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Free Speech and the Criminalization of Occupy

September 27, 2012 saw a significant legal victory not only for the Occupy movement, but also in the fight for free speech. Charges against 92 Occupy Chicago activists were dismissed on the grounds that the charges violated the First Amendment.

In October of last year, as the Occupy movement swept the country, hundreds of activists associated with Occupy Chicago risked arrest by attempting to create an encampment at Grant Park (near “The Horse” statue) in downtown Chicago.

Over the course of two consecutive Saturday nights, over 300 people were arrested and charged with violating a City of Chicago ordinance forbidding anyone to remain on park property after 11 p.m. All 303 individuals were taken into police custody, held overnight and given citations to appear in court for violating the Curfew Ordinance.

A motion was filed on behalf of the defendants which argued that the Curfew Ordinance was unconstitutional as applied to Occupy Chicago, but that it was also unconstitutional on its face. The motion was based on the argument that the Ordinance itself violated the First Amendment because it denied the freedom of assembly and speech after 11 p.m.

Oral arguments were heard on the motions in February, 2012 before Circuit Court of Cook County Judge Thomas Donnelly. On September 27, 2012, Judge Donnelly issued a decision, ruling in favor of the Occupy Chicago defendants and finding that the Curfew Ordinance is unconstitutional on its face and as applied to Occupy Chicago activists.

The 37-page decision emphasizes the importance of the freedom of assembly and lists social movements that have utilized Grant Park as a public forum throughout history, including Suffragettes, union members, anti-war and civil rights activists. In addition, the judge addresses the significance of a host of late-night social and political assemblies that are denied by the City refusing to allow assemblies in Grant Park after 11 p.m.

The judge found that under the Curfew Ordinance, “No exception is made for assemblies, permitted or not permitted. No exception is made for First Amendment activities…Thus, on its face, Grant Park District’s ordincances ban all activities, expressive and non-expressive between the hours of 11 p.m. and 6:00 a.m.”

An ordinance can lawfully restrict First Amendment activity if it is “narrowly tailored to serve a significant government interest.” The City argued that the ban serves the interests of preventing the parks from becoming “over-fatigued” and “reducing crime against park patrons and park property.” The judge found that these are legitimate governmental interests, but the law is quite clear that in order for an ordinance to be consistent with the Constitution, it must also “leave open ample opportunities of expression and the restrictions on expression must tightly fit the government’s objective.” In his decision, the judge ruled that the Curfew fails to provide ample alternative channels to express political speech and that the City’s interest in keeping the park clean is not narrowly tailored to justify completely closing the park for seven hours every night.

In determining whether the Ordinance was unconstitutional as applied to the defendants, the judge examined how the Ordinance was used against Occupy activists and how it has been enforced against other groups and individuals. The decision focuses specifically on President Obama’s election celebration rally in November of 2008, as 500,000 people rallied in Grant Park after 11:00 p.m.

Judge Donnelly writes, “even with only three instances before the court (the two Occupy protests and the Obama rally), there is a clear pattern; no arrests when 500,000 people remain in the park past the Curfew for the Obama rally, 100% non-enforcement of the Curfew; and all 303 who remained after being asked to leave on the two nights, 100% enforcement of the Curfew.”

In recognizing that the City applied the Curfew differently against Occupy Chicago, the judge comes to a significant conclusion that the City of Chicago discriminated against Occupy Chicago based on the content of their political message. The judge spends two pages of the decision listing the ways in which the City demonstrated their discrimination against Occupy Chicago, discussing how Chicago police officers would reach agreements with the activists, then produce new demands, further restricting their ability to express their solidarity with the 99%.

In addressing this hostility and opposition to Occupy activists and their message, the Judge states: “Viewed in isolation the rules and regulations appear reasonable, but viewed in the larger context of the Occupy movement’s presence in Chicago, they give rise to an inference that the City was attempting to discourage this particular protest. The police would promulgate a rule; when the protestors would comply, the police would change the rule….These facts, together with the clear pattern of selective enforcement of the Curfew, support a finding that the City intended to discriminate against Defendants based on their views.”





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