Buddy Bell v. James Keating

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2408

B UDDY B ELL,

Plaintiff-Appellant,

v.

C HICAGO P OLICE D EPUTY C HIEF JAMES K EATING,

C HICAGO P OLICE O FFICERS C ARLOS M OTA,

P ATRICK M URRAY, AND THE C ITY OF C HICAGO,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CV 754—John W. Darrah, Judge.

A RGUED JUNE 1, 2012—D ECIDED S EPTEMBER 10, 2012

Before F LAUM, R OVNER, and W ILLIAMS, Circuit Judges.

F LAUM, Circuit Judge. A Chicago ordinance criminalizes

an individual’s refusal to leave a scene when so

instructed by a police officer when three or more indi-

viduals are engaging in disorderly conduct nearby.

Buddy Bell was arrested under that ordinance, the en-

forcement of which he presently seeks to enjoin as

2 No. 11-2408

facially violative of the First and Fourteenth Amendments.

The district court dismissed his claims, ruling that

he lacked standing to sue for injunctive relief.

We hold that Buddy Bell may sue to enjoin the

ordinance as facially unconstitutional. We also conclude

that Chicago Municipal Code § 8-4-010(d) (hereinafter

“Subsection D”) substantially inhibits protected speech

and is not amenable to clear and uniform enforcement.

We partially invalidate the ordinance and reverse.

I. Background

On January 7, 2008, Buddy Bell participated in a

protest against Operation Iraqi Freedom on the corner of

Dearborn Street and Jackson Boulevard in downtown

Chicago. He, along with other protesters, held a banner

that said, “End the war and occupation TROOPS HOME

NOW.” At the time, President Bush was at a luncheon

at the nearby Union League Club.

One protester, Andy Thayer, entered the street carrying

a large banner and, according to Chicago police,

advanced on the Deputy Chief who was monitoring the

area on a Segway. Thayer was arrested, handcuffed, and

placed in a squadrol. Bell and two other protesters, their

own banner in hand, began approaching the squadrol,

also walking into the street. The police ordered the

three men to get back on the sidewalk several times.

They refused and began chanting, “Hell no, we won’t

go. Set him free.” Chicago police again ordered Bell

and the other protesters to get back on the sidewalk.

They refused, and the police arrested them for disorderly

No. 11-2408 3

conduct. In particular, police arrested Bell pursuant

to Subsection D, which criminalizes an individual’s

behavior when he “knowingly . . . [f]ails to obey a lawful

order of dispersal by a person known by him to be a

peace officer under circumstances where three or more

persons are committing acts of disorderly conduct in

the immediate vicinity, which acts are likely to cause

substantial harm or serious inconvenience, annoyance

or alarm.” Chicago Municipal Code § 8-4-010(d).

A state court acquitted Bell of violating Subsection D.

Subsequently, Bell sued various members of Chicago

law enforcement and the City of Chicago in federal

court for violating his First, Fourth, and Fourteenth

Amendment rights, as well as for malicious prosecu-

tion and indemnification. See 42 U.S.C. § 1983. He ulti-

mately dropped all but his indemnification claim

against the City of Chicago. He presented his Fourth

Amendment claims of false arrest and his malicious

prosecution claim to a jury, which found in favor of

the defendants. The jury returned three special verdicts.

It found (1) that Chicago police had probable cause to

arrest Bell for disorderly conduct under an ordinance of

the City of Chicago; (2) that Chicago police lacked

probable cause to arrest Bell for disorderly conduct

under Illinois law; and (3) that Chicago police lacked

probable cause to arrest Bell for obstructing a peace

officer under Illinois law.1

1

In relevant part, the district court instructed the jury that

“[t]here is probable cause for an arrest if at the moment the

(continued...)

4 No. 11-2408

Bell’s claims that Subsection D facially contravened

the First and Fourteenth Amendments remained before

the district court. He alleged unconstitutional over-

breadth and vagueness, respectively. Bell moved for

declaratory relief and a permanent injunction barring

enforcement of Subsection D, which the district court

denied. The district court then dismissed Bell’s First

and Fourteenth Amendment challenges to Subsection D,

ruling that Bell lacked standing to apply for injunctive

relief because he did not demonstrate a likelihood of

future or repeat injury. Bell presently and timely

appeals the judgment of the district court.

1

(...continued)

arrest was made a prudent person would have believed that

the plaintiff, Buddy Bell, had committed or was committing[] a

crime. . . . [U]nder an ordinance of the City of Chicago a person

commits disorderly conduct when he knowingly fails to obey

a lawful order of dispersal by a person known to him to be a

peace officer under circumstances where three or more

persons are committing acts of disorderly conduct in the

immediate vicinity, which acts are likely to cause substantial

harm or serious inconvenience, annoyance or alarm. Under

Illinois law a person commits disorderly conduct when he

knowingly does any act in such an unreasonable manner as

to alarm or disturb another and provoke a breach of the

peace. Under Illinois law a person who knowingly obstructs

the performance of one known to be a peace officer of any

authorized act within his official capacity commits a Class A

misdemeanor.”

No. 11-2408 5

II. Discussion

We review a party’s standing to pursue injunctive

relief de novo, see ACLU of Ill. v. Alvarez, No. 11-1286, 2012

WL 1592618, at *5 (7th Cir. May 8, 2012), as we do chal-

lenges to a statute’s constitutionality, see United States

v. Juarez, 454 F.3d 717, 719 (7th Cir. 2006).

A. The District Court’s Findings on Bell’s Standing

An Article III court enjoys jurisdiction over a case

only if the plaintiff demonstrates that he suffered an

injury in fact, the defendant’s actions caused the injury,

and the remedy he seeks would redress his injury. See

Allen v. Wright, 468 U.S. 737, 751 (1984); see also Alvarez,

2012 WL 1592618, at *5. When the plaintiff applies for

prospective relief against a harm not yet suffered—or one

he believes he will suffer again—he must establish that

he “is immediately in danger of sustaining some direct

injury as the result of the challenged official conduct[,]

and [that] the injury or threat of injury [is] both real and

immediate, not conjectural or hypothetical.” City of Los

Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation

marks omitted). Otherwise, he fails to allege an actual

case or controversy before the court. See U.S. C ONST.

art. III, § 2, cl. 1.

As a general matter, a plaintiff who wishes to engage

in conduct arguably protected by the Constitution, but

proscribed by a statute, successfully demonstrates an

immediate risk of injury. See Alvarez, 2012 WL 1592618,

at *5. The existence of the statute constitutes the gov-

6 No. 11-2408

ernment’s commitment to prosecute in accordance with

it and, thus, a concrete prospect of future harm for one

who would flout it. Id. (citing Bauer v. Shepard, 620 F.3d

704, 708 (7th Cir. 2010); Majors v. Abell, 317 F.3d 719, 721

(7th Cir. 2003)). Accordingly, when a plaintiff expresses

a credible intention to disobey a statute, a sufficient

likelihood of injury exists, and a pre-enforcement chal-

lenge is appropriate. See Alvarez, 2012 WL 1592618, at *5

(citing Brandt v. Vill. of Winnetka, Ill., 612 F.3d 647, 649

(7th Cir. 2010); Babbitt v. United Farm Workers Nat’l

Union, 442 U.S. 289, 298 (1979)). He need not wait to be

arrested to bring suit for injunctive relief.

We distinguish claims where a statute criminalizes

the plaintiff’s conduct or desired conduct from those

where the plaintiff seeks relief from the defendant’s

criminal or unconstitutional behavior. For the latter type

of claim, the putative injury typically proves too

remote or attenuated to sustain our jurisdiction under

Article III. See Lyons, 461 U.S. at 105-06 (finding no

standing to sue for injunctive relief where the plaintiff

suffered an unconstitutional chokehold during a traffic

stop, feared that he would endure a chokehold again,

but did not allege that every police officer in Los Angeles

always applied chokeholds or that the City itself ordered

chokeholds as protocol); O’Shea v. Littleton, 414 U.S.

488, 494-99 (1974) (finding no standing to sue for

injunctive relief where plaintiffs alleged discriminatory

law enforcement and inferred future harm based

on a pattern of past violative conduct, not the likely en-

forcement of a statute). The same logic obtains when

a statute was or would have to be misapplied to justify

No. 11-2408 7

the plaintiff’s arrest. In Schirmer v. Nagode, for example,

protesters who opposed military recruitment organized

to hand out flyers near a recruiting booth at the Taste

of Chicago. 621 F.3d 581, 583 (7th Cir. 2010). When

the protesters ignored the police’s request to move to a

designated protest zone and a later request to disperse,

they were arrested pursuant to Subsection D. Id. The

charges were ultimately dismissed, and the plaintiffs

sued under Section 1983. We held that the plaintiffs

lacked standing to facially challenge Subsection D or

pursue injunctive relief because the law “c[ould not]

fairly be read to prohibit peaceful protests of the sort [in

which they were engaged]” and concluded that the

police’s “clear misuse of a law d[id] not provide a basis

for a federal court to explore that law’s facial constitu-

tionality.” Id. at 587-88. That is, we concluded that, what-

ever injury the plaintiffs suffered by virtue of their

arrests pursuant to Subsection D and whatever damages

to which they were entitled, id. at 583, a facial

challenge and injunctive relief were inappropriate

because the statute itself did not portend arrest and

prosecution for peaceful protests. Id. at 588 (“These plain-

tiffs’ experience appears, on this record, to be the result

of an isolated misuse of the failure-to-disperse provi-

sion and indicates that they are not reasonably likely

to face a future prosecution if section 8-4-010(d) is

enforced according to its terms.”).

In this case, the district court, applying Schirmer, denied

Bell standing, finding that the circumstances of his

arrest were indistinguishable from those in Schirmer

and that he “ha[d] not demonstrated more than a wholly

8 No. 11-2408

speculative possibility of criminal consequences.” We

conclude, contrary to the district court’s assessment,

that the circumstances prompting Bell’s arrest differ

from those in Schirmer. The protesters in this case were

not calmly holding a sign or distributing leaflets. They

were shouting at police and advancing on a police vehi-

cle. Regardless of the degree to which Bell participated in

those activities, at least three other people did so, and he

did not move as directed by a police officer. The facts of his

case situate him squarely within Subsection D’s scope,

giving police probable cause to arrest him. Thus, unlike in

Schirmer, law enforcement did not misapply the statute to

arrest and prosecute him; Schirmer’s misapplication

analysis cannot operate to reduce Bell’s alleged fear of

arrest to speculation or to deny him standing to seek

injunctive relief or facially challenge the law.

B. Bell Successfully Establishes Injury and Has

Standing to Facially Challenge Subsection D

as Overly Broad and Vague

Bell argues that Subsection D is constitutionally infirm

because it is vague and overbroad, both of which, if true,

are facial failings. The defendants insist, however, that

despite the fact that Subsection D was not misapplied

against Bell, he lacks standing to sue for injunctive

relief and, by implication, to facially challenge the ordi-

nance because he cannot demonstrate a concrete injury

unless he intends to participate in a protest where three

or more persons in his immediate vicinity are commit-

ting acts of disorderly conduct—behaving in such an

No. 11-2408 9

unreasonable manner as to provoke, make or aid in

making a breach of the peace, see Chicago Municipal

Code § 8-4-010(a) (defining “disorderly conduct”). They

contend that his involvement in political protests,

without more, is not proscribed by Subsection D, and

his hope to participate in the future does not insure

his arrest as necessary to confer standing for injunctive

relief.

1. Overbreadth: Standing to Bring His First Amend-

ment Claim

Facial invalidation typically requires that “no set of

circumstances exists under which the [law] would be

valid,” United States v. Salerno, 481 U.S. 739, 745 (1987), so

the remedy “must be injunctive and declaratory,” Ezell v.

City of Chicago, 651 F.3d 684, 698 (7th Cir. 2011) (emphasis

in original). Though it also demands injunctive and

declaratory relief if successful, an overbreadth claim

is unique from traditional facial challenges in that it

does not require a plaintiff to plead or prove that the

law is unconstitutional in every application. See Ezell,

651 F.3d at 698 n.8 (“Overbreadth claims are a distinct

type of facial challenge.” (quoting United States v.

Stevens, 130 S. Ct. 1577, 1587 (2010))); Hodgkins ex rel.

Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir. 2004)

(“[T]he First Amendment doctrine of overbreadth is

an exception to our normal rule regarding the standards

for facial challenges.” (quoting Virginia v. Hicks, 539

U.S. 113, 118 (2003))). Content-neutral regulations—laws

that restrict expressive conduct for reasons unrelated to

10 No. 11-2408

the expression itself, see Boos v. Barry, 485 U.S. 312, 320

(1988)—suffer from overbreadth and necessitate facial

invalidation if their unconstitutional applications

against otherwise protected expression outnumber their

legitimate ones. For such “technical overbreadth” claims,

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 381 n.3 (1992)

(defining “technical overbreadth” as “a claim that the

ordinance violated the rights of too many third parties”),

the question is one of magnitude. Where a sufficient

imbalance exists, the statute proves facially invalid, not

because it lacks any conceivable constitutional application,

but because the “threat of [its] enforcement . . . deters

people from engaging in constitutionally protected

speech, inhibiting the free exchange of ideas.” United

States v. Williams, 553 U.S. 285, 292 (2008). Technically

overbroad statutes, in short, must fail because they uncon-

stitutionally chill protected expression.2

2

A law that suffers from “technical overbreadth” may be

analytically distinguished from one that fails as substantively

overbroad, meaning that it “restrict[s] more speech than the

Constitution permits . . . because it is content based.” R.A.V.,

505 U.S. at 381 n.3. The latter subset of overbreadth plagues

regulations that target a category of subject matter or a particu-

lar viewpoint, see, e.g., id. at 382 (“The First Amendment

generally prevents government from proscribing speech or even

expressive conduct because of disapproval of the ideas ex-

pressed.” (internal citations omitted)); see also Stevens, 130 S. Ct.

at 1584 (“[A]s a general matter, the First Amendment means

that government has no power to restrict expression because

of its message, its ideas, its subject matter, or its content.”

(continued...)

No. 11-2408 11

Chilled speech is, unquestionably, an injury supporting

standing, see Hoover v. Wagner, 47 F.3d 845, 847 (7th Cir.

1995) (“Arrest, prosecution, and conviction are tangible

harms, and so is abandoning one’s constitutional right

of free speech in order to avert those harms.”); see also

Sec’r of State of Md. v. Joseph H. Munson Co., 467 U.S. 947,

958 (1984) (“Facial challenges to overly broad statutes

are allowed not primarily for the benefit of the litigant,

but for the benefit of society—to prevent the statute

from chilling the First Amendment rights of other

parties not before the court.”), but a plaintiff’s notional or

subjective fear of chilling is insufficient to sustain a

2

(...continued)

(quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002))), where

the government cannot demonstrate a compelling state inter-

est in regulating that idea or achieve it through narrowly

tailored means, see Police Dep’t of Chicago v. Mosely, 408 U.S.

92, 94-95, 101-02 (1972) (explaining that laws that discriminate

on the basis of message must prove “an appropriate govern-

mental interest suitably furthered by the differential treatment”);

see also Boos, 485 U.S. at 321 (noting that content-based restric-

tions are “subjected to the most exacting scrutiny” and, thus,

must be narrowly tailored to meet a compelling state interest).

When a content-based regulation fails strict scrutiny—and is,

therefore, substantively overbroad—there exists no possible

application of that law consistent with the First Amendment’s

guarantees. See K ATHLEEN M. S ULLIVAN & G ERALD G UNTHER ,

C ONSTITUTIONAL L AW 1093 (16th ed. 2007) (suggesting that

overbreadth may be viewed as one application of strict scrutiny

(citing Monaghan, Overbreadth, 1981 SUP . C T . R EV . 1, 1081

(1982))).

12 No. 11-2408

court’s jurisdiction under Article III, see Laird v. Tatum,

408 U.S. 1, 11, 13-14 (1972) (holding that where a defen-

dant’s chilling claims stemmed from government sur-

veillance techniques and not a proscriptive regulation,

“[a]llegations of a subjective ‘chill’ [were] not an

adequate substitute for a claim of specific present

objective harm or a threat of specific future harm”). The

plaintiff must substantiate a concrete and particularized

chilling effect on his protected speech or expressive

conduct to pursue prospective relief.3 He does so where,

for example, he challenges an “exercise of government

power [that is] regulatory, proscriptive, or compulsory in

nature, and [he] was either presently or prospectively

subject to the regulations, proscriptions, or compulsions

that he was challenging.” Laird, 408 U.S. at 11; see also

Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1089

3

This rule applies only where the plaintiff is alleging a

chilling of his own protected speech as the injury in fact. Note,

however, that where a plaintiff faced arrest under an allegedly

overbroad ordinance, but was either not chilled or not

engaging in protected expression, he could still facially chal-

lenge the statute on behalf of others whose protected expression

would be hampered by the law. See Munson, 467 U.S. at 958

(noting that with respect to an overbreadth challenge, “a party

[may] assert the rights of another without regard to the

ability of the other to assert his own claims and with no re-

quirement that the person making the attack demonstrate that

his own conduct could not be regulated by a statute drawn

with the requisite narrow specificity.” (quoting Broadrick v.

Oklahoma, 413 U.S. 601, 612 (1973)) (internal quotation marks

omitted)); Gooding v. Wilson, 405 U.S. 518, 520-21 (1972) (same).

No. 11-2408 13

(10th Cir. 2006) (“We hold that plaintiffs in a suit for

prospective relief based on a ‘chilling effect’ on speech

can satisfy the requirement that their claim of injury be

‘concrete and particularized’ by (1) evidence that in the

past they have engaged in the type of speech affected

by the challenged government action; (2) affidavits or

testimony stating a present desire, though no specific

plans, to engage in such speech; and (3) a plausible

claim that they presently have no intention to do so

because of a credible threat that the statute will be en-

forced.”).

Part and parcel of his overbreadth claim, Bell alleges

both that his own speech has been chilled by Subsection D

and that the ordinance might chill others from exer-

cising their First Amendment rights. We conclude that

he establishes a chilling injury sufficient to satisfy

Article III standing. His past participation in a protest

buttresses his representation that he wishes to participate

in protests or assemblies in Chicago in the future, and

his past arrest under Subsection D supports his claim

that the enforcement of the ordinance has chilled his

willingness to participate again. Cf. City of Houston, Tex.

v. Hill, 482 U.S. 451, 459 n.7 (1987) (“[The defendant’s]

record of arrests under the ordinance and his adopted

role as citizen provocateur give him standing to chal-

lenge the facial validity of the ordinance.”). Indeed, his

past experience with the ordinance lends credibility to

his assertion that the City will enforce Subsection D

against individuals engaged in protected speech

activities when certain triggering events occur.

14 No. 11-2408

Contrary to the City’s argument, the fact that the ordi-

nance applies only if triggered does not attenuate

Bell’s likelihood of prosecution under the statute or

subvert the concreteness of his chilling injury. The puta-

tive vagueness surrounding those triggering events, see

infra Part II.B.2, compounds his chilling claim: when one

cannot know what triggers the ordinance such that it

will be enforced, he may fairly assume that it can and

will always be enforced and that total abstention from

the protected activity is necessary to avoid arrest and

prosecution. Bell successfully alleges a chilling injury,

and we hold that he enjoys standing to sue for injunctive

relief and facially challenge Subsection D as overly broad.

2. Vagueness: Standing to Bring a Fourteenth Amend-

ment Claim

A vagueness claim alleges that, as written, the law either

fails to provide definite notice to individuals regarding

what behavior is criminalized or invites arbitrary and

discriminatory enforcement—or both. See Skilling v. United

States, 130 S. Ct. 2896, 2927-28 (2010) (“To satisfy due

process, ‘a penal statute must define the criminal offense

(1) with sufficient definiteness that ordinary people can

understand what conduct is prohibited and (2) in a

manner that does not encourage arbitrary and discrim-

inatory enforcement.’ The void-for-vagueness doctrine

embraces these requirements.” (quoting Kolender v.

Lawson, 461 U.S. 352, 357 (1983))). Although it derives

from the Fourteenth Amendment, a statute that is

vague may implicate a plaintiff’s First Amendment

No. 11-2408 15

rights, fostering those same chilling concerns that attend

an overbreadth challenge. See Hynes v. Mayor of Oradell,

425 U.S. 610, 620 (1976) (“The general test of vagueness

applies with particular force in review of laws dealing

with speech. . . . [A] man may the less be required to act

at his peril [where a statute has a potentially inhibiting

effect on speech], because the free dissemination of

ideas may be the loser.” (quoting Smith v. California, 361

U.S. 147, 151 (1959))). In those instances when an

imprecise law implicates speech and assembly rights,

an injured plaintiff may also facially challenge a statute

as void for vagueness. See Penny Saver Publ’ns, Inc. v. Vill.

of Hazel Crest, 905 F.2d 150, 154 n.2 (7th Cir. 1990) (“The

first amendment ‘chill’ and its consequential injury . . .

confer[] standing for an action based on a vagueness

theory.” (citing Hynes, 425 U.S. at 621 n.5)).

Bell argues that Subsection D fails both tenets of vague-

ness and, like the ordinance’s overbreadth, precipitates

a chilling injury. As used in the ordinance, he con-

tends, the terms “serious inconvenience,” “annoyance,”

and “alarm” vest unbridled authority in law enforcement

such that one cannot know what conduct triggers Sub-

section D or whether the law is evenly enforced. As a

result, he maintains, it is impossible for him to know

whether a future assembly he wishes to attend will

evince transgressing behavior from his fellow protesters,

and, especially since he cannot control their behavior,

he must abstain from all protests unless he wishes to

risk prosecution under Subsection D. We conclude that

Bell may, therefore, facially challenge Subsection D as

unconstitutionally vague and sue for injunctive relief.

16 No. 11-2408

C. First Amendment Challenge: Overbreadth

Facial invalidation for technical overbreadth is “strong

medicine,” see New York v. Ferber, 458 U.S. 747, 769 (1982)

(quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)),

and is inappropriately employed unless the statute

“substantially” criminalizes or suppresses otherwise

protected speech vis-à-vis its “plainly legitimate sweep.”

See Williams, 553 U.S. at 292-93 (“In order to maintain

the appropriate balance, we have vigorously enforced

the requirement that a statute’s overbreadth be sub-

stantial, not only in an absolute sense, but also relative to

the statute’s plainly legitimate sweep.” (emphasis in

original)). We, therefore, begin by construing the

ordinance to assess its overall reach and impact upon

the First Amendment.4 Id. In doing so, we must adopt

any limiting construction proffered by a state court.

See Kolender, 461 U.S. at 355. If Subsection D is “readily

susceptible” to an interpretation that would preserve

its constitutionality, we must uphold it, but we “will not

4

We have already upheld as constitutionally sound the

definition of “disorderly conduct” provided in Chicago Munici-

pal Code § 8-4-010(a). See United States v. Woodard, 376 F.2d

136 (7th Cir. 1967); see also Broadrick, 413 U.S. at 613-14 (defend-

ing, as a general matter, the facial constitutionality of “disor-

derly conduct” or “breach of the peace” statutes). Bell chal-

lenges only the expounded definition in Subsection D, and

we, thus, limit our review to the phrase in dispute: “which

acts are likely to cause substantial harm or serious inconve-

nience, annoyance or alarm.” See Chicago Municipal Code

§ 8-4-010(d).

No. 11-2408 17

rewrite a state law to conform it to constitutional require-

ments.” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,

397 (1988).

The Illinois Supreme Court has made clear that disor-

derly conduct statutes in the state, including Chicago’s

disorderly conduct ordinance, do not criminalize speak-

ing. See People v. Raby, 240 N.E.2d 595, 598 (Ill. 1968)

(holding, with respect to Illinois’ disorderly conduct

statute, that “under no circumstances would the

statute allow persons to be punished merely for peace-

fully expressing unpopular views”); see also In re B.C.,

680 N.E.2d 1355, 1369 (Ill. 1997) (“Disorderly conduct

statutes must be narrowly drawn or construed so that

the statutes do not reach protected speech.”).5 More-

over, the Illinois Supreme Court has recognized that

in enforcing disorderly conduct statutes, “the police

may not stop a peaceful demonstration merely because

a hostile crowd which does not agree with the views of

the demonstrators threatens violence and, in fact, owe

a duty to protect the peaceful individuals from acts

of hostility.” See City of Chicago v. Weiss, 281 N.E.2d 310,

315 (Ill. 1972). The Illinois Supreme Court consequently

limits Subsection D to preclude a “heckler’s veto.” So

5

The Illinois Supreme Court rightly maintains that disorderly

conduct statutes could reach speech expressed through incite-

ment, see Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam),

fighting words, see Chaplinsky v. New Hampshire, 315 U.S. 568

(1942), or obscenity, see Miller v. California, 413 U.S. 15 (1973),

which are modes of expression that are not protected by the

First Amendment. See B.C., 680 N.E.2d at 1369.

18 No. 11-2408

long as a speaker and his supporters refrain from acts

of disorderly conduct, police may not order them to

disperse when they are confronted by a hostile crowd.

In light of the Illinois Supreme Court’s constructions,

disorderly conduct does not refer to peaceful speech

or assembly. The ordinance’s triggering conduct

cannot be an act constituting protected expression (e.g.,

picketing or leafleting) or aimed at disrupting protected

expression. Nevertheless, Subsection D may still im-

plicate protected expression because, once triggered, it

may be applied to disperse people engaged in peaceful

speech or expressive conduct, including on topics of

public concern. See, e.g., Engquist v. Or. Dep’t of Agric., 553

U.S. 591, 600 (2008) (identifying speech on matters of

public concern as at the core of First Amendment pro-

tection). The question, then, is whether the law sub-

stantially does so. See Williams, 533 U.S. at 292-93.6

6

Expounding upon substantial overbreadth as a standard, the

Supreme Court has stated, “The concept of substantial

overbreadth is not readily reduced to an exact definition. It is

clear, however, that the mere fact that one can conceive of

some impermissible applications of a statute is not sufficient to

render it susceptible to an overbreadth challenge. . . . In short,

there must be a realistic danger that the statute itself will

significantly compromise recognized First Amendment

protections of parties not before the Court for it to be

facially challenged on overbreadth grounds.” City Council v.

Taxpayers for Vincent, 466 U.S. 789, 800-01 (1984). The Court’s

discussion of this standard underscores that both the

(continued...)

No. 11-2408 19

Per the plain language of the ordinance, law enforce-

ment may order an individual to disperse when at least

three others in his vicinity behave in a way that amounts

to disorderly conduct “likely to cause substantial harm

or serious inconvenience, annoyance or alarm.” Chicago

Municipal Code § 8-4-010(d) (emphasis added). The

ordinance phrases these worrisome effects disjunctively,

so police may order dispersal if any one of them is

likely to occur as a result of the conduct.

1. Dispersal on the Basis of Likely Substantial Harm

It is well established that otherwise protected speech

may be curtailed when an assembly stokes—or is threat-

ened by—imminent physical or property damage. The

Supreme Court has long held beyond First Amendment

protection speech or association that incites its audience

to imminent violence. See Brandenburg v. Ohio, 395 U.S.

444, 447 (1969) (per curiam). So, too, speech or associa-

6

(...continued)

numerosity of unconstitutional applications and the

importance of the speech affected may inform the substantial-

ness of a law’s infirmity. See E RWIN C HEMERINSKY , C ONSTITU -

TIONAL L AW P RINCIPLES AND P OLICIES 944-46 (3d ed. 2006) (citing

Richard Fallon, Jr., Making Sense of Overbreadth, 100 Y ALE L.J.

853, 894 (1991)). For the conclusion that a finding of sub-

stantial overbreadth depends upon a court’s implicit

judgments about whether expression is protected and whether

protected expression has been constitutionally regulated, see

S ULLIVAN & G UNTHER , supra note 3, at 1082.

20 No. 11-2408

tion that poses to a particular listener or group of

listeners an unambiguous invitation to brawl. See

Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); cf.

Cohen v. California, 403 U.S. 15, 22-24 (1971). And when,

for whatever reason, immediate danger to speakers and

protesters exists, the Court has held that speech may

be curtailed to prevent a riot or serious bodily injury

to those gathered. See Feiner v. New York, 340 U.S. 315,

321 (1951) (upholding law enforcement’s right to

interfere with protected expression when “faced with a

crisis”); see also Terminiello v. City of Chicago, 337 U.S. 1, 4-5

(1949) (holding that protected speech may not be

abridged or censored short of “a clear and present

danger of a serious substantive evil that rises far above

public inconvenience, annoyance, or unrest”). When

such conditions emerge, they bespeak dispersal as a

necessary means of averting danger and damage, and

the City may empower law enforcement to order people

to disperse without unconstitutionally burdening free

speech. In turn, law enforcement may arrest those indi-

viduals that refuse to leave when ordered, as their

failure to comply exacerbates the danger afflicting the

City and hinders law enforcement’s ability to secure the

situation. See United States v. O’Brien, 391 U.S. 367, 376

(1968) (“[W]hen ‘speech’ and ‘nonspeech’ elements are

combined in the same course of conduct, a sufficiently

important governmental interest in regulating the

nonspeech element can justify incidental limitations on

First Amendment freedoms. . . . [A] government regulation

is sufficiently justified if it is within the constitutional

power of the Government; if it furthers an important or

No. 11-2408 21

substantial governmental interest; if the govern-

mental interest is unrelated to the suppression of free

expression; and if the incidental restriction on alleged

First Amendment freedoms is no greater than is essential

to the furtherance of that interest.”).

If, as the Illinois Supreme Court assures, Subsection D

cannot be triggered by peaceful or otherwise protected

expression, then the logical corollary is that the

substantial harm contemplated by Subsection D is

physical danger or damage to the people and property

nearby. See M ERRIAM-W EBSTER D ICTIONARY O NLINE,

available at http://merriam-webster.com/dictionary (last

visited August 2, 2012) (defining “substantial” as “real,”

“essential,” or “considerable in quantity” and “harm”

as “physical or mental damage”); see also Shlahtichman v.

1-800 Contacts, Inc., 615 F.3d 794, 799 (7th Cir. 2010)

(“Dictionaries are a helpful resource in ascertaining the

common meaning of terms that a statute leaves unde-

fined.”). Accordingly, to the extent that Subsection D

authorizes dispersal when an assembly creates or is

threatened by “substantial harm,” it does not improperly

infringe upon protected speech. We cannot say the

same, however, for authorizing dispersal on the basis

of “serious inconvenience, annoyance or alarm.” Chicago

Municipal Code § 8-4-010(d).

2. Dispersal on the Basis of Likely Serious Inconve-

nience

The term “serious inconvenience,” in the context of a

disorderly conduct statute, likely envisions nuisances

22 No. 11-2408

such as the obstruction of public passages or amplified

noise that are well within a city’s power to regulate.

See M ERRIAM-W EBSTER D ICTIONARY O NLINE, available at

http://merriam-webster.com/dictionary (last visited

August 2, 2012) (defining “serious” as “having

important or dangerous possible consequences” and

“inconvenience” as “not convenient, especially in giving

trouble or annoyance”); see also Coates v. City of Cincin-

nati, 402 U.S. 611, 614 (1986) (underscoring that a city

is “free to prevent people from blocking sidewalks, ob-

structing traffic, littering streets, committing assaults,

or engaging in countless other forms of antisocial con-

duct”). Chicago has identified and proscribed those

serious inconveniences it finds problematic in its

Municipal Code, authorizing law enforcement to

penalize individual perpetrators when they commit a

specific nuisance that compromises the City’s safety and

order. See, e.g., Chicago Municipal Code § 10-8-330(b)

(prohibiting all parades on public ways without a per-

mit); § 8-32-070 (regulating music and amplified sound);

§ 8-4-055 (prohibiting sound-emitting devices audible

to others on public conveyances); § 8-4-140 (prohibiting

intentional injury to or obstruction of signal systems);

§ 8-4-065 (prohibiting the intentional interference with

utility equipment); § 8-4-081 (prohibiting public urina-

tion or defecation). The City intends Subsection D to

augment law enforcement’s authority under the Municipal

Code, empowering it to address inconveniences created

by three or more individuals not only by confronting

them, but also by dispersing anyone nearby—a tactic

that pertains in equal force to individuals exercising

No. 11-2408 23

protected First Amendment rights. But unlike the Munici-

pal Code’s treatment of nuisances, and likely in an

attempt to maximize flexibility and discretion for law

enforcement, Subsection D does not specify what incon-

veniences, if performed by three or more individuals,

may trigger an order to disperse. Nor does it clarify

that, whatever the inconvenience at issue, dispersal

must be necessary to confront the violation. To this end,

the ordinance lacks the necessary specificity and tailoring

to pass constitutional muster, and we must conclude

that the ordinance substantially impacts speech. See

Broadrick, 413 U.S. at 615.

The Supreme Court has held that when individuals

ordered to disperse or move along manifest a “bona fide

intention to exercise a constitutional right,” a city may

criminalize their refusal only when its “interest so

clearly outweighs the [individuals’] interest sought to

be asserted that the latter must be deemed insubstan-

tial.” Colten v. Kentucky, 407 U.S. 104, 111 (1972). A city’s

interest prevails only if the nuisances at issue risk sub-

stantial harm or if dispersal is otherwise necessary

to address the violations and transgressors. See Wash.

Mobilization Comm. v. Cullinane, 566 F.2d 107, 118-19

(D.C. Cir. 1977) (considering an ordinance com-

manding “every person present at the scene of [a public

disturbance] [to] comply with any necessary order or

instruction of any police officer” and holding that the

word “necessary” limited “police discretion to the ac-

complishment of the specified and properly narrow

purposes of the regulation”). As the Court emphasized

in Cox v. Louisiana:

24 No. 11-2408

The constitutional guarantee of liberty implies the

existence of an organized society maintaining public

order, without which liberty itself would be lost in

the excesses of anarchy. The control of travel on

the streets is a clear example of governmental responsi-

bility to insure this necessary order. A restriction

in that relation, designed to promote the public con-

venience in the interest of all, and not susceptible to

abuses of discriminatory application, cannot be disre-

garded by the attempted exercise of some civil

right which, in other circumstances, would be

entitled to protection.

379 U.S. 536, 553-55 (1965) (emphasis added). A law

insuring public safety and security is not susceptible

to abuses of discriminatory application when the

behavior it targets is clear and the law enforcement

action it authorizes is necessary to its success. Ac-

cordingly, law enforcement may disperse individuals

present only when its ability to control public nuisances

or obstruction demand that tactic. Cf. Boos, 485 U.S. at 330-

32 (declining to find overly broad an ordinance

criminalizing an individual’s refusal to obey a dispersal

order within 500 feet of an embassy because the law,

as construed, permitted dispersal “only when the police

reasonably believe[d] that a threat to the security or

peace of the embassy [was] present”). Even if the term

“serious inconvenience” were better defined, which it

is not, permitting dispersal when a serious incon-

venience may be alternatively controlled, as does Sub-

section D, does not meet this standard and im-

properly reaches otherwise protected expression. Cf.

No. 11-2408 25

Leonardson v. City of East Lansing, 896 F.2d 190, 197-98

(6th Cir. 1990).

3. Dispersal on the Basis of Likely Alarm

With respect to the undesirable effect of “alarm,” we

reiterate our conclusion in United States v. Woodard that

this term is “conjugate with the term ‘breach of the

peace,’ which may encompass the reaction of disturbance

and alarm on the part of others.” 376 F.2d at 141. We

consequently understand “alarm” as conjugate with the

term “disorderly conduct” as well. See Chicago Municipal

Code § 8-4-010(a), (d); see also supra note 4. Generally,

we avoid construing statutes “in a way that makes

words or phrases meaningless or superfluous.” United

States v. Chemetco, Inc., 274 F.3d 1154, 1160 (7th Cir.

2001) (quoting United States v. Franz, 886 F.2d 973, 978

(7th Cir. 1989)) (internal quotation marks and omissions

omitted). As used in Subsection D, however, the term

“alarm”cannot escape this fate. “Alarm” denotes “sud-

den apprehension and fear resulting from the percep-

tion of immediate danger.” See M ERRIAM-W EBSTER D IC-

TIONARY O NLINE, available at http://merriam-webster.

com/dictionary (last visited August 2, 2012) (defining

“alarm”). The Illinois Supreme Court has clarified that, for

purposes of our analysis, the immediate danger (dis-

orderly conduct) one perceives as alarming may not

be offensive ideas or language only; therefore, the disor-

derly conduct engendering the alarm at issue must be a

corporeal disturbance to which a viewer may react. See

Woodard, 376 F.2d at 141 (noting that actions provoke a

26 No. 11-2408

breach of the peace or amount to disorderly conduct when

they are contrary to “ordinary human conduct” and

“offend the mores of the community”). In other words, the

alarmed response derives from conduct likely to result

in substantial harm or serious inconvenience, as acts of

this nature are those likely to manifest danger. The term

“alarm” thus proves redundant, reiterating that law

enforcement may criminalize a failure to disperse

when confronted with the likely outcome of substantial

harm or serious inconvenience. “Alarm” does not

subsume within Subsection D any additional speech;

the term renders Subsection D overly broad only to the

extent that the terms “substantial harm” or “serious

inconvenience” do so.

As we discussed, however, law enforcement may con-

stitutionally order dispersal of those engaged in pro-

tected expression upon “serious inconvenience” only

when dispersal is required to combat the specified nui-

sances before it. See supra Part II.C.2. Just as Subsection D

lacks this circumscription with respect to dispersal

orders on the basis of “serious inconvenience,” so, too,

with respect to dispersal orders on the basis of “alarm.”

4. Dispersal on the Basis of Likely Annoyance

As for dispersal orders on the sole basis of “annoyance,”

Subsection D again cannot withstand constitutional

scrutiny. Unlike conduct likely to elicit alarm, disorderly

conduct likely to engender annoyance is not only those

actions that cause substantial harm or serious inconve-

nience. The ordinary meaning of “to annoy,” which is “to

No. 11-2408 27

trouble, to vex, to impede, to incommode, to provoke,

to harass or to irritate,” Coates, 402 U.S. at 613, compels

this reading: not every annoying act gives rise to im-

minent danger or nuisance.

Avoiding annoyance is never a proper basis on which

to curtail protected speech. See Coates, 402 U.S. at 615

(“The First and Fourteenth Amendments do not

permit a State to make criminal the exercise of the right

of assembly simply because its exercise may be ‘annoy-

ing’ to some people.”). This precept is most obvious when

the speech or assembly is the source of the annoyance

because, as the Supreme Court emphasized in Coates v.

Cincinnati, silencing otherwise protected speech because it

annoys is tantamount to “suspending unconditionally the

right of assembly and free speech.” Id. at 616; see also

Terminiello, 337 U.S. at 4 (“[A] function of free speech . . . is

to invite dispute. . . . Speech is often provocative and

challenging. It may strike at prejudices and preconceptions

and have profound unsettling effects as it presses for

acceptance of an idea.”). We do not diminish First Amend-

ment protection when, per the Illinois Supreme Court’s

construction, speech or assembly is not the source of the

annoyance in question. We cannot conceive of an

annoying behavior, however annoying it may be, that

could constitutionally draw as a remedy dispersing

others engaged in protected speech. Cf. Hill, 482 U.S. at

465 (“[W]e have repeatedly invalidated laws that

provide the police with unfettered discretion to arrest

individuals for words or conduct that annoy or offend

them.”).

28 No. 11-2408

In sum, we hold that to the extent Subsection D permits

dispersal orders against people exercising First Amend-

ment rights (1) when those around them are likely to

foster serious inconvenience or alarm, but dispersal is not

integral to law enforcement’s ability to control the nui-

sances, and (2) when they or those around them are

likely to foster annoyance, the ordinance substantially

encumbers protected expression vis-à-vis its legitimate

scope. See Broadrick, 413 U.S. at 615 (“[T]he overbreadth

of a statute must not only be real, but substantial as

well.”). While recognizing and respecting the City’s

need to protect its citizens and its streets, we conclude

that the ordinance is overly broad.

D. Fourteenth Amendment Challenge: Void for Vague-

ness

Subsection D satisfies due process only if it “define[s]

the criminal offense (1) with sufficient definiteness that

ordinary people can understand what conduct is prohib-

ited and (2) in a manner that does not encourage

arbitrary and discriminatory enforcement.” Skilling, 130

S. Ct. at 2927-28 (quoting Kolender, 461 U.S. at 357).

Having upheld as constitutional the ordinance’s defini-

tion of “disorderly conduct,” see supra note 4, we con-

sider only whether the phrase “which acts are likely

to cause substantial harm or serious inconvenience,

annoyance or alarm” comports with due process’ com-

mands.

No. 11-2408 29

1. Sufficient Definiteness

The Illinois Supreme Court has clarified that conduct

which Subsection D does not proscribe: failure to

disperse when all that transpires is peaceful speech or

assembly. See In re B.C., 680 N.E.2d at 1369; Raby, 240

N.E.2d at 598. We must assess, however, whether the

ordinance makes clear that conduct which does give

rise to a lawful dispersal order such that an ordinary

individual can understand when his failure to move

is criminalized. As we do so, we consider not only the

words of the ordinance, but also the context for which

the statute is written. See Grayned v. City of Rockford,

408 U.S. 104, 112 (1972) (noting that an ordinance’s

“particular context” may “give[] fair notice to those to

whom it is directed” (quoting Am. Commc’ns Ass’n v.

Douds, 339 U.S. 382, 412 (1950))).

In the context of a disorderly conduct ordinance, the

terms “substantial harm,” “serious inconvenience,” and

“alarm” specify what types of disorderly conduct will

trigger a lawful dispersal order. “Substantial harm,” as

we mentioned, signifies imminent property damage or

violence. See supra Part II.C.1. An individual can under-

stand that when the conduct of three or more people in

the vicinity will likely result in the immediate destruc-

tion of property or physical injury, that conduct will

trigger a dispersal order and his compliance is required.

Regarding dispersal on the basis of “serious inconve-

nience,” the term, without further explanation or refine-

ment, does not identify what nuisances amount to such

inconvenience that First Amendment rights constitution-

30 No. 11-2408

ally give way to Subsection D’s restrictions. See supra

Part II.C.2. Without greater specificity, the ordinance

denies individuals of common comprehension notice of

the prohibited conduct. One lacks warning about the

behavior that prompts a lawful dispersal order, and he

cannot know when he must move along if so ordered

by law enforcement.

The term “alarm,” as used in Subsection D, remains

coextensive with the terms “substantial harm” and

“serious inconvenience.” See supra Part II.C.3. Bounded

by these effects, the term is superfluous and does not

criminalize any additional behavior. Nevertheless, due

to its symbiotic relationship with the terms “substantial

harm” and “serious inconvenience,” it suffers from what-

ever imprecision afflicts them. “Alarm,” therefore, fails

to advance notice to the extent that “serious inconve-

nience” fails to do so.

Finally, to the extent that the ordinance criminalizes

one’s refusal to disperse when proximate to disorderly

conduct likely to annoy, it predicates penalty on an

inscrutable standard, which is no standard at all. See

Coates, 402 U.S. at 614. Assuming arguendo that

annoying behavior may constitute disorderly conduct,

see Woodard, 376 F.2d at 141 (noting that behavior that

is simply “eccentric or unconventional” typically falls

outside the bounds of disorderly conduct, “no matter

how irritable to others”), reasonable people may disagree

about what actions evoke this reaction. See Coates, 402

U.S. at 614 (“Conduct that annoys some people does not

annoy others.”). As a result, “[individuals] of common

No. 11-2408 31

intelligence must necessarily guess at [what it means to

annoy].” Id. (quoting Connally v. Gen. Constr. Co., 269

U.S. 385, 391 (1926)). The ordinance, therefore, runs afoul

of due process’ first requirement, see Skilling, 130 S. Ct. at

2927-28, because individuals who wish to comply with

Subsection D lack notice about what annoying

conduct may legitimately invite a dispersal order.

2. Arbitrary or Discriminatory Enforcement

Subsection D may also be void for vagueness if it is

susceptible to discriminatory or arbitrary enforcement.

The ordinance fails this second criterion if it impermis-

sibly delegates to law enforcement the authority to

arrest and prosecute on “an ad hoc and subjective ba-

sis.” Grayned, 408 U.S. at 108; see also Cox, 379 U.S. at 555-

56 (invalidating convictions for violating an ordinance

prohibiting the obstruction of public passages because

of the law’s routine, discriminatory enforcement). We

underscore, however, that a statute is not vague simply

because it requires law enforcement to exercise some

degree of judgment. See Grayned, 408 U.S. at 114.

To the contrary, due process rejects “sweeping

standard[s] [that] place[] unfettered discretion in the

hands of police, judges, and juries to carry out arbitrary

and erratic arrests and convictions.” Wright v. New Jersey,

469 U.S. 1146, 1151 (1985) (quoting Papachristou v. City

of Jacksonville, 405 U.S. 156, 162 (1972)) (internal quota-

tion marks omitted).

When law enforcement confronts a likelihood of “sub-

stantial harm,” dispersal orders avoid this defect. Sub-

32 No. 11-2408

stantial harm as a trigger curtails law enforcement’s

dispersal authority, limiting its power to situations in

which imminent property damage or violence prove

readily apparent. Such restriction ensures that, with

respect to this trigger, Subsection D does not facially

encourage standardless decision-making and enforce-

ment at odds with due process.

We conclude, however, that empowering law enforce-

ment to order dispersal when faced with the likelihood

of “serious inconvenience” is not immune from arbitrary

application. We recognize that predicating law enforce-

ment’s power on at least three people’s behavior adds

definition and heft to the ordinance’s “likelihood” lan-

guage, heightening the required probability of inconve-

nience before Subsection D may be invoked and limiting

when dispersal may be ordered. The ordinance does

not, however, limit dispersal authority to situations in

which dispersal is necessary to ensure the City’s safety

and order. See supra Part II.C.2. To that end, Subsection D

“allows an unrestricted delegation of power, which[,]

‘in practice leaves the definition of its terms to law en-

forcement officers, and thereby invites arbitrary, dis-

criminatory[,] and overzealous enforcement.’ ” Leonardson,

896 F.2d at 198 (quoting Cullinane, 566 F.2d at 117). The

ordinance permits law enforcement too much discretion

in determining when addressing a nuisance permits

quieting protected expression and when it does not.

Moreover, dispersal orders on the basis of “alarm,” when

the alarm coincides with the likelihood of serious incon-

venience, suffers the same infirmity.

No. 11-2408 33

Finally, permitting dispersal orders when con-

fronted with “annoyance” alone invites unbridled discre-

tion at odds with the Fourteenth Amendment. The

relative, and thus standardless, nature of annoyance

renders individuals vulnerable to arbitrary or discrim-

inatory arrest under Subsection D, failing to fulfill

due process’ second command. See Skilling, 130 S. Ct. at

2927-28. Accordingly, we conclude that Subsection D

is void for vagueness.

E. Subsection D’s Total Invalidation is Inappropriate

As facial failings, overbreadth and vagueness render

a law totally invalid. Where, however, constitutional

overbreadth or vagueness may be cured, “ ‘partial, rather

than facial, invalidation is the required course,’ such

that a ‘statute may . . . be declared invalid to the extent

that it reaches too far, but otherwise left intact.’ ” Ayotte

v. Planned Parenthood of N. New England, 546 U.S. 320,

329 (2006) (quoting Brockett v. Spokane Arcades, Inc., 472

U.S. 491, 504 (1985)).

As it assesses a law’s candidacy for partial invalida-

tion, a court may not invoke its remedial powers to

“circumvent the intent of the legislature.” Id. at 330.

“Partial invalidation may not be possible . . . if the legisla-

ture would not have passed the law without the uncon-

stitutional element, or if the statute lacks a severability

clause and the only way to remove the unconstitutional

element is total abrogation of the statute.” Commodity

Trend Serv. v. Commodity Futures Trading Comm’n, 149

34 No. 11-2408

F.3d 679, 688 n.4 (7th Cir. 1998) (citing Brockett, 472 U.S.

at 506).

As acknowledged in oral argument, Bell does not chal-

lenge Subsection D’s constitutionality to the extent that

it legitimizes dispersal when three or more people

are engaged in disorderly conduct likely to cause “sub-

stantial harm.” Additionally, we are confident, based on

the City’s representations to us, that it would prefer a

statute that permits dispersal on the basis of “substantial

harm” alone to no statute at all. See Ayotte, 546 U.S. at

330. We may, therefore, decline to invalidate Subsection D

in toto without invading the province of a legislature

or impinging upon principles of federalism. The City

may criminalize one’s failure “to obey a lawful order

of dispersal by a person known by him to be a peace

officer under circumstances where three or more

persons are committing acts of disorderly conduct in

the immediate vicinity, which acts are likely to cause

substantial harm.” Chicago Municipal Code § 8-4-010(d).

As for the remainder of Subsection D, the ordinance

may be rewritten or construed to avoid facial uncon-

stitutionality. The City may, for example, amend the

ordinance so that it applies only when dispersal is neces-

sary to redress an observable, specific nuisance. Further-

more, the City may, as is needed to save the ordinance,

abandon altogether dispersal orders on the basis of an-

noyance. Though these revisions are not overly complex,

they are the City’s to make. We leave to the City the

right to remedy its ordinance as it sees fit, see Am. Book-

sellers Ass’n, 484 U.S. at 397, restraining ourselves from

No. 11-2408 35

a “serious invasion of the legislative domain,” Ayotte,

546 U.S. at 330. We decline to rewrite Subsection D, and

we find the following unconstitutional: “or serious incon-

venience, annoyance, or alarm.” Chicago Municipal

Code § 8-4-010(d).

III. Conclusion

For the foregoing reasons, we R EVERSE the judgment

of the district court and R EMAND for further proceedings

consistent with this opinion.

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