"Occupy Boise's tent city is a political protest of income inequality," writes U.S. District Judge Lynn Winmill in his decision today, which blocks the state from removing tents on the site on 1st Amendment grounds, but upholds the state's new ban on camping there. "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." He found that the new state law "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 Gov. 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."
Added the judge, "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 1st Amendment."
In describing Otter's eviction order for Occupy Boise, Winmill wrote, "Governor Otter's edict, and the stated intention of the State Police, is to remove Occupy Boise entirely - tents and all. ... This creates the appearance that the State is stretching to shut down a political message - a tent city - presented in a public forum."