On the Southwest Side of Chicago two weeks ago, a minister and his flock pushed a baby carriage outside the home of Ald. Edward Burke to protest Burke’s intended adoption of a black baby.
On the Northwest Side last month, members of a neighborhood group carried placards in front of a home they denounce as a hotbed of drug sales and prostitution.
Running through both scenes is a constitutional question: Can protesters picket a target’s residence?
Illinois law bans pickets outside homes unless those homes double as businesses, and the U.S. Supreme Court has upheld such bans. But a new policy being crafted by the Chicago Police Department’s legal counsel is about to make the civil rights issue a bit more complex.
Under the new policy, the protest of Burke’s house would remain illegal but the protest on the Northwest Side would be considered legal.
If police suspect drug sales or other crimes are taking place at a house, then it will be considered “a place of business” and fair game for protests, said Thomas Needham, general counsel for Police Supt. Terry Hillard. That definition gets around the residential restriction, Needham said.
On May 28, Northwest Neighborhood Federation members prepared to picket a home where they said drug sales and prostitution were rampant.
Police officers warned the protesters they would be arrested under the state statute if they conducted a protest in a residential neighborhood. That shocked the protesters, who said they had held such demonstrations for years.
Members of the federation went to Hillard, who assured them the department would support their efforts. And on June 11, Deputy Police Chief Frank Radke appeared with them at a demonstration at a former drug house where they said previous protests had driven out criminal tenants.
“We want to encourage them to become involved in their community,” Needham said. “. . . If members of the community want to conduct these marches and the Police Department has some specific data (of criminal activity at a home), either by citizen complaints or enforcement activity, then we’re going to take the position that even though these places appear to be residences, they are actually places of business under the statute.”
Needham cautioned that while holding vigils will be protected, officials remain concerned about “vigilante activity.” In addition, he said, people planning protests large enough to block traffic will need to apply for permits.
“What we don’t want is 40 to 50 people picketing just one house,” Needham said, explaining that the coming policy will have gray areas. “If they want to march from a park to a school and pass by one of these places and make a little noise as they go by it, that’s fine.”
It is unclear when the new policy will take effect.
The U.S. Supreme Court ruled in 1988 that the 1st Amendment does not guarantee the right to picket in front of a private home. The ruling upheld a Brookfield, Wis., ban on residential pickets passed in response to anti-abortion protests at a doctor’s home.
As long as marches are allowed in neighborhoods and bans are “content-neutral”–that is, not targeted at a specific point of view–they can serve to protect “residential privacy,” the court said in its 7-2 ruling in Frisby vs. Schultz.
The American Civil Liberties Union would like to see the ruling overturned, said staff counsel Jane Whicher.
“We disagree–we think the 1st Amendment does protect that kind of 1st Amendment activity that focuses on a residence,” Whicher said.
Illinois’ ban on picketing of private homes was enacted in 1967, at the height of protests against the war in Vietnam and politicians who supported it.
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Nevertheless, protests of private houses have been a Chicago tradition for years.
Protesters who said they had been sexually abused by priests marched outside the home of then Cardinal Joseph Bernardin three years ago after he reinstated a purportedly rehabilitated priest. Ten years ago, 250 West Side residents who opposed a plan for a West Side Bears stadium were bused to Winnetka for a protest outside the home of Chicago Bears owner Mike McCaskey.
And members of the Pro-Life Action League hold protests outside the homes of doctors or politicians they oppose. Some abortion protesters say they already follow what will be the correct procedures.
“You can’t stand in front of one single person’s house,” said Ann Scheidler, treasurer of the Pro-Life Action League. “You have to keep moving up and down the block.”
But even with the new policy, police ultimately will have discretion to use common sense, as Cmdr. Tom Folliard did with the protesters outside Burke’s house, Needham said.
Folliard arrived as Rev. Albert Sampson was telling news crews why he opposed the efforts of Burke and his wife, Anne, an appeals court justice, to adopt the baby the Burkes have been raising.
Folliard waited for the news crews to finish their interviews. He then approached Sampson, showed him a copy of the state law, and told him to move the protest to Burke’s office or risk arrest.
“You may be right,” Folliard told Sampson. “It could be a good case for judicial review, but not for a policeman on the street corner.”
Sampson asked if his group could continue just a few minutes longer so they could be interviewed live on WGN-Ch.9. Folliard consented, and the group moved to Burke’s office after the interview.