Update: Nuclear cos-play protest – Zombie, Santa, Pirate, Ben Franklin

Last week there was a hearing before District Judge Tena Campbell in the case of six plaintiffs suing the Tennessee Valley Authority about a no-costume policy that they claim infringed their their First Amendment rights to speak out against the Bellefonte Nuclear Plant.

ZombieLaw first mentioned this story two weeks ago when the upcoming hearing was reported by The Knoxville News Sentinel by Ed Marcum. Since then, the American Bar Association Journal wrote about the story “Will federal judge kill suit over costumed ‘zombie’ protest of ‘corpse of a power plant’?” by Martha Neil. And then last week, the hearing happened and was reported on again by Ed Marcum in the Knoxville News Sentinel, announcing: “Judge to rule in 6 weeks on Zombie lawsuit motions“. Marcum writes:

TVA attorney Maria Gillen said the wearing of costumes at the meeting was not protected conduct under the First Amendment because it did not convey a message that could be readily understood.

This is an important issue for protesters – who decides whether your protest conveys a message? This kind of issue first came to my attention during the BongHits4Jesus case. In that case, the Supreme Court found that the lack of clear message in part reduced the quality of that student protest. But in that case the students told authorities that the message had no meaning – probably because they thought they would be in more trouble if they tried to explain the illegal drug use aspects (they would be correct because the Court also said promoting illegal drug use is not protected – but query: what if those kids had said clearly from the beginning that it was a religious message?)

Meanwhile, in the current case it seems that Irwin’s zombie message has a deep connection to nuclear power protests. Nevertheless, Santa, the Pirate and Ben Franklin may be harder to explain – but the point is that there weren’t even given a chance to explain their message. It was just deemed disruptive and protesters forced to leave before speaking, with a chilling effect on the non-costumed participants too.

But Marcum also writes:

Plaintiffs’ attorney Keith Edgar Lowe said the Knoxville protest was aimed not at the Bellefonte project but at TVA’s no-costume policy, which had been put in place after the Chattanooga protest.

So if the extraneous costumes were about protesting the costume policy itself does that make the case stronger or weaker? Note comment on the ABAJournal site that wonder about the limits of defining costumes. And when you look at Irwin’s zombie costume, is it just makeup, a dirty face? (see picture in the recent Knoxville article)

See also video on YouTube of Irwin and others at the protest: