Chicago Newspaper Publishers v. City of Wheaton

• Decision Date: 12 October 1988
• Docket Number: No. 87 C 0765.,87 C 0765.
• Citation: 697 F. Supp. 1464
• Court: U.S. District Court — Northern District of Illinois
• Parties: CHICAGO NEWSPAPER PUBLISHERS ASSN., Chicago Tribune Co., an Illinois corporation, Chicago Sun-Times, Inc., a Delaware corporation, and Dow Jones & Company, Inc., Plaintiffs, v. CITY OF WHEATON, an Illinois municipality, Defendant.

697 F. Supp. 1464

CHICAGO NEWSPAPER PUBLISHERS ASSN., Chicago Tribune Co., an Illinois corporation, Chicago Sun-Times, Inc., a Delaware corporation, and Dow Jones & Company, Inc., Plaintiffs, v. CITY OF WHEATON, an Illinois municipality, Defendant.

No. 87 C 0765.

United States District Court, N.D. Illinois, E.D.

October 12, 1988.

James A. Klenk, Alan J. Mandel, Sonnenschein, Carlin, Nath & Rosenthal, Joseph P. Thornton, Chicago Tribune Co., Chicago, Ill., for plaintiffs.

Edward J. Walsh, Jr., James H. Knippen II, Edward J. Walsh, Jr., Chtd., Wheaton, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

In our participatory democracy newspapers are not just an amenity. They are a vital means of providing information to citizens called upon to exercise an enlightened use of the ballot. Without the information provided by newspapers many citizens would be without the knowledge required for an intelligent electoral process. Accordingly, the distribution of newspapers has always had First Amendment protection.

The methods of newspaper distribution are changing. For some, home delivery is either unavailable or too expensive. Street vendors are disappearing in all but central business areas, and newsracks are appearing as a substitute means of distribution. This case concerns issues arising out of the regulation or prohibition of newsracks on public streets in a suburban area.

This is a challenge to an ordinance which regulates the placement of newsracks in Wheaton, Illinois. Plaintiffs attack the ordinance on its face as an abridgement of the rights under the First and Fourteenth Amendments, and under the Illinois Constitution. Defendant City of Wheaton responds that the ordinance imposes valid time, place, and manner restrictions permitted under the First Amendment. Plaintiffs also claim that Wheaton officials confiscated newsracks without due process, in violation of the Fifth and Fourteenth Amendments. To this, Wheaton counters that the newsracks were confiscated because they posed a threat to driver and pedestrian safety. The parties have filed cross motions for summary judgment.

For the reasons outlined below, the licensing scheme is an invalid prior restraint. In addition, the complete ban on residential newsracks is an invalid place and manner restriction.

FACTS

On April 7, 1986, defendant City of Wheaton, Illinois ("Wheaton") passed on ordinance regulating the placement of newspaper dispensing devices ("newsracks") on Wheaton city streets. This ordinance was similar to an ordinance passed in Lakewood, Ohio. Three months later, in July 1986, the Sixth Circuit ruled that several provisions of the Lakewood ordinance were unconstitutional. Plain Dealer Publishing Co. v. City of Lakewood, 794 F.2d 1139 (6th Cir.1986), aff'd in part & remanded, ___ U.S. ___, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Six weeks after the Sixth Circuit decision, Wheaton amended its ordinance, deleting some of the language which proved fatal to the Lakewood ordinance.¹ In January 1987, plaintiff newspapers brought this § 1983 action in Illinois state court, alleging a violation of their rights under the First, Fifth, and Fourteenth Amendments to the U.S. Constitution, and under the Illinois Constitution. Wheaton removed to this court.

At the close of discovery, both sides moved for summary judgment. Because of the similarity between the Wheaton and Lakewood ordinances, this court deferred ruling on the motions until the Supreme Court decided Lakewood's appeal from the Sixth Circuit. In June of this year, the Supreme Court affirmed the Sixth Circuit. City of Lakewood v. Plain Dealer Publishing Co., ___ U.S. ___, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Both Wheaton and the newspapers then renewed their summary judgment motions.

LEGAL PRINCIPLES

It is beyond dispute that the First Amendment protects the right to distribute newspapers in newsracks. City of Lakewood v. Plain Dealer Publishing Co., ___ U.S. ___, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Gannett Satellite Info. Network, Inc. v. Metropolitan Transportation Authority, 745 F.2d 767, 777 (2d Cir.1984); Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 673 (11th Cir. 1984). The degree of protection provided by the constitution depends "on the character of the property at issue." Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). In this case, the "property at issue" is city streets in Wheaton, Illinois. The Supreme Court has repeatedly recognized public streets "as the archetype of a traditional public forum." Frisby v. Schultz, ___ U.S. ___, 108 S.Ct. 2495, 2499, 101 L.Ed.2d 420 (1988).

In these traditional public fora, government's authority to restrict speech is at its minimum. Time, place, and manner restrictions are valid only if they are content-neutral, narrowly tailored to serve a significant government interest, and retain ample alternative channels of communication. Perry, 460 U.S. at 45, 103 S.Ct. at 954. As an application of the requirement that restrictions be narrowly tailored, a law cannot condition the free exercise of First Amendment rights on the unguided discretion of government officials. Lakewood, 108 S.Ct. at 2143; Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969) ("a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective and definite standards to guide the licensing authority, is unconstitutional" (emphasis added)); Staub v. City of Baxley, 355 U.S. 313, 321-22, 78 S.Ct. 277, 281-82, 2 L.Ed.2d 302 (1958). And finally, any licensing system which operates as a prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system." Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed. 2d 649 (1965); Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 675 (11th Cir.1984).

Against the backdrop of these legal principles, the court turns to a consideration of the Wheaton ordinance.

DISCUSSION

I. Due Process — Prior Restraint

Plaintiffs attack the licensing scheme as an unlawful prior restraint. The Supreme Court has often articulated the elements of a prior restraint. First, the right to engage in the protected speech must require the prior approval of a government agent. Approval of the application must depend on the agent's affirmative action. In addition, approval must not be routinely granted but rather must require the exercise of the agent's judgment. Finally, the licensing scheme must empower the agent to approve, deny or revoke a license based on the content of the proposed communication. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554, 95 S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1976).

The first two elements are plainly met here: the ordinance requires an application to the Wheaton city manager who must act on the application within ten days. Sec. 20-147(1); (3). Wheaton contends, however, that the remaining elements are absent: approval is not discretionary, and the city manager has no express authority to deny an application based on the content of the applicant's paper. Wheaton is mistaken on both counts.

First, the decision to issue a license is indeed discretionary. The ordinance lists a number of conditions which the applicant must meet before a license can issue. Prominent among them are the following:

Newspaper dispensing devices shall be placed adjacent and parallel to building walls not more than six inches (6") distant therefrom or near and parallel to the curb not less than eighteen inches (18") and not more than twenty-four inches (24") distant from the curb at such locations applied for and determined by the city manager not to cause a health or safety hazard or interfere with the right of the public to use of the streets, throughfares, and sidewalks.

Sec. 20-148(2) (emphasis added).

No newspaper dispensing device shall be placed, installed, located, used, or maintained:

* * * * * *

(e) Within five hundred feet (500') of another newspaper dispensing device ..., except that the city manager may permit three (3) such dispensing devices at an intersection where such placement would not impair traffic or otherwise create a hazardous condition. ...

Sec. 20-148(3)(e) (emphasis added).

The significance of the first passage is that, even if all other conditions are satisfied, the city manager may still withhold a permit if it is determined that the newsrack creates a "health or safety hazard or interferes with the right of the public" to use the streets and sidewalks. In his deposition, the current city manager conceded that this was at least in part a subjective determination, Rose dep. at 36, and Wheaton has pointed to no standards which guide his judgment. The second passage requires essentially the same subjective determination and is equally flawed.

Furthermore, the ordinance authorizes the city manager to revoke a permit for "violation of any city ordinance," or for "fraud, misrepresentation, or any false statement" in the application itself. Recently the Eleventh Circuit considered the constitutionality of an ordinance regulating newsracks which contained similar provisions. Miami Herald, 734 F.2d at 673-74. As in this case, the city code before the court of appeals gave the municipality the authority to revoke newsrack permits for the violation of any city ordinance. Id. The city commission was authorized "to adjudicate the rights of license applicants ... to determine if the applicant has violated a provision" of the city code. This, the court concluded, "necessarily involves the exercise of considerable discretion" and was therefore improper under the First Amendment. Id. The same reasoning applies here, and leads to the same conclusion: the city manager determines whether a violation has occurred. And,...