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, )

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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 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

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