Weinberg, Mark G. v. City of Chicago ( 2003 )

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 19, 2003
Before
Hon. William J. Bauer, Circuit Judge
Hon. Ilana Diamond Rovner, Circuit Judge
Hon. Ann Claire Williams, Circuit Judge
No. 02-1372
MARK G. WEINBERG,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1139—Arlander Keys, Magistrate Judge.
____________
ORDER
On December 4, 2002, defendant-appellee filed a peti-
tion 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.
2 No. 02-1372
EASTERBROOK, Circuit Judge, with whom COFFEY and
MANION, Circuit Judges, join, dissenting from the denial of
rehearing en banc. This case presents the question wheth-
er the first amendment (applied to the states by the four-
teenth) 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 try-
ing 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 cir-
cuits, as people seek to put public spaces to private ends.
See, e.g., Thomas v. Chicago Park District, 534 U.S. 316(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
1
“No person shall peddle merchandise of any type on any por-
tion of the public way within 1,000 feet of the United Center. A
person holding a valid peddler’s license may peddle merchandise
while on private property within 1,000 feet of the United Center
only from a cart, table or temporary stand on private property
without obstructing the public way, and pursuant to prior writ-
ten permission from the property owner to do so. The provisions
of this section shall be in addition to any other limitation on
or regulation of peddlers. Any person who violates any provi-
sion of this section shall be fined not less than $200.00 nor
more than $500.00 for each offense, and each day such violation
shall continue shall be deemed a separate offense.” Chicago
Municipal Code §4-244-147.
No. 02-1372 3
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 dis-
missed the City’s evidence out of hand as “self-serving”
(310 F.3d at 1038) and held the ordinance unconstitu-
tional 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
2
“Officer John Walls testified at his deposition that, prior to the
enactment of the peddlers’ ordinance, peddlers slowed up and
even stopped traffic, even though all peddlers were required to
be ‘mobile.’ ‘For years I have been asking to have all the vendors
removed to the other side of the street because you can’t have
vendors out there when you’re trying to get 22,000 people or
24,000 people into a Bulls game, because everyone of them
disrupts and causes problems’ with regard to traffic congestion
and pedestrian safety. Specifically referencing Plaintiff ’s activ-
ities, Officer Walls stated that Plaintiff frequently gathered
crowds of six to eight people, and that ‘[w]hen you have a crowd
of six people eight people standing at the mouth of the sidewalk,
these people have to go outside that protected area in order to
get around or—and even if they’re just walking around four or
five people in a sidewalk—I mean outside the sidewalk on the
street, to me that’s obstructing.’ Officer Walls also testified
that the peddlers’ ordinance ‘helped immensely’ and greatly
reduced the congestion around the United Center, stating that
when ‘we were able to move [the peddlers] away, it opened up
traffic to where it was like a difference on night and day. We
didn’t even realize how much of a problem we had because it was
there all the time. As we moved the vendors away, we were
able to—we actually could use less officers in certain areas and
put them into the main crosswalks and everything became
more orderly.’ ” Weinberg v. Chicago, 179 F. Supp. 2d 869, 876
(N.D. Ill. 2002) (footnote and citations to the record omitted).
4 No. 02-1372
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 (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 ex-
ception-ridden peddling-control ordinance held constitu-
tional in New Orleans v. Dukes, 427 U.S. 297 (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 gov-
ernment 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 pea-
nuts, 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 for-
bids 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 expres-
sive 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 (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 amend-
ment. Ever since United States v. O’Brien, 391 U.S. 367No. 02-1372 5
(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 (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 (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 (1984) (CCNV) (no
expressive-sleeping exception to rules banning camping
in a public park); Employment Division v. Smith, 494
U.S. 872 (1990) (first amendment does not compel govern-
ment to accommodate religiously motivated activities that
violate neutral statutes regulating conduct); Erie v. Pap’s
A.M., 529 U.S. 277 (2000) (no expressive-dancing excep-
tion 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 expres-
sive 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 mes-
sages, One World with T-shirts conveying cultural slo-
6 No. 02-1372
gans, 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 (1971) (text-bearing jack-
et); Tinker v. Des Moines Independent Community School
District, 393 U.S. 503 (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 at-
tempt 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 ordin-
ance should be treated as a time, place, and manner reg-
ulation of speech. It also is factually unsound. The prohibi-
tion 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 prohibi-
tion in One World covered all “public streets, alleys, side-
walks, 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
No. 02-1372 7
for the privilege, but any book seller must cover the ex-
pense of distribution: bookstores need to buy or rent their
premises, while authors and publishers need to pay middle-
men (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 burden of making an exception is mea-
sured by how much disruption the plaintiff would cause,
and it held that the City must permit book sales because
Weinberg personally would not stir up much ruckus. It
harped on the fact that Weinberg’s book is critical of the
Blackhawks’ owner—as if the constitutionality of the
ordinance depends on the plaintiff’s viewpoint. Not so;
either the law constitutionally may be applied to all litera-
ture sales, or it may be applied to none, and the author’s
angle does not matter. (Weinberg does not contend that
this law was enacted to make it hard for him to sell his
book.) The panel remarked: “The City of Chicago has
provided no objective evidence that traffic flow on the
sidewalk or street is disrupted when Mr. Weinberg sells his
book. . . . The City also fails to explain why there were
no disturbances or problems when Weinberg was selling
his book during the period prior to enforcement of the
ordinance or after the lower court granted the temporary
restraining order.” 310 F.3d at 1039 (emphasis added). This
is not the right question. Heffron and CCNV reject any
argument that the burden of making exceptions must be
measured against the plaintiff’s conduct standing alone.
See, e.g., 452 U.S. at 652 (“[t]he justification for [a law]
should not be measured by the disorder that would result
from granting an exception solely to [the litigant]”).
Given the panel’s opinion, anyone may sell any expres-
sive material (including T-shirts and “expressive souve-
8 No. 02-1372
nirs” such as team pennants) on public ways near United
Center. Because commercial speech is protected by the first
amendment, see Thompson v. Western States Medical
Center, 535 U.S. 357 (2002), and everything offered for sale
at a sports stadium includes some commercial speech,
everything may be sold there as a result of the panel’s
opinion—including bags of pretzels bearing horoscopes
and hot dogs served in paper trays emblazoned with slo-
gans such as “All-beef franks are good for you!” or “Go
Bulls!”. Commercial speech may be regulated to curtail
secondary effects, see Central Hudson Gas & Electric
Corp. v. Public Service Commission, 447 U.S. 557, 566
(1980), but the panel has held that the secondary effects of
peddling are not so bad (and, to repeat, the City has not
tried to regulate speech at all, so this line of argument is
unavailable to it). Thus the question on the table is the
degree of congestion to be expected from the law’s repeal;
it is not limited to the hassles Weinberg will cause all by
himself. Indeed, the precedential force of this opinion takes
out similar laws that cover Soldier Field, Wrigley Field,
Comiskey Park, and other sports venues—not only in
Chicago but also throughout the circuit. Many of these, like
United Center, are situated in residential neighborhoods
where auto and pedestrian traffic come to a crawl on game
days.
The panel gets no support from its observation that a
videotape taken near United Center after this suit was
filed “shows no interference with any pedestrian traffic nor
any congestion along the sidewalk.” 310 F.3d at 1038. This
is another Weinberg-specific point: everyone else was
obeying the law. As Heffron and CCNV hold, it just does
not matter that Weinberg personally won’t cause the sky
to fall. What the tape principally demonstrates is that
enforcement of the ordinance facilitates smooth traffic
flow. Evidence that a statute works should not be confused
with a demonstration that it serves no useful purpose.
No. 02-1372 9
(A tape of the vicinity at game time preceding the ordi-
nance’s enactment could permit a before-and-after compari-
son, but none is in the record.)
One final observation. Part IV of the panel’s opinion, 310
F.3d at 1043-46, holds that the criteria for issuing ped-
dling licenses are unconstitutionally vague. The City has
not sought reconsideration of this issue, which is rele-
vant only if the 1,000-foot rule fails. Doubtless the City
plans to fix this problem legislatively or by regulation.
Under the panel’s analysis, however, the 1,000-foot rule
is not reparable. The case thus presents an important and
recurring issue, creates a conflict among the circuits, and
depends on legal propositions that the Supreme Court
does not approve. These considerations support rehearing
en banc.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-03