This week marks the first anniversary of a memorable act of street theater in the city — the peaceful, ritual arrest of 173 Occupy Chicago protesters who refused to leave Grant Park after the 11 p.m. curfew.
As news accounts at the time related, about 500 chanting, singing demonstrators — down from an estimated 3,000 earlier in the evening — wore color codes to indicate their willingness to be arrested (red for no, green for yes) and face fines of up to $500.
They had pitched several dozen tents in the park to signify their hopes of creating an Occupy encampment similar to those that had sprung up in other cities, notably New York. Police negotiated with them for several hours, and then, a little after 1 a.m., law enforcement moved in and calmly began hauling out those who wouldn't budge.
Act II played out similarly a week later, and 130 people were arrested.
The restraint showed on all sides that October night, and it boded well for how police and demonstrators would interact during the NATO summit this past spring. And, indeed, though that event was more confrontational and episodically violent, police and protesters generally played by the rules, thus pushing into history the bloody clashes of 1968.
Last month, then, in a surprising twist, Cook County Associate Judge Thomas Donnelly issued a 38-page order dismissing the charges against all remaining defendants on grounds that "the curfew violates the right to free assembly under both the United States Constitution and Illinois Constitution."
Because, he added, quoting from case law, "parks have immemorially been held in trust for the use of the public, and, perpetually, they have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions."
Donnelly's order supported the claim made by Occupy's lawyers in court filings that "occupation is not just a demonstration, it is an expression of the participants' willingness to undergo physical discomfort and to contribute their bodies to the struggle in an effort to bring attention to bear on the scandalous state of our country's current economic system." Therefore, Occupy's lawyers said, by not giving protesters a 24/7 spot near downtown to take up residence, the city was denying them "adequate forum in which to express their political views and petition for redress of grievances."
It's a clever argument. But you don't have to be a lawyer to see that the logical extension of Donnelly's ruling would require the elimination of curfews and camping bans in public parks, and would put a serious crimp in content-neutral efforts to place reasonable time and place restrictions on the exercise of free speech.
"Park regulations such as closing hours are important to protect public health and safety," said Chicago Corporation Counsel Steve Patton, when announcing the city's intention to appeal the ruling. "That is one of the reasons why virtually every major city in the United States has similar ordinances."
And one of the reasons I expect the city to prevail when, probably at least a year from now, an appellate court issues a decision in the case. Another is that the camping-as-speech argument simply isn't very persuasive.
Note that Occupy Chicago hasn't tried again to maintain an overnight presence in Grant Park. Though Donnelly's order didn't enjoin the city from enforcing the curfew and they would still be subject to arrest, the opportunity is there and it might reignite what seems to be a flagging movement.
According to the estimate of Occupy Chicago media liaison Rachel Unterman, about 70 members marched to Grant Park on Monday to commemorate the anniversary of the first round of arrests. She said about 40 show up at regular Wednesday evening general assemblies in Grant Park and that the movement now consists of a number of smaller action groups dedicated to such issues as home foreclosures, labor and education.
It has remained what Unterman called a "mobile occupation" as opposed to a "sidewalk occupation," with many of its activities now coordinated out of indoor facilities. Its presence on the scene, literal and figurative, is, perhaps therefore, diminished.
But the issues and complaints that Occupy represents — gaping income inequality, a political system dominated as never before by monied interests and a tax system that favors the already wealthy — loom as large as ever and cannot be shooed on their way.
Read source documents related to the Occupy case and comment on this column at chicagotribune.com/zorn.