Thomas et al v. Chicago Park District, 99-1811

• Decision Date: 14 September 2000
• Docket Number: No. 99-1811,99-1811
• Citation: 227 F.3d 921
• Parties: (7th Cir. 2000) Caren Cronk Thomas and Windy City Hemp Development Board, Plaintiffs-Appellants, v. Chicago Park District, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 921

227 F.3d 921 (7th Cir. 2000)

Caren Cronk Thomas and Windy City Hemp Development Board, Plaintiffs-Appellants, v. Chicago Park District, Defendant-Appellee.

No. 99-1811

In the United States Court of Appeals For the Seventh Circuit

Argued April 19, 2000

Decided September 14, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 2963--George M. Marovich, Judge. [Copyrighted Material Omitted] Before Posner, Coffey and Easterbrook, Circuit Judges.

Posner, Circuit Judge.

Among the regulations of the Chicago Park District governing the use of its parks is one requiring that a permit be obtained for an assembly, parade, demonstration, sporting event, or other use of the park by a group of 50 or more persons. Chi. Park Dist. Code ch. VII sec. C. The regulation spells out the criteria for the grant of such a permit, and the procedures for obtaining it and for challenging its denial, in considerable detail. The plaintiffs, who want to use the park for rallies in favor of repealing the laws criminalizing the sale of marijuana, claim that the regulation violates the free-speech clause of the First Amendment "on its face," that is, without regard to whether the regulation has been applied in such a way as to infringe the right of free speech. Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30 (1992); Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-59 (1988); North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441, 444 (7th Cir. 1996). "Challenges to statutes as written, without inquiring into their application, are appropriate when details of implementation are inconsequential (usually because nothing could be done in the course of application to save the law) or when the laws are so overbroad that the risk of improper application leads persons to withdraw from the borderland. Fear of penalty, leading to a reduction in speech, supports the doctrine that a person whose speech lawfully could be regulated may challenge a statute achieving regulation in an improper way, or to an excessive extent." Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, 9 F.3d 1290, 1291-92 (7th Cir. 1993). The plaintiffs claim that because a regulation that requires permission to hold a political rally in a "public forum" (as the Chicago Park District's parks are conceded to be) imposes a "prior restraint" on the exercise of free speech, it must, to pass constitutional muster, be free of any element of vagueness or uncertainty that might enable the regulation to be enforced in such a way as to deter or impede the exercise of this most celebrated of constitutional rights.

We do not find this a helpful formula. The historical referent of "prior restraints" is censorship, see 4 William Blackstone, Commentaries on the Laws of England 151-53 (1769), which the administration of a park system does not much resemble. The statement in the plaintiffs' brief that "denial of a permit to hold a rally is the ultimate censorship" is hollow rhetoric. It is a censor's business to make a judgment about the propriety of the content or message of the proposed expressive activity. Because he is in the business of suppressing such activity (friends of free speech are not drawn to a career in censorship), the danger of abuse is very great, especially when assessed in light of the dismal history of censorship. The regulation challenged here does not authorize any judgment about the content of any speeches or other expressive activity--their dangerousness, offensiveness, immorality, and so forth. It is not even clear that the regulation reduces the amount of speech. A park is a limited space, and to allow unregulated access to all comers could easily reduce rather than enlarge the park's utility as a forum for speech. See Cox v. New Hampshire, 312 U.S. 569, 574-76 (1941); cf. Beal v. Stern, 184 F.3d 117, 128-29 (2d Cir. 1999). Just imagine two rallies held at the same time in the same park area using public-address systems that drowned out each other's speakers. Cf. Ward v. Rock Against Racism, 491 U.S. 781 (1989). The heterogeneity of the practices that the "prior restraints" formula covers (with the present case compare Freedman v. Maryland, 380 U.S. 51 (1965), involving a movie censorship board) is reason to doubt that it can provide much assistance to judges who have to decide a novel case.

The problem is general. General language, the language in which legal principles are couched, tends not to help much in the decision of cases in which weighty interests are on both sides of the balance that the court is asked to strike. Thus in this case there is, on the one hand, a danger in giving officials broad discretion over which political rallies shall be permitted to be conducted on public property, because they will be tempted to exercise that discretion in favor of their political friends and against their political enemies--and the advocates of legalizing the sale of marijuana and other controlled substances have very few political friends. But, on the other hand, a permit requirement is a sine qua non of managing a park system in a way that will preserve the value of the parks for the general public. Parks are primarily for recreation rather than for political and ideological agitation. They cannot be preserved in the primary use for which they are intended if any group can hold a rally of any size and length at any time with amplified sound of any volume. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296 (1984). Indeed, as we noted earlier, without regulation even the agitators might not be able to get their message across.

The competing interests cannot be weighed in the abstract in other than the grossest sense, and so a "correct" balance cannot be struck. This must give pause to any court minded to strike down a permit regulation on its face and so without consideration of its application to a particular event for which a permit was denied. A challenge to the wording as distinct from the actual application of a regulation invites semantic nit- picking and judicial usurpation of the legislative drafting function in an effort to avert, without creating loopholes, dangers at best hypothetical and at worst chimerical. The problem is well illustrated by this case as we consider the plaintiffs' objections to the regulation, all of which the district court rejected en route to granting judgment for the park district after another panel of this court reversed the grant of a preliminary injunction. MacDonald v. Chicago Park District, 132 F.3d 355 (7th Cir. 1997).

The regulation authorizes the denial of a permit on a variety of grounds none of which has anything to do with the content of expressive activity. Chi. Park Dist Code ch. VII sec. C5(e). One is that the applicant "has on prior occasions made material misrepresentations regarding the nature or scope of any event or activity previously permitted." The plaintiffs contend that the word "material" is excessively vague. The contention is frivolous. The word is one of the elemental legal terms, and is considered quite definite enough to form the keystone of criminal prohibitions against fraud. The residual vagueness that it shares with most words could be eliminated only by eliminating it from the regulation, but that would make the regulation more rather than less restrictive. The plaintiffs say that "misrepresentation" is vague too, and would prefer "falsehood." They have not suggested a substitute for "material" and so in effect they want us to rewrite the regulation so that it authorizes denying a permit to anyone who has told the park district a fib. All that their contention regarding the vagueness of "material misrepresentation" shows is the limits of language and so the inherent limitations of "facial" challenges.

They complain that the grounds for denial of a permit are permissive. The park district "may" deny a permit because of a misrepresentation, the failure to tender the fee, having damaged property of the park district on a previous occasion, or other grounds listed in the regulation, but it is not required to; it can forgive. The plaintiffs argue that this power of mercy arms the park district to pick and choose among applicants on political grounds. It indeed creates such a danger; but if this discretionary feature of the regulation were excised, the regulation would be more restrictive than it is (just as it would be if "falsehood" were substituted for "material misrepresentation"). This is another example of how free speech is so often on both sides of the balance in cases of the regulation as distinct from the prohibition of speech, a consideration that should make courts hesitant to invalidate such regulations. An even clearer example is a provision of the ordinance waiving the required permit fee for events protected by the First Amendment. The plaintiffs complain that this is vague, but do not indicate how it could be made less vague yet encompass the myriad activities that the First Amendment has been held to protect. Curtailing speech is an odd way of protecting speech.

The regulation requires applicants for permits to obtain liability insurance in the amount of $1 million to indemnify the park district against liability arising from a rally that might degenerate into a riot. (That is the amount of the policy, not the premium, which for the type of event envisaged by the plaintiffs would not exceed $1,200.) The plaintiffs argue ingeniously that since violence to person or property incidental to a political rally is likely to arise from the unpopularity of the cause espoused by the rally's sponsors or speakers, the requirement of buying insurance amounts to a "heckler's veto," which the cases hold is not a proper basis for restricting free speech. Forsyth County v. Nationalist Movement, supra, 505 U.S. at 134-35; Terminiello v. Chicago, 337 U.S. 1, 4- 5 (1949); ...