A Cook County judge dismissed the cases of 92 Occupy Chicago protesters arrested in October 2011 for violating the city’s 11 p.m. curfew while trying to “occupy” Grant Park. The judge decided in favor of the protesters Sept. 28, stating that the curfew ordinance violates the First Amendment right of assembly if it is enforced selectively.

The court opinion, written by Judge Thomas More Donnelly, said the curfew ordinance wasn’t enforced for assemblies the city favors, such as Barack Obama’s 2008 presidential election victory rally that went past curfew but resulted in no arrests. If there is a curfew, it should be enforced without prejudice, the opinion said.

Mayor Rahm Emanuel is appealing the decision, saying the comparison to the Obama rally is like comparing “apples to oranges.” The main difference, he said, was that attendees at the Obama rally did not intend to stay overnight. Donnelly agrees, and stated that he thinks a regulation against camping in parks is valid, but that would not affect the curfew itself.

Occupiers should have been allowed to stay in the park all night as part of an assembly as long as they were not setting up tents and sleeping.

According to First Amendment doctrine, ordinances that affect free speech must be “narrowly tailored to serve a significant government interest” and “leave open ample alternative channels for communication of the information.” Occupiers had no other public space to occupy, and it can’t be argued that the curfew serves city interests if it is applied so selectively.

“Because so many expressive activities take place at night, government actions that curtail nighttime assemblies necessarily impose a burden on expressive First Amendment conduct,” Donnelly wrote.

Grant Park has a long tradition of public assemblies and protests, such as the 1968 Democratic National Convention demonstrations, and the Chicago Park District refers to the park as “Chicago’s front yard.” If protesters can’t occupy the city’s front yard, where else can they go?

The message of the Occupy movement is intrinsically tied to the strategy of occupying public space. Members of Occupy Wall Street got so much attention because they didn’t leave Zuccotti Park. The government has the ability to regulate assembly on the basis of time, place and manner, but prohibiting Occupiers from staying in parks overnight is arguably a restriction that affects the movement’s ability to convey its message.

As the city enacts more regulations limiting public demonstrations, such as the temporary NATO and G-8 ordinance passed in January, it is refreshing that a judge is siding with the public’s right to assemble. If Obama is allowed to be in the park after dark, so should Occupy Chicago.