When Caren Thomas took over a lawsuit against the Chicago Park District in 1998 she had no idea she'd end up at the U.S. Supreme Court. But on December 3 Thomas, a marijuana-legalization activist and a founder of the Windy City Hemp Development Board, found herself in Washington, D.C., wearing a hemp-and-silk suit she made herself and watching her lawyers plead the case, which says that the Park District's permitting process is subjective and irrational and constitutes a prior restraint on free speech. "It was quite the proceeding," she says.
The suit dates back to 1997, when activist Robert MacDonald tried to get a permit for an anti-drug-war march in Grant Park. He'd been sent to Chicago from New York by NORML and the drug-decriminalization group Cures Not Wars (he may be best known as one of the Chicago Five, who were charged with mob action during the 1996 Democratic National Convention but later found not guilty). The Park District denied his permit on the grounds that he'd violated the terms of prior permits--in particular, the permit for an earlier Stop the Drug War march that drew 1,000 to the Metropolitan Correctional Center and was followed by about 50 pot-related arrests in Grant Park.
MacDonald was granted an injunction by a federal judge, but it was a onetime deal. He filed another suit, lost, and appealed. Thomas took over the case after MacDonald moved back to New York, where he died of a drug overdose in 1999.
"We must have appealed and done oral arguments at least 20 times so far," says attorney Wayne Giampietro, who in 1974 successfully argued the Supreme Court case Gertz v. Robert Welch, which established rights of private individuals in libel and slander cases and won a large monetary award. He and his cocounsel, Richard Wilson--both members of the First Amendment Lawyers Association; Wilson is a former president--prepared for the December 3 hearing by staging a mock trial in Orlando, where Wilson lives.
"It allows the Park District to prevent citizens from exercising their First Amendment rights in public places for reasons which could discriminate against the subject of the speaker," says Giampietro. "One of the most outrageous things is that it says if you had a permit once before and somebody violated the provisions of the permit, you can never get another permit to speak in the park ever again. What they said to Robert MacDonald was that 'We gave you a permit a year ago. Some people stayed in the park after it closed. Therefore you are forever disqualified from ever having another event in the parks of Chicago.' That is absolutely outrageous."
Giampietro goes on, "We also want to reiterate that if the Park District wants to block a permit it has to prove that they're right in not giving the permit--that the reasons they could deny a permit must not have anything to do with the content of the speech that's about to be given. That's all stuff that the court has said before."
But those didn't seem to be the issues the Supreme Court justices wanted to grapple with. "They didn't address the heart of our suit," says Thomas. "They kept asking, 'What if there's a softball game and a free-speech event asking for the space at the same time?' They kept using that softball-game analogy. To me their questions were unreal. We don't ask for softball fields--they're too dusty." She says Justice Anthony Kennedy spun the question a little: If they say first come, first served, what happens if two people collide in the doorway?
"It seems that they asked a lot of questions that weren't relevant to what we felt were the central issues," she says. The only justice who didn't ask anything was Clarence Thomas, but then he never does.
A similar lawsuit MacDonald filed and Thomas took over remains in limbo until this case is decided in the spring. The outcome of another case involving the Rainbow Gathering and federal land also hinges on how the court votes.
In the meantime not much has changed. In October, Thomas thought her group had been promised a prime spot in Lincoln Park--where their signs would be visible from Lake Shore Drive--for their Lost Harvest Festival. "I applied for it January 2," she says. "I had the insurance [for the event] since early May. They had my security deposit since July. They said to quit bugging them, so I did and waited for the permit."
She inquired about the status of the permit four days before the event, on a Tuesday. "One woman in the office said it was reserved for someone else. I said, 'What are you talking about?' On Wednesday they said they'd issued the permit for that space to a diabetes walk." And Thomas's group was stuck in its usual out-of-view spot, on the east side of Cricket Hill.
"It's not right to run the park on the whims of the people in power at the time," she says. "These are our parks. Yes, the Park District does have to safeguard it against misuses--I'd like to see them get the cops to quit driving on the grass. They have a right to protect the parks and administer their use, but they have to do so in a fair and legal manner."