Richard Graff v. City of Chicago

MANION, and Before CUMMINGS FAIRCHILD, Judges, Senior Circuit Judge. Circuit CUMMINGS, Judge. Circuit in the business of sell- Richard Graff is adjacent to magazines ing newspapers and entrance Randolph Street Center, flag- formerly Chicago Cultural Library. building of the Public ship location; has prized is a newsstand It site approximately the same operated bought seventy Mr. Graff years. After $53,000, applied he stand in 1984 permit. city denied for a several times because, it each instance application his said, policy toward news- municipal city was under review stands was permits, even those with issuing new Apparently existing newsstands. operate dur- permitless stands allowed period. In Mr. Graff moved ing this to the west side his stand from east Randolph entrance steps of the Street He crews. way make for construction though city, so at the behest of the did dispute whether Mr. Graff was parties agreed so. to do forced to move or he city sent Mr. Graff Subsequently, ordering him remove series notices no- entirely. Each of these the structure be- rescinded after consultations tices was lawyers municipal Mr. tween Graff's applied Mr. Graff once officials. When he permit, for a was told that again Mr, them, though issuing still con- claimed to have evidence to the Graff he trary. would be driven Concerned business, filed this suit Mr. Graff out I. Chicago’s ordi- alleging that court district matter, preliminary As a defen operators vio- regulating newsstand nance argues jurisdic that this lacks dant Court and the First Clause lated the Commerce plaintiff's appeal tion to hear because the Amendments to the Consti- Fourteenth judgment below is not final. Plaintiff as injunctive sought also plaintiff tution. jurisdiction we have under 28 serts that enforcing stop the relief to 1292(a)(1) ap to hear U.S.C. §§ against him. interlocutory denying peals from an order four months some On June court injunctive relief. The district dis complaint, the lodged his after Mr. Graff prejudice missed with counts one and two reg- a new ordinance approved Council result, complaint. Mr. Graff's As a Chicago, ulating newsstands. Ill.Mun. plaintiff Judge Lindberg concluded that (1991).1 10-28-130-10-28-192 Code §§ prevail on the merits of his claim could not specific about what ordinance is more new his motion for and so denied what in is- consider city officials should factors temporary restraining order. judge called a provi- eliminates a suing permits; it also tempo Defendant is correct that denial of old that favored newsstands sion in the law restraining rary appealable. order is not Chicago. publications printed selling Syndicate Inc. v. Medi Geneva Assurance at- his action to Mr. then amended Graff Ass'n, 964 F.2d Emergency cal Services city constitutionality the new the tack (7th Cir.1992) curiam). (per How Fourteenth under the First and ever, injunctive relief the character of Amendments, requested in- again and he judge happens to call sought, not what Mr. later Graff junctive relief. Sometime it, may appeal determine whether it will be application, which permit also filed a new 415 U.S. 85- Sampson Murray, ed. de- Landmarks the Commission 937, 950-952, 94 S.Ct. 39 L.Ed.2d below, city defended nied. the court restraining Temporary orders time, its ordinance as a content-neutral (ten days plus ten-day one periods for brief The place regulation. and manner district Federal good cause under extension court, finding Mr. had mounted that Graff 65(b)), parte, Procedure ex Rule of Civil challenge only a facial to the newsstand Syndi and informal. Geneva Assurance law, constitutionality of the or- upheld the case, Mr. cate, In this 964 F.2d at 600. dinance, F.Supp. 576. Thus the court complaint stated his amended Graff complaint at- dismissed two counts of the "preliminary permanent sought he ordinance, tacking injunc- denied the new city, tempo not a injunction" against the moot, Mayor and removed tive relief as restraining party's The charac rary order. Daley a defendant.2 The Richard M. as sought more the relief is no terization of count of Mr. preserve district court did one case, In this controlling judge's. than the city’s alleg- complaint based on however, Graff’s twenty-day injunction a ten- or arbitrary Also, irrational treatment of edly done little for Mr. Graff. would have applications for a under his various lodged in a formal prayer his for relief was city does not con- involving opposing party. the old ordinance. complaint brief, decision to retain asking test the district court’s for a no sense was Mr. Graff restraining temporary count. parte, this one informal ex order; asking preliminary he was two counts which the As to the other appealable injunction, the denial of which dismissed, reverse. Be- district court we to this Court. to an gives too much discretion cause decisionmaker, quotes Ameri city ordi- also Carson v. unelected Inc., Brands, 450 U.S. 101 S.Ct. First Amendment of the nance violates the can (1981), proposi for the L.Ed.2d 59 United States Constitution. Mayor not contest dismissal portions are at- 2. Plaintiff does Relevant of the ordinance Daley. appendix. tached as an challenge by dismissing constitutional appeal inter his party an tion that a ordinance, all, left some, to the lower court but not new locutory dismissing order Mr. out of the denying mo free force Graff complaint of a while counts business, pre- news-selling did moot. injunction as preliminary tion for months after cisely under that a short two to fit this case tries defendant judgment. It is have district court rendered interlocutory orders that rubric imagine compelling more case denying injunctive hard to the practical effect irreparable injury. interlocutory orders relief, opposed Ac directly. injunctive relief deny II. defendant, may not cording to former (1) can party show appealed unless many as three This suit could involve as consequences serious, irreparable perhaps as-applied challenge separate claims: an "effectually chal (2) can be the order ordinance, as-applied chal- old under the appeal. Car lenged" by immediate ordinance, con- lenge the new and a under De son, at 996. U.S. at challenge to the new ordinance stitutional this is argument falters because fendant's surrounding Mr. on its face. The facts case; judge ex effect practical not a treatment defendant under Graff’s injunc plaintiff's prayer for plicitly denied ultimately unnecessary to old ordinance are Moreover, cases cited tive relief. the district court this discussion because to illustrate Justice Brennan Carson Therefore, did not resolve those issues. requirement concerned irreparable injury previous as-applied attack on the ordi- motions seek plaintiffs who had filed Similarly, properly before us. nance is not injunction. preliminary as-applied Mr. we need not consider Graff’s con As we 996-997. ordinance—assuming to the new above, petition the Mr. Graff did cluded the ordi- he raised such a claim—because preliminary injunction. a court for district nance violates the Constitution.3 itself Fisher, bring a placed well to in Mr. Graff is Holmes v. Our decision 229, (7th Cir.1988), challenge Chicago the explicitly facial to ordinance. 854 F.2d 231 context, speech plaintiff is by In the free a taken some courts rejected approach the challenge constitutionality the of there irreparable injury where entitled requiring overly li delegating broad denied a statute for plaintiff that was question is no administrator, 1292(a)(1) censing to an even is de discretion injunctive relief: “Section by a prescribed interlocutory deny if his conduct could be plain: orders cently all Yet Freedman Ma appealable.” properly drawn statute. v. ing injunctions are Id. case, 51, 56, 734, 737- 85 S.Ct. practical ryland, effect 380 U.S. even if this were 738, (1965). 13 One has stand difficulty meet L.Ed.2d 649 Mr. would have little Graff challenge to the face of By ing to make such a ing irreparable injury requirement. applied for person if the has not and a law even denying injunctive his claim for relief deny permit Mr. applied sion Landmarks did under on 3. Plaintiff had not for permit application under new his Graffs for at time he filed the new ordinance 5, 1992, August two until more than ordinance complaint. fact defendant amended This leads the district court decided this case. months after precluded argue from rais- that Mr. Graff is position hardly is in a to overturn This Court as-applied challenge ing to the new ordi- an occurring based facts district court decision city forgets is that Graff nance. What the Mr. after lower court decision was rendered. constitutionality attacked the event, unnecessary us to resolve this for complaint; also in his amended he ordinance itself issue because ordinance is unconstitu- By asking injunctive dis- requested relief. tional. preliminary permanent court for a trict enforcing injunction restraining plaintiff conten- We also need not delve into s plaintiff against personally, him tions that the newsstand ordinance violates challenge. as-applied Equal raised what amounts Clause of Fourteenth Protection city’s allegedly Mr. Graff be faulted for a failure based on the favor- Nor can Amendment attempting acquire permit. persistence in able of sidewalk cafes and vendors treatment against op- times he items as T-shirts as newsstand He rebuffed each of the several such time, apply. Commis- erators. tried to At same speakers.” 759, disliked permit or license. Thornhill v. Ala Id. at 108 S.Ct. at bama, 88, 97, 736, extent, then, large 60 S.Ct. 741- 2145. To a ability one’s (1940). challenge depends 84 L.Ed. 1093 Courts are will to mount a facial on the requirements questions to overlook the usual resolution substantive controversy implicated the case or doctrine the whether and whether First Amendment arena because of the decisionmakers authority. have excessive themselves, people fear censor For the opinion, will reasons set forth in this detect, obviously disagrees, and because it is difficult to review with which the dissent and correct content-based discrimination we conclude the newsstand business by implicates Amendment, without standards which measure the First that the licensor's action. Lakewood v. ordinance vests excessive discretion in un- Co., administrators, Publishing Plain Dealer 486 U.S. elected and that a facial 2138, 2145, 100 L.Ed.2d 771 city’s licensing S.Ct. to the scheme is (1988). "Self-censorship appropriate. is immune to an applied' challenge, `as for it derives from Mr. Graff newspa disseminates actions,

the individual's own not an abuse pers magazines; activity goes this government power." Id. at 108 the heart of the First Amendment because Lakewood, S.Ct. at 2144. Just as publications he give sells citizens vital licensing scheme in the instant case has information about affairs. It is ir challenge. two features that a facial newspaper relevant that the vendors who First, apply vendors must for licenses that engage are affected the ordinance periodically renewed the issuer. activity profit. for Smith Califor Second, licensing system at issue here nia, 147, 150, 215, 217, 361 U.S. S.Ct. narrowly specifically is "directed (1959); L.Ed.2d 205 New York Times Co. v. expression commonly or conduct associated Sullivan, expression: newspa with the circulation of 11 L.Ed.2d 686 Nor is it rele pers." vant that these vendors do not have a hand specifically ordinance is directed writing publishing they what sell. It operators: newsstand "It shall be unlawful doubtful, example, that the Jehovah's erect, locate, any person construct or pamphlets Witnesses who distributed * * * any newspaper maintain stand with magazines in City Griffin, Lovell v. * * *." Chicago, obtaining out 666, (1938), U.S. 58 82 L.Ed. 949 S.Ct. 10-28-130 § Ill.Mun.Code herself, yet the this fact wrote materials city implies, Judge stop Supreme Manion’s dis- did not the Court from over view, adopts turning sent the that Mr. Graff should Mrs. Lovell's conviction under a permitted bring challenge not constitutionally licensing to a facial flawed scheme. because the ordinance does in not And our decision American Booksellers conduct; regulate Ass'n, Hudnut, (1985), expressive F.2d Inc. v. 771 323 other words, the ordinance affirmed, is outside the reach of S.Ct. (defendant’s (1986), the First Amendment striking brief at L.Ed.2d 291 down an India 16-23). napolis The dissent further contends that pornogra ordinance that outlawed the ordinance does not phy, grant plaintiffs any vest unbridled dis- did not the lesser cretion in a official. protection Recall that under measure of First Amendment Lakewood, “a facial lies they whenev- because were book vendors rather gives words, government er a law offi- than In book writers. other the agency power cial or substantial to discrim- First Amendment does not discriminate viewpoint among inate based on the content or of peddle those who their own ideas speech by suppressing speech peddle disfavored and those the who ideas of others.4 suggests operators publications carry. 4. The dissent that newsstand tors do choose which so, point pornography, are not advocates for a presumably, of view and Their decisions to sell or not sell deserving religious political publications are not of First full literature and are protection. proposition judgment, advocacy Amendment This is em- matters of dis- editorial event, pirically questionable, opera- any nothing since newsstand cretion. there is in First simple. Divorced conduct, pure and argument that news part of its As literature, distributing protected by activity the First from the stands are Amendment, city maintains on the sidewalk building of stand is not Mr. Graff's this case issue of Yet non-expressive central conduct. one indeed right, or lack expression but involving freedom activity separate the cannot public prop structures right, to erect Plac- itself. structure from structure it, can put "Graff erty. As defendant property is no ing public newsracks on way anywhere in the public stand on the building expressive in than nature more (defen for sale" newspapers offer City and newspapers If there were newsstand. 20). point. This misses dant's brief racks, been no there would have microphone may speaker's Taking away a in Lakewood. The Amendment issue First putting effectively as his muzzle necessary pro- Supreme Court found a v. mouth. See Sai New across his tape not because newsracks Lakewood tect 92 L.Ed. York, S.Ct. U.S. First Amendment inherent there (overturning (1948) ordinance that activity placing value the mundane public loudspeaker in prohibited use streetcorners, but because boxes on metal po permission of chief of places without facilitated the distribution boxes reasons, finds lice). Mr. Graff For obvious Similarly, material. First Amendment of the newsstand structure physical nothing about a news- mystical there is disseminating his business: instrumental no First Amend- stand. There would be gives greater him The stand information. sought regulate question if the ment location, ability visibility, stable so that vendors the erection of structures variety publications. Of to sell wide from the sidewalk. See id. could sell soda papers he can sell without course Newsstands, 2146. 108 S.Ct. at suggests, stand, flippantly as defendant however, purpose: dis- serve one effectively them as but he can't sell literature, Supreme Court’s — imagine tribute standing on the streetcorner Mr. Graff does not allow for analysis Lakewood magazines hang on dozens of trying disentangling the use structure whips papers out Chicago's wind while finds structure. dissent Supreme made grasp. Lakewood of his from newsracks be- signifi constitutional different recognized the newsstands Court implements permanent, of commerce less of such the latter are cance cause regulat down an ordinance fixing, they it struck they when need smaller and “[w]hen placement newsracks on 1071). (at p. get repaired, replaced” Lakewood, 486 property. distinctions elu- significance of these If receive First newsracks remain on same sive. Most newsracks so do newsstands.5 protection, Amendment permanent fix- years corners for just like news- streetscape, on the tures analogy chastises this be- The dissent respect, the First all stands. With due newsracks and newsstands and tween the trivial dis- cannot turn on newsstands Amendment that the erection of maintains Moreover, Chicago Observer jurisprudence the ordinance in that modulates the Amendment strongly protection plastered on of based how on level speaker was directed at advertisements speech. dis- speech identifies with of Commercial re the boxes. outside only suggestion advocates should re- sent’s that protection the First Amend ceives lesser under protection would have ceive First Amendment Virginia Pharmacy Virginia Board v. Citi ment. others, for, among publica- consequences dire Council, 425 U.S. 96 S.Ct. Consumer zens objectively. purport report tions that news (1976). reg 48 L.Ed.2d 346 An ulating merely the size of newsracks argues the standards we now The dissent that is relevant to on their front not advertisements upheld apply in condemn the ordinance would Indeed, adopt we discussion. if were Observer, City Chicago, Chicago Inc. Observer, expansive dissent's view of (7th Cir.1991). Not F.2d 325 so. Supreme with the decision would be at odds that Observer, merely regulated size in Lakewood newsracks; urt's decisions FW/ licensing power did exercise it Co Dallas, PBS, S.Ct. Inc. v. deny permit applicants the to conduct means 107 L.Ed.2d business related Amendment. to the First replaced protection tinction that rusted newsracks are must receive as well. The dis says while weather-beaten newsstands are re- sent that we have vindicated Justice paired physi- with hammer and nails. The his Lakewood dissent that White's fear cal nature of the structure does not dictate newspaper publishers may public seize protection the First Amendment it receives property private ignore use and the newsstand or newsrack is because governmental at interests stake. We have conduit; merely surely recipi- thing. done no such We hold that a ents of First Amendment literature do not municipality grant must its citizens certain repaired care whether their newsstand is or procedural safeguards where seeks to replaced. expressive activity, license and we most reject emphatically private notion Judge suggests Manion that newsstands parties any have unassailable to build analogous are more bookstores than public property. structures on passed Yet if the had newsracks. specifically

ordinance directed at the licens bookstores, any question is there III. that we would scrutinize the ordinance for mistakenly The court below fact, expression? its effect free city’s held that the prior ordinance is not a in Lakewood majority opinion specifically Chicago's restraint. ordinance forces news rejected parallel drawn Justice apply vendors to for a from local today's frequently by dissent — cited White's they papers officials can before sell — between newsracks dissent soda their newsstands. This scheme vendors, attempted separate which prior by giving creates a classic restraint placing the conduct of newsracks on power administrators to foreclose property expressive activity from the speech. Though every prior restraint Id. at distributing newspapers. invalid, judiciary vigilant in its parallel, at 2146. The real the Court oversight prior restraints because of the opined, is between newsracks and leaflet they deprive delay fear that access to ers, rights whose First Amendment information, and restraints because well established. 108 S.Ct. procedural safeguards may lack lead to Lovell, (citing content-based discrimination. As the Su 667). operators Newsstand are also Vance v. Universal preme Court said they businessmen. Yet cannot be divorced Co., Amusement Inc.: business, from the substance of their which * * * Any system prior restraint activity, involves critical First Amendment bearing heavy “comes to this Court any publishers more than booksellers or presumption against its constitutional va- distributing newspapers in If newsracks. * * * lidity.” presumption against Lakewood anything, analogy drawn prior restraints is heavier—and the de- pamphleteers between newsracks and gree protection broader—than that stronger even in this case the ven where against expression imposed by limits on publications by dors distribute hand. It is penalties. criminal Behind the distinc- true, out, that Lake points dissent theory deeply tion is a etched in our law: wood rejected any distinction based on dis society prefers punish the a free few tribution hand versus distribution they rights who abuse after machine. We do not make such dis than to throttle them and break the law grant tinction or one method of distribution always all others It is diffi- beforehand. any protection more First Amendment than cult to know in advance what an individu- the other. It is nevertheless true that the say, legiti- and the line al will between operator's newsstand means of distribution illegitimate speech mate is often so and pamphleteer's resembles the method more finely drawn that the risks of freewheel- event, than does the newsrack. ing censorship are formidable. both forms of distribution receive First 308, 13, newsstand, 1156, protection. Amendment The 445 316 n. 100 S.Ct. 1161 U.S. (citations two, 13, (1980) which falls somewhere n. 63 L.Ed.2d 413 omit between 1064 First Amendment associated in a business with ted). has held Supreme Court if, first, obligated the licensor is freedoms exercised authority long line cases that speci- deny permit within a grant or licensing scheme must be to administer a during time which fied and reasonable precise standards by clear and bounded second, and, if is maintained quo status power to foreclose officials have the where judicial prompt possibility of there is the places. Southeastern erroneous- license is review in the event the Conrad, 420 U.S. 546,

Promotions, v. Ltd. 228, A Id. at 110 at 606. ly S.Ct. denied. 1243, 1239, 448 553, 43 L.Ed.2d 95 S.Ct. is not denying a license ministerial action Birming v. (1975); Shuttlesworth invalid, prior re- presumptively unlike most 935, 150-151, 147, ham, 394 U.S. 89 S.Ct. straints, required v. Staub (1969); 938-939, L.Ed.2d 162 22 every on occa- justify decision in court 313, 322, 78 S.Ct. Baxley, 355 U.S. City of 229, at 606-607. at 110 S.Ct. sion. v. (1958); Kunz 2 L.Ed.2d 302 must However, denied a license the vendor 290, 293-294, 71 S.Ct. York, 340 U.S. New review, judicial prompt to seek be able Schneid (1951); 312, 314-315, 280 95 L.Ed. of review fatal. See South- the absence 147, 161-162, 60 Jersey, er Newv. 308 U.S. Promotions, 420 561-562, at U.S. (1939); eastern 146, L.Ed. 155 84 S.Ct. FW/PBS, 1248; 493 at at U.S. 954, 95 S.Ct. CIO, Hague v. 59 S.Ct. U.S. 606-607.6 prior A restraint 83 L.Ed. infirmity only if it "avoids constitutional does not safeguards procedural place under takes the dictates of FW/PBS up measure under censorship dangers of a designed to obviate the does, Promotions. It and Southeastern Freedman, 380 U.S. sys however, important tem." safe contain some must An ordinance S.Ct. at 739. guarantees prompt guards. The ordinance on the decisionmak explicit limits contain applications: between permit on decisions Lakewood, er's discretion. days for sixty-five initial thirty-five and short, this Court S.Ct. for renewal permits days ten closely the level obligated to scrutinize 10- Chicago, applications. § Ill.Mun.Code official granted to the discretion gives 28-160(e) (1991). The ordinance also operators.

who licenses newsstand explicit of Public Works the Commissioner deny permits only grant deci instructions to Supreme Court’s 1990 Dallas, FW/PBS, whether the de according to six factors: Inc. sion in “quality and char sign comports with the L.Ed.2d ven streetscape”; whether procedural safeguards of acter adapted the ordinance; whether Freedman, censorship complies dor with the picture a motion operated a stand sexually previously has case, the vendor scheme for to a location; are other whether there us at the oriented businesses. FW/PBS instructs area; daily many How licensing scheme to en newsstands how evaluate carried; whether publications adequate procedural will sure that contains number relates only the size of the stand A license a safeguards. judicial re- opinion that sees nor's issue with our reliance FW/PBS 6. The dissent takes independent species of official dis- part view as an of Justice O’Connor’s because FW/PBS view, only justices. dissent’s based on joined by cretion. Under the opinion two other dissent, However, rely first have White’s court would on a dissent Justice the dissent would White, municipal exer- joined whether officials to determine which was Justice reach justices before it could splicing of is ulti- cised too much This discretion Chief Justice. scheme, judicial question This mately unavailing position be- review. to the dissent’s however, meaningless require- judg- justices would render concurred in the three other cause position judicial review. Either the court will ment of criticized Justice O'Connor's ment and discretion, already safeguards pre- have found excessive procedural she because the strong enough! if case there is need to reach Even Justice which were not scribed question, or court will not find exces- opinion compelling, which it is review were White’s discretion, permitted not, adopt it its in which case is Court would not be free sive this question. Judge This can- reasoning. Specifically, Manion criticizes to reach the review progeny intended. O’Con- not be what Freedman he calls the “new slant" Justice what operating. City III. the days it will be Council could decide not to com- Chicago, 10-28-160(a)(l)-(6) (1991). applications ment on newsstand all. § Mun.Code fact, the replaces new section 10-28-160 The ordinance’s invitation to discriminate provision in requiring the older ordinance troubling. by type publication City approve permits. full Council to all Commissioner of Public Works is directed The new section 10-28-160 instructs the daily publica- to consider “the number of Planning Commissioner of to advise the proposed newspa- tions to be sold from the Works, Commissioner of Public but there is per deciding stand” as one of six factors in nothing requiring the Public Works Com- grant permit. whether to Id. While the accept missioner to or even consider his city might legitimately daily publica- favor colleague’s advice. The time the Pub- tions, pref- justification it offers no for this lic Works Commissioner shares decision- know, erence record. For all we making authority is when a newsstand ven- provision may attempt by an officials to dor seeks a to erect a structure on a dailies, curry generally favor with designated historical landmark. In such powerful publications most influential cases—including Mr. application Graff’s city.7 vague in a These rather six criteria City for a stand Chicago outside the are in some theoretical sense valid limita- Cultural Center—the Commission on Chica- tions on exercise of the Commissioner’s go Historical and Architectural Landmarks However, discretion.8 ordi- cases, approve. must In all other the Com- provide prompt judicial nance fails to re- sole, missioner of Public Works is the un- any kind view—or review for that mat- fettered decisionmaker. It is a measure of requirement ter—and so flunks the second leniency city’s criteria that Mr. FW/PBS, 493 U.S. at 110 S.Ct. at application ultimately Graff’s denied nearly 606. The ordinance vests absolute though operated ap- even his stand has on individual, authority in one the Commis- proximately seventy the same site for Works, long sioner of Public so as he is years. Though one of the six criteria in circumspect enough any permit to couch longevity, help the ordinance is this did not denial terms of the six criteria. Without Mr. Graff. review, strong subsequent check of merely paper standards; ordinance contains The lone reference in the ordinance to puts no substantive limits on subsequent the deci- review of the Commissioner’s authority. Though sionmaker’s laughably inadequate. at first decision is almost 10-28-160(c), blush the statute procedur- offers elaborate Under section a vendor whose guidelines al for the application days issuance and denial of is denied has ten to re- permits, illusory. example, quest hearing given these are For he “at which will be 10-28-160(a) procedures opportunity prove section outlines that the determina- hearings reports by which a tion of the in error.” Commissioner was Council pro- committee is to comment on a The ordinance does not define error or posed license, guarantees specify proof required. newsstand and it And the what person vendor the to be heard in such the decision who reviews However, proceedings. procedures these Commissioner of Public is none oth- Works entirely optional; under the ordinance er than the Commissioner of Public Works! tion, gave mayor power 7. The dissent contends that the has offered which Lakewood’s justifications favoring daily newspa- several to set "such other terms and conditions deemed pers, quotes from its brief a statement con- necessary by Mayor.” and reasonable Lake- cerning see, however, public way. clutter We fail to wood, U.S. at S.Ct. at magazines why weekly newspa- favorably ordinance contrasts because pers pub- should create more clutter on the open-ended apparently the by clause is restricted way lic than dailies. 10-28-160(a). the six criteria section On hand, language sufficiently the other gives 8. Section 10-28-191 the Commissioner of that, vague point on this critical should orders, “authority adopt Public Works such ordinance, a Council resurrect this future court regulations necessary rules and as he deem ** meaning would be forced dwell provision on the This resembles a in Lake- Supreme open-ended provision. excep- wood to which Court took a stand and examine for themselves merely instructs the Com- over to The ordinance magazines if Defendant also permit promptly he what sold. to issue a missioner all sell all man- previous contends that newsstands his determina- “determines that publications, so that there is no ner of incorrect.” Ill.Mun. tion was Chicago, per- in the danger of content discrimination 10-28-160(c) Code § (defendant’s process supplemental brief mit supplemental brief at Defendant’s 9). proof Defendant offers no for the glaring absence of sub tempts save this exactly proposition that all newsstands sell by noting sequent that a dissatisfied review publications, and we rather doubt the same judicial in state applicant may relief obtain Indeed, accuracy. it is not difficult to its certiorari, common law or court writ of imagine city wielding deny a its a power way of 42 U.S.C. court in federal underground selling permit to newsstands some sense true that in 1983. While § sharply municipal of offi- papers critical precluded person denied a license is not a city licensing its cials. Or the could use in court filing suit state or federal punish porno- sell scheme to vendors who deprivation, full-bod alleging constitutional graphic magazines that are otherwise con- requires more. judicial ied review FW/ stitutionally protected. The ordinance con- PBS, example, Supreme Court for minimum or maximum limit on tains no city requiring li ordinance found that Thus, permits of were the number issued. sexually oriented businesses did censes for seeking punish a stand Commissioner judicial sufficient not offer review. selling particular publication, for a he Though at 606. 110 S.Ct. U.S. having not face the would obstacle reprinted in ordinance in FW/PBS replacement find a vendor. opinion, plaintiffs Supreme Court’s Plaintiff, brought fa having to file a in that case retained a suit also specific instance in challenge, of course cial cites no in or federal court—which state judi city its au did—yet satisfy the which the has abused they this did not challenge requires us requirement. thority, If mere silence but facial cial review vigilant protection expres question judicial were to be on the review freedom, us not as sufficient, leaving only implores the theoretical ave sive governmental As the Su claiming a constitutional sume restraint. nue of redress courts, procedural preme then the Court said Lakewood: violation Freedman, requirement of Southeastern presume city us to that asks Promotions, and a host other FW/PBS deny application only mayor will meaningless. cases would be redundant or health, safety, for to the reasons related provide does citizens, or of Lakewood and that welfare review, genuine judicial much less additional terms and conditions will be guaranteed prompt re review imposed for similar reasons. This quired expressive of a statute that licenses good presumes mayor act will conduct. faith and adhere to standards absent But from the ordinance’s face. this is goes great lengths in its very presumption doctrine has no papers to assure Court that it forbidding discretion disallows. unbridled put licensing authority to ill intention to essence, use, us, urging to relax our 2150. The contends, being picky, dissent accuses us of standards. Defendant exam- “tak[ing] microscope ple, that it could not discriminate on the to the ordinance ** permit applica- giving guid- too little basis content because ance, sufficiently publica- appreciating tions do not and of not contain list what (defen- searching particular tions newsstand sells “was reason- 8-9). supplemental prohibiting dant’s brief at This is alternative to either news- able comforting. officials, entirely hardly permitting were stands newsstands at inclined, (at 1079-80). they pp. so their will” Such criticism mis- could evacuate bu- afternoon, Court, apprehends particu- stroll the role desks for of this reaucratic time, larly point pursuing place in area the First in Amendment. and man- judiciary’s legisla- role is not to act as analysis. ner noting, however, It is worth or to to accom- tive adviser bend backward that the district court’s discussion of these goals. city’s modate the Where a munici- applies issues the incorrect test. pality up power to license an takes Mr. Graff’s First Amendment speech, activity that involves the burden is activity place public takes on a traditional city, speaker. on the not the The dissent forum: the sidewalk. United States v. puts extraordinary proposition forth the Grace, 171, 177, 461 U.S. 103 S.Ct. government “[ojnly if the discrimi- 75 L.Ed.2d 736 As the Su nates the basis of the content preme recognized in Hague Court v. CIO: should the ordinance be scrutinized under (at 1074). p. parks

the First Amendment” This Wherever the title of streets and rest, essentially may they would eliminate the doctrine of immemorially have been prior compelled If restraints. courts were held trust for the public use government and, mind, to wait until the discriminated time out of have been used content, they on the basis of would lack the purposes for of assembly, communicat- power licensing ing citizens, review schemes ad- thoughts between and dis- application require vance of their and to cussing public questions. Such use of procedural safeguards. This view cannot has, public places the streets and be correct. times, part privi- ancient been a of the leges, immunities, rights, and liberties of IV. citizens. The district court decision makes 496, 515, 954, 964, 307 U.S. 59 S.Ct. city’s much of the contention that its licens (1939). Speech L.Ed. 1423 in such a tradi- time, place scheme is a content-neutral public tional forum as a sidewalk is accord- be, regulation. may and manner This well special juris- ed a status constitutional import but is of no when an ordinance prudence. Grace, U.S. provide adequate procedural fails to safe public fora, S.Ct. at 1708. In traditional guards licensing in a scheme directed at government’s power expres- to restrict Amendment-protected activity. First Such extremely sive conduct is circumscribed. licensing program is unconstitutional government may only enforce reason- time, place even if it is a content-neutral time, place regulations able and manner FW/PBS, and manner restriction. neutral, narrowly that are content tailored U.S. at 110 S.Ct. In that significant governmental to serve a inter- decision, example, Supreme Court est, open and which leave alternative chan- Ap held that it needn’t reach a Court of Perry nels of communication. Educ. Ass’n peals finding that the ordinance at issue Ass’n, Perry v. Local Educators’ time, place, was a “content-neutral 948, 955, 74 L.Ed.2d 794 secondary manner restriction aimed at ef (1983).9 arising sexually fects out of the oriented attempts Defendant to draw an procedural businesses” because the safe analogy decision between case and our guards into the scheme were built House, v. Lubavitch Chabad Inc. Therefore, inadequate. district (1990), in Chicago, 917 F.2d 341 which lengthy court’s discussion of the content- of time, upheld we the refusal of officials to place aspects neutral and and manner alongside irrelevant, erection of Chanukah menorah ordinance is also placed by trees Christmas sea suggestion and the dissent’s that the case International should sonal decorations O'Hare be remanded allow Airport. Supreme pointed present justifications censorship is As the Court term, however, unpersuasive. airport If an ordinance lacks suffi out in its last safeguards, procedural public merely cient there is no not a traditional forum be government narrowly compelling 9. The also enforce a content- state and which is interest regulation necessary based that is to serve a drawn to achieve that end. with instructions en- cause remanded freely invited. Interna cause city from injunction prohibiting ter an Krishna Consciousness tional Soc. for — —, —, Lee, removing plaintiff’s newsstand and from (1992).10 an enforcing present Unlike the ordinance 120 L.Ed.2d otherwise Mr. which airport, against the sidewalks him. maga newspapers and his

Graff hawks public which longstanding fora on zines are APPENDIX special protec activity receives expressive Chicago municipal the portions of Relevant apply any did opinion not below tion. as fol- governing newsstands are scrutiny the ordinance because to special lows: public forum. speech in a traditional limits fact, court's memorandum the district any for It shall be unlawful 10-28-130. much not so order does opinion locate, erect, person construct or main- to "public phrase forum." mention any newspaper stand on the tain any property way or on other unenclosed correct judge if had been Even by or without owned controlled a city’s licensing scheme is not permit therefor from the Com- obtaining a restraint, erred in he would still have prior of Works as hereinafter missioner Public in Perry forth applying the test set * * * provided. he Though found Education Ass’n. neutral, and mere regulation content 10-28-135(b). The Commissioner Public time, regulation, he place a and manner ly to all or may from time time reissue Works city’s proposed either the measure failed permits that have been portion of those a ** * regulating expressive conduct interests expired. have or revoked availability of alternative channels or the permit Application for a for a 10-28-150. Assn., Perry communication. Education for renewal of such newspaper stand or If for no U.S. at 103 S.Ct. at 955. * * * * * * the num- permit shall contain this, forced reason than we would be other publica- daily publications and other ber of remand. * ** be sold from the stand tions that will a that such will be statement V. subject pro- accepted conditions above, stated we For reasons * * * visions thereof. ordinance violates hold that * * * 10-28-160(a). Commissioner the First Amendment of Constitution. [T]he application duplicate of the shall deliver 10-28-192 of the ordinance is Section Planning and to the the Commissioner intended to rescue the severance clause newspa- which the portions found alderman of ward should certain be statute Upon re- However, provision per stand is or will be located. this unconstitutional. may application, the alderman salvage ceipt of such the newsstand ordinance cannot Council’s application by its omis refer the the statute doomed because Transportation As on Pub- this Committee rather than excesses. sions conducting pub- Way purpose not filed lic for the proceeded, the has case has applica- proposed permit hearings is un lic on the Because the ordinance an answer. persons, including face, question and that tion. All interested on its constitutional given opportunity to argued applicant, shall an fully briefed and be of law has been Court, hearings. such After conduct- remand be heard at there is occasion on is- hearings, such Committee call dismissal for answer. report summarizing the issues that sue counts one and two is reversed question correctly does address the bad House 10. The dissent notes that International licensing speech. procedural safeguards af- was decided Soc. Krishna Consciousness House, primary holding of case is that there is ter our decision in Lubavitch Chabad. course, erect compelled, our no constitutional structures Inc. We are to read fully subsequent Supreme public property, position with precedents light consistent event, today. opinions. Cha- the Court's decision Court Lubavitch (c) Any denying approving action or (a) permit application under subsection hearings and recom- addressed at the were this section shall be made the Commis- applica- mending approval or denial of the sioner of Public Works not less than 35 and * * * report on the tion. The Committee’s days application not more than 65 after the solely on permit application shall based Any is filed with the Commissioner. action following considerations: denying approving permit application (1) design, materials and Whether the (b) under subsection shall be made newspaper scheme of the stand color Commissioner of Public Works within 10 quality enhance the comport with and days application after the is filed with the streetscape, includ- and character Commissioner. If the Commissioner denies nearby development existing application, notify applicant the he shall the uses; land by mail of the reasons for his decision. (2) newspaper stand com- whether the days Within 10 after notice of denial of an Code; plies with this sent, application applicant may the re- (3) applicant previously has whether hearing quest given at which he will be operated newspaper stand at that loca- opportunity prove an that the determina- tion; in tion the Commissioner was error. (4) services that the extent which (in The Commissioner of Public Works co- by newspaper stand would be offered operation with the Commissioner of Plan- area; already in the are available ning if the denial based on his determi- was (5) daily publications pro- the number of nation) hearing shall schedule a to be held newspaper from the posed to be sold days within 30 after he received the re- stand; and quest. (6) size of the relative to the stand If, hearing, after the the Commissioner open days the stand will be number previ- that of Public Works determines his operating. incorrect, determination the Com- ous recommending Any report Committee promptly missioner shall issue or renew the * * * disapproval permit application of a must permit. specific reasons for the recom- state the (e) equal two or more otherwise [W]hen mendation, which reasons shall consis- be qualified applications pending for ly applicant’s tent constitutional with newspaper stands that are to be locat new First, rights Fifth and contained any City one ed area of which Fourteenth Amendments of United permitted, prefer newspaper stand is new * * * States Constitution. given application to the for ence shall be acting applications pursu- filed on all offering largest newspaper stand subsection, the ant to this Commissioner daily publications. different number of * * * * * * give Public Works shall due consideration 10-28-165(b). permit Such any, if report, to the and to Committee’s year of the May remain valid until 1st shall the recommendation of the Commissioner following year in which it is issued by the Planning, and shall be bound Article. may provided be renewed as * * * apply same standards as Committee 10-28-191. Commissioner approving denying permit. or authority have the Public Works shall orders, adopt regulations rules and such Notwithstanding any provision other proper ad necessary deem for the he contrary, any application under this provi ministration and enforcement of (a) newspaper permit for a for a subsection pro 10-28-192. The sions of this Article. property on stand to be located which through 10- of sections 10-28-130 situated, visions designated landmark or on section, any If 28-192 are severable. public way between the street and clause, portion application of provision, or property property, line of such shall be by any court those sections is determined subject review the Commis- reason, validity of any sion on Architectur- to be invalid Historical and * * * sections, clauses, remaining provisions Landmarks. al mandate, has it ever been construed group allowed to person or that application to other and their portions, or structures at will. erect circumstances, affected there shall not be House, Inc. v. Lubavitch Chabad City Council It is the intention by. (7th Cir.1990). Chicago, F.2d enact those would have been sections v. City Council Tax Accord Members of regardless of the Council ed Vincent, payers for 813-15 clauses, sections, provisions, por invalid * * * n. 104 S.Ct. 2133-34 and and n. applications. tions (1984). L.Ed.2d 772 The court distin Judge, dissenting. MANION, Circuit Lubavitch on guishes the basis that an strikes down this case the court forum, airport is not a traditional respectfully I dis- its face. Soc'y Krishna ordinance on citing International — independent separate and Lee, U.S. —, —, on three sent Consciousness First, grounds. the newsstand 2701, 2706, 120 L.Ed.2d 541 protec- speech under the not involve The Krishna does case was decided two Second, a Amendment. of the First Lubavitch. years tions after Seventh Cir (Graff permitted holding in a facial a direct cuit established denied, for, a forum, and applied public have been a there is should that involves case suit). Third, if a filing right even constitutional to erect structures. before no Id., re- challenge possible, were I would the structure 917 F.2d at Unless facial pro less of whether of a Chanukah menorah deserves for a determination mand newsstand, time, place than structure of a reasonable tection ordinance contains dispositive of case. Al Lubavitch that a sub- this restrictions serve and manner involving airport a an would though whether case governmental interest and stantial analysis a different under are now receive of communication alternative avenues Krishna, teachings of Lubavitch major available. as guide to us in cases such this remain Speech? or I. Structure one. opinion challenged holds that a In Lakewood newspaper the court's Part IV of mayor to occupying a sidewalk involves that allowed the newsstand disagree. grant permits publishers to to public deny forum. I or a traditional public property. public place on target general their newsracks newsstands The specific if case, public mayor to reasons operate on had state may, in this and as granting a application; Legal v. he denied the See NAACP Cornelius land. Def. Fund, permit, mayor could add such terms 788, 473 105 & Educ. and (1985). conditions he deemed reasonable 3449, L.Ed.2d 567 S.Ct. necessary. newspaper elected not to building of a newsstand is not a But the bringing a facial apply permit, instead protected expres constitutionally form challenge the ordinance. 486 U.S. at appears At least court not sion. 754, 108 S.Ct. at 2142. right has that a constitutional hold Graff li- See lies whenever a public property. facial build newsstands [A] Publish censing gives government official City Lakewood Plain Dealer law Co., power to discrimi- agency or substantial ing n. viewpoint or nate based on the content n. 100 L.Ed.2d speech suppressing speech by disfavored There Rightly so. law speakers____ disliked must or to erect a private constitutional enough expression, nexus to have a close public property. If structure on there commonly or to conduct associated with forums, were, public our traditional such pose expression, to a real and substantial public parks, as our would be cluttered censorship risks. of the identified threat with all manner structures. Public The Court Id. parks quintessential 108 S.Ct. at 2145. certainly are implicated be- speech protected, found the First Amendment forums where free news- specific ordinance involved provides, but neither nor cause Constitution required They sig- their papers and them renew newsracks leafletters. are annually. different, nificantly licenses The Court however. newsrack Newsstands newspa- printing and circulation of large, permanent-type saw the are structures. commonly pers as “conduct associated with constructed, placed; They they are not do expression” periodic licensing not walk around. Newsstands not ad- regulation al- scheme as closer to a vocates; supply rather they many and government lows the to view actual varying opinions. editorial Newsstands issuing permit. content before protect extent some vendors they easily weather. And are not uses Lake- case moved. present The court wood holding operation; “If receive Newsstands shelter a business newsracks protection, they merely dispense Amendment so do news- do not First hand deliver Lakewood [p. But does newspapers. they fixing, they stands.” When need 1062]. bridge the conveniently gap not so between get repaired, replaced. Finally, build- Although the newsracks and conduct, newsstands. operating a newsstand is Lakewood rejected court Justice White’s speech, lawfully which the can dissent, analogy which drew an between prescribe: vendors, court newsracks and soda this authorities, Municipal as trustees goes stronger as so far to see even duty public, keep their have analogy newsstands and soda ven- between open communities’ streets and available operators “dis- dors because newsstand people property, for movement of publications by [p. hand.” tribute 1063]. primary purpose to which the streets Lakewood particular point called long legislation are dedicated. So “meaningless distinction.” abridge this end does not the constitu- 2146. do S.Ct. at The fact newsracks liberty upon the rightfully tional of one not hand involve distribution makes through impart street to information Amendment, any- need for the “if First literature, of speech or distribution pam- thing, greater for newsracks than for lawfully may regulate the conduct of Id. Thus, phleteers.” the court in this using example, For a those the streets. case hand to a First uses distribution boost liberty by person could not exercise this Lakewood, analysis Amendment under con- taking'his in the a crowd- stand middle of Supreme trary to the Court’s statements street, contrary regulations, traffic ed to of that hand distribution is less in need position stoppage maintain his to the publica- protection First Amendment than traffic; group of of all a distributors passively machines. tions distributed upon not a could insist constitutional Lakewood parallel in the proper is right to form a cordon the street across opinion itself. pedestrian pass to allow no to who building requiring permits law [A] leaflet; accept not a tendered nor did rarely effective a means censor- as guarantee does the freedom sure, ship. To rare an be occasion press deprive municipality a or of the exist, censorship opportunity for will regulations against to power enact newspaper unpopular such as when an throwing literature broadcast plant. to But such seeks build a new streets. Prohibition such conduct censorship a in- provide laws too blunt abridge not the constitutional lib- would to strument warrant intervention activity neces- erty since such bears no prior allegation to an of actual misuse. sary relationship to the freedom to made, charges gener- And if such write, speak, informa- print or distribute application al un- the statute to areas opinion. or tion expression provide to related will yardstick courts a which measure with to 160-61, State, Schneider v. 308 U.S. speech-related the licensor’s occasional ac 146, 150, (1939); L.Ed. 155 84 decision. Soc'y Krishna cord International Lee, — U.S. —, —, Consciousness v. 108 S.Ct. at The court (1992) this case sees as 112 120 541 newsstands similar to S.Ct. L.Ed.2d As-Applied II. Facial or Attack? ("The purpose of streets and side principal to walks, airports, is facilitate trans like assuming some Even that newsstands (emphasis public not discourse." portation, equate speech, hurdle how with the second Supreme Court holds added)). While challenge permitted. is whether facial activity commonly involve that newsracks facial at are reluctant to entertain Courts expression, such the cir with associated tacks, statute be declared where the newspapers, the First Amend culation in all The usual instances. unconstitutional go give far as to news ment not so does applied to until a statute is approach is wait structures the same stands and similar suspected way. offensive FW/ treatment. 215, 223, PBS, Dallas, 493 Inc. v. (1990); 596, 603, 107 L.Ed.2d 603 right is a First Amendment there S.Ct. While Lakewood, 486 U.S. at S.Ct. newspapers, publishers have publish (White, J., dissenting). In this case municipalities turn right to force that a the court holds facial property for the construction over permitted for reasons: the ordinance two facility. There is a First printing of a periodic renewal and the books, requires license right to sell but we Amendment narrowly and licensing system is "directed accept argument city would expression or conduct com specifically allow a book seller construct must expression: monly with the cir associated shop—even a small one—on book newspapers." [p. 1061], citing culation of right does not leaflet sidewalk. 750, 760, Lakewood, 486 U.S. a booth on create build 771. Such a test 100 L.Ed.2d can leafletting from which streets challenges in almost allow facial ev would Preventing “taking” conducted. Contrary case. ery First Amendment public property purposes for these does citation, Lakewood used these the court's abridge First Amendment freedoms. whether im reasons to address newsracks Lakewood, S.Ct. at plicated speech, as that term is used under J., (White, dissenting). The news- protections Amendment. of the First analogous more to the construction stand is that newsracks involve finding In addition booth, facility, shop printing book "sp eech", holds that: Lakewood newsboy Although than to a or newsrack.1 licensing allegedly vests when a statute newspaper contribute to cir- newsstands do government offi- in a unbridled discretion culation, the method of that circulation suf- permit deny or ex- cial over whether to ficiently distinguishes newsstands from subject pressive activity, one who is require distinct treat- newsracks as may facially challenge the it without law simply ment.2 This case neither concerns for, applying first necessity the newspapers printing the circulation and being denied, a license. commonly with ex- nor “conduct associated 755-56, structure, (citations at at 2143 This case involves a Id. 108 S.Ct. pression.” topic omitted). assuming here for within the domain of ordinances Since we are very argument convened. the sake of that a newsstand since the first council 781-82, Lakewood, merely Supra, p. 486 U.S. 108 S.Ct. at newsrack the conduit.” 1. equating 1063. This extension of the rule makes no al- Justice White feared that degree newsboys the is obstructed with and conduct com- lowance newsracks walking expression sidewalks. If the ordinance monly news- their associated with allows down, present Justice paper publishers public proper- in the case is struck take Chicago’s ignores governmental fears in have become ty private White's use and reality in allowing 1993. interests stake: all members of sidewalks, public use of their streets and insur- interests, argued ing public's safety newspaper publisher and aesthetic Lakewood the especially seeking permanently newspa- where alternative methods of that it was not to rent or sidewalk; per distribution are available. The court re- build a structure on the newsrack newsboy, sponds physical that “The nature characterized as similar to a struc- pro- cousin." Id. at ture does not dictate the First Amendment the newsrack his "mechanical because the newsstand or 778 n. at 2155 n. 6. tection receives represents “expressive activity,” key 108 S.Ct. at 2151. This constituted inquiry licensor’s discretion is whether the discretion" abridging "unfettered the First licensing because “a statute FW/PBS, unbridled Amendment. See placing in the hands of 223, 603; unbridled discretion 110 S.Ct. at Freedman Mary government agency or constitutes official land, 51, 56, 734, 737, 380 U.S. 85 S.Ct. prior restraint and result censor- (1965) ("one L.Ed.2d 649 standing has ship.” There are reasons for this two challenge ground a statute on the that it First, inquiry. only if the licensor’s discre- delegates overly licensing broad discre potential applicants tion is limited will not tion"); Alabama, Thornhill v. censoring be intimidated into their own 97-98, 84 L.Ed. 1093 speech by applying for a license. not Sec- (1940) (the offending subjected statute ond, express the lack of standards makes defendant to "harsh and discriminatory en plaintiff’s proof burden prosecuting officials"). forcement local licensing review of a decision difficult on In permit the context of whether to a facial question of whether the decisionmaker challenge, the court this case does not really speech, had certain disfavored id. question address the of unfettered discre 108 S.Ct. at or was otherwise tion.3 I would hold that the ordinance does unconstitutionally motivated. Id. at give the Commissioner unfettered dis minimum, at 2145. At a Lake- cretion. newspaper apply- wood excused the provides The ordinance for prompt deci- for a newsrack and allowed a permit applica- sions on initial and renewal the ordinance facial because tions, and lists six criteria which the expressive activity; the ordinance involved may grant deny permis- Commissioner opinion inquire read to into can also be sion to build newsstand. As the court the extent that the licensor’s unbridled dis- suggests, many of the criteria do not cen- speech cretion threatens to censor before operator, including sor a such newsstand allowing challenge. a facial factors as Whether the ordinance was attacked on design whether [of newsstand] applied, major premise its face or as comports “quality with the and character is that "the re Lakewood Constitution streetscape”; whether the vendor quires that the neutral crite establish ordinance; complies with the whether the ria to that the decision is insure previously operated vendor has a stand viewpoint on the content or based location; other at the whether there are being considered." Id. at area, newsstands ... whether 108 S.Ct. at 2145. The Court struck down of the stand relates to the num- size specifically there because days operating. ber of it will be explicit Mayor's were "no limits on the [pp. By the Commis- requiring discretion." Id. at 108 S.Ct. at 2150. 1064-65]. factors, denying permit application, Mayor In a the sioner to consider these his discre- limited, person in A required only to state "it is not the tion is not unbridled. Although censoring interest." ordinance cannot feel intimidated into his the reasons, required Mayor speech just the to state his because he would otherwise troubling speci that another the Court found the lack build a newsstand blocks busi- window, ficity required display disregard paying the limitless reasons ness’s 771, 108 fee, Mayor any permit could assert. Id. at or build a newsstand as a one, granting permit, Mayor start-up a the next door to another business only open day a require could the newsrack to be located to one week. Obvious- provid ly, occupy "in can the same an inaccessible location without no two newsstands ing explanation spot give time. These criteria any whatsoever." Id. at at the same argument 3. The court does address unfettered discretion sake of the ordinance contains in the context of whether the ordinance con- discre- valid limitations on the Commissioner’s provisions, tains sufficient review 1065], [p. tion. willing wherein the court to for the assume government discriminates on the basis guidance to the Com- specific adequate and the missioner, speech reasons to should the ordinance predictable the content why permit a to particular the Amendment. applicant, as to under First be scrutinized preferred. If should be build a newsstand the con- The addresses ordinance denied, were permit to a newsstand a build First, ways. the ordinance tent in two give plaintiff express the standards these more carry that will favors the newsstand challenging appli- in guidance adequate Second, the daily ordinance publications. particular to his the ordinance cation of only carry “news- permits the newsstand upon allows an case, judicial review publica- papers, periodicals similar inquiry into whether the Commis- informed Chicago, 10-28-180 tions.” Ill.Mun.Code § in an unconstitu- made his decision sioner pro- court concludes that these The manner, by disfavoring cer- such tional attempt “curry favor may be visions an outlined speech. The factors tain readily City The admits with the dailies.” subjective and a are involve ordinance of the ordi- that the “intended function” By denying and weighing of interests. preference for news- merely nance “is permits, the Com- granting more and more maximize number of news- stands that weigh- subjective decisions and missioner’s court papers sold.” The also states consistency to a interests can be held city might legitimately favor “While the standard; permit, plaintiff if denied a daily publications, justification it offers (or satisfactory) distrib- yet a less a similar [p. preference for this the record.” circum- granted permit under like utor is City legiti- can and does offer 1065]. stances, gives plaintiff the ordinance daily publications. mate reasons to favor map prove whether road how for reasons denied Commissioner mo- granted City’s court district unconstitutional. of three counts in tion dismiss two troubling finds This court Commis- thus complaint. The district court denied ability many daily how sioner’s to consider injunctive relief because of insufficient carry, [p. the newsstand will publications on the merits. With likelihood success infringe, 1065], This factor does not but ruling was never need there fosters, the of the First interests rather justification present any for its challenges. Amendment that Graff See ordinance, pre- especially light Graff Metro Satellite Net. v. Gannett Info. appeal, challenge. On senting a facial A., (2d Cir.1984) 745 F.2d Transp. variety legitimate reasons offers (“the privileged posi- newspapers are in a to favor the dailies. tion and are not and not become will sold have on what can be [R]estrictions discrimination”). victims of viewpoint ex- nothing to with the do applicant clearly favors an who has from news- pressed the items sold lower, higher, proposed number of They simply an effort stands. publications be sold from newsstand. public way____ clutter on the reduce news- conceivably This censors ordinance, designed This type of to facili- might operator stand who himself censor newspapers tate the distribution publications from distribution. certain without undue obstruction newsstand addition, num- an ordinance directed public ways, viewpoint neutral.4 quantity, publications concerns ber of matter, people purchase practical As a quality. Graff cites case where an ordi- (in general) in- in The more time- promoting speech newspapers seconds. nance Only consuming purchase if the books or video- fringes First Amendment. time); argued particular 4. that access also the district court at Gannett A., prior Supreme allow Transp. Court decisions v. Metro 745 Satellite Net. F.2d Inf. 767, (2d Cir.1984) daily provide (upholding outlets content more sale 773-4 publications “expres- regulation than for newspapers the sale other which allowed neutral See, e.g., sive materials.” Lakewood [486 operated but coin not other vendors install 771-72, 2152], 100 L.Ed.2d at machines). vending (uniqueness daily newspapers requires 792

1075 contrast, tapes, obviously speech" would obstruct renders the ordinance unconstitu tional, (two only public way. procedural reason that a safeguards of three necessary Freedman). might prove FW/PBS, factual record is if recited in 493 U.S. 229, preference daily newspapers and at 110 Only S.Ct. at 606.5 two other (Stevens against videotapes Kennedy) restriction books Justices & joined in qualifies infringement holdings. Brennan, as an unwarranted these joined by Justice III, speech. infra, As I discuss in Part I Justices Marshall and Blackmun concurred only would for the district court on re- judgment. They leave would have question mand the holding whether “the means added to the requirement second substantially government chosen are not broader than that the "bear both the burden necessary government’s going to achieve the in- of to court and the proof burden of Racism, (the Against terest.” Ward v. Rock in court" third safeguard). Freedman 781, 2746, 2758, FW/PBS, S.Ct. atU.S. 110 S.Ct. at 612. Thus, L.Ed.2d It seems that book- certainly FW/PBS narrowed doctrine; videotape dispute magnify is an excuse to licensing Freedman where very requires First Amendment issue. At the most scheme "adult" pro businesses to business, can cure a license engaging isolated factor be severed from an before procedural require otherwise valid ordinance. two of the three FW/PBS, ments survived. 493 U.S. at The court the district court for reverses 229-30, Scalia, 110 S.Ct. at 608-09. Justice one reason: that the “ordinance fails to dissenting, rejected holding, argu first provide prompt judicial review—or review ing to not allow facial attack on the kind for that matter—and so flunks ordinance. 110 S.Ct. at 624. FW/PBS, requirement the second White, joined Justice by Chief Justice [p. U.S. at 110 S.Ct. at 606.” 1065]. Rehnquist, rejected also dissented and opinion The court’s entire relies on FW/ holding second that the ordinance had to PBS safeguards. include the Freedman Id. at city attempted of Dallas FW/PBS 244, 110 S.Ct. at 614. secondary curb the effects of crime and FW/PBS, city did not contest that blight by regulating urban the activities of challenging businesses the ordinance sexually oriented businesses. 493 U.S. at had “a valid First Amendment interest.” 220, 110 S.Ct. at 602. The ordinance sub Id. at at 604. The did S.Ct. jected "zoning, these businesses to licens argue that the ordinance did not raise ing, inspections." Id. at 224, 110 First Amendment concerns. Id. at S.Ct. at 602. Part II of Justice O'Connor's though at 604. Even the ordinance (three plurality Justices) opinion, specifical inspection applied involved an scheme ly upon by case, relied the court in this businesses, to all the Court found that the presented (1) holdings: "petitioners two “largely targets pur businesses raise facial to the veying sexually explicit speech which the scheme, us, and that as the suit comes to protected by concedes ... are the First challenging businesses the scheme Amendment,” id., and that “the scheme interest," have a valid First Amendment id. respect involved here is more onerous with 604; (2) 110 S.Ct. at the failure sexually oriented businesses than with "provide for an effective limitation on respect majority to the vast of other busi the time within which the licensor's deci nesses.” Id. at 110 S.Ct. at 604. made," sion must be and the failure to "provide prompt judicial an avenue for present City Chicago re In the case the suppression disputes view so as to minimize pro- the First Amendment prompt 5. Justice Brennan summarized the three Freed- determination must be avail- safeguards able; (3) man as follows: the would-be censor must bear (1) any prior going restraint in advance a final of both the burden of to court and the judicial determination on the merits must be proof of burden in court. longer necessary preserve than that FW/PBS, 239, U.S. at 110 493 S.Ct. at 612. resolution; (2) quo pending judicial status a 1076 York, 290, v. New tion"); 340 U.S. Kunz This of newsstands. the construction tects 314, (1951) 312, 293, 280 71 S.Ct. 95 L.Ed. simply the distribu- concerns case neither police commis (discretion upon the based commonly newspapers nor conduct tion of interpretation given at a personal sioner's is or- expression. Nor with associated Cf., Riley v. Fed'n time). National unreasonably burdensome more dinance Blind, 781, 786-87, 793-94, 108 487 U.S. newspaper distributors respect with 2672, 2676, 2667, 101 L.Ed.2d 669 S.Ct. pri- compared to other businesses. (the (1988) government had left the stan challenge to reject I facial mary reason a a fundraiser's of reasonableness of dard is a a newsstand ordinance is because standard). judicial In fee to a case case structure, thus in- speech. not This ease FW/PBS, however, Justice O'Connor conclusions that FW/PBS contested volves cases, or not to confine these seemed Thus, FW/PBS were admitted. assumed Freedman specifically, to cases where controlling Supreme Court because prerequisite finding a Supreme Court made judicial what extent the not address to did officials too much government that the had safeguards in Freedman should apply in considering judi before whether discretion involving tangentially First even cases Rather, Justice cial review was available. protection. Amendment in asserted a new slant on our O'Connor I oppose a facial chal The second reason quiry: (the lack unbridled lenge Commissioner’s Freedman, In we held that the failure ordinance) directly in discretion place limitations on the time within which the FW/PBS case. Justice O’Con volves censorship must a board decisionmaker the Dallas ordi nor addresses whether obscenity make determination of unbridled discretion nance involves discretion. See species of unbridled entirely two dif judicial review in lack Freedman, at 56-57 S.Ct. [380 U.S.] [85 First, the ordi contexts: whether ferent (failure to time within at confine 737-38] challenge. susceptible a facial nance is make decision “con- which censor must Second, 223-25, at 603-04. Id. at 110 S.Ct. delegat- as a statute tains the same vice the ordinance is unconstitutional whether discretion”). ing excessive administrative at 225- prior speech. as a restraint Thus, creates a where a scheme “[r]isk 29, 110 at 604-06. S.Ct. 737], at delay,” 380 U.S. at 55 S.Ct. [85 Promotions, Ltd. v. Southeastern “every application of stat- such that Conrad, 559-60, 546, 95 420 U.S. S.Ct. impermissible risk of ute create[s] 1239, 1247, (1975), 448 43 L.Ed.2d Taxpayers ideas,” suppression

Freedman, 380 58, 739, Vincent, at 85 S.Ct. at U.S. at 798 n. [466 U.S.] [104 system Supreme 15], permitted Court held 2125 n. have S.Ct. at we if it prior challenges. restraint offends the Constitution parties bring facial safeguards, including prompt lacks certain 223-24, FW/PBS, at at S.Ct. cases, But in before judicial review. both although puzzling is that 603-04. What Supreme addressed the issue of Court its face the Dallas ordinance on did review, prerequisite lack limitations, any of the Freedman contain finding government officials was that id. at 110 S.Ct. at Southeastern, much discretion. had too allowing reasons advanced the Court ("unbridled at 1244 420 U.S. at 95 S.Ct. challenge facial were those stated earlier: discretion"); Freedman, at 380 U.S. “largely the Court found that the ordinance ("overly broad discre at 737 S.Ct. targets purveying sexually ex- businesses tion"). Accord Shuttlesworth ... plicit speech which the concedes 147, 150, 89 Birmingham, 394 U.S. S.Ct. Amendment,” id. protected by the First (the 935, 938, (1969) ordi L.Ed.2d 162 that “the 110 S.Ct. "virtually gave nance commission scheme involved here is more onerous with prohibit" power sexually unbridled and absolute respect oriented businesses Baxley, Staub v. speech); respect majority of certain than with to the vast 313, Id. other businesses.” (1957) ("uncontrolled holding facial L.Ed.2d 302 discre permitted, unnecessary challenge felt it to a facial the Court where an ordinance granted government discretion gave the ordinance official address whether presumes it because that such unbridled discretion or con- discretion decisionmaker illegally Id., would be exercised. inadequate procedural U.S. tained limitations. 108 S.Ct. at 2154. Rather than City point On this of Dallas’ admissions government await whether a official actual- case, however, present fatal. In the were ly (an unlawfully exercised his discretion City Chicago nothing; concedes as-applied challenge), Supreme Court therefore, briefly I I will address what would allow a facial “whenever a perceive Supreme as the Court’s new slant gives government law official or (announced applied) allowing but not agency power substantial to discriminate challenges facial in the First Amendment viewpoint based on the content or speech arena. by suppressing speech disfavored or dis- White, FW/PBS, dissenting in Justice ar- speakers.” liked Id. at 108 S.Ct. at gues procedural that safe- Freedman’s thing It 2145. is one to conclude that cen- designed “protect against guards were sorship government occurs where could arbitrary by use of the discretion conferred power unlawfully use its under an ordi- the ordinance.” Id. at 110 S.Ct. at discretion; involving nance unbridled it is O’Connor, however, sees the Justice another, quite as the court in this case safeguards species “a procedural lack of as holds, person to conclude that a feel would FW/PBS, discretion.” unbridled government’s censored where the discre- U.S. at 110 S.Ct. at 603-04. It limited, yet tion is that discretion is not exactly not clear what Justice O’Connor subject procedural safeguards.6 to certain means this statement because the FW/ Supreme Court has not addressed sidestepped the PBS case issue whether point directly. Justice O'Connor's procedural safeguards the lack of allows a opinion procedural safeguards that are a challenge, city’s relying facial rather on the "species" of unbridled discretion does not key admissions. The distinction between say censorship likely that is more to occur ap- Justice White’s and Justice O’Connor’s procedural lack when there is a safe proaches disagree- rests on a fundamental guards yet the ordinance otherwise as-applied ment over facial verses chal- It limits decisionmaker's discretion. lenges. person naive to think that a lacks a Supreme Court continues to disfavor allegedly forum when their in challenges. FW/PBS, facial City fringed. Neither Graff nor the White, 110 S.Ct. at 603. Justice Chicago argues judiciary dis- that the cannot Lakewood, senting allowing challenges objected to hear to this ordinance because Observer, evidence, Chicago City 6. The court reads Inc. v. ent to cross-examine adverse witness- (7th Cir.1991), Chicago, F.2d es.” Id. at 328. of "merely regulat[ing] newsracks; the size of it originally provide If the ordinance did not for licensing power deny permit did not exercise hearing procedures, obviously did notice it applicants the means to conduct business relat- provide procedural safeguards articulat- [page or, asserts, ed to the First Amendment.” 1062 n. 5]. ed in Freedman as this court now Observer, disagree. Chicago City I simply Chicago We noted that The FW/PBS. Chicago "designed get enacted an ordinance Observer did not seek review in state court. sidewalks,” the Observer’s billboards off the And we did some of at 327. reach arguments, stating addressed the size and concern- advertisements Observer’s constitutional that "Chicago regulate viewpoint newsracks. 929 F.2d at 327. The district does not enjoined City removing any publications; court is concerned with size and given advertising." parties dispute newsracks because the owners were not Id. The do not opportunity hearing prior gives proper to removal. that the ordinance in this case provide hearing. opportunity After the amended the ordinance to notice and an hearing, only complains for notice and a the district court re- court the Commissioner’s injunction grounds fused vacate on the ultimate decision is not limited the Freedman holding the Commissioner had unfettered discre- standards. The court’s in this case approved tion to later revoke the amendment. Id. We seems to condemn the ordinance we reversed, upholding contrary the ordinance because the Observer. This would be arbiter, hearings "offers before a neutral the court’s assertion that the case is not relevant counsel, represented by pres- to be here. 1078 inquiry into whether the lows an informed permission judicial lack of

of the made his decision in an un- Commissioner procedural these The lack of ordinance. manner, by such as disfavor- constitutional speech, where safeguards censor does not ing speech. If Graff were ultimate- certain safeguards, practical in a procedural these ordinance, ly permit a under the he denied sense, from our expand nor detract neither only application censored could feel questions. constitutional jurisdiction over particular criteria to his of the ordinance’s juris maintain Illinois state courts also situation, does not because the ordinance decision over the Commissioner's diction procedural safeguards. specific not contain of law certiorari. through the writ common would also not come judicial Such review Community Unit v. Wenona Stratton See too late.” does not “too little and Graff 1, 413, 453, 141 Ill.Dec. Dist. No. 133 Ill.2d Chicago cannot ban argue that the 640, (1990). Lakewood 458, 551 N.E.2d 645 entirely. he cannot seri- newsstands And the lack of a attack because favored facial argue he has a constitutional ously re judicial express standards would make proper- on to erect a newsstand view, proof, plaintiff's burden of ty he anywhere desires. question whether on the difficult permit- challenge A facial should certain had disfavored decisionmaker present ted in the case for either two unconstitutionally motivat or was speech, building Newsstands involve reasons. Id., 757-58, 108 at S.Ct. at ed. U.S. Thus, the ordinance does of structures. at 2144-45. Freedman favored a facial enough expres- not have “a close nexus to awaiting the censor's exercise tack because sion, commonly to conduct associated as-applied bringing an and of discretion a expression, pose real and substan- with "may be too challenge the ordinance censorship identified tial threat of Id., 57, at too late." 380 U.S. little and 759, Lakewood, at risks.” facial 738. Such reasons a alternative, In the ordi- S.Ct. at 2145. concerning judicial review are attack with does not vest the Commissioner nance in this case.7 present as so to censor Graff’s unbridled discretion give express ordinance’s standards speech. I therefore dismiss Graff’s would adequate specific guidance to the Com- and alleges only that it complaint to the extent missioner, predictable to the and reasons challenge a facial ordinance.8 why permit particular as applicant, Challenge III. A Facial Should preferred. If a newsstand should be build Be Remanded de- permit to were build newsstand nied, give express these standards many ways this case resembles Theatres, Inc., guidance challenging Playtime plaintiff adequate Renton par- 925, to his application 41, of the ordinance 89 L.Ed.2d 29 U.S. Renton, case, Washington en- al- There the upon review ticular O'Connor, FW/PBS, (JJ. regulates plurality essary the build- Stevens 7. applied only Kennedy) public property? of the ing two three of newsstands on safeguards procedural to a licens- in Freedman involving sexually ing business- scheme oriented challenge importance as-applied of an es. 110 S.Ct. at 606-07. U.S. appropriate particularly in this case. Graff has White, Scalia, and Chief Justice Rehn- Justices property operating on his newsstand on insisted safeguards. quist apply did not the Freedman protected by on His- the Commission Brennan, And Justices Marshall and Blackmun and Architectural Landmarks. After torical applied three of the Freedman would have all complaint September Graff's first amended case, present safeguards. simply In the cit- 1991, May the district court’s decision FW/PBS, ing 110 S.Ct. at denied the Landmark Commission authority holding, disregards as for its the court application August concern- Graff's Justice consid- the fact that O’Connor least permit property to build newsstand on ered the discretion nature Library part Public Cul- that is inquiries regarding as relevant in the ordinance challenge Center. Graff does not tural safeguards the extent the Freedman are neces- actions violative of Landmark Commission’s sary. procedural protections If the full Thus, if Graff wishes to necessary the First Amendment. the context of Freedman are not schemes, FW/PBS, build his newsstand where sexually oriented Commission, necessary the Landmark he from 493 U.S. at 110 S.Ct. at what law standing safeguards ordi- should have no demands that Freedman nec- face, zoning prohibit ordinance to adult id on its the defendants lose without acted a picture locating having theaters from with- motion even answered the first amended residential, a certain distance complaint. church, 43, property. or school properly If the matter were indeed re Supreme The found S.Ct. at 926. Court manded, reversed, rather than we could that the ordinance direct the district court to until the wait neatly appear does not to fit into either summary judgment stage litigation of the the “content-based” or the “content-neu- question to address the ultimate of wheth sure, category.” tral To be the ordi- er the ordinance should stand. In FW/ specialize in nance treats theaters that PBS, 221, 602, 493 U.S. at 110 S.Ct. at differently adult films from other kinds Renton, 41, 925, U.S. 106 S.Ct. at Nevertheless, of theaters. as the district Vincent, 792-93, 466 U.S. at S.Ct. concluded, court the Renton ordinance is 2122, Young, and 427 U.S. at 96 S.Ct. at aimed at the content of films the get the cities were at least allowed to picture shown at “adult motion the- summary judgment stage. City to the The atres,” secondary rather at the ef- but Chicago given of should at least be surrounding of such on the fects theaters opportunity gov to show the substantial community. stake, ernmental interests at the reason Supreme Id. at 106 S.Ct. at 929. The time, place, ableness of the ordinance's looking analyzed Court the ordinance restrictions, manner and the alternative av time, in place, and manner restrictions enues of communication available Graff. regulation. Supreme Court held Only inquiry after such an should we ad justified the Renton ordinance was dress extent which the Freedman content, without reference to thus "con safeguards necessary. The court criti tent-neutral," id., and served a substantial failing cizes the court to "mea district for interest, government allowing while for city's in proposed sure either the interests of communication. reasonable alternatives regulating expressive conduct or the avail 53-54, city can Id. at 106 S.Ct. at 932. If a of ability of alternative channels communi regu speech through planning, restrict [p. Even if the district cation." 1068]. lation, zoning property of because so, attempted ruling to do on a court had secondary pic effects of adult motion place for such an motion to dismiss neighborhood, tures on the id. at case, however, this court inquiry. this 931, Young 106 S.Ct. at v. American Mini goes opposite direction and strikes Theatres, Inc., 50, 62, nothing on more than down an ordinance 2440, 2448, (1976), City 49 L.Ed.2d 310 allegations complaint. Chicago regulate should allowed to be newsstands, only if for aesthetic reasons. IV. Conclusion City Taxpayers See Members Council v. original complaint Vincent, filed his on Feb- Graff for ruary City there- 80 L.Ed.2d 772 1991. after amended its newsstand ordinance light procedural posture City searching June case, present today what the court holds prohibit- reasonable alternative to either unprecedented. complaint Graff filed a permitting entirely newsstands damages injunctive relief. Rather Today’s decision takes newsstands at will. preliminary hearing, than conduct a microscope to the ordinance and con- injunctive district court denied relief newsstands, se, per involve cludes that granting the defendant’s motion to dismiss ordinances speech, and that newsstand complaint. By two of three counts in the gives reversing holding, the district court must have a one-sentence section law, reviewing that the court or other matter ordinance is inval- an unidentified gives only facial to the nance that the Commissioner of Public to illustrate that a power subsequently allow Works the act on the ordinance Graff attacks still not permit. parties Neither the the district Graff to his newsstand on Landmark nor maintain detail; property. court addressed matter I mention reheard en banc at the conve- will case power to review Commissioner’s body Court. The extent to which nience decision. the Freed- comply all with

review must It safeguards could

man we do not know. meeting one

take technicality court finds correct But the court does little

problematic. possible clue to giving other INCORPORATED, PRODUCTIONS, JAK The court ordinance. weaknesses Corporation, Plaintiff- an Indiana grant municipality must “that a holds Appellee, procedural safeguards certain citizens expressive to license activi- where seeks III, WIZA, Defendant- Edward J. ty.” Supra, p. 1063. But the ordinance Appellant. today purports to the court strikes down when a newsstands allow No. 92-1849. emphati- the court “most granted. Since Appeals, Court of United States private par- reject[s] the notion that cally Circuit. Seventh right have unassailable build ties Argued 1992. Oct. {supra, p. public property,” structures on operate his 1063), by what does Graff Decided 1993. Feb. (Landmark) property? newsstand questions, answers these Without over, giving probably

case will start years litigation two ex-

parties another again. type This

pense we hear it before strident, pro- piecemeal review neither the interests of First Amend-

motes parties in nor the needs of the resolv-

ment case. respectfully dissent.

I BAUER, Judge,

Before Chief CUDAHY, POSNER,

CUMMINGS, EASTERBROOK,

COFFEY, FLAUM, MANION,

RIPPLE, KANNE, ILANA D.

ROVNER, Judges, and Circuit

FAIRCHILD, Judge.* Senior Circuit

ORDER

April petition for re-

On consideration of en suggestion rehearing

hearing with defendant-appellee

banc filed on March plaintiff-appel- and the answer

lant, a vote of the active members of the majority requested

Court was service have voted to re-

judges active this case en banc.

hear en rehearing banc ORDERED that

IT IS

be, hereby, and the same is GRANTED.

IT IS FURTHER ORDERED that

opinion February entered this case on

1993, be, hereby, and is This VACATED.

* Judge original panel. was a member of the Fairchild

Case Details

Case Name: Richard Graff v. City of Chicago

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 15, 1993

Citation: 986 F.2d 1055

Docket Number: 92-2352

Court Abbreviation: 7th Cir.