Buddy Bell v. James Keating, 2012 U.S. App. LEXIS 18952

Background

Buddy Bell was arrested under Chicago Municipal Code § 8-4-010(d) for failing to disperse when three or more people were engaging in disorderly conduct near him.
Bell challenged Subsection D as facially unconstitutional under the First and Fourteenth Amendments by seeking declaratory and injunctive relief.
The district court dismissed Bell’s claims for lack of standing to pursue injunctive relief.
Bell argued Subsection D is both overbroad and vague, chilling protected speech and permitting arbitrary enforcement.
The Seventh Circuit reversed in part, holding Bell had standing and that Subsection D is overbroad and vague, thus invalid as applied to certain speech, with partial invalidation
The court allowed partial invalidation and instructed the City to consider rewriting Subsection D to preserve constitutionality.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to seek injunctive relief	Bell has standing due to credible intent to protest and past chilling from enforcement.	Bell lacks immediate, concrete risk of future enforcement under Subsection D.	Bell has standing to challenge Subsection D and seek injunctive relief.
Overbreadth of Subsection D	Subsection D chills protected speech beyond its legitimate sweep.	Any chill is speculative and does not render the statute overbroad.	Subsection D is substantially overbroad and void.
Vagueness of Subsection D	Terms like serious inconvenience, alarm, and annoyance fail to give notice and invite arbitrary enforcement.	Illinois Supreme Court limits could construe the statute to avoid vagueness.	Subsection D is void for vagueness.
Dispositional remedy	Facial invalidation is necessary to prevent chilling effects; partial invalidation may be appropriate.	Partial invalidation may suffice; but the panel should consider severability and the City’s ability to rewrite.	Total invalidation of Subsection D was inappropriate; partial, but not full, invalidation was considered; court retained ability to rewrite.
Fourteenth Amendment due process	Vagueness and overbreadth violate due process by failing to define criminal conduct and enabling arbitrary enforcement.	Discretion in enforcing the ordinance is permissible if guided by compelling interest and narrow application.	Subsection D violated due process due to vagueness and overbreadth.

Key Cases Cited

Schirmer v. Nagode, 621 F.3d 581 (7th Cir. 2010) (no standing where statute not read to prohibit peaceful protest)
Coates v. City of Cincinnati, 402 U.S. 611 (1971) (annoyance cannot justify restricting protected speech)
O'Brien, 391 U.S. 367 (U.S. 1968) (speech accompanied by conduct; incidental restrictions may be permissible)
Brandenburg v. Ohio, 395 U.S. 444 (1969) (imminent lawless action standard for restricting speech)
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words doctrine; limits on expressive conduct)
Feiner v. New York, 340 U.S. 315 (1951) (permissible to restrict speech to prevent riot during crisis)
Cox v. Louisiana, 379 U.S. 536 (1965) (orderly conduct and protection of public order in demonstrations)
Grayned v. City of Rockford, 408 U.S. 104 (1972) (void-for-vagueness doctrine; limits on unfettered police discretion)
Washington Mobilization Committee v. Culline, 566 F.2d 107 (D.C. Cir. 1977) (limitations on dispersal orders to prevent unconstitutional enforcement)
City of Houston v. Hill, 482 U.S. 451 (1987) (arrests for conduct obstructing the use of public streets to be narrowly tailored)
Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008) (speech protection in matters of public concern)
United States v. Woodard, 376 F.2d 136 (7th Cir. 1967) (disorderly conduct definitions and prosecutorial discretion)
Terminiello v. City of Chicago, 337 U.S. 1 (1949) (free expression and public order; not to suppress expressive conduct)
Boos v. Barry, 485 U.S. 312 (1988) (protecting speech even when it offends)