RCP Publications Inc. v. Chicago
Filing
93
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 3/31/2018: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants plaintiff's motion for summary judgment [dkt. no. 66], finding that the absence of a definition of the term "commercial advertising material" in Chicago Municipal Code § 10-8-320 renders that provision unconstitutionally vague. The Court denies defendant's motion for summary judgment[dkt. no. 59 ]. The Court denies RCP's motion to exclude the City's expert witnesses [dkt. no. 56]. Counsel are to draft an appropriate judgment embodying the Court's conclusions and are to present an agreed proposed form of judgment, or alternative proposed forms if they are unable to agree, by no later than April 4, 2018. The case is set for a status hearing on April 5, 2018 at 9:30 a.m. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RCP PUBLICATIONS INC.,
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Plaintiff,
vs.
CITY OF CHICAGO,
Defendant.
Case No. 15 C 11398
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Employees of the City of Chicago issued RCP Publications Inc. a ticket for a sign
advertising a movie screening that was affixed to a city-owned streetlight pole. Posting
"commercial advertising material" to City property is a violation of section 10-8-320 of
the Chicago Municipal Code. RCP contends that section 10-8-320 is an
unconstitutional restriction on speech, void for vagueness, and overbroad. Both RCP
and the City of Chicago have moved for summary judgment. RCP has also moved to
exclude the City's expert witnesses.
Background
RCP publishes and distributes a variety of pamphlets, movies, books, posters,
and other materials containing political messages. It also operates a website that
makes books, newspapers, and DVDs available for purchase. In July 2014, a poster
that promoted a film, "Revolution and Religion: The Fight for Emancipation and the
Role of Religion" was affixed to a streetlight pole. 1 RCP made the advertised film
available for download or purchase on its website and sold tickets for a screening of the
film. The parties dispute whether RCP sponsored the screening. On July 14, 2015,
RCP received notice that a poster attached to a City streetlight pole may have violated
section 10-8-320 of the Chicago Municipal Code, which the Court will refer to as the
sign ordinance. The sign ordinance states:
No person shall distribute or cause others to distribute, as defined in Section
10-8-325, commercial advertising material by means of posting, sticking,
stamping, tacking, painting or otherwise fixing any sign, notice, placard, bill,
card, poster, advertisement or other device calculated to attract the
attention of the public, to or upon any sidewalk, crosswalk, curb or
curbstone, flagstone or any other portion or part of any public way,
lamppost, electric light, traffic light, telegraph, telephone or trolley line pole,
hydrant, shade tree or tree-box, or upon the piers, columns, trusses, girders,
railings, gates or parts of any public bridge or viaduct, or upon any pole box
or fixture of the police and fire communications system, except such as may
be required by the laws of the state and the ordinances of the city, or on any
bus shelter, except that the city may allow the posting of decorative banners
in accordance with Section 10-8-340 below.
Chi. Mun. Code § 10-8-320(a) (for ease of reference, the Court will refer generally to the
extensive list of municipal property cited in the ordinance as "City property"). The sign
ordinance does not define "commercial advertising material." Before the Chicago City
Council amended the ordinance in 2007, the ordinance's ban on signs was not limited to
"commercial advertising material."
At a hearing on October 15, 2015, an Administrative Law Judge (ALJ) found that
RCP owned the offending poster. At a subsequent hearing, the ALJ held that RCP was
liable for violating section 10-8-320(a) on the ground that the poster contained a
1
RCP does not dispute that the poster at issue was based upon a version that RCP
made available on its website. Pl.'s Resp. to Def.'s LR 56.1 Stmt. ¶¶ 23-24.
2
commercial message. RCP had the option to appeal the ALJ's decision, but it did not
do so. Since receiving the citation, RCP has continued to publish its materials, which
include posters, and it has not tried to warn others not to post its materials.
RCP alleges that the sign ordinance's regulation of speech violates the First
Amendment. In September 2016, the Court denied the City's motion to dismiss RCP's
complaint. RCP Publ'ns, Inc. v. City of Chicago, 204 F. Supp. 3d 1012 (N.D. Ill. 2016).
In January 2017, RCP filed an amended complaint on behalf of a putative class. In May
2017, the Court certified, without objection by the City, a plaintiff class consisting of "all
persons who have been ticketed since December 21, 2013, under Municipal Code of
Chicago § 10-8-320."
Discussion
Both sides have moved for summary judgment. The City supports its motion with
reports from expert witnesses. The Court first reviews RCP's motion to exclude the
City's expert witnesses and then considers the parties' motions for summary judgment.
I.
Motion to exclude
Federal Rule of Evidence 702 governs the admission of opinion testimony by
expert witnesses. Rule 702 requires a district court "to determine (1) whether the expert
would testify to valid scientific knowledge, and (2) whether that testimony would assist
the trier of fact with a fact at issue." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th
Cir. 2000) (citation omitted). RCP argues that the City's expert witnesses, Michael
Kuzel and Sam Karow, should be excluded on the ground that neither offers testimony
that would be helpful to a factfinder.
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A.
Michael Kuzel
Kuzel is an expert in the study of "human factors," which is the study of how
products, tasks, and environments may be created to meet the needs of human users in
a system. D.E. 69, Pl.'s Ex. 18 at 1 (Kuzel Expert Rep.). Kuzel describes how
advertisements are intended to capture the attention of persons who perceive them and
therefore have an effect on those passing by the advertisement. Id. at 5. He opines
that (1) posted signs can distract drivers, "leading to decrements in performance and
erratic behaviors," (2) the placement and number of signs may make it more difficult for
drivers to detect hazards, and (3) the sign ordinance is "an appropriate response" to the
hazards that advertising in the public way creates. Id. at 9.
RCP's primary contention is that Kuzel's testimony is not relevant, because it
concerns the traffic safety effects of all signs, not just the commercial signs affected by
the sign ordinance. That does not make Kuzel's testimony irrelevant. The City has
asserted an interest in reducing the adverse traffic safety effects of signs posted to City
property, and there is evidence that commercial signs make up the largest proportion of
such signs. Moreover, Kuzel also states that "[a]dvertisements have also been found to
attract significantly more glances than other road signs," which indicates that, at least in
certain instances, he has compared the effects of different types of signs. Id. at 5.
The Court also overrules RCP's other arguments for excluding Kuzel's opinions.
RCP contends that Kuzel's testimony is irrelevant because it assumes that the
alternative to the sign ordinance is unregulated posting on City property, rather than a
newly-drafted ordinance with different sorts of restrictions, for example, on the number
of postings. In addition, RCP argues that Kuzel's testimony should be excluded
4
because it does not adequately take into consideration the facts of this litigation. These
are not grounds to exclude Kuzel's testimony. Neither argument suggests that Kuzel's
opinions are unhelpful, even if those opinions might not, in and of themselves, establish
the validity of the sign ordinance. His opinions indisputably bear on the question of
whether the ordinance advances the City's asserted interest in traffic safety.
Finally, RCP contends that a factfinder does not need expert testimony to
understand that drivers may be distracted by posted signs. This argument, however, is
undercut by arguments RCP has advanced in its briefs. RCP argues that "the City has
not offered a single instance of a posting (commercial or otherwise) on City property
causing an accident or incident supporting the City's claim that [the ban] is necessary . .
. to advance traffic safety." Pl.'s Reply in Supp. of Mot. for Summ. J. at 9. Kuzel's
testimony, therefore, is helpful and properly admissible, for it provides information that
bears on a point that RCP itself calls into question.
B.
Sam Karow
RCP also contends that Sam Karow, the City's second expert witness, should be
excluded. Karow is an expert in advertising and communications. D.E. 69, Pl.'s Ex. 19
at 2 (Karow Expert Rep.). His report describes how commercial advertisers wish to
reach many viewers with their ads, how outdoor signs constitute a cheap and effective
means of reaching views, and how "[r]evising or removing" the ordinance would
produce an increase in the number of signs posted to City property. Karow opines that,
because of the popularity, ease, and effectiveness of outdoor signs as advertising
techniques, id. at 5-6, lifting the ordinance would produce a "massive proliferation" of
posted signs on City property. Id. at 14.
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RCP contends that Karow's testimony should be excluded because it is assumes
that, if the sign ordinance is found unconstitutional, the City would be unable to replace
the ordinance with some other constitutionally appropriate restriction. RCP also argues
that whether the sign ordinance ensures fewer commercial signs is irrelevant in
determining the constitutionality of the current ordinance. The Court disagrees. The
City's argument is that signs posted to City property burden its interests and that, by
enforcing the sign ordinance, it has reduced the adverse effects of commercial signs,
the single largest source of posted signs. Given this contention, Karow's expert
testimony that the ordinance prevents a "massive proliferation" of signs is relevant to
assessing the City's assertion that the ordinance assists in minimizing the adverse
impact of commercial signs. See also Smith, 215 F.3d at 721 ("[U]nder Rule 702,
expert testimony need only be relevant to an issue in the case; it need not relate directly
to the ultimate issue.").
For these reasons, the Court denies RCP's request to bar the City's expert
witnesses.
II.
Motions for summary judgment
The Court next turns to the parties' motions for summary judgment. The City
contends that the sign ordinance is a permissible regulation of commercial speech.
RCP argues the opposite and also contends that the sign ordinance is impermissibly
vague and unconstitutionally overbroad. RCP asserts facial and as-applied challenges.
A.
Regulation of commercial speech
1.
The applicable standard
The City argues that the sign ordinance is a valid regulation of commercial
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speech, which is afforded "a lesser protection" under the First Amendment than "other
constitutionally guaranteed expression." Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm. of N.Y., 447 U.S. 557, 562-63 (1980). The Supreme Court has established a
four-step analysis for determining whether a regulation of commercial speech meets the
First Amendment's requirements:
•
whether the expression is protected by the First Amendment; at a minimum, it
must concern lawful activity and not be misleading;
•
whether the government's interest is substantial;
•
whether the regulation "directly advances the governmental interest asserted";
and
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whether the regulation "is not more extensive than is necessary to serve that
interest."
Id. at 566. The parties dispute the application of the Central Hudson standard—
specifically the last two steps—and each side's arguments on these points are
intertwined to some extent. The Supreme Court anticipated this: "[t]he last two steps of
Central Hudson analysis basically involve a consideration of the 'fit' between the
legislature's ends and the means chosen to accomplish those ends." Posadas de P.R.
Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 341 (1986).
RCP contends that the Central Hudson inquiry must be applied with "special
care," consistent with the Supreme Court's admonition that "regulations that entirely
suppress commercial speech in order to pursue a nonspeech-related policy" must be
reviewed with "special care." Cent. Hudson, 447 U.S. at 566 n.9. Along the same lines,
in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), the Supreme Court
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concluded that there was "far less reason to depart from the rigorous review that the
First Amendment generally demands" when government "entirely prohibits the
dissemination of truthful, nonmisleading commercial messages for reasons unrelated to
the preservation of a fair bargaining process" or when government "attempts to single
out certain messages for suppression." Id. at 501.
The sign ordinance, however, is not the type of restriction that triggers the
enhanced level of scrutiny referenced in these cases. Specifically, the ordinance does
not single out certain types of messages for restriction, and it is not a "complete ban on
commercial speech." Id. The restriction at issue in 44 Liquormart was a statute that
prohibited "advertising in any manner whatsoever the price of any alcoholic beverage
offered for sale in the [s]tate." 44 Liquormart, 517 U.S. at 490. In considering this
statute, the Court noted that its commercial-speech cases had consistently recognized
"the dangers that attend governmental attempts to single out certain messages for
suppression" and failed to leave open satisfactory alternative channels of
communication. See id. at 501-02. For instance, in Linmark Associates, Inc. v.
Willingboro Township, 431 U.S. 85 (1977), the Supreme Court struck down a prohibition
on real estate "For Sale" signs as a near-total ban on real estate advertising, given the
inadequacy of alternative channels to advertise real estate that were available at the
time. Similarly, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748 (1976), the Court struck down what it characterized as the
Virginia legislature's attempt to "completely suppress" prescription drug price
advertisements in any form. Id. at 771, 773.
In short, the heightened scrutiny referenced in 44 Liquormart and Central Hudson
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applies when a governmental entity imposes a "total ban" on certain types of
commercial speech: alcohol prices in 44 Liquormart, pharmacy prices in Virginia Board,
and real estate prices in Linmark. Where there are alternative channels of
communication available, as in Florida Bar, the Supreme Court does not require
heightened scrutiny. For example, in Florida Bar v. Went for It, Inc., 515 U.S. 618
(1995), the Court upheld a Florida statute restricting attorneys from mailing solicitations
to victims of accidents or disasters for thirty days after the catastrophic event, as there
were "ample alternative channels" for lawyers to engage in commercial speech not
affected by the mailing restriction. Id. at 620, 633. The Court did not apply any form of
enhanced scrutiny even though such mailings were banned in their entirety during the
thirty-day period.
The City of Chicago's sign ordinance does not single out any particular
commercial advertising messages for prohibition. And any business or person wishing
to advertise a product or service may do so through innumerable channels of
communication other than bills posted on City property. The Court concludes that there
is no basis to impose any higher degree of scrutiny than what Central Hudson itself
requires in this case.
2.
The City's asserted interests
As indicated earlier, Central Hudson requires a governmental entity regulating
commercial speech to establish that the regulation directly advances the interests the
government has asserted to support the regulation. The City has identified a number of
interests that it contends the sign ordinance advances: combatting litter, controlling
visual clutter, preventing damage to City property, and promoting traffic safety. Def.'s
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LR 56.1 Stmt. ¶ 36-57. RCP does not dispute that signs can become litter, Pl.'s Resp.
to Def.'s LR 56.1 Stmt. ¶¶ 36-38; that they produce visual clutter, id. ¶ 40; that the
removal of signs can damage City property, id. ¶¶ 45-48; or that signs can obstruct sight
lines and obscure traffic signs, affecting traffic safety. Id. ¶¶ 43-44. To be clear, the
City does not argue that non-commercial signs do not impact these interests; rather, it
argues that commercial signs have a significantly greater impact, because such signs
constitute the overwhelming majority of signs posted on City property.
To support its contention, the City presents testimony from two witnesses. First
is Cole Stallard, a deputy commissioner with the Department of Streets and Sanitation.
D.E. 61, Def.'s Ex. 1 at 8 (Stallard Dep.). Stallard testified that the majority of signs
posted to City property are commercial. Id. at 110, 117. Similarly, Linda Delgado,
another employee at the Department of Streets and Sanitation, testified that "about 95
percent" of the signage removed from City property by the Department is commercial.
D.E. 61, Def.'s Ex. 2 at 87, 95 (Delgado Dep.). RCP does not present any evidence
contradicting these contentions. The City's evidence supports the findings of the
Chicago City Council, which found when it adopted the sign ordinance that "[t]he
distribution of commercial handbills . . . is the cause of a substantial, often
overwhelming, amount of litter[.]" Def.'s Resp. to Pl.'s LR. 56.1 Stmt. ¶ 14. Thus the
City argues that, for each of its asserted interests, "[c]ommercial advertising presents
much more significant problems for the City than other types of posted bills because of
its sheer volume." Def.'s Mem. in Supp. of Mot. for Summ. J. at 5. In sum, the City's
evidence, which is unrebutted, is sufficient to establish that commercial signage
burdens the City's asserted interests to a much greater extent than noncommercial
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materials.
RCP argues that Delgado's testimony is unpersuasive; it contends that she does
not have a good understanding of what constitutes "commercial advertising material"
within the meaning of the sign ordinance. This argument is not compelling, as
Delgado's description of how she distinguishes commercial signs from noncommercial
signs does not suggest that she has included many noncommercial or arguably
noncommercial signs in her statement that 95 percent of all signs posted are
commercial. D.E. 61, Def.'s Ex. 2 at 87 (Delgado Dep.) (defines a sign as commercial if
it is "advertising something, again, a business, an event, exchange of money, a
service"). 2 Moreover, the City has also offered Stallard's deposition testimony, which
confirms Delgado's statements. D.E. 61, Def.'s Ex. 1 at 11 (Stallard Dep.). It is true, as
RCP points out, that the City has not collected data or commissioned a study comparing
the burdens imposed by commercial and noncommercial signs. But the law does not
require this. In Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), the
Supreme Court, in reviewing a billboard ordinance under Central Hudson, "hesitate[d] to
disagree with the accumulated, common-sense judgment[] of local lawmakers" as to the
burdens that billboards imposed on the community, especially where there was "nothing
. . . to suggest that these judgments are unreasonable." Id. at 509. The Court upheld
the City of San Diego's restriction on billboards, even though it was justified by less than
2
This in no way contradicts the Court's later discussion regarding the vagueness of the
sign ordinance. See Johnson v. United States, 135 S. Ct. 2551, 2561 (2015) (law may
be impermissibly vague even if one can identify instances in which the law is clearly
implicated).
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the rigorous analysis that RCP seeks of the City of Chicago. Id. 3 In this case, as in
Metromedia, RCP has offered nothing suggesting that the City Council's judgment about
the relative proportion of commercial and non-commercial signs is unreasonable,
particularly in light of the deposition testimony the City has proffered.
The evidence that the City has proffered to support the sign ordinance
distinguishes this case from City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410
(1993), a case on which RCP relies. In Discovery Network, the Supreme Court struck
down a Cincinnati ordinance that banned commercial newsracks and only commercial
newsracks, even though commercial newsracks constituted just 62 of the approximately
2,000 newsracks in Cincinnati. Id. at 417. Cincinnati officials justified their regulation of
commercial newsracks by their ugly appearance. Id. at 425. Yet, as the Court noted,
commercial and noncommercial newsracks were equally unattractive. Id. The Court
concluded that banning commercial newsracks but not noncommercial newsracks
"bears no relationship whatsoever to the particular interests that the city has asserted."
Id. at 424. Rather, the Court concluded, lurking in the regulation was the city's judgment
that commercial speech had a lower value than other forms of speech. Id. at 418-19
("The major premise supporting the city's argument is the proposition that commercial
speech has only a low value."). But the Court also noted that it was not deciding
"whether, given certain facts and under certain circumstances, a community might be
able to justify differential treatment of commercial and noncommercial newsracks. We
3
Moreover, as Delgado's testimony indicates, doing a study of the type sought by RCP
could be prohibitively disruptive to the City's everyday efforts to keep the city clean.
D.E. 61, Def.'s Ex. 2 at 95 (Delgado Dep.) ("I know that it would be impossible for me to
do it, as a ward superintendent, to document how many signs I take down, just for the
sheer volume.").
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simply hold that on this record Cincinnati has failed to make such a showing." Id. at
428.
Unlike the Cincinnati ordinance in Discovery Network, which failed to draw any
link between the commercial aspect of the newsracks being regulated and the interests
that Cincinnati asserted, the sign ordinance is supported by a link between the
commercial character of the signs being regulated and the City's interests. The
unrebutted evidence the City has offered indicates that the overwhelming majority of the
burdens to the City's asserted interests caused by posted signs are imposed by
commercial signs. Unlike the defendant in Discovery Network, the City has introduced
evidence showing that the commercial character of signs posted to City property has a
direct and significant impact on the interests that the City asserted to support the sign
ordinance. Thus the Court finds unpersuasive RCP's contention that the City seeks to
constrain "commercial messages (as a class) . . . as a way to address a problem
unrelated to commerce." Pl.'s Mot. for Summ. J. at 22 (emphasis added).
RCP also argues that the City's evidence does not change the fact that
commercial and noncommercial signs ultimately present the same issues: a
commercial sign does not impose any burdens beyond those that a noncommercial sign
imposes. That is not entirely correct: one of the City's expert witnesses has offered
some evidence that advertisements are more distracting to those in traffic than other
types of signs. D.E. 69, Pl.'s Ex. 18 at 5 (Kuzel Expert Rep.). But the central thrust of
the City's justification for the sign ordinance is that there are far more commercial signs
posted to the City's property than noncommercial signs, even though commercial signs
are already unlawful under the sign ordinance (suggesting the disparity would be even
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worse absent the ban). The Court sees no basis to reject the proposition that the far
greater volume of commercial signs justifies the City's decision to focus its regulation on
that type of sign.
In sum, the City has sufficiently established that its ban on posting commercial
signs on City property directly advances its asserted and legitimate interests in reducing
litter, promoting traffic safety, reducing damage to City property, and advancing
aesthetics, by banning all commercial signs, the type of signs that imposes the greatest
adverse impact on these interests.
3.
RCP's underinclusiveness argument
RCP argues that by limiting its prohibition of signs to commercial signs posted on
City property, the City has adopted an underinclusive ordinance that, for this reason,
does not directly advance its asserted interests. An ordinance that "provides only
ineffective or remote support for the government's purpose" may not be upheld under
Central Hudson. Edenfield v. Fane, 507 U.S. 761, 770 (1993) (quoting Central Hudson,
447 U.S. at 564). See also, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994)
("Exemptions from an otherwise legitimate regulation of a medium of speech may be
noteworthy for a reason quite apart from the risks of viewpoint and content
discrimination: they may diminish the credibility of the government's rationale for
restricting speech in the first place.").
For example, in Greater New Orleans Broadcasting Association, Inc. v. United
States, 527 U.S. 173, 190 (1999) the Court struck down a federal law that banned the
advertising of commercial casino gambling. The interest asserted to support the
advertising ban was limiting demand for gambling, particularly on the part of compulsive
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gamblers. Id. at 189. The law, however, permitted advertising by governmentoperated, nonprofit, tribal, and "ancillary" commercial casinos. Id. The Court concluded
that the law was "so pierced by exemptions and inconsistencies" that "there was little
chance that the speech restriction could have directly and materially advanced its aim."
Id. at 190, 193. Similarly, in Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), the
defendant contended that a federal prohibition on advertising alcohol content on beer
labels unlawfully restricted the speech rights of brewers. Id. at 478-79. The
government argued that the ban was needed to suppress the threat of "strength wars"
between brewers, in which each brewer increased alcohol content relative to others as
a way of attracting customers. Id. at 479. But as the brewers pointed out, most states
permitted brewers to disclose the alcohol content of their beers in advertisements, even
if they were barred from including it on beer labels. Id. at 488. And manufacturers were
permitted to characterize some beers as "malt liquor," an indication of a higher alcohol
content. Id. at 489. The Court concluded that these exemptions rendered the
restriction so underinclusive as to defeat its purpose. Id. at 488-89.
The law does not, however, impose upon government an all-or-nothing choice in
regulating commercial speech. The Supreme Court and other federal courts have
recognized that a statute regulating commercial speech may contain exceptions to a
general ban without rendering the statute underinclusive. In Metromedia, the Supreme
Court upheld a city ordinance that permitted billboards engaged in onsite advertising
(i.e., describing the commercial activities conducted at the premises on which the
billboard was located), but not those engaged in offsite advertising (describing the
commercial activities of another location). Metromedia, Inc., 453 U.S. at 510-11. The
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Court concluded that the differential treatment was not unconstitutional even though the
ban permitted many billboards, as the ban on offsite advertising still advanced the City's
interests in traffic safety and aesthetics. Id. at 511. The Court also noted that the city
reasonably could believe offsite advertising, due to periodically changing content, could
impose a greater burden upon the City's interests than onsite advertising. Id.
Likewise, in Metro Lights, LLC v. City of Los Angeles, 551 F.3d 898 (9th Cir.
2009), the Ninth Circuit upheld a city ordinance that restricted offsite commercial
advertising signs, but not onsite commercial or noncommercial signs. Id. at 902, 909.
Faced with an underinclusiveness challenge, the court reasoned that the exceptions did
not undermine the interests that the sign ordinance was intended to advance, as the
ordinance still reduced the overall clutter created by signs. Id. at 910. The court also
noted that the City of Los Angeles found that offsite advertising posed "a more acute
problem" than other types of advertising, because offsite advertising featured content
that periodically changed. Id. The Ninth Circuit also distinguished the ordinance from
the law at issue in Greater New Orleans. Whereas the ban on commercial casino
advertisements at issue in Greater New Orleans was so underinclusive that gamblers
"would simply redirect their business to Indian casinos instead of private casinos," the
sign ordinance advanced the City of Los Angeles's interests by reducing the overall
number of billboards. Id. at 911. See also Contest Promotions, LLC v. City & County of
San Francisco, 874 F.3d 597, 603 (9th Cir. 2017) (concluding that a sign ordinance was
not fatally underinclusive, when "the distinctions that it makes among different kinds of
speech relate empirically to the interests that the government seeks to advance.")
First, RCP argues in a footnote that the sign ordinance is underinclusive because
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it does not address advertisements posted under the City's contract with JCDecaux.
Pl.'s Mot. for Summ. J. at 16 n.2. The City entered into a contract with an advertising
entity, JCDecaux, to permit certain advertising on City-owned "street furniture," such as
bus stops, train stations, and other publicly-owned surfaces. D.E. 69, Pl.'s Ex. 20 at
CITY001461 ("Coordinated Street Furniture Program Agreement"). Under the contract,
JCDecaux "agreed to be responsible for the design, fabrication, installation,
maintenance, operation, removal, and dismantlement of various pieces of street
furniture . . . at no cost to the City." Id. Thus the agreement with JCDecaux does not
adversely impact many of the City's asserted interests: litter, visual clutter, and damage
to City property are all mitigated under this arrangement. Moreover, similar regulatory
schemes—banning commercial signs but excepting commercial signs posted in
accordance with a contract between the City and an advertiser—have been upheld.
Metromedia, 453 U.S. at 509; Metro Lights, 551 F.3d at 909. The exception for the
JCDecaux advertisements does not render the sign ordinance so underinclusive that it
fails to advance the City's interests.
RCP also argues that the City's failure to ban noncommercial signs renders the
sign ordinance fatally underinclusive. RCP contends that political signage, one type of
noncommercial signage, produces the same problems that commercial signs do but are
left unregulated by the sign ordinance. This, in the Court's view, is essentially a
variation on the argument about commercial versus non-commercial signs that the
Court rejected in the previous section. In any event, the short answer to RCP's
argument is that the law does not leave the City with a binary choice of banning all signs
or banning none. So long as the choices the City makes regarding which types of signs
17
to regulate are not otherwise constitutionally infirm, cf. Members of City Council v.
Taxpayers for Vincent, 466 U.S. 789, 816 (1984) (exceptions for some types of political
content but not others likely would not pass muster), it does not have to eliminate the
entire perceived ill all at once. Here the City has chosen to target commercial signs, the
type of signs that it reasonably believed imposed the lion's share of the adverse impact
on its asserted interests. In any event, as the City contends, political signs typically are
put up only during election seasons, so they do not constitute as great a burden as
types of signs that are posted year-round.
RCP also argues that signs posted by non-profits, which it contends are also
noncommercial signs, pose as great or greater a problem as commercial signs,
because non-profits experience all the same incentives that commercial entities face but
have less resources to channel into paid advertising. RCP concludes that for this
reason, signs posted by non-profits pose a greater problem than commercial signs in
terms of impact on the City's asserted interest. But this argument is speculative; RCP
does not support it with evidence, and it otherwise lacks foundation in the record.
In sum, the Court overrules RCP's underinclusiveness argument. As discussed
earlier, the City has introduced evidence showing that most posted signs are
commercial in character. This evidence is sufficient to establish that the sign ordinance
directly advances the legitimate governmental interests that the City asserts. As far as
the limitation to commercial advertisements is concerned, the sign ordinance is more
like the regulations upheld in Metromedia, Metro Lights, and Contest Promotions than
those struck down in Greater New Orleans and Rubin. See also United States v. Edge
Broad. Co., 509 U.S. 418, 429 (1993) ("We [have] made clear . . . that our commercial
18
speech cases require a fit between the restriction and the government interest that is
not necessarily perfect, but reasonable.").
4.
The availability of lesser restrictions
RCP argues that the sign ordinance also fails because there are a number of
other ways that the City could have advanced its asserted interests without banning
commercial signs, such as restrictions in certain locations, restrictions on the total
number of postings, or restrictions on how a posting may be affixed to City property.
First, it is not clear that these less-restrictive means would adequately advance the
City's interests in reducing clutter and promoting traffic safety, which likely are
implicated by the addition of any signs, no matter how or where these signs are posted.
Second, even if there were another means of restricting signs, RCP misstates the
burden facing the City. "The [City] is not required to employ the least restrictive means
conceivable, but it must demonstrate . . . a fit that is not necessarily perfect, but
reasonable; that represents not necessarily the single best disposition but one whose
scope is in proportion to the interest served." Greater New Orleans, 527 U.S. at 188.
The City's prohibition on the single largest source of the sign problem is a solution that
reasonably fits the problems the City has identified.
Finally, RCP argues that a parade of horribles will follow from a decision
upholding the City's restriction on commercial signs. Specifically, RCP contends that if
the blanket prohibition on commercial signs is upheld, nothing will stop the City from
barring commercial speakers from "leafletting, engaging in door-to-door solicitation, or
using of sound trucks . . . effectively eliminating underinclusiveness challenges to
prohibitions of commercial speech." Pl.'s Mot. for Summ. J. at 24. The short answer to
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this is that the availability of alternative forms of communication is, as the Court has
discussed, a meaningful element in the analysis of the propriety of restrictions on
commercial speech. And under Central Hudson, a governmental entity may regulate
non-misleading commercial speech only if there is a "fit between the legislature's ends
and the means chosen to accomplish those ends." Posadas, 478 U.S. at 341. In the
present case, the City has presented uncontroverted evidence that shows that the
volume of commercial signage affects the City's asserted interests in a way that
noncommercial signage does not. Any other restriction that the City might choose to
impose in the future likewise will have to pass muster under Central Hudson and other
applicable decisional law.
5.
Conclusion
In sum, the Court concludes that the City's sign ordinance comports with Central
Hudson as a permissible regulation of commercial speech. The ordinance directly
advances the City's interests, its exemption of noncommercial signs does not render it
underinclusive, and it is not more extensive than is necessary to serve the City's
asserted interests.
B.
Vagueness
Next, RCP asserts that the sign ordinance is void for vagueness due to its failure
to define its key term, "commercial advertising material." Before addressing the merits
of RCP's argument, the Court must address whether RCP has standing to assert a
vagueness challenge.
1.
Standing
The City argues that RCP lacks standing to bring a vagueness challenge. Under
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Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), "[a] plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others." Id. at 18-19. RCP correctly contends, however, that
the sign ordinance does not "clearly proscribe" its conduct. RCP, a non-profit
organization, advertised a film that exhorts revolutionary political change. Even though
there was an admission fee, it would be difficult to say that its posters clearly constituted
"commercial advertising material." RCP is in a similar position to the plaintiff who
asserted a vagueness challenge in Buzdum v. Village of Germantown, No. 06-C-159,
2007 WL 3012971 (E.D. Wis. Oct. 12, 2007). The court in that case concluded the
plaintiff had standing to challenge terms in an ordinance regulating "sexually oriented
businesses" because the plaintiff, an individual who occasionally attempted to present
nude or semi-nude dancing in his tavern, could reasonably doubt his conduct was
covered by the ordinance. Id. at *18-19. RCP has similarly engaged in conduct
reasonably viewed as on the margins of the coverage of the sign ordinance, the
opposite of conduct that was "clearly proscribed." As a result, RCP possesses standing
to bring a vagueness challenge.
2.
Merits
Even though the Court has determined that the First Amendment does not
prohibit the City from distinguishing between commercial and non-commercial speech in
regulating signs on City property, that does not insulate the sign ordinance from scrutiny
on other grounds. RCP also challenges the ordinance's ban on posting "commercial
advertising material" on the ground that this term, which the ordinance does not define,
is unconstitutionally vague.
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The Due Process Clause does not require "perfect clarity and precise guidance"
in statutory enactments. Ward v. Rock Against Racism, 491 U.S. 781, 894 (1989). To
sustain a vagueness challenge, a plaintiff must show the law "fails to define the offense
with sufficient definiteness that ordinary people can understand what conduct is
prohibited and it fails to establish standards to permit enforcement in a nonarbitrary,
nondiscriminatory manner." Sherman v. Koch, 623 F.3d 501, 519 (7th Cir. 2010). And
the degree of vagueness that the Constitution tolerates partly depends in part on the
nature of the enactment; for example, more vagueness is typically tolerated in a statute
that imposes civil as opposed to criminal penalties. Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982); see also Sherman, 623
F.3d at 519. When, however, First Amendment rights are at stake as they are in this
case, "rigorous adherence" to the standards of due process is required. FCC v. Fox
Television Stations, Inc., 567 U.S. 239, 253-54 (2012).
RCP argues that the sign ordinance is impermissibly vague because it leaves
the term "commercial advertising material" undefined. This is particularly problematic,
RCP argues, for persons or organizations wanting to post signs that arguably involve
both commercial and noncommercial messages. That is the situation with RCP's sign.
It advertised an essentially political event (the showing of a film with a political
message) that involved payment of money (a modest fee for admission). It is also easy
to come up with other situations in which a person or organization wanting to post a sign
would find it quite difficult to know which side of the line it was on. For instance, a
political candidate who posts a sign featuring a link to her campaign website
conceivably could run afoul of the sign ordinance—if, say, the website offered items for
22
sale—but how would she know for sure? And a business that wanted to post signs
supporting a Fourth of July celebration, a gay pride event, or an anti-gun control rally
and identify its business and address on the sign would have an equally difficult time
determining whether City officials would consider its sign to be a "commercial
advertising material."
Significant evidence supporting RCP's vagueness claim comes from the City
itself. In its responses to RCP's interrogatories, the City said that it defines "commercial
advertising material" as "printed material that offers goods or services in exchange for
money or other forms of remuneration; that reference, describe, or promote goods or
services that may be so offered; or that reference, describe, or promote businesses or
other enterprises that offer such goods or services." Def.'s Resp. to Pl.'s LR 56.1 Stmt.
¶ 34.
But the City's designated Rule 30(b)(6) witness regarding enforcement of the
sign ordinance by the Department of Transportation testified that it prohibits any posting
affixed to City property, irrespective of what the sign says. Id. ¶ 35. And Cole Stallard,
a deputy commissioner of the City's Department of Streets and Sanitation, testified
during his deposition that a poster distributed by RCP with information about its political
philosophy, invited people to joint its mailing list, and offered a way to make donations
would be a "commercial advertisement." Id. ¶ 73. He also stated that the poster for
which RCP was ticketed would have been a "commercial advertisement" and prohibited
even if it just promoted free online viewing of RCP's film and did not list a ticket price for
a live showing, because the poster refers to "Revolution Books," which "seems to be an
entity that sells books." Id. ¶ 61, 63. These definitions may all overlap, but they also
have fundamental inconsistencies.
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A reasonable person likely would not believe that an exchange of money is
contemplated is enough to make a message "commercial advertising material" under a
law that does not define that term. What about, for example, a flyer posted by an
educational institution promoting an event with a presentation by a political figure for
which a modest admission fee (say $5) is charged? To cite another example, the local
Federal Bar Association chapter periodically invites members—particularly younger
members—to have lunch with a federal judge in small groups, and charges $10 to
partially defray the cost of lunch. These events, from the FBA's perspective, serve an
educational purpose; most reasonable people would not consider this to be commercial
activity. How would a reasonable person determine whether a flyer promoting such an
event, posted on a light pole on Plymouth Court, right outside of The John Marshall Law
School, would constitute prohibited "commercial advertising material"? Or what if the
flyer referenced the event but made no express reference to the price for lunch and just
referenced the FBA chapter's website? A reasonable person would have no way of
knowing whether such flyers constituted commercial advertising material under the
ordinance, which does not define that term, the key term in the ordinance. Under the
definition cited by the City in its interrogatory answer and at least some of the alternative
definitions that City representatives offered, these flyers potentially would be prohibited.
The Court concludes that for these reasons and others, the ordinance's failure to
define "commercial advertising material" renders the ordinance unconstitutionally
vague, given the impact on activity protected under the First Amendment. Parties like
RCP, who wish to communicate a political message through a ticketed event, have no
guidance on whether their sign will violate the ordinance. Likewise, enforcing officials
24
are enabled to make wholly subjective and arbitrary decisions—raising the possibility
that signs promoting unpopular causes or events may draw a citation, while others will
escape sanction. The absence of a definition of this key term is fatal to the ordinance.
In International Society for Krishna Consciousness v. Rochford, 585 F.2d 263
(7th Cir. 1978), the Seventh Circuit affirmed a district court's decision to overturn as
unconstitutionally vague regulations enforced in Chicago's airports. Id. at 269. In
relevant part, the regulations stated that "[n]o person except concessionaires and other
lessees as permitted by contract with the City of Chicago shall sell anything for
commercial purposes." Id. at 273. The plaintiff, "a religious organization that requires
its members to disseminate and sell its tracts and solicit contributions in public areas,"
challenged the regulation on vagueness grounds. Id. at 267. The plaintiff contended
that the regulation was too vague to resolve whether their practice of selling religious
tracts was "commercial" in character. Id. at 269-70. The Seventh Circuit held that "the
provisions are not drafted in a manner sufficiently precise to avoid the possibility of
improper application by officials. . . . [The challenged regulation] could be viewed as
prohibiting the sale of a religious tract for 'commercial purposes' either by the one
wishing to sell or by the official charged with enforcement." Id. at 270.
The sign ordinance suffers from the same problems as the airport regulations at
issue in the Krishna Consciousness case. RCP, a political advocacy organization, is no
more able to determine which signs promoting its activities and events constitute
"commercial advertising material" under the sign ordinance than the religious
organization in Krishna Consciousness was able to determine if it was engaged in a
"commercial purpose" in selling its religious materials. Id. at 270. Moreover, enforcing
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officials lack any criteria of the type needed to structure decision-making, which makes
arbitrary or discriminatory enforcement more likely. "[I]n some contexts, the failure to
define the distinction between commercial and noncommercial speech might result in an
impermissible delegation of authority." Lavey v. City of Two Rivers, 171 F.3d 1110,
1116 (7th Cir. 1999). Businesses sometimes engage in noncommercial conduct, like
promoting a particular group or policy, and noncommercial entities sometimes engage
in arguably commercial conduct, like selling tickets to a political film. The sign
ordinance provides no guidance to aid enforcement officials in determining where the
line between a violation and non-violation is drawn, leaving it to officials to rely on
"wholly subjective" judgments in enforcing the ordinance. See United States v.
Williams, 553 U.S. 285, 306 (2008).
The fact that some types of signs clearly constitute commercial advertising and
thus are obviously subject to the ban is not determinative. The Supreme Court's cases
in this area "squarely contradict the theory that a vague provision is constitutional
merely because there is some conduct that clearly falls within the provision's grasp."
Johnson v. United States, 135 S. Ct. 2551, 2561 (2015). For example, a statute barring
"unjust or unreasonable" grocery prices is impermissibly vague, even if charging $1,000
for a pound of sugar plainly would be unreasonable, and a statute prohibiting "annoying"
conduct on sidewalks is likewise impermissibly vague, even if spitting on someone
clearly would be annoying conduct. Id. For this reason, the Court disagrees with the
City's contention that the sign ordinance is not vague because there are clear examples
of "commercial advertising material," such as signs advertising oven repair, insurance,
car washes, or tax preparation. Def.'s Mem. in Supp. of Mot. for Summ. J. at 19. Even
26
if there are instances in which the meaning of "commercial advertising material" can be
clearly understood, this does not eliminate the fact that there are significant gaps in
which individuals wanting to post signs and enforcing officials are left to make subjective
judgments regarding compliance.
The City's history of interpretation and enforcement of the ordinance
underscores the vague character of the sign ordinance. As indicated earlier, RCP
points to deposition testimony from several City employees who provided conflicting
accounts of what constitutes "commercial advertising material." A deputy commissioner
with the Department of Transportation and tasked with enforcing the sign ordinance
testified that a sign containing a website address in which goods and services are
offered for sale would be restricted by the sign ordinance. Def.'s Resp. to Pl.'s LR 56.1
Stmt. ¶ 37. Another official stated that an advertisement for a CD release would be
commercial, because, unless it said the CD was free, the advertisement is commercial.
Id. ¶ 41. Likewise, the City's enforcement history, including the ticket issued to RCP,
lends support to RCP's position, for it shows that individuals and officers must confront
cases in which their attempts to interpret the statute are unmoored from any guidance
or criteria. Def.'s LR 56.1 Reply Stmt. ¶ 81. The City argues that its enforcement
history is analogous to inconsistent enforcement evidence regarding a District of
Columbia ordinance, which the D.C. Circuit discounted in upholding the ordinance in Act
Now to Stop War & End Racism Coal. & Muslim Am. Soc'y Freedom Found. v. District
of Columbia, 846 F.3d 391 (D.C. Cir. 2017). But Act Now is distinguishable. The D.C.
Circuit discounted the significance of the enforcement record in that case because the
law in question contained a clear definition that cabined the discretion of law
27
enforcement personnel. Id. at 411. The present ordinance has nothing of the kind.
Similarly, the failure to adequately train the City employees who enforce the sign
ordinance is more significant in the absence of a definition of "commercial advertising
material."
The Court also disagrees with the City's contention that "commercial advertising
material" has a "common-sense meaning," because the facts required to prove a sign
fits within the ordinance are themselves unclear. Williams, 553 U.S. at 306 ("What
renders a statute vague is not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been proved; but rather the
indeterminacy of precisely what that fact is."). The City, while responding to RCP's
motion for summary judgment, states that a sign only falls within the sign ordinance if it
"include[s] commercial speech; i.e., promote a business or offer goods and services for
sale." Def.'s Reply in Supp. of Mot. for Summ. J. at 12. But is that really the fact to be
proven? The City also states that a sign falls within the sign ordinance if it
"reference[s]" a business—a fact that could apply to far more signs. Def.'s LR 56.1
Reply Stmt. ¶ 34. Under the definitions that the City has put forward, a sign that says
"Boycott Amazon.com" would run afoul of the ordinance under one definition, but not
another. See also Fox Television, 567 U.S. at 254 (the FCC's shifting indecency
standards meant that the government failed to provide broadcasters with the notice
sufficient for a "person of ordinary intelligence"). There is no commonly understood
common-sense meaning of "commercial advertising material," as the alternative
definitions offered by the City and its personnel make clear.
The Court also rejects the City's contention that it should not be required to add
28
what it calls "needless bloat" by affixing definitions to each term used in the municipal
code. "Commercial advertising material" is the sign ordinance's central term, the
primary point on which determination of a violation hinges. The City cites to Kolender v.
Lawson, 461 U.S. 352 (1983), to assert that due process does not require "impossible
standards of clarity." But the Supreme Court went on to say, in the same sentence, that
the law at issue did not pose "a case where further precision in the statutory language is
either impossible or impractical." Id. at 361. The same is true here.
Finally, the Court is not persuaded by the City's reliance upon Minority Television
Project Inc. v. FCC, No. C-06-02699EDL, 2007 WL 4570293 (N.D. Cal. Dec. 21, 2007).
Minority Television Project addressed whether the term "promote" was vague, id. at *11,
which is not germane to the issues before the Court. The case also resolved a motion
to dismiss, not a motion for summary judgment. Id. at *12. The case does not provide
persuasive guidance for the Court on the question presented here.
For these reasons, the Court concludes that the sign ordinance is impermissibly
vague insofar as it depends on a finding that a sign is "commercial advertising material,"
due to the absence of a definition of that critical term.
C.
Overbreadth
Because the Court has concluded that the sign ordinance is impermissibly
vague, it need not address RCP's overbreadth challenge. See Kolender, 461 U.S. at
359 n.8 (noting the overlap between vagueness and overbreadth, particularly in the First
Amendment context).
Conclusion
For the foregoing reasons, the Court grants plaintiff's motion for summary
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judgment [dkt. no. 66], finding that the absence of a definition of the term "commercial
advertising material" in Chicago Municipal Code § 10-8-320 renders that provision
unconstitutionally vague. The Court denies defendant's motion for summary
judgment[dkt. no. 59]. The Court denies RCP's motion to exclude the City's expert
witnesses [dkt. no. 56]. Counsel are to draft an appropriate judgment embodying the
Court's conclusions and are to present an agreed proposed form of judgment, or
alternative proposed forms if they are unable to agree, by no later than April 4, 2018.
The case is set for a status hearing on April 5, 2018 at 9:30 a.m.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: March 31, 2018
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