It’s not what Gabrielle Griffie said, but how she said it, the city of Wichita argued before the Kansas Supreme Court on Sept. 12. More specifically, how many people she said it with, and their reasons for saying it.

Griffie was convicted of a misdemeanor — unlawful assembly — after leading a protest against police brutality through the streets of Wichita in July 2020. 

The city contends it could charge her with unlawful assembly for organizing a group to engage in disorderly conduct. The city argues that noisy conduct — which falls under the disorderly conduct ordinance — could alarm, anger or create resentment in others.

Griffie led the protest as then-executive director of the activist group Project Justice ICT, formed as part of the Black Lives Matter movement after the murder of George Floyd. 

She led 40 to 60 protesters to the federal courthouse chanting “no justice, no peace” and “Black lives matter.” Then she spoke to them using a megaphone.  

The case tests whether the Wichita ordinance used to prosecute Griffie criminalizes free speech protected by the U.S. Constitution. Wyandotte County, Paola, Olathe, Lawrence and other local governments have similar ordinances — based on a Kansas statute — on the books. Whether their laws will be deemed unconstitutional depends on how the court defines the reach of its decision. 

Griffie appealed her conviction and, three years after her arrest, the case has made it to the state Supreme Court. She asked the Kansas Supreme Court to strike down the “noisy conduct” portion of Wichita’s ordinance. Her lawyer argued that the ordinance was so sweeping that just about anything could qualify as disorderly conduct, including political speech protected by the First Amendment. 

“One cannot violate the ordinance without implicating speech, intent and expressing yourself in a way that may cause controversy,”  Kurt Harper, Griffie’s attorney, told the state’s high court. 

The city counters that Griffie’s conduct — how she expressed herself — led to the unlawful assembly charge, not the content of what she was saying. 

The ordinance “is trying to prevent the type of conduct that would injure another or incite further violence,” said Nathaniel Johnson, attorney for the city. Johnson declined to comment for this story, citing pending litigation.

Most of the justices who asked questions of the attorneys during the hearing seemed skeptical that it was possible to separate the content of protected expression from conduct in situations like political protests, where the point is to stir emotions among the public to inspire change.  

The court will likely announce its decision in the next few months. If the court finds in Griffie’s favor, the implications could have statewide influence over the scope of protected speech in Kansas. 

Anti-First Amendment ordinance? 

In legal briefs and during oral arguments, attorneys debated two ways the ordinance may deter free expression: whether the ordinance was overbroad, and whether it had a chilling effect. 

A law is considered too broad when its sweep restricts protected speech along with the unprotected speech it was intended to restrict. 

“The language (of the Wichita ordinance) is overbroad because, irrespective of what the city says they want to do, it inevitably attacks (protected speech),” Harper said.

The ordinance describes noisy conduct as “tending to reasonably arouse alarm, anger or resentment in others,” which the American Civil Liberties Union of Kansas called “commonplace emotions that are ubiquitous to human experience.” 

Several justices also expressed skepticism over the ordinance’s broad language.

“Anybody could be convicted for standing on a stage, content neutral, just using a megaphone, if somebody gets offended not even by what the person is saying,” said Justice Melissa Taylor Standridge.

In a brief filed in support of Griffie’s appeal, the ACLU said the ordinance gives the government power to retaliate against its citizens. 

“The Wichita ordinance … imbues the police with the power to arrest anyone who loudly proclaims a message that angers them,” the ACLU said. “It’s not surprising that the police wielded that power against Griffie, who was engaging in direct action addressing police brutality and misconduct, using messages that were critical of the police.” 

Lawyers representing the state — who weighed in because the Wichita ordinance mirrors the state statute — wrote in a brief that the “noisy conduct” provision cannot be too broad, because noisy conduct is not speech.

“Nothing in (the ordinance) suggests that the contents of any speech or expressive conduct is proscribed by ‘noisy conduct,’” the state said. “Conduct … is the action or behavior a person takes. It is not the content or meaning behind the action.”

‘Chilling effect’ on speech

Just as a law can be constitutionally too far-reaching, it can also be unconstitutional because of its chilling effect. That’s when government restrictions deter people from constitutionally protected speech.  

In a court filing, Griffie’s attorneys wrote that the ordinance doesn’t include limits on when, where or how the ordinance may apply. That, they argued, gives the government too much leeway in enforcement.  

The ordinance “lacks safeguards necessary to prevent chilling the exercise of traditional methods of political expression in the form of public protest and demonstration,” Griffie’s attorney wrote to the court. 

Justice Dan Biles said that parts of the ordinance can only be addressed during a trial. And that requires someone to be prosecuted under the ordinance. Biles said that the possibility of going to jail and facing a trial is enough to deter people from protected speech. 

“Ms. Griffie, rather than do a Black Lives Matter protest again, is just not going to mess with it and stay home,” he said. “And the First Amendment doesn’t allow the city to have that kind of chilling effect if her conduct is constitutional.”

Griffie’s appeal says that’s exactly what she did. After she was arrested for organizing the protest at the center of the case, Griffie stopped her activist work with Project Justice ICT. 

The city said in a response that Griffie claimed that the “noisy conduct” ordinance had a chilling effect but that she did not submit proof that it was actually chilling or interfering with protected speech. 

Statewide impact

The state Supreme Court’s decision has the potential to affect laws throughout Kansas. 

The “noisy conduct” provision in Wichita’s city ordinance is identical to the provision in the state statute for disorderly conduct. Cities and towns across the state have similar “noisy conduct” provisions in their municipal ordinances. 

But if the court strikes down the Wichita ordinance, that doesn’t automatically mean that the language is invalidated everywhere. The court ultimately decides the scope of its decision, in addition to the outcome. 

Attorneys for the city of Wichita and the state of Kansas said that the ordinance could be clarified or amended so it would comply with the U.S. Constitution, rather than striking the ordinance in its entirety. Both offered up some suggestions the court could consider. 

The city said that the court could issue a jury instruction clarifying the law, to preserve the ordinance. After Griffie’s attorneys said the word “tending” is ambiguous, the city said that the court could simply strike that one word from the “noisy conduct” provision. The state said that the court could limit “noisy conduct” to nonexpressive conduct, like if protesters damage property or trespass. 

Harper, Griffie’s attorney, told The Beacon that a win in the case could kick the question back to lawmakers in cities and the Kansas Legislature to change the language.

“The (desired) impact in the long term would cause the state Legislature and city government to find a way to better identify what the concern is and tailor (policies) to that purpose,” he said.