Federal judge rejects protest rules applied to the Occupy Movement including finding the 7-day limit on rallies unconstitutional
BOISE, Idaho (AP) — A federal judge rejected some rules governing protests on Idaho property surrounding the Capitol in Boise, concluding that neither a seven-day limit on rallies nor allowing state officials discretion to waive restrictions for some groups but not others meets constitutional free-speech muster.
The “Occupy Boise” protests that prompted this 2-year-old litigation vacated the old Ada County Courthouse’s grounds last spring.
Along the way, there have been victories and defeats for the state and the activists who sued, including a decision upholding Idaho’s ban on overnight camping on the Capitol Mall.
Published late Friday, U.S. District Judge B. Lynn Winmill’s latest decision further clarifies how activists can — and can’t — use property on the Capitol Mall to deliver their messages.
In his 39-page filing, Winmill decided a seven-day limit on protests ran afoul of free-speech protections. Furthermore, he said, letting the Department of Administration waive regulations for so-called “state events” might invite discrimination against groups or messages officials didn’t like.
“The Court finds it troubling that if a private organization has political connections to state officials, or is considered worthy of attention by the state, the department has the authority to waive all rules for that organization, while an unpopular or unconnected group would have to adhere to all the rules,” Winmill wrote.
Richie Eppink, a lawyer for the American Civil Liberties Union of Idaho, which represented the plaintiffs, in particular lauded Winmill’s decision to throw out the seven-day rally limit.
He said this decision marks likely the first time a U.S. court “decided there’s no expiration date on free speech.”
“The state of Idaho clearly thinks that protest is some sort of a spare-time activity, when in fact this is core fundamental speech, and the court recognized that,” Eppink said. “I would like to think the state is going to read these decisions and determine that it has to protect protesters’ rights. But that’s yet to be seen.”
Jennifer Pike, a Department of Administration spokeswoman, said her agency is reviewing the decision.
Occupy Boise’s encampment was erected in November 2011 in the wake of similar expressions of discontent across the nation with corruption and greed on Wall Street — and concern that governments had failed to protect most U.S. citizens from its dramatic consequences, including the housing bubble’s collapse.
By early 2012, however, majority Idaho Republican lawmakers grew outraged, arguing protesters’ tents, mess kitchen and colorful banners had inappropriately commandeered highly-visible real estate near where the Legislature was meeting.
After GOP lawmakers sought to rein in activities with a new law allowing the gathering to be forcibly removed, if necessary, Winmill concluded that the Legislature had encroached on protected free speech. He allowed Occupy Boise’s symbolic tents to remain — albeit without their human occupants.
A year later, the 2013 Idaho Legislature reacted by passing new rules seeking to strike what lawmakers hoped would be a balance: Free speech, with common-sense limits on long-term, overnight protests.
Among others, the ACLU maintained these new limits still went too far — and pursued the case that led to Winmill’s decision Friday.
Though Winmill’s ruling upheld many of the ACLU’s arguments, he also pointed out the First Amendment “does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired,” according to his ruling.
To that end, the judge decided prohibitions on the use of chalk, as well as a rule giving Department of Administration Director Teresa Luna discretion over which groups could tap the state’s taxpayer-funded electrical outlets to promote their messages, didn’t infringe on free speech.
For one, Winmill wrote, nothing was keeping protesters from getting their points across via other means than writing with chalk, including signs and banners. Additionally, he suggested, the U.S. Constitution’s framers probably never envisioned state governments supplying power to groups using public property to air their grievances.
“The First Amendment does not require that the state provide electrical service to groups using state property,” Winmill wrote.