October 14, 2011 06:55 PM UTC

Were Demonstrators "Camping" or "Protesting"? First Amendment issues need more attention

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• by: Jason Salzman

( – promoted by Colorado Pols)

Though not ignored by any stretch, the First-Amendment rights of the OccupyDener/Wall Street Greed protesters need to get more air time.

Since the tents appeared in Denver, I’d been wondering about the “protesters” I used to see as I rode my bike in front of the White House when I lived in DC 20 years ago. They got to stay there because their 24-hour protest, which included tent-like structures, was protected under the First Amendment.

The ACLU at one point brought their case all the way to the Supreme Court.

The question for them, and for our local protest camp, was, were they “camping,” and in violation of anti-camping laws, or “protesting” 24 hours a day, and protected by the First Amendment?

KHOW’s Caplis and Silverman aired a great interview with attorney David Lane on this topic yesterday.

Here’s part of what Lane told Caplis and Silverman:

Lane: What is the competing interest against [the protest], Dan? Does Denver have some compelling need to use that space? And if the answer is no, then yes, you’re allowed to stay there 24 hours a day, as long as you’re not stopping someone else from exercising a constitutional right. It may be an eye sore. It may be inconvenient, and you may not like to see tents there when you drive by, but really if Denver has no compelling reason not to allow it, then Denver just has to allow it…

If someone is violating the health laws by camping there, if you want to call it camping, then they get a ticket for violating a health law. If theres’s some public disorder occurring there, give them a ticket for public disorder. If there is no public disorder, if there’s no health violation, then Denver has to put up with it under the First Amendment. …

If there’s public urination going on, Dan, give them a ticket for public urination….

Let me ask you, have you ever been to the White House? Have you ever seen the protesters who are permanently ensconsed. I mean, they are always there. They never leave. They have signs that say, I’ve been here for 27 years, 10 months, and 242 days. Yes, you can protest. You can protest 24-7. The issue is, is it really camping or what is it?… They have designated areas. Maybe Denver should designate an area.

There are reasonable time, place, and manner restrictions. But who are you bothering? Are you bothering the drug dealers who normally exist in Civic Center Park? Is that the problem, Dan? Are there really people who are using this park at midnight so we have to move these guys out?…

Caplis: What about the governor’s point that you have all these tents together…a fire could sweep through the camp.

Lane: You could come up with excuses like that. That’s just nonsense. You know that’s nonsense. It’s an excuse to get rid of them…

In order to stop free speech, the government has to have a compelling interest in stopping it. If it involves speech, and it’s not simply, gee I don’t have anywhere to go sleep, so I’m going to sleep in the park, then I think the government is going to be hard pressed to stop it. …