She led noisy protests blocking streets. Kansas Supreme Court to decide if that's a crime.

The leader of noisy protests that blocked Wichita streets in summer 2020 is asking the Kansas Supreme Court to overturn her disorderly conduct conviction and rule the local ordinance unconstitutional.

Gabrielle Griffie, who was an organizer for Project Justice ICT, was convicted of disorderly conduct due to the blocked streets after city prosecutors argued that she engaged in "noisy conduct tending to reasonably arouse alarm, anger or resentment in others."

Griffie was sentenced to a $200 fine with no jail time and the option to perform community service instead of paying the fine.

The noise at issue consisted of speeches via megaphone and marchers chanting slogans, such as "No justice, No peace," "No Trump, No KKK, No Fascist USA" and "Black Lives Matter." But city prosecutors say it was the action of blocking streets, not the noisy chants, that was the problem.

Griffie is asking the high court to declare the city ordinance unconstitutional. If she is successful, the ruling could have statewide impact as it would presumably implicate an identical state statute on disorderly conduct that has been on the books for five decades.

The seven justices could take months to finalize their ruling. The justices appeared skeptical of the city attorney's arguments while still not fully persuaded by Griffie's attorney during Tuesday's oral arguments in Topeka.

The summer 2020 protests blocked Wichita streets

The July 29, 2020, protest in Wichita was held in solidarity with Portland, Oregon, protests following the murder of George Floyd by a Minneapolis, Minnesota, police officer.

Project Justice ICT did not obtain an event permit to close off the streets, but Wichita police had been monitoring the group's social media activity and decided to block off nearby streets anyway. Police decided against otherwise interfering with the protest. The only interaction between police and protesters was when some protesters hurled insults at some of the officers blocking traffic and monitoring the march.

Griffie led the protesters down mostly empty streets, carrying a megaphone and homemade shield, until they reached the federal courthouse. About 40 to 60 people participated in the protest, which dispersed on its own amid a heavy rain.

Griffie later testified that the purpose of the protest was to "bring awareness," and she admitted during cross-examination that the group intentionally tried to block city streets.

Police did not stop the protest or immediately arrest Griffie. They waited days to do that, and she was charged with violating city ordinance — the unlawful assembly section under the rioting chapter under the public safety and morals title — for disorderly conduct that "engaged in noisy conduct tending to reasonably arouse alarm, anger or resentment in others."

Blocking traffic is not part of the disorderly conduct or unlawful assembly ordinances, though prosecutors said it was the reason for filing criminal charges.

Supreme Court questions criminalization of noisy speech

The justices' questions for Griffie's attorney, Kurt Harper, and Wichita assistant city attorney Nathaniel Johnson focused on legal technicalities, the language and interpretation of the ordinances and how they would apply to hypothetical scenarios.

Justices Caleb Stegall and K.J. Wall suggested the ordinance is OK as long as it is based on noise decibel level and not the content of the noise.

"But that is not a construction of existing language," Harper said. "That is a rewrite."

The city also has separate ordinances addressing noise level and interfering with traffic, Harper said, but the city did not use those ordinances in this case. Johnson said the city does not have evidence establishing the decibel level of Griffie's protest.

Harper said some noise could cause resentment in others, regardless of the decibel level. He gave an example of playing 1960s and 1970s war protest music in a Vietnam veterans memorial park.

"At whatever noise level, that is just as likely, if not more likely, to fall within the language of this ordinance," he said.

Justice Dan Biles came up with his own example.

"I've got 10 buddies," he said. "We load up in car, we go down to Broadway and First and we burn an American flag while chanting as loud as we can: 'America, red, white and blue, we spit on you.' Can I be prosecuted under this ordinance?"

Johnson said no, citing a reasonable person standard.

"You don't think a reasonable person would be offended by that?" Justice Melissa Taylor Standridge asked.

"I assume the good people of Wichita love their country, so I don't see why that wouldn't arouse a response from the good citizens of Wichita," Biles said.

Standridge came up with her own example.

"If you are picketing at an abortion clinic, why couldn't you be charged under this statute?" she asked.

"Picketing does not reasonably cause alarm or fear," Johnson replied.

Standridge also suggested the ordinance could make a criminal out of a sports fan if they loudly cheer or boo after a touchdown and a fan of the opposing team feels resentment.

Based on her reading of the ordinance, Standridge said, Griffie still could have been convicted had she used a megaphone but not been in the streets, as long as someone else was offended. Johnson disagreed with that interpretation.

Biles suggested the ordinance has a chilling effect, though Johnson disagreed.

"This ordinance causes me to get animated," Biles said. "It seems so vague that Ms. Griffie, rather than doing a Black Lives Matter protest again, is just not going to mess with it and stay home. And the First Amendment doesn't allow the city to have that kind of chilling effect if her conduct is constitutional."

Kansas Court of Appeals was split

The Kansas Supreme Court took up the case after the Kansas Court of Appeals in November was split 2-1 in affirming the Sedgwick County District Court decision.

In the appellate court's majority opinion, judges Thomas Malone and Kim Schroeder upheld Griffie's conviction because they deemed the law constitutional.

They said the law is broad and could potentially apply to constitutionally protected activities, but there was no showing that such protected activities were a significant target of the law.

In his dissent, Judge Timothy Lahey argued that the city ordinance criminalizes speech that is protected by the First Amendment and thus "unmistakably chills free speech and expressive conduct." He said the "noisy conduct" portion of the law should be ruled unconstitutional and the city barred from enforcing it.

"The constitutional problem with the 'noisy conduct' form of disorderly conduct is not that the ordinance was passed with the intention of targeting a specific political message," Lahey wrote. "The problem is that it is overbroad and includes within its scope, without exception, protected First Amendment speech and conduct.

"Under the ordinance, a criminal penalty attaches to noisy conduct whether it occurs in a private home or in the public square — it applies to political debates, meetings, and conventions, and at all times of the day or night."

Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on Twitter @Jason_Alatidd.

This article originally appeared on Topeka Capital-Journal: Kansas Supreme Court hears case of protester blocking Wichita streets