RCP Publications Inc. v. City of Chi.

• Decision Date: 02 September 2016
• Docket Number: Case No. 15 C 11398
• Citation: 204 F.Supp.3d 1012
• Parties: RCP PUBLICATIONS INC., Plaintiff, v. CITY OF CHICAGO, Defendants.
• Court: U.S. District Court — Northern District of Illinois

204 F.Supp.3d 1012

RCP PUBLICATIONS INC., Plaintiff,

v.CITY OF CHICAGO, Defendants.

Case No. 15 C 11398

United States District Court, N.D. Illinois, Eastern Division.

Signed September 2, 2016

Adele D. Nicholas, Law Office of Adele D. Nicholas, Mark G. Weinberg, Attorney at Law, Chicago, IL, for Plaintiff.

William Macy Aguiar, Thomas P. McNulty, Ellen Wight McLaughlin, City of Chicago Department of Law, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

RCP Publications Inc. has sued the City of Chicago for violating its First Amendment rights and the rights of a class of those similarly situated. RCP contends that section 10-8-320 of the Chicago Municipal Code (entitled "Posting Bills") is an unconstitutional restriction on speech. The City has moved the Court to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the Court denies the City's motion.

Background

RCP Publications is a not-for-profit corporation based in Chicago that publishes a variety of materials related to political, economic, and social issues. In March 2015, RCP hosted on its website an online premiere of a movie called "Revolution and Religion: The Fight for Emancipation and the Role of Religion," making the film available for free. A second organization, the BA Everywhere Committee, hosted an in-person premiere for the film. The complaint does not allege whether the in-person showing was free or whether, instead, there was a charge to see the film.

BA Everywhere produced posters advertising both the online and in-person premieres of the film. According to RCP, BA Everywhere gave copies of the posters to its supporters to distribute how they wished. An unknown person taped a copy of the BA Everywhere poster to a street light pole at 5701 S. Kimbark Avenue in Chicago, allegedly without RCP's knowledge. On July 14, 2015, RCP received official notice that it had violated ordinance section 10-8-320 of the Chicago Municipal Code, which involves the posting of "commercial advertising material." The ordinance provides:

No person shall distribute or cause others to distribute, as defined in Section 10-8-325, commercial advertising material by means of posting, sticking, stamping, tacking, painting or otherwise fixing any sign, notice, placard, bill, card, poster, advertisement or other device calculated to attract the attention of the public, to or upon any sidewalk, crosswalk, curb or curbstone, flagstone or any other portion or part of any public way, lamppost, electric light, traffic light, telegraph, telephone or trolley line pole, hydrant, shade tree or tree-box, or up on the piers, columns, trusses, girders, railings, gates or parts of any public bridge or viaduct, or upon any pole box or fixture of the police and fire communications system..., or on any bus shelter, except that the city may allow the posting of decorative banners in accordance with Section 10-8-340 below.

Chi. Mun. Code § 10-8-320(a). The ordinance does not define "commercial advertising material." It establishes a rebuttable presumption that anyone whose goods, services, or activites are promoted in the commercial advertising matter caused it to be distributed. Id. § 10-8-320(b). It provides for a fine up to $1,000 for each offense. Id. § 10-8-320(c).

RCP contested the ticket. On November 16, 2015, the administrative law judge handling the matter found that RCP liable had violated the ordinance and imposed a fine of $350 plus $40 in fees.

One month later, RCP filed the present lawsuit. RCP contends that section 10-8-320 violates its First Amendment rights and those of all persons who have been ticketed or fined under the ordinance. RCP argues that the ordinance is an unconstitutional content-based restriction because it regulates speech based on the topic discussed, specifically, it restricts "commercial" signs but not others. According to RCP, there is no compelling government interest served by the restriction.

The City has moved to dismiss, arguing that the ordinance does not violate the First Amendment and that RCP has failed to state a plausible claim. The Court denies the City's motion for the reasons stated below.

Discussion

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter...to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although "the degree of specificity required is not easily quantified...the plaintiff must give enough details about the subject-matter of the case to present a story that holds together." McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir.2011) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.2010). The Court "accept[s] as true all well-pleaded facts in the complaint, and draw[s] all reasonable inferences in favor of the plaintiff." Kubiak v. City of Chicago , 810 F.3d 476, 480 (7th Cir.2016) ; see also Tamayo v. Blagojevich , 526 F.3d 1074, 1081 (7th Cir.2008) ).

A. Commercial or noncommercial speech

The First Amendment prohibits the government from "abridging the freedom of speech." U.S. Const. Amend. I. Certain categories of speech—like commercial speech—receive a lesser degree of protection. See Jordan v. Jewel Food Stores, Inc. , 743 F.3d 509, 515 (7th Cir.2014). "[C]ommercial speech is constitutionally protected but governmental burdens on this category of speech are scrutinized more leniently than burdens on fully protected noncommercial speech." Id. (citing Bd. of Trs. of State Univ. of New York v. Fox , 492 U.S. 469, 477, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) ).

The "starting point" definition for commercial speech is speech that "proposes a commercial transaction." Jordan , 743 F.3d at 516. The Seventh Circuit has identified guideposts for classifying speech as commercial speech, including whether 1) the speech is an advertisement; 2) the speech refers to a specific product; and 3) the speaker has an economic motivation for the speech. See United States v. Benson , 561 F.3d 718, 725 (7th Cir.2009) (citing Bolger v. Youngs Drug Prods. Corp. , 463 U.S. 60, 66–67, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) ). "This is just a general framework, however; no one factor is sufficient, and Bolger strongly implied that all are not necessary." Jordan , 743 F.3d at 517.

The parties have briefed the motion to dismiss on the premise that the ordinance is a regulation of commercial speech and only that. In the Court's view, that is less than clear. Specifically, the Court cannot say, based on RCP's complaint, that the speech for which it was penalized under the City's ordinance is appropriately classified as commercial in the first place. The film itself plainly had a political or social message; that much is clear from the description in the complaint. Although the poster publicized the in-person and online premieres of the film, that does not necessarily make it commercial speech. Among other things, there is no indication whether RCP had an economic motivation. Further, the political nature of the film and of RCP suggests the speech being regulated might actually be political—similar, perhaps, to a poster promoting a rally for a political candidate. This could affect the standard of review used to assess the ordinance, because "[l]aws that burden political speech are subject to strict scrutiny." Citizens United v. Federal Election Comm'n , 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).

The boundary between commercial speech and non-commercial speech is not always clear, as reflected by the Seventh Circuit's very extended discussion of this point in Jordan. Jordan , 743 F.3d at 515–21. There are at least some cases in which it is "legally or practically impossible for the speaker to separate the commercial and noncommercial elements of his speech," id. at 521, and it is at least conceivable that this is one such case—the parties have not addressed the point. If this is such a case, then the question is whether, "taken as a whole," the speech is properly classified as noncommercial. Id. at 520 (quoting Fox , 492 U.S. at 474, 109 S.Ct. 3028 ).

The lack of clarity regarding whether the poster was actually "commercial speech" as cases under the First Amendment use that term suggests a potential (though unraised) statutory vagueness argument. See Ctr. for Individual Freedom v. Madigan , 697 F.3d 464, 478–79 (7th Cir.2012) ("[T]he void-for-vagueness doctrine protects against the ills of a law that fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement."). As the Court has noted, the ordinance provides no definition or guidance regarding what constitutes "commercial advertising material" subject to the ban. But because the parties have not addressed this point, the Court leaves it for another day.

B. Application of the law regarding commercial speech

Because the parties discuss the ordinance's constitutionality based on the premise that it is a regulation of commercial speech, the Court will address their arguments even though, as just discussed, it is not clear that the ordinance is actually that focused. According to RCP, section 10-8-320 is an improper content-based restriction because it distinguishes between commercial and non-commercial speech. RCP further argues that the City cannot establish a compelling interest for the ordinance or that it is narrowly tailored to meet such an interest and that the ordinance does not survive strict scrutiny. The City argues that the ordinance is not subject to strict scrutiny but rather that the applicable standard is the intermediate scrutiny standard for commercial speech set out in Central Hudson Gas & Electric...