Constitutionality of Chicago’s Public Expression Policy Analyzed by Seventh Circuit Court of Appeals

Constitutionality of Chicago’s Public Expression Policy Analyzed by Seventh Circuit Court of Appeals

  Friday, October 21, 2011    Julie Tappendorf

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In Marcavage v. City of Chicago, the Seventh Circuit Court of Appeals considered a constitutional challenge to the City’s public expression policy filed by protestors of the seventh annual Gay Games in Chicago.  Plaintiffs, members of the Christian ministry organization “Repent America,” had appeared at various events held during the Games.  After Chicago police officers ordered the plaintiffs to change the location of their protest at events held at Soldier Field, Wrigley Field, Navy Pier, and Gateway Park, plaintiffs filed a lawsuit claiming that the City had violated their First Amendment rights to free speech, their Fourteenth Amendment right to equal protection, their rights under the Illinois Religious Freedom Restoration Act, among other claims.  The district court granted the City’s motion for summary judgment on all counts, and the plaintiffs appealed to the Seventh Circuit.

The court of appeals upheld the district court’s ruling that Chicago police officers did not violate the First Amendment when they ordered the protesters to move from one area at Soldier Field and Wrigley Field to designated areas.  The appellate court found that the officers’ actions were content-neutral, narrowly tailored to serve a significant government interest, and left open ample alternative channels for communication. The court also rejected plaintiffs’ claims that the officers violated their right to equal protection finding that the plaintiffs were not similarly situated to other users of these areas.  Finally, the court determined that police did not violate the Fourth Amendment when they arrested the protestors because probable cause existed for their arrest.  The court also found that the restrictions on public expression at Navy Pier did not violate the Illinois Religious Freedom Restoration Act because the city properly designated it a non-public forum. The court did, however, remand the case to the district court to determine whether the public expression policies at Gateway Park are appropriate given that the park is a traditional public forum.