Left Field Media LLC v. City of Chicago , 822 F.3d 988 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3233
LEFT FIELD MEDIA LLC,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, ILLINOIS, and ELIAS VOULGARIS,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 3115 — Jorge L. Alonso, Judge.
____________________
ARGUED APRIL 4, 2016 — DECIDED MAY 23, 2016
____________________
Before EASTERBROOK and HAMILTON, Circuit Judges, and
PEPPER, District Judge. *
EASTERBROOK, Circuit Judge. Left Field Media publishes
Chicago Baseball, a magazine that produces four issues over
the course of a baseball season. Copies are sold for $2 out-
side Wrigley Field before the Chicago Cubs’ home games.
* Of the Eastern District of Wisconsin, sitting by designation.
2 No. 15-3233
On the day of the Cubs’ home opener in 2015, patrol officer
Elias Voulgaris of Chicago’s police force saw Matthew
Smerge, Left Field’s editor, selling the magazine at the corner
of Clark and Addison streets. Voulgaris told Smerge to move
across the street in order to comply with Chicago Municipal
Code 4-244-140(b), which the parties call the Adjacent-
Sidewalks Ordinance. Section 4-244-140(b) forbids all ped-
dling on the streets adjacent to Wrigley Field. Smerge re-
fused to move and was ticketed. Told that the next step
would be an arrest, Smerge then crossed the street. A few
days later Left Field sued under 42 U.S.C. §1983, contending
that the Adjacent-Sidewalks Ordinance violates the First
Amendment, applied to the states by the Fourteenth.
After the district court issued a temporary restraining
order, Chicago agreed not to enforce the Adjacent-Sidewalks
Ordinance while the district court considered Left Field’s
motion for a preliminary injunction. The 2015 season ran its
course, and just as the playoffs began the district court de-
clined to issue a preliminary injunction. 2015 U.S. Dist. LEXIS
135632 (N.D. Ill. Oct. 5, 2015). The 2016 season is underway,
and the Cubs are doing well on the field. Left Field hopes to
do as well on appeal.
The Adjacent-Sidewalks Ordinance provides:
No person shall peddle any merchandise on the sidewalk imme-
diately adjacent to Wrigley Field; such sidewalk consisting of the
north side of Addison Street, the east side of Clark Street, the
south side of Waveland Avenue, and the west side of Sheffield
Avenue. For purposes of this subsection (b), the term “sidewalk”
shall mean that portion of the public way extending from the pe-
rimeter of the Wrigley Field stadium structure to the street curb
or curb line.
No. 15-3233 3
A satellite picture of Wrigley Field and environs helps the
reader to understand the ordinance:
In this picture, Clark is on the west, Addison on the south,
Sheffield on the east, and Waveland on the north. As the pic-
ture shows, the park is surrounded by buildings (many of
them residential), and an elevated railway (the CTA’s Red
Line) is half a block to the east. The district court found (cita-
tions omitted):
[T]he area surrounding Wrigley Field indeed creates unique
problems for the City … . [Wrigley Field] has a “very small foot-
print” compared with other sports arenas; most stadiums have
about thirty acres of land to work with, as opposed to Wrigley
Field’s three acres. The area immediately surrounding the ball-
park is bustling, with a high density of retail establishments,
4 No. 15-3233
rooftop businesses, and residences. There are no vast swaths of
parking lots around Wrigley; the park is uniquely hemmed in,
and the flow of pedestrian traffic to the stadium is confined to
the public ways. The surrounding sidewalks around game times
are so congested that people often walk in the streets alongside
the sidewalks. Because of the stadium’s position, a certain por-
tion of the sidewalk on the north side of Addison between Clark
and Sheffield is extremely narrow; only about three people at a
time can pass in that section. The location of the CTA Addison
Red Line stop contributes to the congestion because it is so close
to the east side of the stadium. Alderman Tunney … testified
that in the three-year period before the Adjacent-Sidewalks Or-
dinance was enacted in 2006, he had received complaints about
peddlers and street performers blocking the entrances to the
ballpark and making it difficult to safely walk in the area.
2015 U.S. Dist. LEXIS 135632 at *23–25. Left Field wants to
take advantage of the narrow passages, so that people who
try to enter the stadium must pass someone selling Chicago
Baseball; the other side of the street is less crowded and so,
Left Field insists, less desirable as a place to sell magazines.
But the district court ruled that the throngs of people on nar-
row sidewalks justify the ordinance, even on the assumption
that it must satisfy the Supreme Court’s requirements for
time, place, and manner regulation.
The Adjacent-Sidewalks Ordinance does not regulate
speech. It regulates peddling, without regard to what the
peddler sells, and under United States v. O’Brien, 391 U.S. 367
(1968), and many later decisions, regulation of conduct may
proceed even if the person who wants to violate the legal
rule proposes to express an idea. See also, e.g., Heffron v. In-
ternational Society for Krishna Consciousness, Inc., 452 U.S. 640
(1981) (no constitutional leaflet exception to regulation of all
sales at a state fair); Clark v. Community for Creative Non-
Violence, 468 U.S. 288 (1984) (no constitutional expressive-
No. 15-3233 5
sleeping exception to rules banning camping in a public
park). The ordinance applies as much to sales of bobblehead
dolls and baseball jerseys as it does to the sale of printed
matter—and because it regulates all sales alike, it is also con-
tent-neutral within the meaning of Reed v. Gilbert, 135 S. Ct.
2218 (2015).
Left Field asks us to disregard O’Brien and similar deci-
sions in light of Weinberg v. Chicago, 310 F.3d 1029 (7th Cir.
2002), which held that cities sometimes must make excep-
tions to peddling-control ordinances in order to allow the
sale of printed matter near sports venues. It is hard to see
how a court of appeals can make exceptions to doctrine cre-
ated by the Supreme Court. But we need not consider
whether Weinberg should be reconsidered, as three members
of this court have concluded. See 320 F.3d 682 (7th Cir. 2003)
(dissenting from the denial of rehearing en banc). For Wein-
berg itself concluded only that there must be a publication
exception allowing the sale of printed matter at a good dis-
tance from an arena—the ordinance at issue in Weinberg
banned peddling within 1,000 feet of the United Center in
Chicago.
Weinberg observed that restricting peddling in a stadi-
um’s crowded immediate environs would be a different mat-
ter. 310 F.3d at 1040–41. That decision practically invited the
City to enact the sort of ordinance it did in 2006 for Wrigley
Field, and Weinberg therefore does not offer any support for
Left Field’s assertion of a printed-matter exception to the Ad-
jacent-Sidewalks Ordinance. Because the ordinance is neu-
tral with respect to speech (both the fact of speech and the
content of speech), the City need not bear any burden beyond
supplying a rational basis—and the need to curtail activity
6 No. 15-3233
that delays entry and induces crowds to spill into the streets
is more than enough.
Left Field maintains that the Adjacent-Sidewalks Ordi-
nance is invalid because the City has an exception for news-
papers. It points to Chicago Municipal Code 10-8-520, which
excepts newspapers from the requirement that peddlers be
licensed. (The Code forbids all peddling on the public ways
but includes exceptions for newspapers and licensed ped-
dlers.) Nothing in the language of §10-8-520 suggests that
newspapers may be sold where some other ordinance pro-
hibits all sales. Chicago’s brief assures us that sales of news-
papers on the streets immediately adjacent to Wrigley Field
are treated just like sales of magazines and baseball caps.
Left Field has not produced any evidence to the contrary.
There may be a problem, however, with a different kind
of discriminatory enforcement. According to Left Field, po-
lice permit the Cubs’ employees (and authorized vendors) to
sell game programs and logo-bearing merchandise outside
the ballpark. Chicago’s lawyer told us at oral argument that
this is proper, because the Cubs own two of the four adjacent
sidewalks and sell only on their own property. The record
does not show for certain just where the Cubs sell things (or,
indeed, whether they sell anything at all on the adjacent
sidewalks), and the district court did not make any findings
on the subject. We do not blame the judge for this; Left Field
did not press this point at the hearing on preliminary relief.
The Adjacent-Sidewalks Ordinance applies to all of the
adjacent sidewalks, without regard to ownership—as one
would expect if the goal is to reduce congestion and avoid
people spilling into the streets to get around obstructions. So
although we agree with the district court that Left Field has
No. 15-3233 7
not established an entitlement to a preliminary injunction, if
it can show at a hearing on a request for permanent relief
that the City favors the Cubs’ official vendors over the sellers
of other literature, then it will be entitled to some relief—if
not an injunction against the Adjacent-Sidewalks Ordinance,
then at least an injunction against discriminatory enforce-
ment of that ordinance.
Left Field challenged not only the Adjacent-Sidewalks
Ordinance but also Chicago Municipal Code 4-244-030,
which the parties call the Peddlers’-License Ordinance. It re-
quires licensure of anyone selling anything (with one excep-
tion), on streets anywhere in the City of Chicago. This means
that people selling Chicago Baseball across the street from
Wrigley Field, where they are free to operate, need a license.
The exception to the Peddlers’-License Ordinance is the sale
of newspapers. This is where §10-8-520 has an effect.
The exception for newspapers applied to the ordinance at
issue in Weinberg, and we held that it did not invalidate that
law. 310 F.3d at 1036. The district court relied on this part of
Weinberg to reject Left Field’s challenge to the Peddlers’-
License Ordinance. But governing law has changed since
Weinberg. After Reed v. Gilbert, supra, “[a]ny law distinguish-
ing one kind of speech from another by reference to its
meaning now requires a compelling justification.” Norton v.
Springfield, 806 F.3d 411, 412 (7th Cir. 2015). The Court in Gil-
bert wrote that “regulation of speech is content based if a law
applies to particular speech because of the topic discussed or
the idea or message expressed.” 135 S. Ct. at 2227 (emphasis
added). So a law that distinguishes discussion of baseball
from discussion of politics, by classifying one kind of publi-
cation as a magazine and another as a newspaper, is at risk
8 No. 15-3233
under the approach of Gilbert. We do not say that a newspa-
per exception necessarily makes the Peddlers’-License Ordi-
nance invalid; the Supreme Court has never dealt with the
question whether a law that classifies publications by fre-
quency independent of content is invalid just because differ-
ent kinds of content may lead to a different frequency of
publication. But the analysis of Gilbert reinforces the warning
in Lowe v. SEC, 472 U.S. 181 (1985), that newspaper excep-
tions to generally applicable laws create difficult constitu-
tional problems.
Quite aside from the newspaper exception, requiring a li-
cense for the distribution of literature is problematic under
the First Amendment. See Watchtower Bible & Tract Society of
New York, Inc. v. Stratton, 536 U.S. 150 (2002). Chicago ob-
serves that the literature being distributed in Watchtower Bi-
ble was given away rather than sold, which is true, and we
do not doubt that Chicago may apply general zoning and
business-licensing rules to bookstores and newspapers. See
Graff v. Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc). The ex-
ception for newspapers makes general licensure harder to
justify, however, and the Peddlers’-License Ordinance has
additional terms that may bear especially heavily on quarter-
ly magazines that sell for $2 on the street.
Although a bookstore or newspaper must have a general
business license and satisfy zoning requirements, the City
does not attempt to regulate who may be employed as a
sales clerk. But the Peddlers’-License Ordinance does regu-
late who may sell Chicago Baseball. Left Field cannot secure
20 licenses and distribute them to its sales team for a home
game. Instead each peddler must be licensed personally,
which places a damper on an organization that relies on cas-
No. 15-3233 9
ual or daily labor. (The Cubs play only 81 home games a
year during the regular season; selling Chicago Baseball dur-
ing an hour or two before each game is not remotely a full-
time job.) The $100 fee for a peddler’s license, even if it co-
vers no more than the City’s costs of administering the pro-
gram, is much higher per hour worked for a publication
such as Chicago Baseball than for a business with a full-time
staff—and it is a cost that newspapers (with the benefit of
§10-8-520) and bookstores (with the benefit of fixed loca-
tions) need not bear.
Chicago tells us that licensing individual peddlers is es-
sential because the police use the distinctive badges that
peddlers must wear to ensure that a given peddler is author-
ized to sell and remits sales taxes. Chicago also tells us that
the license helps control fraud in making pitches to custom-
ers. We don’t get it. A visible badge does not ensure that a
peddler pays taxes after finishing a day’s sales. More than
that, a peddler employed by an organization does not owe
taxes. Left Field, not the sales staff, is responsible for collect-
ing and remitting taxes. Nor do the police listen to the ped-
dlers’ pitches—and it is hard to see how one could identify
fraud in the sale of a magazine. Could the police arrest a
peddler for touting Chicago Baseball with the line “Step right
up and learn everything you need to know about the Cubs”?
If an employer such as Left Field could acquire its own
stock of badges (and the accompanying licenses) and dis-
tribute them to people who sell the magazine on a given day,
the City’s ends of identifying authorized sellers and collect-
ing taxes would be at least as well served as by a program of
individual licensing. And fraud, if any, could be attributed to
Left Field, which as the employer would be responsible un-
10 No. 15-3233
der tort law. (Corporate licensing would of course affect the
number of licenses issued, but we are taking Chicago at its
word that the $100 fee is designed to cover costs, not to raise
revenue.)
What the individual-licensing program does do is give
Chicago control over who can sell Chicago Baseball, depriving
the magazine of discretion that employers value. That would
not be a problem if a license could be had by supplying a
name and plunking down the fee. But that’s not enough to
get a peddler’s license in Chicago, according to testimony by
the supervisor of the City’s Department of Business Affairs
and Consumer Protection. Chicago will not issue licenses to
people who owe state or local taxes or parking tickets or wa-
ter bills. It will not issue licenses to people who are behind in
child-support payments. It will not issue licenses to appli-
cants who lack a residential address or a photo ID issued by
the state. These requirements may make it hard for Left Field
to hire the sort of casual, daily labor it needs to operate, for
people without steady jobs are more likely than others to
leave parking tickets and child-support unpaid or to lack a
fixed address. Cutting these people off from a source of in-
come may be counterproductive—that’s not a First Amend-
ment problem, of course, but it leaves us wondering just
what this ordinance is expected to accomplish that will justi-
fy its potential effect on fringe publications such as Chicago
Baseball. Yet at the same time as it cuts down the supply of
labor on which Chicago Baseball relies, the City of Chicago
undoubtedly has among its own employees hundreds of
persons who have unpaid parking tickets or are behind on
taxes or child support.
No. 15-3233 11
The Supreme Court held in Zablocki v. Redhail, 434 U.S.
374 (1978), that a state may not prohibit the marriage of per-
sons who owe child support. It is impossible to imagine that
the Court would countenance a rule limiting employment as
a newspaper reporter, or a clerk in a bookstore, to persons
who have paid all their parking tickets and other civil obli-
gations. Chicago maintains that the Peddlers’-License Ordi-
nance is different because it applies to all peddling, to pea-
nuts and Cracker Jack as well as periodicals. But the pesky
exception for newspapers means that this is not quite right,
and the weakness of the justification for regulating individu-
al peddlers (as opposed to requiring the employer to have a
supply of licenses and require all vendors to wear ID tags)
takes a further toll on this ordinance.
The district court did not discuss the person-specific na-
ture of the Peddlers’-License Ordinance, the fact that it may
bear especially heavily on publishers that require casual la-
bor, or the fact that it may disqualify many participants in
the casual-labor pool. These require attention at proceedings
on Left Field’s request for a permanent injunction. But de-
spite these omissions we cannot say that the district court
abused its discretion in declining to issue a preliminary in-
junction, because Left Field did not introduce evidence that
would tend to show how seriously the Peddlers’-License
Ordinance hobbles its business.
Indeed, we have some doubt whether the challenge to
the Peddlers’-License Ordinance is ripe for decision. Neither
Left Field nor any of its street sellers has ever applied for a
peddler’s license. Neither Left Field nor any of its street
sellers has ever received a ticket for selling Chicago Baseball
without a peddler’s license. Maybe the police have decided
12 No. 15-3233
to treat Chicago Baseball as a “newspaper” for the purpose of
the Peddlers’-License Ordinance, just as in Lowe the Supreme
Court held that a regularly published investment newsletter
is a “newspaper” for the purpose of 15 U.S.C. §80b–
2(a)(11)(D), which exempts newspapers from any need to
register as investment advisers.
If the police treat Chicago Baseball as a newspaper, then
this dispute does not need judicial resolution—indeed, Left
Field would not even have standing. See Spokeo, Inc. v. Rob-
ins, No. 13–1339 (U.S. May 16, 2016); Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334 (2014). Likewise if it turns out that
Chicago Baseball’s vendors can get peddler’s licenses without
hassles. Until the judiciary knows whether the Peddlers’-
License Ordinance applies to Left Field and crimps its busi-
ness model, constitutional adjudication is unwarranted.
The order denying Left Field’s motion for a preliminary
injunction is affirmed. The district court now can consider
any request for a new hearing and a permanent injunction.