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A First Amendment two-fer

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Chris Drew set out to challenge the constitutionality of one local law last month, but prosecutors seem intent on giving him a two-for-one deal.

He was arrested on December 2 for selling art in a prohibited area and without a peddler’s license, both misdemeanor offenses.  But after being held overnight, he was also charged with violating the state’s eavesdropping law (it was another day before he was allowed to post bail).  It’s a felony that carries a penalty of 4 to 15 years in prison.

At a court date on December 9, the misdemeanor charges were dropped.

Drew’s alleged crime was tape recording his own arrest, in conjunction with a videographer who was documenting the day’s events.  He was arrested standing at State and Washington, wearing in a red poncho marked “Art For Sale – $1,” after he refused police orders to stop.

Adam Schwartz of the ACLU of Illinois [2] says both the street peddling ordinance and the eavesdropping statute are unconstitutional.

Speech peddling is clearly protected by the First Amendment, and Chicago’s ordinance is too broad and restrictive, with extensive prohibited areas and costly peddling license fees, he said.

And the right to video and audio tape police at work in the public way has been clearly established by a series of cases, Schwartz said; the right to collect information on government activities is covered by the First Amendment right to petition for the redress of grievances.

Drew intends to file federal lawsuits challenging both laws, “once we dig ourselves out from this situation.”  He adds: “We can’t let them scare us out of our speech rights.”

Drew is founder of the Uptown Multicultural Art Center [3], which sponsors an annual t-shirt festival, and organizer of the Free Speech Artists Movement [4], which has been calling on the city to exempt artists from the peddlers license for several years.  (His own blog is here [5].)

One of his forms of protest is to sit on the sidewalk, set up his silk screen and produce art patches, which he gives away.  (He regularly does this at Community Media Workshop’s annual conference, where he also volunteers.)  That this activity is legal — as long as he doesn’t charge for his work — seems to undercut the city’s claim that its restrictions are motivated by traffic congestion concerns.

Artists across the country have been successfully challenging local limitations on street art.  Last year a federal appeals court ruled in favor of a balloon artist who challenged Seattle’s requirement that street performers obtain a permit and refrain from soliciting donations. And in July, the ACLU sued Fort Lauderdale on behalf of a painter, challenging a “web of ordinances” that make it illegal for street artists to work and sell their art.

In New York City, street artists have been challenging restrictions for 16 years; a 1996 court decision established visual art as protected speech, and federal and state courts since than have ruled that the city can’t require permits for artists in parks.  (The struggle there continues, as this video [6] of a December arrest of an artist shows.)

Drew’s lawyer is Mark Weinberg, who has defended peddlers, panhandlers and street performers since his own successful lawsuit, filed in 2002, which challenged the city’s ban on peddling outside the United Center, where he’d been prohibited from selling a book he’d written on Blackhawks owner Bill Wirtz.

A case filed by Weinberg defending the First Amendment rights of panhandlers was settled in 2003; a year earlier, the city repealed the ordinance in question.

Drew also hopes to challenge the city’s “speech permit,” a little-known provision instituted after a marijuana-rights activist successfully defended her right to sell t-shirts at city festivals in Grant Park in the late 1990s.  The permit allows sales of items with noncommercial messages, but tightly restricts locations and requires all materials for sale be submitted for inspection.

The eavesdropping statute – which Drew believes was invoked to harrass him and drain his resources – has a rocky history.  It was amended in 1994 to cover public conversations undertaken without “the expectation of privacy”; recording conversations with law enforcement officials is a first-class felony with stiff prison sentences.  It’s been applied to activists before, but not successfully.

The most notorious case involved two African American youth workers in Champaign who were charged with eavesdropping in 2004, after they began a program of videotaping police during traffic stops.  A documentary produced by the two was blocked by the city from appearing on Urbana Public Television and seized by police.

But charges were dropped in December of that year, after Champaign’s state’s attorney was defeated in an election in which the case was a major issue.  In 2008 the activists, Patrick Thompson and Martell Miller, won an undisclosed amount when authorities settled a federal civil rights suit.  Also that year, Thompson was finally found not guilty in a separate criminal case, which supporters maintain was instigated in retaliation for his activism.

The case moved State Representative Chapin Rose, a Republican from Champaign County, to introduce a bill [7] amending the eavesdropping law to allow the recording of public employees, including peace officers; it died in committee.

Drew’s next court date is Friday, January 29 at 9 a.m. at the Cook County Criminal Court at 26th and California.  That afternoon, from 3 to 6, he and artist allies will be giving away art patches outside downtown colleges.

Note: An earlier version of this post had an incorrect date for Drew’s first court appearance.