Kansas and Wichita law needs rewrite after court assaults freedom of speech | Opinion

A divided panel of the Kansas Court of Appeals has ruled that Wichita can punish political protest, if it’s “noisy” and might make someone angry or resentful.

The appeals court decision is wrong. So is the city of Wichita and the Kansas Legislature.

The city’s ordinance, and the state law that it’s copied from, could basically be turned against any protest, any time, any place, if it’s loud and someone who hears your words gets mad about it.

That’s the definition of a violation of your First Amendment rights to freedom of speech and assembly.

A little background: This case derives from a demonstration in 2020 protesting police brutality after a Minneapolis officer killed George Floyd.

Among several arrests made by Wichita police was protest organizer Gabrielle Griffie, the leader of a group called Project Justice ICT.

No one’s alleging anyone was hurt or threatened or that any property was damaged by the rally.

The 40 to 60 protesters did march down some nearly vacant streets, but police diverted traffic around them, which was the right call.

Griffie wasn’t even arrested at the protest. She was picked out of Facebook Live recording and charged with “disorderly conduct” after the fact.

Several others were charged, including people who wrote slogans on sidewalks with chalk. But the chalking violations were dismissed in court before they came to trial, according to Dylan Wheeler, the lawyer representing Griffie.

The underlying issue is a clause in the city ordinance that criminalizes “engaging in noisy conduct tending to reasonably arouse alarm, anger or resentment in others” if the person making the noise “knows or should know” that it might have that effect.

The two appeals judges who voted to uphold the ordinance, Kim Schroeder and Thomas Malone, said it’s OK because it has the word “reasonably” in it, and “the ordinance is only violated when the person ‘knows or should know’ that this conduct is prohibited.”

The only judge who got it right was Timothy Lahey, a retired Sedgwick County district court judge who served on the panel.

As he put it in his dissent: “The only noise on the nearly vacant streets of Wichita on July 29, 2020, was that produced by Griffie’s political protest. Noise of that sort is protected by the First Amendment.”

Thank you, Judge Lahey.

In a long reporting career, I’ve covered countless political protests. Every single one of them made somebody alarmed, angry and/or resentful.

Disagreement is part of living in a democracy. This law is making me wonder if I still do.

And there’s more than a little bit of selective enforcement going on here.

I’ve been to some very noisy pro-life protests in Wichita, that definitely made pro-choice people nearby angry and resentful. Nobody got arrested at those.

A few months after the George Floyd protests, I was at Century II when hundreds showed up to protest at a marathon City Council hearing on mask mandates. They were definitely noisy, and I talked to pro-mask people who were angry and resentful, but there were no arrests there either. City Council member Bryan Frye sent them pizzas.

I suppose under the city’s ordinance, you could get out a bullhorn and march on behalf of free pizza, but that’s about it.

If your chant is “Black Lives Matter,” “Defund the Police,” or “No Trump, No KKK, No Fascist USA,” you’re fair game for arrest for disorderly conduct.

Wheeler said the lawyers and Griffie haven’t decided whether to pursue the appeal further. I sure hope they do.

In the meantime. the City Council and the Legislature should rewrite this ridiculous law.

Or, we could all start filing police complaints every time a council member or legislator picks up a microphone at a rally and says something that makes you feel angry or resentful.

If them’s the rules, we can all play by ‘em.