Oregon Public Broadcasting

Oregon has some of the most permissive free speech rights in the nation. 

The state is widely-known for even defining live sex shows as constitutionally protected.

But one anti-war protestor at the Oregon State Capitol building has found out that her right to free speech apparently ends each evening at 11.  Salem correspondent Chris Lehman explains.

Michelle Darr has maintained a vigil on the front steps of the Oregon capitol since November 1st.

Michelle Darr has maintained a round-the-clock vigil on the front steps of the state capitol since November 1st.  The mother of four from Corvallis says even after the results of the election, she's protesting a deployment of the Oregon National Guard to Iraq next spring.

Michelle Darr:  "I'm relating this to my own personal experience and my own feelings as a mother and as a wife. How would this affect me were this my partner, were this my child going off to war?   I would feel very strongly that I'd want some answers as to why we were being asked to make this sacrifice again."

Darr spends her time at the capitol chatting with passersby and trying to stay warm.  On this day, the rain is falling steadily as she huddles under an umbrella with a cup of coffee in hand.  She says she doesn't know how long she'll stay.

Michelle Darr:  "That's a hard question to answer right at this point. At this point I can say that we have no intention of leaving until we feel that our Guard is no longer at risk of a deployment."

Darr will leave her post for a few hours though.  On December 11 she's due in court on charges of trespassing. 

It's a misdemeanor crime that could land her in jail.  Her offense?  Being on the capitol steps between 11 p.m. and 7 a.m. 

Darr was arrested by Oregon State Police after several warnings.  The police were enforcing a rule created by the Legislature, which owns the building. 

Legislative Administrator Scott Burgess says the rule does not include an explicit rationale.  But he says it's a reasonable restriction nonetheless.

Scott Burgess:  "I think it's public health and safety issues in terms of protection of the building itself or the people that might be out there."

Not so fast, says Mike Swaim.  The attorney and former Salem mayor is representing Michelle Darr in court with the help of the ACLU. 

Swaim says the state has little reason to prohibit anyone from maintaining a peaceful vigil during the overnight hours.

Mike Swaim:  "What is the compelling state interest that would allow the state to restrict a citizen's right to demonstrate and speak on the state capitol steps?"

Swaim says he'll appeal any conviction to higher courts on the grounds that the restriction violates the state constitution. 

He says besides, other groups have been allowed to have overnight events.  Every year, a church holds a Bible reading marathon on the capitol steps. 

Legislative Administrator Scott Burgess, who's brand-new to this job, says he's enforcing the limits more strictly than before.  And he says the Bible-readers might have to invest in a bookmark.

Scott Burgess:  "We will notify them that the Legislature does not want activity after 11 and before 7."

As for Darr, the debate over her constitutional rights is secondary to her anti-war message.  She says she doesn't really see a lot of people at 3 o'clock in the morning. But she's concerned about any limits on free speech.

Michelle Darr:  "We've lost so much in terms of freedoms and rights that I don't feel like it would be prudent to give up one of the one remaining freedoms we do have left, and that's our freedom to speak out about other things that are disturbing."

Even, she says, in the middle of the night.