Vugo, Inc. v. City of Chicago

Filing 47

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 8/9/2017. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Vugo, Inc., Donald Deans,
Denise Jones, Glouster Brooks,
and Patricia Page,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,

v.
City of Chicago, an Illinois
municipal corporation
Defendant.

No. 17 C 864

Memorandum Opinion and Order
In
whom

I

this

action,

collectively

plaintiffs
refer

as

and

plaintiff-intervenor

“plaintiffs”

unless

(to

otherwise

specified)1 challenge the constitutionality of a City of Chicago
ordinance prohibiting commercial advertising on the interior or
exterior of “transportation network vehicles,” i.e., vehicles
driven by independent contractors for companies such as Uber and
Lyft. Before me is the City’s motion to dismiss both complaints—
1

The original plaintiff was Vugo, a technology company offering
a tablet-based advertising platform that enables rideshare
drivers to display location-sensitive advertisements inside
their vehicles. In an amended complaint, Vugo added four
individual rideshare drivers as co-plaintiffs. See DN 15. In
addition, I later granted leave to intervene to another
rideshare driver who seeks to represent a class of similarly
situated individuals. See Order of 04/25/2017, DN 23. Where
clarification is necessary, I refer to the plaintiffs named in
the Amended Complaint as the “original plaintiffs” and to the
plaintiff-intervenor as the “intervenor.”
1

which

in

identical
failure

all

ways

relevant

claims—for

to

state

lack

an

to

of

the

subject

actionable

instant
matter

claim.

For

motion

assert

jurisdiction
the

reasons

and
that

follow, I deny the motion.
I.
The complaints allege the following facts, which I take as
true for present purposes. In May of 2014, the City passed an
ordinance

regulating

“transportation

network

providers,”

“transportation network vehicles,” and “transportation network
drivers.” (These are the entities, vehicles, and providers of a
service

commonly

known

as

“ridesharing,”

the

best-known

of

which, as noted above, are operated by the companies Uber and
Lyft. See Ill. Transp. Trade Ass’n v. City of Chicago, 839 F.3d
549,

595

(7th

Cir.

2016)).

“[c]ommercial

advertisements

exterior

or

in

vehicle.”

Chi.

this

the

Mun.

restriction

The

shall

interior
Code

violates

of

ordinance
not
a

§ 9-115-130.
their

rights

be

provides

displayed

transportation
Plaintiffs
under

the

on

that
the

network

allege
First

that
and

Fourteenth Amendments of the federal constitution and equivalent
provisions of the Illinois constitution.
Vugo is a technology company that “operates a software-only
mobile media network that allows ridesharing drivers to display
advertising and other media (such as news and entertainment) in
their vehicles.” Am. Cmplt. at ¶ 16. To use Vugo, rideshare
2

drivers download the Vugo “app” onto their personal tablets,
then

mount

the

tablets

on

a

headrest

of

their

front

seats,

facing the rear passengers. Id. at ¶ 20. Passengers can interact
with the Vugo app during their ride, and the app displays ads
based on route-specific and other individualized data. Id. at
¶¶ 22-23. Vugo earns advertising revenue for displaying the ads,
a portion of which it pays to its drivers who use the app. Id.
at ¶ 24.
Vugo alleges that the ordinance prevents it from operating
its platform in Chicago, and the driver plaintiffs allege that
it prevents them from displaying revenue-generating commercial
advertisements on or in their vehicles. One driver—plaintiff,
Patricia Page, alleges that after the ordinance took effect, she
was

ticketed

for

violating

the

commercial

advertising

ban

because the vehicle she used as a transportation network vehicle
displayed exterior advertising for her face-painting business.
Am. Cmplt. at ¶ 40. All plaintiffs complain that the advertising
ban

violates

protection

their

right

guarantees

to

because

free

speech

drivers

of

and

violates

taxis

and

equal

ordinary

passenger vehicles are not prohibited from displaying commercial
advertisements.
II.
A. Plaintiffs’ Free Speech Claims

3

The

City

asserts

two

bases

for

dismissing

plaintiffs’

claims under the First Amendment and Section 4 of the Illinois
Constitution. First, it argues that none of the plaintiffs has
standing

to

advertising,

challenge
and

that

the
only

ordinance’s
plaintiff

ban

Page

on

has

interior

standing

to

challenge the exterior ad ban. Second, it argues that plaintiffs
have not stated an actionable constitutional claim under either
the First or the Fourteenth Amendment.
The

City’s

standing—a

standing

concept

controversy

not

requirement

argument

derived
and

from

“similar

focuses

on

Article

III’s

to

requirement

the

prudential
case-orof

Federal Rule of Civil Procedure 17 that every action must be
prosecuted in the name of the real party in interest.” G & S
Holdings LLC v. Continental Cas. Co., 697 F.3d 534, 541 (7th
Cir. 2012). Prudential standing principles ensure that litigants
assert

their

own

rights,

not

those

of

a

third

party.

Id.

Although the City frames its argument in jurisdictional terms
and seeks dismissal on that basis pursuant to Rule 12(b)(1),
prudential standing is not a jurisdictional requirement. See id.
at 540 (objections to prudential standing can be waived if not
preserved;

court

may

raise

lack

of

prudential

standing

sua

sponte but is not required to do so). See also Sec’y of State of
Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 n. 5 (1984)
(“prudential

limitations

add

to
4

the

constitutional

minima”

required for federal jurisdiction under Article III); Singleton
v. Wulff, 428 U.S. 106, 113 (1976) (prudential considerations
counsel

caution

controversy,

by

even

federal

one

courts

within

their

“before

resolving

constitutional

power

a
to

resolve”). The City does not challenge, nor do I perceive any
basis

for

questioning,

plaintiffs’

Article

III

standing.

Accordingly, my jurisdiction is secure regardless of whether the
City’s prudential standing argument has substantive merit. As
explained below, it does not.
The City posits that because none of the plaintiffs (except
for Page) alleges a desire “to communicate about products or
services that they themselves offer for sale,” or “creates or
seeks

to

display

its

own

advertising

content,”

none

has

a

protected First Amendment interest in the commercial speech the
ordinance prohibits. In the City’s view, plaintiffs’ interest
(again with the exception of Page) is purely an economic one—the
desire to earn advertising revenue—that the First Amendment does
not

protect.

Amendment

Accordingly,

interests

the

City

potentially

argues,

implicated

by

the
the

only

First

ordinance

belong to the advertisers and cannot be vindicated in a suit
brought by plaintiffs.
The City relies heavily on The Pitt News v. Fisher, 215
F.3d 354, 366 (3d Cir. 2000), but neither that case nor the
City’s remaining authorities support its position. In Pitt News,
5

the

Third

Circuit

prudential

standing

advertisers,

a

held
to

state

businesses

that

published

media.

that

student

challenge,

statute

advertised
But

a

the

on

imposing
alcoholic

court

newspaper

behalf

of

criminal

its

that

former

sanctions

beverages

concluded

lacked

on

in

school-

the

paper’s

alleged loss of advertising revenue as a result of the statute’s
enforcement amounted to a sufficient injury-in-fact to trigger
Article

III

standing

and

proceeded

to

the

merits

of

the

newspaper’s own First Amendment claim. So while the Pitt News
court’s lengthy discussion of prudential standing principles,
including its analysis of seminal cases such as Eisenstadt v.
Baird, 405 U.S. 438 (1972), Broadrick v. Oklahoma, 413 U.S. 601
(1973),

Village

of

Schaumburg

v.

Citizens

for

a

Better

Environment, 444 U.S. 620 (1980), and Sec’y of State of Maryland
v. Joseph H. Munson Co., Inc., 467 U.S. 947 (1984), may provide
a compelling rationale for prohibiting plaintiffs from asserting
claims properly belonging to their advertisers, nothing in the
court’s analysis suggests that plaintiffs cannot assert their
own First Amendment claims challenging the ordinance. To the
contrary, the decision suggests the opposite, as the court held
affirmatively that the newspaper had standing to assert its own
First Amendment claim based on loss of advertising income.2

2

Although the City does not challenge plaintiffs’ Article III
standing, it is worth noting that the driver plaintiffs’ claim
of an injury-in-fact resulting from the speech restraint here is
6

At

all

events,

the

City

cites

no

authority

for

the

proposition that the First Amendment protects a speaker’s right
to engage in commercial speech only when the speaker is the
original author of the message, or when the message is about the
speaker’s own product or service. If that were the rule, the
plaintiffs’ claims in cases such as Metromedia, Inc. v. City of
San

Diego,

First

453

U.S.

Amendment

490

(1981)

(upholding

to

restrictions

challenge

billboard
on

owners’

off-premises

signs), Lavey v. City of Two Rivers, 171 F.3d 1110 (7th Cir.
1999)

(rejecting

Amendment

on

challenge

the
to

merits

permit

a

billboard

requirements),

owner’s

and

AMSAT

First
Cable

Ltd. v. Cablevision of Connecticut Ltd. Partnership, 6 F.3d 867,
871

(2nd

Cir.

1993)

(acknowledging

a

cable

operator’s

First

Amendment right to “disseminate” speech but rejecting its claim
on

the

grounds.3

merits),

could

all

have

been

resolved

on

standing

So while the City characterizes plaintiffs as mere

“conduits” for the protected speech of others, rather than as

arguably more compelling than the newspaper’s claim in Pitt
News. In Pitt News, the challenged restraint was a statute
criminalizing the conduct of third-party advertisers, whereas
here, the ordinance facially restricts the driver plaintiffs’
own conduct.
3
To be fair, objections to prudential standing can be waived, as
noted above, and the issue does not appear to have been raised
in connection with the First Amendment claims in either Lavey or
AMSAT Cable. Nevertheless, it is the City that bears the burden
of showing that plaintiffs’ claims should be dismissed on this
basis, and cases such as these, which proceeded to the merits of
claims brought by plaintiffs in circumstances materially similar
to those here, tend to suggest the opposite.
7

speakers

who

distinction

are

is

communicating

not

dispositive

original

that

whether

of

content,
plaintiffs

have

enforceable First Amendment rights. See City of Los Angeles v.
Preferred Communications, Inc., 476 U.S. 488, 494 (1986) (cable
operator

partakes

of

speech

both

by

communicating

original

content and by exercising editorial discretion in retransmitting
the communications of others). For these reasons, I conclude
that

plaintiffs

have

standing

to

assert

their

free

speech

claims.
Clearing
however.

To

the

standing

survive

the

hurdle

City’s

is

just

motion,

a

threshold

plaintiffs

step,

must

also

allege plausibly that the ordinance’s restriction on commercial
advertising in or on transportation network vehicles fails the
test

established

in

Central

Hudson

Gas

&

Electric

Corp.

v.

Public Service Commission, 447 U.S. 557 (1980). Before turning
to this question, however, I pause to explain why plaintiffs are
mistaken in their view that a more stringent test than the one
articulated in Central Hudson should apply.
Constitutional

protection

for

commercial

speech

is

of

relatively recent vintage. Until 1976, the Court “adhered to the
broad rule laid out in Valentine v. Chrestensen, 316 U.S. 52,
54, 62 S.Ct. 920, 921, 86 L.Ed. 1262 (1942), that, while the
First Amendment guards against government restriction of speech
in most contexts, the Constitution imposes no such restraint on
8

government as respects purely commercial advertising.” Florida
Bar v. Went For It, Inc., 515 U.S. 618, 622 (1995) (internal
quotation

marks

omitted).

But

the

Court

“changed

course”

in

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council,

Inc.,

argument

that

425

U.S.

commercial

748

(1976),

speech

when

lacks

it

all

rejected

First

the

Amendment

protection. Id.
In

Central

Hudson,

the

Court

explained

that

while

commercial speech, as a category, is not wholly excluded from
constitutional protection, it is entitled to a lesser degree of
protection than “core” First Amendment expression. 447 U.S. 563,
578. The Court thus established a framework for “intermediate
scrutiny”
speech

to

determine

violates

the

whether

a

Constitution.

restriction
Under

this

on

commercial

framework,

the

government may freely regulate misleading commercial speech, or
commercial

speech

that

concerns

unlawful

activity.

The

government may regulate commercial speech that does not fall
into either of these categories if: 1) the government has a
substantial

interest

in

support

of

the

regulation;

2)

the

restriction directly and materially advances that interest; and
3) the regulation is narrowly drawn. Id. at 564-565.
In the years since deciding Central Hudson, the Court has
“engaged
Amendment

in

considerable

protection

for

debate

about

commercial
9

the

contours

speech,”

Retail

of

First

Digital

Network, LLC v. Prieto, ---F.3d---, 2017 WL 2562047, at *6 (9th
Cir. 2017). Indeed, “several Members of the Court have expressed
doubts about the Central Hudson analysis and whether it should
apply in particular cases.” Lorillard Tobacco Co. v. Reilly, 533
U.S.

525,

follow

554

the

(2001).

Central

Nevertheless,
Hudson

the

framework

Court
and

continues

to

apply

its

to

intermediate scrutiny standard in commercial speech cases, even
where

they

(evaluating

involve
state

content-based

statute

directed

restrictions.
to

cigarette

See

id.

advertising

under the Central Hudson framework); see also Retail Digital
Network, 2017 WL 2562047, at *6 (noting that the Supreme Court
“repeatedly

has

declined...to

fundamentally

alter

Central

Hudson’s intermediate scrutiny standard”); Jordan v. Jewel Food
Stores, Inc., 743 F.3d 509, 515-16 (7th Cir. 2014) (“[w]hatever
the

justification,

commercial-speech

the

Court

has

jurisprudence

not

despite

strayed

calls

for

from
it

to

its
do

so.”).
Notwithstanding the Court’s ongoing adherence to

Central

Hudson’s intermediate scrutiny standard, plaintiffs argue that
the

ordinance

is

subject

to

strict

scrutiny

because

it

establishes content-based restrictions. Plaintiffs’ view rests
on

the

misguided

belief

that

restrictions

on

non-misleading

commercial speech that does not concern unlawful activity are
per se content-based, and thus subject to the higher level of
10

scrutiny the Court applies to such restraints. Plaintiffs argue
that Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227
(2015),

and

Sorrell

v.

IMS

Health

Inc.,

564

U.S.

552,

565

(2011), support this view.
In Reed, the Supreme Court struck down a town code that
distinguished among “Temporary Directional Signs” (defined as
signs conveying “the message of directing the public to church
or some other ‘qualifying event’”), “Political Signs” (“designed
to

influence

Signs”

the

(intended

otherwise

outcome
to

defined)

of

an

election”),

communicate

among

other

“a

and

message

categories,

or

and

“Ideological
ideas”
that

not

imposed

different restrictions on each category. 135 S. Ct. at 2227. The
Court explained that the challenged code “singles out specific
subject matter for differential treatment, even if it does not
target

viewpoints

messages

are

concerning

a

given

within
more

political

that

subject

favorable

candidate,

matter.

treatment

which

are

Ideological

than

messages

themselves

given

more favorable treatment than messages announcing an assembly of
like-minded

individuals.

That

is

a

paradigmatic

example

of

content-based discrimination.” Id. at 2230.
In Sorrell, the Court struck down a statute enacted by the
state

of

healthcare

Vermont
entities

prohibiting
of

specific

the

disclosure

information—the

by

certain

prescribing

practices of doctors—for marketing purposes. The Court examined
11

the text of the statute and observed that it “gives possessors
of

the

information

broad

discretion

and

wide

latitude

in

disclosing the information, while at the same time restricting
the information’s use by some speakers and for some purposes,
even while the State itself can use the information to counter
the speech it seeks to suppress.” 564 U.S. at 580. The Court
concluded,

“the

State

has

burdened

a

form

of

protected

expression that it found too persuasive. At the same time, the
State has left unburdened those speakers whose messages are in
accord with its own views.” Id.
The ordinance at issue in this case cannot reasonably be
compared to the legislation in either Reed or Sorrell. On its
face, the ordinance is a broad ban on commercial advertising
that

applies

vehicles.

The

in

a

ban

narrow
does

medium:

not

transportation

distinguish

among

network

products

or

services advertised, nor does it single out certain speakers,
subject

matters,

or

purposes

for

differential

treatment.

Plaintiffs seize on isolated statements, in Reed and Sorrell
respectively, that laws regulating speech based on its “function
or purpose” are content-based, 135 S. Ct. at 2227, and that a
statute

that

particular

“disfavors

content,”

564

marketing”
U.S.

at

restricts
564,

to

“speech
argue

with

that

a

any

governmental restraint on commercial speech, unless directed to
misleading speech or to speech concerning an unlawful activity,
12

is per se content based and thus subject to strict scrutiny. No
court has interpreted Reed or Sorrell so broadly, however, and
the decisions themselves do not suggest that the Court intended
such a sweeping shift in the law. Indeed, notwithstanding its
statement in Reed that “function or purpose” distinctions are
content based, the Court ultimately rested its decision on the
ground that the challenged code “single[d] out specific subject
matter for differential treatment.” 135 S. Ct. at 2230 (emphasis
added). And while the Court applied “heightened” scrutiny to the
commercial speech restrictions in Sorrell, it is far from clear
that

this

standard

differed

from

the

one

Central

Hudson

requires.4
For the foregoing reasons, I conclude that the ordinance
must be analyzed under the Central Hudson framework and turn to
4

It is true that Justice Breyer, in his concurring opinion in
Reed, cited Sorrell for the observation that “the Court has
applied the heightened ‘strict scrutiny’ standard even in cases
where the less stringent ‘commercial speech’ standard was
appropriate.” 135 S. Ct. at 2235 (Breyer, J., concurring in the
judgment). Nevertheless, the Seventh Circuit does not appear to
view Sorrell as requiring a higher standard than Central Hudson.
See, e.g., American Civil Liberties Union of Illinois v.
Alvarez, 679 F.3d 583, 604 (7th Cir. 2012) (implicitly applying
the Central Hudson framework to explain that “[i]n commercialspeech cases, the government must establish that the challenged
statute ‘directly advances a substantial governmental interest
and that the measure is drawn to achieve that interest.’”)
(quoting Sorrell at 2667-68); Ezell v. City of Chicago, 651 F.3d
684, 708 (7th Cir. 2011) (holding that intermediate scrutiny
applies to commercial speech restrictions, citing Sorrell and
other cases). Meanwhile, the Ninth Circuit has affirmatively
held that “Sorrell did not modify the Central Hudson standard.”
Retail Digital Network, LLC v. Prieto, ---F.3d---, 2017 WL
2562047, at *6 (9th Cir. 2017).
13

the

question

of

whether

plaintiffs’

allegations

and

other

materials I may consider at the pleadings stage establish that
it satisfies that standard. As an initial matter, plaintiffs
argue that whether the ordinance passes the Central Hudson test
cannot be determined at the pleadings stage because the City
must support its arguments with evidence. While it is true, as
plaintiffs point out, that where a governmental speech restraint
implicates

First

Amendment

interests,

“the

State

bears

the

burden of justifying its restrictions,” Board of Trustees of the
State University of New York v. Fox, 492 U.S. 469, 480 (1989),
the government may invoke “common-sense judgment” as well as the
history and text of the legislation, and need not, in all cases,
offer “studies, statistics or other empirical evidence” to carry
its burden. Act Now to Stop War and End Racism Coalition and
Muslim

American

Columbia,

846

Society

F.3d

391

Freedom
(D.C.

Foundation

Cir.

2017).

v.
See

District
also

of

Second

Amendment Arms v. City of Chicago, 135 F. Supp. 3d 743, 756
(N.D.

Ill.

2015)(“the

plain

text

of

a

law,

its

legislative

history, and simple common sense could allow a district court to
dismiss a facial challenge to a provision restricting commercial
speech at the pleading stage.”) (citing Fla. Bar, 515 U.S. at
628). Accordingly, I decline plaintiffs’ invitation to deny the
City’s

motion

out

of

hand

on

the

ground

that

the

arguments cannot be entertained on a motion to dismiss.
14

City’s

As noted above, the first prong of the test requires me to
ascertain whether the City has a substantial interest in support
of the ordinance. In this connection, the City asserts three
interests: traffic safety, aesthetics, and passenger comfort.
Plaintiffs concede that the first two are substantial government
interests,

so

I

need

not

address

them

further.

Plaintiffs

disagree, however, that the City has a substantial interest in
“passenger comfort.” And while I agree with the City that even a
single substantial interest is sufficient to satisfy the first
prong of the analysis, it is not obvious that the interests
plaintiffs

concede

support

the

ordinance’s

provision

banning

interior advertising. Accordingly, I consider whether passenger
comfort is indeed a substantial government interest.
The City argues that passenger comfort is a substantial
interest

in

the

context

of

speech

directed

to

a

“captive

audience.” Lehman v. City of Shaker Heights, 418 U.S. 298, 304
(1974)

(upholding

ban

on

political

advertisement

in

public

transportation); see also Anderson v. Milwaukee County, 433 F.3d
975,

980

(7th

distribution
buses).

on

“in

2006)

literature

Plaintiffs

interest
based

of

Cir.

argue

protecting

their

(upholding
to

“captive

that

the

people

from

content,”

regulation

but

this

audience”

City

has

hearing

no

prohibiting
riding

legitimate

certain

argument

city

rests

messages
on

the

misguided premise that the ordinance establishes impermissible
15

content-based

speech

restrictions.

As

explained

above,

the

ordinance is not a content-based restriction simply because it
is directed to commercial speech. Accordingly, I conclude that
the City’s long-recognized interest in protecting the public,
and particularly a captive audience, from unwanted intrusions
extends

to

safeguarding

the

comfort

of

passengers

riding

in

vehicles on the public way.
Where the City’s motion falls short, however, is on the
second and third prongs of the Central Hudson analysis: whether
the

ordinance

directly

and

materially

advances

the

City’s

asserted interests, and whether it is “narrowly drawn” to serve
those

interests.

First,

while

I

am

persuaded

that

the

City

generally has an interest in protecting captive audiences from
unwanted intrusion, I cannot determine from the pleadings alone
that rideshare passengers are sufficiently “captive” to interior
advertising to justify its wholesale ban under the ordinance.
For

example,

the

complaint

describes

Vugo’s

app

as

“interactive,” which suggests that passengers may be able to
turn off any messages they prefer not to see or to hear. Yet,
the ordinance prohibits interior commercial advertising in all
formats,

regardless

of

how

easy

or

difficult

it

may

be

for

passengers simply to turn it off, and thus is arguably overbroad
in that respect. See Erznoznik v. City of Jacksonville, 422 U.S.
205, 210-11 (1975) (“the burden normally falls upon the viewer
16

to avoid further bombardment of (his) sensibilities simply by
averting (his) eyes.”). Without further factual development, I
am

not

persuaded

commercial

that

the

advertisements

City’s
in

blanket

rideshare

ban

on

vehicles

interior
must

be

sustained as applied to plaintiffs’ proposed speech.
In addition, while there is no dispute that the exterior
advertising

ban

limits

the

total

quantum

of

potentially

distracting or aesthetically unpleasant advertising on the road,
it

is

not

obvious

from

the

pleadings

that

the

ordinance’s

restrictions have a material effect on either traffic safety or
roadway appearance, and the City articulates no reasoned basis
for concluding that it does so. While the City states correctly
that it “may justify its restriction by reference to the text of
the enactment, history, logic, or common sense,” Mem. at 4, it
cites

neither

the

text

nor

the

history

of

the

ordinance

in

support of its Central Hudson analysis, while its “commonsense”
arguments reduce largely to the truism that a limitation on
commercial

advertisements

results

in

fewer

commercial

advertisements and to speculation that the City “may reasonably
conclude that ridesharing vehicles will be on the road more
often than purely private vehicles” and thus present a greater
threat to the City’s interests. Mem. at 10. These arguments are
not persuasive. To justify the ordinance’s speech restriction,
the City “must demonstrate that the harms it recites are real
17

and

that

its

restriction

will

in

fact

alleviate

them

to

a

material degree.” Edenfield v. Fane, 507 U.S. 761, 771 (1993).
The

City

Metromedia,
summary

relies

but

that

judgment

heavily
case

after

was

on

the

decided

“extensive

Court’s
on

analysis

cross-motions

discovery”

and

does

in
for
not

support dismissal here, in the absence of a factual record. 453
U.S. at 497. Members of City Council of City of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789 (1984), and Supersign of
Boca Raton, Inc. v. City of Fort Lauderdale, 766 F.2d 1528 (11th
Cir. 1985), also cited by the City, were likewise decided on a
factual

record.

In

short,

the

City

has

not

shown,

on

the

pleadings, that the ordinance directly advances its substantial
interests
interests.

or

that

it

Accordingly,

is

narrowly

its

motion

tailored
to

to

serve

those

dismiss

Count

I

of

plaintiffs’ complaints is denied.5
B. Plaintiffs’ Equal Protection Claims
In Count II of their complaints, plaintiffs assert that the
ordinance violates the equal protection principles enshrined in
the federal and Illinois constitutions because it treats those
“seeking

5

to

advertise

in

transportation

network

vehicles

The Seventh Circuit has explained that “the Constitution of the
State of Illinois protects an individual’s right to free speech
only to the same extent that such speech is protected by the
Constitution of the United States.” Trejo v. Shoben, 319 F.3d
878, 884 n. 2 (7th Cir. 2003) (emphasis added). Accordingly, I
need not separately address plaintiffs’ free speech claim under
state law.
18

differently
situated
argues

from

people

vehicles

that

–

seeking

taxicabs.”

economic

to
Am.

regulations

advertise
Cmplt.

such

as

at
the

in

similarly

55.

The

City

ordinance

are

evaluated under the rational basis test, which carries a strong
presumption

of

validity.

The

City

cites

F.C.C.

v.

Beach

Commc’ns, Inc., 508 U.S. 307, 313-14 (1993), in which the Court
held that “[i]n areas of social and economic policy, a statutory
classification
infringes

that

neither

fundamental

proceeds

constitutional

along

suspect

rights

must

lines
be

nor

upheld

against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis
for

the

classification.”

proposition,
implicates

but
First

they

Plaintiffs

argue

Amendment

that

do

not

because

interests,

the

dispute
the

this

ordinance

classification

requires heightened scrutiny.
Plaintiffs cite Police Dept. of City of Chicago v. Mosley,
408 U.S. 92, 94-95 (1972), West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 638, 652 (1943), and other cases in
support of heightened scrutiny for their equal protection claim,
but all of these cases involve “core” First Amendment speech,
not commercial speech. And in Friedman v. Rogers, 440 U.S. 1, 17
(1979), the Court applied rational basis review to an equal
protection challenge that arose in the context of a commercial
speech restraint. Still, it is fair to say that the Court’s
19

commercial

speech

toward

greater

courts

have

jurisprudence

protection

more

recently

for

has

evolved

commercial

held

that

since

speech,

equal

Friedman

and

several

protection

claims

involving restrictions on commercial speech should be subject to
the same intermediate level of scrutiny that applies to First
Amendment claims under Central Hudson. See, e.g., Chambers v.
Stengel,

256

regulation

of

F.3d

397,

commercial

401

(6th

speech

is

Cir.

2001)

subject

(“[b]ecause

to

intermediate

scrutiny in a First Amendment challenge, it follows that equal
protection claims involving commercial speech also are subject
to the same level of review”) (citing R.A.V. v. City of St.
Paul, 505 U.S. 377, 385 (1992)); see also Am. Acad. of Implant
Dentistry v. Parker, No. A-14-CA-191-SS, 2014 WL 2808610 (W.D.
Tex. Jun. 20, 2014) (observing a “significant overlap between
the First Amendment claim based on commercial free speech and
the

equal

protection

claim

also

based

on

commercial

free

speech,” and finding “no compelling reason not to allow the
equal protection claim to proceed alongside the First Amendment
claim

when

they

will

likely

involve

litigation

of

the

same

issues.”)
The

City

does

not

appear

to

dispute

that

heightened

scrutiny should apply to plaintiffs’ equal protection claim if
their related free speech claim is allowed to proceed. Instead,
the City assumes that plaintiffs’ First Amendment claim will not
20

survive

its

motion

and

argues

that

with

no

protected

speech

interest at stake, the ordinance is subject only to rational
basis review (which plaintiffs do not dispute it survives), see
Reply, at 16, 17 (citing Foxxxy Ladyz Adult World, Inc. v. Vill.
of Dix, Ill., 779 F.3d 709, 719 (7th Cir. 2015), and St. John’s
United Church of Christ v. City of Chicago, 401 F. Supp. 2d 887,
901 (N.D. Ill. 2005)), and that even if intermediate scrutiny
applies, the ordinance survives for the same reasons it survives
plaintiffs’
Because

I

First
am

not

Amendment
persuaded,

challenge
however,

under
that

Central

Hudson.

plaintiffs’

First

Amendment claims fail as a matter of law under Central Hudson,
neither argument establishes the City’s entitlement to dismissal
of plaintiffs’ equal protection claim.
III.
For the foregoing reasons, the City’s motion to dismiss is
denied.
ENTER ORDER:

Elaine E. Bucklo
United States District Judge
Dated: August 9, 2017

21