No it was tried as a 1st amendment issue. It needs to be tried as a 4th amendment issue which it actually it.
The Fourth Amendment has been interpreted to exclude not only homeless individuals’ privacy interests, but also their ability to move around in public spaces. The Fourth Amendment only covers police interactions with civilians where there is a seizure. However, an interaction is not considered a seizure when a reasonable individual would feel free to terminate the encounter (Florida v Bostick (1991)). Without a property interest to anchor a homeless individual to a particular location, a police officer’s directive to move along from a public place does not trigger any Fourth Amendment interest, since complying with the order will end the interaction and not deprive the homeless individual of any property (Stephen E. Henderson, “Move On” Orders as Fourth Amendment Seizures, 2008 BYU L. Rev. 1, 18 (2008)).
Ie. Camping isn’t protected under the first amendment act as it isn’t expressive initself which that ruling if you read it makes clear. Essentially by itself it isn’t but it could theoretically be made expressive but that hasn’t be tried.
You can read it here. The defendants argued exactly that. It is the premise of the entire case.
We need not differ with the view of the Court of Appeals that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment.
They argue at length about the limits of this expression, and the distinction between facilitative and expressive acts. So it has definitely been tried, and has been thoroughly rebuked.
The Fourth Amendment has been interpreted to exclude not only homeless individuals’ privacy interests, but also their ability to move around in public spaces. The Fourth Amendment only covers police interactions with civilians where there is a seizure. However, an interaction is not considered a seizure when a reasonable individual would feel free to terminate the encounter (Florida v Bostick (1991)). Without a property interest to anchor a homeless individual to a particular location, a police officer’s directive to move along from a public place does not trigger any Fourth Amendment interest, since complying with the order will end the interaction and not deprive the homeless individual of any property (Stephen E. Henderson, “Move On” Orders as Fourth Amendment Seizures, 2008 BYU L. Rev. 1, 18 (2008)).
You can read it here. The defendants argued exactly that. It is the premise of the entire case.
They argue at length about the limits of this expression, and the distinction between facilitative and expressive acts. So it has definitely been tried, and has been thoroughly rebuked.
Move on is different then you cannot simply exist here, I already made mention of move on orders being legal.