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Freedom to Indefinitely Assemble in the Public Commons

This past weekend, estimates say 175 people were arrested at Congress and Michigan in Chicago as part of the Occupy Chicago movement. Mayor Rahm Emanuel has stated that the arrests were called for because protesters were violating a park curfew ordinance.

But I felt as though the Bill of Rights, which guarantees freedom of assembly, never mentioned a time limit on that assembly nor a curfew.

According to the First Amendment Center, “the right to free association extends beyond intimate relationships. Groups peaceably joined to engage in First Amendment activities also enjoy protection from government interference. To constitute “expressive association,” such interaction must be defined by common political, cultural or economic activism. Social gatherings that are intended for leisure and diversion do not qualify and may be regulated by the government for any rational purpose.

But then today, the same organization had this to say about Occupy Wall Street:
“Courts have traditionally upheld the right of governments to manage and supervise public property. As long as there’s a rational basis for the rules and no point of view is being discriminated against, there’s no First Amendment violation. If the left and right alike are being told to go home at 9 so that the city can clean the park, our constitutional rights are intact.
“Allowing [24/7 occupation] would require courts to say this kind of protest trumps cities’ basic administrative rights and their responsibilities to local taxpayers. That’s not very likely to happen.

Do you see a contradiction there? In both excerpts, the right of a municipality to maintain reasonable rules about access to public areas is not challenged. But in the first part, it is clear that in cases of “expressive association,” participants should be protected from government interference.

It is not a matter of barring left and right. Only one group feels a need to make this political expression and so by barring the only group that wants to use the park for this purpose, they are by default, excluding a group with a particular viewpoint and chosen tactic.

So wouldn’t the Grant Park’s ordinance closing at 11 only apply for LEISURE purposes? If people are utilizing a public park for “expressive association” as the occupy movement clearly is, then wouldn’t the restrictions on that activity be unconstitutional? I don’t think the constitution has any time limit on the free assembly of people and so if the assembly should last longer than a day, people can be expected to nap and have shelter where they are assembling for expressive association.

On the NH Civil Liberties Union website, the following case seem to back up my conclusions:
1939 Hague v. CIO
Invalidating the repressive actions of Jersey City’s anti-union Mayor, “Boss” Hague, the Supreme Court ruled that freedom of assembly applies to public forums, such as “streets and parks.”

Upon further reading of the case, it is clear Hague targeted CIO. Other groups were doing similar activities in this area.

The following parts did stand out as relevant to Occupy Chicago’s plight:

The ordinance there in question apparently had a different purpose from that of the one here challenged, for it was not directed solely at the exercise of the right of speech and assembly, but was addressed as well to other activities, not in the nature of civil rights, which doubtless might be regulated or prohibited as respects their enjoyment in parks. In the instant case the ordinance deals only with the exercise of the right of assembly for the purpose of communicating views entertained by speakers, and is not a general measure to promote the public convenience in the use of the streets or parks.

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to usethe [307 U.S. 496, 516]   streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

This article regarding Christian Legal Society v. Martinez states the following:

“The State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum…”

Occupy Chicago voted tonight, by super majority vote, to assert this coming Saturday night that first amendment rights apply 24/7 on public property. I could not agree more.