'Occupation' Is Not 'Speech': #OccupyBoston, #OccupyDenver Lose in Court

McIntyre: permission to occupy the bench! (Photo credit: AP)

Suffolk County Superior Court Judge Frances McIntyre, who was prematurely panned for granting Occupy Boston a temporary reprieve (and for being a Mitt Romney appointee), delivered an elegant decision against the protestors today:

Plaintiffs claim that their occupation of the site and the community they have established thereon are protected by the First Amendment. They seek a preliminary injunction against their removal by the defendants.

But the injunction is denied because, while Occupy Boston protesters may be exercising their expressive rights during the protest, they have no privilege under the First Amendment to seize and hold the land on which they sit…[T]his court seriously doubts that the First Amendment permits the plaintiffs to seize and hold a public forum to the exclusion of others. (1, 15)

Judge McIntyre noted that “the setting up of tents, sleeping, and governance” on a public square is “expressive conduct,” albeit subject to local regulations that have a merely “incidental” impact on free speech, and which are consistent with established time, place, and manner restrictions on the First Amendment. However, the fact that protesters sought to “Occupy” that public square crossed the line from speech into land seizure.

(Time to rename that movement, perhaps?)

Meanwhile, in Denver, a federal judge ruled against Occupy Denver’s request for a restraining order to stop city policy from ticketing them, ahead of a lawsuit to decide the substance of their claim.

The Denver Post reports that U.S. District Judge Robert Blackburn (a George W. Bush appointee) ruled that Occupy Denver had failed to show evidence that the police were acting in retaliation to the protestors’ opinions.

The attorney for the activists blasted the judge: “The problem with the court system today is there are so few judges willing to stand up for civil rights and civil liberties and so many judges willing to enhance the power of the police.”

(Time to try a different legal strategy, perhaps?)

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