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Previous Section: When can government require a permit to protest?
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.
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.
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.
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 it would not be enforcing the policy.
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.
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.
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.
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.
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.
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.
- Failing to obey a lawful police order regarding traffic.
- 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.
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.
In a lawsuit that the ACLU brought against the Office of the Cook County State’s Attorney, the federal appellate court ruled that the First Amendment also protects audio recording of on-duty police in public places . While that judicial decision did not rule on surreptitious recording of police, we believe courts would hold that the First Amendment also protects surreptitious recording of on-duty police doing their jobs in public places. The old version of the Illinois Eavesdropping Act prohibited such recording, but it was struck down by the Illinois Supreme Court. The 2014 version of that statute only prohibits audio recording of private conversations, and the conversations of on-duty police in public places are not private.
Likewise, the First Amendment protects live-stream video and audio of on-duty police in public places.
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