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Why He Made The Right First Amendment Call

A Chicago Judge Rules in Favor of “Occupy Chicago” Protesters

by JULIE HILDEN

On September 27, Chicago Judge Thomas More Donnelly issued a ruling in favor of “Occupy Chicago” protesters who had stayed in Grant Park, an historic public forum, after the park’s curfew—which closed the park from 11:00 p.m. until 6 a.m.—and had been arrested as a result. (On one occasion, this resulted in 173 arrests; on another, in 130 arrests.)

Judge Donnelly – who invoked not only the First Amendment, but also the Illinois Constitution’s especially broad right of assembly—made three key points in support of his ruling.

There Was Inconsistent Enforcement of the Grant Park Curfew, Evidencing Unconstitutional Viewpoint Discrimination

The first key point that Judge Donnelly made was that an Obama victory rally had been allowed to violate the Grant Park curfew in 2008, and the city had also allowed what he called “ad hoc exceptions” for certain other groups that also had been allowed to violate the curfew.  The different treatment for these groups, as opposed to Occupy Chicago, smacked of viewpoint discrimination:  The City trumpeted the victory of its beloved presidential victor, but saw the Occupy protesters as a nuisance, at best, and a threat at worst.  Notably, the curfew-breaking Obama rally led to no arrests; yet the curfew-breaking Occupy activities led to 303 arrests.

Moreover, the Occupy protesters provided evidence that the difference in treatment was far from coincidental, citing their poor treatment by the police even before the Grant Park arrests, when they were protesting elsewhere in the City.  While the protesters offered a detailed account of what happened at those earlier protests, and so did Judge Donnelly, the bottom line is that the protesters were given multiple contradictory directives by the police, and varying explanations for those directives.  Moreover, the protesters’ donations and supplies were confiscated, and the protesters were told they had to be in constant motion. And, to top it all off, it was the police themselves who told the protesters to go to Grant Park—where they then were arrested.

It was this earlier conduct by the police toward the protesters that convinced Judge Donnelly that the protesters were the victims of viewpoint-discrimination, or put another way, they were being punished for the message they were sending.

The City Did Not Submit a Sufficient Factual Showing to Establish That It Needed the Full Curfew Time to Clean and Maintain the Park

The second key point Judge Donnelly made was that the City of Chicago did not prove that, as it claimed, it needed the full seven hours every night to vindicate its interests in the park—that is, its interests in keeping the Park safe, clean, attractive and in good condition, through trash collection, facilities repair, and landscaping maintenance.

Judge Donnelly was especially skeptical of the claim that these nighttime duties took up the full span of the curfew hours—which totaled a full 49 hours per week.  For instance, he noted, he had received no factual showings as to what work was done in the park at night, and how long it took to do it. Moreover, in response to the City’s arguments that nighttime closings reduce crime, Judge Donnelly again asked for
facts, and got none.

And even had such showings been made, Judge Donnelly suggested, it would be very unlikely that the City could justify a complete ban on nighttime park use by Chicagoans of this unique First Amendment site.

Thus, Judge Donnelly held that the Grant Park curfew was not narrowly tailored, as the First Amendment requires, to fit the City’s interests, but do no more than that. Had the City submitted convincing factual showings on this issue, Judge Donnelly might have found otherwise, but as it was, he deemed the factual showing before him to be severely wanting.

Because Grant Park Is Unique, the Occupy Chicago Protesters Would Lack Ample Alternative Channels for Communication If They Could Not Break the Grant Park Curfew

The third key point Judge Donnelly made was that if the curfew were to stand, protesters would lack “ample alternative channels for communication of the information” at issue, as the First Amendment requires.  Here, too, Judge Donnelly made a compelling case for the historic uniqueness of Grant Park as Chicago’s key public forum.

Some Lessons That the City of Chicago Should Take From the Occupy Chicago Case

Judge Donnelly seems to be a very strong First Amendment judge, and so the result in this case may have been, in a sense, foreordained—particularly due to Grant Park’s genuine uniqueness as a public forum, of which the judge was well aware.  But the City surely could have given itself a stronger hand to play here, in several respects:

For instance, the City could have submitted the factual showings that would have made the case more concrete, regarding the time needed to clean the Park, and the incidence of crime in the park at night.  If nighttime crime in the Park is indeed high, or if large, lingering gatherings raise serious sanitary issues, then the City might have tried to ban—or relocate—protesters for their own good, thus giving the City the outcome that it wanted, albeit for a different reason.

Judge Donnelly clearly saw this as primarily a constitutional case, but a factual record of violent crime in the park, if there is one, might have changed his perspective.  So too might a factual showing that a certain number of hours of cleaning each night are necessary to keep the park sanitary.  Thus, by failing to give the judge the facts he wanted and needed, the City may have created its own downfall.

Moreover, had the City’s police not harassed and manipulated the Occupy Chicago protesters long before they even reached Grant Park, destroying any trust that might have been forged between the City and the protesters, Judge Donnelly might have been able to broker some kind of compromise among the parties—for instance, narrowing the curfew hours.  In sum, it was bad behavior on the City’s and the police’s part that made this a pure win for the protesters, when a compromise might not have been out of the question.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared in Justia‘s Verdict.