2,500 federal soldiers to the territory in the mid-1800s.

It’s interesting to note, and relevant to the question of what the framers intended by the right to protest, that four of the men who spoke at the Mass Meeting in 1885 were members of the constitutional convention—F. S. Richards, B. H. Roberts, O. F. Whitney and H. M. Wells. Two of those men—Whitney and Wells—were among the 11 members of the committee that drafted the constitution’s Declaration of Rights.

By 1896, the Utah Territory was becoming both politically and religiously diverse, but these were the experience common to the men who drafted the Utah Constitution and the voters who ratified it. Whether or not they would, 120 years later, sympathize with the content of Occupy SLC’s message is not the point. It seems almost axiomatic from their experience with being marginalized and cutoff from the public discussion of important economic and political issues, however, would resonate clearly. And it is this history that breathes life and meaning into the words they carefully chose to include in the state constitution. And it is in this spirit that, when the Utah Supreme Court held in American Bush that, “narrower scope of government action,” takes life and becomes something more than just rhetoric.

d. Because the Right to Protest Was Protected When the Utah Constitution was Ratified, the Defendants Did Not Abuse Their Rights under the State Constitution and Charging Them in These Cases Unconstitutionally Abridges or Restrains Protected Speech.

Up to this point, the defendants have focused on placing the right to protest and petition well with the scope of the liberty clause of Utah’s freedom of speech provisions. However, these provisions also include what known as the ‘responsibility clause,” which allows government action to restrain speech and expression that is determined to be an “abuse of that right.” Utah Const., Art. 1 sec. 1. Abuses however, are defined as those forms of speech left unprotected by the values and laws at the time of ratification. See American Bush, at 1244 and 1252. Protesting to address wrongs and petitioning for redress of grievances was fundamental to the framers idea of free communication.
By using language different from the federal clause and those found in the constitutions of their sister states, the Utah framers made clear that communicative acts involved in public protest merited the almost absolute protection of the governmental restriction clause. Thus, protesting and petitioning could not constitute an abuse under the liberty and responsibility clause because both were traditionally and constitutionally ratified forms of protected speech in the framer’s minds. Our Supreme Court has noted that once a form of expression falls within the category of protected at the time of the ratification, it falls outside of the power of the government to abridge or restrain that communication. See American Bush at 1242 and 1254 (noting the broad prohibition of governmental regulation of protected speech).

When you synthesize this analysis—the framers singular articulation of Utah’s freedom of speech provisions to include the right to protest, the history and experience Utah framers and voters who ratified the constitution and examples of public protest and petition engaged in by Utahns in the years leading up to statehood—it’s obvious that the state constitution was intended to protect a very broad range of speech associated with public protest and wide-open, robust conversation and debate by severely limiting the government to abridge such speech. Indeed, it would be difficult to imagine circumstances under which the Utah Constitution provides broader protection of speech than those in these present cases—the defendants’ participation in a vigorous, vibrant, robust dialogue and debate on public issues with the price only being an inconvenient, perhaps unsightly, occupation of part of a public park that might also run afoul of the park’s curfew. Contrasting these circumstances with two examples of speech that abuses Utah’s freedom of speech rights illustrates this point.

In American Bush, the Court was asked to determine if a complete ban on nude dancing at sexually oriented business violated the Utah Constitution. In a lengthy discussion of the history surrounding Utah’s free expression clauses, the majority noted three distinct clauses at play: the liberty and responsibility clause of Article I, section 1; the governmental restriction clause of Article 1, section 15; and, the criminal libel clause of Article 1, § 15.

The chief debate centered on the interplay of the liberty and responsibility clause in conjunction with the governmental restriction clause. The majority noted that the governmental restriction clause clearly limited the government’s actions with respect to the rights of communication. “This clause, however, does not define what those rights are.” Id. at 1243. Instead, the majority drew from the language of the liberty and responsibility clause. “The questions then becomes, [w]hat constitutes an abuse of this right?” Id. at 1244. For this, the majority looked to the moral standards as reflected in the laws at the time the Utah Constitution was drafted.

The criminal libel clause, though unconstitutional under the federal clause and apparently irrelevant to the facts in American Bush (and quite likely this matter) is cited as an example of an abuse of the liberty unprotected under the intent of the framers of the Utah constitution. Thus it is offered only as support for the notion that free speech is not unfettered under the Utah Constitution. See id. at 1244.
Ultimately, the majority noted that the “laws in effect at the time of the Utah Constitution’s ratification,” did not view nude dancing as protected speech. Id. at 1252. Instead, the laws criminalized the behavior. Thus, it is clear to the majority that nude dancing was an “abuse” of the right to free communication protected by the liberty and responsibility clause and thus fell outside the increased protection offered by the governmental restriction clause. Id.
The implication of the majority’s ruling is clear. Communication that was regulated and controlled as such at the time of the ratification of the Utah Constitution fell outside the purview of the protected speech and was therefore not afforded the protection of the Utah Constitution’s free speech clauses. If the communication was unprotected speech at the time of ratification then no protection was offered by the Utah Constitution. However, if the communication was protected at the time of ratification, than the government could take no action to abridge or restrain the speaker
There is little doubt that arresting and incarcerating someone for protesting a wrong or petitioning for redress would not sit with the framers of the Utah Constitution. These rights were specifically protected by those same framers and removed from the controls of the government by the language they chose. The City cannot meet its burden to prove that the protesting or petitioning is somehow an abuse of that right. There appear to be no laws at the time that would have prevented this type of protest,. To the contrary, these rights were specifically enumerated as inalienable and inherent to all men. These words mean that all of us were born with these rights and it was not within the government’s power to take them.

Defendants are not arguing that at the time of the constitution’s ratification, there were not laws prohibiting the disturbance of the peace or establishing curfews in the territory. However, enforcing such ordinances against citizens participating in peaceful, public protest against perceived wrongs does not recognize the value and intended protection afforded the open, robust civic dialogue Utah’s framers intended. Though communication may be inconvenient and possibly even intimidating to some, the founders chose to protect communication first and foremost in the Utah Constitution. The founders were well aware of the impact that protecting such speech would have. None of them claimed to be strangers to riots and brawls that started as rallies or bar room chatter. In spite of this, the right to think and speak one’s mind outweighed the side-effects of human communication. With the application of these ordinances against the defendants in these cases, the City has chosen to disregard the protection of free and open communication, the inalienable rights protected by the Utah Constitution. Accordingly, the cases should be dismissed as an unconstitutional exercise of the City’s power.

II. The Mayor of Salt Lake City and the Salt Lake City Police Department Violated the Due Process Rights of the Defendants by Revoking the License Granted the Defendants Without Adequate Notice or an Opportunity to be Heard Respecting Revocation.

ARGUMENT

The Occupy protesters were given a license – formal or informal – by the City to occupy Pioneer Park and that license was revoked without Due Process. The Due Process Clause of the United States and Utah Constitution require notice and an opportunity to be heard before any license can be revoked. Furthermore, revocation of any license cannot be “arbitrary and capricious” meaning that the revocation must be “supported by substantial evidence in the record.” Save our Canyons v. Board of Adjustment, 116 P.3d 978 (Utah Ct. App. 2005).

In 2008, the Utah Court of Appeals reviewed the procedure for revocation of a license and held that even though the terms of a provisional license did not specify a fault requirement, the licensee was not responsible for the independent actions of third parties. See 14th Street Gym, Inc. v. Salt Lake City Corporation, 183 P.3d 262 (Utah Ct. App. 2008). In that case, the Gym’s license was revoked during a provisional period for previous licensing violations. Specifically, the Gym’s license was on provisional status due to several arrests for criminal, sexual activity on the premises that the plaintiff had done little to prevent. Evidence also suggested that plaintiff’s employees may have even tacitly encouraged the illegal conduct. The Gym’s license was placed on provisional status which was conditioned in part on the Gym taking active steps to prevent future criminal activity on the premises. During the provisional period, police made two additional arrests. The City revoked the provisional license in spite of the Gym’s protestations that the two people arrested were simply patrons whose behavior was not condoned or encouraged by the Gym. Thus, the Gym contended that it had not violated the provisional terms. See, id. at 263-64.

The Court’s analysis focused heavily on the language of the actual provisional license granted the Gym. Specifically, the Court noted that the order required some finding of culpability on the part of the Gym. That is, the Gym, or its agents, had to have committed an offense or condoned or encouraged an offense. See, id. at 265-66. The Court determined “that the City’s revocation of the Gym’s license for the actions of third persons, without any finding of culpability on the part of the Gym, was arbitrary and capricious.”
In the present matter, the City, based upon the unfortunate passing of a transient seeking shelter with the Occupy protesters, revoked the license given to the protesters. The conditions of the protesters’ license to remain in the park, while not written down in stone, seemed to be essentially to avoid causing a public health or safety risk. While the death was tragic in its own right, the City made no effort to show how the death was linked to the presence of the protestors. The City never held a hearing on the matter.
No evidence was ever uncovered or revealed linking the death to the presence of the protesters. The protesters were never given an opportunity to refute the allegation that their presence in any way contributed to the death or represented a future public safety risk. In addition to notice and an opportunity to be heard, Due Process requires substantial evidence before a license can be suspended or revoked. See Save our Canyons v. Board of Adjustment, 116 P.3d 978 (Utah Ct. App. 2005). This Court has before it no evidence to justify the revocation because no evidence was gathered or heard. Thus, the license revocation violated Due Process by denying the protestors an opportunity to be heard and because the revocation was arbitrary and capricious.
The logical conclusion is that the charges must be dismissed against all defendants. That is, if the revocation of the license to remain in the park was unconstitutional, then it can be said to have never occurred from the perspective of the law. Thus, the license to remain in the park was still in effect and the police had no authority to order the protestors to leave. Nor could the protesters be found to have violated the curfew rules normally enforced for Pioneer Park because the protesters had specific license to remain there after curfew hours. Accordingly, all charges against the defendant’s should be dismissed.

CONCLUSION

The 24-hour, daily protest undertaken by Occupy SLC in Pioneer Park was a communicative act, or symbolic expression, protected by the Utah Constitution and Salt Lake City’s November 12 enforcement of its park curfew and disturbing of the peace ordinances was an impermissibly restraint of the defendants’ right to “protest against wrongs, and to petition for redress of grievances; (and) communicate freely their thoughts and opinions.” In addition, Salt Lake City revoked the provisional permission it had granted the defendants in these cases to occupy the park without given them adequate notice or opportunity to be heard regarding the revocation.

Therefore, enforcing these ordinances against the defendants on November 12, 2011, was an unconstitutional restraint of the defendants right to protest and a violation of their rights of due process and these cases should be dismissed.