A Chicago ordinance prohibiting anyone, even protesters, from remaining overnight in Grant Park without a special city permit is constitutional, the Illinois Supreme Court has ruled, rejecting contentions from lawyers for left-wing protest groups that the state constitution grants broader rights to assembly than does the U.S. Constitution.
On June 15, the state’s high court justices ruled 6-1 to back a state appeals court’s findings a Cook County judge had erred in finding unconstitutional a city ordinance allowing Grant Park to “close” for seven hours each night, which the city used several years ago to justify police actions to block protestors from camping in Grant Park.
Justice Rita B. Garman authored the majority opinion. Chief Justice Lloyd A. Karmeier and justices Robert R. Thomas, Anne M. Burke, Mary Jane Theis and Charles E. Freeman concurred.
Justice Thomas L. Kilbride dissented, saying he believed the city did not offer enough justification for the ordinance or its actions in response to the protesters.
The case landed in the courts nearly five years ago, after the city of Chicago expelled a group of protesters associated with the left-wing Occupy movement from Grant Park in October 2011. That month, protests in Chicago, as part of the nationwide Occupy movement, had swelled to several thousand daily, with a sustained presence 24 hours a day on downtown city streets. On Oct. 15, protesters announced their intent to “occupy” Grant Park.
Over two successive weekends that month, however, the Chicago Police Department arrested more than 300 protesters, when Occupy protesters refused to obey repeated police orders or heed multiple warnings to leave the park hours after it “closed,” under the city ordinance.
The protesters then challenged the ordinance, saying it unconstitutionally violated their rights to assemble.
Cook County Judge Thomas More Donnelly initially sided with the protestors, finding the city’s ordinance barring use of Grant Park from 11 p.m. to 6 a.m. was an unconstitutional infringement on citizens’ rights under the U.S. and Illinois constitutions, and particularly those of the Occupy protestors, who wished to use the park to assemble for their protests against what they believed to be injustices within the U.S. economic and political systems.
City Hall appealed the ruling, arguing its ordinance was justified under the goal of allowing the city to preserve and maintain the park for public use, which they said was a legitimate government interest. And the city argued the ordinance did not block the protesters from marching – only from setting up camp in Grant Park.
On appeal, the Illinois First District Appellate Court twice overruled Judge Donnelly, first in December 2014, and again 12 months later, after the Illinois Supreme Court ordered the panel to take another look at the case in light of the Occupy plaintiffs’ First Amendment claims.
The protesters then appealed the matter to the state high court, which also upheld the city ordinance.
In the majority decision, the justices centered their ruling on the protesters’ contentions the Illinois constitution – which grants to state residents the “right to assemble in a peaceable manner, to consult for the common good, to make known their opinions to their representatives and to apply for redress of grievances” - grants them more expansive assembly rights than under the U.S. Constitutions. The protesters had argued this meant their rights to assemble should not be subject to the same “time, place, manner” restrictions as is applied now under federal case law.
The majority justices, however, rejected those claims.
“We .. hold that because the two provisions are virtually identical in language and were intended by the drafters of the Illinois Constitution of 1970 to express the same meaning, the right to assemble guaranteed in article I, section 5, of the Illinois Constitution of 1970 is to be interpreted and applied in lockstep with the federal precedents interpreting and applying the assembly clause of the first amendment of the United States Constitution,” the justices wrote.
While the protesters asserted the overnight parks ban also violated their rights to “consult for the common good” and “to make known their opinions to their representatives,” the justices said the protesters failed to connect “their desire to exercise these rights and the need to gather together in Grant Park during the overnight hours.”
They “argue only that their right to consult with ‘passers-by’ for the common good is impaired by the park’s closing, when law-abiding members of the public would not be present,” the justices wrote.
In his dissent, however, Kilbride said the majority had stretched the city’s arguments too far, saying the record in the case was too sparse to simply let it rest. While he agreed the city is permitted under the constitutions of the U.S. and Illinois to craft “time, place, manner” restrictions on assembly, Kilbride said the majority needed to do more to show that the city’s particular ordinance, as applied to the Occupy protesters, passes constitutional muster.
“Notably, the records contains minimal evidence on the most critical issues in this case – whether, as applied to (the protesters’) case, the ordinance’s nightly closing of Chicago public parks is narrowly tailored to serve a significant government interest and whether it allows ample alternative channels for communication,” Kilbride wrote.
He said he believed Judge Donnelly’s ruling had been “premature.”
“The constitutional right to assembly guaranteed to our citizens under the Illinois Constitution is central to a healthy democracy and must be zealously guarded,” Kilbride wrote. “I disagree with the majority’s implicit acceptance of the City’s meager justification for the restriction on defendants’ constitutional rights to expressive assembly.”