Investigations
After Arrest, Protesters Are Barred From Area Near DNC and Israeli Consulate, Raising First-Amendment Concerns
Protesters gather on Monday, Aug. 19, 2024, near the Democratic National Convention. (Emily Soto / WTTW News)
Many of those arrested around the Democratic National Convention this week were later banned from the areas near where protests took place, raising questions about potential free-speech issues.
The restrictions listed on court documents order defendants to stay away from the areas in Chicago surrounding the convention through Sunday. While the streets identified do contain the restricted DNC perimeter, they also extend outside the event.
Those charged at the protest of the Israeli consulate in the Loop on Tuesday also had restrictions placed on their movement, according to records and interviews, in an area far beyond the protest target.
Sharlyn Grace, policy advisor from the Cook County Public Defender’s Office, said the majority of cases this week involving protesters included orders to avoid the area they were cited in following their release.
Most arrests reported by Chicago Police associated with the DNC have been misdemeanors and ordinance violations with a limited number of felony cases.
Experts say there is a careful line to walk between the protections of the First Amendment and the safety of those around the convention.
“You can prevent people from going places and doing things if you have a reasonable justification for doing so,” Geoffrey Stone, professor of law at the University of Chicago, said while considering the issue from the perspective of a protester. “But in this context, I assume they’re arguing, ‘We want to go there, not to engage in illegal activity, but to engage in protected First Amendment activity. And you’re telling us we can’t go there?’”
There are types of criminal cases that restrict travel to specific locations. For example, stalking or domestic violence proceedings might limit access to a person’s residence during a case for reasons of safety, or a shoplifting case might bar a person from the store facing off against them in court. These don’t involve freedom of speech matters in the same way as those from the protests.
“This is an issue of free speech, protest and the right to reach people in government, people with decision-making power,” Grace said.
It’s unclear how frequently these restrictions were placed on protesters in Cook County before the DNC. Grace said the office hadn’t seen any restrictions like this in handling of previous protest-related cases.
Judges are responsible for determining the conditions for pretrial release after the prosecution and defense make their arguments.
“It seems clear this was a coordinated effort by the city and the (Cook County) State’s Attorney’s Office,” Grace said, adding that the Public Defender’s office made arguments in court that this was a restriction on speech.
The city issued a statement about its role in the matter Wednesday: “This morning, the judge granted pretrial restrictions based on the criminal conduct of the defendant in three cases which involve city ordinance violations. The City has no further comment.”
In pretrial matters, the Cook County State’s Attorney’s Office reviews each case individually to determine its merits since the implementation of the Pretrial Fairness Act, which started in 2023. The city handles misdemeanor and ordinance cases.
Constitutionality concerns were raised about release terms in 2020 connected to the high-profile unrest in Portland at that time, according to reporting by ProPublica. Some arrestees had to agree not to attend protests to be released from jail. Federal prosecutors and defenders presented a joint motion to stop the practice following publication of the story.
Court records for two men charged with felonies following the DNC protests on Monday require them to avoid the area surrounding the United Center as a condition of release. Both were charged with aggravated battery, one with additional charges who reportedly tackled and concussed an officer, and the other for allegedly throwing a clear liquid at an officer attempting to repair the broken fence, records show.
WTTW News was unable to reach the first man. The man in the second case said he could not discuss the facts of the case while it was ongoing.
Tyler Valeska, an assistant professor of law at Loyola University - Chicago, said potential legal challenges to this restriction would center around whether the area was generally accessible to the public.
Even if judges do have leeway to restrict a defendant’s First Amendment rights pretrial in specific cases, they must narrowly tailor the restrictions, Valeska said.
Stone said the intent of the city might be to deter future problems stemming from people who, in their view, have already demonstrated a willingness to break the law, and that many laws have incidental effects on speech that are constitutional.
“My own inclination would be to say that since they could certainly go there and engage in First Amendment protest, to prohibit them from going there because they did something allegedly illegal is probably going too far,” Stone said.
Contact Jared Rutecki: @JaredRutecki | [email protected]
