Ayres v. City of Chicago

• Decision Date: 04 September 1997
• Docket Number: No. 97-2373,97-2373
• Citation: 125 F.3d 1010
• Parties: 25 Media L. Rep. 2337 Wendy Allen AYRES, Plaintiff-Appellee, v. CITY OF CHICAGO, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1010

125 F.3d 1010

25 Media L. Rep. 2337

Wendy Allen AYRES, Plaintiff-Appellee, v. CITY OF CHICAGO, Defendant-Appellant.

No. 97-2373.

United States Court of Appeals Seventh Circuit

Argued July 16, 1997.

Decided Sept. 4, 1997.

Edward T. Stein (argued), Mary Lou Boelcke, Karen E. Tamburro, Chicago, IL, for Plaintiff-Appellee.

Benna R. Solomon, Anita Modek-Truran (argued), Patricia T. Bergeson, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and BAUER and EVANS, Circuit Judges.

POSNER, Chief Judge.

The City of Chicago appeals from the grant to the plaintiff, Wendy Ayres, of a preliminary injunction. The injunction forbids the City to invoke its "Peddlers' Ordinance" (Chi.Munic.Code ch. 4-244) to prevent Ayres from advocating the legalization of marijuana by selling T-shirts conveying her message at festivals such as the "Taste of Chicago" that the City sponsors in Grant Park. The ordinance forbids the peddling of any merchandise, except newspapers, on either public property (such as Grant Park) or (with immaterial exceptions, see §§ 4-244-145, 4-244-147) private property, in districts designated by the city council. §§ 4-244-140, 10-8-520. In 1994, the council designated much of downtown Chicago as a district (the "central district") closed to peddling. The central district covers the area lying between McCormick Place on the south and the Chicago River on the north, and between Lake Michigan on the east and Western Avenue on the west. Grant Park, where the festivals are held, is entirely within the central district, but the district also includes--as anyone familiar with Chicago will recognize from our description of the district's boundaries--a very wide buffer around the park to the north, south, and west.

The only exception in the ordinance itself to the ban on peddling is, as we have indicated, for the peddling of newspapers; but until recently the police took the position that the ordinance was also inapplicable to "persons who distribute or sell material containing political or religious ideas," an apt description of Ayres and her group, the "Marijuana Political Action Committee." The distribution of T-shirts is the principal means by which the group propagates its views, and the sale of T-shirts by the members is a, probably the, principal source of the group's modest revenues. In 1996, the City changed its policy and the police began ticketing Ayres for violation of the ordinance, precipitating this suit, which claims that the enforcement of the ordinance infringes her First Amendment right to freedom of speech. She sought a preliminary injunction so that she and her followers could sell MPAC T-shirts at the 1997 festivals, beginning with the blues festival on June 5. The district court granted the injunction, but imposed the condition that no more than five members of MPAC may engage in peddling at festivals sponsored by the City in Grant Park.

At argument we asked the City's lawyer what harm the City anticipated from so limited an injunction. The balance between the harm to the plaintiff if injunctive relief is denied and the harm to the defendant if it is granted is a critical consideration in deciding whether to grant a preliminary injunction, that is, an injunction that will expire when the case reaches final judgment. The City's brief had been silent on the issue; but at argument its lawyer said that the preliminary injunction had cast a cloud over the Peddlers' Ordinance and would encourage the filing of other lawsuits by "First Amendment" peddlers, threatening the crowded festivals (and the approach routes to them) with paralyzing congestion. In view of the concern she expressed we emphasize that the granting of a preliminary injunction is not a decision on the merits of the plaintiff's suit. It is merely a decision that the suit has enough merit--which need not be great merit--to justify an order that will freeze the situation, in the plaintiff's favor, for such time as it may take to determine whether the suit is, or is not, meritorious.

Specifically, the court asked to grant such relief discounts (that is, multiplies) the harm to the plaintiff if it is withheld by the probability that in the end the plaintiff will prevail in the suit, and compares that discounted harm to the discounted harm to the defendant from granting the relief to the plaintiff. Vencor, Inc. v. Webb, 33 F.3d 840, 845 (7th Cir.1994); Curtis 1000, Inc. v. Suess, 24 F.3d 941, 945 (7th Cir.1994); American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589, 593-94 (7th Cir.1986); Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 913 (9th Cir.1995). If the plaintiff has a very high probability of prevailing, the discount factor will be small, and if he can then show that he will be seriously and irreparably harmed unless he obtains preliminary relief, the injunction will probably be granted. But even a plaintiff who does not have a very high probability of ultimately prevailing will be entitled to preliminary relief if he faces very great irreparable harm and the defendant very little (unless third parties would be hurt). That is the case here, or so the district court found, and its finding is entitled to deference. Advent Electronics, Inc. v. Buckman, 112 F.3d 267, 274 (7th Cir.1997); Diginet, Inc. v. Western Union ATS, Inc., 958 F.2d 1388, 1393 (7th Cir.1992); Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir.1996); Smith, Bucklin & Associates, Inc. v. Sonntag, 83 F.3d 476, 479 (D.C.Cir.1996).

The magistrate judge determined on a preliminary and incomplete record that the Peddlers' Ordinance as concretized by the designation of the central district of Chicago as a no-peddling zone may violate the First Amendment rights of some peddlers, but all he has ordered is that five members of the plaintiff's group may peddle T-shirts at City-sponsored festivals in Grant Park. The incremental contribution to congestion that five peddlers can make in a sea of hundreds of thousands of festival-goers is very small; and should the magistrate judge's determination (or our decision) spark off a multitude of copycat suits, the plaintiffs in those suits will have to convince the district court that their incremental contribution to congestion will likewise be trivial--and at some point it will become impossible to make such a showing. This case is the first, and for all we know the last; and it would be wrong to hold it hostage to the merely speculative possibility of an avalanche of peddler litigation. And speculative it is; for so far as appears MPAC is the only advocacy group that wishes to peddle its First Amendment wares at the City's festivals, though some would like to set up booths--but that's a separate matter. There is no suggestion that MPAC's peddling at the festivals has ever been disruptive, violent, or obstreperous, which would magnify the impact of their small number on the festivals' decorum and amenities. The group peddled its T-shirts at the festivals without incident before the City changed its policy.

The City rents space in Grant Park during the festivals to Accent Chicago, a company that sells, among other merchandise, T-shirts. Accent Chicago is the only authorized purveyor of T-shirts in Grant Park during the festivals, though T-shirts are also sold in stores that are located in the central district and, not being peddlers, do not come within the ban of the ordinance. The City gets a fee and royalties from Accent Chicago for having given it the exclusive right to sell T-shirts and other merchandise in the park at festival time, and is concerned that the competition from peddlers might if unrestricted lead to a reduction in the City's take by reducing Accent Chicago's revenues. This may be a valid concern in the long run, but it is not activated by an injunction that allows five persons to sell T-shirts promoting the legalization of marijuana for the next few months until the suit is resolved. Accent Chicago does not sell a T-shirt that advocates the legalization of marijuana; so the competition is indirect. In technical economic terms, the critical issue concerning the impact of MPAC's sale of T-shirts on the City's revenues is the cross-elasticity of demand between those T-shirts and the T-shirts sold by Accent Chicago. The cross-elasticity may be very low; that is, few patrons of Accent Chicago may consider Ayres and her crew an attractive alternative source of a T-shirt. There is certainly no evidence that the cross-elasticity is high, and it was the City's burden to show that it was. And, given MPAC's limited stock and the tininess of its sales force relative to the number of prospective customers for T-shirts at the festivals, the idea that the preliminary injunction could siphon substantial revenues from Accent Chicago and so derivatively from the City is the kind of fantasy that MPAC's campaign to legalize a psychotropic drug would, should it ever succeed, doubtless make more common.

So the harm to the City from the preliminary injunction is trivial; but the harm to MPAC from its denial would have been great. The festivals sponsored by the City attract literally millions of visitors every year, constituting an enormous potential audience for MPAC's message. The message concerns an important social issue, and the expression of opinion on such issues by means of paid advertising is close to the heart of the interests that the free-speech clause of the First Amendment protects. That the message might be unwelcome or that the mode of dissemination might strike us as foolish and counterproductive is not a relevant consideration.

So strongly does the balance of harms incline in the plaintiff's favor that she would not have to show a high probability of eventual success on the merits in order to be entitled to the limited preliminary relief that she obta...