KNOW YOUR RIGHT
TO PROTEST IN CHICAGO
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This is only a working copy showing highlights pertinent to
Worldwide Lyme Awareness Protest in Chicago, May 10 & 11, 2013!
The Illinois Constitution, Article I, Sections 4 and 5
The right to protest in public places is fundamental to who we are as a free and democratic people.
Our right to protest is well protected by both the First Amendment to the U.S. Constitution, and by additional guarantees of the Illinois Constitution.
This ACLU of Illinois report is a “user’s manual” for people exercising their right to protest in public places in the City of Chicago. This report provides general information only; when in doubt regarding your legal rights, you should consult a lawyer.
Part I explains some basics
Part III addresses other government regulations of the time, place, and manner of protest.
Part IV briefly discusses civil disobedience.
Part V lists your rights if you are stopped or arrested by police during a protest.
Part VI addresses police spying on protest activity.
Part VII presents the particular locations in Chicago commonly used for protests, including the varying permit processes and other rules.
I. Overview of the fundamental right to protest
A. Constitutional protection of the right to protest
The right to protest in public places includes large gatherings (like parades in the streets and rallies in parks), small gatherings (like pickets on sidewalks and vigils on government plazas), and solitary expression (like one person holding a sign or distributing leaflets).
The Illinois Constitution guarantees to the general public the rights to “speak,” to “assemble,” to “consult for the common good,” to “make known their opinions to their representatives,”
B. The general rule: no regulation of messages
C. Three exceptions: incitement, threats, and fighting words
E. No “heckler’s veto”
II. When can government require a permit to protest?
require a permit for parades in the streets
require a permit for large protests in public parks and plazas, in order to ensure fairness among the various groups seeking to use the site.
First Amendment generally bars government from requiring a permit when one person or a small group protest in a park, or when a group of any size protest on a public sidewalk in a manner that does not burden pedestrian or vehicle traffic.13 Such non permitted protests might involve speeches, press conferences, signs, marches, chants, leaflets, expressive clothing, and efforts to speak with passersby.
the Chicago Park District does not require a permit for gatherings in parks of fewer than 50 people. Likewise, the Chicago ordinance regulating public assembly does not require a permit for gatherings and marches on sidewalks that do not obstruct the normal flow of pedestrian traffic.14
Chicago ordinance requiring permit applications 15 days before a parade, and notice to the City five days before a sidewalk demonstration that would impede pedestrian traffic, there is an exemption for spontaneous responses to current events.16
The First Amendment limits the kinds of permit fees and other financial burdens that government can impose on protesters. First, the charges cannot exceed the actual cost to government to regulate speech in the site.17 Second, government cannot charge protesters more when additional police are needed to control opponents of the protesters – that would be a kind of a “heckler’s veto.”18 Third, government cannot use an insurance requirement to bar a protest by a group that unsuccessfully attempted to obtain insurance.19 Fourth, there must be an exception for groups that cannot afford to pay the charges.20 For example, in the Chicago ordinance requiring certain parade organizers to obtain $1,000,000 in insurance, there is an exception where this would be
“so financially burdensome that it would preclude” the application.21
When Chicago law requires a permit to protest, and the First Amendment does not excuse the absence of a permit, protesters without a permit might be arrested or prosecuted.
III. When else can government regulate the time, place, and manner of 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.
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, and some police departments and prosecutors have stated that they will not enforce it. But other police and prosecutors continue to enforce it.
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.
Protesters do not have a First Amendment right to harass other members of the public.
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.26 While a Chicago ordinance prohibits certain protests targeted at churches, the City in 2011 announced a policy of non-enforcement.27
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.
D. Loud sounds
The First Amendment allows reasonable regulations on sound amplification and other loud noise.34 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.35 Applications for such permits must identify sound amplification devices that are too large to be carried by one person.36
F. Street performances
The First Amendment protects street performances in public places.42 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.43 The ordinance also requires a permit for street performers.44
G. Disorderly conduct
The most common grounds for arresting protesters are the Illinois statute and Chicago ordinance against disorderly conduct,
I. Recording police
The First Amendment protects photography of on-duty police officers in public places.
Audio recording on-duty police is treated differently in Illinois. The Illinois Eavesdropping Act prohibits the audio recording of any conversation
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.65 Illinois courts have not yet specifically ruled on whether this ban applies to a
VII. Where do protests commonly occur in Chicago?
B. Protest on the sidewalks
Many Chicagoans use the public sidewalks throughout our City as a site for myriad protest activities, including speeches, press conferences, display of signs, marches, leafleting, and attempting to speak with passersby. If such sidewalk protests do not obstruct the normal flow of pedestrian traffic, then the City ordinance does not require a permit.83 If a sidewalk assembly will burden pedestrian traffic, the ordinance requires five-day notice to the Department of Transportation.
C. Daley Plaza
Daley Plaza in downtown Chicago, owned by the City of Chicago, is a public forum enjoying great First Amendment protection.85 Daley Plaza is operated by the Chicago Public Building Commission, which has issued rules for using Daley Plaza, and a permit application process.86
F. Grant Park
Grant Park, located between Chicago’s downtown and Lake Michigan, is a public forum
enjoying great First Amendment protection. It is owned by the Chicago Park District, which has issued rules regarding the use of Grant Park and other parks, and a permit application process.90
G. Millennium Park
Millennium Park, located in Chicago’s downtown at the northwest corner of Grant Park, is operated by the City’s Department of Cultural Affairs and Special Events.91 The City allows leafleting and begging in Millennium Park.92 While courts have not addressed whether the First Amendment protects rallies and picketing in Millennium Park, the better view is that it does.
If you believe your right to protest has been violated, please contact the ACLU of Illinois. Our phone number is (312) 201-9740, and our website is http://www.aclu-il.org/. We cannot provide legal services to all callers, and generally provide legal representation only in cases affecting a large number of peop