Horina v. City of Granite City, Ill. , 538 F.3d 624 ( 2008 )

KANNE, Circuit Judge.

Donald Horina filed a civil-rights action against the City of Granite City, see 42 U.S.C. § 1983, alleging that certain provisions of Ordinance No. 7861 — the City’s regulation on the manner in which individuals can distribute handbills in public— violated his First Amendment right to distribute religious literature. The district court, however, determined that the entire Ordinance is unconstitutional because the City produced no evidence showing that any restrictions on handbilling were needed to further a substantial government interest. The court further awarded Hori-na $2,772.00 in compensatory damages, and $62,702.02 in attorneys’ fees and costs. We affirm the district court’s judgment that Ordinance No. 7861 is unconstitutional. However, we reverse the district court’s judgment awarding Horina compensatory damages, and remand this matter so the district court can revisit the issue. And following the parties’ stipulation, we order the district court to modify the amount of attorneys’ fees and costs due to Horina to $43,622.02.

I. History

The facts are undisputed. Horina is a retired teacher from St. Charles, Missouri. As part of what he believes to be his calling as a Christian to tell others about their need to be “born again,” Horina regularly traveled across the Mississippi River to Granite City, Illinois, to distribute pro-life literature and Gospel tracts — small pamphlets that include Bible verses and short interpretations. Although he distributed the literature around various areas in the City, he regularly frequented the sidewalk in front of the Hope Clinic for Women, an outpatient surgical treatment center that provides abortions.

Horina would regularly place his literature on the windshields of cars parked on the city streets adjacent to the Hope Clinic, much to the chagrin of at least one individual: Nathan Lang, a security guard at the clinic. After Horina placed Gospel tracts on Lang’s car on two separate occasions, Lang confronted Horina and asked him to stop placing the tracts on his car. But despite the request, in July 2003 Lang watched from afar as Horina slid a Gospel tract through the open driver’s side window of his car.

In response, Lang contacted the Granite City Police Department, which, in turn, cited Horina for violating the City’s ordinance prohibiting the “indiscriminate” distribution of “cards, circulars, handbills, samples of merchandise or any advertising matter whatsoever on any public street or sidewalk”. However, the City later altered the charge to a violation of the City’s trespass ordinance. See Granite City, Ill., Municipal Code tit. IX, chs. 9.60.020(D), 9.63.010. Horina pled guilty to the violation as amended, and was levied a $100 fine.

Nearly two years after Horina paid his fíne he filed suit against Granite City, alleging that the City’s ordinance prohibiting “indiscriminate” handbilling violated his rights under the First and Fourteenth Amendments to engage in protected speech — specifically, the distribution of religious literature. He asked the district court to enjoin the City from enforcing the ordinance and to award him monetary damages “to compensate” him “for the violation of his civil rights.” The district court granted Horina’s request for an injunction — a result that spurred the City to repeal its prohibition on “indiscriminate” handbilling, and to replace it with a revised regulation, Ordinance No. 7861.

Much like Granite City’s earlier restriction, Ordinance No. 7861 defined “handbill” to include “any leaflet, pamphlet, brochure, notice, handout, circular, card, photograph, drawing, or advertisement printed on paper or on cardboard.” However, Ordinance No. 7861 replaced the broad ban on “indiscriminate” handbilling with six separate regulations, each specifying when and how an individual could distribute literature. For instance, § 2(b) of the Ordinance stated that “[n]o person shall deposit or throw any handbill in or upon any vehicle.” Section 2(c) of the Ordinance similarly provided: “No person shall deposit, place, or throw any handbill upon any private premises which are temporarily or continuously unoccupied.” Any individual who was caught handbill-ing outside of the Ordinance’s parameters would be subject to a fine “no less than $25 and up to $500.” As the City explained in the Ordinance’s preamble, such restrictions were necessary to protect the City’s residents’ “desire to be free from unwanted intrusion, trespass, harassment, and litter.”

Shortly after Granite City enacted Ordinance No. 7861, Horina amended his motion for a preliminary injunction against the ban on “indiscriminate” handbilling to include the newly enacted Ordinance. In his motion, Horina asserted that § 2(b) and § 2(c) were facially unconstitutional because they were unreasonable restrictions on the time, place, and manner in which he could place handbills on automobile windshields and unoccupied homes. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Weinberg v. City of Chi, 310 F.3d 1029, 1036-37 (7th Cir.2002). Specifically, Horina asserted that the City could not show that § 2(b)’s and § 2(c)’s restrictions served a substantial government interest because there was no proof that handbilling caused the social ills that the City claimed it had an interest in preventing — “intrusion, trespass, harassment, and litter.” The district judge, Michael Reagan, pressed the City on this issue at the hearing on Horina’s amended motion, and asked the City if it had any evidence “of an empirical nature to support this ordinance other than to assume [that] there is going to be intrusion ... [and] litter.” The City, however, responded that it had not completed “any specific studies with regard to the correlation between handbilling and intrusion, trespass, harassment, and litter,” and that it was, in fact, unnecessary for the City to produce evidence establishing a correlation between handbilling and those problems.

The court took Horina’s amended preliminary-injunction motion under advisement. But before Judge Reagan rendered a ruling, Horina filed a motion for a judgment on the pleadings, see Fed.R.Civ.P. 12(c), largely reasserting the arguments he had made in his amended preliminary-injunction motion, and asking the district court to enjoin Granite City from enforcing § 2(b) and § 2(c) permanently on the ground that the provisions were unconstitutional. In response, the City repeated that Ordinance No. 7861’s restrictions were necessary “to assure the citizens of Granite City the desire to be free of unwanted intrusion, trespass, harassment, and litter,” but yet again pointed to no evidence showing that handbilling caused those problems. Apparently concerned with the City’s lack of proffered evidence justifying the Ordinance, Judge Reagan held a status conference during which he again asked the City whether it would introduce evidence showing that handbill-ing caused intrusion, trespass, harassment, or Utter. The City, however, responded that it would not.

The district court granted Horina’s motion for judgment on the pleadings, but went beyond the relief that he requested. The court did not permanently enjoin Granite City from enforcing only § 2(b) and § 2(c), as Horina requested; instead, the court permanently enjoined the City from enforcing Ordinance No. 7861 in its entirety. The court’s expansive relief was based on its determination that the City failed to satisfy its burden of producing evidence showing that handbilling “constitutes or in any way results in ‘unwanted intrusion, trespass, harassment, [or] Utter’ ” in the City. The court pointed out that the City failed to proffer any “empirical studies, testimony, police records, reported injuries, or anything else”; that the City did not “even allege that such evidence exists”; and that the City offered only “ ‘mere conjecture’ ” in an attempt to establish the Ordinance’s justifications. And because the City could not show that the entire Ordinance served a substantial government interest, the court concluded, the Ordinance, as a whole, was an unreasonable restriction on the time, place, and manner in which individuals could handbill. Judge Reagan therefore declared the Ordinance unconstitutional on its face, and permanently enjoined the City from enforcing it.

Armed with the district court’s judgment, Horina sought $5,000.00 in compensatory damages from Granite City to account for the “humiliation, emotional distress, and loss of First Amendment rights” that he endured due to the City’s unconstitutional handbilling restrictions. The district court thus scheduled a bench trial solely on the issue of damages. Horina was the only witness to testify at the trial, but his testimony regarding the injuries he suffered was framed only in the most general terms and was often contradictory. For instance, Horina testified that, for about one year after his citation for trespass, he avoided the City altogether and suffered personal humiliation as a result. But Horina also admitted that he continued to distribute Gospel tracts in other cities, and that he eventually returned to the City to distribute his tracts once or twice a week. Horina further claimed that, because of the City’s restrictions, he feared that he would be cited for distributing his tracts. Horina also acknowledged, however, that in earlier court proceedings related to his challenge to the City’s ban on “indiscriminate” handbilling, the City’s Chief of Police stated that Horina would not be cited for his activities, and that in response, Horina “felt that there was less of a chance of getting arrested.” Indeed, Horina admitted, other than his trespass citation, he was not arrested for distributing his tracts, or even asked by City authorities to limit his activities. Horina also testified about the out-of-pocket expenses he incurred while challenging the City’s restrictions. In particular, Horina stated that he appeared in court “six to eight times,” and that during each of those trips he spent “[u]nder $10” for meals. However, Horina also stated that he had no receipts from those purchases, and provided no other information regarding his expenses related to his trips to court.

The district court issued a post-trial order, in which it awarded Horina $2,772.00 in compensatory damages. Specifically, the court awarded Horina $672.00 to account for his out-of-pocket expenses; that amount, the court stated, “should adequately cover approximately 8 court appearances (estimating one hour each at $25.00 per hour), round-trip travel of one hour per trip (again, at $25.00 per hour) mileage (480 miles at .40 per mile) and meals (eight at $10 each).” But the court also determined that Horina was not due the full $5,000.00 he requested for his “humiliation, emotional distress, and loss of First Amendment rights.” In explaining the award, the court did not point to any particular portion of Horina’s testimony detailing his injuries. Instead, the court stated that “the precise extent to which [Horina’s] constitutional rights were chilled remains relatively unclear,” and opined that “Horina has minimal evidence regarding his emotional distress and feelings of humiliation.” Nevertheless, the court deemed what “minimal evidence” Horina introduced still warranted an award of $2,100.00. Shortly thereafter, the court also calculated that Horina was due $62,702.02 in attorneys’ fees and costs, and issued a separate order awarding Ho-rina that amount. See 42 U.S.C. § 1988; Fed.R.Civ.P. 54(d)(1).

II. ANALYSIS

Granite City makes three arguments on appeal. The City first contends that the district court incorrectly concluded that Ordinance No. 7861 is unconstitutional. The City further argues that the district court erroneously calculated the compensatory-damages award, and likewise incorrectly determined how much in attorneys’ fees and costs Horina was due. We address each argument below.

A. The district court’s determination that Ordinance No. 7861 is unconstitutional

Before we address the merits of Granite City’s challenge to the district court’s decision striking down Ordinance No. 7861, we must first clarify this case’s procedural posture. The City states that it appeals from the district court’s grant of Horina’s Rule 12(c) motion for judgment on the pleadings, an assertion with which Horina agrees. If the parties are correct, then we would review the district court’s decision as we would a decision granting a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir.2007); Guise v. BWM Mortgage, LLC, 377 F.3d 795, 798 (7th Cir.2004). But in agreeing on this case’s procedural posture, the parties ignore that the district court repeatedly asked the City to proffer evidence outside of its pleadings to show that handbilling caused litter, intrusion, trespass, and harassment. And in so seeking this additional evidence, the district court both treated Horina’s Rule 12(c) motion as one for summary judgment, see Fed. R.Civ.P. 12(c)-(d); Omega Healthcare Investors, Inc. v. Res-Care, Inc., 475 F.3d 853, 856 n. 3 (7th Cir.2007), and put the parties on notice that it would treat the motion as one for summary judgment, see Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 684 (7th Cir.1994) (stating that district court gives sufficient notice that it is treating Rule 12 motion as summary-judgment motion when “both parties had every reason to know that extraneous material was being considered”). We will thus review the district court’s decision as if it granted Horina summary judgment— employing a de novo review, see Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518, 522 (7th Cir.2008), we will view the record in the light most favorable to Granite City, the non-moving party, and will examine whether there is a genuine issue of material fact that precludes judgment as a matter of law, see Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Cady v. Sheahan, 467 F.3d 1057, 1060-61 (7th Cir.2006).

Traditionally, “handbilling” has referred to the practice of offering written material — be it handbills, pamphlets, tracts, advertisements, booklets, notices or other information — to individuals in public places for their acceptance or rejection. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 809-10, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); Schneider v. New Jersey, 308 U.S. 147, 160-61, 60 S.Ct. 146, 84 L.Ed. 155 (1939). As the United States Supreme Court recognized nearly 70 years ago in the its decision Lovell v. Griffin, handbilling is both a method of communication that has a long and venerable history that predates the birth of this nation, and is a form of speech that is protected under the First and Fourteenth Amendments. See 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938) (noting that handbills have “been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest”); see also Murdock v. Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 891, 87 L.Ed. 1292 (1943) (“The hand distribution of religious tracts is an age-old form of missionary evangelism — as old as the history of printing presses.”). And in the time since the Supreme Court decided Lovell, federal courts have invalidated bans on distributing literature on public streets, see, e.g., United States v. Grace, 461 U.S. 171, 183-84, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); Schneider, 308 U.S. at 163-64, 60 S.Ct. 146; Weinberg, 310 F.3d at 1036-40, restrictions on individuals’ rights to engage in door-to-door handbill-ing, see, e.g., Martin v. City of Struthers, 319 U.S. 141, 149, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Watseka v. Ill. Public Action Council, 796 F.2d 1547, 1558 (7th Cir.1986), and licensing requirements for those who wished to distribute their handbills door-to-door, see Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 168-69, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002); Lovell, 303 U.S. at 451, 58 S.Ct. 666.

But as with all forms of protected speech, the right to handbill is not absolute, see Taxpayers for Vincent, 466 U.S. at 809-10, 104 S.Ct. 2118, and federal courts have determined that governments may enact reasonable restrictions on hand-billing that are also consistent with the First Amendment. Specifically, so long as the restrictions are “content neutral”— that is, unrelated to the content of the speech expressed in the handbills — governments may regulate the time, place, and manner in which the activity of hand-billing itself occurs. See Weinberg, 310 F.3d at 1036-37. And under this “time, place, and manner analysis,” such restrictions can survive scrutiny only if the government can show that they (1) serve a substantial government interest; (2) are narrowly tailored to advance that interest; and (3) leave open ample alternative channels of communication to allow the individual handbilling other ways to convey his or her message. See Ward, 491 U.S. at 791, 109 S.Ct. 2746; Weinberg, 310 F.3d at 1036-37.

Granite City, however, argues that the time, place, and manner analysis is an inappropriate method to assess the constitutionality of Ordinance No. 7861 as a whole, and that the district court was wrong to employ it. According to the City, not all of the Ordinance’s provisions restrict handbilling as that practice has been traditionally understood — that is, distributing literature to individuals in a public place. As the City sees it, § 2(b) and § 2(c) instead restrict the practice of intruding on other individuals’ private property — the windshields of privately owned automobiles and privately owned unoccupied buildings, respectively — to leave information without first affording individuals the opportunity to accept or reject it. This distinction is important, the City asserts, because private property is a nonpublic forum, meaning that any restriction of speech in that forum should be weighed under the “forum-based approach,” and not the time, place, and manner analysis that the district court employed. And under the forum-based approach, regulations of speech in nonpublic fora are assessed only for reasonableness, see Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); DeBoer v. Vill. of Oak Park, 267 F.3d 558, 566 (7th Cir.2001), a standard that, the City argues, § 2(b) and § 2(c) easily satisfy.

Granite City’s argument raises interesting questions as to whether placing handbills on privately owned automobiles and unoccupied buildings are activities that fall under the traditional definition of handbill-ing. But we need not address those questions here because the City’s argument in support of the forum-based approach is fatally flawed. The forum-based approach applies only when a government restricts speech on property that the government itself owns. The validity of the restriction, in turn, depends on the type of government property — or “forum” — in which the speech occurs. See Int’t Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992); Perry Educ. Ass’n, 460 U.S. at 45-46, 103 S.Ct. 948; Gilles v. Blanchard, 477 F.3d 466, 473-74 (7th Cir.2007). And thus far, the Supreme Court has identified three publicly owned fora that guide this approach: traditional public fora (such as street corners, city squares, and city parks), fora designated for a particular use (such as a publicly owned amphitheater), and nonpublic fora (everything else publicly owned that is not a traditional public forum or a designated forum). See Lee, 505 U.S. at 678, 112 S.Ct. 2701; see also Gilles, 477 F.3d at 473-74 (noting dubiously that circuit courts of appeals have “carved out a fourth category” of public fora, “the limited designated public forum”).

In other words, the term “nonpublic forum” is not synonymous with privately owned property, as Granite City suggests. The designation merely signifies that the property in question is publicly owned, but is neither a traditional public forum, nor a designated public forum. See Lee, 505 U.S. at 678-79, 112 S.Ct. 2701 (stating that nonpublic fora are “all remaining public property” other than traditional public fora and designated public fora); Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948 (“Public property which is not by tradition or designation a forum for public communication is governed by different standards.”); Gilles, 477 F.3d at 474. The City is therefore wrong to assert that § 2(b) and § 2(c) should be weighed under the forum-based approach solely because those provisions prohibit intrusion on other individuals’ private property.

That said, Granite City does not otherwise challenge the district court’s application of the time, place, and manner analysis. And because Ordinance No. 7861 is a content-neutral restriction, we see no reason to conclude that the district court was wrong to employ that analysis when assessing the Ordinance’s constitutionality. See Jobe v. City of Catlettsburg, 409 F.3d 261, 267 (6th Cir.2005) (concluding that public-forum doctrine does not apply to privately owned automobiles parked on city streets, and that restrictions on placing pamphlets on automobiles are assessed under time, place, and manner analysis); Krantz v. City of Fort Smith, 160 F.3d 1214, 1219 (8th Cir.1998) (applying time, place, and manner analysis to assess prohibition of placing handbills on automobile windshields); Watseka, 796 F.2d at 1552-53 (applying time, place, and manner analysis to weigh ordinance regulating when individuals may engage in door-to-door soliciting).

The question thus becomes whether the district court correctly concluded that Ordinance No. 7861, in its entirety, is an unconstitutional time, place, and manner restriction on handbilling. Granite City argues “no,” and challenges the court’s conclusion that the City failed to proffer evidence showing that handbilling causes Utter, intrusion, trespass, and harassment. Specifically, the City takes issue with the district court’s determination that the City needed to present “empirical studies, testimony, police records, [or] reported injuries” showing that the Ordinance was justified. In Granite City’s view, the district court overstated what evidence it needed to proffer when it was, in fact, under “no obligation” to present evidence “to support the purposes of the Ordinance.” Instead, the City argues, “common sense” shows that the Ordinance was needed to combat Utter, intrusion, trespass, and harassment.

We have no quarrel with Granite City’s claim that the prevention of litter, intrusion, trespass, and harassment is a substantial government interest. See Watchtower Bible & Tract Soc’y of N.Y., Inc., 536 U.S. at 164-65, 122 S.Ct. 2080 (stating that prevention of crime and protecting residents’ privacy are “important interests”); Jobe, 409 F.3d at 268 (determining that “Utter and visual blight” and the protection of individual property rights are substantial government interests).

But we cannot accept Granite City’s assertion that it can rely on mere common sense to show that Ordinance No. 7861 is needed to combat those ills. Although common sense does have its value when assessing the constitutionality of an ordinance or statute, see Anderson v. Milwaukee County, 433 F.3d 975, 978 (7th Cir.2006); Weinberg, 310 F.3d at 1042, it can all-too-easily be used to mask unsupported conjecture, which is, of course, verboten in the First Amendment context, see Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 392, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000); Weinberg, 310 F.3d at 1030. That is why “the government has the burden of showing that there is evidence supporting its proffered justification” for its speech restriction when asserting that the restriction survives the time, place, and manner analysis. Weinberg, 310 F.3d at 1038; see also DiMa Corp. v. Town of Hallie, 185 F.3d 823, 829 (7th Cir.1999). In satisfying this burden, however, the government does not always need to produce a panoply of “empirical studies, testimony, police records, [or] reported injuries,” as Judge Reagan put it; less evidence might be sufficient, of course, depending on the scope and context of the restriction in question. See DiMa Corp., 185 F.3d at 829 (“ ‘The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.’”) (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). But the government must nevertheless proffer something showing that the restriction actually serves a government interest, and we have struck down time, place, and manner restrictions where the government failed to produce “objective evidence” showing that the restrictions served the interests asserted. See Weinberg, 310 F.3d at 1039; Watseka, 796 F.2d at 1556.

Here, the experienced district judge correctly concluded that Granite City failed to proffer any evidence showing that hand-billing caused litter, intrusion, trespass, or harassment in the City. The record reveals that the City introduced absolutely no evidence before the district court showing that Ordinance No. 7861 was needed to combat those problems. Even more, the City failed on several occasions to respond to Judge Reagan’s requests for evidence supporting the Ordinance’s justifications.

For its part, Granite City now points to what it deems to be proof that handbilling causes litter, intrusion, trespass, or harassment, but this late proffer fails to carry the day. Specifically, the City contends that the fact that Horina placed a Gospel tract in Lang’s automobile against his wishes shows that Ordinance No. 7861 is needed to combat trespass. But this point hurts the City more than it helps. After all, for his indiscretion Horina was eventually cited with trespassing on Lang’s car— a fact that creates the distinct impression that a broad restriction on handbilling is not needed to combat trespass when the City already has enacted an ordinance that proscribes trespass, see Granite City, Ill., Municipal Code tit. IX, chs. 9.60.020, 9.63.010. See also Ward, 491 U.S. at 799, 109 S.Ct. 2746 (stating that speech restriction can withstand scrutiny under time, place, and manner analysis only if government interest is “ ‘achieved less effectively absent the regulation’ ”) (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)); Weinberg, 310 F.3d at 1040 (same).

Equally meritless is the City’s contention that the fact that “at least one state” and “38 other cities” have passed laws similar to Ordinance No. 7861 proves that handbilling causes litter, intrusion, trespass, or harassment. The fact that other states and cities have restrictions on hand-billing says nothing about whether hand-billing caused litter, intrusion, trespass, or harassment in Granite City to such an extent as to necessitate a handbilling restriction; nor does it alleviate the City’s burden of producing evidence showing that the Ordinance is justified. See Playtime Theatres, Inc., 475 U.S. at 51, 106 S.Ct. 925 (stating that evidence generated by other municipal governments must be relevant to the problem the municipal government in question is attempting to address); DiMa Corp., 185 F.3d at 829 (same). But that aside, because the City points to no other evidence showing that handbilling causes those problems, we have no basis upon which to conclude that any of the Ordinance’s provisions serve a substantial government interest.

But even if Granite City had proffered sufficient evidence establishing that Ordinance No. 7861 serves a substantial government interest, the City has not shown that the Ordinance satisfies the remaining two elements of the time, place, and manner analysis. First, the Ordinance is not narrowly tailored. A restriction on hand-billing is narrowly tailored if it “ ‘promotes a substantial government interest that would be achieved less effectively absent the [restriction].’” Weinberg, 310 F.3d at 1040 (quoting Ward, 491 U.S. at 799, 109 S.Ct. 2746). But the City has not explained to us how the prevention of litter, intrusion, trespass, or harassment is achieved less effectively without the Ordinance, and has thus waived the argument.¹ See APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir.2002). And even if the City had raised the point, it still would not have prevailed. As we alluded to earlier, the City already proscribes in some form litter, intrusion, trespass, or harassment, see Granite City, Ill., Municipal Code tit. VIII, ch. 8.64.020; Granite City, Ill., Municipal Code tit. IX, chs. 9.24.020, 9.60.020, 9.63.010, leading us to believe that the City can currently combat those problems very effectively without resorting to a broad prohibition on handbilling, Watseka, 796 F.2d at 1556 (stating that solicitation ban is not narrowly tailored when “a city can enforce its trespass law against solicitors who enter or remain on private property after the owner has indicated the solicitor is not welcome”); Wis. Action Coalition v. Kenosha, 767 F.2d 1248, 1257 (7th Cir.1985) (discussing less restrictive alternatives to speech regulations of which Supreme Court has approved); see also Schneider, 308 U.S. at 162-63, 60 S.Ct. 146 (“There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.... [T]he public convenience in respect of cleanliness of the streets does not justify an exertion of the police power which invades the free communication of information and opinion secured by the Constitution.”).

Likewise, Ordinance No. 7861 fails to leave open ample alternative channels of communication to allow individuals hand-billing other ways to convey their message. Granite City argues that such alternative channels are available because, despite the Ordinance’s specific proscriptions on hand-billing, individuals may still (1) distribute handbills to people who wish to accept them, including the drivers of automobiles and the residents of homes; and (2) send their literature through the mail.

We disagree. An adequate alternative does not have to be the speaker’s first or best choice, see Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir.2000), or one that provides the same audience or impact for the speech, see Ward, 491 U.S. at 802, 109 S.Ct. 2746. But the alternative must be more than “merely theoretically available” — “it must be realistic as well.” Gresham, 225 F.3d at 906; see also Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977). As such, we have “ ‘shown special solicitude for forms of expression’ ” that involve less cost and more autonomy for the speaker than the potentially feasible alternatives. Gresham, 225 F.3d at 906 (quoting Taxpayers for Vincent, 466 U.S. 789, 812 n. 30, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)); see also Linmark Assocs., Inc., 431 U.S. at 93, 97 S.Ct. 1614.

With this in mind, we believe that the alternative methods of communication forwarded by Granite City simply are not feasible. Forcing an individual to limit handbilling activities to person-to-person solicitation is extremely time consuming and burdensome, particularly when the individual intends to convey a message to people who park their automobiles in a certain area of the city or who live in a certain neighborhood. For instance, with § 2(b) and § 2(c) of Ordinance No. 7861 in effect, the individual would not be able to leave literature on the windshields of automobiles or the doorsteps of homes. Instead, the individual would be forced to distribute literature by hand to passersby, to people who are sitting in their parked automobiles when the individual happened upon them, or to people who are at home when the individual knocks on their front door. Because of these limitations, the time it would take the individual to convey the message to the intended audience would increase from perhaps under an hour to conceivably several days. And we cannot say that an alternative channel of communication is realistic when it requires a speaker significantly — and perhaps prohibitively- — more time to reach the same audience. See Gresham, 225 F.3d at 906; see also City of Ladue v. Gilleo, 512 U.S. 43, 57, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (concluding that proposed alternative channels of communication were unacceptable because of, among other things, the “added costs in money or time” the alternatives required).

Similarly, the fact that an individual could mail the literature is no alternative to handbilling. We have already rejected the notion that using the mail to disseminate literature provides a suitable alternative to hand-billing, see Watseka, 796 F.2d at 1557-58, and we see no reason to depart from that determination here. After all, the mail system is both an expensive and unwieldily method for individuals to distribute handbills to their neighbors, see Gresham, 225 F.3d at 906; Taxpayers for Vincent, 466 U.S. at 812 n. 30, 104 S.Ct. 2118, and a completely ineffective method to distribute literature to people who have parked their automobiles nearby, Weinberg, 310 F.3d at 1040 (“[A]n alternative is not adequate if it ‘forecloses a speaker’s ability to reach one audience even if it allows the speaker to reach other groups.’ ” (quoting Gresham, 225 F.3d at 907)). We thus reject Granite City’s contention that Ordinance No. 7861 allows individuals who seek to handbill ample alternative methods to convey their messages.

To recap, the district court was correct to strike down Ordinance No. 7861. Granite City proffered no evidence showing that the Ordinance is needed to combat litter, intrusion, trespass, or harassment. Moreover, the Ordinance neither is narrowly tailored to combat those problems, nor does it leave open ample alternative methods for those seeking to distribute literature to convey their message. As such, the Ordinance cannot survive constitutional scrutiny. See Ward, 491 U.S. at 791, 109 S.Ct. 2746; Weinberg, 310 F.3d at 1036-37.

B. The district court’s award of compensatory damages to Horina

Granite City also argues that the district court’s award of $2,772.00 in compensatory damages to Horina was improper. Specifically, the City contends that the district court’s award of $672.00 for Horina’s out-of-pocket expenses is not supported by the record. Instead, the City continues, the award was impermissi-bly based only on vague estimates of Hori-na’s expenses. The City also argues that the district court’s award of $2,100.00 for Horina’s “humiliation, emotional distress, and loss of First Amendment rights” was not based on any evidence that Horina actually suffered those injuries. We review the district court’s legal determinations de novo and its factual determinations for clear error. See Alexander v. City of Milwaukee, 474 F.3d 437, 448-49 (7th Cir.2007).

We agree with the City that the district court’s award of $672.00 is not supported by the record. When calculating compensatory damages, district courts may make a “‘just and reasonable estimate’ ” of the damages due, but those estimates must nevertheless be consistent with the evidence presented regarding damages. Zazu Designs v. L’Oreal S.A, 979 F.2d 499, 506 (7th Cir.1992) (quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946)); see also Sulzer Carbomedics v. Or. Cardio-Devices, Inc., 257 F.3d 449, 459-60 (5th Cir.2001) (stating that district court “may not determine damages by ‘speculation or guess’ ” (internal citation omitted)).

But here, the evidence relevant to the calculation of the award was lacking. The only evidence regarding Horina’s out-of-pocket expenses was his guess that he spent “[u]nder $10” on meals on each of the “six or eight times” he traveled to court. And there was no evidence supporting an award of $80.00 for Horina’s meals, $400.00 for his time, or $192.00 for his mileage. See Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1264 (10th Cir.1995) (“Amounts that are speculative, remote, imaginary, or impossible of ascertainment are not recoverable.” (internal quotation marks and citation omitted)). The district court thus erred in awarding Horina $672.00 for his out-of-pocket expenses. See Zazu Designs, 979 F.2d at 506; see also United States v. Roman, 121 F.3d 136, 140 (3d Cir.1997) (stating that district court’s factual findings are clearly erroneous if they are unsupported by substantial evidence, lack adequate evidentia-ry support, are against clear weight of the evidence, or if court has misapprehended weight of evidence).

The district court likewise erred when awarding Horina $2,100.00 for his “humiliation, emotional distress, and loss of First Amendment rights.” Although a district court may award compensatory damages to a successful § 1983 plaintiff, it may not award damages to account for “the abstract value of a constitutional right.” Watseka, 796 F.2d at 1558-59. Therefore, a district court may award the plaintiff damages only if he can prove that the denial of his constitutional rights resulted in an actual injury. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); see also Watseka, 796 F.2d at 1558-59. The fact that the “monetary value of the particular injury is difficult to ascertain” — as is often the case when the injuries asserted are humiliation, distress, and other harms associated with the denial of a right — does not preclude an award of damages. Watseka, 796 F.2d at 1558-59; see also Stachura, 477 U.S. at 307, 106 S.Ct. 2537; Gilpin v. Am. Fed’n of State, County, and Mun. Employees, AFL-CIO, 875 F.2d 1310, 1314 (7th Cir.1989). But the plaintiff must nevertheless show that he actually suffered those injuries, and “[wjhere no injury [is] present, no ‘compensatory’ damages [may] be awarded.” Stachura, 477 U.S. at 308, 106 S.Ct. 2537; see also Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (stating that “some actual, if intangible, injury must be proved before compensatory damages may be recovered”).

However, we cannot tell whether Horina suffered any actual injury, much less the “humiliation, emotional distress, and loss of First Amendment rights” he contends to have suffered. Horina’s testimony before the district court regarding the extent to which he was forced to curtail his hand-billing was unclear at best and contradictory at worst, particularly when he admitted that he continued to distribute his Gospel tracts in other cities, and that he eventually resumed distributing his tracts in Granite City without incident.

Moreover, the fact that Horina resumed distributing his tracts in Granite City after a brief hiatus contradicts his assertion that he suffered humiliation “from having to conspicuously avoid being in Granite City for fear of being ticketed and/or arrested.” And although Horina claimed that he endured emotional distress from distributing his tracts in fear, he also acknowledged that his fear subsided when the City’s Chief of Police stated in court that he would not be cited for his activities. Based on this record, we are unable to determine whether Horina suffered “humiliation, emotional distress, and loss of First Amendment rights,” nor can we ascertain whether $2,100.00 represented adequate compensation for those purported injuries. See Watseka, 796 F.2d at 1558-59 (affirming award of compensatory damages where plaintiff sufficiently explained the “non-abstract” harms and “specific injuries” it suffered from denial of First Amendment rights). As such, the award of damages cannot stand. See Everaard v. Hartford Accident & Indem. Co., 842 F.2d 1186, 1193 (10th Cir.1988) (reversing award of compensatory damages where basis for award was unclear from both record and district court’s decision).

On remand, Horina may be able to proffer something more than vague testimony to clarify the injuries he allegedly sustained. If not, the district court may be unable to award him anything but nominal damages. See Carey, 435 U.S. at 266, 98 S.Ct. 1042 (stating that nominal damages are available to prevailing § 1983 plaintiff when no actual injury is proven).

C. The district court’s award of attorneys’fees to Horina

Granite City also challenges the district court’s award of $62,702.02 in attorneys’s fees and costs to Horina. But we need not address the point because both parties have agreed in their briefs that, if we were to reverse only the district court’s judgment awarding compensatory damages, the amount awarded to Horina for attorneys’ fees and costs should be reduced by the amount incurred in connection with the bench trial on the issue of damages — $19,-080.00 — so that Horina would be due $43,622.02. And because we have reversed only the district court’s judgment awarding compensatory damages, we will allow the parties the benefit of their stipulation.

III. Conclusion

We Affirm the district court’s judgment that Ordinance No. 7861 is unconstitutional. However, we Reverse the district court’s judgment awarding $2,772.00 in compensatory damages to Horina, and REMAND this case to allow the district court to revisit the issue of damages. Finally, consistent with the parties’ stipulation on appeal, we ORDER the district court to reduce the attorneys’ fees and costs due to Horina to $43,622.02.

1 . This is a costly waiver indeed. Notwithstanding our discussion of Granite City’s arguments up to this point, the City’s failure to explain how the prevention of litter, intrusion, trespass, or harassment is achieved less effectively without Ordinance No. 7861 actually dooms its appeal. Without such an explanation, the City cannot establish that the Ordinance is narrowly tailored, which, in turn, means that the City cannot show that the Ordinance satisfies the time, place, and manner analysis, and thus survives constitutional scrutiny. See Ward, 491 U.S. at 791, 109 S.Ct. 2746 (stating that under time, place, and manner analysis, speech restriction can survive constitutional scrutiny only if government can show that it (1) serves substantial government interest; (2) is narrowly tailored to advance that interest; and (3) leaves open ample alternative channels of communication to allow speaker other ways to convey his or her message). Nevertheless, for the sake of completeness, we will continue to explain why the Ordinance fails to satisfy the entire time, place, and manner analysis. See Weinberg, 310 F.3d at 1040.