Chicago Tribune Co. v. Village of Downers Grove, 2-85-1049

Decision Date12 May 1987
Docket NumberNo. 2-85-1049,2-85-1049
Citation155 Ill.App.3d 265,508 N.E.2d 439
Parties, 108 Ill.Dec. 278, 14 Media L. Rep. 1273 CHICAGO TRIBUNE COMPANY, Plaintiff-Appellee, v. VILLAGE OF DOWNERS GROVE, George Graves, and Barbara Gosselar, Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Barbara J. Gosselar, Village Atty. Downers Grove, Downers Grove, for defendants-appellants.

Isham Lincoln & Beale, Mindy S. Trossman, James A. Klenk, Mark S. Sableman, Chicago, for plaintiff-appellee.

Justice NASH delivered the opinion of the court:

Defendant, the village of Downers Grove, appeals from a summary judgment entered in favor of plaintiff, Chicago Tribune Co., in a declaratory judgment action which determined that the village's door-to-door commercial solicitation ordinance violated the Federal and State constitutional guarantees of freedom of speech, press, due process and equal protection of the law as applied to the conduct of the Tribune when it solicited newspaper subscriptions in the village.

This action was commenced by the Tribune after police officers of the village advised Tribune employees, who were conducting door-to-door sales of subscriptions to the newspaper in the village, that a commercial solicitation permit was required for them to do so. The salesmen were also advised that the ordinance prohibited any solicitation activity at premises which were posted with "No Solicitation" signs. In granting the Tribune's motion for summary judgment, the trial court found that the door-to-door newspaper subscription solicitation in the village was an exercise by the Tribune of its constitutionally protected free speech and free press rights which may not be regulated by the village as commercial solicitation and was coequal with the free speech, press and religious rights of political, charitable and religious organizations whose door-to-door solicitation of funds is deemed noncommercial by other provisions of the village ordinance. The trial court permanently enjoined the village and its employees from subjecting the Tribune to the commercial solicitation regulations of its ordinance, and the village appeals.

No evidence was considered by the trial court relating to the specific commercial or noncommercial restrictive regulations of the solicitation ordinance. As we understand the terms of the order for permanent injunction from which this appeal is taken, the court found, as a matter of law, that any restrictions regulating door-to-door solicitation may not be constitutionally applied to the Tribune differently than they are applied to a political, charitable or religious organization. The injunction thus extended only to the ordinance as it pertains to the regulation of commercial solicitation activity, as defined therein, and does not prohibit application of the noncommercial regulations to the Tribune.

As the trial court did not consider the constitutionality of the specific regulatory terms of the ordinance, we may not here consider the reasonableness of those provisions (see Central Hudson Gas & Electric Corp. v. Public Service Com. of New York (1980), 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341; Breard v. Alexandria (1951), 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Osborn v. Village of River Forest (1961), 21 Ill.2d 246, 171 N.E.2d 579) and will address the equal protection issue upon which the trial court premised its judgment.

The village contends that the Tribune's door-to-door solicitation for newspaper subscriptions is a commercial activity which may be constitutionally regulated more restrictively than may noncommercial activity. It argues that the trial court failed to properly distinguish between the Tribune's clear right to freely print and circulate its newspaper and the marketing of it through door-to-door solicitations for the sale of subscriptions.

The Tribune contends that its door-to-door subscription sales activity is an exercise of its constitutional right to sell and circulate newspapers and cannot be made subject to the village ordinance regulating commercial solicitation or to any greater restrictions than is similar activity by political, charitable, or religious organizations.

The Downers Grove Municipal Code, as amended by an ordinance adopted September 10, 1984, by its terms sought to give protection from the conduct of solicitors who may "harass, annoy, disturb and defraud residents of the Village." In its preamble, the ordinance noted courts have acknowledged there was a legitimate governmental concern in preventing fraud, crime, undue annoyance and harassment, and preservation of privacy and have given strong first amendment protection to noncommercial solicitation, such as by religious, charitable, and political organizations, and lesser protection to commercial solicitation. Section 15-29 of the solicitation ordinance provides:

"Commercial solicitation shall mean the going upon any premises or to or in one or more private residences by any person without appointment by personal contact with the resident or occupant for the purpose of soliciting orders for the sale for profit of goods, books, magazines, or any other article or thing whatsoever, or for any service, or for the purpose of peddling or hawking any of the same, or for the purpose of making or requesting appointments or procuring interviews or arranging for demonstrations or explanations preliminary to any actual solicitation of orders, selling, peddling or hawking of any of the same."

The ordinance further provides that one who wishes to engage in commercial solicitation within the village must obtain a permit from the village. Application forms are provided for listing the names and addresses of the applicant, the persons who will solicit and their supervisor. Other information required includes the nature and purpose of the commercial solicitation, dates upon which it will be undertaken and whether any of the solicitors have ever been convicted of violating an Illinois municipal ordinance regulating commercial solicitation, or of a felony under any State or Federal law within five years of the date of the application. No more than 15 commercial solicitation permits may be outstanding in the village at one time; issuance of a permit will be denied to persons previously convicted of violating similar ordinances or felony statutes; and, a permit may be suspended or revoked for failing to truthfully complete the application. All door-to-door commercial solicitations are limited to the period from 9 a.m. to 6 p.m. on Mondays through Saturdays and are prohibited on Sundays and State or Federal holidays.

While we are not directly concerned in this case with those portions of the ordinance regulating noncommercial solicitation, as the village was enjoined only from subjecting the Tribune to the commercial solicitation provisions, a comparison helps to illuminate the question before us. Section 15-39 of the solicitation ordinance provides:

"Noncommercial solicitation shall mean the going upon any premises or to or in one or more private residences by any person without appointment by personal contact with the resident or occupant for the purpose of requesting directly, or indirectly, money, credit, property, financial assistance, or other thing of value on the plea or representation that such money, credit, property, financial assistance, or other thing of value will be used for a noncommercial purpose, such as a political, charitable, or religious purpose. Noncommercial solicitation shall not include canvassing or calling from house to house only for the purpose of communicating issues of general interest to the public."

No permits are required for noncommercial solicitation; however, those wishing to do so must register with a village officer for purposes of identification. After filling out a form giving the name and address of the applicant and the persons who will be soliciting, the nature and purpose of it and dates when it will be undertaken, a certificate of registration will be issued. It, too, may be denied for an untruthful application and may be suspended or revoked for violations of the ordinance. Noncommercial solicitation may be conducted from 9 a.m. to 8 p.m. on any day.

Both the commercial and noncommercial provisions of the solicitation ordinance require that a solicitor leave the premises when asked to do so by the owner or occupant and, also, that a solicitor must honor "no soliciting" notices which may be posted on any premise. There is no fee charged or cost to either a commercial solicitor for a permit or a noncommercial solicitor for a certificate of registration.

Both parties agree that the printing, circulation and distribution of a newspaper is protected by the first and fourteenth amendments to the United States Constitution and by section 4 of article 1 of the Constitution of Illinois (Lovell v. City of Griffin (1938), 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949; see City of Blue Island v. Kozul (1942), 379 Ill. 511, 521, 41 N.E.2d 515), but they fail to agree as to the scope of such protections. The Tribune asserts it is fully protected, not only in its freedom to publish newspapers, but to sell and circulate them as it wishes without being subjected to the restrictions of the Downer's Grove commercial solicitation ordinance. The village agrees with the Tribune's right to print and circulate its newspaper, but argues that the door-to-door subscription sales activity of the Tribune is solely commercial in nature and is thus subject to the more stringent municipal regulations imposed by...

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