A judge ruled that Chicago’s park curfew ordinance is unconstitutional and dismissed over 90 cases against people who participated in an Occupy Chicago protests in October when they tried to occupy Grant Park with tents and were arrested.

Cook County Court Judge Thomas Donnelly wrote in his decision and in regards to arrestees’ claims the curfew is unconstitutional because it “acts as a blanket bar on all speech in the public park after 11 pm”:

…[T]he Curfew violates the right to free assembly under both the United States Constitution and Illinois Constitution. Because parks constitute public forums for citizens to assemble and express political views, governments may only institute content-neutral time, place or manner restrictions that tightly fit substantial government interests. The city’s claim that citizen safety, park maintenance and park preservation constitute the substantial government interests that justifies closing the park seven hours nightly fails because the City routinely closes the park for fewer than seven hours nightly, making ad hoc exceptions to the Curfew for permitted groups. Thus, the City necessarily concedes that fewer than seven hours suffices to satisfy substantial government interests…

Donnelly then concluded:

…Because it is undisputed that the City closes Grant Park longer than necessary to serve the government’s interests, the Curfew is not narrowly tailored, in violation of the First Amendment. The Curfew also violates the Illinois Constitution, which provides a more vigorous right to free assembly, embracing even non-expressive assemblies.

To further support this conclusion, Donnelly noted Occupy Chicago protesters had been arrested in Grant Park while the City had not arrested anyone at the 2008 presidential election rally for President Barack Obama, “even though the Obama rally was equally in violation of the Curfew.” Which means the City violated protesters’ right to equal protection when it treated Occupy Chicago protesters differently than Obama supporters.

Sarah Gelsomino, a National Lawyers Guild (NLG) attorney who was one of the lawyers representing the activists, reacted, “Judge Donnelly made the right decision by declaring the city’s ordinance unconstitutional and by dismissing the remaining cases brought by the city against activists legitimately engaged in free speech. Hopefully this sends a clear message to the city that they must better respect the First Amendment rights of protesters no matter what their message might be.”

On October 16th and 23rd, over 300 protesters were arrested. Both days Occupy Chicago intended to setup a more permanent encampment, since their location outside the Federal Reserve branch in downtown Chicago was not as accommodating as a park. Mayor Rahm Emanuel had also decided not to permit protesters to have an encampment where people were out peacefully assembling twenty-four hours a day like other cities in the country.

According to the NLG, most of the arrested protesters had accepted deals with the city to “resolve their cases for community service in lieu of a conviction.” The NLG did not know if those deals would need to be revisited as a result of the judge’s ruling.

“We were arrested because we were doing something very threatening to the state, we were creating a peaceful social platform where the voices of the lower classes could be heard,” Danielle Villarreal, an occupier arrested on October 23rd declared after the decision. “We challenged the system of capitalism simply by talking about and bringing economic inequality to the forefront of everyday conversation.”

Another occupier, Andy Manos, who was also arrested on October 23rd, said, “The whole city is getting tired of Rahm’s abuse of power. This is what we saw with the immense community support for the teacher’s strike. This what we saw back in January when we were able to mobilize the community against Rahm’s “sit down, and shut up” ordinances. And this is what we see now with the charges being dismissed.”

Mark Banks, who was arrested on October 23rd too, asked, “The city administration and its corrupt courts have wasted how many tax dollars in this circus of injustice? And, for what? What did hundreds of cops spend hundreds of overtime hours on the city’s dime doing last October? They spent that time breaking their own laws and repressing the very essence of democracy.”

*

The judge included a fine reminder of the history of Grant Park as a “public forum” after he made it clear that assemblies could not be suppressed simply because they were happening late in the night.

…In November of 1835, two years before the City incorporated, the citizens gathered at one of their weekly town meetings, resolved that the land which would become Grant Park “should be reserved for all time to come for a public square, accessible at all times to the people.”…

A publicly recorded map of downtown Chicago from 1836 indicated land that would become Grant Park was to be, “PUBLIC GROUND [---] A Common forever Open, Clear & free of any buildings, or other Obstructions Whatever.”

The citizens of Chicago in 1836 probably did not envision it ever being permissible for police to overrun a rally to suppress peaceful assembly and speech in the park.

What was to become Grant Park became the city’s “favorite spot for political rallies and expositions;” Abraham Lincoln spoke there in early 1856 in favor of the new Republican Party and its anti-slavery platform. An ordinance was passed that allowed the area that stretched from the shoreline to the Illinois Central Railway trestles to be filled in with the rubble from the Chicago Fire of 1871, which greatly expanded the public ground…

…Grant Park “is the only logical place” for political demonstrations according to suffragettes arguing in 1914 that they be allowed to assemble citizens advocating allowing women the right to vote. Following World War I, jobless soldiers occupied Grant Park overnight continuously to draw attention to their plight, union members and the depression era’s unemployed gathered in Grant Park. Subsequent to World War II, antinuclear protesters gathered there. During the 1960s, Grant Park hosted many civil rights and antiwar demonstrations. During the 1970s and 80s, antiwar protests were joined by citizens upset over the economy, women’s rights advocates, abortion foes, union members, Catholic worshipers and atheists protesting the presence of worshippers.

If only Grant Park were filled with this kind of political activity today. Now, the park is routinely filled with some event aimed at making the city look good that is sponsored by corporations and totally locked down by police, who setup security to restrict movement. There are no spontaneous rallies simply because there are pressing issues of the day. Police know about them, have approval from their superiors or the city or they are shooing people away, invading protesters’ space by hovering over the area where they are demonstrating or placing those demonstrating under arrest for refusing to disperse.

The City used to also allow people to remain in the park late into the night, whether they were protesting or not protesting:

In 1928, it hosted 7,000 citizens in a late night gathering across from the Congress Hotel gathering in support of presidential candidate Al Smith. After 1957, citizens began to make more regular use of Grant Park for late night assemblies and vigils. Over a dozen such events took place from 1957 through the 2011 Occupy protests. Significantly, in several events, the police decision not to enforce the Curfew became an issue. Famously, the City declined to evict and the demonstrators occupied Grant Park overnight. Eleven years later, Catholic worshipers defied the order to secure a good vantage point to observe Pope John Paul II say Mass at Grant Park the following day. The police again elected not to enforce the Curfew. Later, in 1986, nuclear disarmament protesters voiced strong objection to the Curfew and camping ban. Then, of course, the Obama election night victory rally kicked off a few minutes before the curfew went into effect and stretched late into the night. The Curfew was not enforced. [emphasis added]

Mayor Rahm Emanuel and the City of Chicago should not be permitted to obstruct people from peacefully assembling in Grant Park, as they did nearly one year ago. And to mark the anniversary of the unlawful arrests, Occupy Chicago should return to Grant Park to hold a late night assembly and assert the public’s right to rally in the park past midnight like countless groups have done in the history of Chicago.

Video from October 23rd, which I shot and edited.