Earlier this month, in a case challenging the denial of permits to erect a homeless “tent city” in front of a former elementary school in the Uptown neighborhood of Chicago, a federal magistrate judge dismissed the organizers’ First Amendment claim. While one count of the plaintiffs’ complaint will move forward, the order dismisses all of the plaintiffs’ federal claims.
Uptown Tent City Organizers and its leader, Andy Thayer, sought a permit from the City of Chicago to establish a tent city in the former elementary school site. In 2016, several homeless people had resided at the site, but the city fenced it off and the homeless people moved to various locations under viaducts along the city’s famed Lake Shore Drive. The plaintiff filed claims in state court challenging the city’s denial of the permit, and the city removed the case to federal court. The plaintiffs lost a motion for preliminary injunction, and subsequently amended their complaint to add First Amendment free speech and assembly, Eighth Amendment cruel and unusual punishment, Fourth Amendment illegal seizure, Fifth Amendment taking, and various state law claims.
With respect to the First Amendment, the court found that the plaintiffs could not demonstrate that their activity constituted protected speech and assembly. The plaintiffs argued that the tent city protested the lack of affordable housing in Chicago, and noted that several of the tents had signs on them advocating for better treatment of the homeless. Applying the test articulated by the Supreme Court in Spence v. Washington, the court found that, even if the plaintiffs intended to convey a concrete and particularized message, their message would not be understood by those who viewed it. Because the plaintiffs displayed signs on the tents, the court reasoned that the need for additional speech to explain their protest meant that the tent city in itself was not expressive conduct. The court also rejected the plaintiffs’ argument that the city had applied its public assembly permitting scheme in a viewpoint-discriminatory manner, finding that the plaintiff had not shown that the city granted assembly permits to parties utilizing tents as residences for several months.
As our blog focuses on First Amendment issues, we direct those readers interested in the court’s treatment of the non-First Amendment matters to the reported decision (linked below).