Archive for the 'Occupy Minnesota' Category

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.


The constitutional battle over a First Amendment right to sleep could begin tonight

November 14, 2011

Hennepin County’s ban on sleeping outside the county Government Center takes effect tonight, so arguments regarding the ban’s constitutionality might awaken.

This morning, Minnesota Public Radio quoted Hennepin County Board Chairman Mike Opat as saying the ban is proper because the constitution does not prohibit rules that preserve public safety.  That much is true.  But there does not appear to be an explanation for how public safety begins being at risk tonight, but was not at risk over the past month.  Maybe the county is trying to prevent protesters from freezing to death, even though frigid temperatures are not forecast.

I’ve blogged previously about the Occupy adherents’ and their “media” (specifically their handmade signs, which the county wants to remove) as well as about whether sleeping in a public area can be considered “expressive activity.”  On that last point, Occupy would find imporant authority in a 1984 United States Supreme Court case that left open the possibility that sleeping is, essentially, speech.

In that case, the protesters hoped to draw attention to homelessness by camping in Layfayette Park, a national park across from the White House.  So too with the Occupy Minnesota protesters, for whom residential home foreclosures are chief concern.  And on the foreclosure issue, Occupy Minnesota has rightfully claimed success.

The 1984 case is very much on point.  Earlier this month, Occupy Sacramento recognized that when challenging a Sacramento city ordiance ordinance that prohibits staying in parks overnight.  In a Nov. 4 decision, a federal judge in California acknowledged the 1984 case and that “the act of sleeping out could all be expressive activity,” but explained that “nonetheless” the United States Supreme Court permitted the National Park Service to remove the slumbering protesters.  For that reason (among others), the federal judge refused to enjoin the Sacramento ordinance’s enforcement.

So Occupy Minnesota adherents do have a “sleeping is speech” argument should they be arrested.  But the battlle might be tough.

And … Occupy Minnesota’s signs are still there

November 5, 2011

New Occupy Minnesota signs were tacked to county property on Friday, the day they were to come down. (Photo by Steve Aggergaard)

Hours after Occupy Minnesota signs were supposed to come down pursuant to Hennepin County’s “winterization” policy, they were still there.  In fact, the banner pictured above appears to be a new sign, taped to county-owned light posts.

What gives?

The Uptake, a treasured citizen-journalism website, has a great video explaining what appears to have happened.  Apparently the county removed the signs Friday morning, which prompted Occupy adherents to put them back up, which resulted in security officials again taking them down and putting them in a pile. But seven or eight adherents locked arms and blocked access to the signs, which—according to the video—prompted security officials to confer with county board.  And …

There were no arrests.  And the signs went up.  And, as of last evening at least, they have stayed.

Pamphlets and signs are the purest form of protest media, and it will be interesting to see how the various First Amendment issues are resolved.  The Uptake’s video suggests the American Civil Liberties Union of Minnesota is considering a “class-action lawsuit” on behalf of the adherents.  There’s no such mention on the ACLU’s website, so we’ll see how that shakes out.  Class actions are not easy to maintain, particularly on an “emergency” basis.

If there is legal action, a hurdle for Occupy might be who, exactly, has the legal right—the “standing”—to litigate the issue.  Ironically, if Occupy Minnesota were to incorporate as a nonprofit corporation, it would be a lot easier for Occupy as a corporate “person” to assert that its adherents’ constitutional rights are in jeopardy.

But of course, as the photo above demonstrates, corporate personhood tops the list of Occupy adherents’ concerns.  The opposition will make it more difficult for Occupy to go to court to obtain a “declaration” that the Hennepin County policy violates the First Amendment.  Rather, individual persons might need to actually be arrested and then argue, essentially from jail, that their individual arrests were unconstitutional.

Judging from Friday’s events, Occupy adherents appear poised to go that route if need be.

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.

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.