Buddy Bell v. James Keating , 697 F.3d 445 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2408
B UDDY B ELL,
Plaintiff-Appellant,
v.
C HICAGO P OLICE D EPUTY C HIEF JAMES K EATING,
C HICAGO P OLICE O FFICERS C ARLOS M OTA,
P ATRICK M URRAY, AND THE C ITY OF C HICAGO,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CV 754—John W. Darrah, Judge.
A RGUED JUNE 1, 2012—D ECIDED S EPTEMBER 10, 2012
Before F LAUM, R OVNER, and W ILLIAMS, Circuit Judges.
F LAUM, Circuit Judge. A Chicago ordinance criminalizes
an individual’s refusal to leave a scene when so
instructed by a police officer when three or more indi-
viduals are engaging in disorderly conduct nearby.
Buddy Bell was arrested under that ordinance, the en-
forcement of which he presently seeks to enjoin as
2 No. 11-2408
facially violative of the First and Fourteenth Amendments.
The district court dismissed his claims, ruling that
he lacked standing to sue for injunctive relief.
We hold that Buddy Bell may sue to enjoin the
ordinance as facially unconstitutional. We also conclude
that Chicago Municipal Code § 8-4-010(d) (hereinafter
“Subsection D”) substantially inhibits protected speech
and is not amenable to clear and uniform enforcement.
We partially invalidate the ordinance and reverse.
I. Background
On January 7, 2008, Buddy Bell participated in a
protest against Operation Iraqi Freedom on the corner of
Dearborn Street and Jackson Boulevard in downtown
Chicago. He, along with other protesters, held a banner
that said, “End the war and occupation TROOPS HOME
NOW.” At the time, President Bush was at a luncheon
at the nearby Union League Club.
One protester, Andy Thayer, entered the street carrying
a large banner and, according to Chicago police,
advanced on the Deputy Chief who was monitoring the
area on a Segway. Thayer was arrested, handcuffed, and
placed in a squadrol. Bell and two other protesters, their
own banner in hand, began approaching the squadrol,
also walking into the street. The police ordered the
three men to get back on the sidewalk several times.
They refused and began chanting, “Hell no, we won’t
go. Set him free.” Chicago police again ordered Bell
and the other protesters to get back on the sidewalk.
They refused, and the police arrested them for disorderly
No. 11-2408 3
conduct. In particular, police arrested Bell pursuant
to Subsection D, which criminalizes an individual’s
behavior when he “knowingly . . . [f]ails to obey a lawful
order of dispersal by a person known by him to be a
peace officer under circumstances where three or more
persons are committing acts of disorderly conduct in
the immediate vicinity, which acts are likely to cause
substantial harm or serious inconvenience, annoyance
or alarm.” Chicago Municipal Code § 8-4-010(d).
A state court acquitted Bell of violating Subsection D.
Subsequently, Bell sued various members of Chicago
law enforcement and the City of Chicago in federal
court for violating his First, Fourth, and Fourteenth
Amendment rights, as well as for malicious prosecu-
tion and indemnification. See 42 U.S.C. § 1983. He ulti-
mately dropped all but his indemnification claim
against the City of Chicago. He presented his Fourth
Amendment claims of false arrest and his malicious
prosecution claim to a jury, which found in favor of
the defendants. The jury returned three special verdicts.
It found (1) that Chicago police had probable cause to
arrest Bell for disorderly conduct under an ordinance of
the City of Chicago; (2) that Chicago police lacked
probable cause to arrest Bell for disorderly conduct
under Illinois law; and (3) that Chicago police lacked
probable cause to arrest Bell for obstructing a peace
officer under Illinois law.1
1
In relevant part, the district court instructed the jury that
“[t]here is probable cause for an arrest if at the moment the
(continued...)
4 No. 11-2408
Bell’s claims that Subsection D facially contravened
the First and Fourteenth Amendments remained before
the district court. He alleged unconstitutional over-
breadth and vagueness, respectively. Bell moved for
declaratory relief and a permanent injunction barring
enforcement of Subsection D, which the district court
denied. The district court then dismissed Bell’s First
and Fourteenth Amendment challenges to Subsection D,
ruling that Bell lacked standing to apply for injunctive
relief because he did not demonstrate a likelihood of
future or repeat injury. Bell presently and timely
appeals the judgment of the district court.
1
(...continued)
arrest was made a prudent person would have believed that
the plaintiff, Buddy Bell, had committed or was committing[] a
crime. . . . [U]nder an ordinance of the City of Chicago a person
commits disorderly conduct when he knowingly fails to obey
a lawful order of dispersal by a person known to him to be a
peace officer under circumstances where three or more
persons are committing acts of disorderly conduct in the
immediate vicinity, which acts are likely to cause substantial
harm or serious inconvenience, annoyance or alarm. Under
Illinois law a person commits disorderly conduct when he
knowingly does any act in such an unreasonable manner as
to alarm or disturb another and provoke a breach of the
peace. Under Illinois law a person who knowingly obstructs
the performance of one known to be a peace officer of any
authorized act within his official capacity commits a Class A
misdemeanor.”
No. 11-2408 5
II. Discussion
We review a party’s standing to pursue injunctive
relief de novo, see ACLU of Ill. v. Alvarez, No. 11-1286, 2012
WL 1592618, at *5 (7th Cir. May 8, 2012), as we do chal-
lenges to a statute’s constitutionality, see United States
v. Juarez, 454 F.3d 717, 719 (7th Cir. 2006).
A. The District Court’s Findings on Bell’s Standing
An Article III court enjoys jurisdiction over a case
only if the plaintiff demonstrates that he suffered an
injury in fact, the defendant’s actions caused the injury,
and the remedy he seeks would redress his injury. See
Allen v. Wright, 468 U.S. 737, 751 (1984); see also Alvarez,
2012 WL 1592618, at *5. When the plaintiff applies for
prospective relief against a harm not yet suffered—or one
he believes he will suffer again—he must establish that
he “is immediately in danger of sustaining some direct
injury as the result of the challenged official conduct[,]
and [that] the injury or threat of injury [is] both real and
immediate, not conjectural or hypothetical.” City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation
marks omitted). Otherwise, he fails to allege an actual
case or controversy before the court. See U.S. C ONST.
art. III, § 2, cl. 1.
As a general matter, a plaintiff who wishes to engage
in conduct arguably protected by the Constitution, but
proscribed by a statute, successfully demonstrates an
immediate risk of injury. See Alvarez, 2012 WL 1592618,
at *5. The existence of the statute constitutes the gov-
6 No. 11-2408
ernment’s commitment to prosecute in accordance with
it and, thus, a concrete prospect of future harm for one
who would flout it. Id. (citing Bauer v. Shepard, 620 F.3d
704, 708 (7th Cir. 2010); Majors v. Abell, 317 F.3d 719, 721
(7th Cir. 2003)). Accordingly, when a plaintiff expresses
a credible intention to disobey a statute, a sufficient
likelihood of injury exists, and a pre-enforcement chal-
lenge is appropriate. See Alvarez, 2012 WL 1592618, at *5
(citing Brandt v. Vill. of Winnetka, Ill., 612 F.3d 647, 649
(7th Cir. 2010); Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979)). He need not wait to be
arrested to bring suit for injunctive relief.
We distinguish claims where a statute criminalizes
the plaintiff’s conduct or desired conduct from those
where the plaintiff seeks relief from the defendant’s
criminal or unconstitutional behavior. For the latter type
of claim, the putative injury typically proves too
remote or attenuated to sustain our jurisdiction under
Article III. See Lyons, 461 U.S. at 105-06 (finding no
standing to sue for injunctive relief where the plaintiff
suffered an unconstitutional chokehold during a traffic
stop, feared that he would endure a chokehold again,
but did not allege that every police officer in Los Angeles
always applied chokeholds or that the City itself ordered
chokeholds as protocol); O’Shea v. Littleton, 414 U.S.
488, 494-99 (1974) (finding no standing to sue for
injunctive relief where plaintiffs alleged discriminatory
law enforcement and inferred future harm based
on a pattern of past violative conduct, not the likely en-
forcement of a statute). The same logic obtains when
a statute was or would have to be misapplied to justify
No. 11-2408 7
the plaintiff’s arrest. In Schirmer v. Nagode, for example,
protesters who opposed military recruitment organized
to hand out flyers near a recruiting booth at the Taste
of Chicago. 621 F.3d 581, 583 (7th Cir. 2010). When
the protesters ignored the police’s request to move to a
designated protest zone and a later request to disperse,
they were arrested pursuant to Subsection D. Id. The
charges were ultimately dismissed, and the plaintiffs
sued under Section 1983. We held that the plaintiffs
lacked standing to facially challenge Subsection D or
pursue injunctive relief because the law “c[ould not]
fairly be read to prohibit peaceful protests of the sort [in
which they were engaged]” and concluded that the
police’s “clear misuse of a law d[id] not provide a basis
for a federal court to explore that law’s facial constitu-
tionality.” Id. at 587-88. That is, we concluded that, what-
ever injury the plaintiffs suffered by virtue of their
arrests pursuant to Subsection D and whatever damages
to which they were entitled, id. at 583, a facial
challenge and injunctive relief were inappropriate
because the statute itself did not portend arrest and
prosecution for peaceful protests. Id. at 588 (“These plain-
tiffs’ experience appears, on this record, to be the result
of an isolated misuse of the failure-to-disperse provi-
sion and indicates that they are not reasonably likely
to face a future prosecution if section 8-4-010(d) is
enforced according to its terms.”).
In this case, the district court, applying Schirmer, denied
Bell standing, finding that the circumstances of his
arrest were indistinguishable from those in Schirmer
and that he “ha[d] not demonstrated more than a wholly
8 No. 11-2408
speculative possibility of criminal consequences.” We
conclude, contrary to the district court’s assessment,
that the circumstances prompting Bell’s arrest differ
from those in Schirmer. The protesters in this case were
not calmly holding a sign or distributing leaflets. They
were shouting at police and advancing on a police vehi-
cle. Regardless of the degree to which Bell participated in
those activities, at least three other people did so, and he
did not move as directed by a police officer. The facts of his
case situate him squarely within Subsection D’s scope,
giving police probable cause to arrest him. Thus, unlike in
Schirmer, law enforcement did not misapply the statute to
arrest and prosecute him; Schirmer’s misapplication
analysis cannot operate to reduce Bell’s alleged fear of
arrest to speculation or to deny him standing to seek
injunctive relief or facially challenge the law.
B. Bell Successfully Establishes Injury and Has
Standing to Facially Challenge Subsection D
as Overly Broad and Vague
Bell argues that Subsection D is constitutionally infirm
because it is vague and overbroad, both of which, if true,
are facial failings. The defendants insist, however, that
despite the fact that Subsection D was not misapplied
against Bell, he lacks standing to sue for injunctive
relief and, by implication, to facially challenge the ordi-
nance because he cannot demonstrate a concrete injury
unless he intends to participate in a protest where three
or more persons in his immediate vicinity are commit-
ting acts of disorderly conduct—behaving in such an
No. 11-2408 9
unreasonable manner as to provoke, make or aid in
making a breach of the peace, see Chicago Municipal
Code § 8-4-010(a) (defining “disorderly conduct”). They
contend that his involvement in political protests,
without more, is not proscribed by Subsection D, and
his hope to participate in the future does not insure
his arrest as necessary to confer standing for injunctive
relief.
1. Overbreadth: Standing to Bring His First Amend-
ment Claim
Facial invalidation typically requires that “no set of
circumstances exists under which the [law] would be
valid,” United States v. Salerno, 481 U.S. 739, 745 (1987), so
the remedy “must be injunctive and declaratory,” Ezell v.
City of Chicago, 651 F.3d 684, 698 (7th Cir. 2011) (emphasis
in original). Though it also demands injunctive and
declaratory relief if successful, an overbreadth claim
is unique from traditional facial challenges in that it
does not require a plaintiff to plead or prove that the
law is unconstitutional in every application. See Ezell,
651 F.3d at 698 n.8 (“Overbreadth claims are a distinct
type of facial challenge.” (quoting United States v.
Stevens, 130 S. Ct. 1577, 1587 (2010))); Hodgkins ex rel.
Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir. 2004)
(“[T]he First Amendment doctrine of overbreadth is
an exception to our normal rule regarding the standards
for facial challenges.” (quoting Virginia v. Hicks, 539
U.S. 113, 118 (2003))). Content-neutral regulations—laws
that restrict expressive conduct for reasons unrelated to
10 No. 11-2408
the expression itself, see Boos v. Barry, 485 U.S. 312, 320
(1988)—suffer from overbreadth and necessitate facial
invalidation if their unconstitutional applications
against otherwise protected expression outnumber their
legitimate ones. For such “technical overbreadth” claims,
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 381 n.3 (1992)
(defining “technical overbreadth” as “a claim that the
ordinance violated the rights of too many third parties”),
the question is one of magnitude. Where a sufficient
imbalance exists, the statute proves facially invalid, not
because it lacks any conceivable constitutional application,
but because the “threat of [its] enforcement . . . deters
people from engaging in constitutionally protected
speech, inhibiting the free exchange of ideas.” United
States v. Williams, 553 U.S. 285, 292 (2008). Technically
overbroad statutes, in short, must fail because they uncon-
stitutionally chill protected expression.2
2
A law that suffers from “technical overbreadth” may be
analytically distinguished from one that fails as substantively
overbroad, meaning that it “restrict[s] more speech than the
Constitution permits . . . because it is content based.” R.A.V.,
505 U.S. at 381 n.3. The latter subset of overbreadth plagues
regulations that target a category of subject matter or a particu-
lar viewpoint, see, e.g., id. at 382 (“The First Amendment
generally prevents government from proscribing speech or even
expressive conduct because of disapproval of the ideas ex-
pressed.” (internal citations omitted)); see also Stevens, 130 S. Ct.
at 1584 (“[A]s a general matter, the First Amendment means
that government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.”
(continued...)
No. 11-2408 11
Chilled speech is, unquestionably, an injury supporting
standing, see Hoover v. Wagner, 47 F.3d 845, 847 (7th Cir.
1995) (“Arrest, prosecution, and conviction are tangible
harms, and so is abandoning one’s constitutional right
of free speech in order to avert those harms.”); see also
Sec’r of State of Md. v. Joseph H. Munson Co., 467 U.S. 947,
958 (1984) (“Facial challenges to overly broad statutes
are allowed not primarily for the benefit of the litigant,
but for the benefit of society—to prevent the statute
from chilling the First Amendment rights of other
parties not before the court.”), but a plaintiff’s notional or
subjective fear of chilling is insufficient to sustain a
2
(...continued)
(quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002))), where
the government cannot demonstrate a compelling state inter-
est in regulating that idea or achieve it through narrowly
tailored means, see Police Dep’t of Chicago v. Mosely, 408 U.S.
92, 94-95, 101-02 (1972) (explaining that laws that discriminate
on the basis of message must prove “an appropriate govern-
mental interest suitably furthered by the differential treatment”);
see also Boos, 485 U.S. at 321 (noting that content-based restric-
tions are “subjected to the most exacting scrutiny” and, thus,
must be narrowly tailored to meet a compelling state interest).
When a content-based regulation fails strict scrutiny—and is,
therefore, substantively overbroad—there exists no possible
application of that law consistent with the First Amendment’s
guarantees. See K ATHLEEN M. S ULLIVAN & G ERALD G UNTHER ,
C ONSTITUTIONAL L AW 1093 (16th ed. 2007) (suggesting that
overbreadth may be viewed as one application of strict scrutiny
(citing Monaghan, Overbreadth, 1981 SUP . C T . R EV . 1, 1081
(1982))).
12 No. 11-2408
court’s jurisdiction under Article III, see Laird v. Tatum,
408 U.S. 1, 11, 13-14 (1972) (holding that where a defen-
dant’s chilling claims stemmed from government sur-
veillance techniques and not a proscriptive regulation,
“[a]llegations of a subjective ‘chill’ [were] not an
adequate substitute for a claim of specific present
objective harm or a threat of specific future harm”). The
plaintiff must substantiate a concrete and particularized
chilling effect on his protected speech or expressive
conduct to pursue prospective relief.3 He does so where,
for example, he challenges an “exercise of government
power [that is] regulatory, proscriptive, or compulsory in
nature, and [he] was either presently or prospectively
subject to the regulations, proscriptions, or compulsions
that he was challenging.” Laird, 408 U.S. at 11; see also
Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1089
3
This rule applies only where the plaintiff is alleging a
chilling of his own protected speech as the injury in fact. Note,
however, that where a plaintiff faced arrest under an allegedly
overbroad ordinance, but was either not chilled or not
engaging in protected expression, he could still facially chal-
lenge the statute on behalf of others whose protected expression
would be hampered by the law. See Munson, 467 U.S. at 958(noting that with respect to an overbreadth challenge, “a party
[may] assert the rights of another without regard to the
ability of the other to assert his own claims and with no re-
quirement that the person making the attack demonstrate that
his own conduct could not be regulated by a statute drawn
with the requisite narrow specificity.” (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973)) (internal quotation marks
omitted)); Gooding v. Wilson, 405 U.S. 518, 520-21 (1972) (same).
No. 11-2408 13
(10th Cir. 2006) (“We hold that plaintiffs in a suit for
prospective relief based on a ‘chilling effect’ on speech
can satisfy the requirement that their claim of injury be
‘concrete and particularized’ by (1) evidence that in the
past they have engaged in the type of speech affected
by the challenged government action; (2) affidavits or
testimony stating a present desire, though no specific
plans, to engage in such speech; and (3) a plausible
claim that they presently have no intention to do so
because of a credible threat that the statute will be en-
forced.”).
Part and parcel of his overbreadth claim, Bell alleges
both that his own speech has been chilled by Subsection D
and that the ordinance might chill others from exer-
cising their First Amendment rights. We conclude that
he establishes a chilling injury sufficient to satisfy
Article III standing. His past participation in a protest
buttresses his representation that he wishes to participate
in protests or assemblies in Chicago in the future, and
his past arrest under Subsection D supports his claim
that the enforcement of the ordinance has chilled his
willingness to participate again. Cf. City of Houston, Tex.
v. Hill, 482 U.S. 451, 459 n.7 (1987) (“[The defendant’s]
record of arrests under the ordinance and his adopted
role as citizen provocateur give him standing to chal-
lenge the facial validity of the ordinance.”). Indeed, his
past experience with the ordinance lends credibility to
his assertion that the City will enforce Subsection D
against individuals engaged in protected speech
activities when certain triggering events occur.
14 No. 11-2408
Contrary to the City’s argument, the fact that the ordi-
nance applies only if triggered does not attenuate
Bell’s likelihood of prosecution under the statute or
subvert the concreteness of his chilling injury. The puta-
tive vagueness surrounding those triggering events, see
infra Part II.B.2, compounds his chilling claim: when one
cannot know what triggers the ordinance such that it
will be enforced, he may fairly assume that it can and
will always be enforced and that total abstention from
the protected activity is necessary to avoid arrest and
prosecution. Bell successfully alleges a chilling injury,
and we hold that he enjoys standing to sue for injunctive
relief and facially challenge Subsection D as overly broad.
2. Vagueness: Standing to Bring a Fourteenth Amend-
ment Claim
A vagueness claim alleges that, as written, the law either
fails to provide definite notice to individuals regarding
what behavior is criminalized or invites arbitrary and
discriminatory enforcement—or both. See Skilling v. United
States, 130 S. Ct. 2896, 2927-28 (2010) (“To satisfy due
process, ‘a penal statute must define the criminal offense
(1) with sufficient definiteness that ordinary people can
understand what conduct is prohibited and (2) in a
manner that does not encourage arbitrary and discrim-
inatory enforcement.’ The void-for-vagueness doctrine
embraces these requirements.” (quoting Kolender v.
Lawson, 461 U.S. 352, 357 (1983))). Although it derives
from the Fourteenth Amendment, a statute that is
vague may implicate a plaintiff’s First Amendment
No. 11-2408 15
rights, fostering those same chilling concerns that attend
an overbreadth challenge. See Hynes v. Mayor of Oradell,
425 U.S. 610, 620 (1976) (“The general test of vagueness
applies with particular force in review of laws dealing
with speech. . . . [A] man may the less be required to act
at his peril [where a statute has a potentially inhibiting
effect on speech], because the free dissemination of
ideas may be the loser.” (quoting Smith v. California, 361
U.S. 147, 151 (1959))). In those instances when an
imprecise law implicates speech and assembly rights,
an injured plaintiff may also facially challenge a statute
as void for vagueness. See Penny Saver Publ’ns, Inc. v. Vill.
of Hazel Crest, 905 F.2d 150, 154 n.2 (7th Cir. 1990) (“The
first amendment ‘chill’ and its consequential injury . . .
confer[] standing for an action based on a vagueness
theory.” (citing Hynes, 425 U.S. at 621 n.5)).
Bell argues that Subsection D fails both tenets of vague-
ness and, like the ordinance’s overbreadth, precipitates
a chilling injury. As used in the ordinance, he con-
tends, the terms “serious inconvenience,” “annoyance,”
and “alarm” vest unbridled authority in law enforcement
such that one cannot know what conduct triggers Sub-
section D or whether the law is evenly enforced. As a
result, he maintains, it is impossible for him to know
whether a future assembly he wishes to attend will
evince transgressing behavior from his fellow protesters,
and, especially since he cannot control their behavior,
he must abstain from all protests unless he wishes to
risk prosecution under Subsection D. We conclude that
Bell may, therefore, facially challenge Subsection D as
unconstitutionally vague and sue for injunctive relief.
16 No. 11-2408
C. First Amendment Challenge: Overbreadth
Facial invalidation for technical overbreadth is “strong
medicine,” see New York v. Ferber, 458 U.S. 747, 769 (1982)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)),
and is inappropriately employed unless the statute
“substantially” criminalizes or suppresses otherwise
protected speech vis-à-vis its “plainly legitimate sweep.”
See Williams, 553 U.S. at 292-93 (“In order to maintain
the appropriate balance, we have vigorously enforced
the requirement that a statute’s overbreadth be sub-
stantial, not only in an absolute sense, but also relative to
the statute’s plainly legitimate sweep.” (emphasis in
original)). We, therefore, begin by construing the
ordinance to assess its overall reach and impact upon
the First Amendment.4 Id. In doing so, we must adopt
any limiting construction proffered by a state court.
See Kolender, 461 U.S. at 355. If Subsection D is “readily
susceptible” to an interpretation that would preserve
its constitutionality, we must uphold it, but we “will not
4
We have already upheld as constitutionally sound the
definition of “disorderly conduct” provided in Chicago Munici-
pal Code § 8-4-010(a). See United States v. Woodard, 376 F.2d
136 (7th Cir. 1967); see also Broadrick, 413 U.S. at 613-14 (defend-
ing, as a general matter, the facial constitutionality of “disor-
derly conduct” or “breach of the peace” statutes). Bell chal-
lenges only the expounded definition in Subsection D, and
we, thus, limit our review to the phrase in dispute: “which
acts are likely to cause substantial harm or serious inconve-
nience, annoyance or alarm.” See Chicago Municipal Code
§ 8-4-010(d).
No. 11-2408 17
rewrite a state law to conform it to constitutional require-
ments.” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,
397 (1988).
The Illinois Supreme Court has made clear that disor-
derly conduct statutes in the state, including Chicago’s
disorderly conduct ordinance, do not criminalize speak-
ing. See People v. Raby, 240 N.E.2d 595, 598 (Ill. 1968)
(holding, with respect to Illinois’ disorderly conduct
statute, that “under no circumstances would the
statute allow persons to be punished merely for peace-
fully expressing unpopular views”); see also In re B.C.,
680 N.E.2d 1355, 1369 (Ill. 1997) (“Disorderly conduct
statutes must be narrowly drawn or construed so that
the statutes do not reach protected speech.”).5 More-
over, the Illinois Supreme Court has recognized that
in enforcing disorderly conduct statutes, “the police
may not stop a peaceful demonstration merely because
a hostile crowd which does not agree with the views of
the demonstrators threatens violence and, in fact, owe
a duty to protect the peaceful individuals from acts
of hostility.” See City of Chicago v. Weiss, 281 N.E.2d 310,
315 (Ill. 1972). The Illinois Supreme Court consequently
limits Subsection D to preclude a “heckler’s veto.” So
5
The Illinois Supreme Court rightly maintains that disorderly
conduct statutes could reach speech expressed through incite-
ment, see Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam),
fighting words, see Chaplinsky v. New Hampshire, 315 U.S. 568(1942), or obscenity, see Miller v. California, 413 U.S. 15 (1973),
which are modes of expression that are not protected by the
First Amendment. See B.C., 680 N.E.2d at 1369.
18 No. 11-2408
long as a speaker and his supporters refrain from acts
of disorderly conduct, police may not order them to
disperse when they are confronted by a hostile crowd.
In light of the Illinois Supreme Court’s constructions,
disorderly conduct does not refer to peaceful speech
or assembly. The ordinance’s triggering conduct
cannot be an act constituting protected expression (e.g.,
picketing or leafleting) or aimed at disrupting protected
expression. Nevertheless, Subsection D may still im-
plicate protected expression because, once triggered, it
may be applied to disperse people engaged in peaceful
speech or expressive conduct, including on topics of
public concern. See, e.g., Engquist v. Or. Dep’t of Agric., 553
U.S. 591, 600 (2008) (identifying speech on matters of
public concern as at the core of First Amendment pro-
tection). The question, then, is whether the law sub-
stantially does so. See Williams, 533 U.S. at 292-93.6
6
Expounding upon substantial overbreadth as a standard, the
Supreme Court has stated, “The concept of substantial
overbreadth is not readily reduced to an exact definition. It is
clear, however, that the mere fact that one can conceive of
some impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge. . . . In short,
there must be a realistic danger that the statute itself will
significantly compromise recognized First Amendment
protections of parties not before the Court for it to be
facially challenged on overbreadth grounds.” City Council v.
Taxpayers for Vincent, 466 U.S. 789, 800-01 (1984). The Court’s
discussion of this standard underscores that both the
(continued...)
No. 11-2408 19
Per the plain language of the ordinance, law enforce-
ment may order an individual to disperse when at least
three others in his vicinity behave in a way that amounts
to disorderly conduct “likely to cause substantial harm
or serious inconvenience, annoyance or alarm.” Chicago
Municipal Code § 8-4-010(d) (emphasis added). The
ordinance phrases these worrisome effects disjunctively,
so police may order dispersal if any one of them is
likely to occur as a result of the conduct.
1. Dispersal on the Basis of Likely Substantial Harm
It is well established that otherwise protected speech
may be curtailed when an assembly stokes—or is threat-
ened by—imminent physical or property damage. The
Supreme Court has long held beyond First Amendment
protection speech or association that incites its audience
to imminent violence. See Brandenburg v. Ohio, 395 U.S.
444, 447 (1969) (per curiam). So, too, speech or associa-
6
(...continued)
numerosity of unconstitutional applications and the
importance of the speech affected may inform the substantial-
ness of a law’s infirmity. See E RWIN C HEMERINSKY , C ONSTITU -
TIONAL L AW P RINCIPLES AND P OLICIES 944-46 (3d ed. 2006) (citing
Richard Fallon, Jr., Making Sense of Overbreadth, 100 Y ALE L.J.
853, 894 (1991)). For the conclusion that a finding of sub-
stantial overbreadth depends upon a court’s implicit
judgments about whether expression is protected and whether
protected expression has been constitutionally regulated, see
S ULLIVAN & G UNTHER , supra note 3, at 1082.
20 No. 11-2408
tion that poses to a particular listener or group of
listeners an unambiguous invitation to brawl. See
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); cf.
Cohen v. California, 403 U.S. 15, 22-24 (1971). And when,
for whatever reason, immediate danger to speakers and
protesters exists, the Court has held that speech may
be curtailed to prevent a riot or serious bodily injury
to those gathered. See Feiner v. New York, 340 U.S. 315,
321 (1951) (upholding law enforcement’s right to
interfere with protected expression when “faced with a
crisis”); see also Terminiello v. City of Chicago, 337 U.S. 1, 4-5
(1949) (holding that protected speech may not be
abridged or censored short of “a clear and present
danger of a serious substantive evil that rises far above
public inconvenience, annoyance, or unrest”). When
such conditions emerge, they bespeak dispersal as a
necessary means of averting danger and damage, and
the City may empower law enforcement to order people
to disperse without unconstitutionally burdening free
speech. In turn, law enforcement may arrest those indi-
viduals that refuse to leave when ordered, as their
failure to comply exacerbates the danger afflicting the
City and hinders law enforcement’s ability to secure the
situation. See United States v. O’Brien, 391 U.S. 367, 376
(1968) (“[W]hen ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct, a sufficiently
important governmental interest in regulating the
nonspeech element can justify incidental limitations on
First Amendment freedoms. . . . [A] government regulation
is sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important or
No. 11-2408 21
substantial governmental interest; if the govern-
mental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential
to the furtherance of that interest.”).
If, as the Illinois Supreme Court assures, Subsection D
cannot be triggered by peaceful or otherwise protected
expression, then the logical corollary is that the
substantial harm contemplated by Subsection D is
physical danger or damage to the people and property
nearby. See M ERRIAM-W EBSTER D ICTIONARY O NLINE,
available at http://merriam-webster.com/dictionary (last
visited August 2, 2012) (defining “substantial” as “real,”
“essential,” or “considerable in quantity” and “harm”
as “physical or mental damage”); see also Shlahtichman v.
1-800 Contacts, Inc., 615 F.3d 794, 799 (7th Cir. 2010)
(“Dictionaries are a helpful resource in ascertaining the
common meaning of terms that a statute leaves unde-
fined.”). Accordingly, to the extent that Subsection D
authorizes dispersal when an assembly creates or is
threatened by “substantial harm,” it does not improperly
infringe upon protected speech. We cannot say the
same, however, for authorizing dispersal on the basis
of “serious inconvenience, annoyance or alarm.” Chicago
Municipal Code § 8-4-010(d).
2. Dispersal on the Basis of Likely Serious Inconve-
nience
The term “serious inconvenience,” in the context of a
disorderly conduct statute, likely envisions nuisances
22 No. 11-2408
such as the obstruction of public passages or amplified
noise that are well within a city’s power to regulate.
See M ERRIAM-W EBSTER D ICTIONARY O NLINE, available at
http://merriam-webster.com/dictionary (last visited
August 2, 2012) (defining “serious” as “having
important or dangerous possible consequences” and
“inconvenience” as “not convenient, especially in giving
trouble or annoyance”); see also Coates v. City of Cincin-
nati, 402 U.S. 611, 614 (1986) (underscoring that a city
is “free to prevent people from blocking sidewalks, ob-
structing traffic, littering streets, committing assaults,
or engaging in countless other forms of antisocial con-
duct”). Chicago has identified and proscribed those
serious inconveniences it finds problematic in its
Municipal Code, authorizing law enforcement to
penalize individual perpetrators when they commit a
specific nuisance that compromises the City’s safety and
order. See, e.g., Chicago Municipal Code § 10-8-330(b)
(prohibiting all parades on public ways without a per-
mit); § 8-32-070 (regulating music and amplified sound);
§ 8-4-055 (prohibiting sound-emitting devices audible
to others on public conveyances); § 8-4-140 (prohibiting
intentional injury to or obstruction of signal systems);
§ 8-4-065 (prohibiting the intentional interference with
utility equipment); § 8-4-081 (prohibiting public urina-
tion or defecation). The City intends Subsection D to
augment law enforcement’s authority under the Municipal
Code, empowering it to address inconveniences created
by three or more individuals not only by confronting
them, but also by dispersing anyone nearby—a tactic
that pertains in equal force to individuals exercising
No. 11-2408 23
protected First Amendment rights. But unlike the Munici-
pal Code’s treatment of nuisances, and likely in an
attempt to maximize flexibility and discretion for law
enforcement, Subsection D does not specify what incon-
veniences, if performed by three or more individuals,
may trigger an order to disperse. Nor does it clarify
that, whatever the inconvenience at issue, dispersal
must be necessary to confront the violation. To this end,
the ordinance lacks the necessary specificity and tailoring
to pass constitutional muster, and we must conclude
that the ordinance substantially impacts speech. See
Broadrick, 413 U.S. at 615.
The Supreme Court has held that when individuals
ordered to disperse or move along manifest a “bona fide
intention to exercise a constitutional right,” a city may
criminalize their refusal only when its “interest so
clearly outweighs the [individuals’] interest sought to
be asserted that the latter must be deemed insubstan-
tial.” Colten v. Kentucky, 407 U.S. 104, 111 (1972). A city’s
interest prevails only if the nuisances at issue risk sub-
stantial harm or if dispersal is otherwise necessary
to address the violations and transgressors. See Wash.
Mobilization Comm. v. Cullinane, 566 F.2d 107, 118-19
(D.C. Cir. 1977) (considering an ordinance com-
manding “every person present at the scene of [a public
disturbance] [to] comply with any necessary order or
instruction of any police officer” and holding that the
word “necessary” limited “police discretion to the ac-
complishment of the specified and properly narrow
purposes of the regulation”). As the Court emphasized
in Cox v. Louisiana:
24 No. 11-2408
The constitutional guarantee of liberty implies the
existence of an organized society maintaining public
order, without which liberty itself would be lost in
the excesses of anarchy. The control of travel on
the streets is a clear example of governmental responsi-
bility to insure this necessary order. A restriction
in that relation, designed to promote the public con-
venience in the interest of all, and not susceptible to
abuses of discriminatory application, cannot be disre-
garded by the attempted exercise of some civil
right which, in other circumstances, would be
entitled to protection.
379 U.S. 536, 553-55 (1965) (emphasis added). A law
insuring public safety and security is not susceptible
to abuses of discriminatory application when the
behavior it targets is clear and the law enforcement
action it authorizes is necessary to its success. Ac-
cordingly, law enforcement may disperse individuals
present only when its ability to control public nuisances
or obstruction demand that tactic. Cf. Boos, 485 U.S. at 330-
32 (declining to find overly broad an ordinance
criminalizing an individual’s refusal to obey a dispersal
order within 500 feet of an embassy because the law,
as construed, permitted dispersal “only when the police
reasonably believe[d] that a threat to the security or
peace of the embassy [was] present”). Even if the term
“serious inconvenience” were better defined, which it
is not, permitting dispersal when a serious incon-
venience may be alternatively controlled, as does Sub-
section D, does not meet this standard and im-
properly reaches otherwise protected expression. Cf.
No. 11-2408 25
Leonardson v. City of East Lansing, 896 F.2d 190, 197-98
(6th Cir. 1990).
3. Dispersal on the Basis of Likely Alarm
With respect to the undesirable effect of “alarm,” we
reiterate our conclusion in United States v. Woodard that
this term is “conjugate with the term ‘breach of the
peace,’ which may encompass the reaction of disturbance
and alarm on the part of others.” 376 F.2d at 141. We
consequently understand “alarm” as conjugate with the
term “disorderly conduct” as well. See Chicago Municipal
Code § 8-4-010(a), (d); see also supra note 4. Generally,
we avoid construing statutes “in a way that makes
words or phrases meaningless or superfluous.” United
States v. Chemetco, Inc., 274 F.3d 1154, 1160 (7th Cir.
2001) (quoting United States v. Franz, 886 F.2d 973, 978
(7th Cir. 1989)) (internal quotation marks and omissions
omitted). As used in Subsection D, however, the term
“alarm”cannot escape this fate. “Alarm” denotes “sud-
den apprehension and fear resulting from the percep-
tion of immediate danger.” See M ERRIAM-W EBSTER D IC-
TIONARY O NLINE, available at http://merriam-webster.
com/dictionary (last visited August 2, 2012) (defining
“alarm”). The Illinois Supreme Court has clarified that, for
purposes of our analysis, the immediate danger (dis-
orderly conduct) one perceives as alarming may not
be offensive ideas or language only; therefore, the disor-
derly conduct engendering the alarm at issue must be a
corporeal disturbance to which a viewer may react. See
Woodard, 376 F.2d at 141 (noting that actions provoke a
26 No. 11-2408
breach of the peace or amount to disorderly conduct when
they are contrary to “ordinary human conduct” and
“offend the mores of the community”). In other words, the
alarmed response derives from conduct likely to result
in substantial harm or serious inconvenience, as acts of
this nature are those likely to manifest danger. The term
“alarm” thus proves redundant, reiterating that law
enforcement may criminalize a failure to disperse
when confronted with the likely outcome of substantial
harm or serious inconvenience. “Alarm” does not
subsume within Subsection D any additional speech;
the term renders Subsection D overly broad only to the
extent that the terms “substantial harm” or “serious
inconvenience” do so.
As we discussed, however, law enforcement may con-
stitutionally order dispersal of those engaged in pro-
tected expression upon “serious inconvenience” only
when dispersal is required to combat the specified nui-
sances before it. See supra Part II.C.2. Just as Subsection D
lacks this circumscription with respect to dispersal
orders on the basis of “serious inconvenience,” so, too,
with respect to dispersal orders on the basis of “alarm.”
4. Dispersal on the Basis of Likely Annoyance
As for dispersal orders on the sole basis of “annoyance,”
Subsection D again cannot withstand constitutional
scrutiny. Unlike conduct likely to elicit alarm, disorderly
conduct likely to engender annoyance is not only those
actions that cause substantial harm or serious inconve-
nience. The ordinary meaning of “to annoy,” which is “to
No. 11-2408 27
trouble, to vex, to impede, to incommode, to provoke,
to harass or to irritate,” Coates, 402 U.S. at 613, compels
this reading: not every annoying act gives rise to im-
minent danger or nuisance.
Avoiding annoyance is never a proper basis on which
to curtail protected speech. See Coates, 402 U.S. at 615
(“The First and Fourteenth Amendments do not
permit a State to make criminal the exercise of the right
of assembly simply because its exercise may be ‘annoy-
ing’ to some people.”). This precept is most obvious when
the speech or assembly is the source of the annoyance
because, as the Supreme Court emphasized in Coates v.
Cincinnati, silencing otherwise protected speech because it
annoys is tantamount to “suspending unconditionally the
right of assembly and free speech.” Id. at 616; see also
Terminiello, 337 U.S. at 4 (“[A] function of free speech . . . is
to invite dispute. . . . Speech is often provocative and
challenging. It may strike at prejudices and preconceptions
and have profound unsettling effects as it presses for
acceptance of an idea.”). We do not diminish First Amend-
ment protection when, per the Illinois Supreme Court’s
construction, speech or assembly is not the source of the
annoyance in question. We cannot conceive of an
annoying behavior, however annoying it may be, that
could constitutionally draw as a remedy dispersing
others engaged in protected speech. Cf. Hill, 482 U.S. at
465 (“[W]e have repeatedly invalidated laws that
provide the police with unfettered discretion to arrest
individuals for words or conduct that annoy or offend
them.”).
28 No. 11-2408
In sum, we hold that to the extent Subsection D permits
dispersal orders against people exercising First Amend-
ment rights (1) when those around them are likely to
foster serious inconvenience or alarm, but dispersal is not
integral to law enforcement’s ability to control the nui-
sances, and (2) when they or those around them are
likely to foster annoyance, the ordinance substantially
encumbers protected expression vis-à-vis its legitimate
scope. See Broadrick, 413 U.S. at 615 (“[T]he overbreadth
of a statute must not only be real, but substantial as
well.”). While recognizing and respecting the City’s
need to protect its citizens and its streets, we conclude
that the ordinance is overly broad.
D. Fourteenth Amendment Challenge: Void for Vague-
ness
Subsection D satisfies due process only if it “define[s]
the criminal offense (1) with sufficient definiteness that
ordinary people can understand what conduct is prohib-
ited and (2) in a manner that does not encourage
arbitrary and discriminatory enforcement.” Skilling, 130
S. Ct. at 2927-28 (quoting Kolender, 461 U.S. at 357).
Having upheld as constitutional the ordinance’s defini-
tion of “disorderly conduct,” see supra note 4, we con-
sider only whether the phrase “which acts are likely
to cause substantial harm or serious inconvenience,
annoyance or alarm” comports with due process’ com-
mands.
No. 11-2408 29
1. Sufficient Definiteness
The Illinois Supreme Court has clarified that conduct
which Subsection D does not proscribe: failure to
disperse when all that transpires is peaceful speech or
assembly. See In re B.C., 680 N.E.2d at 1369; Raby, 240
N.E.2d at 598. We must assess, however, whether the
ordinance makes clear that conduct which does give
rise to a lawful dispersal order such that an ordinary
individual can understand when his failure to move
is criminalized. As we do so, we consider not only the
words of the ordinance, but also the context for which
the statute is written. See Grayned v. City of Rockford,
408 U.S. 104, 112 (1972) (noting that an ordinance’s
“particular context” may “give[] fair notice to those to
whom it is directed” (quoting Am. Commc’ns Ass’n v.
Douds, 339 U.S. 382, 412 (1950))).
In the context of a disorderly conduct ordinance, the
terms “substantial harm,” “serious inconvenience,” and
“alarm” specify what types of disorderly conduct will
trigger a lawful dispersal order. “Substantial harm,” as
we mentioned, signifies imminent property damage or
violence. See supra Part II.C.1. An individual can under-
stand that when the conduct of three or more people in
the vicinity will likely result in the immediate destruc-
tion of property or physical injury, that conduct will
trigger a dispersal order and his compliance is required.
Regarding dispersal on the basis of “serious inconve-
nience,” the term, without further explanation or refine-
ment, does not identify what nuisances amount to such
inconvenience that First Amendment rights constitution-
30 No. 11-2408
ally give way to Subsection D’s restrictions. See supra
Part II.C.2. Without greater specificity, the ordinance
denies individuals of common comprehension notice of
the prohibited conduct. One lacks warning about the
behavior that prompts a lawful dispersal order, and he
cannot know when he must move along if so ordered
by law enforcement.
The term “alarm,” as used in Subsection D, remains
coextensive with the terms “substantial harm” and
“serious inconvenience.” See supra Part II.C.3. Bounded
by these effects, the term is superfluous and does not
criminalize any additional behavior. Nevertheless, due
to its symbiotic relationship with the terms “substantial
harm” and “serious inconvenience,” it suffers from what-
ever imprecision afflicts them. “Alarm,” therefore, fails
to advance notice to the extent that “serious inconve-
nience” fails to do so.
Finally, to the extent that the ordinance criminalizes
one’s refusal to disperse when proximate to disorderly
conduct likely to annoy, it predicates penalty on an
inscrutable standard, which is no standard at all. See
Coates, 402 U.S. at 614. Assuming arguendo that
annoying behavior may constitute disorderly conduct,
see Woodard, 376 F.2d at 141 (noting that behavior that
is simply “eccentric or unconventional” typically falls
outside the bounds of disorderly conduct, “no matter
how irritable to others”), reasonable people may disagree
about what actions evoke this reaction. See Coates, 402
U.S. at 614 (“Conduct that annoys some people does not
annoy others.”). As a result, “[individuals] of common
No. 11-2408 31
intelligence must necessarily guess at [what it means to
annoy].” Id. (quoting Connally v. Gen. Constr. Co., 269
U.S. 385, 391 (1926)). The ordinance, therefore, runs afoul
of due process’ first requirement, see Skilling, 130 S. Ct. at
2927-28, because individuals who wish to comply with
Subsection D lack notice about what annoying
conduct may legitimately invite a dispersal order.
2. Arbitrary or Discriminatory Enforcement
Subsection D may also be void for vagueness if it is
susceptible to discriminatory or arbitrary enforcement.
The ordinance fails this second criterion if it impermis-
sibly delegates to law enforcement the authority to
arrest and prosecute on “an ad hoc and subjective ba-
sis.” Grayned, 408 U.S. at 108; see also Cox, 379 U.S. at 555-
56 (invalidating convictions for violating an ordinance
prohibiting the obstruction of public passages because
of the law’s routine, discriminatory enforcement). We
underscore, however, that a statute is not vague simply
because it requires law enforcement to exercise some
degree of judgment. See Grayned, 408 U.S. at 114.
To the contrary, due process rejects “sweeping
standard[s] [that] place[] unfettered discretion in the
hands of police, judges, and juries to carry out arbitrary
and erratic arrests and convictions.” Wright v. New Jersey,
469 U.S. 1146, 1151 (1985) (quoting Papachristou v. City
of Jacksonville, 405 U.S. 156, 162 (1972)) (internal quota-
tion marks omitted).
When law enforcement confronts a likelihood of “sub-
stantial harm,” dispersal orders avoid this defect. Sub-
32 No. 11-2408
stantial harm as a trigger curtails law enforcement’s
dispersal authority, limiting its power to situations in
which imminent property damage or violence prove
readily apparent. Such restriction ensures that, with
respect to this trigger, Subsection D does not facially
encourage standardless decision-making and enforce-
ment at odds with due process.
We conclude, however, that empowering law enforce-
ment to order dispersal when faced with the likelihood
of “serious inconvenience” is not immune from arbitrary
application. We recognize that predicating law enforce-
ment’s power on at least three people’s behavior adds
definition and heft to the ordinance’s “likelihood” lan-
guage, heightening the required probability of inconve-
nience before Subsection D may be invoked and limiting
when dispersal may be ordered. The ordinance does
not, however, limit dispersal authority to situations in
which dispersal is necessary to ensure the City’s safety
and order. See supra Part II.C.2. To that end, Subsection D
“allows an unrestricted delegation of power, which[,]
‘in practice leaves the definition of its terms to law en-
forcement officers, and thereby invites arbitrary, dis-
criminatory[,] and overzealous enforcement.’ ” Leonardson,
896 F.2d at 198 (quoting Cullinane, 566 F.2d at 117). The
ordinance permits law enforcement too much discretion
in determining when addressing a nuisance permits
quieting protected expression and when it does not.
Moreover, dispersal orders on the basis of “alarm,” when
the alarm coincides with the likelihood of serious incon-
venience, suffers the same infirmity.
No. 11-2408 33
Finally, permitting dispersal orders when con-
fronted with “annoyance” alone invites unbridled discre-
tion at odds with the Fourteenth Amendment. The
relative, and thus standardless, nature of annoyance
renders individuals vulnerable to arbitrary or discrim-
inatory arrest under Subsection D, failing to fulfill
due process’ second command. See Skilling, 130 S. Ct. at
2927-28. Accordingly, we conclude that Subsection D
is void for vagueness.
E. Subsection D’s Total Invalidation is Inappropriate
As facial failings, overbreadth and vagueness render
a law totally invalid. Where, however, constitutional
overbreadth or vagueness may be cured, “ ‘partial, rather
than facial, invalidation is the required course,’ such
that a ‘statute may . . . be declared invalid to the extent
that it reaches too far, but otherwise left intact.’ ” Ayotte
v. Planned Parenthood of N. New England, 546 U.S. 320,
329 (2006) (quoting Brockett v. Spokane Arcades, Inc., 472
U.S. 491, 504 (1985)).
As it assesses a law’s candidacy for partial invalida-
tion, a court may not invoke its remedial powers to
“circumvent the intent of the legislature.” Id. at 330.
“Partial invalidation may not be possible . . . if the legisla-
ture would not have passed the law without the uncon-
stitutional element, or if the statute lacks a severability
clause and the only way to remove the unconstitutional
element is total abrogation of the statute.” Commodity
Trend Serv. v. Commodity Futures Trading Comm’n, 149
34 No. 11-2408
F.3d 679, 688 n.4 (7th Cir. 1998) (citing Brockett, 472 U.S.
at 506).
As acknowledged in oral argument, Bell does not chal-
lenge Subsection D’s constitutionality to the extent that
it legitimizes dispersal when three or more people
are engaged in disorderly conduct likely to cause “sub-
stantial harm.” Additionally, we are confident, based on
the City’s representations to us, that it would prefer a
statute that permits dispersal on the basis of “substantial
harm” alone to no statute at all. See Ayotte, 546 U.S. at
330. We may, therefore, decline to invalidate Subsection D
in toto without invading the province of a legislature
or impinging upon principles of federalism. The City
may criminalize one’s failure “to obey a lawful order
of dispersal by a person known by him to be a peace
officer under circumstances where three or more
persons are committing acts of disorderly conduct in
the immediate vicinity, which acts are likely to cause
substantial harm.” Chicago Municipal Code § 8-4-010(d).
As for the remainder of Subsection D, the ordinance
may be rewritten or construed to avoid facial uncon-
stitutionality. The City may, for example, amend the
ordinance so that it applies only when dispersal is neces-
sary to redress an observable, specific nuisance. Further-
more, the City may, as is needed to save the ordinance,
abandon altogether dispersal orders on the basis of an-
noyance. Though these revisions are not overly complex,
they are the City’s to make. We leave to the City the
right to remedy its ordinance as it sees fit, see Am. Book-
sellers Ass’n, 484 U.S. at 397, restraining ourselves from
No. 11-2408 35
a “serious invasion of the legislative domain,” Ayotte,
546 U.S. at 330. We decline to rewrite Subsection D, and
we find the following unconstitutional: “or serious incon-
venience, annoyance, or alarm.” Chicago Municipal
Code § 8-4-010(d).
III. Conclusion
For the foregoing reasons, we R EVERSE the judgment
of the district court and R EMAND for further proceedings
consistent with this opinion.
9-10-12