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By Alan Torres
Eugene Register-Guard / Register-Guard
USA TODAY Network via Reuters Connect

U.S. District Court Judge Mustafa Kasubhai ordered the federal government to remove the fence around the Eugene federal building within the next 48 hours on June 22, siding with the Civil Liberties Defense Center which sued on First Amendment grounds.

During the two-day hearing, officials with the General Services Administration, the agency that manages the federal building, argued the fence was needed to repair and upgrade the building after it was damaged in a Jan. 30 protest that Eugene Police declared a riot.

The GSA said upgrades would include hardening doors and tempering glass, and the exact extent of the project would depend on how much funding GSA could obtain.

Marianne Dugan, lawyer for the Civil Liberties Defense Center, argued the fence’s placement was not tailored to that purpose, saying the window and door construction doesn’t justify fencing off 90% of the outdoor area around the federal building.

Dugan said the fence violates the First Amendment rights of Eugene residents who gather at the historic protest area, especially protestors with disabilities who no longer have access to the courtyard benches.

Kasubhai sided with Dugan.

Kasubhai noted protests since Jan. 30 at the federal building have been peaceful, even though the fence wasn’t up for most of that time, and the GSA had only fenced off the courtyard area, not the exterior of the building which also has breakable windows, suggesting the true purpose of the fence is to stifle speech.

During the first day of arguments, the GSA made the case that it accommodates free speech by letting protestors apply for permits. Kasubhai rejected this defense, noting the gates on the fence are locked from the inside, and even if propped open for a permitted event, would provide three choke points and a safety hazard to attendees who may need to escape the grounds.

Kasubhai had previously said he would only tell the GSA to move the fence, but after GSA officials explained the complications behind such a move, he ordered full removal.

James Blum, an attorney for the GSA, argued for only moving the fence far enough back so the public can access the courtyard benches again. He said the GSA was concerned about protestors using the hill in the courtyard to throw rocks at federal building windows.

Kasubhai was skeptical and instead suggested moving the fence to only block the windows and doors of the federal building, which he believed would balance free speech rights with the government’s goal of protecting the building and the people inside.

Ryan Anderson, building manager for the Eugene Federal Building, said doing so posed logistical complications.

Anderson said the current fence was designed for its current space, and replacing it with a smaller fence would require bringing back the Illinois-based contractor who designed the fence, possibly buying new parts, and coordinating with the City of Eugene for a permit to block traffic while new fencing is brought in and provide police to keep protesters back while the fence is moved.

Doing all of that would likely take months, Anderson said, although he wasn’t able to provide a specific timeline.

In response, Kasubhai ordered the GSA to tear down the fence and restore the “status quo” of the unfenced building that had existed for decades. He said the GSA would be allowed to install a smaller fence like he’d proposed at a later date, but in the interim, the fence should come down.

“I’ve attempted to provide guidance (for a) fence that would work within the First Amendment,” he said in court. “Given we have frozen without direction … I’m ordering the fence removed. There doesn’t seem to be any other solution. … The status quo is ordered and (the GSA has) 48 hours to accomplish that.”

Kasubhai gave this 48-hour order at approximately 3:30, giving the GSA until then on June 24 to tear down the fence.

“It’s very symbolic to be cut off from a free speech plaza,” lead plaintiff Naphtali Renshaw, who helps organize the weekly “singing for our lives” protest said, adding the fence has “blocked, hindered and chilled (people) from expressing First Amendment speech.”

Anderson had argued on the first day of the hearing that only the lower portion of the federal grounds is the free speech plaza. Renshaw refuted that, saying they’ve been part of many protests and memorials that used the upper plaza.

Kasubhai’s June 22 ruling was on CLDC’s “preliminary injunction,” requesting the fence to be removed while the case is makes its way through court. GSA can still argue for re-installing the fence in the long-term case.