July 10, 2012
Idaho Department of Administration rules unconstitutionally limit freedoms of speech, assembly, and association
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BOISE, ID—Today the American Civil Liberties Union of Idaho (ACLU-Idaho) and Occupy Boise filed a challenge in U.S. District Court to the Idaho Department of Administration’s new rules governing protests and rallies in the Capitol Mall and other state facilities. The rules take an extreme and unnecessary approach in regulating Idahoans’ individual freedoms.
“Even two people—whether ordinary citizens or professional lobbyists—could be subject to permitting requirements and citation if they gather on the Statehouse steps to make their voices heard,” said Ritchie Eppink, Legal Director of the ACLU of Idaho and co-counsel to Occupy Boise. The new rules regulate events and rallies at and around the Capitol building and define a rally as “a gathering of two (2) or more people for the purpose of actively promoting a cause or position.” Such stringent definition places a barricade on the ability of everyday Idahoans to peacefully assemble and voice support or opposition on political issues. “The new challenge filed today points out that this kind of broad government control over Americans’ right to speak freely goes beyond what the courts have allowed,” said Eppink. “Anybody in Idaho with an opinion about their government should be concerned.”
The administrative rules also impose a five-day advance notice requirement on groups seeking a permit to hold an event on the Capitol steps. “The legislature moves so quickly,” said Ed Watters, the lead plaintiff in the lawsuit. “With these rules, it’s going to make it impossible for citizens to respond to their legislature—especially for working people.” Other portions of the rules prohibit rallies and demonstrations after 6:00 p.m. At least two widely-covered events held during this year’s legislative session, a march against mandatory ultrasound legislation and a rally promoting legislation to ban sexual orientation and gender identity discrimination, would have been prohibited by the new rules.
The new rules, which the Idaho Department of Administration created after a federal court ruled that the State could not to use a new anti-camping statute to evict Occupy Boise’s demonstration on state grounds across from the Capitol, are the State’s second effort to regulate protesters who have been critical of the state’s legislative and executive branches. “The First Amendment allows the state to regulate ‘competing uses’—to make sure that all groups who want to have their voices heard have that opportunity,” Eppink said. “But here we see the state stretching once again to try to use that authority to cut everyday people’s voices out of the mix.” The state’s new rules give state officials unprecedented discretion to declare that citizens visiting the statehouse cause “interference” with the legislature and state officials they elected.
Occupy Boise, along with four individuals, filed suit in February 2012 against Idaho Governor Butch Otter, Director of the Idaho Department of Administration Teresa Luna, and Col. Jerry Russell, Director of the Idaho State Police, seeking a court injunction to prevent eviction of the Occupy Boise tent city vigil on the grounds of the old Ada County courthouse. Judge B. Lynn Winmill issued an injunction on February 27, 2012, but recently allowed the State up to eight weeks for lawn maintenance. Occupy Boise may return to the grounds as soon as the maintenance is complete, or eight weeks have passed. The latest challenge to the new rules is part of the same lawsuit, Watters v. Otter, in the U.S. District Court for the District of Idaho.