Interesting Occupy Question: did the judge leave a new door open for an appeal?

Not having been able yet to talk with the attorneys involved, I'm not going to try to dissect the ruling too much. But I do find one thing very interesting: Judge McIntyre posits that a new, unprecedented legal question has been raised. From page 11-12 of the ruling (read the full ruling here):

They claim that their message of economic equality and more perfect democracy can only be effectively communicated through the "literal occupation of Boston in the financial district." Their lawyer has argued that "the occupation is the message."

This begs the question: can a group take over and occupy public property in the name of the First Amendment? No controlling opinion has been offered that has considered the seizure of a public forum as a First Amendment exercise. The court grasps the nettle and states that occupation, defined as taking possession by settlement or seizure, is not a symbol or expressive conduct that is constitutionally protected.

What's interesting here is that McIntyre does not simply rely on the Clark decision, as one might have expected. (And as I discussed in an earlier article on this case.) In effect, she is acknowledging the Occupy movement as, as least potentially, something unique -- a movement in which the act of taking is the protest.

An appelate court might be interested in revisiting that.

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