As reported, Occupation Boston yesterday received word that state court Judge Frances McIntyre lifted the temporary restraining order and denied the preliminary injunction paving the way for eviction. Mayor Thomas M. Menino quickly issued a statement that the city “strongly encourages” protesters to leave Dewey Square.

Although many observers had expected this result, this judge did something new. She created a new dangerous theory: “occupation” is conduct that is not entitled to First Amendment protection. Although this was not the only basis for her ruling — the other ground for the decision followed more traditional reasoning—-the decision does break new ground. If accepted, this reasoning could mean that the entire “Occupy” movement would be stripped of its First Amendment protection, at least if it continued to “occupy.” No one I know anticipated such a broad and hostile outcome.

Judge McIntyre’s reasoning went something like this. In the more traditional portion of the decision, which is the second part of the case, the court acknowledged that what the protesters did to establish Occupy Boston — “the setting up of tents, sleeping, and governance on Dewey Square”— is indeed speech protected by the First Amendment. The court reasoned that Occupy Boston’s living activities had a clear message—they were “all demonstrative and expressive of the democracy they claim to be creating.” In addition, “There can be no doubt that at this writing in Boston, and perhaps throughout this country, an enclave of tents in a public park connotes the Occupy movement and their 99%/1% viewpoint.” The court found in the city’s favor, however, because even protected speech may be subject to “reasonable time, place, and manner restrictions.” In so holding, Judge McIntyre merely followed a prior Supreme Court decision (Clark v. Community for Creative Non-Violence.), to uphold the reasonableness of the city and state codes, and the Rose Kennedy Conservancy’s regulations for Dewey Square.

In the first part of the case, however, the court’ analyzed the word “occupation” and reached a radical result. Here, the court did not rely on case law, but merely drew its own overbroad conclusion: [cont’d.]

C]an 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.

The court found that the word “occupation” means, according to its dictionary definition, “the seizing and holding of land.” That conduct is different, the court reasoned, from “the living activities, that is, the setting up of tents, sleeping overnight, eating and governing on the site.” In particular:

‘Occupation’ speaks of boldness, outrage, and a willingness to take personal risk but it does not carry the plaintiffs’ professed message. Essentially, it is viewed as a hostile act, an assertion of possession against the right of another. The act of occupation, this court has determined as a matter of law, is not speech. Nor is it immune from criminal prosecution for trespass or other crimes.

Despite conceding that Dewey Square has been occupied “peacefully,” the court went on to contradict its own findings discussed above concerning the clarity of the Occupy Boston message. To the extent that it communicated at all, the court said, the occupation communicated “the very antithesis of their message that a more just and egalitarian society is possible. It does not send the message that plaintiffs profess to intend.” Again in a contradictory fashion, the court stated:

There is little likelihood that Occupy Boston’s professed message can be understood from their act of occupation, either. It has not generally been perceived as benign by those occupied. Essentially, occupation is received as a hostile act, an assertion of possession against the right of the true owner. Municipalities across this country have responded in kind to the act of occupation, frequently by police force. I take this as a showing that the act of occupation is not understood to communicate plaintiffs’ intended message of egalitarian democracy. . . .

In other words, incredibly, the judge seems to be using the numerous examples of police repression nationwide as evidence for determining that the “occupation” cannot be protected First Amendment speech. To drive this point home, she continues:

This court doubts that a seizure of land, which invites the use of force in response to the attempt to hold possession of the land, would ever be sanctioned as expressive of a particularized message. Notwithstanding the protesters’ profession of non-violence, confrontations and the use of force are inevitably provoked by the seizure and holding of public parkland and defense of the land held.

One commentator has observed that such reasoning could set us back fifty years. At the very least, by fetishizing the word “occupation” and creating a distinction without a difference, the court appears to be practicing disfavored viewpoint discrimination against the entire “Occupy”movement. The court thus may well have unintentionally created an interesting argument on appeal.