Illegal Games a Problem

The United States Constitution grants individuals the right to freely speak their mind, and also the right to freely and peaceably assemble.  But the time, place, and manner in which these rights can be exercised may be governed by local, state and federal governments.

In the 1940’s in Alabama a woman began distributing religious literature on the sidewalk of a company town.  The company owned all of the real estate in the town, including the houses, the shops, the streets and the sidewalks.  The woman was told to leave; she didn’t.  She was arrested for remaining on private property after being told to leave, which was a crime in Alabama.  The Alabama state courts upheld the conviction, but the United States Supreme Court reversed her conviction by holding that when owners of private property allow their property to be used by the public, then in some cases those private property owners may become subject to state regulation.  In other words, I may not have to allow strangers into my home or yard so that they can freely speak their political ideas. But if I open up my private property to use by the public – such as a private street, a privately owned sidewalk, a private toll road, or a privately owned bridge, then I may become subject to state regulation.  If I open up my property to use by the general public, then in some instances I may not be able to properly bar someone from speaking their religious or political ideas, claims, arguments or preferences.

The concept is that fundamental rights can sometimes clash with one another, and there must sometimes be a balancing of these rights.

A clash of fundamental rights is seen in the case of an interesting ordinance that made it unlawful to play games.  The village of Tinley Park, Illinois, adopted an ordinance that made it unlawful “to play any games upon any street, alley, or sidewalk, or other public places except when a block party permit has been issued by the President of the Village and the Board of Trustees.”

Ouch.  No games – at least not on the sidewalks, streets or alleys.  Almost sounds like some of the problems faced by the children in the 1968 British film of “Chitty Chitty Bang Bang.”  If one or more children were caught playing games on the sidewalk, street, or other public places, then their parents were to receive a ticket for “parental irresponsibility” for allowing their children to play such games.

The village of Tinley Park undoubtedly had good reasons for banning the playing of such games, such as increasing child safety, creating fewer hazards and obstructions for motorists and reducing the risk of injury to persons using sidewalks. But notwithstanding the ordinance, some children played games in streets or sidewalks, and their parents were ticketed.  The parents filed suit in state court for violation of the constitutional First Amendment right to assemble, and also for violation of due process of law as provided by the Fourteenth Amendment. However, the state court provided the parents no relief.  The case was transferred to Federal Court.

In the Federal Court action, the judge noted that the ordinance prohibited the playing of games not only in “streets and sidewalks” but also prohibited any games from being played in “any public place.”  The Tinley Park ordinances defined “public place” to include not only streets and sidewalks, but also any “park, cemetery, school yard, or body of water.”  The judge noted that a strict enforcement of the ordinance would “prohibit children from playing tag at recess in the schoolyard without a block party permit from the Village President and the Board of Trustees; likewise it would apparently bar a child from playing with his Gameboy on the sidewalk, or kids from playing in a pool or river –bodies of water – or skating in the park without obtaining a permit.” The court noted “Under the law I cannot play chess on the sidewalk without obtaining a permit, but how might that injure anyone? If bicycle riding is a game, may I not play it in the streets or on the sidewalks of Tinley Park without a permit?”

The Federal Court indicated that the Village of Tinley Park had power to limit some of the actions included in the ordinance, but that the ordinance was too broad and too vague.  The Court granted the parents a preliminary injunction which restrained the Village of Tinley Park from enforcing the ordinance during the pendency of the lawsuit.  (The published court opinion doesn’t give the final outcome, but if the published opinion is any indicator at all, it appears that the ordinance may well not have survived the federal court proceedings.) The case is cited as Weigand v. Village of Tinley Park (2000) 114 F. Supp. 2d 734.

Copyright 2017 ROBERT B. JACOBS