May the City of Chicago constitutionally enforce its park-closing ordinance against political protestors from the Occupy movement?  That’s the question posed by The City of Chicago v. Alexander, a case from the First District, Division 2 which the Illinois Supreme Court agreed to hear in the closing days of its May term.

The Occupy movement began in New York’s Zuccotti Park on September 17, 2011.  Five days later, a protest began in Chicago’s financial district in front of the Federal Reserve Building, the Chicago Board of Trade and the Bank of America building.  The Chicago Police Department allowed the protestors to remain in place around the clock, but refused to permit them to store provisions or erect structures.   The protestors began receiving donations of supplies.  The police initially agreed that the protestors could store supplies on the edge of the sidewalk, but ultimately told them they had to move the supplies or face confiscation.  The protestors found an off-site storage facility, but donations kept on coming.  Finally, about a week after the protests began, the police told protestors that anything still remaining at nine the next morning would be confiscated.  On October 15, 2011, an Occupy Chicago rally concluded by occupying Grant Park.  The protestors began erecting tents.

Police told protestors that they would not be allowed to stay in the park past 11 p.m.  Prior to that time, the police read Chicago Municipal Code § 10-36-185, which states that all parks are closed to the public between 11 p.m. and 6 a.m., over a loudspeaker system, saying that anyone remaining in the Park after 11 would be arrested.  Around 300 protestors remained in the Park when 11 p.m. came.  At approximately 1 a.m., the police once again told protestors to leave the park, using the loudspeaker system, and then asked each protestor individually whether he or she wanted to leave or be arrested.  The police ultimately arrested 173 protestors that night.  Six days later, the police arrested another 130 protestors at the end of another protest which also wound up in Grant Park.

Although some of the protestors pled guilty to the violation, ninety-two challenged the constitutionality of the ordinance, both because the ordinance suppressed symbolic speech and because it had been unequally enforced, depending on the speaker.  The Circuit Court agreed, holding that the ordinance was unconstitutional on its face and had been applied in a discriminatory way.  The First District initially reversed that judgment, but in a supervisory order, the Supreme Court instructed the Court to vacate its original decision and consider whether the ordinance violated the right to free assembly under the Federal and state constitutions.

On reconsideration, the First District once again reversed the Circuit Court’s judgment.  The Court began with the First Amendment challenge.   Although the First Amendment offers “a host of protections,” the Court wrote, it “does not guarantee the right to employ every conceivable method of communication at all times and in all places.”  Nevertheless, the Court agreed that Grant Park was a “quintessential public forum” in constitutional terms.

The Court rejected the facial challenge, finding that there are “many applications” of the statute “in which the ordinance is constitutional.”  The ordinance was not fatally overbroad in the Court’s view because it was limited to city parks and only covered a seven hour period.

With respect to the as-applied challenge, the Court found that the ordinance was reasonably tailored to respond to the city government’s interest in maintenance and cleaning of the park.  Although the trial court had observed that seven hours seemed an excessive amount of time to accomplish that purpose, the First District found that the courts could not substitute their judgment for that of the park district on that score.

The City argued that the ordinance allowed ample alternative forums for the protestors to continue delivering their message.  The protestors argued that remaining in Grant Park was essential to their mission because it provided maximum exposure to pedestrian and vehicular traffic.  However, the court found that a constitutionally acceptable alternative for communication need not be the speakers’ first choice, or even involve the same form of communication.

The protestors also argued that the ordinance was unconstitutional because it had not been enforced in a viewpoint-neutral way.  A selective enforcement challenge requires proof that (1) the defendant received different treatment from others similarly situated; and (2) the differing treatment was based on invidious grounds like race, religion, bad faith or the exercise of First Amendment rights.  The protestors pointed out that the 2008 election-night rally celebrating the President’s election had lasted well past 11 p.m., and not only had the police not arrested everyone in the Park, they had provided additional security for the event.  The City responded to the protestors’ argument by noting that they had not initially enforced the ordinance against the protestors either, waiting until two hours past closing of the park to begin arrests.  The Court rejected the protestors’ challenge, concluding that the Occupy protestors and the Obama crowd were not similarly situated.

Finally, the Court turned to the question of whether the ordinance violated the right of free assembly under Article I, Section 5 of the Illinois Constitution.  The Court agreed that the Illinois Constitution provides a somewhat broader right to free assembly than the Federal constitution does.  However, that does not mean that the right is free of any limitation arising from time, place and manner restrictions.  Since the Court had already found that the ordinance was a valid time, place and manner restriction, the Court rejected the free assembly claim.

We expect City of Chicago to be decided this winter.

Image courtesy of Flickr by Ray Devlin (no changes).