ACLU of Maine Files Amicus Curiae Brief in Support of Occupy Maine Urges Court to Apply Highest Possible Scrutiny to City Restrictions

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PORTLAND—Today, the American Civil Liberties Union of Maine Foundation filed an amicus curiae brief in Cumberland County Superior Court, in support of the rights of the Occupy Maine demonstrators in Lincoln Park. In its brief, the ACLU of Maine urged the court to apply the most stringent scrutiny in its review of Portland’s prohibition on overnight use of public parks. The ACLU of Maine argued that the court ought to review the challenge under Maine’s constitution as well as under the Federal constitution. While both constitutions contain protections for freedom of expression, they are worded differently and serve different purposes.

“There is nothing more important for our democracy than freedom of expression,” said Zachary Heiden, Legal Director of the ACLU of Maine and author of the group’s brief.” “We hope that Maine’s courts will interpret Maine’s constitution to give the highest level of protection to speech on maters of public concern.”

In its brief, the ACLU of Maine noted that often Maine’s constitution is interpreted as being co-extensive with the Federal constitution. But, in some cases it is appropriate to consider whether the state constitution might provide more protection for individual liberty than the federal constitution. The ACLU of Maine suggested that the court carefully consider whether the case of the Occupy Maine demonstration is one of those times.

“The federal constitution sets the floor, and not the ceiling, for the protection of free speech,” noted Heiden. “State courts cannot be less protective of free speech than the federal constitution commands, but they can interpret their own constitutions to provide greater protections.”

The Occupy Maine group in Portland has been ordered to remove its encampment from Lincoln Park, though the city has agreed to put that order on hold pending judicial review.