Commentary: Judge gets it right when he blasts Chicago’s attempt to restrict free speech

Tribune Content Agency

CHICAGO — Millennium Park’s website calls the spectacular downtown Chicago public space “a new kind of town square.” It is indeed a new kind of town square — one where aesthetic busybodies from the city of Chicago and the foundation that supports the park are trying to severely limit the time-honored right to free speech in public spaces.

Recently, U.S. District Judge John Robert Blakey rightly blasted the city’s restrictions and issued a preliminary injunction that temporarily bars the city from putting unreasonable curbs on activists who hand out leaflets or hold demonstrations.

The case was sparked when park security officers in 2018 prevented students from Wheaton College, a Christian liberal arts college, from evangelizing and distributing religious pamphlets. A group of activists who circulate petitions in Millennium Park, one of whom has been threatened with arrest, also has joined the case.

So the stakes here extend far beyond the right to disseminate religious literature. For if Millennium Park doesn’t meet the definition of a public space where free speech rights take priority, then what does?

Part of the problem is that Millennium Park is widely viewed as a thing unto itself. It’s actually a small part of Grant Park, accounting for 24.5 acres of the bigger park’s nearly 313 acres. The Chicago Park District runs the rest of Grant Park, but Millennium Park has a different governing structure — a legacy of the public-private partnership that created such extraordinary features as the shimmering Cloud Gate sculpture popularly known as The Bean.

The City of Chicago owns and operates the popular, 16-year-old park through its Department of Cultural Affairs and Special Events while the nonprofit Millennium Park Foundation, which helped raise private funds for the park, curates its temporary exhibitions. And the city and foundation contend that Millennium Park should have different free speech rules than the rest of Grant Park.

What sets Millennium Park apart, they argue, is that it is a) carefully curated; and b) spatially unique, consisting of discrete outdoor “rooms” rather than a single undifferentiated stretch of grass. In their view, allowing people to leaflet, evangelize or demonstrate in the park seriously disrupts its character as a “space of refuge” from the surrounding city.

All that is plainly ludicrous.

Let’s start with the bogus claim of spatial uniqueness. Millennium Park’s outdoor rooms follow the urban design precedent of the outdoor rooms you find in the rest of Grant Park, most notably the formal, Versailles-inspired gardens and open spaces around Buckingham Fountain. As for the notion that its art objects are unique, what about Buckingham Fountain? It is nothing if not a carefully curated work of public art?

Millennium Park is special, but not wholly unique. It’s part of a greater whole, all of which forms a refuge from city life. The same legal status — and, thus, the same rules — should apply to it as the rest of Grant Park.

That matters because Grant Park is what courts call a “traditional public forum” — a street, sidewalk or park that is a place where people assemble and communicate.

“If a ‘curated design’ were enough to transform the nature of the forum, any park with a statue could lose its First Amendment protections,” Balkey observed in his decision. “The law precludes this absurd result.”

In other words, putting art in public spaces doesn’t give the city the authority to unreasonably restrict free speech. The owner of a privately owned art gallery has no legal obligation to allow demonstrators to leaflet. Not so the managers of a public park, which by definition is a forum for all kinds of speech.

“For this judge, a park is a park, not an art gallery,” said Jerold Kayden, a Harvard University professor and expert on urban planning law, after I emailed him a copy of the decision. “The city’s view of Millennium Park was simply too precious for this judge.”

Granted, free speech rights are not absolute. The Supreme Court has held that governments can impose so-called “time, place and manner” restrictions that reasonably limit when, where and how speech can occur in traditional public forums. Courts, for example, have restricted picketing on sidewalks next to schools. But the “time, place and manner” test typically permits minor curbs on speech while disallowing those that are overly restrictive.

Last year, in an apparent attempt to meet that standard, the Department of Cultural Affairs and Special Events twice updated the regulations for Millennium Park.

In April, it issued new rules that allowed people to make speeches and hand out information in a corner of Millennium Park called Millennium Monument at Wrigley Square and on sidewalks in and around the park. Then, in August, the rules were made more specific to prohibit conduct “that objectively interferes with visitors’ ability to enjoy the park’s artistic displays.”

The judge looked with disfavor on these attempts to put free speech in a cordon sanitaire. The city, he found, failed to “actual objective standards” for what constitutes a disruption of the public’s ability to enjoy art. In addition, he said, it presented no evidence that leafleting and evangelizing interfered with Millennium Park’s art or disrupted visitors enjoyment of it.

As Rebecca Glenberg, senior staff attorney for the American Civil Liberties Union of Illinois (which was not involved in the lawsuit), told me, limiting free speech to one corner of a park and its sidewalks “is not reasonable because a public forum is available to all for free speech. In this case, there are various landmarks and art objects that can be protected. What we can’t protect people from is speech.”



Blair Kamin is a Tribune critic.


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