Watters v. Otter, 986 F. Supp. 2d 1162

Background

Occupy Boise renewed a motion for partial summary judgment challenging 2013 administrative rules governing Capitol Mall use.
Idaho enacted a statute, Idaho Code § 67-5709, directing the Department of Administration to promulgate rules for state facilities after a no-camping ban.
Temporary rules issued spring 2012 became effective April 17, 2012, were amended May 14, 2012, and were rescinded October 3, 2012 with new temporary/proposed rules.
Rules are found in IDAPA 38.04.06 (Capitol Mall grounds and Other State Properties) and IDAPA 38.04.08 (Capitol exterior grounds).
Occupy Boise challenged several rule components (e.g., chalking, staking, maintenance, State Events waivers, denials, costs) and sought a declaration of invalidity and an injunction.
The Legislature later rejected parts of the 2013 rules via concurrent resolutions, prompting amendments that took effect April 5, 2013; the court granted in part and denied in part the renewed motion, and addressed mootness of the 2012 rules.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the 2013 rules constitutional time, place, and manner restrictions?	Occupy Boise contends rules restrict core First Amendment political speech.	State contends rules are content-neutral, narrowly tailored, and leave ample alternatives.	Partially upheld; some rules pass muster, others unconstitutional.
Do chalking, staking, and grounds-maintenance rules satisfy tailoring requirements?	Chalking/staking/maintenance overbroad; impede expressive conduct.	Rules are content-neutral and promote substantial aesthetic/public interest.	Chalking and staking rules upheld; grounds-maintenance rules deemed permissible.
Do State Event waivers improperly elevate government speech and grant excessive discretion?	Waivers for State Events show government-favored speech and broad discretion.	Waivers carry no explicit constitutional flaw absent standards.	Waiver provision unconstitutional; required narrow, objective standards for waivers.
Are Capitol Steps permitting provisions, including first-come/first-used and denial grounds, valid?	System grants too much discretion and may chill speech.	Regulation includes objective standards and appeal rights; not facially invalid.	First-come/first-used not facially invalid; denial grounds deemed content-neutral with safeguards.
Are revised durational limits and indemnity/liability provisions properly tailored?	Seven-day limits and broad indemnity/liability are not narrowly tailored.	Regulations serve to balance access and protection; standards exist.	Durational limits facially unconstitutional; indemnity/liability provisions overbroad.

Key Cases Cited

Edwards v. South Carolina, 372 U.S. 229 (U.S. 1963) (First Amendment protection for assembly in public forums; state action limited.)
Carey v. Brown, 447 U.S. 455 (U.S. 1980) (Core political speech protections in democratic process.)
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (U.S. 1982) (Speech and association in political process; robust First Amendment protections.)
Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (Time/place/manner restrictions must be narrowly tailored and leave alternatives.)
Forsyth County v. Nationalist Movement, 505 U.S. 123 (U.S. 1992) (Facial challenge to licensing schemes; narrow, objective standards required.)
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) (Advance-notice and tailoring in permit regimes; alternatives considered.)
Seattle Affiliate v. City of Seattle, 550 F.3d 788 (9th Cir. 2008) (Permitting discretion and conditions must be specific; inappropriate general criteria struck.)
Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (U.S. 2009) (Government not required to subsidize all speech; rational basis analysis applicable.)
Brandenburg v. Ohio, 395 U.S. 444 (U.S. 1969) (Unabated advocacy of violence not protected; imminent lawless action standard.)
R.A.V. v. City of St. Paul, 505 U.S. 377 (U.S. 1992) (Content-based restrictions evaluated for general prohibition of hateful conduct.)
Thomas v. Chicago Park Dist., 534 U.S. 316 (U.S. 2002) (Public forum restrictions must be narrowly tailored; viewpoint neutrality.)
Taxpayers for Vincent v. City of Los Angeles, 466 U.S. 789 (U.S. 1984) (Municipal aesthetic regulation of signs; first amendment balance.)