TOPEKA, Kansas — Kansas Supreme Court justices seemed skeptical Tuesday of a Wichita city ordinance used to justify arresting a protester.
They will decide whether the ordinance is a violation of First Amendment rights.
In 2020, Gabrielle Griffie led a protest over the death of George Floyd. The group marched through Wichita, even walking through streets and blocking some traffic. The demonstration ended at the steps of the federal courthouse.
Nobody was arrested the day of the protest. But Wichita Police watched social media videos after it happened and charged Griffie with disorderly conduct for blocking traffic.
Court documents say the streets were almost entirely empty, but one car had a brief interaction with protesters. Griffie did not interact with the car, but she helped set up the event.
At the heart of the debate is a city ordinance outlawing "noisy conduct tending to reasonably arouse alarm, anger or resentment in others." That was used to justify her charge.
Kurt Harper, an attorney representing Griffie, said people can be alarmed, angered or resentful of a lot of things. And even though Wichita already has noise ordinances and laws that prevent people from blocking traffic, neither of those were cited when charging Griffie.
He said the ordinance in question is too broad and some of the justices seemed to agree.
Justice Melissa Standridge said flipping someone off, gun rights protests, picketing outside abortion clinics or trash talking other teams at a sports game could all make someone resentful, which by the language of the law, could get someone charged.
And someone might not know if they are being unreasonable until they end up in court.
“I’m just going to get hauled off, and … we’ll find out later whether a reasonable person would have thought that what I was doing was covered by this ordinance,” justice Dan Biles said during oral arguments on Tuesday.
Biles said an overly broad ordinance could prevent people from protesting in the future if they don’t know what crosses the line.
Lawyers for the city disagreed with Biles. Nate Johnson, an attorney arguing on behalf of Wichita officials, said this ordinance only applies if a reasonable person could be offended, and protesting is protected speech. Nobody could be reasonably offended by a right guaranteed in the Constitution.
But justices pointed out that burning an American flag is also considered protected speech.
“You don’t think a reasonable person would be offended by that?” Standridge asked.
Johnson said a similar state law has been around since 1969, so there is precedent for the local ordinance. He said even though the city has noise and traffic laws, this is different.
“This ordinance protects against noisy, disorderly conduct,” he told justices.
Griffie isn’t going to face jail time if her appeal fails. She was fined $200, which she could pay off through community service.
The ordinance has already survived lower court challenges after the Court of Appeals sided with the city. The judges, in a split decision, said someone is only charged if they are knowingly disruptive.
In the appeals court's dissenting opinion, judges agreed with Griffie’s lawyers and said the local ordinance is too broad. They also noted that blocking traffic is not a type of disorderly conduct and the ordinance used to justify the fine never mentions blocking traffic as a violation.
The Supreme Court will rule on the law in the coming months.
Blaise Mesa reports on criminal justice and social services for the Kansas News Service in Topeka. You can email him at blaise@kcur.org.
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