Court Grants Temporary Restraining Order Against Possible Removal of Occupy Boston Encampment

The decision came in Occupy Boston v. City of Boston (Mass. Super. Ct. Nov. 17, 2011); the hearing on the preliminary injunction is set for Dec. 1.

The First Amendment analysis in the decision is quite thin: The court concludes that the plaintiffs have the requisite likelihood of success on their First Amendment claim because their encampment is symbolic expression. But the question isn’t just whether the encampment is presumptively protected by the First Amendment — it’s whether there are valid content-neutral city ordinances or state laws that permissibly restrict such camping.

By way of analogy, imagine someone came to court asking for an order barring the police from shutting down an unlicensed parade down a busy street. The parade is surely symbolic expression; but the question is whether there’s a content-neutral law that nonetheless constitutionally restricts the parade (in the hypothetical, traffic laws coupled with a content-neutral scheme for allowing parade permits in certain places at certain times). And given that Clark v. CCNV (1984) upheld the constitutionality of limits on sleeping in parks, it seems likely that some content-neutral restrictions on Occupy encampments are constitutional (if Boston or Massachusetts do indeed implement such restrictions).

This having been said, two experienced Massachusetts lawyers who are familiar with the case (and who are sympathetic to the result) tell me that Massachusetts state court practice is often to issue such TROs based on highly abbreviated analysis, just to preserve the status quo pending a more thorough hearing. So the decision on the preliminary injunction will presumably go through the First Amendment questions in more detail.