When Can Words Lead to Arrest in Illinois?

The 1st Amendment protects every Americans right to speak freely, but Illinois has enacted legislation that precludes some forms of speech.  Typically, a prior restraint on speech is a per se constitutional violation, but not all speech is protected.


A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he or she communicates to another, directly or indirectly by any means, a threat to perform an unlawful act.  Acts that fall under this section ordinarily involve acts involving a threat of physical harm (assault), a threat of confinement or restraint (kidnapping), or expose any person to hatred, contempt, or ridicule.  Intimidation is a Class 3 felony for which an offender may be sentenced to a term of imprisonment of not less than 2 years and not more than 10 years.

A penalty for intimidation may be compounded depending on the context and/or the place where the conduct happens.  For instance, if the act of intimidation is a byproduct of street gang activities, the charges will be increased.  A person commits criminal street gang recruitment on school grounds or public property adjacent to school grounds when on school grounds or public property adjacent to school grounds, he or she knowingly threatens the use of physical force to coerce, solicit, recruit, or induce another person to join or remain a member of a criminal street gang, or conspires to do so. Additionally, A person who knowingly, expressly or impliedly, threatens to do bodily harm or does bodily harm to an individual or to that individual’s family or uses any other criminally unlawful means to solicit or cause any person to join, or deter any person from leaving, any organization or association regardless of the nature of such organization or association, is guilty of a Class 2 felony.

Intimidation Cases in Illinois

The leading case involving street gang intimidation in Illinois is Chicago v. Morales. The case involved an ordinance that attempted to stop gang-related activity in neighborhoods. The Council in charge of enacting the ordinance found, “a continuing increase in criminal street gang activity was largely responsible for the city’s rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, “the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.”  Furthermore, it found “that gang members “establish control over identifiable areas … by loitering in those areas and intimidating others from entering those areas.”  “The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a “public place” is a “criminal street gang membe[r].” Second, the persons must be “loitering,” which the ordinance defines as “remain[ing] in any one place with no apparent purpose.” Third, the officer must then order “all” of the persons to disperse and remove themselves “from the area.” Fourth, a person must disobey the officer’s order. If any person, whether a gang member or not, disobeys the officer’s order, that person is guilty of violating the ordinance.”

However, due to strong lawyering and a comprehensive understanding of the constitution, attorneys were able to have the ordinance declared unconstitutionally vague.  Whether or not a person charged with such a crime is protected by the 1st Amendment is an issue to advocated by a qualified Illinois Criminal Defense Attorney.

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