Prosecutors are pursuing charges against six Occupy Honolulu protestors, saying the defendants could have protested at one of 16 parks on Oahu that are open at night.
Instead, the group chose to gather at Thomas Square, which closes at night.
Last November, police arrested six people for refusing to leave the park after it closed.
Prosecutors pointed to a group that protested APEC, also last November, without breaking any laws.
"An organization called World Can't Wait Honolulu filed for a permit. They received a permit and they used Old Stadium Park as a staging area for the duration of APEC," said prosecuting attorney Cathy Lowenberg.
"Use of a staging area is not political expression and that's not the expression the defendants wanted to make. The ability to use a staging area is not the same," said defense attorney Eric Kram.
The defendants argue their right to free speech was violated.
The case will continue next month.