April 24, 2012 1:06 am

ACLU Report: When else can government regulate the time, place, and manner of protest?

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Government can regulate the time, place, and manner of protest on public property – but only if the regulations are narrowly tailored to advance an important government interest, and leave open ample alternative channels of communication. Various government regulations of protest address disrupting vehicle and pedestrian traffic, blocking building entrances, harassment, targeted sidewalk protests, loud sounds, speech peddling, and street performances. Violation of these protest regulations can lead to arrest and prosecution.

One rule deserves special emphasis: Illinois law currently prohibits audio recording of on-duty police, including at protests on public property. This law is now subject to a constitutional challenge, but police and prosecutors continue to enforce it.

III. A. Blocking traffic and entrances

Protesters do not have a First Amendment right to block pedestrian or vehicle traffic, or to prevent entry and exit from buildings. For example, a federal court recently held that the Chicago police did not violate the First Amendment by arresting protesters who were impeding a heavy flow of pedestrian traffic on sidewalks near Chicago’s Soldier Field, and who disobeyed a police order to step off the sidewalk and onto the immediately adjacent gravel. Likewise, a Chicago ordinance prohibits intentional obstruction of vehicle traffic.

Indeed, the general public has a right to freedom of movement that police must protect. For example, to address widespread unlawful blockades of the entrances to reproductive healthcare facilities, Congress enacted the Freedom of Access to Clinic Entrances Act of 1994, which prohibits the use of force, threats, or obstructions to interfere with access to such facilities.

III. B. Harassment

Protesters do not have a First Amendment right to harass other members of the public. For example, there is no right to block another person’s freedom of movement in the public way, and then force them to listen to an unwanted message.

III. C. Targeted sidewalk protests

Protesters often seek to demonstrate on sidewalks abutting a building that contains an audience that would prefer not to hear the protesters’ message. For example, a labor union might picket a worksite that uses allegedly unfair labor practices, or a citizen group might distribute leaflets critical of an elected official in front of that official’s office. Courts have held that the First Amendment protects sidewalk protests targeted at courts, health care facilities, schools, and churches. While a Chicago ordinance prohibits certain protests targeted at churches, the City in 2011 announced a policy of non-enforcement.

The First Amendment has been interpreted to not protect sidewalk protests targeted at particular homes. An Illinois statute prohibits such targeted residential picketing. However, the First Amendment does protect marches through residential areas that don’t target a particular home.

Further, an Illinois statute prohibits fighting words within 300 feet and 30 minutes of a funeral. Police have enforced this statute against the inflammatory signs of the Westboro Baptist Church (displaying messages such as “thank God for IEDs”) on sidewalks across the street from military funerals. This is not a proper application of the fighting words doctrine, given the unlikelihood of fisticuffs between people across the street from each other. Police probably would not enforce this statute against less inflammatory funeral protests.

Within 50 feet of the entry of a health care facility, a Chicago ordinance bars protesters from approaching within eight feet of another person for the purpose of passing a leaflet, displaying a sign, or engaging in oral protest, education, or counseling. This ordinance is modeled on a Colorado statute that was upheld by the U.S. Supreme Court. These laws typically are enacted in response to anti-abortion protesters, but they limit all manner of messages and messengers near health care facilities. These laws make it difficult to distribute leaflets, and are unnecessary in light of other laws that prohibit blockades, harassment, and the like. These laws do not impact the many forms of protest that do not involve approaching other persons, such as signs, speeches, and press conferences.

III. D. Loud sounds

The First Amendment allows reasonable regulations on sound amplification and other loud noise. Chicago prohibits sound amplification (for example, with loudspeakers or bullhorns) that is louder than an average conversational level at a distance of 100 feet, with an exception for parades and public assemblies with permits. Applications for such permits must identify sound amplification devices that are too large to be carried by one person.

III. E. Speech peddling

The First Amendment protects “speech peddling,” that is, the sale in sidewalks and parks of merchandize that has political, artistic, or comparable significance. For example, courts have protected the right to sell expressive T-shirts on sidewalks inside the annual Taste of Chicago event in Grant Park, and the right to sell books on sidewalks near Chicago’s United Center on game nights.

The Chicago ordinance that regulates speech peddling is too restrictive. Speech peddling in the entire downtown and adjacent areas is limited to ten designated spots. There are large “prohibited districts” in other parts of the City where no speech or other peddling is allowed at all. Also, speech peddlers, like other peddlers, must pay $82 per year for a peddling license. The City’s Department of Business Affairs and Licensing regulates and grants permits for speech peddling.

III. F. Street performances

The First Amendment protects street performances in public places. Unfortunately, a Chicago ordinance prohibits street performances in Millennium Park and adjacent sidewalks, and on the North Michigan Avenue sidewalks between Delaware Place and East Superior Street. The ordinance also requires a permit for street performers.

III. G. Disorderly conduct

The most common grounds for arresting protesters are the Illinois statute and Chicago ordinance against disorderly conduct, and especially their respective bans against unreasonable acts that disturb others and provoke a breach of the peace. Examples of unprotected disorderly conduct that might arise at a protest include: blocking traffic; harassing someone by blocking their free movement in the public way, and then forcing them to listen to an unwanted message; fighting words; making noise in a residential neighborhood in the middle of the night; and disrupting a government hearing by standing and shouting in the hearing room. On the other hand, the vast majority of protest activity does not comprise disorderly conduct. For example, audience hostility does not transform a protest into disorderly conduct, as in the case of Dick Gregory discussed above, or in the case of Karl Meyer, who was wrongfully arrested because his protest in Chicago’s Old Town neighborhood against the Vietnam War provoked a violent reaction.

The Chicago disorderly conduct ordinance also prohibits failure to obey a lawful police order to disperse, in the immediate vicinity of three or more other people who are committing disorderly conduct. One Illinois court upheld the application of this ordinance provision to a bystander who refused to disperse from the scene of a riot – a scenario where no one was exercising any First Amendment rights. On the other hand, the ACLU believes that the First Amendment would be violated by the application of this ordinance provision to lawful demonstrators who failed to obey a dispersal order resting solely on the proximity of three law breakers, for example, where a crowd of lawful demonstrators contains a small number of persons who are throwing rocks at police or windows. Likewise, the First Amendment would be violated by the application of this ordinance provision to lawful protesters who failed to obey a dispersal order resting solely on violence against the protesters by opponents of the message – this would be a heckler’s veto.

III. H. Other statutes and ordinances that might be used to arrest protesters

Pursuant to several other Illinois statutes and Chicago ordinances, protesters might be arrested or prosecuted for conduct unprotected by the First Amendment. These include:

  • Obstructing or resisting a police officer.

  • Trespassing.

  • Failing to obey a lawful police order regarding traffic.

  • Vandalism.

  • Breaking curfew at a park or beach.

  • Misdemeanor mob action, meaning two or more people assembled with intent to commit a crime.

  • Felony mob action, meaning two or more people who act together and use violence to disturb the peace.

  • Inciting violence against a person because of their race, religion, or the like.

Finally, at a building or grounds where the Secret Service is protecting the President or someone else, it is a federal crime to enter or remain in the building or grounds without lawful authority, or to obstruct entry or exit, or to intentionally disrupt government business.

III. I. Recording police

Updated 5/9/12

The First Amendment protects photography of on-duty police officers in public places. Federal courts enforced this right, for example, in a case involving photography of police excessive force during the 1968 Democratic National Convention in Chicago. Silent video recording of on-duty police is also protected by the First Amendment.

Audio recording on-duty police is treated differently in Illinois. The Illinois Eavesdropping Act prohibits the audio recording of any conversation – whether private or non-private, and whether secret or open – absent all-party consent. If the subject of recording is a police officer, the penalty is increased, to as many as 15 years of incarceration. The Act has exceptions for police-on-civilian audio recording, but not the other way around. People in Illinois are prosecuted for audio recording on-duty police. This Illinois Act is the nation’s single most severe restraint on civilian-on-police audio recording.

The controversial Act is under attack on several fronts. The ACLU has a pending suit alleging that the Act violates the First Amendment as applied to audio recording on-duty police in public places. The Seventh Circuit Court of Appeals has ordered the trial court to enter a preliminary injunction against the Cook County State’s Attorney from prosecuting the ACLU under the Act for such recording. That injunction has not yet been entered. Although the injunction will only apply to the ACLU, the court’s reasoning should extend to anyone engaged in a similar program. Additionally, the Illinois General Assembly is now considering a bill to amend the Act to create a new exemption for certain civilian-on-police recording. A federal appeals court in Massachusetts recently held that the First Amendment protects such recording. The City of Chicago recently announced that its police will not enforce the Act during the upcoming NATO summit. Similarly, the McClean County State’s Attorney recently announced that he will not enforce the Act against civilians who record police. However, the law remains on the books, other police and prosecutors have not disavowed arrest and prosecution (including the Cook County State’s Attorney), and the law allows the subjects of recording to bring civil actions against those who make the recordings.

Likewise, persons who live-stream on-duty police in public places might be subjected to arrest or prosecution under the Illinois Eavesdropping Act. The Act makes it a crime to intentionally “hear or record” a conversation by means of a machine, absent all-party consent. Illinois courts have not yet specifically ruled on whether this ban applies to a person who uses a machine to live-stream a conversation, for purposes of helping other people in different locations to hear that conversation as it happens, and without any intent by the person making the live-stream to use that machine to record that conversation or to facilitate their own hearing of that conversation. In the absence of controlling authority, an Illinois state’s attorney might choose to indict a person who live-streams a conversation for allegedly violating the Act. Success in the ACLU’s pending suit would likely extend beyond audio recording, also to live-streaming. But for now, some police and prosecutors continue to enforce the Act in this context.

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