Weinberg, Mark G. v. City of Chicago ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1372
MARK G. WEINBERG,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1139—Arlander Keys, Magistrate Judge.
____________
ARGUED SEPTEMBER 25, 2002—DECIDED NOVEMBER 20, 2002
____________
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant Mark Wein-
berg brought a suit challenging the constitutionality of
Chicago’s peddling law after being threatened with arrest
for violating the ordinance. Weinberg argued the law,
which prohibits peddling on public sidewalks in certain
areas of the city, is unconstitutional under the First
Amendment of the United States Constitution. Both par-
ties moved for summary judgment and the district court
granted summary judgment in favor of the City of Chi-
cago. Weinberg appeals, arguing the district court erred
in granting summary judgment and that the peddling
ordinance is unconstitutional. Finding that the ordinance
2 No. 02-1372
is not a proper time, place, and manner restriction and is
an impermissible prior restraint on free speech, we reverse
the district court’s decision.
BACKGROUND
Mark Weinberg wrote and published a book entitled
Career Misconduct: The Story of Bill Wirtz’s Greed, Corrup-
tion, and the Betrayal of Blackhawk Fans, which, as is
evident from the title, takes a highly critical look at Chi-
cago Blackhawks owner Bill Wirtz. Weinberg decided to
sell the book in what he determined to be an atmosphere
highly conducive to sales: the United Center, home of the
Chicago Blackhawks professional hockey team.
Mr. Weinberg is no stranger to selling his wares out-
side the United Center and its forerunner, the Chicago
Stadium. From 1991 through 1997 Weinberg published
and sold a magazine which, similar to Career Misconduct,
negatively portrayed Wirtz and his ownership tactics.
During this time Weinberg sold his magazine without
incident or interference from authorities.
Beginning in December 2000, Weinberg began selling his
criticisms of Wirtz in book format, charging $13.00 per
copy. For approximately two months, Weinberg sold the
book on the public sidewalks outside the United Center
undisturbed. But on the evening of February 14, 2001,
Chicago police officers informed Weinberg that he must
stop selling his book outside the United Center, explain-
ing that he was in violation of the City’s peddling ordi-
nance.
The section at issue, 4-244-147 of Chicago’s Municipal
Code (the “peddling ordinance”), provides as follows:
No person shall peddle merchandise of any type on
any portion of the public way within 1,000 feet of the
United Center. A person holding a valid peddlers’ li-
No. 02-1372 3
cense may peddle merchandise while on private prop-
erty within 1,000 feet of the United Center only from
a cart, table or temporary stand on private property
without obstructing the public way, and pursuant to
prior written permission from the property owner to
do so. The provisions of this section shall be in addi-
tion to any other limitation on or regulation of ped-
dlers. Any person who violates any provision of this
section shall be fined not less than $ 200.00 nor more
than $500.00 for each offense, and each day such
violation shall continue shall be deemed a separate
offense.
In addition, as part of the City’s peddling ordinance, a
separate provision, § 10-8-520, provides as follows:
No person, other than a licensed peddler, as by the
provisions of Chapter 4-244 of this Code shall sell, offer
or expose for sale, or solicit any person to purchase
any article or service whatsoever, except newspapers,
on any public way.
The Chicago City Council enacted the ordinance to allevi-
ate traffic congestion and maintain pedestrian safety
around the United Center. It also enacted similar restric-
tions around other large stadiums throughout Chicago.
Confronted with the threat of arrest, Weinberg ceased
selling the book on the public sidewalks outside the United
Center. Then Weinberg sought and obtained a temporary
restraining order which permitted him to resume book
sales outside the United Center and the parties agreed
to have the case transferred to a magistrate judge. Both
parties filed motions for summary judgment. The court
denied Weinberg’s motion but granted summary judg-
ment on all counts for the City, finding that the ordi-
nance did not violate the First Amendment. Weinberg
appealed, claiming the ordinance violates his free speech
rights. He bases his First Amendment attack on the Chi-
4 No. 02-1372
cago ordinance on a myriad of theories, contending the
law does not apply to book sellers, is not a reasonable
time, place, and manner restriction, is void for vagueness,
and violates the doctrine of prior restraint. Each of these
is addressed in turn.
ANALYSIS
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech, or of the press.”
U.S. Const. Amend. I. The Supreme Court recognized in
Gitlow v. New York, 268 U.S. 652, 666 (1925), that this
provision also applies to state governments under the
Fourteenth Amendment. That the appellant sells his
book for profit does not change the First Amendment
analysis. “It is well settled that a speaker’s rights are not
lost merely because compensation is received; a speaker
is no less a speaker because he or she is paid to speak.”
Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S.
781, 801 (1988). See also Ayres v. City of Chicago, 125 F.3d
1010, 1014 (7th Cir. 1997) (“there is no question that the
T-shirts are a medium of expression prima facie protected
by the free-speech clause of the First Amendment, and
they do not lose their protection by being sold rather
than given away.”). We review a summary judgment de-
termination as well as any questions of constitutional law
under the de novo standard of review.
Mr. Weinberg wishes to sell his book on the public side-
walks surrounding the United Center. Public sidewalks
come under the designation of a traditional public forum.
Frisby v. Schultz, 487 U.S. 474, 480 (1988). “[P]ublic streets
and sidewalks have been used for public assembly and
debate, the hallmarks of a traditional public forum.” Id. See
also Hague v. CIO, 307 U.S. 496, 515 (1939). When reg-
ulating First Amendment activity in a public forum the
government has a difficult burden to carry. Perry Educ.
No. 02-1372 5
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983). We have noted that “[g]iven their greater impor-
tance to the free flow of ideas, public fora receive greater
constitutional protection from speech restrictions.” Gross-
baum v. Indianapolis-Marion County Bldg. Auth., 100 F.3d
1287, 1297 (7th Cir. 1996). Through this lens we now con-
sider each of Weinberg’s claims.
I. Interpreting § 4-244-147
Weinberg first argues that the ordinance at issue is
inapplicable to First Amendment activity such as selling
a book. Inherent in this point of contention is Weinberg’s
claim that printed material such as books cannot be in-
cluded under the ordinance’s definition of “goods, wares
[and] merchandise.” We will construe the municipality’s
law under state law. Brownsburg Area Patrons Affecting
Change v. Baldwin, 137 F.3d 503, 507-08 (7th Cir. 1998).
Illinois law states that “[w]here clear and unambiguous,
statutory language must be enforced as enacted, and a
court may not depart from its plain language by reading
into it exceptions [or] limitations.” People ex rel. Devine v.
$30,700.00 United States Currency, 766 N.E.2d 1084, 1089
(Ill. 2002).
In making this argument, Weinberg fails to grasp that
the plain language of the ordinance unambiguously states
“no person shall peddle merchandise of any type on any
portion of the public way within 1,000 feet of the United
Center.” Chicago Municipal Code § 4-244-147.1 This lan-
guage could not be more clear as to what is prohibited.
1
Its newspaper exemption is equally clear and unambiguous: “No
person . . . shall sell, offer or expose for sale, or solicit any per-
son to purchase any article or service whatsoever, except news-
papers, on any public way.” Chicago Municipal Code § 10-8-520.
6 No. 02-1372
While its constitutionality is another matter, it certainly
covers appellant’s conduct. These words evidence a clear
intent by the Chicago City Council to prohibit the sale
of anything other than newspapers outside the United
Center. A book, like a newspaper, comes under the desig-
nation of a “good.”2 Merchandise is generally considered
as any tangible item held out for sale. There is little doubt
that the City intended to include books under the guise of
“goods, wares [and] merchandise.” Weinberg asks this Court
to depart from the ordinance and extend the newspaper
exemption to cover books. Applying Illinois law, we can-
not come to any conclusion other than that book selling
is prohibited while newspaper selling is not. Given these
considerations, we reject Weinberg’s argument that the
ordinance does not apply to someone selling a book.
Weinberg next claims that the ordinance’s exemption
for newspaper sellers renders the law unconstitutional. He
argues that the ordinance gives “special status” to news-
papers over books. In effect, the ordinance singles out the
sale of newspapers as being permitted while completely
banning the sale of books. That the law exempts news-
papers from restrictions but not books does not automati-
cally mean the restriction is content-based. Leathers v.
Medlock, 499 U.S. 439, 453 (1991), explains that differen-
tial treatment such as this is unconstitutional only if it
“is directed at, or presents the danger of suppressing,
particular ideas.” In the case at bar, the suppression of
particular ideas is not the consequence of enforcing this
ordinance. Allowing some forms of expression while deny-
ing others does not signify a violation of the First Amend-
ment. In United States v. Kokinda, 497 U.S. 720, 734
(1990), the Court noted that the activity of solicitation
could be singled out and prohibited because of the dis-
2
A good is defined as “portable personal property.” The American
Heritage Dictionary 567 (2nd ed. 1991).
No. 02-1372 7
ruption it caused. According to the Court, “[s]olicitation
requires action by those who would respond” whereas
leafleting does not require one to do anything other than
“mechanically . . . take it out of someone’s hand.” Id. The
City of Chicago has similar concerns regarding public
safety and traffic congestion around the United Center.
Selling goods or merchandise would create a greater dis-
ruption than selling a 50¢ newspaper. The City’s restric-
tion on selling goods, with the exception of newspapers,
is based on its concerns about the disruption and the ef-
fects on traffic congestion, not on suppressing ideas cap-
tured in book form.
In Heffron v. International Soc’y for Krishna Conscious-
ness, Inc., 452 U.S. 640 (1980), the Court considered the
constitutionality of a Minnesota statute which permitted
solicitation at a state fair, but restricted it to a fixed
area. The Court held the limitation was a permissible
restriction because it furthered the state interest of crowd
control at the fair. Similarly, the different treatment of
newspapers and books helps achieve the City’s goal of
limiting traffic congestion. A book purchase is usually
more expensive, more time consuming, and more absorb-
ing than a simple newspaper purchase. See Graff v. City
of Chicago, 9 F.3d 1309, 1320 (7th Cir. 1993). Differential
treatment between various forms of expression is per-
missible if it is done within the strictures of the First
Amendment. We will respect a government’s recognition
that different forms of First Amendment activities have
varying degrees of effects on its interests, as long as the
government is not attempting to suppress a certain mes-
sage or viewpoint. For these reasons, the ordinance’s news-
paper exemption does not render it unconstitutional.
II. Time, Place, and Manner
Weinberg next contends, citing Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989), that the peddling law
8 No. 02-1372
is not content-neutral, not narrowly tailored to serve a
significant government interest, and does not leave open
ample alternative channels. We now consider whether
the ordinance constitutes a reasonable time, place, and
manner restriction.
The City claims that the ordinance is a mere restric-
tion on the place in which one can sell goods. The City, of
course, has every right to maintain limitations on where
and when such activities may occur. However, these lim-
itations must be able to coexist with the First Amend-
ment. The restrictions must be justified without reference
to the content of the regulated speech, narrowly tailored
to serve a significant government interest, and leave
open ample alternative channels for communication. Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 293
(1984).
The first determination of the time, place, and manner
analysis is whether the law in question is content-neutral.
Ward, 491 U.S. at 791. Restrictions on speech are content-
neutral if they are “justified without reference to the
content of the regulated speech.” Renton v. Play Time
Theaters, Inc., 475 U.S. 41, 48 (1986). “The principal inquiry
in determining content neutrality, in speech cases gen-
erally and in time, place, or manner cases in particular,
is whether the government has adopted a regulation of
speech because of disagreement with the message it con-
veys.” Ward, 491 U.S. at 791.
Weinberg bases his contention that the ordinance is not
content-neutral on the argument that the ordinance per-
mits only “topical” speech while restricting all other types
of speech. Weinberg points to the admission by the City
that whether speech is considered “topical” is one of the
criterion for determining whether something qualifies as
a newspaper. Weinberg classifies his work as a “screed,”
which is quite different from the speech typically associated
No. 02-1372 9
with a newspaper. As a self-described screed, Career Mis-
conduct documents evidence of Wirtz’s alleged actions
and presents it in an in depth manner that is not compati-
ble with a newspaper format. Weinberg concludes that
because his speech does not fall under the auspice of
“topical” speech its prohibition is a content-based restric-
tion.
Weinberg’s argument on content neutrality fails for a
number of reasons, the most notable of which is that the
City did not adopt this regulation of speech “because of
disagreement with the message it conveys.” Ward, 491
U.S. at 791. Weinberg’s topical speech distinction ignores
the fundamental framework of the Ward test. The ped-
dling law makes no reference to the content of speech. It
simply maintains a general prohibition on the sale of
merchandise. As the City notes, the ordinance is wholly
indifferent to any specific message or viewpoint. These
regulations do not single out a certain message for differ-
ent treatment. Schultz v. City of Cumberland, 228 F.3d
831, 840 (7th Cir. 2000). The peddling ordinance does not
require one to consider the content of the speech, merely
its format. Since the City treats those selling any type of
book, regardless of its content, equally, we cannot agree
that the ordinance is content-based.
In enacting this ordinance, the City proposed to limit
congestion on the sidewalk. See Potts v. City of Lafayette,
121 F.3d 1106, 1111 (7th Cir. 1997). The purpose of the
legislation, enacted years before Weinberg wrote his book,
was not to silence Mr. Weinberg’s message. The content
of his message was of no interest to the City simply be-
cause he can still disseminate his message, albeit in a
different format. While this may raise questions of wheth-
er the ordinance is narrowly tailored or leaves open
ample alternatives, it does not raise concerns about the
content neutrality of the ordinance. In addition, the fact
that the ordinance adversely affects Weinberg while not
10 No. 02-1372
affecting a newspaper seller is of little persuasion be-
cause “[a] regulation that serves purposes unrelated to
the content of expression is deemed neutral, even if it has
an incidental effect on some speakers or messages but
not others.” Ward, 491 U.S. at 791. Since the relevant
inquiries regarding content neutrality have been satis-
fied, we find that the peddling ordinance is content-neutral.
We now must consider whether the Chicago ordinance
is narrowly tailored to achieve a significant governmen-
tal interest. There is no doubt the City has a legitimate
interest in protecting its citizens and ensuring that its
streets and sidewalks are safe for everyone. International
Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
683-85 (1992). Its interest in maintaining the flow of
pedestrian traffic is intertwined with the concern for pub-
lic safety. See Heffron v. International Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640, 650-51 (1981); Jacobsen
v. Petersen, 728 F. Supp. 1415, 1420 (C.D.S.D. 1990).
Weinberg never explicitly questions the legitimacy of
the state interest, likely because of the manifest weight
of case law against him. See, e.g., Madsen v. Women’s
Health Center, 512 U.S. 753, 768, (1994) (finding the
state “has a strong interest in ensuring the public safety
and order, in promoting the free flow of traffic on public
streets and sidewalks . . .”); Heffron v. International Soc’y
for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981)
(recognizing state interest in safety and convenience of
citizens using public fora); Ayres v. City of Chicago, 125
F.3d 1010, 1015 (7th Cir. 1997) (“There are unquestionable
benefits from regulating peddling, First Amendment or
otherwise, [including] the control of congestion.”). Instead,
he challenges the sufficiency of evidence the government
introduced justifying the necessity of the ordinance. In
the context of a First Amendment challenge under the
narrowly tailored test, the government has the burden of
showing that there is evidence supporting its proffered
No. 02-1372 11
justification. DiMa Corp. v. Town of Hallie, 185 F.3d 823,
829 (7th Cir. 1999).
The City contends that because there is heavy traffic
around the United Center, safety concerns justify the
ordinance. On its face, this contention is hard to dis-
pute. However, First Amendment rights demand more
than mere facial assertions. It is true that the govern-
ment may rely upon its own “real-world experience” in
enacting regulations, United States v. Kokinda, 497 U.S.
720, 735 (1990), but the City cannot blindly invoke safety
and congestion concerns without more.
Arguably, a government could cite safety concerns as
its sole reason for banning all peddling on all sidewalks
since a potential exists for crowding or congestion. The City
presented testimony from police officers and security
officials familiar with the United Center and its environs.
These officials testified that the peddling of merchandise
created congestion and that the enforcement of the ordi-
nance essentially eliminated the traffic problems. This
testimony conflicts with a videotape, shot at the request
of the district court, of Weinberg selling his book outside
the United Center. Both parties were present as the tap-
ing took place. The video shows no interference with any
pedestrian traffic nor any congestion along the sidewalk.
Moreover, the City fails to make a persuasive assessment
of the tape or its worth. Despite this highly relevant and
informative piece of evidence, the City wants to focus on
the scant testimony of two arguably self-serving witnesses.
Watseka v. Illinois Public Action Council, 796 F.2d 1547
(7th Cir. 1986), aff’d, 479 U.S. 1048 (1987), offers guidance
on the question of what constitutes sufficient evidence to
prove the government’s interest. In Watseka, we struck
down an ordinance restricting solicitation for, among
other reasons, lack of evidence supporting the city’s sub-
stantial interest. Finding that the city failed to offer, other
12 No. 02-1372
than testimony from the Mayor, any substantive evi-
dence that the ordinance prevented fraud, we noted “[s]uch
a conclusory assertion by an interested party, particularly
when unsupported by any statistics or firsthand knowl-
edge of any actual crimes, lends little if any support to [the
city’s] claim.” Id. at 1556. This language is applicable to
the situation before us.
The City of Chicago has provided no objective evi-
dence that traffic flow on the sidewalk or street is dis-
rupted when Mr. Weinberg sells his book. The City offered
no empirical studies, no police records, no reported in-
juries, nor evidence of any lawsuits filed. The City also
fails to explain why there were no disturbances or prob-
lems when Weinberg was selling his book during the
period prior to enforcement of the ordinance or after the
lower court granted the temporary restraining order.
Using a speech restrictive blanket with little or no factual
justification flies in the face of preserving one of our most
cherished rights. As Mr. Weinberg notes, the only evi-
dence the City offered was based on speculation as to
what might happen if booksellers could sell their books
and the cumulative effect this might have on pedestrian
traffic. This is problematic; “[w]e have never accepted mere
conjecture as adequate to carry a First Amendment bur-
den.” Nixon v. Shrink Missouri Government PAC, 528
U.S. 377, 392 (2000). In addition, there was no evidence
that other booksellers were present around the United
Center. As in Genusa v. Peoria, 619 F.2d 1203, 1213 (7th
Cir. 1980), nothing in the record supports the City’s con-
tention that Weinberg’s activity caused serious conges-
tion or disturbance. In fact, a thorough examination of
the record, and the video in particular, reveals not only
that there is little basis for the City’s concerns, but also
that the City’s concerns are not justified at all.
In addition to the problems noted above, the ordinance
contains other inconsistencies. The peddling ordinance
No. 02-1372 13
bans peddling, but leaves open activities such as leafleting,
newspaper sales, street performances, and charitable
solicitations. The City’s position is that these categories
of First Amendment activity somehow do not interfere
with traffic congestion and pedestrian safety but selling
a book has the potential to create chaos. Weinberg argues
that this haphazard approach of permitting other forms
of speech cannot advance the City’s interest in maintain-
ing traffic congestion. We agree. The recent Supreme
Court decision, Watchtower Bible & Tract Soc’y of N.Y., Inc.
v. Village of Stratton, 122 S. Ct. 2080 (2002), offers some
insight into this problem. Watchtower concerned a First
Amendment challenge to an ordinance requiring solicitors
to obtain a permit prior to engaging in door-to-door advo-
cacy. The Court recognized that the town had a substan-
tial interest in the prevention of fraud and crime. However,
the Court noted that it must consider “whether there is
an appropriate balance between the affected speech and
the governmental interests that the ordinance purports
to serve.” Id. at 2089. The Court determined that the
ordinance did not advance the town’s interest in combat-
ing fraud because criminals would be able to avoid the
permit requirements described in the statute. In finding
the ordinance violated the First Amendment, the Court
based its determination on the fact that the ordinance
is “not tailored to the Village’s stated interests.” Id. at 2090.
Similarly, the City of Chicago’s inconsistent approach
does not comport with its interests of maintaining traf-
fic congestion.
We do not find that the City has no substantial interest
in maintaining safety around the United Center. We do,
however, find that the City has not appropriately demon-
strated that Weinberg or any other peddler creates the
problems the City asserts they cause.
Having found that the City has failed to show the ordi-
nance advances a significant governmental interest, further
14 No. 02-1372
discussion of whether the ordinance is a reasonable time,
place, and manner restriction is not mandatory. However,
we believe the City’s failure to meet the other elements
of this test warrants our attention. Notwithstanding the
City’s inability to show that Weinberg, or any peddler for
that matter, posed a threat to the safety and free flow of
traffic surrounding the United Center, the peddling ordi-
nance is not narrowly tailored. A regulation is narrowly
tailored if it “promotes a substantial government interest
that would be achieved less effectively absent the regula-
tion.” Ward, 491 U.S. at 799. To satisfy the narrowly
tailored test, an ordinance need not be the least restrictive
method for achieving the government’s goal. Id. at 797.
Nevertheless, while a regulation does not have to be a
perfect fit for the government’s needs, it cannot substan-
tially burden more speech than necessary. Ward, 491 U.S.
at 800.
The lower court notes that the 1,000-foot ban encom-
passes a majority of the United Center’s parking lot. It
then finds that a restriction of this magnitude is jus-
tified because the ordinance bans peddling “in the area
with the heaviest concentration of pedestrians and auto-
mobiles.” Weinberg v. City of Chicago, 179 F. Supp. 2d 869,
878 (2002). What the district court failed to consider,
however, is the effect such a large restriction has on ped-
dlers. The 1,000-foot restriction overcompensates for an
alleged congestion problem on the sidewalks around the
United Center. The concerns behind the enactment and
enforcement of the ordinance were to alleviate sidewalk
congestion and prevent pedestrian traffic from spilling into
the streets. While laudable goals, we cannot see how this
can justify a restriction which prevents a peddler from
selling his wares in large parking lots, less congested
walkways, or sidewalks in less proximity to the United
Center.
No. 02-1372 15
It appears that the City takes what amounts to be an all-
or-nothing approach with peddlers. It avoids finding any
kind of middle ground, such as a ban of less distance, a
ban on peddling on certain narrow walkways, or a ban on
peddling on the sidewalks immediately surrounding the
United Center. Restrictions such as these would be less
encompassing and less intrusive on First Amendment
rights. A 1,000-foot ban is too great of a restriction; it
effectively eliminates any opportunity for Mr. Weinberg
to sell his book to patrons of the United Center. Mr. Wein-
berg notes that a 1,000-foot restriction eliminates “any
meaningful avenue of distribution” of goods because most
parking lots at the United Center are within a 1,000-foot
radius of the building. The City’s one-size-fits-all approach
to restricting peddling cannot be reconciled with our First
Amendment rights. Cox v. Louisiana, 379 U.S. 559 (1965).
Given these concerns, we conclude that the ordinance
burdens substantially more speech than is necessary.
Because the City bans peddling even in areas where con-
gestion would not be a hazard, we cannot say the City
applied a sufficiently narrow law necessary to promote
its legitimate interest.
The last inquiry in determining whether the City’s
ordinance is a reasonable time, place, and manner re-
striction is whether the law leaves open ample alternative
channels. An adequate alternative does not have to be
the speaker’s first choice. Heffron, 452 U.S. at 647;
Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000).
However, an alternative is not adequate if it “foreclose[s] a
speaker’s ability to reach one audience even if it allows
the speaker to reach other groups.” Gresham, 225 F.3d
at 907. See also Bery v. City of New York, 97 F.3d 689, 698
(2d Cir. 1996) (holding that a total ban on sidewalk art
does not leave open alternative means of communication
because alternative display in galleries or museums would
not reach the same audience).
16 No. 02-1372
In applying this test, we also consider the alternative
channels of communication themselves. The mere exis-
tence of an alternative method of communication cannot
be the end of the analysis. We must also give adequate
consideration to whether the alternatives are ample.
Whether an alternative is ample should be considered
from the speaker’s point of view. The City argues and the
district court agreed that alternative channels of commu-
nication exist for Weinberg to disseminate his message.
Weinberg, 179 F. Supp. 2d at 879. The district court noted
that Weinberg can sell his book via the Internet, through
bookstores, or in other areas of the city.3 The City also
points out that Weinberg still has the ability to disseminate
his negative opinions of Mr. Wirtz outside the United
Center. However, the simple fact that Weinberg is per-
mitted to communicate his message elsewhere does not
end our analysis if the intended message is rendered
useless or is seriously burdened. See, e.g., City of Ladue v.
Gilleo, 512 U.S. 43, 56-57 (1994) (alternatives to posting
signs on residential property such as posting signs on
commercial property are inadequate because residents
may wish to reach neighbors); Bay Area Peace Navy v.
United States, 914 F.2d 1224, 1229 (9th Cir. 1990) (seventy-
five yard security zone prevented anti-war protestors’
demonstration from reaching the intended audience, mil-
3
The City adds additional alternatives in its brief, which in-
clude breaking up the book by chapter and selling it in news-
paper fashion or handing his book out at no cost. The City relies
upon Friends of the Vietnam Veterans Memorial v. Kennedy, 116
F.3d 495, 497 (D.C. Cir. 1997) and One World One Family Now
v. City & County of Honolulu, 76 F.3d 1009, 1014-15 (9th Cir.
1996) as support for the alternative of giving the book away.
However, as in Ayres, the magnitude of the no-peddling zone
eliminates the possibility that Weinberg could sell his book in
proximity to the prohibited area, making reliance on these cases
suspect. Ayres, supra, 125 F.3d at 1016.
No. 02-1372 17
itary leaders); Students Against Apartheid Coalition v.
O’Neil, 660 F. Supp. 333, 339-40 (W.D. Va. 1987) (school
regulation prohibiting protest shanties on lawn of build-
ing where Board of Visitors meets is not rendered valid
by permission to erect shanties in other places not visible
to members of Board, who were the intended audience);
Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chi-
cago, 419 F. Supp. 667, 674 (N.D. Ill. 1976) (permitting
a parade route through black neighborhood not a suffi-
cient alternative to a route through white neighborhood
when white people were the intended audience).
As the Supreme Court has stated, “[t]he First Amend-
ment mandates that we presume that speakers, not the
government, know best both what they want to say and
how to say it.” Riley v. National Fed’n of the Blind of N.C.,
Inc., 487 U.S. 781, 790-91 (1988). Mr. Weinberg is attempt-
ing to disseminate a message critical of the owner of the
Chicago Blackhawks, Bill Wirtz. He has chosen to express
his message in a self-authored book, for which he charges
$13.00 a copy. His intended audience is Chicago Black-
hawks fans. The most opportune time and place to reach
this audience is outside the United Center, before and
after Blackhawks home games. In evaluating First Amend-
ment cases, we cannot check common sense at the door.
As Weinberg notes, Blackhawk fans are a fundamentally
different market than the market for bookstore readers
or Internet users. The United Center is a unique location
for the sale of Weinberg’s book, especially since the tar-
get market for his book is Blackhawk fans.
In Bay Area Peace Navy v. United States, 914 F.2d 1224,
1229 (9th Cir. 1990), the Ninth Circuit held that “an al-
ternative is not ample if the speaker is not permitted
to reach the intended audience.” Weinberg is unable to
sell his book to Blackhawks fans entering the United
Center. The ordinance prevents him from reaching his in-
tended book purchasing audience. The alternatives require
18 No. 02-1372
Herculean efforts by Weinberg or his customers to com-
plete the sale.4 Thus, in light of Weinberg’s customer
base and his unique marketplace, we cannot say the alter-
natives are ample, precisely because his “ability to com-
municate effectively is threatened.” City Council v. Taxpay-
ers for Vincent, 466 U.S. 789, 812 (1984).
We recognize that “an adequate alternative does not
have to be the speaker’s first or best choice, or one that
provides the same audience or impact for the speech.”
Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000).
However, the City’s onerous and inconsistent approach to
First Amendment activity coupled with the substan-
tially detrimental effects on Mr. Weinberg’s free speech
rights suggest to this Court that the ordinance does not
provide ample alternatives.
The City does not support its bare assertion that a
peddler within 1,000 feet of the United Center causes
congestion problems. The ordinance is also not narrowly
tailored and does not provide for ample alternatives. For
these reasons, we find the peddling ordinance is not a
reasonable time, place, and manner restriction.
III. Vagueness
Weinberg also claims that the peddling ordinance is
unconstitutionally vague. He contends the ordinance is
vague because it fails to define “newspaper.” According to
Weinberg, this failure to offer a clear definition of the term
“newspaper” vests city officials with excessive discretion
as to what they consider protected speech.
4
For example, the City suggests that Weinberg could distribute
fliers advertising the sale of his book and include locations outside
the 1000-foot radius of the United Center where the book may be
purchased.
No. 02-1372 19
A law which “vests virtually complete discretion in the
hands of the police fails to provide the minimal guidelines
required for due process.” Gresham, 225 F.3d 899 at 907
(internal quotes omitted). A law must have a “reasonable
degree of clarity” such that anyone of ordinary intelli-
gence can grasp its import. Roberts v. United States Jaycees,
468 U.S. 609, 629 (1984). “When a word is not defined
by statute, we normally construe it in accord with its
ordinary or natural meaning.” Smith v. United States, 508
U.S. 223, 228 (1993).
Weinberg never advances the notion that Career Mis-
conduct is something other than a book. It clearly is not
a newspaper. The term “newspaper” is a common word
which leaves little doubt as to what it encompasses. In
terms of its format, a newspaper shares none of the at-
tributes of a book. A book is bound together by a cover
while a newspaper is not. A newspaper is also generally
published at regular intervals, larger in size, produced
from inexpensive materials, and sold at a lower price. A
legislature does not have to define every word in its legis-
lation in order for it to satisfy a void for vagueness chal-
lenge. Gardner v. Brown, 5 F.3d 1456, 1459 (Fed. Cir.
1993), aff’d, 513 U.S. 115 (1994). The word “newspaper” has
a readily ascertainable meaning which is simple and
straightforward. See Newsom v. Friedman, 76 F.3d 813,
817 (7th Cir. 1996). For these reasons, we believe some-
one of common intelligence can discern the meaning of
the word newspaper and therefore reject Weinberg’s void
for vagueness claim.
IV. Prior Restraint
Finally, Weinberg argues that the licensing procedures
under the peddling ordinance give the City unfettered
discretion in violation of the law of prior restraint. Before
we can consider the substantive issue, we must first re-
20 No. 02-1372
solve the question of whether Weinberg has standing to
challenge this provision of the law. The provisions of the
ordinance relevant to the prior restraint challenge are as
follows:
Section 10-8-520 provides:
No person, other than a licensed peddler, as by the
provisions of Chapter 4-244 of this Code shall sell,
offer or expose for sale, or solicit any person to
purchase any article or service whatsoever, except
newspapers, on any public way.
Section 4-244-040 provides:
Every individual who desires a license as a peddler
shall make application therefor in conformity with
the general requirements of this Code relating to
application for licenses, and shall state the class of
license sought. Such application shall also state in
what commodity or article of merchandise such
peddler desires or intends to deal.
Section 4-244-060 provides:
The annual fee for peddlers’ licenses shall be as set
forth in Section 4-5-010.
The City contends that Weinberg has no standing to
challenge the licensing scheme because he wishes to sell
his book in an area where a license still would not per-
mit him to sell his book. It argues that since the ordinance
bans all peddling, without regard to licenses, Weinberg
has suffered no injury because of the licensing require-
ment and that a decision invalidating this provision of
the ordinance would not affect Weinberg. The City at-
tempts to place hurdles in Weinberg’s path where none
exist. A challenge of this nature does not involve the
conventional standing requirements. “In the area of free-
dom of expression it is well established that one has
standing to challenge a statute on the ground that it
No. 02-1372 21
delegates overly broad licensing discretion to an adminis-
trative office, whether or not his conduct could be pro-
scribed by a properly drawn statute, and whether or not
he applied for a license.” Lakewood v. Plain Dealer Publish-
ing Co., 486 U.S. 750, 756 (1988) quoting Freedman v.
Maryland, 380 U.S. 51, 56 (1965). In addition, the licens-
ing scheme is intertwined with the 1,000-foot peddling
ban. In striking down the 1,000-foot restriction, Weinberg
still must apply for a license to peddle and face what he
believes to be a procedure which vests unbridled discre-
tion in city officials. As the district court noted, Weinberg
did not have to subject himself to the requirements pre-
scribed in the ordinance since it vested unbridled discre-
tion with the city official. Weinberg, 179 F. Supp. 2d at 881,
citing Lakewood, 486 U.S. at 755-56. Weinberg has stand-
ing because he will “suffer the vagaries of discretion”
implicit in the licensing procedure. Stokes v. Madison, 930
F.2d 1163, 1168 (7th Cir. 1991). Having determined that
Weinberg has standing to challenge this provision of the
ordinance, we now will consider whether he has done so
in a proper fashion.
Weinberg never made an attempt to apply for a permit.
However, facial challenges are permitted where a licens-
ing scheme vests discretion in the decision maker. FW/
PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (1990). We
permit these challenges because such schemes enable
officials to self-censor protected expression. Lakewood, 486
U.S. at 759.
In Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750,
755-56 (1988), the Court set forth the test to determine
when a First Amendment facial challenge may be made
to a licensing scheme. First, the law must confer the gov-
ernment with “substantial power to discriminate based
on the content or viewpoint of speech by suppressing
disfavored speech or disliked speakers.” Lakewood, 486
U.S. at 759. The law must also have a “close enough nexus
22 No. 02-1372
to expression, or to conduct commonly associated with
expression, to pose a real and substantial threat of the
identified censorship risks.” Id.
The district court correctly found the ordinance vests
“unfettered discretion” in city officials to issue peddling
licenses and that they are devoid of criteria to guide
officials. One need only glance at the licensing require-
ment provision of the ordinance and realize that there
is absolutely nothing to guide city officials in determin-
ing whether to grant a permit. The Supreme Court has
noted that “a law subjecting the exercise of First Amend-
ment freedoms to the prior restraint of a license, without
narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional.” Shuttlesworth v.
Birmingham, 394 U.S. 147, 150-51 (1969).
The noted absence of any criteria is in stark contrast
to the ordinance we faced in Graff v. City of Chicago, 9 F.3d
1309 (7th Cir. 1993). In Graff, the commissioner of trans-
portation had to consider six set criteria before deciding
whether to grant permission to build a newsstand. Id. at
1317-18. We noted that the factors gave specific guidance
to the commissioner and limited his discretion. The li-
censing ordinance before us offers officials no guidance
or criteria in making the license determination. We there-
fore affirm the lower court’s ruling that the ordinance
fails to set any standards for the City to use and thus
vests the City with an impermissible degree of discretion.
Having determined the first element of the Lakewood
test, we now must consider whether the ordinance has
a “close enough nexus to expression or to conduct commonly
associated with expression.” Lakewood, 486 U.S. at 759.
Weinberg maintains that the lower court erred when it
did not find the ordinance had a close nexus to freedom
of expression. “In determining whether expressive conduct
is at issue . . . [we look] to whether the activity in ques-
No. 02-1372 23
tion is commonly associated with expression.” Lakewood,
486 U.S. at 769. We believe that the sale of a book is
associated with expression. Weinberg took great pains to
stress that his mission was not to profit from the book, but
to disseminate his social protest of the Blackhawks owner,
Bill Wirtz. Career Misconduct is the vehicle for that mes-
sage. Mr. Weinberg does not peddle Blackhawks shirts,
hockey merchandise, or even other books. He sells a sin-
gle book with a single message exposing Mr. Wirtz’s
supposedly corrupt business and political dealings. The
sale of a book is a form of expression. In Lakewood, the
Supreme Court found that the circulation of newspapers
constituted conduct commonly associated with expression.
486 U.S. at 760. In Graff, a plurality of judges found that
the maintenance of a newspaper stand qualifies as con-
duct commonly associated with expression. “A newsstand
is an instrument for the dissemination of expressive ma-
terials, and as such it falls within that special category
of activities whose regulation implicates First Amend-
ment values.” Graff, 9 F.3d at 1328 (Flaum, J., concurring).
These cases suggest that the written word, or anything
closely associated with it, constitutes expression. That
Weinberg places his message in book format cannot alter
the outcome. If circulating newspapers or building a
newspaper stand is associated with expression, selling a
self-authored book with a political message constitutes
expression. See also Stokes v. Madison, 930 F.2d 1163,
1168-69 (7th Cir. 1991). The sale of Weinberg’s book is
intertwined with his message. See Graff, 9 F.3d at 1337
(Cummings, J., dissenting) (“distribution is an inseparable
part of expression.”). Weinberg’s speech is related to the
book and to the sale of such a book. Prohibiting Weinberg
from selling his book prevents the message of Career Mis-
conduct from being disseminated.
The licensing ordinance targets First Amendment activ-
ities. Selling a book that has the purpose of expressing a
24 No. 02-1372
message is an activity which can be restricted through the
licensing scheme. We cannot agree with the lower court’s
summation that the licensing ordinance presents “too
blunt a censorship instrument to warrant judicial inter-
vention prior to an allegation of actual misuse.” Weinberg,
179 F. Supp. 2d at 884. The licensing ordinance vests
complete control in city officials with no criteria or guid-
ance. We cannot agree that such an ordinance is too
blunt, but rather find it to be the sharpest censorship tool
possible. We also cannot agree with the lower court’s ruling
that the ordinance impacts First Amendment expression
“incidentally.” Given the considerations of this case, we
find that the licensing ordinance affects people like Mr.
Weinberg in more than a mere incidental fashion. The
peddling ordinances directly and substantially impact
First Amendment activity. The licensing procedure gives
the City the ability to ban messages or products simply
because of its disfavored status. We believe the licensing
provision of the ordinance implicates speech and there-
fore creates the risk of censoring speech based upon who
is applying for a license, and also find the ordinance has
a close enough nexus to expression to justify a facial
challenge.
Having determined that Weinberg may facially chal-
lenge Chicago’s licensing procedure, we turn now to the
merits. A prior restraint exists when a law gives “public
officials the power to deny use of a forum in advance of
actual expression.” Southeastern Promotions, Ltd. v. Con-
rad, 420 U.S. 546, 553 (1975). Prior restraints are not per
se unconstitutional, however, prior restraints are highly
disfavored and presumed invalid. New York Times Co. v.
United States, 403 U.S. 713,714 (1971). There are two
forms of prior restraint. The first is a procedure that
places “unbridled discretion in the hands of a govern-
ment official” and might result in censorship. FW/PBS,
493 U.S. at 225. The second is a licensing procedure that
No. 02-1372 25
fails to place time limits within which a decision maker
must issue the license. Id. at 226. We find the first form
of prior restraint is applicable to the City’s licensing
scheme.
The City can deny a person’s right to sell merchandise
by denying a license to peddle, therefore, the licensing
scheme is a prior restraint on expression. See Ward, 491
U.S. at 795 n.5. The licensing scheme enacted by Chicago
places unbridled discretion in the hands of city officials
which may result in censorship. See FW/PBS, 495 U.S. at
225-26. The City contends that the licensing procedure is
a mere formality in which officials simply determine
whether the applicant has conformed to applicable pro-
visions in the ordinance. However, the lack of specificity
in the procedure and the amount of discretion vested in
the official lends itself to manipulation by the City. We
cannot presume that officials will act in good faith and
follow standards not explicitly contained in the ordinance.
Lakewood, 486 U.S. at 770. There is no language in this
procedure which curtails the discretion of City officials
in granting a license. The City, via § 4-244-040, has the
discretion to deny peddling permits. The licensing provi-
sion does not sufficiently curtail the discretion of City
officials in granting licenses to peddle and thus violates
the law of prior restraint.
CONCLUSION
For the reasons discussed above we find the Chicago
peddling ordinance unconstitutional because it is not a
valid time, place, and manner restriction and because
the licensing procedure violates the law of prior restraint.
We reverse the decision of the district court and remand
for the entry of an order not inconsistent with this opinion.
REVERSED AND REMANDED.
26 No. 02-1372
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-20-02