Government can close area previously used for Y-12 protests, U.S. attorneys say

Note: This story was last updated at 9:23 a.m.

Protesters call it a violation of their First Amendment rights, but U.S. attorneys said a new fence at the Y-12 National Security Complex can remain in place because the federal government has the right to close a previously open public forum.

The new fence encloses a grass field and small parking lot near the main entrance to Y-12 at Bear Creek and Scarboro roads. It’s been used for protests, vigils, and gatherings for 25 years.

Workers started erecting a temporary version of the fence on Monday. Protesters have asked the U.S. District Court in Knoxville to order that it be removed before an annual spring demonstration on Saturday.

But U.S. attorneys said the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.

“The circuit courts of appeal have consistently acknowledged that the government, having designated a forum as a public forum subject to the First Amendment rules that are applied to traditional public fora, may close the designated public forum as it sees fit,” U.S. Attorney William C. Killian and Assistant U.S. Attorney Suzanne H. Bauknight said in a response filed in U.S. District Court on Thursday. “Simply, the previously designated public forum at the Y-12 facility no longer remains open.”

Federal attorneys said the fence, which will be replaced by a permanent fence later, “simply precludes unauthorized public access to a facility that continues to play a pivotal role in maintaining the U.S. nuclear weapons stockpile.”

The government also argued that the plaintiffs cannot show irreparable harm because they have been offered another, previously used place to exercise their rights, “but they have chosen not to accept the government’s offer.” That presumably refers to the nearby New Hope Center on Scarboro Road, which is often used for public events. Protesters have said the application process to use it is onerous.

The plaintiffs include the Oak Ridge Environmental Peace Alliance, which opposes Y-12’s nuclear weapons work.

U.S. attorneys said any action that diminishes security at Y-12 has “potential consequences for national security and, thus, would cause substantial harm to others and would also be harmful to the public interest.”

A hearing has been scheduled for 3:30 p.m. today in Courtroom 4 before District Judge Curtis L. Collier in U.S. District Court in Knoxville.

Besides asking the federal government to remove the fence, the plaintiffs want the court to deny the government from ever again blocking the area. Enclosing it, they said, violates their First Amendment rights, including freedom of speech, the right to assemble, and the right to petition the government for a redress of grievances.

The National Nuclear Security Administration announced plans to erect the fence along Scarboro Road last week, citing three trespassing incidents involving five people in the past year, including the July 28 security breach.