Enforcement of Ordinance Against Protester Violates First Amendment

Enforcement of Ordinance Against Protester Violates First Amendment

  Monday, October 01, 2012    Julie Tappendorf

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During a protest against the war in Iraq, a protester was arrested after he refused a police officer’s order to move from the street onto the sidewalk.   Police arrested the protester pursuant to an ordinance that criminalizes an individual’s behavior when he “knowingly . . . [f]ails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm.” The protester sought to enjoin the city from enforcing the ordinance, arguing that the ordinance was unconstitutional based on the First and Fourteenth Amendments.  The district court dismissed the claim based on a lack of standing.

On appeal to the Seventh Circuit, the protester argued that the ordinance was overbroad and vague, in violation of the First Amendment.  Bell v. Keating (September 10, 2012). Additionally, he alleged that the ordinance invites arbitrary and discriminatory enforcement as it fails to provide definitive notice regarding the type of behavior criminalized.     

The Seventh Circuit agreed that the ordinance violates the First Amendment.  However, in deference to the legislature, the Seventh Circuit concluded that completely invalidating the ordinance was not necessary as the constitutional problems of the ordinance could be fixed.  The Court partially invalidated those portions of the ordinance that permitted arbitrary enforcement where a possibility for “serious inconvenience, annoyance, or alarm" exists but upheld that portion of the ordinance that authorized the police to order people to disperse where a possibility for "substantial harm" is present.  The court held that certain portions of the ordinance could be either rewritten or construed to avoid facial unconstitutionality.

Post Authored by Erin Baker, Ancel Glink