Illinois High Court Rejects ‘Occupy’ Free-Assembly Claim

CHICAGO (CN) – Ninety-two Occupy Chicago protesters arrested in Grant Park had no free-assembly right to remain in the park after the 11 p.m. curfew, the Illinois Supreme Court ruled Thursday.

Demonstrators attended a protest affiliated with Occupy Chicago in October 2011. They set up tents in Grant Park, a large 319 acre park near municipal and state government buildings, made speeches, and chanted that they would not leave the park.

Throughout the day, the police told protesters that they would not be allowed to stay in the park after it closed at 11 p.m., and National Lawyers Guild attorneys also informed the protesters that the law did not permit them to remain.

At approximately 1 a.m., the police asked each protester whether they wanted to leave the park or be arrested. The police then arrested 173 protesters who refused to leave, and charged them with violating the parks ordinance.

Five days later, Occupy Chicago organized another protest in Grant Park, and police arrested 130 protesters for remaining in the park after curfew.

Ninety-two of these protesters, represented by the lawyers guild and the law firm Durkin & Roberts, moved to dismiss the charges on First Amendment grounds. They claim the city refused to provide protesters with an adequate forum in which to express their political views.

A Cook County judge found for the protesters in 2012, ruling that the curfew violates the right to free assembly, especially as it has not been uniformly enforced.

For example, Grant Park was the site of a massive nighttime rally in 2008 when Barack Obama won the presidential election. That evening, Obama gave his victory speech before a crowd of 240,000 people in the park.

The judge agreed that the state may forbid camping or other activities in order to preserve the park, but may not prohibit access to a public forum based simply on the time of day.

But an Illinois appeals panel reversed, finding that the ban is narrowly tailored to allow park employees to clean the park, make repairs, and maintain landscaping.

It reversed a second time after the Illinois Supreme Court remanded the case for the appeals court to consider whether the ordinance violated the Illinois Constitution.

The Illinois Supreme Court affirmed that decision Thursday, rejecting the protestors’ claim that the Illinois Constitution provides citizens of the state with greater rights of assembly than the First Amendment.

“Defendants have posited no nexus between their desire to exercise these [assembly] rights and the need to gather together in Grant Park during the overnight hours,” Justice Rita Garman said, writing for the court’s majority.

Justice Thomas Kilbride dissented, noting that other large urban areas – including Washington D.C., San Diego, and Boston – permit 24-hour access to their large public parks.

“It is not clear from the record how much space within that expansive public area was actually used by defendants. Presumably, it was much less than 319 acres. Nor is there any evidence in the record on how much time is needed within the nightly 11 p.m. to 6 a.m. closure to maintain the limited area used by defendants,” the judge said.

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