Graff v. City of Chicago, 91 C 1056.

• Decision Date: 28 May 1992
• Docket Number: No. 91 C 1056.,91 C 1056.
• Citation: 800 F. Supp. 576
• Parties: Richard GRAFF, Plaintiff, v. CITY OF CHICAGO, an Illinois municipal corporation, Richard M. Daley, Mayor of the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

800 F. Supp. 576

Richard GRAFF, Plaintiff, v. CITY OF CHICAGO, an Illinois municipal corporation, Richard M. Daley, Mayor of the City of Chicago, Defendants.

No. 91 C 1056.

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

May 28, 1992.

Matthew J. Piers, Jonathan A. Rothstein, Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., Chicago, Ill., for plaintiff.

Kelly Raymond Welsh, City of Chicago, Law Dept., Corp. Counsel, Gail A. Niemann, Eileen Teresa Pahl, Ruth M. Moscovitch, City of Chicago, Law Dept., Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

LINDBERG, District Judge.

Plaintiff, Richard Graff, filed a first amended complaint alleging claims against defendants, City of Chicago and Mayor Richard M. Daley, arising out of defendant City of Chicago's ordinances, both new and old, regulating newsstands. Specifically, Count I alleges that the new ordinance is an unconstitutional prior restraint on speech; Count II alleges that the new ordinance denies equal protection of the laws; and Count III alleges that the old ordinance denied plaintiff equal protection of the laws.

Plaintiff has filed an emergency motion for a temporary restraining order requesting that this court "enter an order temporarily restraining and temporarily enjoining Defendants from enforcing the removal provision of the new ordinance pending resolution of this action." Because ruling on this motion requires a consideration of the likelihood of plaintiff's being successful on the merits of portions of the first amended complaint, the issues before the court on this motion are inextricably intertwined with issues raised by defendants' previously filed and briefed motion to dismiss plaintiff's first amended complaint. Therefore, the court will first consider defendant's motion to dismiss.

Although in Count I plaintiff purports to challenge the constitutionality of the new ordinance both on its face and as applied, it is apparent in reviewing the specific defects alleged that plaintiff is only challenging the facial validity of the new ordinance in Count I. Moreover, from the documents concerning the motion for a temporary restraining order, it can be discerned that plaintiff has not applied for and been denied a permit under the new ordinance, so a challenge to the ordinance as applied to plaintiff would not lie at this time.

Certain principles then govern this challenge:

When a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license....

At the root of this long line of precedent is the time-tested knowledge that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship....

....

We have previously identified two major First Amendment risks associated with unbridled licensing schemes: selfcensorship by speakers in order to avoid being denied a license to speak; and the difficulty of effectively detecting, reviewing, and correcting content-based censorship "as applied" without standards to measure the licensor's action. It is when statutes threaten these risks to a significant degree that courts must entertain an immediate facial attack on the law. Therefore, a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers. This is not to say that the press or a speaker may challenge as censorship any law involving discretion to which it is subject. The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.

....

Of course, the city may require periodic licensing, and have special licensing procedures for conduct commonly associated with expression; but the Constitution requires that the city establish neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered.

City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 756-58, 760-61, 108 S.Ct. 2138, 2143-46, 100 L.Ed.2d 771 (1988). The city's new ordinance is not subject to a facial challenge on first amendment grounds. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 756-58, 760-61, 108 S.Ct. 2138, 2143-46, 100 L.Ed.2d 771 (1988).

Plaintiff argues that the new ordinance is not content-neutral because it provides that "a newspaper stand shall be used for no purpose other than the exhibition and sale of newspapers, periodicals and similar publications." This is a restriction on the use of a newspaper stand that is based upon the type of merchandise sold, and not the content of the expression contained in or embodied by the type of merchandise sold. In other words, the content of the items permitted to be sold may be similar or even identical to the content of the items not permitted to be sold. This provision moreover does not preclude items not permitted to be sold in newsstands from being sold by other merchants with other sorts of businesses. In short, the provision challenged is content-neutral.

Plaintiff also contends the new ordinance's size limitation is a content-based restriction on speech because:

By limiting the size of a stand, the City limits the number of publications that may be sold. This requires the operator to chose sic the types of publications that may be sold. When the size limitation is coupled with the limitation on the type of materials that may be sold and, particularly, the preference for daily publications contained in the ordinance, it will require the operator to prefer and select certain types of speech over others.

Contrary to plaintiff's claim, this does not pose "precisely the risk of self-censorship found unacceptable by the Court in City of Lakewood." It does not because the pressure leading to the selection is not pressure to select items expressive of certain views; rather, it is a requirement to select a limited number of items of the type permitted by the ordinance due to the limited space permitted to a newsstand. In other words, while the ordinance may force a newsstand operator to pick and choose among items in the possible universe of items the newsstand could stock, the ordinance does not in any way pressure a newsstand operator to carry or not carry items having a particular content.

Plaintiff contends that even if the new ordinance is content-neutral, defendants have failed to establish that it is a reasonable time, place, and manner restriction. Plaintiff contends that the sole interest asserted is "the accommodation of multiple uses of the public way and public safety." Plaintiff further contends that "There is no showing that the arbitrary limitation on the number of permits issued to those extant and the size limitations are narrowly tailored to serve those interests." It must of course be recognized that there is only so much room on even the roomiest of public ways, and that the more of it is taken up by newsstands the less of it is available for other uses. Thus, number and size limitations on newsstands appear ideally suited to serve the interests asserted.

Plaintiff contends that:

The ordinance caps the number of permits at an arbitrary and, at this stage of the litigation, unknown number. It requires any person wishing to operate a newsstand to apply for such permits as may be available. The ordinance vests complete discretion in the Commissioner of Public Works to issue all or none of the existing permits and does not contain any standards regarding how a determination is to be made whether and how many permits to issue.

The ordinance provides:

No new permit for a newspaper stand shall be issued on or after the effective date of this ordinance; provided that permits that have expired or have been revoked may be reissued as provided in this Article.

Municipal Code of Chicago, Ill, § 10-28-130. In addition, the ordinance provides:

All newspaper stand permits issued prior to the effective date of this section shall expire on January 1, 1992; provided that any such permit for which no newspaper stand is in existence on the effective date of this section shall expire on such effective date. Such permits may not be renewed but may be reissued by the Commissioner as provided in this Article.

Municipal Code of Chicago, Ill, § 10-28-135(a). Finally:

The Commissioner of Public Works may from time to time reissue all or a portion of those permits that have been revoked.

Municipal Code of Chicago, Ill, § 10-28-135(a). Plaintiff is correct that the ordinance contains no standards governing the exercise of the discretion to determine the number of newspaper stand permits issued by the Commissioner of Public Works. The combined effect of the provisions quoted and the lack of standards regarding the number of permits to be issued is to vest unfettered discretion over the number of permits in the Commissioner of Public Works.

However, this unfettered discretion is insufficient to support a facial challenge of the ordinance. When reissuing permits, the Commissioner of Public Works is required to:

Advertise in a newspaper of general circulation within the City the availability of such permits at least 10 days prior to accepting applications for the permits.

Municipal Code of Chicago, Ill, § 10-28-135(b). The ordinance states in detail how the Commissioner is to consider such applications. It includes provisions concerning time limits for consideration of the applications; recommendations (and procedures governing the making of recommendations) by the City Council and other Departments of the City of Chicago; explicit...