published Sunday, January 29th, 2012

TVA sued over costume ban spurred by zombie protest

Ed Marcum Knoxville News Sentinel
Anti-nuclear activists march last July in front of the TVA building in Chattanooga to protest development of nuclear power plants. After this demonstration, TVA banned costumed people from its meetings, leading to a lawsuit by six Knoxville activists.
Anti-nuclear activists march last July in front of the TVA building in Chattanooga to protest development of nuclear power plants. After this demonstration, TVA banned costumed people from its meetings, leading to a lawsuit by six Knoxville activists.
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KNOXVILLE -- Six costumed protesters who planned to attend a TVA board of directors meeting have filed a $300,000 federal lawsuit against TVA, claiming the agency violated their free speech rights by refusing them entry to the meeting.

The six, all from Knoxville, are seeking $50,000 each in punitive damages. They also want a permanent injunction stopping TVA from barring those dressed in costume from attending meetings, an order setting aside all the actions TVA took at the meeting from which they were excluded and other judicial relief.

TVA spokeswoman Barbara Martocci said TVA has no comment because the matter is under litigation.

In July protesters in Chattanooga dressed as zombies urged TVA not to complete the Bellefonte nuclear plant, where work had been idled in 1988, calling it a "corpse" of a power plant. TVA subsequently announced it would not allow anyone in costume to attend its Aug. 18 board meeting in Knoxville, to avoid disruption of the meeting. At the Knoxville meeting, uniformed officers turned away several costumed protesters, who then demonstrated outside TVA headquarters. At the meeting, TVA directors voted to approve completion of the Unit 1 reactor at Bellefonte, in northern Alabama.

Chris Irwin, Bonnie Swinford, Matt Jones, Ricki Draper, Mark Homer and Margaret Rogers filed a lawsuit Monday in U.S. District Court in Knoxville against TVA; Tom Kilgore, TVA's president and CEO; Steve Kelly, an officer with TVA's police; and other unknown TVA officials who may have ordered the plaintiffs be turned away.

According to the lawsuit, the plaintiffs showed up at the August meeting with Irwin dressed in a business suit but with makeup on his face, Draper dressed as Santa Claus, Homer as Benjamin Franklin and Rogers dressed as a pirate. Those in costume were turned away by Kelly, the lawsuit alleges.

Jones and Swinford, who were not in costume, were allowed into the meeting and both addressed the board.

"Each speaker was allowed time to speak and at the end of Plaintiff Jones' allotted time, he made a joke about zombies being outside, mussed up his hair, raised his hands and made a low moaning nose. Plaintiff Jones was immediately ordered to leave the premises and was not permitted to remain in the Meeting," the lawsuit said.

According to the lawsuit, Swinford did not know whether Jones had been arrested or ordered to leave, so she changed the speech she planned to give to avoid either of those happening to her.

"Plaintiff Swinford's free speech was chilled by the actions of T.V.A.," the lawsuit alleges.

In their lawsuit, the plaintiffs claim TVA violated their right to free speech by excluding them from the meeting based on their expressing themselves through their dress and appearance and that the no-costume policy constituted a prior restraint on their right of free expression.

The plaintiffs also claim that by barring people in costume from its board meeting, TVA violated the Administrative Procedure Act, which governs how federal agencies set rules and regulations.

Knoxville lawyers Eric Lutton and Keith Lowe represent the plaintiffs. U.S. District Court Judge Thomas W. Phillips will hear the case. No hearing date has been set.

Contact Ed Marcum at www.knoxnews.com/staff/ed-marcum/.

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