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Judge seeks balance in Occupy ruling

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By GENE POLICINSKI
First Amendment Center
A federal judge in Minnesota has provided an interesting, common-sense decision that appears to balance fairly the First Amendment rights of the Occupy movement demonstrators, the responsibilities of public officials, and the larger interests of the public.

Senior U.S. District Judge Richard Kyle ruled Nov. 23 that protesters can post signs in a Hennepin County government plaza and that they can assemble there “during any hour of the day.” But he also said county officials may ban tents and forbid anyone from sleeping overnight in the area.

In words that may echo in similar legal battles now pending nationwide, Kyle also ordered both sides into settlement talks, saying, “Hence, the parties are going to have to ‘learn to live’ with one another.”

The First Amendment is intended to guarantee all citizens an unfettered voice on matters of public interest, the right to assemble with people of like minds, and the right to “petition the Government for a redress of grievances.”
Hasty decisions by public officials in response to various Occupy encampments have been found to have encroached on the First Amendment’s requirements that government action not be aimed at limiting or preventing a group or point of view from being heard.

But continued protests and encampments — some now entering a third month — seem to be providing public officials with legal ammunition to argue that they have to clear plazas, parks and even sidewalks of Occupiers because of safety, crime or sanitation issues, not because of political views.

Kyle’s ruling likely won’t satisfy either side: County officials initially wanted to ban any signs or even chalk drawings. And by banning overnight stays, the judge removes an effective element of street theater that helped the anti-Wall Street movement gain and sustain public attention.

But Kyle recognized — as did the nation’s Founders — that we all do have to live with one another. Balancing our individual rights with the rights of others has occupied the attention of citizens and jurists since the Bill of Rights was ratified 220 years ago, on Dec. 15, 1791.

Through the years, we have had to balance our right to privacy with the government’s role in fighting crime through wiretaps and searches, the rights of a free press with an individual’s right to a fair trial and an unbiased jury, freedom of expression with laws that punish child pornography and that allow the unfairly wounded to recover damages for defamation.

And we’re still struggling with the solutions to those balancing acts. Each of the Occupy movement encampments and push-backs from public officials pose a unique set of circumstances. No one court ruling or set of local rules will fit all. But Judge Kyle’s ruling sets a First Amendment-friendly tone and offers one approach to “living with each other” in a civil society.

Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online operations.