*1 Right D. Cozzi’s to a Set-Off Reboy employment
If on issue prevails retrial, parties agree that he have all will compensation repay the worker benefits prevent
he received after his accident to occurs, recovery. If
double we ask the clarify
district court to order whom
Reboy repay and amount must must repaid.
be
III. above,
For all of the reasons we REVERSE
judgment plaintiffs in favor of and RemaND jury only. employment
for a trial on the issue grounds.
We AffiRM all other GRAFF, Plaintiff-Appellant,
Richard CHICAGO,
CITY OF an Illinois
corporation, Defendant-
Appellee.
No. 92-2352. Appeals, States
United Court
Seventh Circuit.
Argued June
Decided Nov. *2 Piers, Jonathan A. Rothstein
Matthew J. Fischer, Gessler, Flynn, (argued), Jennifer L. IL, Soeol, Fleisehmann, Hughes Chicago, & for Richard Graff. Counsel, Pahl, Corp.
Eileen T. Office of Moscovitch, IL, Asst. Chicago, Ruth M. 13H Counsel, Gregg, Bobbie McGee Asst. newsstand. Such Corp. newsstands seemed to Welsh, Atty., Kelly Corp. operated R. Asst. Coun- property by have sheer Solomon, Corp. sel, acquiescence. R. Office of the purchased Benna At the time Graff Counsel, Div., Rosenthal, newsstand, Appeals Chicago ostensibly Lawrence required *3 (argued), County Deputy Counsel Deputy operators permits. to acquire newsstand We IL, City Chicago, Chicago, say Corp. ostensibly, Counsel because Graff asserted that Chicago. for operated then and now newsstands on have public way permits the without only and Kraus, Jeffrey Ettelson, Al- T. William S. targeted Graff has been for eviction. IL, Gray, Chicago, & for theimer amicus Committee, Chicago curiae Cent. Area Burn- ordinance, shall Under what we call old the Bd., Planning Michigan ham Park Cent. Ave- permits these were issued at the discretion Assoc, nue Business and LaSalle Street sanitation, the commissioner streets and Council, Inc. mayor permit any and the could revoke a provided time. The old ordinance that such Levin, Dunn, R. Damon E. Lev- Lawrence only Chicago papers, newsstands could sell Funkhouser, IL, Chicago, for amicus & mayor provided and with no standards Sun-Times, Inc., Chicago Gannett curiae Sat- guide hearing his discretion. It also lacked Network, Chicago Inc. and ellite Information procedures to deny review the decisions to or Co. Tribune permit. Chicago revoke a §§ Mun.Code 10- POSNER, Judge, 28-130 to -190. attempted apply Before Chief and Graff for BAUER, CUDAHY, CUMMINGS, permit under the old ordinance without COFFEY, FLAUM, EASTERBROOK, success, although much Chicago continued RIPPLE, MANION, KANNE, permits issue for newsstands at other loca- ROVNER, Judges, tions. Circuit
FAIRCHILD, Judge. Senior Circuit gave In Chicago November Graff two months’ notice to remove his newsstand from MANION, Judge. Circuit way. public This order was later re- seventy nearly years For a newsstand has Graff, however, enough. scinded. had had City Chicago in front stood Cultural February complaint On filed a he Li- (formerly Center Public against Chicago Mayor Daley alleging Graff, brary). plaintiff, op- Richard has that the old ordinance violated the Com- July his newsstand there erated since merce Clause and the First and Fourteenth purchased fifty when he for stand over Amendments to the United States Constitu- dollars. This concerns thousand case relief, injunctive sought compensa- tion.1 He Chicago municipal designed ordinance tory damages attorneys fees. Rather Graff, operators, force newsstand such as ordinance, than on defend the old June acquire permit either or eviction. face Chi- 1991, Chicago amended it. Mun. cago threatened to remove Graff from his (1991). §§ Code to -192 de- 10-28-130 request permit, location. Rather than fendants thereafter moved to dismiss ultimately sought Graff relief the federal complaint arguing the new ordinance correct- court, challenge district with a facial to the ed constitutional that deficiencies Graff ordinance. The court district denied Graffs complaint. had in his identified The court enjoin request Chicago’s proposed enforce- prejudice. without dismissed case Rath- F.Supp. ment the ordinance. 800 apply er than for a under new reasons, following For the we affirm. ordinance, September on Graff complaint his new amended and attacked the Background I. complaint sought its face. The declaratory, all comprehensive prelimi- From indications Graffs predecessors relief: property rights nary permanent injunctions, compensato- had no ownership to the Graham, Mayor Daley tucky sued his ca- official (1985) (official pacity. appeal capacity Graff does not the district court’s suits are L.Ed.2d 114 dismissing Mayor Daley essentially against municipality). case. from the See Ken- attorneys ruled could establish size fees under the court that ry damages newsstands, though did even Fourteenth Amendments. limitations First and cafes. The not do the same sidewalk alleg- Broadly in count one Graff speaking, municipal court ruled that the code did consti- Chicago’s permit ordinance es allegation support that the landmark Graffs restraint of free tutes unlawful differently newsstands commission treated alleges he new speech. In count two visibly than other affected structures Equal Protection ordinance violates property. landmark Because could Graff other, non-expressive uses of Clause because likelihood of success on show a substantial cafes) (such way sidewalk merits, court denied the district Graffs favorably newsstands. than treated more *4 injunctive for relief. Count three motions old alleges he that the ordinance count three dealing old remains alive with the law under equal protection him of the denied in the district court. In 1987 Graff Amendment. Fourteenth from the east side of moved his newsstand appealed the of While Graff dismissal the side Center to west entrance the Cultural two, applied permit counts one and he con- Randolph to accommodate off of Street in front of the operate to two newsstands underground Pedway the Tunnel. struction of location, of the Cultural Center. Because recoup he to the count three seeks Under permission to from the Graff had first seek having move expenses of had to his news- Chicago Historical and Archi- Commission on expenses architectural he stand and certain application That was tectural Landmarks. filing application his for a incurred when 13,1992, the August on because news- denied permit the old ordinance. under compromise would the architectural stands Chicago Again, moved to dismiss. Before building. integrity adjoining landmark the motion, 14, May court ruled on the on the 1992, Chicago August again notified On again Chicago notified Graff that days Graff that he had fifteen to remove his in fifteen intended to remove his newsstand injunction in sought an newsstand. Graff consistently objected days. Chicago to had court, promptly this which we dismissed. requested of the and had the size newsstand to the directed him file matter We that it be out of steel rather than wood. built 8(a). Fed.R.App.P. pursuant district court “Emergency Tem- filed an Motion for Graff relief, him After the district court denied porary Restraining Order and for Prelimi- September granted mo- we Graffs Injunction.” nary The had the effect motion enjoined Chicago destroying tion and from forcing May hand. quickly the court’s On appeal. pending the newsstand one and the court dismissed counts entirely. injunctive relief two denied 8, 1993, argument February On after oral decision, Chicago but before moved to dis- complaint initially The found that the court injunction planned solve the because of reha- as-applied an could be read raise bilitation the Cultural Center. challenge to the ordinance. But facial new handicap hoped replace had the access applied for a because had not Graff ordinance, ramp, and clean and remodel exterior court concluded under new 16,1993 February panel challenge stonework. facial was before it. As On reversing one, opinion this court its the court concluded that issued to count district court the new ordinance new ordinance was content-neutral did because judicial self-censorship provide oversight, raise the failed to sufficient threat Amendment as es- City Lakewood v. Plain violation of First enunciated FW/PBS, Dallas, Dealer, poused Inc. v. (1988). 215, 228, 606, 107 The L.Ed.2d 771 court also conclud- (1990). new ordinance contained reason- L.Ed.2d See ed Graff (7th Cir.1993). time, Chicago, 986 F.2d Chi- place and manner restrictions nec- able multiple cago’s injunction essary to uses motion to dissolve accommodate the 15,1993, pro- April court public way, adequate contained denied as moot. On this two, granted Chicago’s petition rehearing en safeguards. As count cedural panel opinion. refusing preliminary After injunction and vacated the to enter banc review, dismissing we now and in counts en banc affirm. one and two. Graff Chicago’s
attempts to have newsstand ordi- II. Jurisdiction nance declared unconstitutional in hope However, stays put. that his newsstand complaint, requested his Graff ordinance, without the newsstand Graff still injunction. press He did not preliminary right operate has no his newsstand on early apparently hearing court for an district public property. Contrary to Graffs conten- yet had not the bull moved speech, tions about case involves a struc- May in for the kill. On dozers no ture. Graff has First right Amendment however, Chicago notified that he had Graff public property. build a structure on days A later to vacate. week Graff fifteen properly district court also acted in dismiss- “Emergency Temporary Motion for filed ing challenges to Graffs the new ordinance. Restraining Preliminary In Order and for ordinance does not allow junction.” court dis Within the week the opportunity grant deny per- newsstand two, denied all missed counts one and personal mits because or institutional injunctive In his notice of motions as moot. government views of a official. To the extent *5 appeal, sought Graff of the district review that types pub- the ordinance restricts the “denying plaintiffs order the motion court’s newsstand, from a lications sold the restric- order, temporary grant restraining for a tions are reasonable. ordinance contains part, in ing, defendant’s motion to dismiss time, place reasonable and manner restric- complaint.” first plaintiffs amended tions, justified speech without reference to jur Initially, City argues lack the that we content, open and leaves alternative avenues appeal to one isdiction hear this to the communicate same information. We court, in count remains alive the district also conclude that the ordinance contains suf- therefore, judgment final has not been en judicial provisions passes ficient review 1292(a)(1) However, § tered. 28 U.S.C. Equal analysis. muster under Protection jurisdiction grants us to hear inter certain locutory appeals, as when court the district A. Newsstand Structure Here, injunction. to enter an refuses that; just court did refused to district injunction an enter favor of dis Graff passed Chicago has numerous ordinances missing complaint. counts one and two of the attempting myriad deal with prob- to (7th Fisher, v.
Holmes 854 F.2d public way, lems that on its arise from carni- Cir.1988). It not also does matter that Graff vals to snow removal. Mun.Code sought temporary review of the denial of his §§ to 10-28-010 -800. that asserts (which restraining yet appeal- order is prohibits this ordinance all vendors from able). Syndicate, See Geneva Assurance building public way; on structures news- Ass’n, Emergency Inc. Medical Servs. paper can vendors erect a structure (7th curiam). Cir.1992) (per F.2d permit. general obtaining after As a start- Therefore, jurisdiction we have to review the ing point, another specifical- unless injunction court’s district refusal to enter an otherwise, ly person “no authorizes shall properly whether the district dis court any building, structure, place erect or or missed counts one and two. stationary object, in part, other whole or in way upon any public public ground or other Analysis
III. city.” within the Id. at -040. There are essentially any “It exceptions. This case involves two interde- shall be unlawful for erect, questions: place in, pendent person upon whether the district or maintain or enjoined Chicago any way public should from public place court have re- over or other moving city, any ... display Graffs newsstand and whether Chi- for the or [stand] cago’s goods, newsstand wares or ... ordinance is constitutional. sale of merchandise un- permit conclude that the statute constitution- less a for the same shall be We is obtained Also, properly superintendent compensa- al. the district court from acted
tion_”
ornaments;
desiring
display
persons
for
Specifically
at -050.
news-
other
Id.
vendors,
symbols
religious
were allowed to lease
paper
airport. The Lubavitch Chabad
area of the
any person
unlawful
It shall be
however,
House,
pay.
not want
did
erect,
locate,
any
construct or maintain
organization sought
display
a free stand-
way
any
public
on
or
newspaper stand
ing
public
menorah
one of the
Chanukah
con-
property owned or
other unenclosed
held that the ordinance did
per-
areas. We
obtaining a
trolled
without
any
constitutionally protected
form of
from
involve
mit
the commissioner
therefor
speech..
provided.
Id. at 347. There
no
transportation as hereinafter
parties
fo-
Id. -130.
In this case the
have
right
private'
to erect a
constitutional
arguments in the district court
cused their
public property.
on
If there
structure
constitutionality
appeal
on
on
of Chi-
forums,
were,
public
our traditional
such as
-
ordinance,
cago’s
id. at
newsstand
public parks,
be cluttered with
our
would
injunction
sought an
ISO to -196. Graff
parks
all manner of structures. Public
removing
prevent Chicago
his news-
from
certainly
quintessential
public forums
supposition
per-
if
stand under
protected,
where free
but
unconstitutional,
mit ordinance were declared
provides, nor has it
Constitution neither
stay. But even
his newsstand should
without
mandate,
any
been construed to
ever
ordinance,
challenged
newsstand
Graff
person
group
or
be allowed to erect struc-
public
right
occupy
has
side-
still
no
tures at will.
walk;
is, unless
has a constitutional
he
Id.;
v. Tax
accord Members
Council
right to
build
maintain
newsstand
Vincent,
813-15, 104
payers
goes
If
property.
the ordinance
down
(1984).
2118, 2133-34,
to constitutional
In Lakewood a
argues
Graff
that newsracks and news
newspaper challenged
ordinance that
stands should receive identical First Amend
mayor
grant
deny permits
allowed the
or
protection.
ment
But Lakewood does not so
publishers
place
their newsracks on
easily bridge
gap
between newsracks and
mayor
property. The
had to state
They
significantly
newsstands.
are
different
specific
application;
reasons if he denied the
methods of distribution and we must assess
granting
permit,
mayor
could add
them on
uniquely
standards
suited to each.
such terms and conditions he deemed reason-
Promotions,
See Southeastern
Ltd. v. Con
necessary.
newspaper
able and
elected rad,
546, 557,
apply
permit,
bringing
not to
for a
instead
(1975) (“Each
L.Ed.2d 448
medium of ex
challenge
facial
to the ordinance. 486 U.S. at
course,
pression, must be assessed for
754,
Municipal as trustees for the official unfettered duty commu- keep possibility their is to raise that the official— public, have the the for move- open particular and available nities’ streets because dissatisfaction over property, primary severely the people policy might ment of ban limit editorial — the streets are dedicated. purpose particular publication. to which the of a newsracks does long legislation this end not instance, by, lampooned So For if the official is liberty of abridge constitutional one Tribune, the say, his boss Chicago the as he or impart infor- rightfully upon the street to bid, he have an makes a re-election would through speech or the distribution mation to limit their At the incentive newsracks. literature, may regulate lawfully least, might very Chicago Tribune limit using For conduct of those the streets. its editorial because of fear of such efforts example, could person not exercise this censorship. liberty by taking his in the middle of stand The same threat of restraint does not street, regu- contrary to traffic a crowded They exist for newsstands. are structures lations, position maintain his particular publications. all not at tied to traffic; group distribu- stoppage of all hypothetical, Chicago our official—even if upon insist constitutional tors could not against not he wanted to—could retaliate right to form a cordon across street by regulating Tribune newsstands. pedestrian pass and to allow no who did Only likely under least would a scenario leaflet; accept does a tendered nor target able to a certain official be or of guarantee of freedom targeting a publication by certain newsstand. deprive municipality power press city accomplish type For a official to regulations against throwing litera- enact censorship, large need he would staff Prohibition ture broadcast streets. city all of check the newsstands in the find abridge such would not conduct disseminating objectionable ma- the ones liberty activity constitutional since such deny permits terial. Then he would have to necessary relationship no to the free- bears To dis- to those newsstands. “chill” similar write, print speak, dom to or distribute others, he have to tribution would make opinion. information or closing public that certain he was newsstands State, 147, 160-61, Schneider objectionable distributing were (1939); 150-51, 84 ac L.Ed. 155 hardly material. scenario is This similar to —Lee, at-, cord nixing the news- one official all of (“The principal purpose of and side streets publication by racks of a certain the stroke of walks, airports, transpor like is to facilitate pen, safely hidden his while behind walls tation, (emphasis add discourse.” unlikely hall. is the former scenar- So ed) J., (Kennedy, concurring)). io that First Amendment does not re- *8 the Court concluded the ordi- Lakewood quire the ordinance to be drafted to avoid it. implicated speech required nance it Further, closing of the newsstands would periodic licensing license renewal and the publications affect all of the the newsstand system narrowly specifi- was “directed Chicago equally, and the would still Tribune commonly cally expression at or as- conduct have its other methods dissemination— expression: sociated with the circulation of newsracks, newsboys, in-building news- newspapers.” at 760. This case stands, papers. etc.—to sell simply circulation neither concerns protections provided newsracks are printing newspapers nor common- conduct peculiar tailored their characteristics. ly expression. associated with This case in- Judge Cummings’ Judge dissent and Flaum’s newsraek, A volves a structure. as a source position news, concurrence that the take same inextricably publication tied fit instance, protections tailored to newsracks should Chicago it contains. For has news- upon Tribune, Chicago placed newsstands. But Chicago racks for be newsstands Sun-Times, tar- Today, are not newsracks. The same threat of the Wall Street USA Journal, publication regula- publications geting one inherent in the and whatever other city. regu- might give city present popular be To tion of newsracks is Judge Cummings’ lation of newsstands. dis- struck City’s down the ordinance because it sent offers remote scenario where a vested too much discretion in the hands of a might target government publica- official certain “off-beat official. 486 U.S. at “pornographic” publications by tions” or argues tar- S.Ct. at 2152. Graff that such a geting danger certain Cummings, viewpoint newsstands. J. discrimination also exists dissent at But 1337-38. the First Amend- this case. require ment does not that we create unlike- licensing “[A] placing statute unbridled ly censorship scenarios for the speech discretion in the government hands of a offi
require city governments
regu-
to draft their
cial
agency
constitutes a
restraint
lations to
Only
avoid these scenarios.
when
in censorship.”
result
Id. at
the ordinance at
presents
issue
an obvious
major
108 S.Ct. at
premise
2143. A
in Lake
censorship
and immediate threat of
in—as
wood was that “the
requires
Constitution
the case of the newsrack
ordinance
Lake-
establish neutral criteria to
challenge
wood—should we allow a facial
to insure
that the
decision is not based
possibility
censorship.
head off the
When
on the
viewpoint
content or
censorship
the threat of
derives from the
being
considered.” Id. at
108 S.Ct. at
target-
unlikeliest of scenarios —such as the
2146. The Court struck down the Lakewood
ing
“pornographic” publica-
of “off-beat” or
specifically
ordinance
because there were “no
issuing
permits
tions when
newsstand
fa-—a
explicit
Mayor’s
limits on the
discretion.”
challenge
inappropriate.
cial
The threat is
Id. at
at
denying
2150. In
speculative.
too remote and
permit application,
mayor
required
only to state “it
is not in the
interest.”
right
Given
there is no constitutional
Although the
required
mayor
ordinance
to build or maintain a newsstand on the
reasons,
to state his
the Court found trou
public way,
properly
the district court
re-
bling
specificity
the lack of
required and the
enjoin
Chicago
removing
fused
from
mayor
limitless reasons the
could assert.
Id.
Graffs newsstand. But
is not inter-
at
B. The Commissioner’s Limited Discretion
or
newspaper
comport
scheme of the
stand
argues
Chicago’s
Graff
quality
news
with and enhance the
and character
stand ordinance violates the First
streetseape, including nearby
Amend
devel-
by vesting
(2)
ment
opment
uses;
too much discretion in
existing
the
land
Wheth-
official,
government
newspaper
here the commissioner of
er
complies
the
stand
with this
(3)
transportation.
code;
In Lakewood the
applicant
previ-
Court
Whether the
has
to
enough
expression, or
con-
at that
close
nexus to
newspaper
stand
ously operated
(4)
commonly
expression,
location;
services
to
The extent to which
duct
associated with
newspaper
by the
threat
the
pose
that would be offered
a real
substantial
area; (5)'
already
available
censorship
stand
risks.” 486
at
identified
daily
proposed
added).
publications
(emphasis
The number
S.Ct. at
stand;
newspaper
the
from
to be sold
Chicago’s
in
criteria set out in
ordinance
The
(6)
to
stand relative
The size
pose a
no sense
“real or substantial threat”
open
days the
will be
stand
number
Against
censorship.
v. Rock
See Ward
operating.5
Racism,
at
1319
government.”
Renton,
But that
is “the business of
This
City
case resembles
475
Observer,
41,106
925,
City
Chicago,
Inc. v.
U.S.
89
S.Ct.
L.Ed.2d 29. There
(7th Cir.1991).
325,
Renton,
City
Washington,
929 F.2d
329
Not all
enacted a
zoning
discretionary
implicate
prohibit
ordinance to
decisions
the First
adult motion
—
Cincinnati,
picture
from locating
theaters
within
Amendment. See
a cer-
(the
residential, church,
tain
at-,
distance from
City may
at 1517
U.S.
S.Ct.
43,
property.
school
Id. at
cago’s
any way
ordinance does not in
limit
appear
neatly
does not
to fit
into either the
speech
opera
content of the newsstand
“content-based” or the “content-neutral”
tor,
sure,
category. To
censorship
there is no threat or risk of
be
the ordinance treats
specialize
theaters that
in adult
which violates the First Amendment.
films dif-
ferently from other kinds of theaters. Ne-
vertheless,
concluded,
as the district court
Time,
C. Reasonable
Place and Manner
the Renton ordinance is
aimed
at the
Restrictions
content of the films shown at “adult motion
theatres,”
picture
but rather at the second-
government
speech
If the
seeks to control
ary effects of such theaters on the sur-
viewpoint,
without reference to
ordinances
rounding community.
time, place
can contain
and man
reasonable
restrictions,
Id. at
square feet
In
§
clogging
10-28-170.
of down-
Chicago Mun.Code
as the
height.
newspapers, such
always allow
must
addition,
streets,
the newsstand
have
...
the ordinance
town
passage,
feet of clear
secondary
least six
pedestrians at
ef-
under the
constitutional
been
three feet of
within
Network,
located
and cannot be
Discovery
946
fects doctrine.”
-185(b).
“the
This is
line.
Id.
property
affirming,
In
at 472 n. 12.
F.2d
Observer,
Chicago
government.”
of
business
City
to
that
contrast
Court also noted
of
position
to
are not
We
929
at 829.
F.2d
distinguishing second-
were no
Renton there
In
concerns.
city council’s
second-guess the
contain-
ary
to newsracks
effects attributable
eminently
event,
are
restrictions
any
these
compared to
publications as
ing commercial
certainly should
Pedestrians
reasonable.
would
containing newspapers that
newsracks
enough space to walk on
have access
City
justify differing treatment.
Cincin-
of
part of
block
structures
Where
sidewalks.
—
-,
nati,
113
at 1517.
S.Ct.
U.S.
sidewalk,
have an inter-
pedestrians also
reasoning,
following
*12
640, 101
fron, 452
69 L.Ed.2d
late.” The manner in
which this ordinance
Also,
regulates
operation
browsers would block access to
the newsstand
allows
necessary
quick purchase
to make a
access.
those who wanted
newspaper.
Gannett Satellite
See
Info.
finally
time,
argues
Graff
place
A,
Transp.
Net. v. Metro
745 F.2d
773-4
and manner
narrowly
restrictions are not
Cir.1984)
(2d
(upholding as content neutral a
governmental
tailored to serve the asserted
regulation
newspapers
which allowed
but not
Ward,
interests. See
operated
other vendors to install coin
vend
2756; City
S.Ct. at
Angeles
Los
v. Pre
machines;
priv
ing
newspapers
“the
are in a
ferred,
ileged position and are not and will not be
(1986). Specifically,
L.Ed.2d 480
ar
Graff
discrimination”).
come the victims of
gues the ordinance
an arbitrary cap
sets
permits
given
the number of
and that
many
That the ordinance considers how
provision requiring minimum clearance
carry
publications the newsstand
does
will
newsstand,
around the
there is no reason for
infringe,
promotes
not
but
rather
First
arbitrary
size limitation. He wants fur
clearly
Amendment interests. The ordinance
discovery
ther
to show there are less restric
applicant
higher,
favors
who has the
not
tive alternatives.
lower, proposed
publications
number of
to be sold from the newsstand. This conceiv-
“requirement
tailoring
of narrow
ably
only
operator
the newsstand
“censors”
long
is
regulation
satisfied so
as the
pro
might
publica-
who himself
eliminate certain
government
motes a substantial
interest that
addition,
tions from distribution.
In
an ordi-
effectively
would be achieved less
absent the
publications
nance directed at the number of
Ward,
regulation.”
at
quantity,
quality
concerns
not
or content.
(citations omitted).
S.Ct. at 2758
This test is
pro-
Graff cites no case where an ordinance
heightened
not as
as Graff would have us
(in
moting
general) infringes
more
believe.
the First Amendment.
long
So
as the means chosen are not sub-
stantially
necessary
broader
than
promoting
Graff asserts that
the dailies
interest,
government’s
achieve the
...
message
serves to
advance
less controver
regulation
simply
not
will
be invalid
be-
greatest
people.
sial to the
number of
This
cause a
govern-
court concludes that the
ignores
reality
marketplace.
adequately
ment’s interest could be
served
only
dailies succeed
sell to the
by
less-speech-restrictive
some
alternative.
greatest
people, notwithstanding
number of
government’s perceived
800,109
agreement
at
with
Id.
S.Ct. at 2758. Because Chica-
any particular viewpoint.
newsstands,
Any
go
ability
notion that
has the
all
.ban
promoting
providing
the dailies because
comprehensive per-
for some
past experience
likely
agree
based on
people
it is
mit scheme
serves
viewpoints mitigated by
with their future
compet-
well. The ordinance accommodates
favoring
opera
ing
the ordinance
the newsstand
pedestrians
interests where
wish room to
walk,
operators
tor who sells the most dailies—an obvious
several newsstand
desire the
attempt
variety,
location,
not indoctrination. Chi
same
and tourists
wish
take a
cago argued in the district
picture
court that
of a famous landmark without a
encouraged
pro
Court has
newsstand front and center.
Without
daily publications
ordinance,
motion
Chicago’s
over the sale of
interests would
“expressive
only
effectiveness,
other
materials.” As stated in
be achieved with less
Lakewood,
771, 108
U.S. at
but
fail. The
would
restrictions also leave
fungible.
is not
open
“News
stories
be
alternative
Some
channels
communication
particularly
publica
well covered
certain
of the information.
Id.
S.Ct. at
tions, providing
newspaper
with a 2760.
ads and
“teems with
Observer,
unique opportunity
develop readership.
publications,” Chicago
with
event,
paper
easily
order to benefit from that
F.2d at
one can
discern that the
public
time;
particular
problem picking
newspa-
needs
access at a
up
has no
per,
videotape,
eventual access would come too little and too
it in
book
be
stores that
safety
protecting
or from
A state’s interests in
property
their
actually own
own
using
pub-
persons
and convenience of
yelling
the headlines.
newsboys
out
objective.
governmental
is a valid
lic forum
*13
reasons, we conclude
foregoing
the
For
and function of
The characteristic nature
time,
restrictions
place and manner
that the
assessing
the forum must be considered
are reason-
in the new ordinance
contained
regulation....
constitutionality of the
the
specif-
able,
justified
reference to
are
without
Rochford,
held in
the
has valid
As
content,
to
narrowly
tailored
serve
ic
expediting
processing
about
the
concerns
Chicago.
people
interests
the
of
significant
of
travelers,
and or-
maintaining
the free
to
are also available
Alternative channels
traffic,
derly
avoiding
the dis-
flow
any speech
restrict-
otherwise
communicate
normal
Prohi-
ruption
airport
activities.
ed.
signs
on the use of banners or
bitions
body
storing
the
exceed the
width and on
Propriety
Dismissal Versus
D. The
materials,
carry bag
except in a
Judgment
Summary
harnessed,
carried
are reason-
must be
or
district
dismissed two
The
court
ably
City’s legitimate
inter-
related
the
complaint
part
the
on the
counts of
based
ests.
time, place
of the ordinance’s
reasonableness
Caucus,
at
International
816 F.2d
339-40
argues
and manner restrictions. Graff
(citations
omitted).
quotations
As we
stage
pleading
place for such an
is no
seen,
many
have
asserted that
government
inquiry, especially
apply
well.
these interests
in this case as
In
Preferred,
on
issue. See
has the burden
Caucus,
International
we concluded that
2038;
496,
In this case no there are issues of material fact that need to we resolve. Nor FW/PBS, 611.9 Chicago are the interests that raises in this Graff, Of concern to permit, since he no has unique case It different. has not relied on procedures are the Chicago follows remov- independent findings. research studies or ing permit. a newsstand without a Once the Rather, Chicago has relied on a common commissioner operat- discovers a newsstand approach sense and the desire to best allo- ing public property permit, without a valid public property spirit cate within the authority give commissioner has the C, First Amendment. As discussed in Part operator days posting fifteen after the we conclude that aas matter of law public proper- removal notice to restore the reasonably selling can restrict newsstands to ty Thus, original to its daily condition. Mun. newspapers. the district court 10-28-190(c). properly pleading stage § dismissed at Code Within that time the arguments Graffs that the ordinance should operator may request hearing owner or operate larger allow him to newsstand transportation, before the commissioner books, videotapes which to sell and other thirty days. which will be scheduled within expression. methods of if Even the commissioner to rule unfa- were
vorably, operator would not have to re- Adequacy Safeguards E. The Procedural days move his until newsstand fifteen after the commissioner’s final decision. Whether Graff asserts that the ordinance is com- removed, is newsstand ordered or a pletely safeguards devoid for review of the renewed, granted, denied or the ordinance Chicago responds commissioner’s decision. solely leaves these final determinations judicial review, provides that state law for transportation. hands of the commissioner Primarily, which in itself is sufficient. protects speech by First Amendment prohib- opportunity But there is much input for 9. (O’Connor, plurality Stevens and decision whether to issue license within a FW/PBS JJ.) Kennedy, specified period during found that "the first two safe and reasonable time guards quo are essential: the licensor must make which the status is maintained and there Illinois, final The of the State of determination is Constitution discussion before (1970), Article delineates Section made.10 (which explicit powers units of home rule argues that the ordinance does Graff parties dispute Chicago). includes do not judicial “expeditious review” for provide Mun. See v. State & Team decision. See FW/ the commissioner’s sters, Ill.App.3d Ill.Dec. PBS, 239,110 S.Ct. at 611.11 (1984). “A home rule N.E.2d no mention the role of contains any power perform unit exercise reviewing the judiciary in commissioner’s any government pertaining function to its matter, initial it is not clear As an decisions. Const, 6(a). 7, § art. affairs.” Ill. Freedman set out why the Court Illinois took little time in Court of requirement ordinance such apparent holding power pro that this does not include judicial provide prompt explicitly as this viding judicial review of administrative always judicial fo person A has a review. Paper Supply Co. v. agency decisions. allegedly infringed. his rum when 3, 16-17 Chicago, N.E.2d 57 Ill.2d City argues nor Neither Graff (1974); Cummings Daley, 58 Ill.2d challenges
judiciary cannot hear
to this ordi
*15
22,
(1974). In each of
N.E.2d
23
those cases
not have a
simply
nance
does
rejected
Supreme
of Illinois
a
Court
designating
pro
specific provision
a review
attempts
municipality’s
home rule
to deter
procedural
lack of these additional
cess. The
jurisdiction of the
mine “both the
circuit
any
safeguards
way
not in
increase the
does
municipal
court to
censorship.
review its
administrative
speech
The “safe
threat of
procedure to
determinations and the
be fol
guards”
the absence thereof neither ex
or
judicial
in seeking
lowed
review of
pand
jurisdiction
from the
those
nor detract
courts’
v.
determinations.” Nowicki Evanston Fair
questions.
But we are
over constitutional
Bd.,
Housing
11,
Review
338
writing on a clean slate.
62 Ill.2d
N.E.2d
ning
possibility
prompt judicial
development.
and
then
be the
of
review
He
submits a re-
must
erroneously
port
transportation,
license is
de
the event that the
the commissioner of
who
228,
gives
1325 (1976); Quinlan 186, 187 Tyson, see & Inc. v. First some other Amendment cases Evanston, 324 Ill.App.3d require Court seemed to ordi- (1975). judicial Just because provide review, N.E.2d nance even separate authority avail lacks the to make when the writ common law certiorari FW/PBS, “expeditious judicial review,” However, able available. the Court has not been 110 S.Ct. at does not presented directly argument with the that such review does exist. mean review, certiorari was itself sufficient es- pecially where state makes the common law appropriate method to review Chica practice, writ the current common and in fact go’s agency administrative decisions any forbids other kind of review. con- We law writ of common certiorari. Holstein v. clude that such review is sufficient. Illinois Chicago, F.Supp. judicial has shown that forum is available (N.D.Ill.1992); Stratton v. Comm’n Wenona agency to review administrative decisions. Dist. No. Unit Ill.2d 141 Ill.Dec. judicial The state maintains uniform review 453, 458, (Ill.App.1990); 551 N.E.2d procedures by forbidding home rule units Nicholson, 1046, 135 Ill.App.3d Norton such commenting from on the Ill.Dec. 543 N.E.2d expect matter. As such the state can such (1989). excused, Unless claimants have six procedures expedite uniform cases and file, extremely months wherein review “is better the interests of serve Graff in a case scope, questions broad and extends to all such as one. of fact law contained in the record before court, including any de novo review Equal F. Protection Holstein, F.Supp. issues.” constitutional *16 Lawton, 210, citing 22 Howard v. Ill.2d two, In alleges count Graff that 556, (1961). 331, N.E.2d 557 differently newsstands are treated than other court the [T]he determines from record permitted public way, of the uses such as any fairly alone whether there is evidence hope sidewalk cafes. One would so. Differ reviewed, tending support to the order and per requires ences are obvious. Each use cannot mit, the court set aside the order unless separate pro necessarily but ordinances contrary weight it is to the manifest the issuing vide criteria different for them. [Findings evidence.... conclusions Where, here, as the newsstand ordinance questions prima on of fact are true passes scrutiny strict under First the facie correct. It is not the court’s function Amendment, certainly it most pass will the conflicting to resolve evidence. test equal protection rational basis under analysis. Norton, Ill.App.3d 135 Ill.Dec. court, “If [E]qual protection
543 N.E.2d 1059. the circuit on is not a license writ, fairness, wisdom, of the judge the return finds from the record the courts to proceeded logic legislative that the inferior tribunal accord choices. In areas law, however, ing quashed; statutory the writ is if policy, to social economic proceedings compliance proceeds along the are not in with that classification neither law, judgment proceedings suspect infringes lines nor fundamental quashed.” rights shown return will be upheld constitutional must be Stratton, against equal protection 133 Ill.2d if challenge Ill.Dec. any reasonably at 645.12 N.E.2d there is conceivable state Aid, Ill.Rev.Stat.1975, 11-8.7, Department par. por case 12. The of Smith v. Public ch. and a stamp program, 67 Ill.2d 10 Ill.Dec. 367 N.E.2d tion of the federal food 7 U.S.C. (1977), helps (1970), importance deprived plaintiffs pro § illustrate the of due protection equal law writ of common certiorari in the constitution cess and under the Illinois Con county public depart al context. In Smith a aid the Fifth stitution and and Fourteenth Amend Constitution, purchase price increased ment for food United States ments to the stamps. department public they provide judicial A state aid af did for sufficient not review. that firmed decision. On writ of certiorari the 67 U1.2d N.E.2d at 1292. The reversed, holding trial court declared certain federal stat state and Court of Illinois that the com particular, provided utes unconstitutional. In the trial law of certiorari mon writ sufficient Code, oversight. court found that the Aid Illinois Public Id. gives tion even more basis 4-384-060 provide that rational of facts could permit refusing grant classification. a cafe for the discretion (as refusing per- a newsstand compared to v. Beach Com Federal Commun. Comm. — mit). mun., Inc., —, —, (1993). 2101, 124 have L.Ed.2d We really not matter. These distinctions do in already explained why the ordinance require- Varying taxes different fringes no First Amendment fundamental obviously do uses not ments for different time, place If and man right.13 reasonable by judges word-by-word scrutiny who merit free outweigh right Graffs ner restrictions might prefer regulate to tax and some other pass they certainly are sufficient speech, way. question is whether the different “rational.” as “conceivable” and occupying cafes treatment of newsstands and argues news- taxes Graff public sidewalks are for “conceivable” public way. not other uses of the stands but and “rational” reasons. can conceive of We Chicago responds that the ar- Graff waived differences,14 many reasons rational ques- gument because in the district court he (a of which one serves food the least only propriety of a newsstand fee tioned highly regulated enterprise) other under First an invalid restraint similarity does real is that not. Amendment, an he has not raised on issue arguably occupy the sidewalk. It would appeal. argues Graff that newsstands also completely be irrational to treat these differ- differently and sidewalk cafes are treated fact, purposes way. equal ent In same respect approv- to landmark with commission proba- would treatment with sidewalk cafe Chicago disputes argues It this. Chica- al. bly in much limita- result more burdensome Municipal 2-120-740 sub- go Code section anyway. tions has for a newsstand jects property all structures fact, argues mandating very see- rational basis for different equal treatment. facility alleged eating complaint and Graff in his amended rant that seeks extend its appeal the facts section of his brief on fresh air. It is reasonable for believe operated and now have on the then newsstands ordinarily will that newsstands attach to *17 way permits only public Graff has without They standing nearby buildings. are free on the Why targeted eviction. was this not been pursued for sidewalk, requiring thus limitations so as to size response Chicago's in to motion to dis- adjacent pedestri- For accommodate structures. allowing If with- miss? newsstands wishing ans to determine whether it is safe permits, surely seriously argue it could not out that it could remove a newsstand that had not street, wishing or for to avoid cross drivers hitting pedestrians, pose less serious cafes Community secured one. See Clark v. Crea- for conceivable, safety. It is not but threats Non-Violence, 6, 104 tive 295 n. probably certainty, many cafes are that located (1984). 82 L.Ed.2d 3070 n. 221 property already in as a front of in use restau- Obviously there be no need for the district would Extending type part that onto rant. of business constitutionality court to rule on an ordi- of compromise of the would landmark sidewalk being applied on its it was in nance face when property operating no more than restaurant Indeed, such a random fashion. the record Newsstands, contrast, place. by there in the first shows that Graff received notices remove his out; Chicago stick could feel that such structures la- which for whatever reasons were newsstand however, aesthetically Graff, pleasing. They sepa- are are equal not ter rescinded. raised the analysis only arguing usually having nothing protection in rate entities to do with that by other, of adjoining property. Chicago given discriminated compared its treatment newsstands as should be nonexpressive of the uses asserting patrons deference in that lack of would public way. explicitly implicitly business, He did giving cafes run unattractive out of argue any disparity requiring per- in newsstand ample aesthetically them incentive to maintain thus, appeal; mits to the district court or on premises. merely wanting pleasing Persons is; Kolb, v. F.2d issue waived. Brookins newspaper probably regard beauty do not of (7th Cir.1993); Banking Textile Co. any consequence. Cafes re- newsstand Rentschler, (7th Cir.1981). F.2d quire space sitting sufficient to accommodate proceeded assump- We have in this case Newsstands, and tables food. customers contrast, Chicago evenhandedly that enforces its ordi- tion radically space differ in the amount nances. necessary, employ people. Eating es- fewer regulated heavily and taxed in tablishments reasonably feel that news- could right. their own impede pedestrian stands the flow of traffic more so than sidewalk cafes. Cafes involve a restau- permit requirements very 750, 759, for these different (1988). uses. L.Ed.2d 771 Accordingly, Chicago’s (hereinafter licensing ordinance “the Ordi- nance”) Conclusion IV. implicates the First Amendment’s protection expression, see id. at right Graff does not have constitutional S.Ct. at and a challenge against facial property. to build newsstand on if lies the Ordinance carries with it signifi- This ease involves a structure which in itself cant risks self-censorship post- Thus, protection. has no First Amendment difficulty decision detecting whether cen- properly the district court refused to enter a sorship clandestinely motives prompted li- injunction, preliminary notwithstanding the denials, cense see id. at 108 S.Ct. at validity of a if permit ordinance. Even news- Chicago’s 2145. Because scheme at the out- speech, Chicago’s stands involve new ordi- set discretionary system establishes a gov- passes nance muster. The ordinance does ern the permits, issuance of specter allow for content based discrimination these risks looms and a facial review of the giving transportation the commissioner of too Scrutiny ordinance is order. of the Ordi- ruling permit. much discretion in on a To provisions, however, nance’s reveals that the the extent the ordinance restricts danger of content-based censorship present- speech, Chicago has articulated reasonable ed such schemes is in this ease time, place justify and manner restrictions to sufficiently mitigated to allow the Ordinance any infringement. The ordinance is also sub- addition, to survive facial attack. I do not ject adequate procedural safeguards; feel that the Ordinance is the kind of scheme therefore court the district was correct in for which the lack special provision of a dismissing count one. Because the ordinance prompt judicial review is fatal.1 Equal is constitutional under Protection anal- ysis, the court dismissing was correct
count two. I.
The district
court
is AFFIRMED.
respectfully
I
suggest
majority
asserting
misses the mark in
that “[t]his case
FLAUM,
Judge,
Circuit
with whom
simply
neither concerns
the circulation and
CUDAHY,
Judge, joins, concurring.
Circuit
printing
newspapers
nor conduct common-
I
judgment
concur in
majority
ly
Ante,
expression.”
associated with
separately
emphasize my
newsracks,
but write
belief
1316. Like
newsstands are in the
newspa-
the erection and maintenance of
of circulating expressive
business
materials.
per
qualifies
commonly
Lakewood,
stands
as “conduct
See
expression.” City
associated with
Lake-
larger
2149. That
do so on a
*18
Co.,
scale,
wood v.
Publishing
Plain Dealer
greater variety2
486
with
up
and take
780-81,
necessary
(White, J„
I
majority
do not think it is
for the
at
with id.
more
flow,
access, safety
pedestrian
not alter
funda-
building
function does
and
tributive
newsstand,
aesthetics).
maintaining a
by
licensing
that
targeting
fact
But
mental
newsrack,
maintaining
is an activi-
just
inextricably
like
to the
business
connected
exer-
expression.
freedoms,
ty peculiarly linked
Chicago’s
cise of First Amendment
candy
like a
is not
ma-
respect a newsstand
possibility of those identifi-
scheme raises the
any
dog
hot
other mere
or a
stand
chine
commonly associate
risks that we
with
able
760-61,
at
at
See id.
108 S.Ct.
“structure.”
prior restraints.
an instrument for
A newsstand is
2145-46.
Firstly, just
of newsracks
as
licensure
materials,
expressive
dissemination
newspaper’s
pursue
can chill a
zest to
issues
special catego-
as such falls within
licensor,
displeasing
opinions
to the
see
regulation implicates
ry
activities
whose
757-58,
Lakewood,
Amendment values.
First
S.Ct.
licensure of newsstands has
at
licensing
is
scheme
“directed
Since
spurn
potential
prompt
vendors
narrowly
specifically at ...
conduct com-
(or
publications
licensor's
his
offensive to the
760,
monly
expression,”
associated with
id.
constituents’)
politics. Only
sensibilities and
2145,
challenge
108 S.Ct.
a facial
challenge adequately addresses
a facial
such
appropriate means to test for constitutional
Secondly, discretionary licensing
a risk.
infirmity
by
when
its nature
scheme does
ground
frequently provide
schemes
fertile
the “identifiable risks to free
not foreclose
“post
rationalizations
hoc
757,108
2144,
expression,” id. at
S.Ct.
..., making it difficult for courts to
official
prior
engenders
system
restraint
any particular
determine in
case whether the
“effectively
that can be
alleviated
favorable,
permitting
sup-
licensor is
challenge.” Id.
through a facial
Now the
unfavorable,
pressing
expression.”
Id. at
does not fit the traditional mold of
Ordinance
758,
applied”
at 2145. In an “as
108 S.Ct.
directly
it does
restraint since
challenge,
applicant
an unsuccessful
for a
See,
qua
regulate speech
speech.
e.g., South-
discretionary
permit
newsstand
would face
Promotions,
Conrad,
Ltd. v.
420 U.S.
eastern
struggle
demonstrating
kind of
same
95 S.Ct.
1329
censorship
expression during
of free
public space
risk
allocate limited
in
way.
a neutral
11,108
Moreover,
interim.” Id.
II.
compliance
Code,
with the
see Chica-
10-28-160(b)
go Mun.Code
to me
Ordinance,
Turning to
the details
—indicates
that the Ordinance neither was intended to
upon
none of the six factors
which the Com-
promote
dangerously
nor in fact
missioner of
facilitates
Public Works’
decisions
content
discrimination
facially
him
based
vest
with unbridled
distressing
newsstands. One of the
accepting
rejecting appli-
discretion in
features
Thus,
of the newsrack
grant
cants.3
the Ordinance
Lakewood was
does
annually
city
reapply
need to
officials the sort of
carte
for licenses.
standardless
periodic
requirement
blanche
This
that the
Court has unfail-
enabled the li-
See,
ingly
e.g.,
routinely discipline
condemned.
censor to
newspapers
Shuttlesworth v.
Birmingham,
Lakewood,
speech already
89 S.Ct.
uttered. See
(1969),
L.Ed.2d
Maryland,
Freedman v.
U.S. at
I
not doubt that the Ordinance
do
rapid and certain
requirement
III.
the first
action. The Commissioner
administrative
Seemingly
most difficult feature of
days
between 35 and 65
must make decisions
Ordinance,
prece-
light
Supreme Court
in
applications and
filing for first
time
after
dent,
any provision for
is the absence
applications.
days for renewal
See
within 10
judicial review of the Commis-
expeditious
10-28-160(c).
longer
Chicago Mun.Code
However, I believe that
decision.
sioner’s
delay
start-up
period is not an unreasonable
sepa-
not involve
the Ordinance does
accounted for
a new business and can be
unprotected speech
rating protected from
period
planning, and the shorter
sound
presents little risk of
by its
terms
own
timely
importantly,
more
if
is brief and
both
discrimination, it can sur-
facilitating content
commenced,
interrupt
have to
does not
despite the lack of a
vive constitutional attack
Further,
existing
newsstand.
operation of
prompt judicial
provision for
self-contained
FW/PBS,
likely
it seems
that Freed-
after
review.
requirement
the licensor
third
man’s
—that
ap-
burdens —does not
bear all court-related
A.
Chicago’s
ply in this case.
ordinance is
distinguish
protected
designed to
between
Court’s decision
Since
and,
unprotected speech,
like Dallas’ or-
Maryland, 380 U.S.
Freedman v.
FW/PBS,
prerequisite
out a
(1965),
sets
it has become
dinance
L.Ed.2d
businesses,
maintaining whole
thus creat-
accepted
to examine
practice
challenge adverse
ing strong incentives to
activi-
regulate
related
schemes that
supra note 4.
See
procedural
decisions.
presence
for the
of three
ties
1)
safeguards:
administrative decision
B.
allowing
forbidding
speech must be
2)
require-
time;
and third
Freedman’s first
forthcoming
a short and fixed
While
within
the ordinance can
ments are obstacles which
prompt
judicial review of a license denial
3)
clear,
available;
requirement plainly is not.
licensor must
the second
must be
prompt judi-
Simply
provision is made for
going to court and
no
bear both the burden of
majority
finesse
tries to
proof in
id. at 58-
cial review.
the burden of
court. See
at,
FW/PBS,
(Brennan,
obscenity censors in Freedman et
Marshall
unlike the
three Justices
and, second,
Blackmun)
required
Dallas
a li-
thought
that because
that all three Freedman
operate
business
necessary,
cense to
an adult entertainment
requirements
239-42,
see 493 U.S. at
were
all,
(Brennan, J.,
applicant
every
"there is
incentive for the
con-
1331
case,
apply
shortcoming by suggesting that the com were
to this
there can be
little
stands
an
mon law writ of certiorari
ade
doubt that the Ordinance must fall.
quate
explicit system
an
substitute
However, I
that a
look at
believe
close
in
judicial
swift
review set out
holding and
of Freedman
rationale
shows
Professing
law.
confusion about the ratio
apply
that it does
own
not
here of its
force.
nale behind the
Court’s insistence Moreover, uncritically extending Freedman’s
review,
majority glosses
over
prompt
reach to strike down the Ordinance for lack
both that there is no indication in the record
review,
judicial
by attributing
signif-
broad
any quicker
that
writ of certiorari
Illinois’
to language
icance
in later cases that dealt
judicial process
than other
law
common
substantially
with schemes
dissimilar from
review of
actions and that
administrative
here,
upon
the one at
would embark us
issue
highly
findings of fact is
deferential
Illinois
departure
a senseless
from the core logic
Nicholson,
v.
on certiorari. See Norton
187
undergirding
holdings
in Freedman and
1046,
485, 491,
Ill.App.3d
135 Ill.Dec.
543
progeny;
purpose
its
for neither the
nor
(1989),
denied,
1053,
appeal
129
N.E.2d
Ordinance,
of the
effect
unlike the laws chal-
673,
558,
Ill.2d
140 Ill.Dec.
550 N.E.2d
cases,
lenged in that line of
is to involve the
938, 110
denied,
3217, 110
cert.
496 U.S.
S.Ct.
in any decisionmaking
licensor
of constitu-
(1990).
clearly
This is
L.Ed.2d 665
not the
proportion.
tional
sort
Freedman
That
of review
envisioned.
offspring
Freedman
explicit
its
and its immediate
in
Court was
about
concerns and
attempts
volved
holding:
various administrative
Typically,
obscene
ban
materials.
bodies
[Bjecause
judicial
only a
determination
up
through
set
were
to cull
the contents of
adversary proceeding
assures the nec-
expressive
or
materials to decide whether
sensitivity
essary
expression,
to freedom
If
dissemination.
an administra
judicial
only procedure requiring a
deter-
finding
obscenity
like
tive
or the
impose
mination suffices to
valid
made,
issue,
license would not
Any
imposed
restraint
restraint....
legally
promulgated
material could not
be
judicial
advance of a final
determination on
Freedman,
the desired forum.
similarly be
See
U.S.
the merits must
limited to
(Board
2,n.
n. 2
quo
at 521
at 736
preservation of the status
for the
S.Ct.
approving
are
period compatible
Censors
films which
“moral
shortest
fixed
with
proper”
judicial
disapproving
those which
sound
resolution....
admin-
[A]n
license,
“obscene,
signifying
...
tend ...
to debase
istrative refusal
or
crimes”);
unprotected,
corrupt
film is
moral
censor’s view
or incite to
Teitel
Cusack,
discouraging
Corp.
have a
effect on the ex- Film
v.
390 U.S.
Therefore,
(1968)
procedure
754, 755,
(per
hibitor.
must S.Ct.
Moreover,
majority’s
azines are sold.
ordinance
contrary to the
asser-
num-
tions,
does
room
maximum limit on the
at issue
leave
no minimum or
the ordinance
punish newsstands based
city officials to
issued. Thus were the Com-
permits
for
ber
Though
first blush the statute
content.
seeking
punish
to
a stand for sell-
missioner
guidelines
the
procedural
elaborate
offers
ing
publication,
a
would not face
specific
he
permits,
are
these
and denial
issuance
having
replacement
to
the
find a
obstacle
10-28-160(a)
illusory.
example,
For
Section
expressly
are
instruct-
vendor. Officials also
hearings
reports
procedures for
outlines
give preference
to
to
ed under the ordinance
is to
by
a
Council committee
which
daily newspapers.
selling the most
stands
license.
proposed
on a
newsstand
comment
provision as
majority
characterizes this
entirely
procedures
optional.
But these
attempt
variety, not indoctri-
“an
obvious
the
Council could
the ordinance
Under
1321).
p.
why
But
does
(Opinion
nation”
applica-
on newsstand
not to comment
decide
compelled
preference
a
feel
state
addition, in each case not
at all.
tions
prompt
marketplace
when
will
itself
landmark,
involving an historical
the Com-
if,
operators
carry
dailies
newsstand
more
sole,
is the
Works
unfet-
missioner
Public
maintains,
majority
reach the
It is measure of
tered decisionmaker.
like an
people?
most number of
This looks
city’s
leniency of
criteria that Graffs
attempt by
curry
favor with the
officials
ultimately denied even
application was
press
city.
powerful
most
operated at
though his stand has
the same
aggravated
Each of these deficiencies is
seventy years;
approximately
site
subject
on the
silence of
ordinance
to con-
instructs the Commissioner
ordinance
judicial
Here is
granting
review.
where
longevity
a stand’s
before
sider
regulation runs smack into a constitutional
denying permit,
help
this did not
Graff.
but
majority
Perhaps
glaring deficiency in the wall. The
tries to steer around
the most
ordinance, however,
by holding
wall
that the ordinance is not
is the lone reference to
time,
subject
merely
subsequent
of the Commissioner’s de-
restraint and
review
10-28-160(c),
analysis.
majority’s
place
a vendor
manner
cision. Under Section
days
application is denied has
whose
ten
view
from its treatment of the Chica
ensues
given
request
hearing
“at which he will be
go regulation
zoning
as a
ordinance rather
opportunity
prove
majority
that the determina-
than
scheme. Thus
was in error.” The
tion of
Commissioner
analogizes
challenge
City Ren
Graffs
specify
Theatres,
not define error or
ordinance does
Playtime
ton
person
proof
required.
And the
what
who
L.Ed.2d 29.
In that case the
the Commissioner of
reviews
decision
municipal
prohibit
upheld
Court
*28
than
Public Works is none other
the Com-
ing
setting up shop
from
close
adult theaters
The
of Public Works!
ordinance
missioner
house, church, park
The
to a
or school.
merely
to issue a
instructs the Commissioner
time, place
a
anal
applied
Court
and manner
promptly if
his
permit
he “determines that
is,
justices
only
ysis
the
whether
asked
—that
previous determination was incorrect.” Chi-
designed
the
to serve a sub
ordinance
10-28-160(c).
§
cago
the
Mun.Code
Given
governmental
stantial
interest and whether
appeal, judicial
genuine
lacle of
for
or
means
of
for reasonable alternative avenues
allowed
otherwise,
optional
purely
and the
nature of
Id. at
at 930.
communication.
106 S.Ct.
city’s
procedures,
the
standards are
these
City
a
But
in
Renton was
the ordinance
of
window-dressing
prac-
rather
mere
than a
is,
zoning restriction —that
it established
power
tical check on
of the administrator.
the
across
to all
applied
rules that
the board
similarly
enterprises.
was no
situated
There
city
any attempt
at con-
The
contends
Renton, then,
City
threat
that a deci-
permit
tent discrimination would fail because
against
would discriminate
indi
sionmaker
applications
contain a list
do not
of what
vidual merchants based on the content
a
publications
particular newsstand sells.
scheme,
officials,
licensing
they
what
sold. Under a
hardly comforting. City
This is
contrast,
city
the
they
inclined,
by
a
official is vested with
so
could stroll over to a
were
mag-
power
regarding
make decisions
individual
stand and examine for themselves what
applicants.
Chicago
313, 322,
ordinance—
permit
Baxley,
Staub v.
U.S.
grants
302;
or
where
official
denies individual S.Ct.
2 L.Ed.2d
Kunz v. New
per-
applications
York,
290, 293-294,
and then
permit
reviews the
71 S.Ct.
periodically
analogous
314-15,
to the
280;
State,
mits
95 L.Ed.
Schneider v.
—is
Renton but
ordi-
161-162,
ordinance
to the
60 S.Ct.
155;
and
CIO,
nances
Lakewood.
Hague
L.Ed.
FW/PBS
prior
A
S.Ct. 954.
restraint “avoids constitu
licensing
Chicago’s
represents
scheme
a
infirmity only
place
tional
if it takes
under
prior
classic
restraint because it forces news
procedural safeguards designed to obviate
permit
for a
apply
vendors to
from local
dangers
system.”
of a censorship
Freed
can sell
newspapers
officials before
Maryland,
man v.
magazines;
power
itself
assumes the
734, 738, 13 L.Ed.2d
An
649.
ordinance must
regulate speech
puts
authority
explicit
contain
limits on the decisionmaker’s
of one
As the
denial
the hands
official.
Lakewood,
discretion.
U.S. at
Lakewood,
challenge
said in
“a
Court
facial
2150.
S.Ct. at
It is
clear that
also
these
licensing
gives govern-
lies whenever a
law
limits must exist
not a municipal
whether or
agency
ment official
power
or
substantial
happens
pass
ordinance also
muster as a
on the
discriminate based
content or view-
time, place and manner restriction.
In FW/
speech by suppressing
point
disfavored
PBS,
example,
plurality
for
did not even
speakers.”
or disliked
486 U.S. at
time, place
reach the
question
and manner
759, 108
at 2145.
Court
There the
procedural safeguards
in that
recognized
present
two critical factors —both
inadequate.
were
in this case as
licens-
well—that identified a
ing
First,
subject
challenge.
scheme
to facial
apply
businesses had to
licenses
It
both surprising
is thus
and dismaying
periodically
were
renewed
the issuer.
today
Court’s
decision
focuses so
Second,
licensing system
was “directed
heavily
on the merits of the
ordi
narrowly
specifically
expression
or
time, place
nance as
manner
restric
commonly
expres-
conduct
associated with
tion, to the
failings.
exclusion of its other
newspapers.”
sion:
circulation
Id. at
procedural
lack
Given the
of sufficient
safe
760, 108
S.Ct. at
ordi-
guards,
time,
majority’s
discussion of
specifically
nance is also directed
at news- place
interesting,
manner
is
but beside
operators:
stand
“It shall
be unlawful
FW/PBS,
point.
Under
which
any
erect,
locate,
person to
or
construct
way
long
from a
setting
follows
line
cases
* * *
any
maintain
newspaper stand
without
standards,
city may
forth
similar
li
* *
obtaining
permit
*.”
Mun.
cense a business associated with First
§
Code
10-28-130.
first,
if,
Amendment freedoms
the licensor is
operates
A
obligated
grant
scheme that
deny
as
within
restraint,
ordinance,
opposed to a zoning
specified
during
reasonable time
which
subject
and,
scrutiny
quo
second,
to more intense
mere
than
the status
if
maintained
time, place
analysis;
regula
prompt
judicial
and manner
possibility
there is the
provide
must
adequate procedural
tion
also
erroneously
review
event the license is
*29
safeguards
prevent city
to
from
officials
Id. at
at
denied.
110 S.Ct.
606. A
abusing
Supreme
their discretion.
denying
The
ministerial action
a license is not
long
invalid,
has
in
presumptively
prior
Court
held
a
line of cases that
most
unlike
re
authority
straints,
to
required
justi
exercised
administer a
and the
is not
to
pre
fy
every
scheme must be
in
bounded
clear and
its
court on
occasion.
decision
Id.
power
However,
cise standards where officials have
at
judicial
complaint
hearing
on the merits.
receives
it,
According
invalid.
to
must be
anism
vigilance
with the traditional
Contrast
that
however,
why
majority,
“it is
clear”
jurisprudence has shown
First Amendment
to
that
require
chose
the Freedman Court
speech:
on
prior
toward
restraints
explicit provision for
licensing schemes make
* * *
judicial
when
law
prompt
review
common
Any
prior
system of
restraint
1324).
(Opinion
p.
at
is available
certiorari
heavy pre-
bearing a
“comes to this Court
majority
its confusion
an excuse
The
uses
validi-
against its constitutional
sumption
*
* *
stating
ignore
requirement by
simply to
against prior
ty.”
presumption
law
availability
of common
certiorari
that
degree of
is heavier —and the
restraints
judicial
adequate
review when
form of
is
against
lim-
protection broader —than
major-
is
silent.
an ordinance
otherwise
imposed
pen-
expression
its
criminal
ity’s conclusion
in direct conflict with
is
FW!
theory
the distinction is a
alties. Behind
PBS,
In
Fair Review 62 ILL.2d (1975), Quinlan Ty
mainly proposition for the that Illinois cities power jurisdiction
lack the to alter the prevent state circuit courts. This would not America, UNITED STATES of municipality specifying expedited from Plaintiff-Appellee, procedure, petitioning legislature the state law, change setting for a minor or even up procedure an administrative review CAUSEY, Defendant-Appellant. Michael having least to blunt the unfairness of Commissioner of Public act Works as the No. 92-3515.
primary reviewer of his own decisions. Appeals, United States Court of majority’s approach to Graffs chal Seventh Circuit. lenge confusing today’s indeed. After de Argued cision, Oct. may it is bring unclear who facial challenges, whether schemes direct Decided Nov. activity ed at First Amendment are to be restraints, analyzed li whether a
censing purportedly only restriction aimed time, place and manner of must procedural safeguards,
include and whether safeguards encompass prompt ju
those must Indeed,
dicial review. it is not even clear today’s
after selling decision whether news
papers anything from other than a corner implicates
box the First Amendment. While newsstand,
regulation typical of the modern shabby mix magazines specializing
with its pornography, motorcycles, tattoos and passionate not arouse concern about the speech,
denial of free newsstands remain an question building, 3. The newsstand in harmonizes with the side of does not interfere with its sidewalk, appearance adjacent former Pub- maintenance and does block Library, unobtrusively edge lie is set at the of one notes Chicago, get around they must walk in how far est any represent not favored newspapers do reasonable, being these In addition them. or video- viewpoints represented books and do content-neutral restrictions are “simply an effort tapes. The restrictions prior restraint.7 constitute way, ... and public on the to reduce clutter newspapers from of “in facilitate the distribution readily that the admits obstruction of the merely without undue ordinance “is newsstand function” of the tended ways.” maximize public preference for newsstands Apparent newspapers sold.” the number Certainly city regulate can newsstands carry newspa than more ly wants Graff Taxpayers its streets. See reduce clutter on publications. and similar pers, periodicals 805, Vincent, 104 S.Ct. at content- the ordinance is He asserts that argu- But has advanced no 2128. it does not allow newsstands based videotapes clutter the ment that books relying on Dis videotapes, to sell books or newspapers. The any more than do streets Cincinnati, Network, Inc. v. covery clutter that newsstands themselves assertion Cir.1991).8 (6th dis There the 464 946 F.2d merely restates the issue. Chica- the streets an ordinance held unconstitutional trict court convincingly argues that books go more completely prohibited the distribution videotape would obstruct the flow sales public property. handbills on commercial city recognize that can pedestrians. safety its interests had asserted routinely purchase impulsively people aesthetics, although it allowed newsracks newspapers in seconds. The more time-con- court of publications. The carry all other videotapes, in suming purchase of books or was an that the ordinance appeals concluded im- contrast, congregation and would cause restriction. 946 impermissible content-based — others who would then have at—, pede the flow of aff'd, F.2d at U.S. Renton, only the newsstand struc- to walk around not distinguishing at 1516. See ture but the audience attracted. “Had Cincinnati stated: the Sixth Circuit Hef- Inc., 328; ness, Observer, 644 n. F.2d at Jacob See 1070; sen, (1981) (noting International Caucus was no First 851 F.2d at that there 2562 n. City Chicago, F.2d Comm. v. po Labor hundred violation when several Amendment Cir.1987) (7th (upholding on restrictions speaking prevented were from tential exhibitors message spread physical props based used cap and a "first come— because of the on booths safety); property public see the size policy). first serve” Books, Inc., Arcara v. Cloud also (1986) L.Ed.2d 568 106 S.Ct Network, Discovery was affirmed 946 F.2d ("the implicated by the is not First Amendment briefing parties completed had after the gen regulation of a health enforcement pending. City appeal was Cincinnati while the physical premises in application against eral - -, Network, Inc., Discovery books”); happen respondents to sell which Hef (1993). L.Ed.2d 99 Soc’y Krishna Conscious v. International fron