# Left Field Media LLC v. City of Chicago

> District Court, N.D. Illinois · October 5, 2015 · 137 F. Supp. 3d 1127

URL: https://www.frixlaw.com/law-library/cases/7234124

## Case

- **Full name:** LEFT FIELD MEDIA LLC v. CITY OF CHICAGO and Elias Voulgaris, Chicago Police Commander
- **Court:** District Court, N.D. Illinois
- **Decided:** October 5, 2015
- **Citations:** 137 F. Supp. 3d 1127; 2015 U.S. Dist. LEXIS 135632; 2015 WL 5881604
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Alonso
- **Judges:** Alonso, Mason
- **Cited by:** 8 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM OPINION AND ORDER
JORGE L. ALONSO, District Judge
Before the Court is (1) Magistrate Judge Mason’s Report and Recommendation of July 29, 2015, [63] (as amended on August 28, 2015 solely to add citations to hearing transcripts [78]), which is adopted in its entirety; and (2) plaintiffs motion for a preliminary injunction [33], which is denied.
BACKGROUND
Plaintiff, Left Field Media LLC (“Left Field”), is a, company that publishes a magazine called Chicago Baseball that is issued four times per year during the major league baseball season. Left Field sells the magazine for $2.00 on the public ways surrounding Wrigley Field before Chicago Cubs home games. This suit arises out of the events that occurred on April 5, 2015, the day of the Cubs’ 2015 home opener. Matthew Smerge, who owns Left Field and serves as the publisher and editor of Chicago Baseball, was selling the 'magazine bn the public way at the northeast corner of Clark and Addison Streets when Chicago Police Commander *1132 Elias Voulgaris approached Smerge and told him that he and his vendors had to move across the street and that Voulgaris would ticket any vendor he saw on the Cubs’ side of the street. Despite this warning, Smerge continued to sell magazines from the same spot, and about a half-hour later, Voulgaris issued him a ticket for selling Chicago Baseball in a no-peddling zone and warned Smerge that if he did not move to the other side of the street, he would be arrested. Smerge then moved across the street, where Left Field alleges that it suffered reduced sales.
Three days later, on April 8, 2015, Left Field filed this action, which seeks injunc-tive, declaratory, and monetary relief against Voulgaris and the City of Chicago (the “City”) for alleged violations of plaintiffs First Amendment rights. Plaintiff brings as-applied and facial challenges to three sections of the Chicago Municipal Code: (1) Section 4-244-140, which prohibits all peddling on the public ways adjacent to Wrigley Field (the “Adjacent-Sidewalks Ordinance,” which Smerge was ticketed for violating, R. 72-3); (2) Section 4-244-030, which requires peddlers to first obtain a peddling license (the “Peddler’s License Ordinance”); and (3) Section 10-8-520, which provides that no person other than a licensed peddler shall sell any article or service, except newspapers, on any public way. (R. 1, Compl.)
The day after filing this suit, plaintiff moved for a temporary restraining order (“TRO”) to enjoin defendants from interfering with plaintiffs access to the public sidewalks adjacent to Wrigley Field for the purpose of selling Chicago Baseball during Cubs home games. (R. 5.) This Court granted the motion, entered a TRO, and referred the case to Magistrate Judge Mason for a preliminary injunction hearing. The TRO was then extended by agreement at times and most recently by this Court until its ruling on plaintiffs preliminary-injunction motion.
On June 16, July 10, and July 21, 2015, Judge Mason held an evidentiary hearing on plaintiffs motion for a preliminary injunction. 1 In its motion, plaintiff seeks to enjoin defendants from enforcing the Adjacent-Sidewalks Ordinance and the Peddler’s License Ordinance. Judge Mason issued a Report and Recommendation on July 29, 2015, recommending that this Court deny plaintiffs motion. 2 (R. 63.) On August 13, 2015, plaintiff objected to Judge Mason’s Report and Recommendation as provided by Federal Rule of Civil Procedure 72 and 28 U.S.C. § 636 (b)(1). (R. 70.) On August 27, 2015, defendants responded to plaintiffs objections. (R. 76.)
DISCUSSION
A. Legal Standards
1. Standard of Review
“When a magistrate judge prepares a report and recommendation for a district court, the governing statute provides that the district court ‘shall make a de novo determination’ with respect to any contested matter.” Kanter v. C.I.R., 590 F.3d 410, 416 (7th Cir.2009) (quoting 28 *1133 U.S.C. § 636 (b)). The Court of Appeals has observed:
De novo review requires the district judge to decide the case based on an independent review of the evidence and arguments without giving any presumptive weight to the magistrate judge’s conclusion. The district judge is free, and encouraged, to consider all of the available information about the case when making this independent decision. A district judge may be persuaded by the reasoning of a magistrate judge or a special master while still engaging in an independent decision-making process.
Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir.2013) (citing United States v. Raddatz, 447 U.S. 667, 676 , 100 S.Ct. 2406 , 65 L.Ed.2d 424 (1980)). The district judge makes the ultimate decision to adopt, reject, or modify the magistrate judge’s recommendation. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir.2009); see also Fed.R.Civ.P. 72.
2. Preliminary Injunctions
“ ‘A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” Goodman v. Ill. Dep’t of Fin. & Prof'l Regulation, 430 F.3d 432 , 437 (7th Cir.2005) (brackets and emphasis omitted). (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 , 117 S.Ct. 1865 , 138 L.Ed.2d 162 (1997)). It is “often seen as a way to maintain the status quo until merits issues can be resolved at trial.” Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765 , 783 (7th Cir.2011). The Court of Appeals has described the proper analysis as follows:
In our circuit, a district court engages in a two-step analysis to decide whether such relief is warranted.. In the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) absent preliminary injunc-tive relief, he will süffer irreparable harm in the interim prior to a final resolution;- (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits. If the movant makes the required threshold showing, then the court proceeds to the second phase, in which it considers: (4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties (the “public interest”). The court weighs the balance of potential harms on a “sliding scale” against the movant’s likelihood of success: the more likely he is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in his favor.
Turnell v. CentiMark Corp., 796 F.3d 656, 661-62 (7th Cir.2015). The threshold for establishing likelihood of success is relatively low. U.S. Army Corps, 667 F.3d at 782. In First Amendment cases like this one, the likelihood of successes usually the decisive factor because the loss of First Amendment freedoms “unquestionably constitutes irreparable injury,”’ and “injunctions protecting First Amendment freedoms are always in the public interest.” Wis. Right To Life, Inc. v. Barland, 751 F.3d 804, 830 (7th Cir.2014).
B. The Adjacent-Sidewalks Ordinance . (§ 4-244-140)
Section 4-244-140, the Adjacent-Sidewalks Ordinance, provides as follows in relevant part:
No person shall peddle any merchandise on the sidewalk immediately adjacent to Wrigley Field; such sidewalk consisting of the north side of Addison Street, the east side of Clark Street, the south side *1134 of Waveland Avenue, and the west side of Sheffield Avenue. For purposes of this subsection (b), the term “sidewalk” shall mean that portion of the public' way-extending from the perimeter of "the Wrigley Field stadium structure to the street curb or curb line.
Chi., Ill., Mun. Code § 4-244-140(b). 3
Sidewalks like the ones outside Wrigley Field “are traditional public forums where the exercise of First Amendment rights is often most vibrant. As the Supreme Court has described the rationale for promoting broad access to public forums, ‘streets, sidewalks, parks and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights, cannot constitutionally be denied broadly and absolutely.’ ” Marcavage v. City of Chi., 659 F.3d 626, 630 (7th Cir.2011) (quoting Carey v. Brown, 447 U.S. 455, 460 , 100 S.Ct. 2286 , 65 L.Ed.2d 263 (1980)). “However, the fact that such rights cannot be denied ‘broadly and absolutely’ does not mean they cannot be curtailed at all. On the contrary, the time, place, and manner of a speaker’s activities, can be regulated without violating the First Amendment so long as the restrictions are (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels for communication.” Id. (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 , 103 S.Ct. 948 , 74 L.Ed.2d 794 (1983)).
After hearing testimony and reviewing the parties’ exhibits and briefs, Judge Mason determined that the Adjacent-Sidewalks Ordinance (hereinafter, in this séction of the opinion, the “Ordinance”) is content neutral on its face and a reasonable “time, place, or manner” regulation under the test set forth in Ward v. Rock Against Racism, 491 U.S. 781 , 109 S.Ct. 2746 , 105 L.Ed.2d 661 (1989). 4 In Judge Mason’s view, the Ordinance is valid under the First Amendment, so plaintiff has not shown a likelihood of success on the merits.
1. Content Neutrality
Plaintiff, citing Reed v. Town of Gilbert, Arizona, — U.S. —, 135 S.Ct. 2218 , 192 L.Ed.2d 236 (2015) and Norton v. City of Springfield, Illinois (“Norton II”), No. 35-3581, 2015 WL 4714073 (7th Cir. Aug. 7, 2015), first challenges Judge Mason’s determination that the Ordinance is content neutral.
Some background about Reed and Norton is required. In its first decision in the Norton proceedings, the Court of Appeals affirmed the district court’s denial of plaintiffs’ motion to preliminarily enjoin enforcement of the City of Springfield’s panhandling ordinance. Norton v. City of Springfield, Ill. (“Norton I”), 768 F.3d 713 (7th Cir.2014). In Norton I, the Court reasoned that the panhandling ordinance does not draw lines based on the content of anyone’s speech. Id. at 714, 717-18 . On June 18, 2015, the Supreme Court issued Reed . Shortly thereafter, in Norton II,the Court of Appeals granted plaintiffs’ petition for rehearing, applied Reed to the City of Springfield’s panhandling ordinance, reversed the judgment of the district court, and remanded the case for 'entry of an appropriate injunction. The Court explained:
Plaintiffs contend that the ordinance’s principal rulé—barring oral requests for money now but not regulating requests for money later—is a form of content discrimination.
*1135 The panel disagreed with that submission for several reasons. We observed that the ordinance does not interfere with the marketplace for ideas, that it does not practice viewpoint discrimination, and that the distinctions that plaintiffs call content discrimination appear to be efforts to make the ordinance less restrictive, which should be a mark in its favor. We summed up: “The Court has classified two kinds of regulations as content-based. One is regulation that restricts speech because of the ideas it conveys. The other is regulation that restricts speech because the government disapproves of its message. It is hard to see an anti-panhandling ordinance as entailing either kind of discrimination.” 768 F.3d at 717 (citations omitted). We classified the ordinance as one regulating by subject matter rather than content or viewpoint.
Reed understands content discrimination differently. It wrote that “regulation of speech is content based if a law applies tb particular speech because of the topic discussed or the idea or message expressed.” 135 S.Ct. at 2227 (emphasis added). Springfield’s ordinance regulates “because of the topic discussed”. The Town of Gilbert, Arizona, justified its sign ordinance in part by contending, as Springfield also does, that the ordinance is neutral with respect to ideas and viewpoints. The majority in Reed found that insufficient: “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 135 S.Ct. at 2228 . It added: “a speech regulation targeted at specific subject. matter is content based even if it does not discriminate among viewpoints within that subject matter.” Id. at 2230 .
Three Justices concurred only in the judgment in Reed. 135 S.Ct. at 2236-39 (Kagan, J., joined by Ginsburg & Breyer, JJ.). Like our original opinion in this case, these Justices thought that the absence of an effort to burden unpopular ideas implies the absence of content discrimination. But the majority held otherwise; that’s why these three Justices wrote separately. The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind , of speech from another by reference to its meaning now requires a compelling justification.
Our observation, 768 F.3d at 717 , that Springfield .has attempted to write a narrowly tailored ordinance now pertains to the justification stage of the analysis rather than the classification stage. But Springfield has not contended that its ordinance is justified, if it indeed represents content discrimination. As we said at the outset, the parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination. Reed requires a positive answer.
Norton II, 2015 WL 4714073 , at *1-2.
Plaintiff argues that Judge Mason’s “formulation of the meaning of ‘content-based,’ ” reliance on Norton I, and determination that the Adjacent-Sidewalks Ordinance is content neutral was mistaken in light.of Reed . (R. 70, Pl.’s Objections at 2.) 5 In plaintiffs view, “the City’s scheme of favoring one organ ,bf communication (newspapers) over all others (magazines, *1136 books, pamphlets, leaflets) amounts to content-based discrimination.” (Id. at 3.)
As Judge Mason pointed out, plaintiffs motion does not seek to enjoin the enforcement of the newspaper exemption in § 10-8-520. (R. 78, Am, R & R at 1145 n.4.) Yet plaintiffs sole basis for its argument that the Adjacent-Sidewalks Ordinance is content-based is the entirely separate newspaper exemption. (R. 70, Pl.’s Objections at 2-6.) By invoking the City’s “scheme,”' plaintiff assumes, without discussion, that the newspaper exemption in § 10-8-520 applies to the Adjacent-Sidewalks Ordinance. Defendants, for their part, note that Judge Mason as well as other courts 6 have assumed that the Ordinance exempts newspaper peddlers, and defendants contend that “whether such a carve-out exists is á question of state law properly decided by the Illinois courts” and “is not squarely presented in this case [because] Plaintiff does not contend that its publication is a newspaper.” (R. 76, Defs.’ Resp. at 6 n.5.)
The Court agrees that plaintiff has not “squarely presented” the issue, but not because it fails to argue that Chicago Baseball is a newspaper. After all, the Court of Appeals addressed the issue in Weinberg even though it appears that the plaintiff did not present such an argument. (Rather, the plaintiff argued that his publication was a book and that the Court should have extended the exemption to books.) Because plaintiff fails to develop an argument for treating the newspaper exemption as part of the Adjacent-Sidewalks Ordinance, the Court will not do so. There is no indication in the language of the Ordinance that it incorporates or is subject to § 108-520. And even if there were, plaintiff has not explained why, if § 10-8-520 were found to be unconstitutional, the appropriate remedy would extend any further than the invalidation of that particular section. 7 Plaintiffs motion, however, does not seek to enjoin enforcement of § 10-8520.
Pursuant to the framework set out in Reed , the Court must first determine whether the Adjacent-Sidewalks Ordinance is content neutral on its face. See 135 S.Ct. at 2228 . The Ordinance is facially content neutral—it simply bans the peddling of any merchandise on the sidewalks immediately adjacent to Wrigley Field—so it clears this hurdle. Furthermore, even if the newspaper exemption can be considered part of the Adj acent-Sidewalks Ordinance, its inclusion would not render the Ordinance content-based under Reed and Norton II . The Supreme Court stated in Reed that “a speech regulation is content based if the law applies to particular *1137 speech because of the topic discussed or the idea or message expressed.” Id. at 2231 . In Norton II , the Court of Appeals summarized Reed’s teaching as follows: “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.” 2015 WL 4714073 , at *2. Assuming that the Adjacent-Sidewalks Ordinance is a restriction on speech and not merely a regulation of conduct, it does not draw any distinctions based on the meaning of speech, the topic discussed, or any message expressed. The newspaper exemption distinguishes between forms of publications, not their content. In his Reed concurrence, which was joined by Justices Kennedy and Sotomayor, Justice Alito- provided a list of sign regulations that would not be content based, including “[r]ules regulating the size of signs” and “[r]ules distinguishing between signs with fixed messages and electronic signs with messages that change.” 135 S.Ct. at 2233 . In the Court’s view, the newspaper exemption is akin to these types of regulations. The Court is unpersuaded by plaintiffs assertions that “distinctions among organs of communication are content-based by their very nature” and that the exemption is “speaker-based” and a “subtle” form of content discrimination. (R. 70, Pl.’s Objections at 3-4.) Even if the newspaper exemption were properly considered part of the Adjacent-Sidewalks Ordinance, it does not amount to a content-based distinction.
In the second step Of the Reed analysis, a facially content-neutral law can still be categorized as cohtent based if it cannot be “ ‘justified without reference to the content of the regulated speech’ ” or if it was adopted by the government “ ‘because of disagreement with the message the speech conveys,’ ” 135 S.Ct. at 2227 (brackets omitted) (quoting Ward, 491 U.S. at 791 , 109 S.Ct. 2746 ). The City’s justification for the Adjacent-Sidewalks Ordinance—its interest in alleviating congestion and ensuring public safety on the sidewalks and streets surrounding Wrigley Field—is content neutral. Plaintiff again focuses exclusively on the newspaper exemption, which the Court does not consider to be part of the Adjacent-Sidewalks Ordinance; nonetheless, the Court will assume that it is for the sake of argument. There is no evidence (and plaintiff does not argue) that the City adopted the exemption because of a disagreement with any- ' one’s message. Plaintiff does contend that the City has failed'to present a valid content-neutral justification for the exemption. (R. 70, PL’s Objections at 5.) But Judge Mason’s reliance on Weinberg, in which the Court of Appeals stated that “[s]elling goods or merchandise would create a greater disruption than selling a 50The Court took issue with the lack of objective evidence demonstrating that plaintiff (selling a book), or any other peddler, created the problems of congestion asserted by the City in support of the ordinance. Id. at 1040 . The Court gave little weight to what it viewed as “self-serving” testimony of police officers and security officials'in light of a video tape showing that plaintiffs sale of his book did not interfere with pedestrian traffic and that the sidewalks were not in fact congested. Id. at 1039 . That is not the case here. Not only do we have the testimony of both Alderman Tunney and Sergeant Hitiris (self-serving may it be), but the video recordings from a few differerit game days show congestion on the sidewalks around Wrigley and Chicago Baseball vendors contributing to that congestion. 12
It naturally follows that other vendors, whether they be peddling magazines, t-shirts, or peanuts would contribute to the congestion were the ordinance not in effect. We note that plaintiff distinguishes itself and other “speech peddlers” from peddlers selling merchandise such as peanuts and t-shirts.' According to the plaintiff, the City could, from a Constitutional standpoint, allow peddlers like itself selling printed matter to remain on the adjacent sidewalks, but require the peanut and t-shirt vendors to remain across the street. But as the City points out, what constitutes a speech peddler is not as clear cut as plaintiff makes it out to be; In Ayres v. City of Chicago, 125 F.3d 1010 (7th Cir.1997), the court addressed a plaintiffs challenge to a City ordinance prohibiting him from selling T-shirts advocating for the legalization of marijuana in the majority of the downtown area. In- doing so, the Court noted that there was “no question that the T-shirts are a-medium of expression prima facie protected by the free-spieech clause of the First Amendment :.. ” 125 F.3d at 1014 . Thus, it is not so far-fetched to conclude that t-shirt vendors and other vendors might in fact fall under the ambit of plaintiffs “speech peddlers.”
Plaintiff also argues that the under inclusive nature of the no peddling zone ordinance calls into question the City’s supposed interest here. Plaintiff provides a laundry list of other activities it contends are permitted on the public sideways adjacent to Wrigley such as distributing fliers or free samples, charitable solicitation, and commercial photography. Plaintiff presented photographs of individuals passing out coconut water, selling raffle tickets, seeking charitable donations, and of “fan-foto” representatives taking pictures of fans in front of Wrigley and the statues. (PL’s Hr’g Exs. 4(a)-(e), 5(a)-(b), 7, & 9;) According to plaintiff, such activities provide the same potential for congestion as do the Chicago Baseball vendors, if not more. But, contrary to the plaintiff’s steadfast assertion, the evidence does not indicate that all of those activities are in fact permitted to take place on the public sidewalks.
*1153 First, no witness could say for certain whether those individuals depicted in the pictures were on the public way or on Cubs property. While Smerge maintained that he generally understood the red bricks spanning from the curb to be public sidewalk, Sergeant Hitiris was of the opinion that in some instances around the stadium, the bricks are in fact on Cubs property. 13 (Compare 6/16/15 Hr’g Tr. at 84 mth 7/21/15 Hr’g Tr. at 16-17, 57-58, 60.) According to Sergeant Hitiris, the Cubs allow “fanfoto” representatives to use their property to take pictures, and also allow certain charitable organizations to solicit on Cubs property. (7/21/15 Hr’g Tr. at 30-31, 57.) When Hitiris and his officers do see individuals soliciting charitable donations on the public way, they tell them to move to Cubs property or go across the' street. (Id. at 30-31.) Hitiris and his officers also tell people passing out fliers to “stop and move along.” (Id. at 62-63.) In any event, the fact that the no peddling ordinance does not cover every possible cause for congestion does not alone undermine the City’s interest. See Curtis v. Thompson, 840 F.2d 1291, 1302 (7th Cir.1988) (“Mere underinclusiveness does not, however, amount to constitutional infirmity.”). All of this leads to a recommendation to the District Court that the City has a significant interest in alleviating congestion and ensuring public safety.
Having found the City has a significant interest, we, turn to.whether the no peddling ordinance is narrowly tailored to serve that interest. To be narrowly tailored, an ordinance must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799 , 109 S.Ct. 2746 . “[B]y demanding adose fit between ends and means, the tailoring requirement prevents the government from too readily sacrificing speech for efficiency.” McCullen, 134 S.Ct. at 2534 -35 (quoting Riley, 487 U.S. at 795 , 108 S.Ct. 2667 ). However, an ordinance need not be the “least restrictive or least intrusive” method for achieving the government’s goal. Milestone v. City of Monroe, 665 F.3d 774, 784 (7th Cir.2011) (quoting Ward, 491 U.S. at 798-99 , 109 S.Ct. 2746 ).
At the outset, we note that the 7th Circuit expressly opined in Weinberg that a peddling ban “on the sidewalks immediately surrounding the United Center” would be “less encompassing and less intrusive on First Amendment rights” than the 1,000 foot ban the Court found unconstitutional. 310 F.3d at 1040 . Of course, that was dicta and related to the United Center, so we still must independently assess the ordinance and record before us here. After doing so, we recommend to the District Court that the ordinance is narrowly tailored.
The no peddling zone is limited in geographic scope and does not expand further than is necessary to serve the City’s interest. It applies only to the public sidewalks immediately surrounding the stadium. 14 In enacting the ordinance, the City specifically chose to stay away from a 1,000 foot *1154 ban in order to burden less speech than was necessary. . (7/10/15 Hr’g Tr. at. 106-107.) Later, in 2009, Alderman Tunny attempted, but was-: ultimately unsuccessful, at introducing an ordinance that would have covered the sidewalks on a greater number of blocks surrounding the stadium. (Id. at 107-108, 115; Defs.’ Hr’g Exs. 1(c) & 9.) Such a large geographical scope would have certainly called.into question whether that ordinance was narrowly tailored. . However, as it stands now, the adjacent sidewalks ordinance .is limited to the sidewalks where areas of congestion are increased as pedestrians funnel into the stadium entrances from different directions.
It is true, as plaintiff has argued, that Alderman Tunney and Sergent Hitiris testified as to the ease of enforcement of the blanket ban on peddling on the sidewalks surrounding Wrigley. Citing to McCullen , plaintiff argues that the City has simply taken the easiest approach, as opposed to a narrowly tailored approach. In McCullen , the Supreme Court examined a Massachusetts state law that set forth 35-foot buffer zones surrounding abortion clinics in order to prevent harassment, promote public safety, and prevent congestion. At various abortion clinics, the buffer zones essentially forced “sidewalk counselors” well-back from the clinic entrances, thereby seriously burdening their ability to convey their message. In striking down the law, the Court emphasized, among other things, that the State failed to consider a number of alternative measures available that would serve its interests, “without excluding individuals from areas historically open for speech and debate.” McCullen, 134 S.Ct. at 2539 .
Here, plaintiff suggests the City could use alternatives to the blanket ban such as enforcing the disorderly conduct statute already on the books, passing an ordinance targeting obstruction ,of the sidewalks, or limiting the number of peddlers on the sidewalks immediately adjacent to the Field. However, given the unique footprint at Wrigley and the undisputed congestion, permitting any peddlers, even in small numbers may leave the City unable to advance its significant interests. And even if the court accepted the plaintiffs proposed “less-speech-restrictive” alternatives as just that, a court need not deem an ordinance invalid where, as here, the means chosen are not substantially broader than necessary to achieve the City’s interest. Ward, 491 U.S. at 800 , 109 S.Ct. 2746 .
Undoubtedly, the no peddling ordinance also leaves open ample alternative channels of communication for plaintiff and other peddlers and does not render .their voices essentially mute as did the ordinance in McCullen . It is undisputed that peddling is permitted on the corners and streets immediately across from the stadium. Videos show that pedestrians come from all directions as they travel towards the field. While vendors may not have immediate access to fans exiting city buses and taxis, vendors remain in plain view and earshot of those fans and all of the other fans traversing the sidewalks towards the stadium. Loyal Chicago Baseball fans could certainly spot the bright shirts of the vendors just across the street and all vendors could capture the attention of their target audience. Though those streets and comers may not be the peddlers’ preferred selling spots, that does not render the ordinance unconstitutional. See Marcavage v. City of Chicago, 659 F.3d 626, 631 (7th Cir.2011) (upholding a police directive for protestors to move across the street from Wrigley during the *1155 Gay Gaines because protestors had “ample opportunity to capture the attention of the Games attendees”). In our view, the ordinance is narrowly tailored to serve the City’s significant interest and leaves open ample alternative methods of communication.
For all of these reasons, we conclude that the plaintiff has not shown a likelihood of success on the merits as to the no peddling zone ordinance. Having reached this conclusion, we need not delve into the remaining threshold elements for a preliminary injunction and recommend that the District, Court deny plaintiffs motion for a preliminary injunction as it relates to the no peddling zone ordinance. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1085-86 (7th Cir.2008) (“If the court determines that the moving party has failed to demonstrate any one of these three threshold requirements, it must deny the injunction.”).
2. Peddling License Ordinance
Plaintiff also brings an as applied and facial challenge to Section 4-244-030, which, again, requires all peddlers, to obtain a peddler’s license from the City. 15 The license can be obtained through the City’s Department of Business Affairs and Consumer Protection during regular business hours, usually in about an hour, and costs $100 for a two-year period. 16 (7/10/15 Hr’g Tr. at 17-19; 24.) Each, individual .vendor must have his own license and must display a badge that includes his name, picture, and license expiration date. (Id. at 38, 51.) The peddler’s home address is listed on the . back side of the badge. (Id. at 38.) Relying primarily on Watchtower v. Stratton, 536 U.S. 150 , 122 S.Ct. 2080 , 153 L.Ed.2d 205 (2002), plaintiff asserts an overbreadth challenge, arguing that the license requirement violates the First Amendment as it relates to printed matter because it inhibits one’s ability to speak anonymously or spontaneously, and results in “economic favoritism.” 17 We disagree.
The plaintiffs in Watchtower were various groups that coordinated and supervised the preaching "efforts of Jehovah’s Witnesses. Those plaintiffs facially challenged a Village of Stratton ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with' the mayor and receiving a permit. In striking down the ordinance, the Court first recognized the “historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas.” Watchtower, 536 U.S. at 162 , 122 S.Ct. 2080 . The Court then took issue with the broad amount of speech that the ordinance covered, including non-commercial canvassing for religious, political, and other causes. Id. at 165-66 , 122 S.Ct. 2080 . Of further concern to the Court was the dampening effect the ordinance had on one’s ability to speak anonymously and spontaneously. Id. at 166-68 , 122 S.Ct 2080 .
The peddling license .scheme here can be distinguished from that in Watchtower . The ordinance does not involve activity *1156 such as door-to-door canvassing, but instead'targets the sale of merchandise, including printed matter (other than newspapers), on the public way. To be clear, the ordinance is content-neutral. “To qualify as content-neutral, a permit policy cannot invest ‘unbridled discretion’ in the person who' decides whether a permit will issue because excessive discretion can lead to discriminatory enforcement.” Smith v. Executive Director of Indiana War Memorials Com’n, 742 F.3d 282, 289 (7th Cir.2014) (citations omitted). The ordinance affords the City minimal, if any, discretion in choosing to grant, or deny an application for a peddler’s license. The ordinance provides that the “commissioner of business affairs and consumer protection shall issue a peddler’s license to an applicant who tenders a completed, accurate application and the appropriate fee, unless issuance of a license is prohibited under subsection (b).” Municipal Code of Chicago § 4-244-041(a) (emphasis added). Subsection (b) only bars the issuance of a license if the applicant is under 16, or if an applicant’s previous license has been revoked within the previous year, or is otherwise suspended. John Castenada, a Supervisor at the Department of Business Affairs and Consumer, also explained that each applicant needs an Illinois Business Tax ID, and that City officials do check to ensure that an applicant is not in debt to the City (for parking tickets, water bills, etc.). (7/10/15 Hr’g Tr. at 23, 45-46.) Despite these additional requirements, the minimal discretion afforded the City under the current licensing scheme differs from the City’s previous ordinance, which granted “unfettered discretion” to the City and which was held unconstitutional as a prior restraint in Weinberg, 310 F.3d at 1044 .
More importantly, the City officials do not examine the content of items that peddlers offer for sale. For example, if a peddler reported he intended to sell t-shirts, the City official would not examine the t-shirt or seek further specification as to any message on the shirt. (7/10/15 Hr’g Tr. at 49.) The fee is also the same no matter what item is being sold. Thus, there is no indication that the licensing ordinance serves to restrict certain speech due to its content.
The City also has a significant interest in promoting public safety, ensuring the payment of taxes, and providing -a mechanism for policing fraudulent peddling activity. Even the Watchtower court' recognized such interests as important. See Watchtower, 536 U.S. at 164-65 , 122 S.Ct. 2080 . The ordinance serves to advance those interests by ensuring each- peddler has a Tax ID number and that a peddler can be contacted in response to customer complaints or in the case of fraudulent transactions. As it applies to magazines such as Chicago Baseball, the ordinance serves to ensure that individuals are not selling stolen or free magazines on the public way. Because the requirement that a peddler hold a license is aimed at commercial transactions, it is properly tailored to serve the City’s interests here and not overly broad. See Watchtower, 536 U.S. at 165 , 122 S.Ct. 2080 (“Had this provision been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village’s interest in protecting the privacy of its residents and preventing fraud.”).
Similarly, under this licensing scheme, plaintiff’s complaints of a loss of spontaneity and anonymity fall short because the same concerns present in Watchtower regarding the broad amount of speech covered and the historical importance of door- *1157 to-door canvassing are not at the forefront here. Like defendants, we also point out that the plaintiff has failed to advance any significant argument on its .assertion of “economic favoritism.”
For all of these reasons, we again conclude that the plaintiff has failed to show a likelihood of success on the merits as to the peddling license requirement and need not address the remaining threshold requirements for a preliminary- injunction.
IV. Conclusion
For the reasons stated above, we respectfully recommend that the District Court deny plaintiffs motion for preliminary injunction as to both ordinances at issue. Specific written objections to this Report and Recommendation may be served and filed within fourteen (14) days from the date that this order is served. Fed.R.Civ.P. 72. Failure, to file objections with the .District Court within the specified time will result in a waiver of the right to appeal all findings, factual and legal, made by this Court in the Report and Recommendation. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir.1995).
Dated: August 28, 2015
. Although there is no document on the case docket titled "Plaintiff's Motion for a Preliminary Injunction,” Document Number 33, which is titled "Plaintiff’s Memorandum in Support of Its Motion for a Preliminary Injunction,” was docketed as a motion and has been designated as a pending motion, and the Court and the parties have treated it as a motion.
. On August 28, 2015, Judge Mason issued an Amended Report and Recommendation (“Am. R & R”) to add citations to the proper page numbers of the official hearing transcripts, which were not yet available at the time the original Report and Recommendation was issued. (R. 78, Am, R & R at 1144 n.1.)
. This particular provision of this section was enacted in 2006. (7/10/15 Hr’g Tr. 102-03.)
. As Judge Mason noted, defendants do not argue that the Court should apply the standard of scrutiny for "commercial speech."
. As defendants note (R. 76, Defs.'.Resp. at 2-3 n.2), plaintiffs first mention of Reed in these proceedings appears in its Objections, although the decision was issued weeks before the second and third sessions of the preliminary injunction hearing. Although Reed was not issued prior to the conclusion of briefing *1136 on plaintiff’s motion, plaintiff did not seek to file any supplemental brief to address the decision.
. Defendants cite only Weinberg v. City of Chicago, 310 F.3d 1029 (7th Cir.2002), in which the Court of Appeals treated the newspaper exemption in § 10-8-520 as part of the City’s ordinance that prohibited the peddling of "merchandise of any type on any portion of the public way within 1,000 feet of the United Center,” § 4-244-147. Id. at 1034-36. Unlike the Adjacent-Sidewalks Ordinance, § 4-244-147 contained a sentence stating that "[t]he provisions of this section shall be in addition to any other limitation on or regulation of peddlers.”
. Typically, when a statutory scheme has a constitutional flaw, the reviewing court will sever the offending portion from the remaining constitutional portions of the law. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29 , 126 S.Ct. 961 , 163 L.Ed.2d 812 (2006) (“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit, the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact.”) (citations omitted).
. Plaintiff attempts to distinguish its $2.00 magazine from the book at issue in Weinberg by emphasizing Weinberg’s observation that "[a] book purchase is usually more expensive, more time consuming, and more absorbing than a simple newspaper purchase." (R. 70, Pl.’s Objections - at 5 (citing Weinberg, 310 F.3d at 1036 ).) As to the possibly "time consuming” and "absorbing” nature of the purchase, plaintiff’s argument is belied by the testimony of Smerge, who acknowledged that on occasion he has conversations with magazine purchasers. (See, e.g., 6/16/15 Hr'g Tr. 81 ("If they say they like the magazine and they ask a couple of questions, I may divulge that I am the editor.”; id. 86-87 (explaining that there are times when’ people ask about the difference between Chicago Baseball and the Cubs’ program and that Smerge responds by providing "a short, concise explanation of what the difference is”); id. 134 ("We actually have regulars who are devoted enough that they keep buying the same edition.... I’ve had people tell me that they support what we do, we’re an independent, honest voice; and they buy it every time they come....”).)
. In another section of its brief, plaintiff malees a somewhat contradictory point: "[O]ne must ask, where does 'congestion' start and the hustle, bustle, and energy of a busy city sidewalk end?” (R. 70, Pl.’s Objections at 9.) So perhaps plaintiff in fact does dispute the significance of the City's interest. That position would be contrary to controlling case law. See, e.g., McCullen, 134 S.Ct. at 2535 .
. Moreover, the evidence here does not show mere "simple, everyday congestion,” as discussed below.
. Plaintiff also attempts to narrow the government’s interest to '.'addressing] any alleged, harms of obstruction posed by speech peddlers.” (R. 70, Pl.’s Objections at 7.) The Adjacent-Sidewalks Ordinance applies to all peddlers, not just “speech peddlers.” And in examining the government's justification for its regulation, the Court does not look only at plaintiff's activity. See Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 652 (1981) (recognizing that groups other than the, plaintiffs must be considered when assessing the government’s interest in avoiding congestion and maintaining , the orderly *1139 movement of state-fair patrons on fairgrounds).
. On this point, plaintiff submits the Declaration of Neil Ament, one of its attorneys, who states that he used a tape measure to measure the public and private ways surrounding Wrigley Field. He sets out his measurements and calculations of the sidewalk widths there and compares them to the widths of the Sidewalks around U.S. Cellular Field and the United Center.- (He fails to state the basis for his statements about the widths of the sidewalks surrounding those two venues.) (R. 70-1, Deck of Neil S. Ament.)' Plaintiff did not present this evidence to Judge Mason, and defendants object to the Declaration on the grounds that it was not previously disclosed, lacks a foundation, and runs afoul of the advocate-witness rule. (R. 76, Defs. Resp. at 23-24.) Although this Court’s review is de novo, a party generally cannot raise new arguments and evidence that were not presented to the magistrate judge. See United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir.2000); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir.1995) (a de novo determination is not the same as a de novo hearing). The Court will not consider the Declaration. Plaintiff had every opportunity to present such evidence to Judge Mason and failed to do so. And even if the Court considered the Declaration, it is unavailing for the reasons explained below. The area surrounding Wrigley Field is unique regardless of whether the widths of its adjacent sidewalks are comparable to those of the sidewalks surrounding U.S. Cellular Field or the United Center.
. Plaintiffs argument to the contrary, which attempts to distinguish between the act of "obstructing” others and that of “allow[ing] people to freely and easily walk around” oneself, is thus unpersuasive. '(See R. 70, PL’s Objections at 14-15.)
. Plaintiff contends that Judge Mason disregarded evidence of the Ordinance’s "underin-clusiveness" in that the City permits other activities that cause sidewalk congestion. (R. 70, Pl.’s Objections at 15-16.) As Judge Mason found, the evidence does not indicate that all of the activities cited by plaintiff in its memorandum are permitted to take place on sidewalks, and the fact that the Ordinance does not address every possible cause for congestion does not undermine the City's interest. (R, 78, Am. R & R at 1152-53.) This is not a case where the underinclusiveness of the Ordinance raises doubts about whether it serveá the City’s asserted interests.
. Those sidewalks are now the Cubs’ property.
. Plaintiff’s argument that the peddling ban ' amounts to "four City blocks” is inaccurate. (See R. 70, PL’s Objections at 16.)
. Plaintiff’s citation to McCullen in support of this argument is misplaced. In McCullen , the Supreme Court held that a statute creating a 35-foot "buffer zone” around abortion clinics was not narrowly tailored, 134 S.Ct. at 2540-41 , The plaintiffs in McCullen were individuals who attempted to dissuade women from having abortions by engaging in personal conversations and relying on "a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges.”. Id. at 2527 . The Court’s holding was based in part on the fact that the buffer zones compromised the plaintiffs’ "ability to initiate the close, personal conversations that they view as essential to ‘sidewalk counseling.’ ” Id. at 2535 . This kind of consideration is not present here.. Plaintiff’s vendors try to attract attention by being loud. .
. Judge Mason specifically noted that plaintiff did not present a "prior restraint” argument to him, (R. 78, Am. R & R at 1155 n.17.) Because defendants do not argue that it has been waived, this Court will consider the argument,
. A discounted $50 fee is available to veterans, those with physical disabilities, and those 65 years of age or older. (7/10/15 Hr'g Tr. 24-25.)
. As stated in the initial Report and Recommendation [63], at the time of issuance, the Court did not have the benefit of the final official transcripts from the preliminary injunction hearing. This Amended R & R includes citations to the proper page numbers of those official transcripts. Footnote 4 of the initial R & R was also removed as it related solely to the issue of transcript citation. Nothing else has been changed, and the substance of the R & R remains the same.
. The parties also agreed to delay the briefing on defendants’ pending motion to dismiss Counts I, III, and IV[24],
. The parties initially indicated that the preliminary injunction hearing would only take ' one day. Clearly, that was not the case. Additionally, the vacation schedules of attorneys for both parties (which the Court was happy to accommodate) did contribute to some scheduling delays from the outset. The Court’s unavoidable responsibilities during two weeks of criminal duty also led to further delay in scheduling.
. Plaintiff does not seek to enjoin the enforcement of the newspaper exemption at this time.
. From 1996 through the 2014 season, the magazine was sold for $1.00. (6/16/15 Hr’g Tr. at 25-26.)
. Gates open two hours prior to each game. (6/16/15 Hr'g Tr. at 24.)
. Admittedly, Smerge has not looked at the Municipal Code recently and has only "glanced [at'it] over the years.” (6/16/15 Hr’g Tr. at 88.)
. Other than tracking Left Field's total revenue, Smerge does not maintain records of the number of magazines each vendor sells during each game. (6/16/15 Hr’g Tr. at 99-100, 103.). He estimated that Left Field has, sold anywhere from 30,000 to- 50,000 magazines per season over the past several seasons. {Id. at 80.)
. We note that the City hasn't argued that Chicago Baseball magazine amounts to commercial speech and is subject to a different standard.
. Interestingly, the plaintiff in Weinberg serves as one of Left Field’s attorneys in this matter.
. Recently, construction at Wrigley has caused even more problems due to the closure of certain streets and sidewalks, As Alderman Tunney explained, the City has permanently vacated the sidewalks immediately adjacent to Wrigley on Waveland and on Sheffield. (7/10/15 Hr'g Tr. at 122.) Those sidewalks are now Cubs property.
. One could argue that the congestion that can still be seen this season, years after the no peddling zone, ordinance was passed and the majority of peddlers moved across the street, shows that the City’s ordinance does not ad-vanee its interests. But, again, the unique footprint of Wrigley Field makes it doubtful that there will ever come a time that those sidewalks surrounding the field are free of congestion.
. Similarly, Smerge and Hitiris had a different response when asked about the width of the public sidewalks surrounding Wrigley. (Compare 6/16/15 Hr’g Tr. at 83-84 (10 feet) with ¶21/IS Hr’g Tr. at 1617 (six feet)).
. Again, since the City has vacated the sidewalks on Waveland and Sheffield to the Cubs, the no peddling zone ordinance only applies to the public sidewalks adjacent to the stadium along Addison and Clark, and to a portion of the comers at Clark and Waveland and Addison and Sheffield. (See Defs.’ Hr’g Ex. 1(d).)
. Though it is undisputed that neither Smerge nor any other vendors have ever applied for a peddler’s license, the City has not expressly challenged plaintiff’s standing to attack the ordinance.
. A discounted fee of $50 is available to veterans, anyone with a physical disability, and anyone over the age of 65. (7/10/15 Hr’g Tr. at 24-25.)
. We note that plaintiff has not asserted a prior restraint claim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7234124. Public record. Not legal advice.