Legal battle begins for freedom of speech

By Patrick Smith

Last December, Chicago artist Chris Drew set on his fifth attempt to get himself arrested.

He pulled a large, bright-red poncho over his jean jacket and headed toward the Loop with “Art for Sale” printed across his chest and about 20 plastic bags pinned to the poncho.  All but one of those bags were filled with patches Drew had made himself; the exception was a bag containing a small audio recorder inside.

That recorder turned out to cause a lot of trouble for Drew, but it could also lead to the end of an Illinois law that the American Civil Liberties Union says is unconstitutional and harmful to the people of Illinois.

Drew had initially set out to challenge Chicago’s peddler licensing law and restrictions that Drew and his attorney Mark Weinberg said are also unconstitutional.

The issues that Drew and Weinberg say are unconstitutional are the tight limits on where a licensed peddler can sell his or her goods, and also the requirement that all artwork being sold on the street be seen first by the department of business affairs.

The 1994 Chicago municipal code regulating peddlers has a special “speech peddling” section that applies to artists selling their artwork. In the statute, speech peddling is defined as selling “anything containing words, printing or pictures that predominantly communicates a non-commercial message.” The statute requires that anyone selling speech provide the department of business affairs with a “description of the item(s) he or she will be selling, including description of the type of item(s) to be sold, the nature of the communication, and a picture or graphic depicting the item(s).”

The code also says that this requirement is so the city can determine if the goods being sold are “predominantly communicating a non-commercial message,” and that it will not evaluate the message itself.

But Drew said that isn’t true.

“They are censoring using prior restraint,” Drew said of Chicago.  He said the need to clear his art before it is sold basically guarantees it won’t have a relevant message. “If Mayor Daley does something outrageous today, it will be no sooner than next month that you can sell a statement about that downtown.”

After years of protesting and speaking out about the peddler’s license and what he considers a violation of the First Amendment, Drew said he decided he had to challenge the law in court.  So on his 59th birthday last October, Drew stood in front of the Art Institute of Chicago and sold his artwork without a permit.

The police never came, but Drew kept at it and two months later, on Dec. 2, 2009, he was arrested for peddling without a permit. Drew kept his audio recorder running during the arrest to document the incident.

Recording his interaction with police in a public place led to Drew being indicted on a Class 1 Felony for eavesdropping.

That felony charge carries a penalty of four to 15 years in a state prison. The misdemeanor Drew was trying to be arrested for has a likely punishment of probation and community service. The lesser charge was dropped and Drew is preparing for a court battle that he said he is looking forward to.

“I’m emotionally and psychologically ready for whatever comes out of this,” Drew said. “I am fighting for freedom of expression and the ability to survive by our expression and by our speech.”

According to Drew’s attorney, he’s now also fighting for the right to observe public servants in action, something he and the ACLU agree is an essential right.

“Within the First Amendment, not only is there a right to speak, but there is also a right to hear,” Weinberg said. “It’s a relevant issue because it goes into the ability of the citizens to monitor the police.”

That is an important right according to Drew, and he said it is a right the legal system is intentionally trying to take away.

“The intention is to prevent us from doing our civic duty and observing our public servants,” Drew said. And he added that he is sure if the city is able to convict him on this felony charge, the use of the law will be expanding, threatening everyone’s freedom.

Adam Schwartz, an attorney for the ACLU agrees that the right to observe police officers is incredibly important to the citizens of Illinois.

“Most police officers are doing a hard job in a professional and ethical manner, but some police officers break the law and some communities have responded by recording police actions,” Schwartz said. “The First Amendment includes the right to petition the government for a redress of grievances, that includes the right to observe and document how the government is acting toward its citizens.”

According to Schwartz, the Illinois law is rare in the United States because of its breadth. The criminal code of 1961, under Article 14 Eavesdropping, makes the audio recording of any conversation illegal and it goes on: “the term conversation means any oral communication between two or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”

It is that broad definition of conversation that makes the Illinois law unconstitutional according to Schwartz.

“When a police officer is in a public place having a conversation with a person, especially if that person is being detained or has been arrested, there is no privacy interest in that case,” Schwartz said. “There is no public benefit to stopping civilians from audio taping police civilian interaction.”

“In the public space, there is no expectation of privacy,” Weinberg said.

On Jan. 29, Drew is due back in circuit court for a status update. At that hearing, Weinberg said he will ask the case be thrown out on the basis that the law is unconstitutional, but even if that request is granted, Drew will not be finished.

“Part of what we are trying to do is not just change the law but change the culture,” Drew said. “We are in this to make the city a better place.”