In his temporary order telling the state to hold off on removing the tents, U.S. District Court Judge Lynn Winmill wrote that the tent city is a political protest in a public place -- the grounds surrounding the old courthouse which, the judge noted, are "highly visible and physically close to the seat of government, making it a natural forum for political protests."
The state has argued there's nothing in its new law that specifically targets Occupy Boise's protest. Nonetheless, Judge Winmill has concluded there's the appearance that the state is trying to shut down a political message.
The judge also stated an argument can be made that sleeping at the site is also protected freedom of expression.
"The act of sleeping in the tents conveys a message of personal commitment and sacrifice to the political cause that is not conveyed by the tent city alone," Judge Winmill wrote. "Political messages gain power by virtue of personal commitment and sacrifice. And while sleeping isolated from context is perhaps the least expressive activity imaginable, it becomes imbued with great meaning as used by Occupy Boise."
Many people we talked to are intrigued by the debate.
"It's a fine line," said John Chatfield of Boise. "The tents are kinda ugly to look at. But you want to protect the rights of the citizens. I think the courts need to weigh in further."
"It's freedom of expression," said Rachel Neely of Boise. "I think he's right."
"Let 'em stay," said Boise's Hannah Webb. "They're not hurting anybody. They're not accomplishing much, but they're not not doing any harm."
Nobody told us directly that Judge Winmill got it wrong, and top lawmakers were not commenting. But we've seen people drive by the encampment, honk their horns and tell protesters to go home.
The law passed by the legislature would have cleared the grounds of everything.
As it is -- for the time being anyway -- the tents can stay but the camping equipment must go. No sleeping's allowed but protesters can staff the site around the clock.
The judge ordered the state to wait until Friday before removing any camping-related personal belongings.