Weinberg v. City of Chicago (310 F.3d 1029, 2002)

BAUER, Circuit Judge.

Plaintiff-appellant Mark Weinberg brought a suit challenging the constitutionality of Chicago’s peddling law after being threatened with arrest for violating the ordinance. Weinberg argued the law, which prohibits peddling on public sidewalks in certain areas of the city, is unconstitutional under the First Amendment of the United States Constitution. Both parties moved for summary judgment and the district court granted summary judgment in favor of the City of Chicago. Weinberg appeals, arguing the district court erred in granting summary judgment and that the peddling ordinance is unconstitutional. Finding that the ordinance is not a proper time, place, and manner restriction and is an impermissible prior restraint on free speech, we reverse the district court’s decision.

BACKGROUND

Mark Weinberg wrote and published a book entitled Career Misconduct: The Story of Bill Wirtz’s Greed, Corruption, and the Betrayal of Blackhawk Fans, which, as is evident from the title, takes a highly critical look at Chicago Blackhawks owner Bill Wirtz. Weinberg decided to sell the book in what he determined to be an atmosphere highly conducive to sales: the United Center, home of the Chicago Black-hawks professional hockey team.

Mr. Weinberg is no stranger to selling his wares outside the United Center and its forerunner, the Chicago Stadium. From 1991 through 1997 Weinberg published and sold a magazine which, similar to Career Misconduct, negatively portrayed Wirtz and his ownership tactics. During this time Weinberg sold his magazine without incident or interference from authorities.

Beginning in December 2000, Weinberg began selling his criticisms of Wirtz in book format, charging $13.00 per copy. For approximately two months, Weinberg sold the book on the public sidewalks outside the United Center undisturbed. But on the evening of February 14, 2001, Chicago police officers informed Weinberg that he must stop selling his book outside the United Center, explaining that he was in violation of the City’s peddling ordinance.

The section at issue, 4-244-147 of Chicago’s Municipal Code (the “peddling ordinance”), provides as follows:

No person shall peddle merchandise of any type on any portion of the public way within 1,000 feet of the United Center. A person holding a valid peddlers’ 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 written 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 provision 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.

In addition, as part of the City’s peddling ordinance, a separate provision, § 10-8-520, provides as follows:

No person, other than a licensed peddler, as by the provisions of Chapter 4-244 of this Code shall sell, offer or expose for sale, or solicit any person to purchase any article or service whatsoever, except newspapers, on any public way.

The Chicago City Council enacted the ordinance to alleviate traffic congestion and maintain pedestrian safety around the United Center. It also enacted similar restrictions around other large stadiums throughout Chicago.

Confronted with the threat of arrest, Weinberg ceased selling the book on the public sidewalks outside the United Center. Then Weinberg sought and obtained a temporary restraining order which permitted him to resume book sales outside the United Center and the parties agreed to have the case transferred to a magistrate judge. Both parties filed motions for summary judgment. The court denied Weinberg’s motion but granted summary judgment on all counts for the City, finding that the ordinance did not violate the First Amendment. Weinberg appealed, claiming the ordinance violates his free speech rights. He bases his First Amendment attack on the Chicago ordinance on a myriad of theories, contending the law does not apply to book sellers, is not a reasonable time, place, and manner restriction, is void for vagueness, and violates the doctrine of prior restraint. Each of these is addressed in turn.

ANALYSIS

The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” U.S. Const. Amend. I. The Supreme Court recognized in Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), that this provision also applies to state governments under the Fourteenth Amendment. That the appellant sells his book for profit does not change the First Amendment analysis. “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 801, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). See also Ayres v. City of Chicago, 125 F.3d 1010, 1014 (7th Cir. 1997) (“there is no question that the T-shirts are a medium of expression prima facie protected by the free-speech clause of the First Amendment, and they do not lose their protection by being sold rather than given away”)- We review a summary judgment determination as well as any questions of constitutional law under the de novo standard of review.

Mr. Weinberg wishes to sell his book on the public sidewalks surrounding the United Center. Public sidewalks come under the designation of a traditional public forum. Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). “[PJublic streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum.” Id. See also Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). When regulating First Amendment activity in a public forum the government has a difficult burden to carry. 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). We have noted that “[g]iven their greater importance to the free flow of ideas, public fora receive greater constitutional protection from speech restrictions.” Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287, 1297 (7th Cir.1996). Through this lens we now consider each of Weinberg’s claims.

I. Interpreting § k-&hh-lWt

Weinberg first argues that the ordinance at issue is inapplicable to First Amendment activity such as selling a book. Inherent in this point of contention is Weinberg’s claim that printed material such as books cannot be included under the ordinance’s definition of “goods, wares [and] merchandise.” We will construe the municipality’s law under state law. Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507-08 (7th Cir.1998). Illinois law states that “[w]here clear and unambiguous, statutory language must be enforced as enacted, and a court may not depart from its plain language by reading into it exceptions [or] limitations.” People ex rel. Devine v. $30,700.00 United States Currency, 199 Ill.2d 142, 262 Ill.Dec. 781, 766 N.E.2d 1084, 1089 (2002).

In making this argument, Weinberg fails to grasp that the plain language of the ordinance unambiguously states “no person shall peddle merchandise of any type on any portion of the public way within 1,000 feet of the United Center.” Chicago Municipal Code § 4-244-147. This language could not be more clear as to what is prohibited. While its constitutionality is another matter, it certainly covers appellant’s conduct. These words evidence a clear intent by the Chicago City Council to prohibit the sale of anything other than newspapers outside the United Center. A book, like a newspaper, comes under the designation of a “good.” Merchandise is generally considered as any tangible item held out for sale. There is little doubt that the City intended to include books under the guise of “goods, wares [and] merchandise.” Weinberg asks this Court to depart from the ordinance and extend the newspaper exemption to cover books. Applying Illinois law, we cannot come to any conclusion other than that book selling is prohibited while newspaper selling is not. Given these considerations, we reject Weinberg’s argument that the ordinance does not apply to someone selling a book.

Weinberg next claims that the ordinance’s exemption for newspaper sellers renders the law unconstitutional. He argues that the ordinance gives “special status” to newspapers over books. In effect, the ordinance singles out the sale of newspapers as being permitted while completely banning the sale of books. That the law exempts newspapers from restrictions but not books does not automatically mean the restriction is content-based. Leathers v. Medlock, 499 U.S. 439, 453, 111 S.Ct. 1438, 113. L.Ed.2d 494 (1991), explains that differential treatment such as this is unconstitutional only if it “is directed at, or presents the danger of suppressing, particular ideas.” In the case at bar, the suppression of particular ideas is not the consequence of enforcing this ordinance. Allowing some forms of expression while denying others does not signify a violation of the First Amendment. In United States v. Kokinda, 497 U.S. 720, 734, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), the Court noted that the activity of solicitation could be singled out and prohibited because of the disruption it caused. According to the Court, “[sjolicitation requires action by those who would respond” whereas leafleting does not require one to do anything other than “mechanically ... take it out of someone’s hand.” Id. The City of Chicago has similar concerns regarding public safety and traffic congestion around the United Center. Selling goods or merchandise would create a greater disruption than selling a 50