Banning ‘loud’ protester from town property unconstitutional

APPEAL COURT

a medical-marijuana facility across the street from his home. He engaged in some front-desk fist pounding, and was prone to shoving a video camera in the faces of people he questioned about the decision.

In June 2014, a town employee placed Town Hall under lockdown as Bracken outside wielded a megaphone, which he said he took pains to ensure would not be loud enough to disrupt a council meeting inside. He paced up and down yelling, “kill the bill!” He also called the town’s chief administrative officer a liar and a communist, court records show.

Town staff called police, who ordered Bracken to go away. He refused. Officers arrested him and gave him a ticket for failing to leave and a trespass notice banning him for a year from town property at which its employees worked.

The ban was the result of his “persistent and escalating confrontational behaviour” with town staff.

While the ticket was later withdrawn, Superior Court Justice Theresa Maddalena upheld the trespass notice in February last year on the grounds that Bracken had been shouting and that his behaviour was “erratic and intimidating.”

Maddalena found he “crossed the line of peaceful assembly and protest,” negating his free-speech rights.

The Court of Appeal found Maddalena made several legal errors in her constitutional analysis, and factual mistakes about his behaviour.

“The area in front of a Town Hall is a place where free expression not only has traditionally occurred, but can be expected to occur in a free and democratic society,” Justice Bradley Miller said. “The literal town square is paradigmatically the place for expression of public dissent.”

Evidence from town staff that they feared for their safety was flimsy at best, the Appeal Court said.