The U.S. Constitution guarantees freedom of speech and the rights to peaceably assemble and to petition government for redress of grievances.
Apparently, however, there’s no right to camp.
The Idaho Attorney General’s Office reviewed a proposed law that would outlaw the Occupy Boise encampment on state-owned property, concluding it is “much more likely than not” constitutional.
Many people believe the First Amendment protects the right to peaceful assembly — day and night, if so desired, said Rep. Phylis King, D-Boise, who asked for the opinion.
“Even if the AG says it’s probably constitutional, is (passing the bill) something we should do?” she asked.
An emergency clause in the bill would allow state officials to evict campers soon after the governor signs it, rather than let it take effect in July as new laws usually do.
“This is too heavy-handed,” said King, who hopes to at least see the emergency clause removed. “It’s too severe.”
The House State Affairs Committee heard testimony on the bill — at first HB 380, now HB 404 — Friday and Monday. The committee could vote as soon as Tuesday to send the bill to the floor of the House.
If it passes, occupiers who refuse to leave could be charged with infractions. The penalty for an infraction is a fine of not more than $100; imprisonment is not part of the punishment.
TENNESSEE MEASURE PENDING
Idaho isn’t the only state where lawmakers are considering new laws to deal with occupiers. Tennessee has proposed legislation to make it illegal for a person to live on publicly-owned property that isn’t designated or permitted as residential.
As in Boise, Occupy members took up residence in a plaza across from the state Capitol in November. Some protesters were arrested, but a federal court order found that raids on the Occupy Nashville camp violated the First Amendment rights of protesters, the Associated Press reported
Occupy Boise members call the tent city on the grounds of the Old Ada County Courthouse an “indefinite vigil” to redress grievances to the government, but critics call it an eyesore that has nothing to do with free speech.
“The legislators here in Boise have been fine with this movement,” King said. “The out-of-Boise folks roll into town, and (this) is the first thing they want to do.”
On Friday, Rep. Scott Bedke, R-Oakley, told House State Affairs Committee members about a 1984 Supreme Court case that upheld the National Parks Service’s denial of a request by a group that wanted to call attention to the plight of the homeless by putting up two tent cities on the National Mall. The court said the Park Service’s restriction on sleeping on the mall met requirements for “reasonable time, place or manner” of expression.
VIOLATING DUE PROCESS?
In its informal opinion, the AG’s Office points out that the bill, sponsored by Bedke, does not prohibit overnight picketing, marches or demonstrations. It also does not regulate expression by word of mouth, signs or leaflets.
A 2011 South Carolina case concluded that use of public streets for a parade or demonstration does not prevent reasonable regulation of time, place or manner for use of public facilities.
Otherwise, the AG’s letter to King said, protesters would “possess the public square for their First Amendment purposes and deny all other citizens use of the public square for all other purposes.”
The court recognized that the state may properly regulate conduct on the state grounds, including prohibiting camping and sleeping.
King asked about whether seizing protesters’ possessions would violate their due process. The bill classifies unauthorized personal property used to camp as litter authorized for removal. Owners would have seven days’ notice of the need to remove it.
The AG Office’s letter said there are potential due process issues, but it’s unlikely to be deemed a taking if property owers are given advance notice of the need to remove the property.
Katy Moeller: 377-6413
Bill that could shutdown Occupy Boise camp could be voted on Tuesday.
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