Have We Lost the Right To Protest?


Respectfully submitted by Lawrence E. Rafferty (rafflaw)–Weekend Contributor

In the years since the Iraq War and the Afghanistan War began, there have been some sizeable protests and demonstrations, but not quite to the level seen during the Vietnam War.  We have seen several significant protests during various economic and political summits and conventions in the United States and around the world, but they have been met with severe police crackdowns.  The Occupy Movement is one example of a long-term protest that on more than one occasion suffered through severe police restrictions and in some cases, brutal police tactics.

In response to the 9/11 attacks, the United States passed so-called anti-terror legislation that many claim have usurped and restricted personal liberties.  However, several  states also jumped on that bandwagon and passed their own anti-terror legislation. The State of Illinois is one of the states that passed its own anti-terror legislation and the use of that legislation prior to the NATO Summit meetings held in Chicago on May 20 and 21st, in 2012 is currently being litigated right now in Chicago in a criminal case brought against 3 protestors known as the NATO 3 under the Illinois anti-terror statute.

“The state of Illinois’ domestic terrorism statute, just one example of scores of state-level terrorism laws passed in the aftermath of 9/11, may fail its first challenge in Illinois if the details emerging in the ongoing trial of Brian Church, Brent Betterly and Jared Chase, the so-called “NATO 3,” continue to paint a picture that falls far short of the state’s alleged terrorism charges.

As the trial of the NATO 3 moves into its second week, the facts being presented seem to strain the Cook County prosecutor’s case, which alleges the three young defendants plotted attacks on high-profile targets, including President Obama’s campaign headquarters and Chicago Mayor Rahm Emanuel’s house, during the May 2012 North Atlantic Treaty Organization (NATO) summit.” Truth-Out

While the issues of the constitutionality of the Illinois Statute and the alleged lack of facts supporting the charges are important, my biggest concern is just why does a state have to have their own anti-terror statute and the radical and possibly unconstitutional methods employed by the police to infiltrate protest groups.  These methods may run afoul of the Constitution because their intent is to disrupt and prevent protests from happening in the first place.

“The trial began with testimony from Chicago Police Department (CPD) officer, Nadia Chikko before Cook County Judge Thaddeus Wilson. Later in the week, officer Mohmet Uygun took the stand. Known to the Occupy Chicago community as “Gloves” and “Mo,” the two officers represent a critical touch-point of the NATO 3 case: They went undercover during the two months prior to the NATO summit to conduct surveillance on Church, Betterly and Chase, obtaining some of the audio-recorded evidence presented in court. Defense attorneys are expected to argue the NATO 3 are victims of police entrapment, insisting that the undercover officers, posing as activists, persuaded the men to discuss carrying out attacks and allow or participate in the assembly of Molotov cocktails at the apartment they were staying in.

Defense attorneys have emphasized the CPD intelligence unit’s spying operation in the run-up to the 2012 NATO summit, in which police infiltrated organizing meetings, activist events and listened in on conversations at popular hubs for Occupy activists, such as Chicago’s Heartland Café, in search of potential “violent anarchists,” who might use black bloc tactics. The undercover officers also took photographs of license plates to check for outstanding warrants on the individuals attending these public meetings or events. Testimony this week has also revealed that the police offered the defendants beer, including Chase, who was underage at the time. Chikko has testified she wasn’t specifically targeting anarchists, but listened in for suggestions of “planned criminal activity.”‘ Truth-Out

The anti-terror statute in play here is just one of the mechanisms utilized by the State and the City of Chicago to disrupt and discourage lawful protests and demonstrations prior to the NATO Summit.  The City of Chicago passed an ordinance prior to the Summit that required a $1 Million dollar liability insurance policy for all demonstrations and protests along with several other draconian measures.

Chicago Independent Media Center reports that the ordinance, as it stood the day before the vote, contains the following:

Non-violent civil disobedience could now carry a $200-$1000 fine, up from $25-$500, in addition to more to other, more typical misdemeanor charges; Virtually every street protest in the downtown would be designated a “large parade,” requiring $1 million liability insurance and for organizers to “agree to reimburse the city for any damage to the public way or to city property arising out of or caused by the parade”;

Large parade or not, organizers would be required to provide the city with “a description of any recording equipment, sound amplification equipment, banners, signs, or other attention-getting devices to be used in connection with the parade” at least a week in advance of the march; Every contingent in the march and the order in which they would appear would have to be registered at least a week in advance with the City; and,

Demonstration organizers would be required to have one marshal for every 100 participants.  Under a wholly new section of the municipal code (10-8-334), even gatherings on sidewalks, with no presence in the streets, would now be subject to demands that they get permits, giving the City extraordinary latitude to dictate what union and other pickets occur or get shut down by police action.

Allow the police Superintendent to deputize FBI, DHS, ATF, and DOJ employees as Chicago police officers.”‘ Truth-Out

It does not surprise me that the citizens of Chicago gave this ordinance a very descriptive and apt name.  They call it the Sit Down and Shut Up Ordinance!  I have to agree with the label.  This Chicago ordinance has been used to deter groups from protesting and exercising their First Amendment rights to peacefully demonstrate.  It was noted that the section of the ordinance that would have raised the amounts of the fines was deleted prior to the City Council approval of the ordinance.  Even with that section removed, how many small organizations can afford to obtain the insurance policy and why should they have to?

What Mayor Rahm Emmanuel is really telling the citizens of Chicago and anyone visiting the City to exercise their legal First Amendment rights is to Sit Down and Shut Up.  Doesn’t that sound like something Mayor Emmanuel would say.  How can a measure that makes it mandatory to get permits for even gathering on sidewalks to express your grievances past Constitutional muster?

If ordinances like the Sit Down and Shut Up ordinance in Chicago and similar anti-terror legislation in place in other cities and states, are allowed to stand, do we really have the “right” to protest anymore?  If a group has to obtain a costly liability insurance policy prior to exercising their First Amendment rights, how will any of us be able to stand up to city and police abuses? Are these out of control restrictions on the First Amendment constitutional?   Is it necessary for any State to enact its own Anti Terrorism statutes?  What do you think?


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25 thoughts on “Have We Lost the Right To Protest?

  1. In so many cases “you don’t have standing” or “we have no jurisdiction of this” is what protesters face who take it a step further from the street, by going to court.

    I am reminded of a S.Ct. case where the justices came out in Oyez mode, then pointed out how well the briefing was, except for one thing (the case had been ongoing for 11 years).

    There was no federal jurisdiction.

    The military NSA spying has a similar facet that litigants are missing:

    [T]he Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things …

    (A Tale of Coup Cities – 8). Section 215 only gives standing to the civilian FBI, not the military NSA.

    The government seems to always have standing even when it doesn’t –but private litigants seem all too often to not have standing even though they should.

    Wiggy eh?

  2. rafflaw:

    The answer to the question posed in the title of your excellent post is an emphatic yes. Mayor Emmanuel has never had any tolerance for disagreement. And I believe these laws are unconstitutional.

  3. Victory! The jury found the NATO 3 not guilty of the bogus terrorism charges today. Guilty on two counts of misdemeanor mob action and two counts of felony explosives charges. The two felonies carry sentences of 4 to 30, but the three have served almost two years prior to trial and could very well receive the minimum (4) which amounts basically to time-served. Kudos to the three person defense team. Over and out.

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