Left Field Media LLC v. City of Chicago (137 F. Supp. 3d 1127, 2015)

MEMORANDUM OPINION AND ORDER

JORGE L. ALONSO, District Judge

Before the Court is (1) Magistrate Judge Mason’s Report and Recommendation of July 29, 2015, [63] (as amended on August 28, 2015 solely to add citations to hearing transcripts [78]), which is adopted in its entirety; and (2) plaintiffs motion for a preliminary injunction [33], which is denied.

BACKGROUND

Plaintiff, Left Field Media LLC (“Left Field”), is a, company that publishes a magazine called Chicago Baseball that is issued four times per year during the major league baseball season. Left Field sells the magazine for $2.00 on the public ways surrounding Wrigley Field before Chicago Cubs home games. This suit arises out of the events that occurred on April 5, 2015, the day of the Cubs’ 2015 home opener. Matthew Smerge, who owns Left Field and serves as the publisher and editor of Chicago Baseball, was selling the 'magazine bn the public way at the northeast corner of Clark and Addison Streets when Chicago Police Commander Elias Voulgaris approached Smerge and told him that he and his vendors had to move across the street and that Voulgaris would ticket any vendor he saw on the Cubs’ side of the street. Despite this warning, Smerge continued to sell magazines from the same spot, and about a half-hour later, Voulgaris issued him a ticket for selling Chicago Baseball in a no-peddling zone and warned Smerge that if he did not move to the other side of the street, he would be arrested. Smerge then moved across the street, where Left Field alleges that it suffered reduced sales.

Three days later, on April 8, 2015, Left Field filed this action, which seeks injunc-tive, declaratory, and monetary relief against Voulgaris and the City of Chicago (the “City”) for alleged violations of plaintiffs First Amendment rights. Plaintiff brings as-applied and facial challenges to three sections of the Chicago Municipal Code: (1) Section 4-244-140, which prohibits all peddling on the public ways adjacent to Wrigley Field (the “Adjacent-Sidewalks Ordinance,” which Smerge was ticketed for violating, R. 72-3); (2) Section 4-244-030, which requires peddlers to first obtain a peddling license (the “Peddler’s License Ordinance”); and (3) Section 10-8-520, which provides that no person other than a licensed peddler shall sell any article or service, except newspapers, on any public way. (R. 1, Compl.)

The day after filing this suit, plaintiff moved for a temporary restraining order (“TRO”) to enjoin defendants from interfering with plaintiffs access to the public sidewalks adjacent to Wrigley Field for the purpose of selling Chicago Baseball during Cubs home games. (R. 5.) This Court granted the motion, entered a TRO, and referred the case to Magistrate Judge Mason for a preliminary injunction hearing. The TRO was then extended by agreement at times and most recently by this Court until its ruling on plaintiffs preliminary-injunction motion.

On June 16, July 10, and July 21, 2015, Judge Mason held an evidentiary hearing on plaintiffs motion for a preliminary injunction. In its motion, plaintiff seeks to enjoin defendants from enforcing the Adjacent-Sidewalks Ordinance and the Peddler’s License Ordinance. Judge Mason issued a Report and Recommendation on July 29, 2015, recommending that this Court deny plaintiffs motion. (R. 63.) On August 13, 2015, plaintiff objected to Judge Mason’s Report and Recommendation as provided by Federal Rule of Civil Procedure 72 and 28 U.S.C. § 636(b)(1). (R. 70.) On August 27, 2015, defendants responded to plaintiffs objections. (R. 76.)

DISCUSSION

A. Legal Standards

1. Standard of Review

“When a magistrate judge prepares a report and recommendation for a district court, the governing statute provides that the district court ‘shall make a de novo determination’ with respect to any contested matter.” Kanter v. C.I.R., 590 F.3d 410, 416 (7th Cir.2009) (quoting 28 U.S.C. § 636(b)). The Court of Appeals has observed:

De novo review requires the district judge to decide the case based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge’s conclusion. The district judge is free, and encouraged, to consider all of the available information about the case when making this independent decision. A district judge may be persuaded by the reasoning of a magistrate judge or a special master while still engaging in an independent decision-making process.

Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir.2013) (citing United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). The district judge makes the ultimate decision to adopt, reject, or modify the magistrate judge’s recommendation. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir.2009); see also Fed.R.Civ.P. 72.

2. Preliminary Injunctions

“ ‘A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” Goodman v. Ill. Dep’t of Fin. & Prof'l Regulation, 430 F.3d 432, 437 (7th Cir.2005) (brackets and emphasis omitted). (quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)). It is “often seen as a way to maintain the status quo until merits issues can be resolved at trial.” Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 783 (7th Cir.2011). The Court of Appeals has described the proper analysis as follows:

In our circuit, a district court engages in a two-step analysis to decide whether such relief is warranted.. In the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) absent preliminary injunc-tive relief, he will süffer irreparable harm in the interim prior to a final resolution;- (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits. If the movant makes the required threshold showing, then the court proceeds to the second phase, in which it considers: (4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties (the “public interest”). The court weighs the balance of potential harms on a “sliding scale” against the movant’s likelihood of success: the more likely he is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in his favor.

Turnell v. CentiMark Corp., 796 F.3d 656, 661-62 (7th Cir.2015). The threshold for establishing likelihood of success is relatively low. U.S. Army Corps, 667 F.3d at 782. In First Amendment cases like this one, the likelihood of successes usually the decisive factor because the loss of First Amendment freedoms “unquestionably constitutes irreparable injury,”’ and “injunctions protecting First Amendment freedoms are always in the public interest.” Wis. Right To Life, Inc. v. Barland, 751 F.3d 804, 830 (7th Cir.2014).

B. The Adjacent-Sidewalks Ordinance . (§ 4-244-140)

Section 4-244-140, the Adjacent-Sidewalks Ordinance, provides as follows in relevant part:

No person shall peddle any merchandise on the sidewalk immediately adjacent to Wrigley Field; such sidewalk consisting of the north side of Addison Street, the east side of Clark Street, the south side of Waveland Avenue, and the west side of Sheffield Avenue. For purposes of this subsection (b), the term “sidewalk” shall mean that portion of the public' way-extending from the perimeter of "the Wrigley Field stadium structure to the street curb or curb line.

Chi., Ill., Mun. Code § 4-244-140(b).

Sidewalks like the ones outside Wrigley Field “are traditional public forums where the exercise of First Amendment rights is often most vibrant. As the Supreme Court has described the rationale for promoting broad access to public forums, ‘streets, sidewalks, parks and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights, cannot constitutionally be denied broadly and absolutely.’ ” Marcavage v. City of Chi., 659 F.3d 626, 630 (7th Cir.2011) (quoting Carey v. Brown, 447 U.S. 455, 460, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)). “However, the fact that such rights cannot be denied ‘broadly and absolutely’ does not mean they cannot be curtailed at all. On the contrary, the time, place, and manner of a speaker’s activities, can be regulated without violating the First Amendment so long as the restrictions are (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels for communication.” Id. (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)).

After hearing testimony and reviewing the parties’ exhibits and briefs, Judge Mason determined that the Adjacent-Sidewalks Ordinance (hereinafter, in this séction of the opinion, the “Ordinance”) is content neutral on its face and a reasonable “time, place, or manner” regulation under the test set forth in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). In Judge Mason’s view, the Ordinance is valid under the First Amendment, so plaintiff has not shown a likelihood of success on the merits.

1. Content Neutrality

Plaintiff, citing Reed v. Town of Gilbert, Arizona, — U.S. —, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015) and Norton v. City of Springfield, Illinois (“Norton II”), No. 35-3581, 2015 WL 4714073 (7th Cir. Aug. 7, 2015), first challenges Judge Mason’s determination that the Ordinance is content neutral.

Some background about Reed and Norton is required. In its first decision in the Norton proceedings, the Court of Appeals affirmed the district court’s denial of plaintiffs’ motion to preliminarily enjoin enforcement of the City of Springfield’s panhandling ordinance. Norton v. City of Springfield, Ill. (“Norton I”), 768 F.3d 713 (7th Cir.2014). In Norton I, the Court reasoned that the panhandling ordinance does not draw lines based on the content of anyone’s speech. Id. at 714, 717-18. On June 18, 2015, the Supreme Court issued Reed. Shortly thereafter, in Norton II,the Court of Appeals granted plaintiffs’ petition for rehearing, applied Reed to the City of Springfield’s panhandling ordinance, reversed the judgment of the district court, and remanded the case for 'entry of an appropriate injunction. The Court explained:

Plaintiffs contend that the ordinance’s principal rulé—barring oral requests for money now but not regulating requests for money later—is a form of content discrimination.

The panel disagreed with that submission for several reasons. We observed that the ordinance does not interfere with the marketplace for ideas, that it does not practice viewpoint discrimination, and that the distinctions that plaintiffs call content discrimination appear to be efforts to make the ordinance less restrictive, which should be a mark in its favor. We summed up: “The Court has classified two kinds of regulations as content-based. One is regulation that restricts speech because of the ideas it conveys. The other is regulation that restricts speech because the government disapproves of its message. It is hard to see an anti-panhandling ordinance as entailing either kind of discrimination.” 768 F.3d at 717 (citations omitted). We classified the ordinance as one regulating by subject matter rather than content or viewpoint.

Reed understands content discrimination differently. It wrote that “regulation of speech is content based if a law applies tb particular speech because of the topic discussed or the idea or message expressed.” 135 S.Ct. at 2227 (emphasis added). Springfield’s ordinance regulates “because of the topic discussed”. The Town of Gilbert, Arizona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient: “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 135 S.Ct. at 2228. It added: “a speech regulation targeted at specific subject. matter is content based even if it does not discriminate among viewpoints within that subject matter.” Id. at 2230.

Three Justices concurred only in the judgment in Reed. 135 S.Ct. at 2236-39 (Kagan, J., joined by Ginsburg & Breyer, JJ.). Like our original opinion in this case, these Justices thought that the absence of an effort to burden unpopular ideas implies the absence of content discrimination. But the majority held otherwise; that’s why these three Justices wrote separately. The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind , of speech from another by reference to its meaning now requires a compelling justification.

Our observation, 768 F.3d at 717, that Springfield .has attempted to write a narrowly tailored ordinance now pertains to the justification stage of the analysis rather than the classification stage. But Springfield has not contended that its ordinance is justified, if it indeed represents content discrimination. As we said at the outset, the parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination. Reed requires a positive answer.

Norton II, 2015 WL 4714073, at *1-2.

Plaintiff argues that Judge Mason’s “formulation of the meaning of ‘content-based,’ ” reliance on Norton I, and determination that the Adjacent-Sidewalks Ordinance is content neutral was mistaken in light.of Reed. (R. 70, Pl.’s Objections at 2.) In plaintiffs view, “the City’s scheme of favoring one organ ,bf communication (newspapers) over all others (magazines, books, pamphlets, leaflets) amounts to content-based discrimination.” (Id. at 3.)

As Judge Mason pointed out, plaintiffs motion does not seek to enjoin the enforcement of the newspaper exemption in § 10-8-520. (R. 78, Am, R & R at 1145 n.4.) Yet plaintiffs sole basis for its argument that the Adjacent-Sidewalks Ordinance is content-based is the entirely separate newspaper exemption. (R. 70, Pl.’s Objections at 2-6.) By invoking the City’s “scheme,”' plaintiff assumes, without discussion, that the newspaper exemption in § 10-8-520 applies to the Adjacent-Sidewalks Ordinance. Defendants, for their part, note that Judge Mason as well as other courts have assumed that the Ordinance exempts newspaper peddlers, and defendants contend that “whether such a carve-out exists is á question of state law properly decided by the Illinois courts” and “is not squarely presented in this case [because] Plaintiff does not contend that its publication is a newspaper.” (R. 76, Defs.’ Resp. at 6 n.5.)

The Court agrees that plaintiff has not “squarely presented” the issue, but not because it fails to argue that Chicago Baseball is a newspaper. After all, the Court of Appeals addressed the issue in Weinberg even though it appears that the plaintiff did not present such an argument. (Rather, the plaintiff argued that his publication was a book and that the Court should have extended the exemption to books.) Because plaintiff fails to develop an argument for treating the newspaper exemption as part of the Adjacent-Sidewalks Ordinance, the Court will not do so. There is no indication in the language of the Ordinance that it incorporates or is subject to § 108-520. And even if there were, plaintiff has not explained why, if § 10-8-520 were found to be unconstitutional, the appropriate remedy would extend any further than the invalidation of that particular section. Plaintiffs motion, however, does not seek to enjoin enforcement of § 10-8520.

Pursuant to the framework set out in Reed, the Court must first determine whether the Adjacent-Sidewalks Ordinance is content neutral on its face. See 135 S.Ct. at 2228. The Ordinance is facially content neutral—it simply bans the peddling of any merchandise on the sidewalks immediately adjacent to Wrigley Field—so it clears this hurdle. Furthermore, even if the newspaper exemption can be considered part of the Adj acent-Sidewalks Ordinance, its inclusion would not render the Ordinance content-based under Reed and Norton II. The Supreme Court stated in Reed that “a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 2231. In Norton II, the Court of Appeals summarized Reed’s teaching as follows: “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.” 2015 WL 4714073, at *2. Assuming that the Adjacent-Sidewalks Ordinance is a restriction on speech and not merely a regulation of conduct, it does not draw any distinctions based on the meaning of speech, the topic discussed, or any message expressed. The newspaper exemption distinguishes between forms of publications, not their content. In his Reed concurrence, which was joined by Justices Kennedy and Sotomayor, Justice Alito- provided a list of sign regulations that would not be content based, including “[r]ules regulating the size of signs” and “[r]ules distinguishing between signs with fixed messages and electronic signs with messages that change.” 135 S.Ct. at 2233. In the Court’s view, the newspaper exemption is akin to these types of regulations. The Court is unpersuaded by plaintiffs assertions that “distinctions among organs of communication are content-based by their very nature” and that the exemption is “speaker-based” and a “subtle” form of content discrimination. (R. 70, Pl.’s Objections at 3-4.) Even if the newspaper exemption were properly considered part of the Adjacent-Sidewalks Ordinance, it does not amount to a content-based distinction.

In the second step Of the Reed analysis, a facially content-neutral law can still be categorized as cohtent based if it cannot be “ ‘justified without reference to the content of the regulated speech’ ” or if it was adopted by the government “ ‘because of disagreement with the message the speech conveys,’ ” 135 S.Ct. at 2227 (brackets omitted) (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746). The City’s justification for the Adjacent-Sidewalks Ordinance—its interest in alleviating congestion and ensuring public safety on the sidewalks and streets surrounding Wrigley Field—is content neutral. Plaintiff again focuses exclusively on the newspaper exemption, which the Court does not consider to be part of the Adjacent-Sidewalks Ordinance; nonetheless, the Court will assume that it is for the sake of argument. There is no evidence (and plaintiff does not argue) that the City adopted the exemption because of a disagreement with any- ' one’s message. Plaintiff does contend that the City has failed'to present a valid content-neutral justification for the exemption. (R. 70, PL’s Objections at 5.) But Judge Mason’s reliance on Weinberg, in which the Court of Appeals stated that “[s]elling goods or merchandise would create a greater disruption than selling a 50