In a case involving violations of nearly every First Amendment protection for speech in public places, a federal court recently enjoined enforcement of new Chicago restrictions on speech in the city’s famed Millennium Park. Evidently hoping to safeguard quiet contemplation of the “Bean” (pictured here) and all but a few other areas of the park, the City enacted an ordinance prohibiting a range of speech.

The ordinance outlawed conduct “that objectively interferes with visitors’ ability to enjoy the Park’s artistic displays” and the “making of speeches and the passing out of written communications” outside a few specified areas. It did not, however, provide any guidance as to how to enforce those prohibitions—leading to an astonishing interaction in which a park employee explained that religion could not be discussed in the park. On February 20th, the U.S. District Court for the Northern District of Illinois concluded these provisions violated the First Amendment and issued a preliminary injunction barring their enforcement.

The parties challenging the ordinance were a group of college-student evangelists and petition circulators whom the city had rebuffed in their attempts to champion their causes in Millennium Park. Among Chicago’s various attractions, the park held special appeal for the challengers because its crowds provided a ready, and somewhat captive, audience. The city’s interactions with these challengers, which included threats of arrest, and the city’s own testimony, made clear that the city had neither criteria nor training programs for enforcing its park-speech restrictions. Instead, its employees appeared to make their own assessments, targeting whichever parkgoers they considered bothersome.

Chicago’s defense of the ordinance did not fare well.

First, the court concluded the ordinance was a content-based restriction on protected speech in a public park, reasoning that park employees took enforcement action based on the content of the speech at issue and rejecting Chicago’s contentions that Millennium Park was not, in fact, a park but rather a curated collection of “rooms.”

Second, conducting the strict-scrutiny analysis required for content-based regulations of speech, the court determined that the city’s interests in aesthetics and protecting visitors from disruption were not compelling, and that the city had not identified an actual problem in need of solving. (For those following “aesthetics” as a government interest supporting speech restrictions, note that this case reaffirms that they are a “significant” government interest, but not a compelling one.) Neither did the court find the restrictions narrowly tailored, explaining that any number of alternatives could have accomplished the same objectives without sweeping so broadly.

Third, the court went on to note that Chicago’s ordinance could not have survived even the less-exacting intermediate-scrutiny test because the city had failed to prove any relationship at all between its prohibitions and the interests it intended them to serve.

Fourth, the court concluded the prohibitions also violated the First Amendment because they were so vague that they failed to give an ordinary person notice of what they prohibited. As the court saw it, the ordinance gave park security unfettered discretion to determine whether a parkgoer’s activity violated the ordinance—a fatal flaw.

Finally, the court rejected Chicago’s attempted defense of the ordinance as an extension of the government speech doctrine, reasoning that the regulated speech was neither the government’s nor the government’s message transmitted through private speakers. That doctrine did not apply.

Swart v. City of Chicago, 19-CV-6213, 2020 WL 832362 (N.D. Ill. Feb. 20, 2020)