Annoyance Is No Basis to Quell Speech, Court Says

CHICAGO (CN) - Police cannot arrest people who refuse to leave a scene of potentially inconvenient, annoying or alarming disorderly conduct, the 7th Circuit ruled.

Buddy Bell participated in a January 2008 protest against the Iraq War in downtown Chicago. While President George W. Bush was at a luncheon nearby, Bell held a banner that said: "End the war and occupation TROOPS HOME NOW."

After Chicago police arrested a protester who entered the street carrying a banner,

Bell and two other protesters also stepped into the street and approached the police squad car, chanting, "Hell no, we won't go. Set him free." When the activists refused to get back on the sidewalk, the police arrested them for disorderly conduct.

In particular, they charged Bell under a Chicago municipal code that makes it a crime to disobey a police officer's instruction to leave the scene when other individuals are engaging in nearby acts of disorderly conduct that "are likely to cause substantial harm or serious inconvenience, annoyance or alarm."

In a federal complaint against Chicago, Bell challenged the law as unconstitutional.

U.S. District Judge John Darrah dismissed the complaint for lack of standing, but the 7th Circuit reversed Monday.

The court also invalidated subsection D of Chicago Municipal Code 8-4-010 after finding that it "substantially inhibits protected speech and is not amenable to clear and uniform enforcement."

"To the extent that [the ordinance] authorizes dispersal when an assembly creates or is threatened by 'substantial harm,' it does not improperly infringe upon protected speech," Judge Joel Flaum wrote for a three-member panel. "We cannot say the same, however, for authorizing dispersal on the basis of 'serious inconvenience, annoyance or alarm.'"

Unlike the code's provision for responding to nuisances, the ordinance "does not specify what inconveniences, if performed by three or more individuals, may trigger an order to disperse," the 35-page decision states.

"Nor does it clarify that, whatever the inconvenience at issue, dispersal must be necessary to confront the violation," Flaum wrote. "To this end, the ordinance lacks the necessary specificity and tailoring to pass constitutional muster, and we must conclude that the ordinance substantially impacts speech."

This same lack of specificity plagued dispersal orders based on "alarm," the court found.

As for "annoy," Flaum noted that the ordinary meaning, "which is 'to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate,' compels this reading: not every annoying act gives rise to imminent danger or nuisance."

"Avoiding annoyance is never a proper basis on which to curtail protected speech," he wrote.

"We cannot conceive of an annoying behavior, however annoying it may be, that could constitutionally draw as a remedy dispersing others engaged in protected speech," Flaum added.

Despite Chicago's safety interests, "the ordinance is overly broad," the ruling states.

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