Robert MacDonald Caren C. Thomas and Windy City Hemp Development Board v. City of Chicago, Cross-Appellee

ROVNER, Circuit Judges. Robert MacDonald awas vocal advocate legalization for the marijuana. In order MANION, Judge. Circuit spread his message, orga MacDonald Robert City MacDonald sued the events, nized various including marches Chicago seeking a declaration that political 1997, and rallies. In June Mac city’s parades ordinance permitting vio- Donald applied parade for a permit pursu Amendment, lates the First perma- and a Chicago 8—330(b), ant Ordinance 10— injunction nent barring its enforcement. which requires anyone plans who to con The district court although concluded that parade duct a any public on street or provide the ordinance did City not sidewalk to obtain a from the Com with unlawful discretion to deny permits, Chicago Department missioner of the it was unconstitutional because it lacked (“Commissioner”). Transportation In his procedural safeguards set forth in application, requested MacDonald a Maryland, Freedman v. to hold a march on August 1997 in (1965). S.Ct. 13 L.Ed.2d 649 Accord- Chicago, marching downtown through the ingly, enjoined the district court enforce- “Loop,2” up Michigan Chicago Avenue to ment of the ordinance. The of Chica- Avenue, MacDonald, returning along Michigan south go appealed. filed a cross- appeal, Loop. parade Avenue to the challenging the The was to be district court’s con- clusion in conjunction political the ordinance held grant rally did not Park, unconstitutional discretion. subject Grant which was the of an other lawsuit. MacDonald v. appeal pending, While the was the City (7th Cir.1997) Dist., Park 132 F.3d 355 ordinance, of Chicago amended the and (denying request pre MacDonald’s for a 60(b)(5) then it filed a Rule motion in the liminary injunction park preventing district court asking the court to vacate its injunction. denying requests park The district from for district court denied the vacate, motion to concluding that permits). sake, simplicity’s

1. For we “Loop” portion will continue to 2. The is a of the central Chi- district, arguments refer to cago gets MacDonald and "his” on business which name its appeal. "loop” from the elevated it. trains around following a route 1998 at 11:00 a.m. denied MacDonald’s The Commissioner permit, concluding ap- the one he had parade virtually for a identical to application that: The Commis- plied August 1997. substantially activity will for the same application denied this proposed

The sioner traffic; interfere with unnecessarily appli- first reasons he denied MacDonald’s num- a sufficient are not available there cation, suggest- also but Commissioner police pro- officers peace ber of Mac- an alternative route. ed and the concentration participants; tect not satisfied with apparently Donald was assembly along at the things route, proposed again alternate and he police fire and prevent proper route will injunction. requested preliminary service. and ambulance protection however, their parties, once more settled justifications cited differences, The Commissioner’s withdrew his and MacDonald portions Chicago’s of from other derive request preliminary for relief. (h), ordinance, particularly subsection court then considered the The district the Commissioner to issue requires which summary judg for parties’ cross-motions he finds that: parade permit when of MacDonald’s First ment on the merits activity will not substan- proposed The declaratory per claim for and Amendment unnecessarily interfere with tially or injunctive The district manent relief. contiguous area to the traffic the Chicago Ordinance court concluded route; violated the First Amendment 10-8-330 available at the time of the There are because, though it did not confer even assembly or athletic event parade, public unfettered upon the Commissioner discre peace officers to a sufficient number of tion, required the to con Commissioner participants lawful police protect and police whether a sufficient number of sider activity; the protect officers would be available animals, persons, The concentration of this, believed, and the court participants, vehicles, assembly and things to consider the required Commissioner along parade disbanding areas speech. Accord content of the marchers’ prevent event route will not or athletic that the ingly, the district court concluded or am- proper police protection fire and an ordinance was unconstitutional content- service; bulance speech. The regulation based of district 10-8-330(h). Ordinance, § court further held that the ordinance con denied Mac- After the Commissioner restraint, prior and as such must stituted parade-permit application, Mac- Donald’s safeguards include the three constitutional complaint seeking Donald filed a verified Supreme in Freed by set forth declaratory injunctive against relief 51, Maryland, man v. 85 S.Ct. complaint, his City Chicago; of 734, (1965), 13 L.Ed.2d 649 the third of 1983, § brought pursuant to 28' U.S.C. al- required which the censor to bear the bur leged portions challenge facial going suppress to court den ordinance, claim- City’s parade permitting proof and to bear the burden of Amendment. ing violations of the First court once court. The district conclud briefing After full on MacDonald’s motion did ed that because the Commissioner not injunction, a preliminary parties burdens, Chicago bear those Ordinance allowing reached an MacDonald agreement an unconstitutional 10-8-330 constituted parade to conduct a more limited than the court then prior restraint. The district originally sought. one he The district permanently enjoined enforcement of Sec prelimi- court then the motion for a denied tion 10-8-330. injunction nary as moot. City Chicago appealed from the dispute

But end there. did not On decision, MacDonald 8, 1998, court’s district January applied MacDonald for a court’s parade May cross-appealed from the district permit to conduct on conclusion that Section 10-8-330 did not district court impact continues to plain provide City Chicago Thus, with unconsti- tiffs. since a case controversy filing remains, tutional discretion. After its notice we will consider the constitution appeal, of Chicago also amend- ality Chicago’s parade permitting ordi ordinance, requested ed its and then nance as it now stands. Fusari v. Stein injunction pur- district court to vacate its berg, U.S. 60(b)(5). (1975) suant to Rule The district court L.Ed.2d 521 (holding that in consid concluded that the amendments to the or- ering the constitutionality of the chal dinance did not alter “[tjhis the result. The law, lenged Court must review the appealed decision, of Chicago from that District judgment Court’s in light pres and we appeals. consolidated both We ently law, existing Connecticut not the law granted also Caren Cronk Thomas and the in effect at the time that judgment was Windy City Hemp Development rendered.”). Board See, e.g., 11126 Baltimore leave to substitute as plaintiff-appel- Blvd., Md., Inc. v. Prince George’s County, lees/eross-appellants because (4th MacDonald Cir.1995) (review 58 F.3d 991-92 supra had since died. See at 1023. ing only the constitutionality of the current ordinance, version of zoning notwith Analysis II. standing County’s assertion that it intend review We de novo decisions on ed to return prior to its ordinance if the summary judgment questions as we do upheld of court constitutionality version). City constitutional law. Stokes v. previous Madi of (7th son, Cir.1991) 930 F.2d MacDonald, According to it now (“All issues, First Amendment save the stands, Chicago’s parade permitting ordi- acceptance district court’s stipulated of nance still violates his First Amendment facts, novo.”). However, we review de be rights. question, Without MacDonald’s considering fore the constitutionality of parade rally and in support of the and use 10-8-330, Ordinance we ini must legalization marijuana speech protect- is tially consider which version of the ordi by ed the First Amendment of the United nance is properly before us: MacDonald States Constitution. Although he has the argues that we should consider the consti right to speak demonstrate and freely on tutionality of both the ordinance in effect n this issue, right that not him does allow at the time he filed suit and the current and other participants by to create chaos version; City whereas the contends that traffic, disrupting impeding pedestrians, any dispute original over the ordinance has endangering people, themselves or other by been mooted subsequent its modifica and causing gridlock busy otherwise on the tions, and only thus we should consider streets and city sidewalks of the of Chica- constitutionality of the modified ordin go. time, At City the same has an ance.3 obligation only not to MacDonald agree

We with that participants the new and other to in engage only ordinance is the one rally, before us on but it obliged is also to Any dispute review. protect over the 1997 participants, version to ensure their area, of the ordinance was by safety mooted the enact- and that of others to ment traffic, of the new ordinance. orderly Kremens v. maintain an flow of and to 119, 129, Bartley, 431 prevent disruptive U.S. or even violent confron- (1977) (“[T]he 52 L.Ed.2d 184 enactment of tations. obligation, To meet this the new statute clearly moots the claims of must police have sufficient officers avail- appellees.”). the named But even parade proceeds as re- able see to it that the vised, interpreted the ordinance as by orderly an fashion along pre-designat- ordinance, version, 3. A red-lined appears Appendix version of the entire er A. showing the current amendments to the earli- amplification de sound prohibiting use of the demonstra- to allow in order ed route obtained vices, except permission rights while with their exercise tors to and non- infringing to function invalid as police, is City continues from chief normal busi- their go any about speech, in absence participants free right of ness. by chief for exercise prescribed standards discretion); City Lake police of his and obli- rights balancing these But Co., 486 Dealer Pub. U.S. v. Plain have wood The courts simple task. is no gations (1988) 750, 108 chal- 100 L.Ed.2d Amendment S.Ct. in First been embroiled case resulting govern law gives which (licensing for decades. scheme lenges The Su- say the least. complicated facially discretion is uncon unlimited ment split number of has issued preme reiterated, stitutional). where have As we have taken circuits and various decisions exists, “the unlimited discretion virtually the conflicts resolving paths divergent that it will be exer is too possibility great of individu- speech rights the free between suppress disfavored in order cised offi- government obligation als and the Chicago Park speech.” MacDonald and even-handed maintain order cials to Cir.1997) (7th Dist., n. 6 132 F.3d In the con- citizens. among protection its 757-58, Lakewood, (citing examination, are now faced we tinuing 2138). S.Ct. we challenge which another yet Chicago Ordi- argues MacDonald facts to the consti- present apply must 10-8-330(h) confers on the Com- nance so, To do as it stands. tutional law now approve discretion missioner unfettered specific constitution- consider the we must applications, deny parade-permit MacDonald, presented by challenges al For Amendment. the First thus violates response. City’s the ordi- instance, points to MacDonald 10- argues first Section MacDonald Commis- requirements nance’s unconstitutionally the Commis- vests 8-380 proposed pa- whether sioner consider grant to unfettered discretion with sioner unnecessarily “substantially or rade will Second, permit. Mac- deny a contigu- in the area with interfere traffic is a the ordinance asserts that Donald route,” there are whether avail- ous to the speech and therefore on prior restraint review, city mitigate resources able “sufficient prompt judicial guarantee must Finally, there are avail- disruption,” it not. MacDonald the whether which does restraint, a the ordi- prior peace that as argues number of able “a sufficient officers to seek place also the burden nance must participants protect lawful police on any permit denial judicial review of traffic non-participants from related Conversely, the City City, but does not. the other demands light hazards of parade-permit- argues that its of protection,” and whether con- police on the not confer ting ordinance does proper “prevent will persons of centration discretion, and Commissioner unlimited police or ambulance protection fire and speech, of prior it is not a restraint court, queries He service.” then time, place, and manner rather a valid but ‘unnecessarily’ ‘substantially,’ “What are restriction. this argues He and ‘sufficient’?” the Commissioner language loose leaves A. Unfettered Discretion? discretionary authority to complete with that where a It well established deny parade permit, a there- grant or government ordinance vests the statute or is unconstitutional. fore the ordinance grant authority to virtually with unlimited position, MacDonald support In of his permit, law violates the deny a cases, such as Supreme several Court cites of free guarantee First Amendment’s City Birmingham, v. Shuttlesworth People v. State speech. See Saia of 935, 147, Ala., 89 S.Ct. 394 U.S. 558, 559-60, York, 68 S.Ct. New 334 U.S. (1969). In (1948) Shuttlesworth L.Ed.2d 162 1148, (city ordinance 92 L.Ed. 1574 constitutionality port considered the of a with Court and enhance the quality and Birmingham required ordinance that character streetscape, of the including city parade permit commission to issue a nearby development and existing land welfare, judgment public in “its unless uses” and “the extent to which services health, order, peace, safety, decency, good that would be by offered the newspaper required morals or convenience that it be already stand are available in the area.” 149-50, Id. at 935. refused.” S.Ct. Id. at (quoting 1317-18 Chicago Mun.Code struck the ordinance it un- because 1028-160(a)). § The ordinance further constitutionally government conferred the empowered city officials to “remove a Similarly unbridled discretion. newsstand that ‘endangers public safety or Jersey, Schneider v. State New Town of property,’” that “interferes with or im- 146, Irvington, 308 U.S. 60 S.Ct. 84 pedes the pedestrian flow of or vehicular (1939), L.Ed. 155 the Court struck down a traffic,” or placed that is “in such a man- municipal ordinance which allowed the impede ner as to or interfere with the deny permit Chief of Police to to door-to- reasonable use of display [a window.]” Id. door if speak- solicitors he determined the at 1319 (quoting Chicago § Mun.Code 10- good er was “not of character.” In Staub 28158(a) (b)).& Baxley, Notwithstanding the flexibility in (1958), L.Ed.2d 302 the Court like- criteria, quoted above city majority of the wise invalidated ordinance because court concluded granted unfettered discretion that the ordinance Graff decisionmaker. provide Id. 78 S.Ct. 277. did not the decisionmaker with In that mayor deny permits case the could such unfettered discretion that it offended applicants requesting permission to soli- 1317-18; the First Amendment. Id. at id. join cit others to organization their based (Flaum, J., at 1329 concurring) (noting that on the applicant, “character of the the while the enumerated factors allow flexibil nature of the business of organization ity, they are “the kinds of legitimate con for which members are desired to be solic- cerns expect city one would weigh ited, upon general and its effects wel- when deciding how to pub allocate limited fare of citizens of the Baxley.” Id. space lic way.”); a neutral id. at 1335 noted,

But correctly as the district court (“In J., (Ripple, concurring) way no does “[i]n contrast to the obscure standards place the ordinance unfettered discretion above, the cases provisions cited officials.”). fact, city the hands of 10-8-330(h)(l)-(4) § specify legitimate recently this court point made this same in safety precise concerns in as a manner as another involving case MacDonald: “nine such can reasonably concerns be articulat- twelve judges of on the en banc court [in Moreover, Opn. ed.” D.Ct. at 13. as the concluded that ordinance [that] was Graff reasoned, district court further in terms of sufficiently objective specific and to limit type confers, of that “discretion” it the decisionmaker’s thereby discretion and § 10-8-330 analogous is more to other or- to survive a facial First Amendment chal dinances upheld that have been in this lenge.” Chicago MacDonald v. Park Specifically, circuit. in City v. Graff of Dist., (7th Cir.1997) (cit 132 F.3d 361 (7th Cir.1993), Chicago, 9 F.3d 1309 this 1335). 1318, 1329, ing Graff, 9 F.3d at court considered en banc whether a Chica- closely Section 10-8-330 more resem- go ordinance which contained six criteria bles the ordinance at in issue than determining Graff grant whether to a license Schneider, Staub, rejected in those and application for a newsstand unconstitution- ordinance, Shuttlesworth. Like the ally conferred unlimited discretion on the Graff specifically narrowly Section 10-8-330 and designated city Among officials. the six identifies the criteria, necessary reasonable and city required officials were to con- “[wjhether flows, governmental sider concerns—traffic traf- design, materials and hazards, newspaper color scheme of the stand com- emergency transportation. fic and type differ 10-8-330 10-8- forth Section that Section Moreover, the extent to Graff, they are approved for the Commis- flexibility from those provides with concerns nature, similarly of those limit the evaluation and sioner’s the same “substantially,” as of such words the use discretion. Commissioner’s “sufficient,” this actu- and “unnecessarily,” recently, this court considered More limitation on an additional ally provides closely analogous Chi- constitutionality of a discretion, compared government’s covering park per- cago ordinance—one Graff-, in the ordinance that contained Dist., Park In Thomas v. mits. City allowed officials there, ordinance (7th Cir.2000), the same 227 F.3d 921 “endangers if it a newsstand to remove presented in this case as involved plaintiffs “interferes property,” or safety or public Chicago’s challenge City to the a facial pedestrian or the flow of impedes with parks, the use of regulations govern which traffic,” did the ordinance but vehicular require permit a for an assem- and which any with threshold officials provide not event, demonstration, sporting Yet, parade, found majority bly, of this court harm. a sufficiently precise park by group a the ordinance or other use of Graff provide not that did so as to conclude Park ch. persons. Chi. Dist.Code or more unconstitutionally unfettered City claimed, with case, plaintiffs In that VII. 1317-18; id. Graff, 9 F.3d discretion. the ordinance things, among other (Flaum, J., concurring); id. at 1335 at 1329 unconstitutional provided also, J., v. (Ripple, concurring). See Ward support position, of them discretion. 781, 794, Racism, 491 U.S. Against Rock plaintiffs cited various sections (1989) 2746, 105 L.Ed.2d 661 ordinance, provision allowing a including (“While undoubtedly are these standards applicant a if the deny flexible, implementing officials and the mis- prior occasions made material “has on discretion, exercise considerable them will regarding the nature representations clarity precise guidance have perfect previously any activity event or scope of regulations even of required never been plaintiffs pointed also permitted.” expressive activity.”); United that restrict park that “the provision provided (8th Kistner, F.3d States deny because of ‘may’ district Cir.1995) re- (park permit regulation that misrepresentation, the failure to tender tran- “peace quired consideration fee, damaged property of the having po- safety, health and quility,” public occasion, or previous on a park district park resources and damage tential for regula- in the grounds other listed facilities, unconstitutionally vest did not flexibility tion,....” Notwithstanding the discretion). with unbridled government “misrepre- such as “material” and of words pro- Similarly, Chicago’s ordinance while sentations,” provided and the discretion flexibility, it limits the Commis- vides some “may,” this park with the word district by requiring the Com- discretion sioner’s rejected plaintiffs’ contention court parade permit, unless grant missioner to unconstitutionally provisions these public-safety articulated con- specifically City Chicago with too much vested the public-safety the con- cerns exist. And so, this court noted doing discretion. closely in contained the Ordinance cerns actually re- as “material” that words such approved of in type the of factors resemble City’s discre- the limitation on the stricted instance, city in officials For Graff. Gn-aff difficulty observed the tion. Thomas also whether the had discretion to consider the factors to defining specifically in more impede[d] with or “interfere[d] newsstand given competing the various be considered traffic,” pedestrian or vehicular the flow of (“The plain- play. at Id. at 925 interests considers while here the Commissioner do not complain vague, that this is but tiffs “unnecessarily inter- parade whether vague it made less indicate how could be contiguous in with traffic the area fere[s] encompass myriad activities yet the other factors set to the route.” WTiile 1029 2138, (1988), 100 L.Ed.2d 771 has been held S.Ct. where First Amendment in protect.”). Supreme analyzed licensing Court “prior regulations as re in case close- at issue this The ordinance straints,” time, place than rather ordinance park-permit ly resembles manner regulations. both ordinances upheld in Thomas. While city officials language providing included (an opinion in The lead en banc Graff assessing proposed in flexibility with plurality, case with a five-judge two flexibility is no more than is activity, the a involving judges, concurrences four city as to allow the officials to necessary so involving judges) dissent three did not find interests at issue. competing balance the necessary it seemingly to reconcile these Therefore, Graff, on and more re- based contradictory precedents. Although Thomas, that Section cently we conclude plurality five-judge concluded Graff sufficiently 10-8-330 articulates definitive im- regulation of a newsstand did not standards on which the Commissioner Amendment, plicate in the First the alter- concerning base his decision must native, did, if it concluded that even it application to withstand constitutional time, constitutionally appropriate was a scrutiny. restriction, place pro- and manner and the safeguards provided cedural were Time, suffi- Place and B. Prior Restraint or cient. Manner Restriction? argues

MacDonald next that Sec in Graff, In his concurrence which two prior restraint tion 10-8-330 constitutes judges joined, Judge Ripple aptly other provide on and thus must certain synthesized competing precedents. procedural protections, according which to Accordingly, appropriate incorpo- it is MacDonald, the other it does not. On thorough analysis rate that here this hand, Chicago argues that Sec indisputably implicates case which time, merely regulates tion 10-8-330 Graff, 9 Compare, First Amendment. place speech, and manner of and as such is (“Graff no Amend- F.3d 1313 has First speech. prior not a restraint on public ment to build a structure on right parties support Supreme Both find property.”). City Chicago cites Court decisions. The Ripple Judge explained: As Hampshire, v. New 312 U.S. Cox State of very long Supreme For a time the (1941), 569, 762, 61 L.Ed. 1049 S.Ct. 85 at has had to deal with even-handed the constitu wherein the Court considered tempts the exercise of ex regulate issuance of tionality requiring of a law Parade or pression public forums. occupy before marchers could notes, permits demonstration are the usual public ways. City correctly As the did not characterize that the Court Cox cases have arisen. context which these restraint,” up “prior law as a but rather attempts The Court has evaluated such regulation held the law as reasonable to the by governments bring order “time, place, and manner in relation to public commonly under forum what proper Id. at the other uses streets.” time, analy place, known as or manner 576, v. 61 S.Ct. 762. See also Clark Com Community Creative sis. See Clark for Non-Violence, munity Creative 468 -Violence, 288, 468 U.S. Non U.S. 104 S.Ct. 82 L.Ed.2d (1984) .... 82 L.Ed.2d S.Ct. (1984). But MacDonald counters with Hampshire, see also Cox v. New FW/PBS, Dallas, Inc. v. 569, 576, L.Ed. U.S. (1990), 215, 596, 107 L.Ed.2d 603 110 S.Ct. (1941). 1049 Movement, Forsyth County v. Nationalist Id. at 1334. 2395, 123, 112 120 L.Ed.2d 505 U.S. S.Ct. But, ex- Judge Ripple as further (1992), City Lakewood v. Plain 101 and of Co., 750, plained, and Lakewood Publishing Dealer 486 U.S. 108 FW/PBS 1030 delay the licens could licensing official analysis to restraint prior

applied] decision, indefinitely. presumably ing the functional that are fact situations discretion, in the Court’s type that the of situations This of those equivalent un official or traditionally government analyzed eyes, “gives had Court analy time, and manner place, power to discriminate agency der the substantial Lakewood, the in of Specifically, viewpoint or sis. on the content based facially invalid as down Court struck disfavored speech by suppressing to a license requiring Lakewood, an ordinance 486 speakers.” or disliked dispensing machines newspaper place 759, It also at 108 S.Ct. 2138. U.S. Similarly, in city streets. on the FW/ possibility of self-censor presents PBS, parts down of struck Court concerns, the ship. Id. Because of these licensing of requiring the an ordinance down the or in Lakewood struck Court cases, the In both businesses. adult in criteria to absent “neutral dinance the restriction characterized Court is not licensing decision sure prior by the ordinance as imposed 760, content,” at id. based on that its fail determined restraint and FW/PBS, 2138, and, in struck S.Ct. man stringent comply to with the ure proce the ordinance absent down Maryland, 380 of Freedman v. date FW/PBS, of 493 U.S. guarantees dural 734, 13 L.Ed.2d 649 U.S. S.Ct. 228, 110 596. at S.Ct. (1965), uncon the ordinance rendered at Id. 1335. stitutional. joining Ripple judges and the two Judge Id. found that the concerns his concurrence its not “follow Why then did Court and voiced in both Lakewood the Court factual approach treating situa- usual be- present not were FW/PBS Graff time, susceptible to tions such as these way placed in no un- cause the ordinance and instead place, analysis and manner city in the hands of fettered discretion Id. prior analysis”? restraint employfed] concluded that They therefore officials. Ripple’s concur- Judge As reasoned analyzed accord- should be the ordinance rence, time, guide- manner place, to the and ing treat- distinguishes Court’s [w]hat Cox, Clark, and Renton v. lines of in these two licensing ment of schemes Theatres, Inc., 475 U.S. Playtime presence of unfet- is the sets cases (1986).4 925, L.Ed.2d 29 S.Ct. In both and tered discretion. Cox recent decision Supreme Court’s Clark, with the adminis- the Court dealt Colorado, 703, 120 S.Ct. Hill regulation an or tration of ordinance (2000), added to 147 L.Ed.2d 597 has li- activity proscribed which of the distinction between the discussion fact, In the Cox censing authority. time, place and man- prior restraints in which distinguished those cases Court restrictions, but it has not resolved ner were unrestrained government officials Hill, (holding at 2491 issue. See S.Ct. deny permits. power grant or their making statutory provision that Colorado 762. In both 312 U.S. at knowingly any person it unlawful FW/PBS, however, there Lakewood of another without approach within 8 feet grant was unfettered discretion consent, informa- person’s pass out pursuant in Lakewood deny the license education, protest, engage in oral tion or very language to the ordinance restraint, prior not a counseling, was pursuant way to the FW/PBS Supreme Court of the continuing further review in the recognition 4. discussion legal Although in the and debate in the courts and community States.” Id. at 1335. United large, Judge Ripple’s concur- Graff, deci- did not review the Court's great "there is a need for rence noted that have also not resolved sions since then area, and I clarification of standards in this conflicting analyses. deserving respectfully suggest that this case is

1031 [prior We do not find this restraint for “place” of such communi but restricts the cation). uncertainty is adding helpful to the a formula. The historical mula] Also which have fact that other circuits “prior of referent restraints” is censor parade- constitutionality of Blackstone, considered ship, 4 see William Com following statutes permit licensing England mentaries on the Laws 151— of as regulations have treated such (1769), FW/PBS 53 which the of administration a subject speech, of prior restraints system much park does not resemble. required prior of procedural safeguards plaintiffs’ The statement in the brief Safir, v. 206 F.3d MacDonald restraints. permit rally of a hold a “denial is Cir.2000) (New (2d 183, 194 parade- York’s censorship” the ultimate is hollow rheto a on permitting prior ordinance is restraint ric. It is a to make a censor’s business get one must a speech because judgment propriety about the of the con a staging before from Commissioner message proposed expres tent or of the York); Nightclubs, in New Inc. v. activity. Because he is in the sive busi Paducah, 884, 889, 202 n. F.3d 891 suppressing ness activity such Cir.2000) (6th (city’s licensing 6 scheme of (friends of free are not drawn to prior restraint of adult business is in censorship), danger a career Co., speech); Baby Tam & Inc. v. very great, especially abuse is when as (9th 1097, Vegas, Las 154 F.3d 1100 Cir. light history sessed in of the dismal 1998) (“Because Vegas Las [the ordinance] censorship. requires proposed [adult] all bookstores regulation challenged The here does not apply for and obtain a license before en any judgment authorize about the con business, City’s licensing gaging any speeches expressive tent of or other properly analyzed prior as a scheme is activity dangerousness, offensive —their restraint.”); Target American Advertis ness, immorality, and so forth. It is not 1241, Giani, Inc. 199 F.3d 1250 ing, v. regulation even clear that reduces (10th Cir.2000); cf. Inc. Capital, Boss speech. park A the amount 1251, Casselberry, 187 F.3d 1255 City of unregulated space, limited and to allow (11th Cir.1999) (applying Freedman fac easily all comers could reduce access to ordinance, licensing without classi tors to utility enlarge park’s rather than restraint). prior And fying as a some speech. a forum See Cox v. New considered and licens circuits have 574-76, 569, 61 Hampshire, 312 U.S. time, place ordinances as both ing (1941); 762, 85 L.Ed. 1049 cf. S.Ct. prior re manner restrictions and as (2d Stern, 117, 128-29 Beal v. 184 F.3d straints, applying both constitutional stan Cir.1999). imagine Just two rallies held See, challenged dards to the ordinance. park at the time in the same area same Blvd., Inc., F.3d e.g., 11126 Baltimore 58 systems using public-address time, (noting that otherwise valid 995-96 speakers. Cf. drowned out each other’s regulation must be ana place and manner Racism, 491 U.S. Against Ward v. Rock prior if re lyzed as restraint ordinance 2746, 781, 105 L.Ed.2d 661 bookstore); open adult quires license (1989). prac heterogeneity Texas, Video, County, Inc. v. TK’s Denton “prior that the restraints” formula tices (5th Cir.1994); 707 Beal v. F.3d (with compare present case covers Cir.1999). (2d Stern, 184 F.3d 123-24 U.S. Maryland, Freedman v. recently This court resolved this uncer- (1965), involv S.Ct. 13 L.Ed.2d above, Thom- tainty Thomas. As noted board) censorship is reason ing a movie constitutionality of as considered the Chi- provide that it can much assis to doubt cago’s park-permit ordinance. While have to decide a judges tance to who argued that the plaintiffs Thomas had novel ease. an un- park-permit ordinance constituted Thomas, at 923-24. Because restraint, F.3d prior constitutional this court re- at issue in Thomas park-permit ordinance jected prior stating: restraint formula depend does not on the con- with the content of determination concern itself did not speech. treated the Nor does the speech, this court tent of the march’s proposed the time, place requiring and manner the provision ordinance as of the ordinance Id. at 926. licensing system. to determine whether the Commissioner parade participants of will concentration hand, the case at and controls Thomas police protection prevent proper fire and appropri- that the accordingly conclude we speech. of the These consider the content time, place the and manner approach ate that are neutral safety are considerations in by Supreme the set forth Court analysis by any objective standard. Here, Cox, inas Clark and Clark. Cox Thomas, have a scheme we and aspect of challenged The final govern- limits the discretion which ordinance, however, requires a closer criteria, ment based on content-neutral (h)(2) examination. Under subsection censorship the threat of and therefore must determine whether Commissioner prior restraint is re- characteristic of “[tjhere ... num are available a sufficient Moreover, the ordinance at issue mote. police protect to and peace ber of officers compelling an even more presents here participants activity lawful in the and non time, analysis manner place case for a and traffic related hazards participants from than that at issue because Section Graff pro police demands for light of the other not, does advance of the 10-8-330 proposed event tection at the time of the thereafter, prohibit any- planned Relying Forsyth County, on activity.” Rather, the marching. one from ordinance Movement, v. Nationalist Ga. to issue an al- requires Commissioner 123, 112 S.Ct. 120 L.Ed.2d 101 he ternative whenever denies (1992), the district court concluded permit application requested, (h)(2) subsection constitutes a content- permit must “to the extent alternative speech it be regulation based of because an that will practicable authorize event lieved the Commissioner would neces public visibility and a comparable have sarily of the march consider content route, location and date to that of similar policing message ers’ order to assess Thus, the ordinance proposed event.” (He (1) (3) thought needs. sections speech, regulates but does not restrict (2) issues, safety covered the so section time, de- place and manner marches content.) would more be concerned signed present speech. Forsyth The district court’s reliance on However, ques that does not end the County misplaced. for this conclusion was tion, time, place all and man because not case, Forsyth involved an as- Unlike this pass ner restrictions constitutional muster. help of fees to cover the cost of Time, sessment manner “are place and restrictions (1) constitutional, protection. Supreme justified police if There the they: are without the content of the held that an ordinance which re- reference to (2) tai regulated speech; narrowly are quired groups seeking per- demonstration significant government lored to serve a pay mits the estimated costs (3) interest; ample open leave alterna vi- police protection for the demonstrators in tive channels for communication of the because it olated the First Amendment formation.” Hal Corp. DiMa Town required county to first examine the (7th Cir.1999). lie, 185 F.3d message content the demonstrators’ response of others order “estimate case, aspects In of Chicago’s this those content, judge to that and to the number parade ordinance which MacDonald chal- response.” police necessary to meet that lenges justified are without reference to (h)(2) contrast, In subsection Id. 134. speech. the content of the marchers’ First, to consider instructs Commissioner requires the ordinance the Commis- protect only availability police proposed sioner to determine whether the activity participants will interfere with traffic. This from hazards. traffic any no pay content of the marchers’ lacks amount a marcher can to be al- Forsyth in that assessment. bearing lowed to march if decides the county had to determine the cost of burdens are too great.” Dissent at 1039. providing police protection for the demon- However, contrary to the dissent’s con- dangers, strators based on all but most cern, Chicago the ordinance bars no one significantly potential the for a violent re- rather, marching; from if the City deter- sponse speech. provision to the The fee mines that traffic hazards great are too “invalid it unconstitutionally was because police protection and insufficient for that the amount of the fee to the content tie[d] place, time and then the must “autho- ” speech.... of the But cost is not the parade, rize the conduct of a public assem- Moreover, in concern here. most situa- date, time, bly or athletic event aon at a at not tions the Commissioner does even location, or over a route different than speech know the content of the marchers’ by that applicant. named the This alter- permit application not request does nate practicable shall to the extent Rather, question such information. in an compara- authorize event that will have (2) availability section sufficient public route, ble visibility and a similar police particular resources at a time and location and proposed date to that of the place protect marchers from traffic haz- Municipal event.” Code of Ill. Chicago, Thus, Chicago ards. ordinance is 10-8-330(i). § Because the au- must readily distinguishable from the ordinance parade event, thorize the or other hecklers Forsyth County, and in to that contrast unpopular speech “by cannot veto threat- any ordinance lacks content-based consid- ening up large to show numbers and eration. create traffic hazards of their own.” Dis- The dissent contends that this case is no sent at 1040. Forsyth County, different than arguing supports Thomas also the conclusion City’s that the assessment of the number Forsyth County that is distinguishable protect participants of officers needed to Thomas, from the case at hand. In non-participants and from traffic hazards plaintiffs argued park-permit had that the depend may purpose (speech on the con- requirement applicants ordinance’s that tent) parade. of the Dissent 1039-40. liability obtain million in cre- insurance $1 contrary, two On there are distinct prohibited ated a heckler’s veto by For- First, Forsyth County. differences from syth. rejected This court that argument plain language of Chicago’s ordinance noting “the amount of insurance re- makes clear that the Commissioner should or, on, quired is not based so far only consider as has “traffic-related hazards.” shown, Second, by, been the Commissioner does not know influenced nature of event, per- the content of the specifically by because the and whether it application mit any does not ask for infor- expressive activity involves controversial purpose parade mation about the of the likely by to incite violence onlookers participants. § the motive of the 10-8- Thomas, opponents.” 227 F.3d at 925. 330(e). If the police Commissioner or the Rather, the cost of the insurance consid- impose beyond rules or restrictions those ered factors such as “the size of the event ordinance, specifically set forth an and the nature of the facilities involved in as-applied challenge may be order. But (a bandstand, tents, stage, and so in the challenge facial before this court forth).” case, Similarly, Id. this to de- there is no any- evidence content has termine whether “a sufficient number thing to do with the Commissioner’s as- peace protect par- officers” are available to permit application. sessment ticipants non-participants and “from traffic only related requires

The hazards” a consider- dissent also maintains that Chica- go’s ordinance is ation of the size of the and its more restrictive than the nature, i.e., one in Forsyth County, because “there is its route and time—it does not Thus, ample alternative requested.” City’s consideration into the inject content City denies in the event the channels exist application.5 of the route. proposed parade manner restriction time, place A to serve narrowly tailored be sum, jus- must also 10-8-330 is because Section interest. government significant reference to the content tified without significant promotes 10-8-330 Ordinance narrowly tailored speech; is regulated interest, safety primarily government interest; government significant to serve citizens, organized, specifically the ample alternative channels open leaves traffic, including effective, and safe flow information, it for communication regulation is emergency vehicles. time, place and manner a valid constitutes promote these to narrowly tailored also speech. regulation an individual- interests, by requiring first march vis- proposed the ized assessment Safeguards Procedural C. concerns, by requir- and second a-vis these argues also that Chica MacDonald route tailor an alternative ing the to ordinance is unconsti go’s parade-permit safety, with traffic not interfere which does provide pro it fails to tutional because While this sec- emergency services. and forth in Freedman safeguards cedural set ample alterna- ensures ond rationale also 85 S.Ct. Maryland, U.S. State of communication, see channels of tive infra (1965). Freedman, In 13 L.Ed.2d ordinance is that at assures considered the consti Supreme Court by City’s to the interests narrowly tailored that re Maryland a statute tutionality of be offered to the next-best route requiring to submit picture a motion exhibitor quired Moreover, this ordi- absent applicant. exhibition, films, to the in advance of their nance, disarray, in with City could be of Censors which Maryland State Board of workers interrupting the flow marchers film if it approve and license the would trucks, buses, and delivery sightseers, and would refuse proper” “was moral and and vehicles, well as other emergency if the film was “obscene or tended a license same rally to deciding marchers incite to corrupt morals or to debase day. govern- place and on the same 2,n. 734. The crime.” Id. at 52 85 S.Ct. poten- organizing in these ment’s interest an un Supreme struck the law as “clearly tial would be achieved disruptions restraint, doing in prior constitutional regulation.” effectively absent less procedural safeguards so forth three Racism, set Against Ward v. Rock dangers of censor 781, 801-02, designed to obviate 105 L.Ed.2d (1989). ship. Specifically, that the Freedman Court we conclude Accordingly, (1) ... “narrowly any prior restraint 10-8-330 satisfies mandated that: Section time, only period for a brief prong. imposed tailored” be main during quo which the status must be constitutional, time, Finally, to be (2) tained; expeditious judicial review of must ensure place and manner restrictions (3) available; must be that decision of communica- ample alternative channels going the burden of the. censor must bear denied. permit in that a is tion the event suppress speech, and must to court to because, as also does this The ordinance proof once court. bear the burden noted, a just if denies the Commissioner 58-59, MacDonald Id. at 85 S.Ct. 734. “authorize a permit application, it must 10-8-330 fails to contends that Section time, public assembly at a parade or other three, that two and provide safeguards a is to the location and over route prior an unconstitutional it is therefore comparable public practicable extent to in location and date restraint. visibility and similar content-based, stat- notwithstanding City's exten- view that the ordinance appeal,

5. On issue, ing merely a footnote that the district analysis sive of this MacDonald fails obviously was correct. justifying court's conclusion present case the district court’s applicant the ordi- an unsuccessful license argues days MacDonald first prompt judicial guarantee appeal nance fails to to the district court satisfies the However, contrary to Mac- judicial review. “prompt requirement”); review position, (for Donald’s Ordinance Inc., Capital, Boss 187 F.3d at 1256 judicial Specifically, review. allows ordinances, licensing prompt judicial re- provides that the Section 10-8-330 Com- only prompt judicial view means access to may appealed be missioner’s decision review).6 mayor mayor’s and the decision is then issue, split While the circuits are on this “subject judicial review accordance recently this court has made clear in Illinois, applicable judicial law.” Thomas that in this circuit a common law deny review of decision to proceeding good certiorari “is enough for a application may by be had state court regulation expressive activity when the writ of common law certiorari. This is not regulation is not a form of censorship, that to MacDonald: good enough, according is, not require does the regulato argues MacDonald the Freedman ry authority to evaluate the content or “prompt judicial review” re- safeguard message activity regulated.” Thom judicial quires possibility more than a as, (citing 227 F.3d at 926 opin fractured requires guarantee review—it the of a in “counting ion noses” to reach Graff prompt decision on the merits. conclusion). this Because this case—like split The circuits are on this issue. The permit a regulation Thomas—involves that Fourth, Sixth and held Ninth Circuits have censorship is not a form of and that does prompt judicial requires that review a not evaluate message the content or the prompt decision on the merits. 11126 Bal activity, judicial review through Illi Blvd., at (“prompt timore 58 F.3d 1000-01 proceedings nois’ common law certiorari

judicial “prompt judicial requires review” scrutiny. satisfies constitutional determination”); Nightclubs, City Inc. v. argues parade- MacDonald also that the (6th Paducah, 884, 202 F.3d 892 Cir. permitting satisfy ordinance fails to 2000) (“[T]his a Circuit and number of Freedman, safeguard third established in licensing other circuits have held that a that being government that bears the reasonably prompt scheme must ensure a if going deny burden of to court it wants to determination, judicial and not mere ac court, permit, in it once must bear review.”); judicial Baby cess to Tam & proving the burden of that the denial is Co., Inc., (“ ‘prompt 154 at 1101 F.3d However, constitutional. this third Freed- judicial opportunity review’ for means safeguard man in a case was established prompt hearing prompt a and a decision addressing censorship. Freed- Following officer”). judicial by Conversely, a man, Supreme considered First, Fifth and have Eleventh Circuits in safeguard need for this the context of a permit licensing that for ordi held FW/PBS, Inc. licensing statute. v. nances, prompt judicial re only review Dallas, 215, 596, 107 prompt judicial quires access to review. (1990). FW/PBS, plural- L.Ed.2d 603 Jesus, Bay Inc. v. Jews Massachusetts (1st ity of the Court concluded that the third Auth., Transp. 984 F.2d 1327 Cir.1993) safeguard required only was in those situa- judicial (“prompt pro review” is in di- engaged tions which “the censor applicant may appeal vided where license court); Video, Inc., censorship particular expressive 24 rect denial TK’s F.3d at that at 110 (holding gives 709 ordinance which material.” Id. S.Ct. 596. Be- "prompt exactly (noting 6. It is unclear where the Cir Beal that access to Second held Stern, judicial satisfy Compare cuit stands. Beal v. F.3d review in state courts would 184 Freedman," (2d Cir.1999) ("prompt concluding 129 access to but that the record judicial satisfy review in state courts would was insufficient to determine whether avail- Freedman") added), (emphasis proceedings Mac court satisfied that re- able state (2d Cir.2000) Safir, quirement). v. Donald F.3d it be forced to marchers’ demands would censoring ordinance cause FW/PBS prove Even go first to court to its case. by passing “not exercise discretion did court, new City proceeds protected any the content of judgment on in, requiring the Com- applications come plurality concluded speech,” the Court’s public safety con- missioner consider not re First Amendment does that “the in the But he cerns set Ordinance. forth city bear the burden of quire that can’t because his earlier decisions are not court to effect the denial of going to up in court. And yet they are tied final — application or that bear the bur license if a court then mandates a certain route or 230, 110 in court.” Id. at proof den of once previ- which had time the Commissioner S.Ct. 596. denied, impact ously that could several concluded, This court has likewise contested) (that other decisions were not FW/PBS, on the rationale of that a based made in the the Commissioner has licensing statute content-neutral times, police meantime about locations and provision requiring need not include availability, and traffic flow. It is unclear government going to bear the burden of possibly how the Commissioner could func- Thomas, deny permit. 227 F.3d court to court-imposed tion under such a structure. also, Graff, at 926-27. 9 F.3d at 1324 See Chicago But because the Ordinance is not 11; (Flaum, concurring) n. id. J. censorship, a device of the third Freedman FW/PBS, (“Further, likely after it seems apply, factor does not and the Freedman’s, requirement third required will not be to initiate —that all court-related bur licensor bear legal denying altering action before an case.”). apply application parade permit. dens—does not this Ac for a (2d cord, Stern, Beal 184 F.3d III. Conclusion Cir.1999) (because park permit ordinance restraint, prior Chicago parades was content-neutral it oversees and marches comply only throughout city only “need with the first two the to ensure not the factors.”). safety Therefore, people regularly who use these Freedman based on safety participants routes but also the FW/PBS, Graff, Thomas and we conclude alike, parade-goers and and to allow for Chicago that ordinance Section 10-8-330 prompt and efficient flow of traffic and satisfy need not the third Freedman stan emergency vehicles. a This is content- dard. time, restriction, place neutral and manner Before we note that our closing, conclu- justified by purpose its its content— —not sion that the third Freedman factor does narrowly and it is tailored a sig- to serve apply Chicago’s not parade-permit ordi- interest, nificant governmental while leav- acknowledges only nance not legal dis- ing open ample channels communication. censorship tinction between and a content- Section 10-8-330 also does not unconstitu- neutral licensing recognizes scheme—it tionally vest the Commissioner with unfet- practical reality of the situation. The Moreover, tered discretion. because Sec- completely third Freedman factor is un- a censorship, tion 10-8-330 is not form of parade- in the context workable of the time, restriction, place but and manner permit process. Consider typical sce- process Illinois’ common law certiorari applicant nario in which an requests a constitutionally For adequate. these rea- route, specific parade date and time. But sons, we ReveRse the district court’s deci- hour, parade is rush or another is sched- declaring sion the ordinance an unconstitu- uled, day-to-day city or the affairs of the prior tional restraint. are too greatly affected to allow the exact ROVNER, ILANA DIAMOND Circuit route, place requested time and of the so part, Judge, concurring dissenting City speech seeks to accommodate the part. by proposing an alternative route. How- ever, applies, if the third Freedman factor opinion Our recent in Thomas v. Chica (7th any District, City go time the failed accede to the Park 227 F.3d 921 Cir. 2000) review, some but not all of the and that alternate answered channels of re- appeal. raised in this That case questions view were available in federal court. We essentially parties the same we involved therefore concluded the Park District here, Windy City Hemp Develop have regulation did not im- unconstitutionally Board and a sub-unit of the ment pinge Windy City Hemp’s on First Amend- namely, Chicago Park Dis Chicago, rights. ment case, Windy City Hemp trict. challenges MacDonald now the City’s regulation a Park District challenged requirement permit that he obtain a City’s parks for restricted the use of parade order to hold a City’s on the political The gatherings, including rallies. streets. I with agree majority that the that a regulation required Park District amended version of the ordinance is the any assembly be obtained for in a only one before us on review. The amend- park by group persons. of 50 or more parade ed ordinance is considerably more regulation spelled out the criteria for than vague regulation. the Park District permit, grant procedures of a for objective Rather than criteria regarding it, obtaining process challeng and the participants the number of and the nature ing permit. the denial of a found that We facilities, the ordinance sets forth a Park did not regulation District vest subjective number of factors that the government unfettered discretion in the may deny permit city use to to march on permits, charged issuing official City may streets. The if deny regulation impermissibly that the was not proposed activity “substantially will requiring appli We held that vague. also traffic, unnecessarily” interfere with if liability cants to obtain insurance did not there police are insufficient numbers of amount to a heckler’s veto because the officers to protect participants available required amount of insurance was based and non-participants from traffic-related not the content of the on but rather hazards, if per- the concentration of on the size of the event and the nature of or things prevent sons on the route will the facilities involved. We further found proper police protection fire and or ambu- that the for a regulation’s requirement 30- scheme, lance service. Under this it is not 60-day permit processing lead time for difficult City might to see how the decide light reasonable in of the attendant was that a honoring Bulls harm administrative burden and was not that traffic snarls for miles does not “sub- speech exceptions ful in light City to the stantially unnecessarily” or interfere with spontaneous allowed for in rallies reaction traffic, but that MacDonald’s small band of Finally, rejected to current events. we marijuana protesters City will overwhelm Windy City Hemp’s objection, main that resources and interfere with traffic to an regulation adequately provide the failed to Nonetheless, unacceptable level.1 the or- judicial for review of denials. We subjective dinance is not so on its face that procedure found that Illinois’ for common adequate law certiorari was an means of it allows an exercise of “unfettered disere- purely display. we 1. Lest think this discussion is aca earlier A federal court declared the demic, unconstitutional, funding Mayor Rudolph of New Giuliani York freeze and the recently attempt Similarly, Chicago us that do restored the funds. reminded cities is not messages. phenomenon government censor controversial See Giuliani immune to the Art, Hanania, 'Decency’ censorship. Ray& Forms Panel to Review Public See Alf Siewers 17, 2001, by Painting L.A. Feb. at A24. Offended Controversial Leads to Brush with Times, Law, 12, 1988, Brooklyn photograph displayed May at the Cm. at 1. Three Muse Sun-Times, Art, Mayor paint- um of the announced that he was alderman removed a controversial forming decency ing a task force to monitor in from the wall of a museum associated Institute, tax-sponsored photograph art with School of the Art and the exhibits. The the depicted police impounded painting. a nude African-American woman as then the The figure Supper. painting depicted Mayor a Christ-like at the Last Giul the late Harold many previously Washington in a iani had cut off funds from that manner found by same museum when he was offended an offensive. tion,” light judge of the fact that of others to the content and especially I readily is available. judicial police necessary review number of to meet that majority’s con- Thus, therefore concur with response. the “fee assessed will on that issue. clusion depend on the administrator’s measure of hostility likely the amount of to be created majority, company I with the how part by speech based on its content.” For ever, whether the ordinance on the issue of 134, 112 syth County, 505 U.S. at S.Ct. allows a heckler’s veto. See impermissibly 2395. Georgia v. Nationalist Forsyth County, Movement, 123, 112 S.Ct. 505 U.S. that, County argued although The (1992). The ordinance 120 L.Ed.2d 101 content, policing cost of relates to the ordi- Forsyth County provided challenged nance itself was content neutral because it permit applicant every parade “shall effect, secondary at a was aimed the cost pay permit, in advance for such for the use maintaining public Forsyth order. The County, a than sum not more that, nevertheless, Court noted “it cannot $1,000.00 day parade, proces for such each justification be said that the fee’s ‘ha[s] sion, public meeting air open shall take ” nothing to do with content.’ at U.S. place.” 505 U.S. at 2395. S.Ct. (citing 112 S.Ct. 2395 Ward v. Rock Moreover, county administrator was Racism, 781, 792, Against 491 U.S. “adjust empowered to the amount to be (1989)). S.Ct. 105 L.Ed.2d 661 The paid expense order to meet the incident explained, to the administration of the Ordinance petitioner The costs which refers are public maintenance order public’s those associated reac- 127, 112 matter licensed.” 505 U.S. at speech. tion to the Listeners’ reaction group supremacists 2395. A of white S.Ct. not a content-neutral basis sought opposition to march in to the feder regulation.... Speech fi- cannot be holiday celebrating al the birth of Martin burdened, nancially any more than it can King. county Luther The set a fee $100 banned, punished simply be because fee, permit. pay for the Rather than might offend a hostile mob. county. would-be marchers sued the Supreme Court noted sometimes 134-35, Forsyth County, 505 at U.S. county included all of the administra (citations omitted). S.Ct. 2395 The Court fee, police expenses tive and regulations concluded that which only portion sometimes included of those government to discriminate on the ba- by costs in the fee. As construed message sis the content of the cannot be noted, county, the Court the ordinance of tolerated under the First Amendment. required

ten that the fee be based on the The Court also held that although raising 133-34, speech. content of the police revenue for services was undoubted- 112 S.Ct. 2395. The ordinance did not ly important an government goal, it did not explicitly state that fees were based on justify permit a content-based fee. content, Rather, of course. the ordinance Acknowledging Forsyth County is county allowed the to administrator assess law, good majority distinguish the seeks to per a fee to cover the cost protecting it. Supra majority necessarily implicat- nature troversial are determining whether the shall is- effect, applicant required ed. In to the is sue, in determining whether the crowd City inform the of the content of the hecklers) (including prohibitive. size will be (and speech if the controversial First, the content permit application requires the the nature) speech of the affects the crowd person name of both the signing appli- cation, Having required applicant and the name of the “authorized estimate. route information, alternate date or on an alternate City may provide this

to comparable visibility, very in the least that informa- with deny using that it is not then power delay to permit. given to issue a hecklers are deciding whether tion Timing the event. and location can move “traffic I how the words Nor do see I integral message, to the believe be from the dic- the ordinance hazards” save City to Forsyth County does not allow the Counter-protes- County. Forsyth tates of convey power Chicago this to hecklers. is likely spill to threaten to just are tors own city neighborhoods, each its they to the streets as are assault out into A through distinct character. march City assessing is When the marchers. neighborhood Back of the Yards would be peace adequate numbers of whether has through nearby a march no substitute for participants both protect officers to purpose when the of the march Bridgeport hazards, it from traffic is non-participants racially attack on protest is to motivated considering both the number of necessarily youth happened an African-American who possibility and the counter-demonstrators mostly neighborhood. into the white See Supreme and violence. The of unruliness Cindy Lalley, Hopes & Heather Schreuder County’s charac- rejected Forsyth Beating Rise Teen a Vic Week for After its ordinance as content-neu- terization of tim His Coma as 150 March in Stirs that it was aimed at a from grounds tral on the 29, 1997, Trib., March at Bridgeport, Chi. secondary maintaining cost of effect—the provide “comparable pub 1. A to directive at public order. 505 U.S S.Ct. visibility” strip lic on a “similar route” can view, 2395. In the Court’s because the message meaning. of most of its County secondary effect with which the purported was entwined to be concerned Moreover, I that the do not believe Park message permit-seekers with the that the supports majority’s District case con sought convey, to “it cannot be said that Chicago parade tention that the ordinance justification to do nothing ‘ha[s] the fee’s Forsyth County. not offend It does ” with content.’ 505 U.S S.Ct. liability true that the cost of the insurance Ward, (quoting 491 U.S. at 109 in Thomas was related to the size of the 2746). Likewise, Chicago, it can- S.Ct. event and the nature of the uti facilities assessing not that the number of be said lized, and not to the content of the protect participants officers to needed response potential or the for violent to the non-participants from traffic hazards has speech. majority contends that deter nothing proposed to do with content of the peace mining whether there are sufficient parade. part, that In some assessment officers to handle traffic-related hazards any will be based on the size of counter- only similarly requires a consideration of ensue, might demonstration that on the parade, the size of the its route and time. parade hostility might level of may certainly Those considerations come generate. city Traffic is difficult in a like into the ordinance not limit play, but does Chicago days, on the best of and it can be objective It City to such factors. al disrupted by mishaps. It is even minor City subjectively lows the to determine easy imagine therefore municipal re whether the burden on might parade deem a small too great even great parade sources is too to allow the orderly a threat to the flow of traffic if the forward, go any without reference to stan content parade City reg- strikes the Forsyth County, any law dards. Under effect, ulators as controversial. under protected speech requiring license before ordinance, counter-protestors narrow, may place take must contain ob apply by can their heckler’s veto threaten- jective, guide and definite standards ing up large to show in numbers and cre- 131, 112 licensing authority. 505 U.S. at traffic ate hazards of their own. (citing Shuttlesworth v. Bir S.Ct. 147, 150-51, Although provides mingham, the ordinance (1969)). practica- 22 L.Ed.2d 162 The reason must issue “to the extent this, Court, Supreme according ble” to hold the on an

1041 praisal scheme allows the of facts and judgment is that when exercise of facts, appraisal judgment against Forsyth County the exercise warned cases, opinion by formation of an an other grants City and the but also officials licensing authority, danger reign free to consider uncabined the effect of counter- censorship great. Forsyth is too See demonstrations on its ability protect County, against Therefore, 505 112 U.S. S.Ct. 2395 traffic hazards. unlike Connecticut, ordinance, park (citing Cantwell State ordinance 84 L.Ed. deny permits U.S. S.Ct. allows the based on a (1940) Promotions, and Southeastern heckler’s Supreme veto. The Court has Conrad, 546, 553, repudiated Ltd. v. 95 S.Ct. not Forsyth County and I do (1975)). 1239, L.Ed.2d not believe this Court should do so on its Therefore, parade ordinance not only ap- allows own. I respectfully dissent. Attachment ANDERSON, Petitioner- L. Jerome

Appellant, Warden, STERNES,

Jerry Respondent-Appellee. No. 99-4246. Appeals, Court of United States at 1032-34. The notes participating pa sons in or the observing that, ordinance, Chicago parade unlike the rade. In order to accurately assess the Forsyth County the ordinance involved an security parade participants, cost for the help of fees to assessment cover the cost of necessarily administrator the “examine[d] police protection. Chicago The ordinance message conveyed.” content of the that is directs the Commissioner to consider the 134, at 112 (quoting 505 U.S. S.Ct. 2395 availability police protect participants to Project, Arkansas Rag Writers’ Inc. v. only, according from traffic hazards and to land, 221, 1722, 230, 481 U.S. 107 S.Ct. 95 (1987)). majority, the the words “traffic hazards” L.Ed.2d 209 The administrator would response also have to estimate the are determinative here —because the Com- responsible assesses the need for officers organization missioner leaders of the hazards, only in terms of traffic the con- conducting parade.” the Chicago Ordi speech purportedly 10-8-330(e)(l)-(2). tent of the marchers’ is § nance More often implicated. at In For- Supra not 1032. not, than the name of organization the contrast, County, by county the syth com- tip City alone will the off to the content of providing calculated the cost of missioner proposed speech, the certainly as was true police for protection demonstrators based City this case. The could not seriously dangers significantly all but con- on most contend that it did not know what message potential response violent sidered the conveyed by would be Windy City speech. was to to the The fee thus tied Indeed, Hemp Development Board. most speech. majority the content of organizations of the speech whose is con Chicago ordinance as different in sees troversial and who are most at risk for First, respects. three ordi- censorship readily recognizable are from Second, nance does not fees at all. involve Smith, their names. v. See Collin only City hazard the must consider in (7th Cir.1978), denied, F.2d 1197 cert. denying granting permit a is whether U.S. 58 L.Ed.2d 264 police are sufficient there officers available (1978) (suit allowing the National Socialist (and protect participants non-partici- to America, Party of a Nazi organization, to Third, pants) perils. from traffic because Skokie, Illinois); march through Hurley necessarily not Commissioner does Gay, Irish-American Lesbian and Bisex speech even know the content of the when Boston, Group ual determination, making the ordinance (1995) (suit S.Ct. 132 L.Ed.2d 487 discrimination, lacks content-based accord- prohibiting gay and organization lesbian ing majority. to the participating from in Boston’s St. Patrick’s That Forsyth County involved a fee- Day parade). certainly is based not determina- Second, City requires applicant fact, tive. the Chicago ordinance is approximate to estimate the number of Forsyth more restrictive than County’s persons participate parade, in the and to speech law the sense that the ban on is City inform the on basis which this outright; there is no amount a marcher estimate is made. Chicago Ordinance pay City can to be allowed to march if the 10-8-330(e)(5). § If the Commissioner de- great. decides the burdens are too For- provide nies for failure to suffi- syth County acknowledged itself cient information about the crowd esti- burdened, “[sjpeech cannot financially be mate, the Commissioner will inform the any more than it punished can be applicant of what additional information banned, simply might because offend provided must be in a new or amended 134-35, hostile mob.” 505 U.S. application. § Chicago Ordinance 10-8- Thus, a S.Ct. 2395. fee is no different 330(£). These last two factors combine to ban, might from fact be less applicant provide require City intrusive; Forsyth County but under both necessary with the information for the and a fee ban based on content cannot response (including stand. to estimate the response) parade. the hostile to the Be- disingenuous I believe it is for the applicant required provide cause claim it does not know the content of estimate, for the basis crowd con- event, speech particular before a potentially tent of the and its con- not therefore does consider the content

Case Details

Case Name: Robert MacDonald Caren C. Thomas and Windy City Hemp Development Board v. City of Chicago, Cross-Appellee

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 12, 2001

Citation: 243 F.3d 1021

Docket Number: 98-3836, 98-3912, 99-1429

Court Abbreviation: 7th Cir.