Weinberg v. City of Chicago, 02-1372.

• Decision Date: 19 February 2003
• Docket Number: No. 02-1372.,02-1372.
• Citation: 320 F.3d 682
• Parties: Mark G. WEINBERG, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

320 F.3d 682

Mark G. WEINBERG, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.

No. 02-1372.

United States Court of Appeals, Seventh Circuit.

February 19, 2003.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 C 1139 — Arlander Keys, Magistrate Judge.

Martin J. Oberman (argued), Chicago, IL, for Plaintiff-Appellant.

Marc J. Boxerman (argued), Office of the Corp. Counsel, Appeals Div., Chicago, IL, for Defendant-Appellee.

Before BAUER, ROVNER, WILLIAMS, Circuit Judges.

ORDER

On December 4, 2002, defendant-appellee filed a petition for rehearing en banc and on December 19, 2002, plaintiff-appellant filed an answer, and on December 26, 2002, defendant-appellee filed a reply in support of the petition for rehearing. A vote of the panel and active members of the court was requested, and a majority of the judges voted to deny the petition for rehearing en banc.

Judge Easterbrook dissented in an opinion joined by Judges Coffey and Manion, which follows. Judge Ripple voted to grant rehearing en banc but did not join in the dissent.

The petition for rehearing en banc is therefore DENIED.

EASTERBROOK, Circuit Judge, with whom COFFEY and MANION, Circuit Judges, join, dissenting from the denial of rehearing en banc.

This case presents the question whether the first amendment (applied to the states by the fourteenth) requires state and local governments to make speech exceptions to laws regulating conduct — here, the sale of merchandise. The panel answered yes, see Weinberg v. Chicago, 310 F.3d 1029 (7th Cir.2002), without trying to reconcile its view with contrary decisions of the Supreme Court. Nor did the panel recognize that it was going into conflict with other circuits that have rejected materially identical arguments. Whether governments must make speech exceptions to neutral statutes is an important and recurring question, here and in other circuits, as people seek to put public spaces to private ends. See, e.g., Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002); Graff v. Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc). Before dropping this into the Supreme Court's lap, we ought to take a second look at the issue.

An ordinance forbids all peddling on public property within 1,000 feet of United Center, where the Chicago Bulls and Chicago Blackhawks play their home games.¹ United Center is in a high-density residential area, and congestion becomes acute when crowds of 20,000 or more converge at game time. The district court found it undisputed that congestion used to be a serious problem, which the 1,000-foot rule relieved.² Our panel did not say that there is a material dispute that must be resolved at trial but dismissed the City's evidence out of hand as "self-serving" (310 F.3d at 1038) and held the ordinance unconstitutional as a matter of law because it does not make an exception for books.

Why can't peddling-control ordinances cover sales of literature? Economic laws of general application are valid if supported by any rational basis, and the government receives the benefit of all plausible inferences. Legislative choices are "not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). This ordinance faces no problem under that standard, and the panel soundly rejected a contention that the law's exception for newspapers makes it improper to curtail other peddling. 310 F.3d at 1035-36. Chicago's rule is a good deal more sensible than the exception-ridden peddling-control ordinance held constitutional in New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). Our panel nonetheless assumed that the rules about time, place, and manner restrictions on speech apply to anti-peddling laws as applied to writings, and that the government thus must show that it has regulated with the lightest possible touch. Yet the City's ordinance does not single out the spoken or written word. It covers peanuts, beer, ice cream, hockey pucks, noisemakers, team jerseys, bobblehead dolls of Michael Jordan, and anything else that vendors may want to sell near a stadium. It forbids selling a hagiography of Bobby Hull or an autographed team picture, just as it forbids selling a denunciation of Arthur Wirtz or a can of Coca Cola.

Whether laws regulating conduct must except expressive activities is an old question, with an established answer: no. Governments may collect sales taxes on all retail transactions, including written, recorded, and broad-cast speech, see Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991) (holding that this is so even if some media are exempted); Borders must locate its bookstores and Blockbuster its video outlets in areas zoned for shops rather than homes; AOL Time Warner must pay federal income tax just like every other corporation, even though almost all of its gross receipts come from material protected by the first amendment. Ever since United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), it has been understood that conduct regulation neutral with respect to a speaker's viewpoint may be enforced according to its terms. That principle covers Chicago's ordinance, which does not heap extra regulation on speech or speakers (contrast Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987)) or allow any viewpoint-based exception (does not, for example, exempt paeans to the Mayor). O'Brien has been understood to nix all sorts of constitutionally based requests to remove expressive activities from generally applicable statutes. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (no leaflet-sale exception to regulation of all sales at a state fair); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (CCNV) (no expressive-sleeping exception to rules banning camping in a public park); Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (first amendment does not compel government to accommodate religiously motivated activities that violate neutral statutes regulating conduct); Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (no expressive-dancing exception to prohibition of public nudity). True, none of these decisions involved books, but the first amendment does not distinguish between leaflets (one subject of Heffron) and books.

Other courts of appeals have used the O'Brien principle to hold that government need not allow the sale of expressive materials in public parks where selling souvenirs and other trinkets has been forbidden. See, e.g., Henderson v. Kennedy, 253 F.3d 12 (D.C.Cir.2001); Friends of the Vietnam Veterans Memorial v. Kennedy, 116 F.3d 495 (D.C.Cir.1997); One World One Family Now v. Honolulu, 76 F.3d 1009 (9th Cir.1996); ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949 (D.C.Cir.1995). Once again none of these involved books: ISKCON dealt with religious audio tapes, Vietnam Veterans with T-shirts bearing political messages, One World with T-shirts conveying cultural slogans, and Henderson with religiously oriented T-shirts. Once again this is immaterial. Audio tapes and expressive clothing receive the same protection as other speech. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (text-bearing jacket); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (arm band implying a point of view). The first amendment applies to the message, not the medium. See, e.g., Ayres v. Chicago, 125 F.3d 1010 (7th Cir.1997); Chicago Acorn v. Metropolitan Pier & Exposition Authority, 150 F.3d 695, 703 (7th Cir.1998) (a "T-shirt could be considered a leaflet in another medium"). A neutral ban on sales treats books, T-shirts, and cotton candy alike; a constitutionally based exception for books must hold for T-shirts too, placing us in conflict with other circuits.

Our panel did not mention Henderson or ISKCON, although both were relied on by the district court and featured prominently in the appellate briefs. It did attempt to distinguish One World and Vietnam Veterans, on the ground that "the magnitude of the no-peddling zone eliminates the possibility that Weinberg could sell his book in proximity to the prohibited area, making reliance on these cases suspect." 310 F.3d at 1041 n. 3. This assumes what is to be established — that a neutral no-sale ordinance should be treated as a time, place, and manner regulation of speech. It also is factually unsound. The prohibition in Vietnam Veterans covered the Mall in Washington, D.C., which contains considerably more space than the public ways within 1,000 feet of United Center; the prohibition in One World covered all "public streets, alleys, sidewalks, malls, parks, beaches and other public places in Waikiki." 76 F.3d at 1011. And Chicago's ordinance does not expel Weinberg from the 1,000 feet surrounding United Center. He may give away his book, buttonhole passers-by and ply them with broadsides, or deliver a harangue from a soapbox. He may sell the book from any private property in the zone. An owner could charge him for the privilege, but any book seller must cover the expense of distribution: bookstores need to buy or rent their premises, while authors and publishers need to pay middlemen (including printers and bookstores) for essential services. The word "free" in the phrase "free speech" means "free of governmental meddling," not "free of cost."

If the ordinance really should be treated as a time, place, and manner rule, the panel's treatment of precedent from other circuits is not the only problem. Our panel assumed that the...