Cloud Gate, known as "The Bean," Millennium Park, Chicago | piet theisohn from Leverkusen, Germany / CC BY (https://creativecommons.org/licenses/by/2.0)
CHICAGO — A federal judge has issued an injunction barring the city of Chicago from enforcing speech restrictions inside Millennium Park.
Four student members of Wheaton College’s Chicago Evangelism Team sued the city on Sept. 28 after they were told to stop passing out religious literature and evangelizing in the park. They were joined on Oct. 10 by four other people, who intervened to allege the city’s policy improperly limits their right to circulate petitions.
In an opinion issued Feb. 20, U.S. District Judge John Blakey ruled in favor of both groups, granting their request for an injunction against the city's ordinance.
John W. Mauck | Mauck & Baker
Blakey said he conducted an evidentiary hearing on Nov. 7 and 8 in which Millennium Park Foundation Executive Director Scott Stewart testified about his belief Millennium Park should be treated differently from other city parks because, unlike other city parks, it is supposed to be an artistic and architectural showcase. He further said the park isn’t a single, undifferentiated space, but several “rooms” differentiated by topography, walking surface color and landscaping.
Also at the hearing, the four petition gatherers described times when park staff either forced them to stop collecting signatures or otherwise imposed limitations. The Wheaton students described being told they couldn’t discuss religion in the park and said, on April 5, Public Recreational Operations Manager Christopher Deans presented new park rules defining disruptive conduct and expressly limiting speechmaking and literature distribution to the portion of the park known as Wrigley Square, the Millennium Monument and open park sidewalks.
The plaintiffs wrote to the city in May about their First Amendment rights, and the city amended the rules in August removing a clause requiring displays, speeches or demonstrations to earn preapproval from the Department of Cultural Affairs and Special Events. At the hearing, Ann Hickey, deputy facilities commissioner for DCASE, said speech depends upon the “intent of the speaker” and said park security officers aren’t trained to assess a speaker’s intent or discern when a speech ““objectively interferes with visitors’ ability to enjoy the Park’s artistic displays,” according to Blakey.
The city tried to argue the plaintiffs lacked standing because they didn’t try to exercise First Amendment rights under the current rules and also said there’s nothing for a court to redress because no other events were scheduled in the contested areas following the lawsuit’s filing. Blakey disagreed, saying “chilled speech undoubtedly constitutes an injury supporting standing” and noting the plaintiffs specifically testified about their desire to keep using park spaces for the described activities.
“If nothing else at all, the First Amendment protects religious speech and the freedom to petition,” Blakey wrote. He added that “Certainly, given the record here, the park fits the bill as a traditional public forum: it is free, open to the public and serves as a public thoroughfare.”
Blakey rejected comparisons of Millennium Park to places like the Jefferson Memorial in Washington, D.C., New York’s Lincoln Center or the interior sidewalks of Navy Pier, as well as the city’s insistence the park’s curated design negates its public nature.
“If a ‘curated design’ were enough to transform the nature of the forum, any park with a statue could lose its First Amendment protections,” Blakey wrote. “The law precludes this absurd result.”
Blakey also said Hickey’s articulation of the city’s approach to regulating speech is “constitutionally flawed in several respects” in that it focuses on content of what is being said or distributed. He said the city’s written policy “permits arbitrary enforcement for any reason or no reason. Again, such enforcement violates the Constitution.”
Furthermore, the city didn’t sufficiently justify its restrictions or offer evidence the “protected activities unreasonably interfered with the park’s art or unduly disrupted others’ enjoyment of art or other programming,” Blakey wrote. Even if the city could demonstrate a compelling reason to limit the activities, “it cannot show that its restrictions are narrowly tailored.”
Blakey enacted the preliminary injunction and set a status hearing for the case for March 4.
The plaintiffs are represented in the case by attorneys John W. Mauck and Sorin A. Leahu, of the firm of Mauck & Baker LLC, of Chicago, and attorney Edward B. Mullen III, of Chicago.