854 F. Supp. 2d 823
D. Idaho2012Background
- Occupy Boise seeks a preliminary injunction to stop removal of its tent city on Capitol Mall grounds (Feb 2012).
- Court heard oral argument Feb 24, 2012 and grants in part, denies in part relief.
- Idaho Code § 67-1613 prohibits camping on state property; enforcement contemplated tent removal and possession seizures.
- Site is public, highly visible near Statehouse; encampment consists of about 25 tents with overnight occupancy.
- Court treats injunction as non-final and subject to evidentiary hearing; delays seizure deadlines to March 2, 2012.
- Decision focuses on First Amendment protection for expressive conduct and the appropriate least-restrictive means test under applicable standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Occupy Boise’s tent city constitutes protected First Amendment speech. | Boise tents express political protest against inequality. | State may regulate time/place and restrict camping. | Likely protected expressive conduct; tent city is First Amendment speech. |
| Whether enforcement of Idaho Code § 67-1613 is content-based and presumptively invalid. | Enforcement targets Occupy Boise’s content and message. | Enforcement is neutral text and applies to all camping. | Enforcement likely content-based and presumptively invalid. |
| Whether the State can meet strict scrutiny as least restrictive means to ban overnight camping. | There are less restrictive alternatives; symbolic tent city allowed. | Overnight sleeping bans are proper in this context. | State unlikely to prove least restrictive means; but may ban overnight sleeping under Clark. |
| If enforcement is content-neutral, whether overnight sleeping ban still violates First Amendment. | Sleeping conveys personal political commitment; expressive. | Alternatively, government may regulate time/place; sleeping can be restricted. | Still likely to violate if content-neutral approach is misapplied; but sleeping ban may be upheld under Clark with tents remaining. |
| Whether irreparable harm and public interest favor relief. | Removal of tents suppresses political message; irreparable harm. | No irreparable harm if government regulates grounds. | Irreparable harm shown; balance favors Occupy Boise; public interest supports partial relief. |
Key Cases Cited
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (U.S. 1984) (overnight sleeping ban allowed with symbolic tent city maintained; supports time/place restrictions)
- Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) (traditional public forum; heightened scrutiny for content restrictions)
- NAACP v. City of Richmond, 743 F.2d 1346 (4th Cir. 1984) (traditional public forum; government bears heavy burden to justify restrictions)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (U.S. 1992) (content-based restrictions on speech in public forums generally struck down)
- Hoye v. City of Oakland, 653 F.3d 835 (9th Cir. 2011) (content-based enforcement must meet least-restrictive means; strong First Amendment protection)