‘Not protected speech’: Idaho sues pro-Palestine protesters with tents on Capitol grounds

On Thursday morning, four protesters sat in lawn chairs at the Idaho Capitol Annex amid the sweltering heat. Nine tents, some with pro-Palestine messages written on them, stood in the grass. A chalkboard said it was day 70 of the people’s liberated university, the name for the demonstration.

This protest, ongoing since early May, is now the basis of a lawsuit quietly filed by the state of Idaho several weeks ago.

Steven Bailey, director of the Idaho Department of Administration – which oversees Capitol grounds – said in court filings that demonstrators were camping, damaging grass, smoking outside of designated areas, and marking up and obstructing sidewalks in violation of Idaho statutes. The lawsuit also accused a protester of hitting a state employee with a flag.

In court documents since May, the two sides have gone back and forth about what constitutes camping, the conduct of both sides during periods of scheduled lawn maintenance along 6th and Jefferson streets adjacent to the Capitol, and to what extent the First Amendment applies in the case.

“The observed violations are not protected speech,” the state said in its court filing, which names the Boise to Palestine group, Friends of Idaho, BSU Students for Palestine and the People’s University, as well as some individual protesters.

The pro-Palestine demonstrators first set up shop the weekend of May 3-4. Initially, the actions were protected under a 2014 permanent injunction allowing symbolic tents, a decision stemming from the Occupy Boise protests of over a decade ago. But then a federal judge ruled later in May that the protesters would have to file a new lawsuit.

The state filed its lawsuit one day after that. Idaho is seeking an injunction and a declaratory judgment that the defendants are violating rules and that the state doesn’t have to allow them to camp, smoke, set up a tent library or a “people’s university,” or damage property.

In a counterclaim, the defendants said that the Department of Administration’s claims were null and void because of the rights to freedom of speech and freedom of assembly, and several legal doctrines.

The “symbolically expressive” tents are designed to show the housing insecurity and displacement currently facing Palestinians in the Mideast, according to court filings from protesters, who also are using them to assemble.

“Defendants at the protest have faced ongoing police enforcement action from law enforcement officers with the State of Idaho,” according to protesters’ court filings, “who have violently and forcibly seized those symbolic and assembly tents repeatedly since its establishment on the evening of May 3, 2024.”

‘State wants to prevent this protest as much as they can’

Among the protest group’s other allegations and complaints in court filings are that law enforcement and Ada County jail staff refused to allow a protester who was arrested speak to a lawyer; that the state has not provided an overnight location for protesters to go; and that authorities have not provided an inventory of seized items.

The state of Idaho told demonstrators to stay off the grounds overnight so the grass could be watered and lawn cared for, according to court filings, and the demonstrators say they have worked to comply with that request.

This dueling court filings have gotten into the weeds, literally. A lawyer for the protesters filed a 2012 deposition from a landscape superintendent who said that it didn’t take long to assess damage or get the grass growing again after the Occupy Boise protests of 2011-12.

The counterclaim from protesters says the state has violated First Amendment rights, the Idaho Constitution and the Fourth Amendment, which protects against unreasonable searches and seizures of property. Protesters are asking for a declaratory judgment and declaratory relief saying that the symbolic tents are protected.

The pro-Palestine group also filed for a preliminary injunction that would prohibit the state from interfering with the protest and seizing or destroying property.

“The use of tent-city protests like this one in Boise to draw attention to the plight of Palestinians is now well-established around the world as an expressive political message,” according to the group’s filings. “It’s clear that the State wants to prevent this protest as much as they can.”

The next event on the docket is a preliminary injunction hearing on Monday, according to the state’s online court records portal.