Is sleeping outside Hennepin County Government Center “speech”?

October 30, 2011

By sleeping outside the Hennepin County Government Center, Occupy Minnesota adherents are sending a message through what they are doing as much as what they are saying.  And it’s possible, but likely not probable, that the First Amendment protects their acts.

It is not entirely clear whether sleeping in a public place is, essentially, speech.   In 1984, the United States Supreme Court held that the National Park Service could regulate the “time, place, and manner” of protests in Lafayette Park across from the White House and therefore could prohibit overnight sleeping.  But interestingly, the court “assumed for present purposes” that sleeping in connection with a demonstration is “expressive conduct protected to some extent by the First Amendment.”  And two civil-rights-focused justices, Thurgood Marshall and William Brennan, wrote a dissent persuasively explaining why those particular protests should have been protected as speech:  because by sleeping outside, the protesters were trying to draw attention to homelessness.

Similarly, Occupy Minnesota protesters hope to draw attention to people who have been made homeless through foreclosures.  And to that end, the Minnesota effort has rightfully claimed some success.

But should the protesters’ rights be litigated in court, lawyers will have a tough time arguing that Hennepin County has no right to regulate the time, place, and manner of protests.   The other side likely would cite a 2008 federal-court decision where the federal court in Minnesota cited the Layfayette Park case to help explain how and why the City of St. Paul had a right to regulate protests outside the Republican National Convention.

Of course, Occupy Minnesota would be free to argue that the federal court got it wrong and that this situation is different.  And in some ways, it most certainly is.

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One Response to “Is sleeping outside Hennepin County Government Center “speech”?”


  1. […] are claiming a First Amendment right to engage in their efforts.  Earlier this week, I blogged about whether the First Amendment protects a right to sleep in a public place when, as here, […]


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