Hennepin County says the Occupy signs must go. But where can they go?

November 4, 2011

Beginning this morning, Hennepin County says it will enforce new rules for Occupy Minnesota adherents, apparently as part of the county’s effort to “winterize” the county-owned plaza where adherents have camped, protested, and affixed signs.

An Occupy sign, planted in a publicly-owned planter Thursday evening.

Adherents 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, protesters hope to draw attention to the fact that some people (i.e. Minnesotans subject to foreclosure) risk having nowhere warm and dry to sleep.

Now the county plans to ban overnight sleeping when the temperature dips below 25.  It’s a new wrinkle because it’s not clear how cold temperatures are relevant to the “time, place, and “manner” restrictions the county likely may impose consistent with the First Amendment.

But the county also plans to ban signs from being affixed to county-owned benches, fountain, and planters.  Entirely, it appears.  Government, of course, owns those things.  But what is “government,” anyway?  That’s among the Occupy adherents’ points, I think.  If the public owns the benches, fountain, and planters, all made with material that can and will withstand a little masking tape, who’s to say what gets to be affixed there?  And by leaving no avenue for posting signs on government property, there does seem to be a First Amendment concern.

The American Civil Liberties Union of Minnesota has come to the Occupy movement’s aid.  While not representing the adherents, the ACLU rightly points out that the broadest First Amendment protections are aimed at “political expression.”  While the legal support in the ACLU’s letter is eyebrow-raising because it consists of cases involving obscenity, the rights of a white separatist’s movement, and a newspaper-box licensing scheme, the ACLU’s core message is spot-on.

Political speech is different.


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