Wichita finds itself at the heart of a precedent-setting court case with statewide implications for political protesters.
It involves a city law that prohibits “engaging in noisy conduct tending to reasonably arouse alarm, anger or resentment in others.”
But what is noisy conduct? Who defines it, and does it involve what protesters are saying, or how they say it?
Kansas Supreme Court justices are grappling with difficult questions about disruptive political expression and whether the government’s efforts to limit confrontations between citizens have a chilling effect on free speech.
The case grew from 2020 demonstrations where participants were arrested for disrupting traffic and drawing on sidewalks with chalk. Wichita protesters chanted “Black Lives Matter” and “Defund the Police” as renewed calls for accountability and systemic change sparked demonstrations around the country after the police killing of George Floyd.
Gabrielle Griffie, executive director of Project Justice ICT, was arrested for her role in organizing protests. She was acquitted of disorderly conduct but convicted on two misdemeanor counts of unlawful assembly under Wichita’s “noisy disorderly conduct” law.
Now she is challenging that law.
The high court is considering whether the city law, which borrows language from a state law, is overly broad.
Wichita defends its ordinance. And Kansas Solicitor General Anthony Powell’s office argues for the constitutionality of the state law.
During oral arguments before the state Supreme Court last week, Justice Dan Bile said the existing language of the law may dissuade people from engaging in protected speech.
“I look at this, and if I know I’ve got to go to court to determine whether some of these loosey-goosey standards are going to apply to me — otherwise I’m in the hoosegow in Wichita jail — I might just decide I’m not going to speak,” Biles said.
“It seems so vague that Ms. Griffie, rather than do a Black Lives Matter protest again, is just not going to mess with it and stay home,” he said.
Motorists summoned to testify during the municipal court trials of Griffie and fellow protester Marissa Gonzalez described feeling “scared” and “nervous” as they came upon chanting crowds occupying traffic lanes in parts of downtown and the Delano neighborhood.
Justices asked the city attorney if people who taunt the opposing team at a sporting event, flip someone off in a car or demonstrate outside an abortion clinic would be prosecuted under the Wichita law.
People are not charged under the ordinance for the content of their speech, Assistant City Attorney Nate Johnson said. They are also not charged just for being too noisy.
“It’s trying to prevent the type of conduct that would injure another or incite further violence,” Johnson told the court.
Justice Melissa Standridge questioned whether the “noisy conduct” provision duplicates the city’s noise ordinance, which prohibits “loud and unnecessary noise.”
Wichita police did not collect data on decibel levels of protest activity at any point during Project Justice ICT’s summer demonstrations, which at times involved megaphones.
“Is it your view that the First Amendment protects speech or conduct that is so loud that the noise level arouses anger and resentment in others?” Justice Caleb Stegall asked Griffie attorney Kurt Harper.
In U.S. law, the government’s ability to limit First Amendment freedoms of speech and expression hinges on the imposition of time, place and manner restrictions. These restrictions cannot have the intent or effect of limiting what is actually said.
Harper said it’s impossible to violate the ordinance without “implicating speech and intent and expressing yourself in a way that may cause controversy.”
“The noisy conduct, to be a subject of the prosecution, involves speech that will anger, alarm or perhaps most broadly and most threatening, cause resentment on the part of somebody,” he said.
The ACLU of Kansas argued in its own amicus brief that the law fails to meet the constitutional standard for regulating free speech in a public place, leaving it up to officers’ discretion when they choose to enforce it.
As a facial challenge to the disorderly conduct ordinance, Griffie and her legal team are questioning the constitutionality of the law itself — not specifically how it was applied by the city to support her own conviction.
But justices pressed the city lawyer on why arrests were made after the Project Justice ICT demonstrations.
“The specific conduct was that noisy conduct spilling over into streets where protesters were not allowed to be, based on where the police had set off sort of sections and barriers,” Johnson said. “But that wasn’t even exactly what caused the problem. It was that there was an interference with traffic and the conduct with blocking traffic.”
Demonstrators did not request a permit or share their plans ahead of time with the Wichita Police Department, but officers blocked off some streets to accommodate demonstrations. Municipal Judge Bryce Abbott ruled that protesters had no right to impede traffic without a permit.
“In this case, our ordinance — it was kind of iffy because there was some permission provided to the people to be on the streets,” Johnson told the Supreme Court. “It wasn’t even necessarily that the folks were on the streets protesting. It was the conduct or activity that occurred once they were there.”
The city prosecution leaned heavily on two hours of video broadcast live on the Facebook page of local Libertarian party interest group, Liberty ICT.
Protest in action
In an August 2020 interview, Griffie, then 24, told The Eagle she thought her arrests and those of other protesters were “a blatant scare tactic to try to keep the organizers of Project Justice ICT from marching in the streets.”
Not everyone saw it that way.
Jeremy McTaggart, 51, was driving home on July 29 when he came into contact with protesters demonstrating on Broadway. He testified in court that he “felt threatened” by protesters “taking up two lanes” of Broadway.
Gonzalez was arrested for standing in front of McTaggart’s truck as he attempted to turn left after missing his turn on Central due to the police barricade.
“You’re in the street. So I’m honking, yelling at them to get out of the way and she’s not moving,” McTaggart told The Eagle in a recent interview. “So I just start pumping my brakes a little bit and inching forward.”
He said he was afraid he might be pulled from his vehicle by protesters.
“I was told when I grew up, you know, if you play in the street, there’s a good likelihood that you’ll get run over,” McTaggart said. “I don’t care what your protest is. Doesn’t matter to me.
“You have the right. I have the right to peaceably demonstrate or to air my grievances, and there’s an appropriate way to do it, and it’s not marching down the street jumping in front of vehicles or doing other things that are aggressive in nature.”
Maggie Gilmore, who participated in a number of Project Justice ICT demonstrations, said a good protest should “inconvenience people and get their attention.”
“There were a couple of different kinds of protests going on [in 2020], and so the ones that were a little more palatable, I guess, to the powers that be, didn’t have any issues,” Gillmore said. “The police were there. They were present and going along with it and everything.”
But as the former manager of ICT Chalk Talks, a community chalkboard at the corner of Douglas and Main, she said she was surprised when fellow protesters drawing on the sidewalk with chalk were arrested days later.
“I’ve never had any single issue with any police or officer telling us we can’t be writing chalk on the sidewalk,” Gillmore said.
She said she’s still unclear on what exactly protesters were arrested for.
“They weren’t really hurting anyone, causing any actual major disruption,” Gillmore said. “It was just a show, in my opinion, to put a damper on the protests because they didn’t like that they were happening repeatedly throughout the week.
“It had the desired effect, I think, of quieting things down.”
The Supreme Court is expected to issue a decision in the coming weeks or months.
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