Occupy Minnesota wins partial victory in federal court

November 29, 2011

Cutting off electricity has nothing to do with the First Amendment, but sleeping outside Hennepin County Government Center does.  Even so, the Occupy Minnesota tents need to go.   But their signs can stay.  And the “chalking” needs to stop.

Those were among the rulings from federal Judge Richard Kyle, who last week handed Occupy Minnesota adherents a partial victory in their ongoing effort to occupy the public plaza outside the Government Center.

Interestingly, the judge’s “sleeping is speech” ruling was based on a decision from balmy Fort Myers, Florida, where a federal court ruled that “tenting and sleeping” was protected as expressive activity.  Hennepin County had suggested that banning sleeping in frigid Minnesota was a matter of public safety.  Apparently, Judge Kyle trusts Minnesotans enough to know when to come  out of the cold.

However, as I predicted, he cited a 1984 case in which the United States Supreme Court held that the National Park Service was within its rights to prevent protesters from sleeping in Lafayette Park across from the White House.  As the judge explained, government may ban sleeping in public because doing so is a “valid time, place, and manner restriction” that does not violate the First Amendment.

The judge would have none of Occupy’s argument that cutting off  electricity has anything to do with the First Amendment.  He also ruled that the county was within its rights to prevent “chalking” on plaza property.

But significantly, he ruled that the Occupy signs can remain and he ordered the county to not enforce a resolution that bans the signs.  The county’s resolution contains an exception for signs “placed by county personnel related to county business.”  The judge explained that “this difference is crucial” because it creates a rule based on content of signs — specifically what the First Amendment forbids.

The decision was extremely well-reasoned and fair and based in practicality.  As the judge explained, Occupy adherents “are unlikely to leave the Plazas anytime soon,” so he ordered the parties to mediate their dispute as soon as possible.

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