Idaho state government has a fairly clear right to manage its public lands and within reason govern some of the things people do there. You can’t camp on the Statehouse lawn, for example – that’s already law – or, and this is the point of the legislation this session, the lawn across 6th street, where the Annex building (the former Ada County courthouse) is, and where Occupy Boise has been since last fall.

But the legislation has a problem. It was conceived, written and passed after Occupy moved in. And that’s relevant. Here, in today’s decision by Federal District Judge Lynn Winmill, is the issue:

Occupy Boise’s tent city is a political protest of income inequality. As such, it is expressive conduct protected by the First Amendment. The State has the authority to regulate expressive conduct and can require reasonable time and place restrictions that are content neutral. But once a State law, or the State’s enforcement of that law, targets certain speech for restriction because of its content – especially when the target is political speech in a public forum – the law is presumptively unconstitutional. When the restriction is content-based, the State bears an “extraordinarily heavy burden” of showing that the law or its enforcement is the least restrictive means to further a compelling State interest.

Here, there is evidence that the State’s enforcement of the recently passed Idaho law banning camping on state grounds targeted Occupy Boise’s expressive conduct protected by the First Amendment. The State’s attorney in oral argument before this Court interpreted the law to permit a symbolic tent city that did not feature overnight sleeping. This interpretation clearly comports with the language of the statute, which
only prohibits “sleeping” and “camping” on state grounds and does not purport to ban the maintenance of a symbolic tent city which could be staffed 24 hours a day and 7 days a week. Yet Governor Otter’s letter announcing his signing of the legislation appears to require the removal of all tents, and that appears to be how the State Police are interpreting the law. Such action is simply not authorized by the statute. Because the reach of the State’s enforcement may exceed the grasp of the statute, this creates the appearance that the State is stretching to suppress the core political message of Occupy Boise – its tents – as presented in a public forum.

These circumstances render the State’s enforcement policy of removing Occupy Boise’s tents presumptively invalid under the First Amendment. It is unlikely that the State can show that its enforcement policy is the least restrictive means to further a compelling state interest. Unlike the circumstances in Clark v. Community for Creative Non- Violence,468 U.S. 288 (1984), where the Supreme Court approved a ban on overnight sleeping that allowed the maintenance of a symbolic tent city, the State’s enforcement policy here would ban such a symbolic display. As such, it fails to use the least restrictive means.

Winmill did allow the state to ban sleeping on the site, but Occupy could remain and staff its operation round the clock if it wishes.