Petition for Writ of Certiorari — Thomas v. Chicago Park Dist.

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00.<49 FEB - 1200)

No.

In the

Supreme Court of the Gnited States

CAREN CRONK THOMAS and WINDY CITY

HEMP DEVELOPMENT BOARD,

Petitioners,

vs.

CHICAGO PARK DISTRICT,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

WAYNE B. GIAMPIETRO RICHARD L. WILSON

MICHAEL J. MERRICK Counsel of Record

WITWER, POLTROCK 3610 Dubsdread Circle

& GIAMPIETRO Orlando, Florida 32804

125 S. Wacker Drive (407) 649-9225

Suite 2700

Chicago, Illinois 60606

(312) 332-6000

Attorneys for Petitioners

Midwest Law Printing Company/Photex - - Chicago — (312) 321-0220

\ B8er

Il.

III.

IV.

QUESTIONS PRESENTED

Does immediate access to the courts following a denial

of a permit for core political speech in a traditional

public forum constitute prompt judicial review, as

required by Freedman v. Maryland, without regard to

the length of time allowed for a judicial decision?

Must an ordinance requiring a permit for core political

speech in a traditional public forum include each of the

proce7ural safeguards established in Freedman v.

Mary.nd, or is that case only applicable to sexually

explicit speech presented by adult entertainment

businesses?

Is a content-neutral ordinance that requires a permit for

core political speech in a traditional public forum

analyzed as a prior restraint or under the more

- deferential standard applicable to time, place and

manner regulations?

May a plaintiff bring a facial challenge to a permit

ordinance which restricts political speech in a public

forum without first having to prove that the ordinance

has been unconstitutionally applied to him because of

the government's hostility to the plaintiff or his

proposed speech?

Can an ordinance requiring a permit for core political

speech in a traditional public forum include unfettered

discretion to issue or withhold permits?

PARTIES TO THE PROCEEDING

The Petitioners, who were Appellants in the Seventh

Circuit, are Caren Cronk Thomas and Windy City Hemp

Development Board, an Illinois not-for-profit corporation. The

original Plaintiff in the District Court was Robert MacDonald,

who died while this case was on appeal to the Seventh Circuit.

Thomas and the Board were allowed to substitute as parties

after MacDonald’s death.

The Respondent is the Chicago Park District, the

Defendant in the District Court and the Appellee in the Circuit

Court.

Except as stated above, all parties to the proceedings

below are parties to this Petition.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Counsel for the Petitioners

informs this Court that Windy City Hemp Development Board

has no parent or subsidiary corporations, and no publicly owned

company holds any ownership interest in the corporation.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................ i

PARTIES TO THE PROCEEDING .................. ii

TABLE OF AUTHORITIES ....................... vi

aun Cisse cccccscccceccece: l

EE OC l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................... l

STATEMENT OF THE CASE ...................... 2

REASONS FOR GRANTING THE WRIT............. 6

I. The Seventh Circuit opinion is in

direct conflict with decisions of other circuit

courts on the requirements of Freedman v.

EEE LE 8

A. This Court must determine

what constitutes prompt

judicial review ................. 8

B. The Court must also determine

who bears the burden to seek judicial

Il. The panel has decided important

federal questions in a way that

directly conflicts with relevant

decisions of this Court. ..........-+++- 18

A. A permit scheme restricting

core political speech in a public forum

must be analyzed as a

prior restraint ..........---+++> 18

B. A plaintiff must be allowed to facially

challenge a permit ..

scheme restricting core political

speech in a public forum ........ 20

CG. The panel decision approving a prior

restraint with unfettered discretion 1s in

direct conflict

with numerous decisions of this Court,

including FW/PBS, Inc. v.

City of Dallas ...........++++: 22

CONCLUSION ..... cece cece cee ec erence eeneeceee 24

TABLE OF APPENDICES

Appendix A — Opinion of the United States Court Of Appeals

for the Seventh Circuit, dated September 14, 2000. .1a

Appendix B — Order of the United States Court of Appeals

for the Seventh Circuit denying Petitioners’ Petition

for Rehearing, dated November 7, 2000....... 13a

Appendix C — Report and Recommendation of

United States Magistrate Judge

Arlander Keys, dated April 28,1998 ........... l4a

Appendix E — Unreported opinion of the United States

District Court for the Northern

District of Illinois, dated March 29, 1999... .... 7Sa

Appendix F — Pertinent provisions of the Chicago

Park District Code of Ordinances.

TABLE OF AUTHORITIES

Cases

11126 Baltimore Bivd., Inc. v. Prince George's County

58 F.3d 988 (4 Cir. 1995)... 2.6.6 ee eee eee 10

4805 Convoy, Inc. v. City of San Diego

183 F.3d 1108 (9 Cir. 1999)........... teens 13

Baby Tam & Co., Inc. v. City of Las Vegas

154 F.3d 1097 (9 Cir. 1998) ..........---055- 11

Bantam Books, Inc. v. Sullivan

STR UD, GOCE oc ccccccccccccsccccvccccs 20

Barnes v. Glen Theatre, Inc.

S01 US. SED CIGPA) ... ccccccccccccccccccccees 8

Beal v. Stern

184 F.3d 117 (2™ Cir. 1999) .......-.-- 2c eens 12

Books, Inc. v. Pottawattamie Co.

978 F. Supp. 1247 (S.D. IA. 1997) ...........-. 15

Boss Capital, Inc. v. City of Casselberry

187 F.3d 1251 (11 Cir. 1999)............. 14-15

Cannabis Action Network, Inc. v. City of Gainesville

231 F.3d 761 (11 Cir. 2000)............ 14-15,17

City News & Novelty, Inc. v. City of Waukesha

2001 WL 37653 (2000)... .. 6... ee eee eee 6,8,10

vii

City of Lakewood v. Plain Dealer Publ. Co.,

EE Te ED 21

Collin v. Chicago Park District, 460 F.2d 756-57 (7 Cir.

SUUEs ce babddcediacbsUebbabibbddcdevesscc, 5

Connick v. Myers 461 U.S. 138 (1983)................ 8

East Brooks Books, Inc. v. City of Memphis

GE PIE TIO” Gis. IGG onc ccccccccccs 10, 13

Forsyth County v. Nationalist Movement, 505 U.S. 123, 131

in 00 0b ed cbbdbedstdindswicdedeccbeces 4

Franken Equities, L.L.C. v. City of Evanston

967 F. Supp. 1233 (D. Wyoming 1997........... 15

Freedman v. Maryland

380 U.S. 51 (1965) .................. 5, 8-23, 25 |

FW/PBS, Inc. v. City of Dallas

493 U.S. 215 (1990)...... 5, 9, 10, 12, 13, 14, 17,18,

eeesedeeescesooas 19,20,22,23

FW/PBS, Inc. v. City of Dallas

837 F.2d 1298 (S* Cir. 1988) ................. 18

Graff v. City of Chicago

9 F.3d 1309 (7® Cir. 1993). .... 10, 11, 13, 16, 19, 23

Hague v. CIO

307 U.S. 496, $15 (1939).................. 7, 25

Vili

Jews for Jesus, Inc. v. Mass. Bay Transportation Auth.,

984 F.2d 1319 (1* Cir. 1993)... 2.0... 0.0 cece eee 11

MacDonald v. Chicago Park District

133 9.36 355 CF? Cle. IGDA) on ccccccccccccccces 4

MacDonald v. Safir

206 F.3d 184 (2™ Cir. 2000) ..... 0.0.2.2 .0055. 12

New York Times Co. v. Sullivan

Ss SOE co cccccccecccoesceccccesese 7

New York Times Co. v. United States

Gs CUSED ec cocccccccccceacceceoons 20

Pap's A.M., Inc. v. City of Erie, 529 U.S. 277 (2000) ..... 6

R.A.V. v. City of St. Paul

— lit & ew |. eee 6

Redner v. Dean

29 F.3d 1495 (11™ Cir. 1994) ...........00055. 13

River Park, Inc. v. City of Highland Park

23 F.3d 164, 167 (7 Cir. 1994)... ........0055. 10

Southeastern Promotions, Lid. v. Conrad

420 U.S. 546, 562 (1975). . 0... 6c cece eens 19-20

Stromberg v. California

283 U.S. 359, 369 (1931)... 6. cece eee ee 25

Thornhill v. Alabama

310 U.S. 88, 97 (1940... 66. cece eee eens 21

TK’s Video, Inc. v. Denton County

24 F.3d 705 (S" Cir. 1994)................... 12

Constitutional and Statutory

Provisions Involved

| RE eS ee 6-26

Chicago Park District Code, Chapter VII . . .2-4, 22-23,24, 9la

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit, reported at 227 F.3d 921, is reproduced at

Appendix A to this Petition. The Order of the Court of Appeals

denying the Petition for Rehearing en banc is reproduced at

Appendix B. The unreported opinion of the United States

District Court for the Northern District of Illinois is reproduced

at Appendix D.

JURISDICTION

The Court of Appeals entered its judgment on

September 14, 2000. Petitioners timely filed a Petition for

Rehearing en banc on September 28". The Petition was denied

on November 7, 2000. This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitutional provisions

The First Amendment to the Constitution of the United

States of America provides that “Congress shall make no law .

. . abridging the freedom of speech . . .

Statutory provisions

The Chicago Park District regulates the use of all parks

in the City through a permit ordinance. The provisions of that

Ordinance that are pertinent to this Petition are reproduced as

Appendix F.

STATEMENT OF THE CASE

The Chicago Park District Ordinance requires that

anyone planning to hold a political rally in any City park,

involving more than 50 people or utilizing “amplified sound,”

must first obtain a permit from the Park District’s General

Superintendent.' App. F at 92a-93a. The ordinance lists several

bases allowing the denial of a permit.’ For example, an

application can be denied if some Park District employee

decides for some reason that the application is “incomplete.”

An applicant can be denied if unspecified Park District officials,

in anon-public »rocedure that involves undisclosed information

from unknown sources, decide that an applicant, or some other

unknown or unnamed person or persons, violated some term or

condition of a prior permit.‘ A permit can be denied if, at a

prior event held by the applicant under a permit, there was

damage done to park property and the applicant has not paid for

1. Amplified sound is defined in Chapter VII, § A of the Ordinance as “any

sound projected or transmitted by artificial means, including, but not limited

to, loudspeakers, amplifiers, powered megaphones or any similar devices.”

App. F, at 91a.

2. Denial is discretionary. §§ 5(E) and 5(E)(5S) state that the General

Superintendent “may” deny a permit. Neither says “shall.” There are no

standards to limit the exercise of this discretion. App. F at 96a.

3. § S(e), App. F at 97a. Joan Fencik, General Counsel for the Park

District, testified before Magistrate Judge Keys that the Ordinance does not

require the Park District to inform an applicant why the application was

found to be “incomplete.” Presumably, this means that only the person

rejecting the application would know.

4. § S(e), App. F at 97a. There is no restriction as to which permit

provisions must have been violated. That is left to the unfettered discretion

of the Park District.

the damage; this basis can be utilized even if the damage at the

prior event was done by counter-demonstrators or others having

no relationship with the applicant.’ A permit can be denied if

persons unconnected with the applicant remained in the park

after a prior event. There are no provisions for a hearing

before or after a permit is denied.” The applicant is not entitled

to know who made the allegations, nor see any evidence of the

alleged violations. He is not even allowed to attend whatever

meeting or conference is held (if any) at which the decision to

deny a permit is made.

If the Park District finds a basis for denial, that finding

can result in a lifetime prohibition against the applicant

engaging in political speech in any City park, in the discretion

of the General Superintendent.

On March 5, I 997 Robert MacDonald applied for a

permit to hold a political rally on the subject of drug law

S. § 5(e)(5), App. F at 97a. In a hearing before Magistrate K.

} » eys on May 6,

1997, Fencik testified that the Park District can deny a permit regardless of

who damaged the park at a prior event.

6. Fencik testified to this constructic 1 of the Ordinance at the May 6”

7. “[T]here is no requirement of proof or adjudication to determine whether

such misconduct has occurred; it appears that the mere belief of the Park

District official that such misconduct occurred is enough to deny an

application.” App. C at 17a.

8. Fencik testified that the Park District construes the Ordinance as

authorizing a lifetime ban.

reform.’ The event was to be held in Grant Park. On March

12" MacDonald was notified that his permit application had

been denied. The principal reason given for the denial was a

determination by the Park District that he had violated the terms

of two permits for a political rally in September of the previous

year. MacDonald immediately filed an appeal, arguing that he

had never committed any violations of the previous permit.'®

The appeal was denied. MacDonald filed an amended appeal.

It also was denied.'' In response, MacDonald filed suit in the

District Court under 42 U.S.C. § 1983, arguing that the permit

ordinance was an unlawful prior restraint on free speech.

Magistrate Judge Arlander Keys entered a preliminary

injunction. The Park District appealed, and the Seventh Circuit

vacated the injunction. MacDonald v. Chicago Park District,

132 F.3d 355 (7™ Cir. 1997).

The parties engaged in limited discovery,'? and on

March 8, 1999 Magistrate Judge Keys filed his Report and

Recommendation. App. D. He recommended a judgment

9. It is difficult to imagine a more controversial subject, particularly ina

City where the administration has taken a hard line position against the

legalization of marijuana.

10. The “appeal” is a letter to the General Superintendent.

11. He did not get a permit for this rally, and even though he applied for

several more before he died, he never received another one.

12. The discovery was to determine if the Park District had a well-

established practice of constitutional construction and application of its

ordinance. Forsyth County v. Nationalist Movement, 505 U.S. 123, 131

(1992). The Park District refused to cooperate in the discovery, (as found

by both Magistrate Judge Keys and District Judge Marovich) and provided

no historical record of its past practice.

declaring much of the ordinance unconstitutional, and a

permanent injunction. But on March 29", United States District

Judge George M. Marovich rejected the Report, upheld the

ordinance in its entirety, and granted summary judgment for the

Park District. App. E. MacDonald appealed to the Seventh

Circuit.

On September 14, 2000 a panel of the Court of Appeals

affirmed, finding the ordinance constitutional in all respects.

App. A. The panel declined to utilize a prior restraint analysis,

finding such an analysis “not helpful” in deciding what it called

“novel cases.” App. A at 3a. The panel also said facial

challenges to such ordinances would not “provide much

assistance to judges.” Jd. The panel ignored this Court’s many

pronouncements on the value of core political speech, finding

instead that it is entitled to less protection under the First

Amendment than the sexually oriented speech typically

presented in topless bars and adult bookstores. The panel held

that the Park District did not bear the burden of initiating

judicial review when it denied a permit,'* and that the

procedural safeguards mandated by this Court in Freedman v.

Maryland, 380 U.S. 51 (1965), and reaffirmed in FW/PBS, Inc.

v. City of Dallas, 493 U.S. 215 (1990), only apply to ordinances

expressly authorizing censorship.

13. The panel never said why it found this case to be “novel.”

14. Interestingly, the Seventh Circuit had previously held that whenever the

Park District denies a free speech permit, it is required under Freedman to

initiate judicial procedures. Collin v. Chicago Park District, 460 F.2d 756-

57 (7 Cir. 1972). The Park District has apparently ignored that ruling for

nearly 30 years.

Petitioners Caren Cronk Thomas and the Windy City

Hemp Development Board filed a petition for rehearing en banc

on September 28, 2000. On November 7" the Court denied the

petition. App. B.

REASONS FOR GRANTING THE WRIT

This case is about the most precious aspect of the First

Amendment: the right of citizens to speak out publicly on issues

of political importance. The Petition involves each of the

factors listed in this Court’s Rule 10 that guide this Court’s

decisions on granting certiorari review. The decision below is

in direct and irreconcilable conflict with decisions of other

federal circuits,'* and relevant decisions of this Court. Of equal

importance, the Seventh Circuit has decided a significant

question of federal law, arising under the Free Speech Clause of

the First Amendment, that has not been settled by this Court,

but that cries out for resolution.

It is of the utmost constitutional importance that this

Court grant the Petition. The Petitioners’ speech is the most

important class of speech in our democratic republic.'* This

case is not about sexually explicit speech, that “falls only within

the outer ambit of the First Amendment’s protection.” Pap’s

15. This Court recognized the conflict; City News & Novelty, Inc. v. City of

Waukesha, No. 99-1680 (January 17, 2001).

16. In their concurring opinion in R.A.V. v. City of St. Paul, 505 U.S. 377,

422 (1992), Justices Stevens, White and Blackmun wrote: “Our First

Amendment decisions have created a rough hierarchy in the constitutional

protection of speech. Core political speech occupies the highest, most

protected position; commercial speech and nonobscene, sexually explicit

speech are regarded as a sort of second-class expression; obscenity and

fighting words receive the least protection of all.”

A.M. v. City of Erie, 529 U.S. 277, __, 120 S.Ct. 1382, 1391

(2000). At stake is the very life of the First Amendment’s

protection for core political speech in a traditional public forum.

The First Amendment is concrete evidence of our “profound

national commitment” to the principle that “debate on public

issues should be uninhibited, robust, and wide-open.” New

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). But in

the Seventh Circuit today, as a result of the opinion in this case,

the night to free political speech in public parks is in extreme

danger.'’ Yet, protecting political speech is why the First

Amendment was added to our Constitution:

The First Amendment “was fashioned to assure

unfettered interchange of ideas for the bringing

about of political and social changes desired by

the people.” Roth v. United States, 354 U.S.

476, 484 (1957); New York Times Co. v.

Sullivan, 376 U.S. 254, 269 (1964). “[S]peech

concerning public affairs is more than

self-expression; it is the essence of

self-government.” Garrison v. Louisiana, 379

U.S. 64, 74-75 (1964). Accordingly, the Court

has frequently reaffirmed that speech on public

issues occupies the “highest rung of the

hierarchy of First Amen¢;nent values,” and is

entitled to special protection. NAACP yv.

Claiborne Hardware Co., 458 U.S. 886, 913

(1982); Carey v. Brown, 447 U.S. 455, 467

(1980).

17. Public parks, of course, are that public forum “held in trust for the use

of the public and, time out of mind, have been used for purposes of

questions.” Hague v. C/O, 307 U.S. 496, 515 (1939).

Connick v. Myers, 461 U.S. 138, 145 (1983).

Core political speech survives, in the face of

government suppression, only because of First Amew«r.ent

principles forged by this Court. Now, with an unusual hesulity

to those principles, the Seventh Circuit has decided that

political speech is deserving of less protection than the sexually

explicit speech described by this Court as at the “outer

perimeters of the First Amendment.” Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 566 (1991).

1. The Seventh Circuit opinion is in direct conflict

with decisions of other circuit courts on the

requirements of Freedman v. Maryland.

Of prime importance to this Court, in meeting its

constitutional obligation to the lower courts, is the need to

resolve a serious conflict among the circuits on an issue of

significant importance: the requirement that a prior restraint of

speech provide for prompt judicial review. The circuits are

divided as to what “prompt judicial review” means. In its

opinion dismissing the petition in City News & Novelty, Inc. v.

City of Waukesha, 2001 WL 37653 at *2 (2001), the Court said:

“We granted certiorari to resolve the conflict.” That case is

now gone; this case presents the Court with a perfect

opportunity to finally resolve that conflict.

A. This Court must determine what

constitutes prompt judicial review.

In 1965, this court decided Freedman v. Maryland, 380

U.S. 51 (1965). The case involved a statute that required movie

exhibitors to submit every film to a review board to obtain a

license for showing the film in the state. The Court held that

whenever the government imposes a prior restraint on free

Se Oe a ee eee

procedural safeguards. of those safeguards requires

prompt judicial review if a license is denied. 380 U.S. at 59.

See also, FW/PBS, 493 U.S. at 228 (“there must be the

possibility of prompt judicial review in the event that the

license is erroneously denied.””)

; In Freedman the Court made it clear that the term

‘prompt judicial review” meant more than mere prompt access

to the judicial system:

Any restraint imposed in advance of a final judicial

determination on the merits must similarly be

limited to preservation of the status quo for the

shortest fixed period compatible with sound

judicial resolution. Moreover, we are well aware

that, even after expiration of a temporary restraint,

an administrative refusal to license, signifying the

censor’s view that the film is unprotected, may

have a discouraging effect on the exhibitor. See

Bantam Books, Inc. v. Sullivan, supra. Therefore,

the procedure must also assure a prompt final

judicial decision, to minimize the deterrent effect

of an interim and possibly erroneous denial of a

license.

380 U.S. at 59.

. Prompt judicial review, so clearly defined in Freedman,

is no longer required in the Seventh Circuit when the

government imposes a prior restraint on core political speech. '*

As several of the circuits, including the panel in this case, and

this Court in City News & Novelty, Inc. v. City of Waukesha,

2001 WL 37653 (January 17, 2001), have pointed out, there is

a serious split among the circuits as to just what that phrase

means after FW/PBS. That split must be resolved by this Court.

The conflict began when the Seventh Circuit decided

Graff v. City of Chicago, 9 F.3d 1309 (7 Cir. 1993) (en banc),

cert. denied, 511 U.S. 1085 (1994). In Graff, five judges said

that a permitting ordinance that allows prompt access to the

courts is all the First Amendment and Freedman require.

However, five judges disagreed, and two judges expressed no

opinion. Therefore, there was no holding on this point.'”

The Graff plurality opinion quickly came under fire.

When a county in Maryland argued to the Fourth Circuit that

under Graff prompt judicial access was sufficient, the Court

strongly rejected that claim and held that a prompt judicial

determination was required. //126 Baltimore Blvd., Inc. v.

Prince George's County, 58 F.3d 988, 994 (4" Cir. 1995)(en

banc), cert. denied, 516 U.S. 1010 (1995). In East Brooks

Books, Inc. v. City of Memphis, 48 F.3d 220, 224-25 (6th Cir.

18. It would appear that under the panel decision, prompt judicial review

1s required when the government imposes a restriction on topless dancing.

19. This did not prevent a panel in a later Seventh Circuit case to say: “The

opportunity to apply for that writ [of common-law certiorari] is enough, we

have held, even when rights under the first amendment are at stake. Graff

v. Chicago, 9 F.3d 1309, 1323-25 (7* Cir. 1993)(en banc).” River Park, Inc.

v. City of Highland Park, 23 F.3d 164, 167 (7* Cir. 1994 (emphasis added).

That panel consisted of Judge Manion, the author of the plurality in Graff,

Judge Easterbrook, also in the Graff plurality and a judge in this case, and

a district court judge.

1995), the Sixth Circuit also rejected the argument that mere

access to judicial review satisfies the Freedman prompt judicial

review requirement. While observing that “the Supreme Court

has not expressly defined prompt judicial review,” the Court

said that even if access were immediate, “a permit applicant

would still have to wait three to five months for judicial

review.” Jd. at 225. The court held that this delay did not

constitute prompt judicial review.

The Ninth Circuit added its voice in Baby Tam & Co.,

Inc. v. City of Las Vegas, 154 F.3d 1097, 1101 (9" Cir. 1998):

We reject the view of the Fifth and Seventh

Circuits that mere access to judicial review is

sufficient. As the Seventh Circuit

acknowledged in Graff, “[a] person always has

a judicial forum when his speech is allegedly

infringed.” Graff, 9 F.3d at 1324. Thus, to

hold that mere access to judicial review fulfills

the second Freedman safeguard makes the

safeguard itself meaningless. We conclude that

“prompt judicial review” means the opportunity

for a prompt hearing and a prompt decision by

a judicial officer.

Joining the Seventh Circuit in holding that prompt

access is all the First Amendment requires are the First and

Fifth Circuits. The First Circuit, in Jews for Jesus, Inc. v.

Massachusetts Bay Transportation Auth., 984 F.2d 1319 (1*

Cir. 1993), upheld a provision in an ordinance requiring prior

Interestingly, and without much discussion, the court said the

, lied with Freedman’s ‘udicial revi

requirement because it allowed a prompt administrative appeal

following denial of an authorization request. /d. at 1327.

There were no time limits for a decision by the administrative

hearing officer. Nevertheless, that did not convince the First

Circuit that the prior restraint imposed on protected speech was

unconstitutional.

In TK's Video, Inc. v. Denton County, 24 F.3d 705, 709

(5 Cir. 1994) the court held that prompt judicial access is all

that is required under Freedman and FW/PBS, with this

interesting statement:

Despite contrary suggestions in Justice

Brennan's opinion in FW/PBS, Inc. and

some uncertainty in the language of Justice

O'Connor's opinion in the same case, we

read the Supreme Court to insist that the

state must offer a fair opportunity to

complete the administrative process and

access the courts within a brief period. A

“brief period” within which all judicial

avenues are exhausted would be an

oxymoron.

Of interest are several decisions of the Second and

Eleventh Circuits on this same point. In Beal v. Stern, 184 F.3d

117, 129 (2™ Cir. 1999), a panel held that if an ordinance

requiring a permit to engage in political speech in a public park

allowed prompt judicial access to the courts, a common-law

certiorari proceeding would satisfy Freedman. But a second

panel opinion, authored by one of the judges from the first

panel, said that New York’s common-law certiorari procedure

may not meet the prompt judicial review requirement if it does

not mandate a prompt judicial decision. MacDonald v. Safir,

206 F.3d 184, 195 (2™ Cir. 2000). It appears, then, that in the

Second Circuit prompt access to @ court and # guarantee of a

prompt judicial decision is required.

Equally interesting are three decisions in the Eleventh

Circuit. In Redner v. Dean, 29 F.3d 1495, 1500-01 (11 Cir.

1994), cert. denied, 514 U.S. 1066 (1995), the court struck an

adult entertainment business licensing ordinance because it did

not contain the required Freedman safeguards. Some circuit

courts read the Redner opinion as rejecting the “prompt judicial

access” position. East Brooks Books, 48 F.3d at 225; 4805

on Inc. v. City of San Diego, 183 F.3d 1108, 1115 (9" Cir.

1999).

But the issue remains unclear in the Eleventh Circuit.

In Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251,

1255 (11" Cir. 1999), cert. denied, 120 S.Ct. 1423 (2000), the

court discussed the conflict:

The First, Fifth and Seventh Circuits hold

that for licensing ordinances, prompt

judicial review only means access to

prompt judicial review. See TK's Video,

Inc. v. Denton County, 24 F.3d 705, 709

(5* Cir. 1994), followed in Grand Brittain,

Inc. v. City of Amarilio, 27 F.3d 1068,

1070-71 (S* Cir. 1994) (per curiam); Graff

v. City of Chicago, 9 F.3d 1309, 1324-25

(7 Cir. 1993) (en banc); Jews for Jesus,

Inc. v. Mass. Bay Transp. Auth., 984 F.2d

1319, 1327 (1* Cir. 1993). On the other

side are the Fourth and Ninth Circuits and

arguably the Sixth, which hold that

Freedman and FW/PBS require a guarantee

of prompt judicial resolution. See Baby

Tam & Co. v. City of Las Vegas, 154 F.3d

1097, 1101-02 (9th Cir.1998), followed in

4805 Convoy, Inc. v. City of San Diego,

183 F.3d 1108 (9th Cir. 1999); 1/126

Baltimore Boulevard, Inc. v. Prince

George's County, 58 F.3d 988, 998- 1001

(4th Cir. 1995) (en banc); cf. East Brooks

Books, Inc. v. City of Memphis, 48 F.3d

220, 224-25 (6 Cir. 1995) (state certiorari

procedures an insufficient guarantee of

prompt judicial review).

The court said that for adult entertainment business

licensing ordinances, prompt access is sufficient:

[W]e agree with the First, Fifth and

Seventh Circuits and hold that access to

prompt judicial review is sufficient for

adult entertainment licensing ordinances.

187 F.3d at 1256-57 (emphasis added).

The court later clarified its holding in Cannabis Action

Network, Inc. v. City of Gainesville, 231 F.3d 761 (11" Cir.

2000), a core political speech case:”°

[O]ur distinction, in this instance, rests not

on the semantics of a given statute, but on

the inherent differences between the facts

of this case and cases involving business

licensing statutes such as those in FW/PBS

and Boss Capital.

20. Circuit Judge Dubina authored the opinions in Boss Capital and

Cannabis Action Network.

231 F. 3d at 775.”!

In Cannabis Action Network the City argued that even

in a core political speech case, prompt judicial access was

sufficient. But the Court declined to decide the question:

[W]e limited ourselves in Boss Capital to

the specific facts before us and decline to

answer the unposed question of whether

Freedman's requirement of “prompt

judicial review” demanded explicit

provision for prompt judicial determination

in challenges not involving business

licensing schemes. See id. at 1256-57. For

the reasons explained below, we need not

answer that difficult question today.

231 F.3d at 774.

The division among the circuits was expressly

recognized by the panel in this case. App. A at 1 la (citations

omitted). No one can disagree with Petitioners’ claim that this

issue has so divided the circuits that there is no consistent

principle of law applicable to the fifty states.” Citizens in some

21. This is a distinction the Seventh Circuit panel refused to make.

22. Page limitations prevent a discussion of how the conflict has affected

the district courts, particularly those in circuits where the circuit court has

not ruled on the issue. One can compare Books, Inc. v. Pottawattamie

County, 978 F. Supp. 1247 (S.D. lowa 1997), a court in the Eighth Circuit,

holding that prompt judicial access is sufficient, with Franken Equities,

L.L.C. v. City of Evanston, 967 F. Supp. 1233 (D. Wyoming 1997), a court

in the Tenth Circuit, holding that only a guarantee of a prompt judicial

(continued...)

states have greater constitutional protection for their right to

free speech (of all types) than citizens of other states. The

circuit courts are divided; the district courts are divided; and the

situation cries out for resolution by this Court.” As Judge

Ripple wrote in his concurring opinion in Graff, discussing

prompt judicial review:

The eyes of the bench and bar, and certainly

those of the Justices of the Supreme Court of

the United States who will undoubtedly be

asked to review our work, are a fragile

national resource. Under the unique

circumstances presented here, however, an

addition to the dialogue is justified because

this case presents a most difficult problem for

the court, a problem that, in the final

analysis, can only be resolved by additional

guidance from the Supreme Court of the

United States... .

Graff v. City of Chicago, 9 F.3d at 1333 (Ripple, J.,

concurring).

(...continued) |

decision will satisfy Freedman. Both of those cases involved adult business

licensing ordinances.

23. The panel opinion in this case says that the Eleveuth Circuit has held

that “for licensing ordinances, prompt judicial review only means access to

prompt judicial review.” But as we see in Cannabis Action Network, the

Eleventh Circuit takes that position only for sexually oriented business

licensing ordinances. This merely highlights Petitioners’ claim that the

conflict among the circuits grows worse by the decision, and must be settled

by this Court.

B. The Court must also determine who

bears the burden to seek judicial review.

There is also a conflict between the Seventh and

Eleventh Circuits on who must initiate judicial review. The

panel in this case said it is the unsuccessful permit applicant

who must seek judicial review:

If a person denied a permit for reasons that he

believes violate the First Amendment is

dissatisfied with a paper record reviewed in state

court by means of common law certiorari, he has

only to bring a suit in federal district court and if

the matter is urgent to seek as these plaintiffs’

predecessor (the deceased MacDonald) did a

preliminary injunction.

App. A at 10a.

But in the recent decision in Cannabis Action Network,

Inc. v. City of Gainesville, 231 F.3d 761, 776 (11" Cir. 2000)

the Eleventh Circuit disagreed:

In the case before us, the censored party lacks the

business incentive to pursue review through the

courts, and the speech at issue is core political

speech in a public forum .. . The right to speak

sought by CAN in this instance deserves greater

protection than that outlined by the plurality in

FW/PBS. Accordingly, we decline to relieve the

City of the requirement that its Street Closing

Ordinance meet Freedman's first procedural

safeguard.

This, then, becomes another conflict to resolve, adding

to the importance of granting this Petition for Certiorari.

Il. The panel has decided important

federal questions in a way that directly

conflicts with relevant decisions of this Court.

The Seventh Circuit panel issued several somewhat

remarkable pronouncements in this case. In at least two

respects, the panel declined to follow precedent from this Court.

The panel determined that a permit scheme restricting core

political speech in a traditional public forum is not analyzed as

a prior restraint but as a time, place and manner restriction.

App. A at lla. And the panel directed district courts not to

consider a facial challenge to such a permit ordinance unless thé

applicant can prove he was denied a permit because of

government hostility to him or his speech. Jd.

A. A permit scheme restricting core

political speech in a public forum must

be analyzed as a prior restraint.

In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)

this Court reviewed a licensing ordinance applicable to

“sexually oriented businesses.” The Court of Appeals for the

Fifth Circuit had found the ordinance valid after applying a

time, place and manner analysis. FW/PBS, Inc. v. City of

Dallas, 837 F.2d 1298 (5® Cir. 1988). In so doing the Fifth

Circuit rejected the appellants’ claim that the ordinance must

include the procedural safeguards from Freedman v. Maryland.

This Court granted review. Justice O’Connor, in a

plurality opinion, wrote:

We granted certiorari on the issue

whether the licensing scheme is an

unconstitutional prior restraint that fails

to provide adequate procedural

safeguards as required by Freedman v.

Maryland, 380 U.S. 51 (1965) .. .

Because we conclude that the city’s

licensing scheme lacks adequate

procedural safeguards, we do not reach

the issue whether the ordinance is

properly viewed as a content-neutral

time, place, and manner restriction

aimed at secondary effects arising out of

the sexually oriented businesses. Cf.

Southeastern Promotions, Lid. vy.

Conrad, 420 U.S. 546, 562 (1975).

493 U.S. at 222-23.

Justices Stevens and Kennedy joined the plurality.

Justices Brennan, Marshall and Blackmun, in a concurring

opinion, left no doubt that the ordinance was to be analyzed as

a pricr restraint. Therefore, six justices of this Court concluded

that Dallas’ content-neutral licensing regulation, requiring a

business to obtain city permission before engaging in free

speech, was a prior restraint.

Professing “confusion” about the decision in FW/PBS,**

and finding a prior restraint analysis “not helpful” (App. A at

3a), the Seventh Circuit has now decided that a “content-

neutral” ordinance restricting political speech is not a prior

24. Graff, 9 F.3d at 1334-35 (7* Cir. 1993)(plurality opinion).

restraint. The panel did exactly what the Fifth Circuit had done

in FW/PBS: it considered the ordinance as a time, place and

manner regulation.

The difference between a prior restraint and a time,

place and manner restriction is of great constitutional

significance. A prior restraint comes to the reviewing court

“bearing a heavy presumption against its constitutional

validity.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 558. The government bears a heavy burden to demonstrate

that a prior restraint meets the requirements of the First

Amendment. Bantam Books, Inc. v. Sullivan, 372 U.S. 58

(1963); New York Times Co. v. United States, 403 U.S. 713

(1971). A time, place and manner ordinance, like most laws, is

presumed valid, and one who challenges it bears the burden of

demonstrating its invalidity. A prior restraint restricting

political speech must include each procedural safeguard in

Freedman. A time, place and manner restriction need not.

It is clear that if the courts are allowed to disregard this

Court’s requirement that a prior restraint analysis be applied to

permit ordinances restricting political speech, the burden on the

unsuccessful permit applicant has been greatly increased, and

his ability to demonstrate the invalidity of the ordinance has

been greatly diminished.

B. A plaintiff must be allowed to facially

challenge a permit scheme restricting

core political speech in a public forum.

Core political speech survives, in the face of constant

governmental attempts to suppress it, only because of this

Court’s vigilance and the First Amendment principles forged

by this Court over decades. Now, with an unusual and

inexplicable hostility to those principles, the Seventh Circuit

has placed numerous and potentially insurmountable hurdles

before a political speaker denied the right to speak in a public

forum. Not the least of these is the panel’s strong suggestion

that facial challenges are merely semantic nit-picking, and that

speakers should not be granted relief unless they demonstrate

that permit denials have been motivated by government

hostility to the applicant or his message. In so holding, the

Seventh Circuit refused to follow this Court’s mandate in City

of Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750 (1988).

As this Court recognized, there are several reasons

behind allowing a facial challenge to governmental

impediments to the exercise of political speech. They include

the fact that the mere existence of the licensor’s unfettered

discretion, coupled with the power of prior restraint, intimidates

parties into censoring their own speech. City of Lakewood, 486

US at 757. It has been clear ever since Thornhill v. Alabama,

310 U.S. 88, 97 (1940), that “[p]roof of an abuse of power in

the particular case has never been deemed a requisite for attack

on the constitutionality of a statute purporting to license the

dissemination of ideas.” Yet, the Seventh Circuit panel has now

turned the clock back more than six decades, by requiring proof

of the censor’s abuse of power before one can attack the

legitimacy of that power.

Perhaps more importantly, where a governmental

agency has been given carte blanche authority to issue or refrain

from issuing permits, the lack of standards for such action

makes it difficult to distinguish between a licensor’s legitimate

denial of a permit and its illegitimate abuse of censorial power:

Standards provide the guideposts that

check the licensor and allow courts to

determine whether the licensor is

discriminating against disfavored speech.

Without these guideposts, post hoc

rationalizations by the licensing official and

the use of shifting or illegitimate criteria are

far too easy, making it difficult for courts to

determine in any particular case whether the

licensor is permitting favorable, and

suppressing unfavorable, expression.”

Lakewood, 486 U.S. at 758.

The panel decision now forces those wishing to speak

out on political issues to prove that which this Court has

recognized is not subject to proof, i.e., that the permit was

denied because of hostility to the content of the speech. This is

another instance of the panel’s rejection of long standing First

Amendment requirements which this Court has settled long

ago.

The panel decision approving a prior

restraint with unfettered discretion is in

direct conflict with numerous decisions

of this Court, including FW/PBS, Inc. v.

City of Dallas.

In two Reports and Recommendations, Magistrate Judge

Keys meticulously detailed numerous sections of the Ordinance

that clearly contain unlawful discretion. App. C; App. D. He

recommended that §§ C.4(c), (d) and (f), and §§ C.5(e) and

C.6(c) be found unconstitutional for that reason alone. App. D

at 60a-72a. He found that the Ordinance “gives the Park

District substantial power (whether or not exercised) to censor

based on the content or viewpoint of speech: discretion to deny

permit applications; discretion as to the fees and expenses

imposed on permittees; and discretion as to the time taken to

process an application.” App. D. at 33a.

District Judge Marovich, relying only on the opinion in

Graff, rejected Judge Keys’ recommendation and, instead,

found no unlawful discretion in the ordinance. App. E at 89a.

The Seventh Circuit panel ignored the issue. App. A at Sa-7a.

One need look no further than this Court’s opinion in

FW/PBS to understand that the district court and the Seventh

Circuit panel ignored this Court’s binding precedent on this

issue:

[A] scheme that places “unbridled discretion in the

hands of a government official or agency

constitutes a prior restraint and may result in

censorship.” Lakewood v. Plain Dealer Publishing

Co., 486 U.S. 750, 757 (1988). See Saia v. New

York, 334 U.S. 558 (1948); Niemotko v. Maryland,

340 U.S. 268 (1951); Kunz v. New York, 340 U.S.

290 (1951); Staub v. City of Baxley, 355 U.S. 313

(1958); Freedman v. Maryland, 380 U.S. 51

(1965); Cox v. Louisiana, 379 U.S. 536 (1965);

Shuttlesworth v. Birmingham, supra; Secretary of

State of Maryland v. Joseph H. Munson Co., 467

U.S. 947 (1984). “ ‘It is settled by a long line of

recent decisions of this Court that an ordinance

which . . . makes the peaceful enjoyment of

freedoms which the Constitution guarantees

contingent upon the uncontrolled will of an official

— as by requiring a permit or license which may be

granted or withheld in the discretion of such

official — is an unconstitutional censorship or prior

restraint upon the enjoyment of those freedoms.’ ”

Shuttlesworth, supra, 394 U.S., at 151 (quoting

Staub, supra, 355 U.S., at 322).

493 US. at 225-26.

None of the “criteria” found in the Park District

Ordinance contain any semblance of the specificity required by

decades of this Court’s jurisprudence. The litany of reasons set

forth in the ordinance for denial of a permit allows any request

for a permit to be denied. But the defect is more severe. It is

made constitutionally intolerable by the provision which states

that even though one or more of the reasons for denying a

permit exist, the Park District may, without giving any reasons,

grant the permit anyway. There is no constraint upon the Park

District’s freedom to deny any permit application based on the

message of the speaker! Whether the parks may be used for

political speech is dependent solely upon the whim of

politically appointed officials. Only by ignoring this Court's

clear precedent of over half a century can such a procedure be

countenanced.

The panel opinion is in stark contrast to this Court's

requirements for clear, objective standards whenever a prior

restraint is imposed on the right to free speech. This Ordinance

is simply a longer version of the parade ordinance condemned

in Shuttlesworth. This Court must grant review to correct the

Seventh Circuit’s misreading of numerous decisions of this

Court on this point.

CONCLUSION

The maintenance of the opportunity for free political

discussion to the end that government may be

responsive to the will of the people and that changes

may be obtained by lawful means, an opportunity

essential to the security of the Republic, is a

fundamental principle of our constitutional system.

Stromberg v. California, 283 U.S. 359, 369 (1931).

In the Seventh Circuit, core political speech -

expression on public issues — no longer occupies the highest

rung of First Amendment values. Incredibly, the Seventh

Circuit has now decreed that core political speech — described

by this Court as “the essence of self-government” — is to receive

less protection from potential government censorship than

sexually explicit speech in adult entertainment businesses.”

Permit schemes for political speech in public parks are no

longer prior restraints, and need not include Freedman’s

procedural safeguards. Public parks are not to be “used for

purposes of assembly, communicating thoughts between

citizens, and discussing public questions,””* but are primarily

for recreation. An unsuccessful applicant for a permit to engage

in free speech must bear the burden of initiating judicial review,

and bear the burden in court.” Unsuccessful permit applicants

must prove that a permit was denied because of government

25. The panel described core political speech as “political and ideological

agitation.” App. A at 4a.

26. Hague v. CIO, 307 U.S. 496, 515 (1939).

27. There is little difference between a citizen denied a permit for political

speech and a movie exhibitor denied a permit to show a film. “(I}t may

prove too burdensome to seek review . . . “ of the denial. Freedman, 380

U.S. at 59. The speaker may well be deterred from engaging in “a

protracted and onerous course of litigation.” Id. Denial of the permit “may

have a discouraging effect” on the political speaker. Id. But there is one

critical distinction: the value of the speech. The panel decided that sexually

explicit speech deserves more protection. This Court has consistently said

that core political speech is afforded the highest degree of protection.

hostility to them or their proposed speech. First Amendment

values have been turned upside down.

Petitioners cannot state their case in strong enough

terms. Core political speech is in serious danger. Permitting

authorities are now, for all practical purposes, the final arbiters

of who will speak in a public park and who will not, since

prompt judicial review of the denial of a permit is no longer

guaranteed. Unless this Court acts, speakers with views

disfavored by the government will be silenced, and only those

with a viewpoint winning government approval will have use

of our parks to advance their political beliefs.

This Petition for Certiorari must be granted to review

the decision of the Court of Appeals in this case.

Respectfully submitted,

Richard L. Wilson, Counsel of Record

3610 Dubsdread Circle

Orlando, Florida 32804

407.649.9225

Wayne B. Giampietro

Michael J. Merrick

Witwer, Poltrock & Giampietro

125 S. Wacker, Suite 2700

Chicago, I]linois 60606

312.332.6000

Attorneys for Petitioners

APPENDICES

In the

United Slates Court of Appeals

Jor the Seventh Circuit

No. 99-1811

CAREN CRONK THOMAS and WINDY CITY

HEMP DEVELOPMENT BOARD,

Plaintiffs-Appellants,

Vv.

CHICAGO PARK DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 2963—George M. Marvvich, Judge.

Argued April 19, 2000—Decided September 14, 2000

-Before POSNER, COFFEY and EASTERBROOK,

Circuit Judges.

POSNER, Circuit Judge. Among the regulations of

the Chicago Park District governing the use of its parks is

one requiring that a permit be obtained for an assembly,

parade, demonstration, sporting event, or other use of the

park by a group of 50 or more persons. Chi. Park Dist.

Code ch. VII § C. The regulation spells out the criteria for

the grant of such a permit, and the procedures for ob-

taining it and for challenging its denial, in considerable

detail. The plaintiffs, who want to use the park for rallies

in favor of repealing the laws criminalizing the sale of

marijuana, claim that the regulation violates the free-

speech clause of the First Amendment “on its face,” that is,

without regard to whether the regulation has been applied

in such a way as to infringe the right of free speech.

Forsyth County v. Nationalist Movement, 505 U.S. 123,

129-30 (1992); Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750, 755-59 (1988); North Avenue Novelties, Inc.

v. City of Chicago, 88 F.3d 441, 444 (7" Cir. 1996).

“Challenges to statutes as written, without inquiring into

their application, are appropriate when details of

implementation are inconsequential (usually because

nothing could be done in the course of application to save

the law) or when the laws are so overbroad that the risk

of improper application leads persons to withdraw from

_ the borderland. Fear of penalty, leading to a reduction in

speech, supports the doctrine that a person whose speech

lawfully could be regulated may challenge a statute

achieving regulation in an improper way, or to an

excessive extent.” Harp Advertising Illinois, Inc. v. Village

of Chicago Ridge, 9 F.3d 1290, 1291-92 (7™ Cir. 1993).

The plaintiffs claim that because a regulation that requires

permission to hold a political rally in a “public forum” (as

the Chicago Park District's parks are conceded to be)

imposes a “prior restraint” on the exercise of free speech,

it must, to pass constitutional muster, be free of any

element of vagueness or uncertainty that might enable the

regulation to be enforced in such a way as to deter or

impede the exercise of this most celebrated of

constitutional rights.

We do not find this a helpful formula. The

historical referent of “prior restraints” is censorship, see 4

William Blackstone, Commentaries on the Laws of England

151-53 (1769), which the administration of a park system

does not much resemble. The statement in the plaintiffs’

brief that “denial of a permit to hold a rally is the ultimate

censorship” is hollow rhetoric. It is a censor’s business to

make a judgment about the propriety of the content or

message of the proposed expressive activity. Because he is

in the business of suppressing such activity (friends of free

speech are not drawn to a career in censorship), the

danger of abuse is very great, especially when assessed in

light of the dismal history of censorship. The regulation

challenged here does not authorize any judgment about

the content of any speeches or other expressive activ-

ity—their dangerousness, offensiveness, immorality, and

so forth. It is not even clear that the regulation reduces

the amount of speech. A park is a limited space, and to

allow unregulated access to all corners could easily reduce

rather than enlarge the park’s utility as a forum for

speech. See Cox v. New Hampshire, 312 U.S. 569, 574-76

(1941); cf. Beal v. Stern, 184 F.3d 117, 128-29 (2d Cir.

1999). Just imagine two rallies held at the same time in

the same park area using public-address systems that

drowned out each other’s speakers. Cf. Ward v. Rock

Against Racism, 491 U.S. 781 (1989). The heterogeneity

of the practices that the “prior restraints” formula covers

(with the present case compare Freedman v. Maryland,

380 U.S. 51 (1965), involving a movie censorship board)

is reason to doubt that it can provide much assistance to

judges who have to decide a novel case.

The problem is general. General language, the

language in which legal principles are couched, tends not

to help much in the decision of cases in which weighty

interests are on both sides of the balance that the court is

asked to strike. Thus in this case there is, on the one

hand, a danger in giving officials broad discretion over

which political rallies shall be permitted to be conducted

on public property, because they will be ternpted to

exercise that discretion in favor of their political friends

and against their political enemies—and the advocates of

legalizing the sale of marijuana and other controlled sub-

stances have very few political friends. But, on the other

hand, a permit requirement is a sine qua non of managing

a park system in a way that will preserve the value of the

parks for the general public. Parks are primarily for

recreation rather than for political and ideological agi-

tation. They cannot be preserved in the primary use for

which they are intended if any group can hold a rally of

any size and length at any time with amplified sound of

any volume. Clark v. Community for Creative Non-Violence,

468 U.S. 288, 296 (1984). Indeed, as we noted earlier,

without regulation even the agitators might not be able to

get their message across.

The competing interests cannot be weighed in the

abstract in other than the grossest sense, and so a “cor-

rect” balance cannot be struck. This must give pause to

any court minded to strike down a permit regulation on its

face and so without consideration of its application to a

particular event for which a permit was denied. A

challenge to the wording as distinct from the actual

application of a regulation invites semantic nit-

judicial usurpation of the legislative drafting a

an effort to avert, without creating loopholes, dangers at

best hypothetical and at worst chimerical. The problem is

well illustrated by this case as we consider the plaintiffs’

objections to the regulation, all of which the district court

rejected en route to granting judgment for the park district

after another panel of this court reversed the grant of a

preliminary injunction. MacDonald vy. Chicago Park

District, 132 F.3d 355 (7 Cir. 1997).

The regulation authorizes the denial of a permit on

4 variety of grounds none of which has anything to do

with the content of expressive activity. Chi. Park Dist.

Code ch. VII § CS(e). One is that the applicant “has on

prior occasions made material misrepresentations regard-

ing the nature or scope of any event or activity previously

permitted.” The plaintiffs contend that the word

material” is excessively vague. The contention is frivo-

lous. The word is one of the elemental legal terms, and is

considered quite definite enough to form the keystone of

criminal prohibitions against fraud. The residual vague-

ness that it shares with most words could be eliminated

only by eliminating it from the regulation, but that would

make the regulation more rather than less restrictive. The

plaintiffs say that “misrepresentation” is vague too, and

would prefer “falsehood.” They have not suggested a

substitute for “material” and so in effect they want us to

rewrite the regulation so that it authorizes denying a

permit to anyone who has told the park district a fib. Al!

that their contention regarding the vagueness of “material

misrepresentation” shows is the limits of language and so

the inherent limitations of “facial” challenges.

They complain that the grounds for denial of a

permit are permissive. The park district “may” deny a

permit because of a misrepresentation, the failure to

tender the fee, having damaged property of the park

district on a previous occasion, or other grounds listed in

the regulation, but it is not required to; it can forgive. The

plaintiffs argue that this power of mercy arms the park

district to pick and choose among applicants on political

grounds. It indeed creates such a danger; but if this

discretionary feature of the regulation were excised, the

regulation would be more restrictive than it is (just as it

would be if “falsehood” were substituted for “material

misrepresentation”). This is another example of how free

speech is so often on both sides of the balance in cases of

the regulation as distinct from the prohibition of speech,

a consideration that should make courts hesitant to

invalidate such regulations. An even clearer example is a

provision of the ordinance waiving the required permit fee

for events protected by the First Amendment. The

plaintiffs complain that this is vague, but do not indicate

how it could be made less vague yet encompass the

myriad activities that the First Amendment has been held

to protect. Curtailing speech is an odd way of protecting

speech.

The regulation requires applicants for permits to

obtain liability insurance in the amount of $1 million to

indemnify the park district against liability arising from a

rally that might degenerate into a riot. (That is the

amount of the policy, not the premium, which for the type

of event envisaged by the plaintiffs would not exceed

$1,200.) The plaintiffs argue ingeniously that since

violence to person or property incidental to a political rally

is likely to arise from the unpopularity of the cause

espoused by the rally’s sponsors or speakers, the

requirement of buying insurance amounts to a “heckler’s

veto, which the cases hold is not a proper basis for

restricting free speech. Forsyth County v. Nationalist

Movement, supra, 505 U.S. at 134-35; Terminiello vy.

Chicago, 337 U.S. 1, 4-5 (1949); Cox v. Louisiana, 379

U.S. 536, 551-52 (1965); Chicago Acorn v. Metropolitan

Pier & Exposition Authority, 150 F.3d 695, 701 (7® Cir.

1998). But the amount of insurance required is not based

on, or, so far as has been shown, influenced by, the nature

of the event, and specifically by whether it involves

controversial expressive activity likely to incite violence by

onlookers or Opponents. The required amount and the

cost of the insurance depend only on the size of the event

and the nature of the facilities involved in it (a bandstand,

Stage, tents, and so forth).

. The park district requires that applications for

permits be filed 30 days in advance - 60 days if special

facilities are to be involved, such as sound amplification

which unless limited can violate the city’s noise ordinance.

The plainuffs argue that these periods are too long and

inhibit rallies responding to fresh news and startling

events. But since thousands of permit applications are

filed with the park district every year, it would be

burdensome to require the park to process the applications

in a significantly shorter time. The park district's policy,

moreover, is to allow “spontaneous” rallies in reaction to

current events. The opportunities for abuse are manifest

See ae Gene eee ee

vi can bring a judicial challenge to permi

regulation as applied to them. Ae =

The plaintiffs reserve their strongest objection for

the regulation’s failure to provide for searching judicial

review of permit denials. They also complain about the ab-

sence of any deadline for the completion of such judicial

review as the law affords them, not noticing the tension

with their desire that the review be penetrating and

meticulous — which takes time. In Graff v. City of Chicago,

9 F.3d 1309 (7 Cir. 1993) (en banc), the full court con-

fronted the same issues of the adequacy and timing of

judicial review in the context of an ordinance regulating

newsstands on the city’s sidewalks. The court was badly

fractured, but counting noses one discovers that a majority

believed that the judicial review procedure was good

enough for a regulation of expressive activity when the

regulation is not a form of censorship, that is, does not

require or permit the regulatory authority to evaluate the

content or message of the activity regulated. Id. at 1324-

25 (plurality opinion), 1330-33 (concurring opinion). This

regulation does not.

Review of agency action in Illinois is governed by

an administrative procedure act (similar to the federal act,

International College of Surgeons v. City of Chicago, 153

F.3d 356, 364 (7™ Cir. 1998)) — but only if the statute

creating the agency so provides. 735 ILCS 5/3-104. If it

does not so provide, and it does not with respect to the

park district's denial of permit applications, the agency's

action is reviewable only by means of a proceeding for

common law certiorari. But this turns out to be a

distinction without a difference. The proceeding is

instituted in the same state court that would review the

action under the administrative procedure act, Smith v.

t of Public Aid, 367 N.E.2d 1286, 1293 (1977),

and although the standard of review is stated in different

words from those used in that act, it amounts to the usual

substantial-evidence review that is familiar from

administrative law. The reviewing court does not take

evidence but relies on the record compiled in the

administrative proceeding and seeks only to determine

whether the agency's legal conclusions are correct and the

agency's factual conclusions supported by substantial

evidence, e.g., Norton v. Nicholson, 543 N.E.2d 1053, 1059

(Ill. 1989), or in other words not clearly erroneous. The

review process is thus the same as under the state’s

administrative procedure act - as indeed the Supreme

Court of Illinois stated in Hanrahan v. Williams, 673

N.E.2d 251, 253-54 (111. 1996).

The plaintiffs argue that the park district should in

every case in which it denies a permit be required to seek

judicial review of its own action. The argument is based on

a misreading of Freedman v. Maryland, supra, 380 U.S. at

58-59, which holds only that the government may not

regulate the content of speech without judicial authoriza-

tion and so does not extend to time, place, and manner

licensing systems. The Supreme Court made that clear in

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228-230

(1990) (plurality opinion), id at 244 (concurring

opinion), id. at 249 (concurring and dissenting opinion).

But their principal complaint about the judicial-

review procedure we've outlined, other than the lack of a

deadline for the court’s decision, is that there is no

provision for an oral hearing. An applicant denied a

permit can appeal the denial to the park district's

superintendent, and submit any documents he wants, and

the district must give written reasons for its action. But all

submissions are in writing and therefore, the plaintiffs

argue, the record compiled before the park district is

10a

insufficient to enable meaningful judicial review of the

superintendent's action. The argument is defeated by the -

plaintiffs’ own emphasis on the importance of expedition.

The regulation requires the park district to act on a permit

application within 28 days and an appeal from the denial

of such an application to be decided by the superintendent

within 7 days. These deadlines are too tight to permit an

evidentiary hearing with oral testimony, cross-

examination, and the other accouterments of a trial. The

plaintiffs have to choose between orality and expedition;

they refuse to do so.

The entire emphasis on judicial review and

evidentiary hearings is misplaced. If a person denied a

permit for reasons that he believes violate the First

Amendment is dissatisfied with a paper record reviewed

in state court by means of common law certiorari, he has

only to bring a suit in federal district court and if the

matter is urgent to seek as these plaintiffs’ predecessor

(the deceased MacDonald) did a preliminary injunction.

See Patsy v. Board of Regents, 457 U.S. 496 (1982); Van

Harken v. City of Chicago, 103 F.3d 1346 (7 Cir. 1997);

Hameetman v. City of Chicago, 776 F.2d 636 (7" Cir.

1985). Given that the plaintiffs have two remedies, one in

state court and the other in federal court, the possible

inadequacies of the state remedy, inadequacies in any

event balanced by the expedition that barring oral

testimony permits, are trivial.

The plaintiffs fear that the required expedition at

the administrative level will be undone by foot dragging

at the state court level, since there is no deadline on when

the state court must render its decision in a common law

certiorari proceeding. It is of course unusual though not

lla

unknown to impose a time limit on judges, the fear being

that it will both disrupt the orderly management of a

judicial docket and conduce to hasty decision making.

Since 42 U.S.C. § 1983, the statute under which federal

constitutional claims are litigated in the federal courts,

does not impose any requirement (with immaterial excep-

tions) of exhausting state judicial remedies, the victim of

foot dragging in state court can always bring a parallel

suit in federal court, complaining that the delay is denying

him an adequate remedy for the violation of his con-

stitutional rights.

Although a number of cases hold that judicial

review of the denial of a permit must indeed be

“deadlined,” Baby Tam & Co. v. City of Las Vegas, 154 F.3d

1097, 1101-02 (9" Cir. 1998); 11126 Baltimore Blvd., Inc.

v. Prince George $ County, 58 F.3d 988, 998-1001 (4"" Cir,

1995) (en banc); East Brooks Books, Inc. v. City of

Memphis, 48 F.3d 220, 224-25 (6" Cir.1995); Redner v.

Dean, 29 F.3d 1495, 1501-02 (11™ Cir. 1994); contra, City

News & Novelty, Inc. v. City of Waukesha, 604 N.W.2d 870,

881-82 (Wis. App. 1999), cert. granted, 120 S.Ct. 2687

(2000); TK’s Video, Inc. v. Denton County, 24 F.3d 705,

707-09 (S" Cir. 1994), they all involve special licensing

regimes for sexually oriented businesses. They are based

on Supreme Court cases involving censorship, such as the

Freedman case cited earlier, or quasi-censorship, such as

the ordinance at issue in FW/PBS, Inc. v. City of Dallas,

supra, which required the licensing of such businesses.

The government's evident concern with the content of the

“speech” disseminated by such businesses argues for

greater judicial vigilance than in time, place, and manner

cases, in which our rejection of deadlining in Graff, 9 F.3d

at 1324-25, stands uncontradicted. Cf. Jews for Jesus, Inc.

12a

v. Massachusetts Bay Transportation Authority, 984 F.2d

1319, 1327 (1st Cir. 1993). Realism required recognition

of the danger that state courts might drag their heels in

deciding appeals by sexually oriented businesses from

denials of licenses. The permit requirement at issue here

is far more general and so far as appears the permits that

are denied do not relate to controversial or unpopular

expression. Especially i: the absence of any showing,

which has not been attempted, that the Chicago Park

District is trying to restrict the expression of unpopular

ideas or that the state courts are not acting with

reasonable promptitude on appeals from permit denials,

a more relaxed attitude toward the pace of judicial review

is warranted than in the case of regulation targeted at

unpopular expression. Cf. Ward v. Rock-Against Racism,

supra, 491 U.S. at 795; Stokes v. City of Madison, 930

F.2d 1163, 1170 (7™ Cir. 1991); MacDonald v. Safir, 206

F.3d 183, 191 (2d Cir. 2000).

AFFIRMED

13a

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

November 7, 2000

Before

Hon. Richard A. Posner, Circuit Judge

Hon. John L. Coffey, Circuit Judge

Hon. Frank H. Easterbrook, Circuit Judge

No. 99-1811

CAREN CRONK THOMAS Appeal from the United

and WINDY CITY HEMP States District Court for

DEVELOPMENT BOARD, the Northern District of

Plaintiffs-Appellants, _ Illinois, Eastern Division

VS. No. 97 C 2963

CHICAGO PARK DISTRICT, George M. Marovich

Defendant-Appellee. Judge

ORDER

On September 28, 2000 plaintiffs-appellants filed

a petition for rehearing and petition for rehearing en banc

and on October 24, 2000, defendant-appellee filed an

answer. All the judges on the original panel have voted to

deny the petition, and none of the active judges has

requested a vote on the petition for rehearing en banc.

The petition is therefore

DENIED.

14a

Dated: April 27, 1998

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROBERT MACDONALD,

)

Plaintiff, )

) No. 97 C2963

v. )

ng ) Judge George M. Marovich

CHICAGO PARK DISTRICT, .

)

body political and corporate, Magistrate Judge

Arlander Keys

Defendant.

TO: THE HONORABLE GEORGE M. MAROVICH

UNITED STATES DISTRICT COURT JUDGE

REPORT AND RECOMMENDATION

Before the Court is Plaintiff's Motion for Second

Preliminary Injunction, pursuant to Federal Rule of Civil

Procedure 65. Also before the Court are cross motions for

partial summary judgment as to the “facial” challenges,

and Defendant's motion for partial summary judgment

concerning the “as applied” challenges. For the reasons

set forth below, this Court recommends that the

application for preliminary injunction, as well as each

cross motion for partial summary judgment as to the

“facial” challenges, be denied. However, the Court

recommends that Defendant's motion for partial summary

judgment as to the “as applied” challenges be granted.

15a

BACKGROUND

Plaintiff, Robert MacDonald, and Defendant, the

Chicago Park District (the “Park District”) are once again

before this Court in a continuation of their ongoing

dispute concerning Mr. MacDonald's attempts to hold

political rallies, addressing the legalization of marijuana,

in Chicago’s Parks (specifically Grant Park - at Butler

Field adjacent to Petrillo Bandshell). For various reasons,

Mr. MacDonald has been unable, at least during the past

year, to obtain a permit from the Park District for his

rallies.’

Mr. MacDonald challenges Chapter VII of the Park

District's Permit Ordinance (the “Ordinance”) both facially

and as applied to him.

I. The Ordinance

Although the Park District may undoubtedly impose

reasonable time, place, and manner restrictions as part of

a facially neutral permitting scheme, the Ordinance

provides numerous grounds for denial of a permit that

appear to go beyond time, place, and manner restrictions.

It is principally those grounds for denial of a permit to

which Mr. MacDonald objects.

Section C(3)(a) of the Ordinance requires that a

1. The Park District did recently grant, in part, a revised

permit application for a rally to be held in August of 1998.

See, infra, n.8.

> ————— eC

16a

group of more than fifty people that desires to assemble,

or anyone who wishes to use amplified sound other than

for his/her own personal enjoyment, obtain a permit for

use of the public parks. An application for a permit must

be submitted between ten to sixty days in advance of the

event, depending on whether the event is a picnic, an

athletic event, or a festival.

All applications must be accompanied by an

application fee. Ordinance § C(4)(b). Additionally, §C(4)

prescribes a substantial user fee, and also requires

applicants to purchase liability insurance of at least one

million dollars and to post a security deposit.’

With respect to the only written waiver provision

contained in the Ordinance - § C(6) (c) -— the Park

District waives the user fee, the security deposit, and/or

the insurance requirement (but not the application fee) if

the permit is sought for activity “protected by the First

Amendment” and the applicant is unable to pay. There is

no definition in the Ordinance of what activities are

“protected by the First Amendment of the United States

Constitution.” Ordinance § C(6)(c).

The Park District may, but is not required to, deny

a permit for any number of reasons including an

2. The Park District is supposed to make a decision

regarding the permit application within fourteen days.

Ordinance §C(5). However, it can extend the decision-

making period for an additional fourteen days, without

providing any reason for such extension.

17a

applicant’s: prior “material misrepresentations” about a

permitted event; violations of a prior permit; material

falsehoods” on the application; and prior damage to Park

District property. See Ordinance, § C(5)(e). Although the

foregoing bases for permit denial would appear to involve

culpable misconduct, there is no requirement of proof or

adjudication to determine whether such misconduct has

occurred; it appears that the mere belief of the park

District official that such misconduct occurred is enough

to deny an application. Moreover, the Ordinance is silent

on the issue of how long a person can be disqualified from

getting another permit, based upon previous violations.

The ban on speech and assembly arising from alleged

prior misconduct conceivably could last a lifetime.

Notwithstanding its seemingly stringent permit

scheme, the Park District sometimes allows more than fifty

people to assemble, with artificial amplification of sounds,

in the absence of a permit. These permitless events,

though neither recognized nor exempted under the

Ordinance, occur when there is a “spontaneous”

demonstration, or where the Park District or City has

“sponsored” an event. The Park District, apparently,

makes an ad hoc determination as to whether to allow

political rallies to occur (and to ignore/waive its own

permit requirements).

For example, even though Mr. MacDonald had no

permit for May 10 and 11, 1997, the Park District did not

stop his rally and, in fact, helped him to plan for it.

Further, he was allowed to use a bullhorn and other

means of sound amplification, including portable speakers

affixed to poles.

18a

Il. | Mr. MacDonald's Rallies

In August of 1996, the Park District issued two

permits to Mr. MacDonald to hold events similar to the

one for which he now seeks a preliminary injunction.

After the events, the Park District’s Deputy General

Counsel, Joan Fencik, gave Mr. MacDonald written notice

that his security deposit would not be returned. That

letter, dated September 17, 1996, explained that Mr.

MacDonald’s failure to arrange for portable toilets caused

the Park District to incur expenses for delivery and use of

such toilets during his events. Additionally, the Park

District stated that it incurred expenses: to open and clean

the underground bathrooms at Butler Field; to clean the

stage and seating area at Butler Field (adjacent to Petrillo

Bandshell) after the events; and to restore that seating

area to its usual configuration. Finally, Ms. Fencik’s letter

noted that, at the events, multiple violations of the

permits’ terms occurred, including: alcohol consumption;

unpermitted vendors; unpermitted vehicles; unpermitted

tents and canopies; improper location of the generator, in

violation of the fire code; and loitering by individuals who

remained in the park past 11:00 p.m.

On March 4, 1997, Mr. MacDonald applied to the

Park District for a permit to hold a rally and march on

May 10 and 11, 1997. Ms. Fencik denied Mr.

MacDonald's permit application by letter dated March 12,

1997. Ms. Fencik cited three reasons for denial of Mr.

MacDonald’s permit: (1) multiple violations of the two

permits issued to him in August of 1996; (2) failure to

provide proof of his unincorporated association’s tax-

exempt status; and (3) inability of his association to enter

into contracts.

19a

On March 18, 1997, Mr. MacDonald appealed the

denial of his permit application to the Park District's

General Superintendent. Mr. MacDonald contested all of

the alleged previous violations. On March 24, 1997, the

General Superintendent denied the appeal and affirmed

Ms. Fencik’s decision. On March 18, 1997, Mr.

MacDonald filed an amended appeal, which the General

Superintendent denied on March 26, 1997.

Mr. MacDonald's first motion for preliminary

injunction was filed on April 25, 1997, together with the

Verified Complaint for Declaratory Judgment and

Permanent Injunction.’ Mr. MacDonald requested an

emergency preliminary injunction compelling the Park

District to issue a permit for a rally to be held on May 10

and 11, 1997 (from noon until 10:00 p.m. each day). On

May 9, 1997, this Court issued a Report and

Recommendation, which concluded that Mr. MacDonald's

emergency application for a preliminary injunction should

3. This matter is brought under 42 U.S.C. §1983, and

alleges a violation of rights secured by the First

Amendment to the United States Constitution, made

applicable to the States by the Fourteenth Amendment. In

the underlying Verified Complaint for Declaratory

Judgment and Permanent Injunction (“Complaint”)-

which challenges the Ordinance both facially and “as

applied” - Mr. MacDonald seeks a declaration that the

Park District's grounds for permit-denial, set forth in §

C(S)(e) of the Ordinance, is unconstitutional. Mr.

MacDonald also seeks an injunction permanently

prohibiting the Park District from enforcing that portion of

the Ordinance.

20a

be denied due to his delay in seeking that relief.‘

Although no preliminary injunction issued, Mr.

MacDonald held a rally on May 10 and 11, 1997. During

the rally, the Park District cooperated with him, and

assisted him by opening up bathrooms, bringing in

garbage cans, and allowed him to use a bullhorn and

other sound amplification. No trespassing or other

complaint was made against Mr. MacDonald for this

event.

On May 23, 1997, Mr. MacDonald filed his second

application for a preliminary injunction, requesting an

order enjoining the Park District from enforcing its permit

ordinance, and permitting him to hold a rally on August

23 and 24, 1997.° On July 2, 1997, the parties consented

to the exercise of jurisdiction by this Court concerning the

second application, and on July 21, 1997, an evidentiary

hearing was held. In its Memorandum Opinion and Order

of August 15, 1997, this Court granted in part, and denied

in part, the preliminary injunction.* MacDonald v. Chicago

Park Dist., 976 F.Supp. 1125 (N.D. Ill. 1997). On appeal,

4. On May 30, 1997, the District Court adopted the

Report and Recommendation.

5. In supporting memoranda, Mr. MacDonald also sought

to enjoin § C(3) of the Ordinance and to compel the Park

District to also allow a rally on May 9 and 10, 1998. He

did not submit a permit application for either proposed

rally.

6. The Order was amended on August 19, 1997.

2la

the Seventh Circuit vacated the preliminary injunction,

finding that it was overly broad, and that the balance of

harms tipped in favor of the Park District due to the fact

that Mr. MacDonald could hold spontaneous rallies (and

therefore was not harmed by the permit denial).

MacDonald v. Chicago Park Dist., 132 F.3d 355 (7th Cir.

1997).

Currently, Mr. MacDonald requests, in his third

application,’ a preliminary injunction compelling the Park

District to issue a permit for a political rally he plans to

hold on May 9 and 10, 1998.° Mr. MacDonald again seeks

to hold the rally - referred to as “Windy City Hempfest” -

at Butler Field, near Petrillo Bandshell. (Pl."s Mot. 2d

Prelim. Inj., Ex. A.) Similar to his previously planned

events, the rally is expected to draw between 8,000 and

12,000 people. (Id.)

7. Although his motion is entitled “Second Preliminary

Injunction”, the motion at bar represents Mr. MacDonald's

third attempt at preliminarily enjoining the Park District.

8. Mr. MacDonald also sought to hold a political rally on

August 22 and 23, 1998, however the parties indicated

that they have already resolved that dispute. In fact, the

Park District granted, in part, Mr. MacDonald's “revised”

permit application for those dates. (Def.’s 12(N), Exs. I,

J.) Therefore, the Court will not address the application

for those dates.

22a

Mr. MacDonald applied, on the very first day

possible (January 2, 1998), for a permit to hold the May

9 and 10, 1998 rally. The application was denied on

January 15, 1998. (Jd. at Exs. A, B.) The Park District's

reasons for denial included the fact that Petrillo Bandshell

was not available for rental in 1998, and that Butler Field

was unavailable for “permit events” due to drainage and

turf problems/damage. (Id. at Ex. B.) The Park District

indicated that there was no area in Grant Park that could

accommodate the number of people expected, and that

Soldier Field's parking lots were unavailable because of a

soccer match. (Pl.’s Mot. 2d Prelim. Inj., Ex. B.)

Additionally the Park District noted the other

potential deficiencies in the application’ that would have

to be remedied before a permit could be issued. For

example, there was no financial information supporting

the request for a waiver of insurance and fees. (Pl.’s Mot.

2d Prelim. Inj. at Ex. B.) Mr. MacDonald did not appeal

the denial of this permit application to the General

Superintendent. (Def.’s Rule 12(N), Ex. H.)

DISCUSSION AND FINDINGS

7 Motion for Prelimi Injuncti

To prevail on a motion for a preliminary injunction,

9. This is not the first time that the Park District has

pointed to such deficiencies in Mr. MacDonald's permit

applications. The deficiencies are inexplicable given the

history of litigation between the parties.

23a

the movant must initially clear a threshold requirement by

showing that: (1) the case has a reasonable likelihood of

success on the merits; and (2) there exists no adequate

remedy at law and the movant will suffer irreparable harm

if the preliminary injunction is not granted. Mu-Mar Shoe

Co. v. Shonac Corp., 75 F.3d 1153, 1156 (7 Cir. 1996);

see also Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311,

313-14 (7" Cir. 1994). If these conditions are met, the

initial threshold has been cleared and the court must next:

(3) balance the irreparable harm to the movant if the

injunction is denied, against the harm to the non-movant

if it is issued improvidently; and (4) after weighing the

interests of the parties, additionally consider the public

interest (i.e. non-parties) consequences of either a grant or

denial of the injunction. Mu-Mar, 75 F.3d at 1156; see

also Storck, 14 F.3d at 314.

A. “Facial” Challenge

With respect to Mr. MacDonald's “facial” challenge

to the Ordinance, and his desire for a preliminary

injunction addressing that challenge, the Seventh Circuit

has clearly held that a preliminary injunction is

unwarranted. MacDonald, 132 F.3d at 355. In reviewing

this Court’s previous injunctive order, the Seventh Circuit

held that, in balancing the harms to the parties, the harm

to Mr. MacDonald was limited since he can still hold a

“spontaneous” rally, pending resolution of this case. Id. at

358. The Park District has unequivocally represented to

this Court, and the Seventh Circuit, that it will not

interfere with any such “spontaneous” rally that Mr.

MacDonald may hold. So far, there is no evidence of

imminent harm “e.g. (evidence of] the Park District (both]

. .. deny[ing] MacDonald a permit for his May 1998 rally

ao,

24a

and attempt ting] to prevent that rally from occurring . .

. .” Id. (emphasis added). Therefore, as to his “facial”

challenge, Mr. MacDonald's application for preliminary

injunctive relief must fail in light of the Seventh Circuit's

holding.

B. “As Applied” Challenge

It is not clear whether Mr. MacDonald is pressing

his “as applied” challenge. However, in the interest of

maintaining a complete record, the Court will address Mr.

MacDonald's “as applied” claims, as well. With respect to

his “as applied” challenge to the Ordinance, the Court

notes that Mr. MacDonald failed to appeal the January 15,

1998 denial of his permit application. This failure to

exhaust administrative remedies is, in the absence of

additional evidence,'° fatal to any “as applied” challenge.

Therefore, for any “as applied” challenge, Mr.

MacDonald's application for preliminary injunctive relief

must fail because he has no likelihood of success on the

merits.

Ge Recommendation

Mr. MacDonald cannot clear the initial, threshold

requirement by showing that: (1) the case has a

reasonable likelihood of success on the merits; and (2)

there exists no adequate remedy at law and he will suffer

10. Mr. MacDonald might have been able to argue that the denial was

pretextual, and that any appeal would have been futile. However, he

provided no evidence that the reasons given by the Park District, in

denying this particular permit application, were pretextual or applied

differently to him compared to other applicants.

25a

irreparable harm if the preliminary injunction is not

granted. Therefore, the Court recommends that his third

application for a preliminary injunction be denied.

Il. | Motions for Summary Judgment

The parties have filed cross motions for partial

summary judgment as to Mr. MacDonald's facial challenge

to the Ordinance. Additionally the Park District has

moved for partial summary judgment as to Mr.

MacDonald's as applied challenge to the Ordinance.

Under the Federal Rules of Civil Procedure,

summary judgment is appropriate when “there is no

genuine issue as to any material fact, and . . . the moving

party is entitled to a judgment as a matter of law.” FED.

R. Civ. P. 56(c).

The initial burden is on the moving party to identify

“those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV.

P. 56(c)). The non-movant then has the burden of

providing specific facts, showing a genuine issue “open for

trial.” Rush v. McDonald $s Corp., 966 F.2d 1104, 1109 (7"

Cir. 1992); see also Waldridge v. American Hoechst Corp.,

24 F.3d 918, 920 (7™ Cir. 1994) (stating that exclusive

reliance on the allegations in the pleadings is insufficient

to survive summary judgment). Summary judgment

should not be granted if there is sufficient evidence for a

jury verdict in favor of the non-moving party. Anderson v.

Liberty Lobby, 477 U.S. 242, 249 (1986); County of Vernon

26a

v. United States, 933 F.2d 532, 534 (7 Cir. 1991). In

deciding a motion for summary judgment, the Court must

view all facts in the light most favorable to the non-

moving party. Griffin v. Thomas, 929 F.2d 1210, 1212 (7"

Cir. 1991)

A. Park District's Motion for Summary

Judgment - “As Applied” Challenge

The Park District moves for summary judgment as

to Mr. MacDonald's “as applied” challenges to the

Ordinance. The Park District maintains that Mr.

MacDonald has not establish content-based discrimination

as to any of the events for which Mr. MacDonald made

permit applications that were denied. The only ripe

permit denial for which he has “as applied” standing is the

application for May 10 and 11, 1997.” The Park

District's denial of that application appeared to be based

upon a provision of the Ordinance concerning prior

violations (which will be addressed, below, during

discussion of the “facial” challenge). However, Mr.

MacDonald was allowed to hold a “spontaneous” rally on

May 10 and 11, 1997 despite the denial of his permit. The

dispute involving the May 10 and 11, 1997 rally is,

therefore, moot, and the Court recommends that

Defendant's motion for partial summary judgment as to

the “as applied” challenge be granted.

B. Cross Motions for Partial Summary

Judgment - “Facial” Challenge

11. For all his other events, he either did not apply for a permit or did

not fully exhaust the appeals process prescribed by the Ordinance.

27a

Prior restraints exist “when a regulation ‘[gives]

public officials the power to deny use of a forum in

advance of actual expression.’” Stokes, 930 F.2d at 1168

(quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 553 (1975)). Prior restraints forbid expression

before it takes place, in contrast to a subsequent

punishment for expression after it occurs. It is clear that

the Park District’s Ordinance is a prior restraint, because

under § C(5S)(e), the Park District may deny use of

traditional public fora in advance of actual expression or

assembly.”

“(T]he Constitution requires that the [Park District]

establish neutral criteria to insure that the licensing

decision is not based on the content or viewpoint of the

speech being considered.” City of Lakewood v. Plain Dealer

Publ g Co., 486 U.S. 750, 760 (1988). A regulation that

may be arbitrarily applied has the potential to improperly

suppress disfavored speech or disliked speakers. Forsyth

County, Ga. v. Nationalist Movement, 505 U.S. 123, 131

(1992) (holding ordinance unconstitutional where it

permitted county official to examine contents of message

and to correspondingly vary fees for assembly/parades to

reflect cost of maintaining public order with respect to the

particular message).

In City of Lakewood v. Plain Dealer Publishing Co.,

12. In this respect, also, the case at bar differs from Graff v. City of

Chicago, 9 F.3d 1309 (7™ Cir. 1993) (en banc), cert. denied, $11 U.S.

1085 (1994), because in Graff, the plurality opinion (by five of the

twelve Judges) determined that operating a newsstand did not

directly involve free speech rights.

28a

the Supreme Court invalidated an ordinance as an

unconstitutional prior restraint because the ordinance

allowed the city to deny a permit — to place newsracks on

public property - for any reason, and did not impose a

time limit on the decision to grant or deny a permit. The

Supreme Court held that the ordinance unconstitutionally

gave the deciding official too much discretion.

Unfortunately, here, neither party has addressed in

its Local Rule 12(M) or (N) Statements the Park District's

historical pre- litigation practices and/or interpretations of

the Ordinance, which are essential to determine the

degree of discretion enjoyed by the Park District. It is

principally the failure of this proof that necessitates the

denial of both motions for summary judgment as to the

“facial” challenge.

1. Park District's Moti

a. The Seventh Circuit's Opinion Does

Not Foreclose MacDonald $ Claims

The Park District contends that the Seventh

Circuit's opinion, vacating this Court’s grant of a

preliminary injunction, mandates summary judgment in its

favor with respect to the “facial” challenge. The Park

District argues that the Seventh Circuit “rejected” the

“unlimited discretion” argument and “held that section

C.5.e. is content-neutral.” (Def.’s Mem. Supp. Mot.

Summ. J. on Facial Challenge, at 1.) The Park District is

wrong.

29a

The Seventh Circuit “emphasize[d] . . . that the

decision to grant or to deny a preliminary injunction ‘is

not a decision on the merits of the plaintiff's suit.’”

MacDonald, 132 F.3d at 357-58 (quoting Ayres v. City of

Chicago 125 F.3d 1010, 1013 (7" Cir. 1997)). The

Seventh Circuit specifically noted that it was not

“suggest(ing] that the permit procedure is itself

constitutional simply because it may not be strictly

enforced. Our discussion here relates solely to the harm

MacDonald would incur from enforcement of the

challenged sections of the Code while his lawsuit is

pending.” Id. at 358 n.3. In concluding its opinion, it

“emphasized again . . . that today’s decision is not one on

the merits of any of MacDonald’s claims, including the

two we have specifically discussed. MacDonald may well

be able to establish on a more complete record that at

least one or more provisions of [the Ordinance] are

facially invalid under the First Amendment.” Id. at 363

(emphasis added). Although the Seventh Circuit did note

- while balancing the harms during its analysis of the

preliminary injunction - that Graff “poses a substantial

obstacle” for Mr. MacDonald, it specifically stated that it

was “not definitively resolv(ing] the matter . . . at the

preliminary injunction stage... .” MacDonald, 132 F.3d

at 362. This Court takes the Seventh Circuit at its word.

Thus, the Seventh Circuit’s discussion of Mr. MacDonald’s

likelihood of success on the crucial issue — the Ordinance’s

constitutionality - did not determine, or even suggest,

that Graff foreclosed Mr. MacDonald’s underlying

Complaint (or eradicated all likelihood of success on the

merits).

The Park District’s motion for summary judgment

on the “facial” challenge could be denied out of hand,

30a

since it is premised entirely on the mistaken notion that

the Seventh Circuit’s opinion vacating this Court’s

preliminary injunction foreclosed any facial challenge to

the Ordinance. Nevertheless, because the Seventh Circuit

did not find Mr. MacDonald's likelihood of success to be

as great as this Court did during its analysis on

preliminary injunctive review, the Court will carefully

examine the reasons the Seventh Circuit gave for not

finding an overwhelming likelihood of success on the

merits. In light of the Seventh Circuit’s finding that Mr.

MacDonald has less than an overwhelming likelihood of

success — even though not binding — further consideration

and analysis of Graff is warranted. Thus, the discussion

turns to Graff; specifically why Graff does not mandate

summary judgment on Mr. MacDonald's “facial”

challenge.

b. Graff v. City of Chicago

In Graff, a news vendor brought an action

challenging the constitutionality of a Chicago ordinance

that required the licensing of sidewalk newsstands. 9 F.3d

at 1311. For approximately seventy years, a newsstand

stood, on a public walkway, in front of the City of Chicago -

Cultural Center. Id. The plaintiff operated his business

there starting in July of 1984, when he purchased the

stand for more than fifty thousand dollars. Graff, 9 F.3d

at 1311. At the time he purchased the newsstand, the City

ostensibly required newsstand operators to acquire

permits. Id. Those permits were issued at the discretion

of the commissioner of streets and sanitation, and could

be revoked at any time by the mayor. Id The City’s

permitting ordinance stated that newsstands could only

sell Chicago papers, provided the mayor with no standards

3la

to guide his discretion, and lacked hearing procedures to

review decisions denying or revoking permits. Id. The

plaintiff attempted to apply for a permit, without success,

although permits were issued for other newsstands at

other locations. Id.

In November of 1990, the City gave the plaintiff

two months’ notice to remove his newsstand from the

sidewalk. Id. Although the order was later rescinded, the

plaincff filed a complaint against the City and the mayor,

alleging that the ordinance violated the First and

Fourteenth Amendments. Id. The City amended the

ordinance, rather than attempting to defend it; and then

argued that the complaint should be dismissed because the

new ordinance corrected all constitutional deficiencies. 'd.

Under the new ordinance, the reasons for denial of a

permit were things such as whether the design and

materials comported with the character of the streetscape

and the extent to which services offered by the newsstand

are already available in the area. Id. at 1317-18. The new

ordinance only applied to initial permit applications;

renewals were quasi-automatic. Graff, 9 F.3d at 1329-30.

However, the plaintiff amended his complaint and

made a facial challenge to the new ordinance. Jd. at 1311.

In May of 1992, the City - after consistently objecting to

the size and construction materials used in the newsstand

- notified the plaintiff that it intended to remove his

newsstand from the sidewalk in fifteen days. Id. at 1312.

The plaintiff applied for a preliminary injunction, which

the district court denied. Id. A Seventh Circuit panel

reversed the district court, holding that the new ordinance

failed to provide sufficient judicial oversight, in violation

of the First Amendment, per FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1999) (holding city’s ordinance regulating

32a

adult entertainment businesses was an unconstitutional

prior restraint because it failed to provide an effective time

limitation on the licensing decision and also failed to

provide for prompt judicial review). 9 F.3d at 1312. A

petition for rehearing en banc was then granted. The

Seventh Circuit, sitting en banc, held that the City’s permit

ordinance was constitutional, and vacated the panel

opinion. Id. at 1313. However, the reasoning of the en

banc panel differed, and the case produced two

concurrences and a dissent, in addition to the plurality

opinion. Id.

Two major issues were discussed in the opinions of

the en banc panel: first, whether the ordinance was

unconstitutional because there was too much discretion

given to the City in deciding whether or not to grant

permits; and second, whether there were adequate

procedural safeguards available, e.g. judicial review. A

careful analysis of Graff reveals that the Seventh Circuit's

rulings do not foreclose Mr. MacDonald's claims on either

of these issues.

(1) Discretion

As to the first issue - too much discretion ~ the

plurality opinion (written by Judge Manion, and joined by

Judges Posner, Coffey, Easterbrook, and Kannej held that

the City’s discretion under the ordinance was limited, and

did not raise constitutional concerns under prior restraint

33a

analysis.’ However, that holding does not control the

case at bar, because the discretion granted to the City in

Grafff was limited to aesthetic and safety determinations,

in contrast with the broad (and punitive) discretion

granted to the Park District under the Ordinance, and

because the ordinance in Graff applied only to the first

permit application. Each of these distinctions will be

discussed in turn.

(a) Comparison Between the Ordinance

and the Graff Scheme

The discretion the City had in Graff was limited to

things such as aesthetics and safety. 9 F.3d at 1317-18,

1329. There was no facially evident unbridled discretion

to deny the permit based upon prior conduct or speech.

Graff, 9 F.3d at 1318, 1329.

This Court, in its earlier Memorandum Opinion and

Order, found three primary sources of discretion in the

Ordinance that give the Park District substantial power

(whether or not exercised) to censor based on the content

or viewpoint of speech: discretion to deny permit

applications; discretion as to the fees and expenses

imposed on permittees; and discretion as to the time taken

to process an application.

Mr. MacDonald's primary challenge is centered on

13. The plurality initially found that the ordinance did not

constitute a prior restraint, but proceeded to analyze it as

a prior restraint anyway. Id. at 1313.

34a

§ C(5)(e). Section C(S)(e) concerns contents of notice

and grounds for denial of a permit, and reads as follows:

To the extent permitted by law, the Park District

may deny an application for permit if the applicant

or the person on whose behalf the application for

permit was made has on prior occasions made

material misrepresentations regarding the nature

or scope of an event or activity previously

permitted or has violated the terms of prior permits

issued to or on behalf of the applicant. The Park

District may also deny an application for permit on

any of the following grounds:

(1) | the application for permit . . . is not fully

completed and executed;

(3) the application for permit contains a

material falsehood or misrepresentation; . . .

(5) the applicant or the person on whose behalf

the application for permit was made has on prior

occasions damaged Park District property and has

not paid in full for such damage, or has other

outstanding and unpaid debts to the Park District;

... [or]

(11) the use or activity intended by the applicant

is prohibited by . . . the regulations of the General

Superintendent... .

(emphasis added).

The Park District appears to have available, under

35a

this subsection, at least four alternative means of

to determine what conduct constitutes a material

misrepresentation, a violation of a prior permit, a material

falsehood on an application, or damage to Park District

property on a prior occasion (collectively referred to

herein as “alleged misconduct”). Second, the Park District

Third, assuming that there is some basis advanced under

§ C(S)(e) to deny a permit, the Park District also may_bave

discretion to decide which applications to deny, and which

to permit, despite alleged misconduct."

There are no objective criteria in the Ordinance for

determining the existence of alleged misconduct and its

effect on permit seekers. There is also no provision for

what type of evidence is required to prove alleged

misconduct, or even that any proof is necessary.'®

Further, it is not even clear who at the Park District is

designated to make these determinations. This provision

could allow any Park District employee to make a notation

14. The subpart regarding a “complete” permit, and the

one specifying denial for activities prohibited by

regulations of the General Superintendent, also are subject

to discretion.

1S. An honest error in completing an application could be

a material misrepresentation in the eyes of the Park

District. Am incorrect projection about crowd size could

also be one. If an application predicted hundreds of

attendees, but thousands showed up, this too could count

as a material misrepresentation.

36a

in a file that he/she found or somehow learned (perhaps

from hearsay), that a person who obtained a permit and

held a rally violated some provision of the Ordinance.

Additionally, there is no provision for notifying an

individual, who engaged in alleged misconduct, that the

Park District has made such a determination. Almost any

prior permittee could be alleged (rightly or wrongly) to

have “damaged” park property, if only by trampling the

grass. The only way for that person to find out about the

Park District’s determination is when he/she (next)”*

applies for a permit. There is no opportunity or procedure

in place for such an individual to challenge the Park

District's determination —at least not until after a permit

is applied for, and then denied, based upon those reasons.

Even more troubling, there is no limit on how long

an instance of alleged misconduct can cause an individual

to be barred from obtaining a permit. The Ordinance

provides no maximum penalty time; there is absolutely no

cut-off point or end in sight. Thus, it appears that the

Park District could choose to exercise its discretion to

prevent someone from ever, in his/her lifetime, getting a

permit (again). This subjective determination could be

even more invidious due to the fact that permit seekers

whose audiences have caused prior permit violations (and

therefore alleged misconduct vis a vis the permittee) are

likely those whose speech generates the most public

16. The Park District could also state alleged misconduct

as a reason for turning down a first time permit applicant,

if, for example, the applicant was alleged to have spray

painted graffiti on Park District property.

37a

outcry. This ability to censor individuals based on the

mere allegation of prior misconduct is a far cry from the

City’s ability in Graff to dictate the number of newsstands

and the materials used in the construction of such

newsstands.

Section C(4)(c) states that no permit shall be

granted unless the applicant has:

executed an agreement with the Park District

[promising] to bear all costs of policing,

cleaning up and restoring the park upon

conclusion of the event or activity; to

reimburse the Park District for any such costs

incurred and to indemnify the Park District

and hold the Park District harmless from any

liability to any person_resulting from any

damage or injury occurring in connection with

the permitted event proximately caused by the

action of the permittee, the sponsoring

organizer, its Officers, Employees or agents or

any person under their control insofar as

permitted by law.

(emphasis added).

This provision conditions the issuance of a permit

on the ability of the applicant to pay for injuries and

damage resulting from speech and assembly. The

indemnification and reimbursement expenses depend

upon the crowd's reaction to the speech and assembly.

Thus, by requiring the permit applicant to personally bear

the cost of his/her public rally, the conveyance of

unpopular messages could be chilled. This provision could

38a

dissuade speakers from using public parks for political

speeches because of a fear of huge financial consequences.

This regulation could be used to punish a speaker for

attracting too many followers - a large crowd might result

in a speaker being held responsible for trampling of grass

and could result in charges for resodding the park.

Contrastingly, an unpopular speaker may be assessed the

costs of cleaning up broken bottles thrown at him by the

angry crowd. Moreover, the Ordinance also requires the

applicant to guarantee in advance that, if the crowd is

hostile to his/her message and resultingly requires a large

security contingent, he/she will pay for that “policing.”

That requirement appears to contravene Forsyth’s holding

that the cost of maintaining order cannot be passed on to

those wishing to demonstrate in a public forum as a pre-

condition of the granting of a permit. Nothing in the

ordinance at issue in Graff would have imposed such

onerous financial burdens on the exercise of speech in a

public forum.

Section C(4)(d), concerns security deposits and

states:

no application for permit shall be granted

unless the applicant has paid . . . the security

deposit in an amount in accordance with the

schedule of fees . .. The amount of the security

deposit set in the schedule of fees shall be

equal to the estimated cost of policing,

cleaning up, and restoring the park upon the

conclusion of the use or activity... . Promptly

after the conclusion of a permit activity, the

Park District shall inspect the premises and

equipment used by the permittee.

39a

(2) If it is determined by such inspection, that the

permitted event proximately caused damage .. . or

. . . that fines should be assessed . . . the Park

District shall retain the security deposit or any

portion, thereof, necessary. to pay for the cost

repair or any fines assessed against the permittee.

Again, similar to § C(4)(b), there are concerns

about the differing categorizations and amounts. Also, like

§C(4)(c), the costs imposed here go, in part, towards

“policing” the event. Additionally, the Park District

cannot, and does not, determine whether the debris or

graffiti being cleaned up is from the speaker or, rather,

from an unruly crowd, not under the permittee’s control.

The Park District’s schedule of fees provides that security

deposits triple for organizations which have forfeited their

security deposits at prior events. This punitive trebling of

the security deposit seems to be another penalty imposed

for the crowd's reaction to a previous message. As the

Supreme Court explained in Forsyth, a regulation was

invalid because “[tjhose wishing to express views

unpopular with bottle throwers, for example, may have to

pay more for their permit.” Forsyth, 505 U.S. at 134.

“Speech cannot be financially burdened, any more than it

can be punished or banned, simply because it might

offend a hostile mob.” Id. at 134-35. Nor can an

applicant’s future speech be barred outright because prior

speech has offended such a mob.

Section C(4)(e) states that ‘[nJo application for

permit shall be granted unless the applicant has paid . . .

a user fee... .” Again, similar to those provisions

40a

discussed above, the amounts per category, on the

schedule of fees, for user fees differ and the categorization

of events appears subjective. This discretion — if the

choice is made by the Park District and not the permit

applicant - to categorize an event, combined with the

extreme variations of user fees, strongly indicates that the

Park District is attempting to impose a tax or raise

revenues, rather than merely recover its administrative

expenses for paperwork; although this determination will

have to await trial.

Section C(4)(f) imposes a hefty insurance

requirement on applicants:

Applicant shall procure and maintain at all

times during its use of Park District property,

insurance in such amounts and with such

coverages as shall reasonably be required by

the Park District .. The Division of Risk

Management shall prepare a uniform schedule

of insurance guidelines for particular types of

activities. Applicant shall provide Park District

with a certificate from an insurer evidencing

such coverage prior to applicant’s use of Park

District Property . .

Although the insurance requirement is waivable in

some discretionary cases, there is no provision for waiver

if the applicant is unable to obtain insurance because no

company will provide it. This provision appears to allow

the Park District to pass along its discretion to the

insurance companies; the insurance providers decide

whether an event is too risky to insure, and may (and

likely will) make their determination based on the

4la

message/content of te event. Those with unpopular

views (especially those likely to receive a negative

response from the public) will have a difficult (if not

impossible) time getting insurance, or it will cost them

much more. See Collin v. Smith, 447 F. Supp. 676, 684

(N.D. Ill. 1978) (insurance was beyond the reach of Nazi

organization because “insurance companies are simply not

interested in writing the kind of policy required due to the

unknewn risks involved... .”), aff d, 578 F.2d 1197 (7

Cir. 1978), cert. denied, 439 U.S. 916 (1978); see also

Pritchard v. Mackie, 811 F. Supp. 665, 668 (S.D. Fla.

1993) (insurance requirement “fails to take into account

the possibility that the most heinous political groups in

American society may find it difficult, if not impossible to

actually purchase insurance.”).

The Park District is not required to assist an

applicant in obtaining insurance, but it sometimes chooses

to help, itself an indication that insurance is sometimes

difficult to obtain. In Graff there was no requirement of

insurance in order to have a newsstand.

Finally, § C(6)(c) provides for waiver, but such

waiver is totally discretionary:

Any requirement for a user fee, security

deposit, or certificate of insurance shall be

waived by the General Counsel, if the activity

is protected by the First Amendment of the

United States Constitution and the

requirement would be so financially

burdensome that it would preclude the

applicant from using Park District property for

the proposed activity... .

42a

(emphasis added).

Thus, if the Park District's General Counsel, Ms. Fencik,

determines that an activity is “protected” and that the user

fee, security deposit, or certificate of insurance is

financially overburdensome, then those requirements are

waived. There is no definition of what are “protected”

activities. Presumably, all speech and assembly are

protected by the First Amendment, but such a reading of

the Ordinance would render the “protected by the First

Amendment” language superfluous.””” This ability to

grant or deny a waiver based on the Park District's

determination as to whether an activity is protected by the

First Amendment, is precisely the type of discretion absent

in Graff - that the concurring opinion of Judge Flaum

stated would violate the First Amendment. See Graff, 9

F.3d at 1333.

“Freedom of speech _ [is] available to all, not

merely to those who can pay their own way.” Murdoch v.

Pennsylvania, 319 U.S. 105, 111 (1943). The Park District

cannot generate profits/revenues by taxing the exercise of

First Amendment Rights. “A state may not impose a

charge for the enjoyment of a right granted by the federal

constitution.” Murdoch, 319 U.S. at 113. This is doubly

true when the fees imposed are discretionary, based on

what permittees are seeking. The discretion available

under these provisions could make the Ordinance

17. It appears that the Park District must engage in

forbidden discretion in making First Amendment

determinations, Cf., infra, n.20.

43a

unconstitutional. Again, in contrast, the permit scheme in

Graff did not appear to give the City any discretion as to

permit fees or waivers thereof.

The time for processing applications raises concerns

as well. Section C(5)(b) states that all conditions

precedent to the issuance of a permit “must be completed

at least thirty days prior to the event unless a longer time

period is prescribed by the General Superintendent.”

(emphasis added). Section C(5)((C) provides the Park

District with a period of up to twenty-eight days within

which to grant or deny a permit:

If no written denial or conditional approval is

issued within fourteen days of the date on

which a permit application is fully completed,

executed and filed with the appropriate Officer

or Employee the application shall be deemed

to have been granted a conditional approval

Provided, however, the Park District may

extend the period of review for an additional

fourteen days by issuance of a written notice of

extension.

(emphasis added).

“[T]iining is of the essence in politics . .. and when

an event occurs, it is often necessary to have one’s voice

heard promptly, if it is to be considered at all.”

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163

(1969) (Harlan, J., concurring). A one or two day delay

may be intolerable when applied to political speech on a

topical issue; where the element of timeliness is essential.

Since an enthusiastic crowd can serve to sway the

44a

undecided, even a simple delay in getting that message

out could permanently vitiate the expressive content of a

demonstration.

Here, the sixty-day advance application

requirement for festivals, set forth in the schedule of fees,

is extraordinarily long. Even the thirty-day advance

application requirement in the Ordinance is too long - it

infringes on expressions concerning current events.

Furthermore, the procedure for appeal of a denial, §C(6)

(a)(2), gives the General Superintendent seven days

within w‘iich to serve notice of his decision. Section C(6)

(a)(2) states:

The General Superintendent shall have seven

days from the date on which the appeal was

received in which to serve upon the applicant

a notice that he/she has affirmed, modified or

reversed the denial or retention of security

deposit... .

Even if someone who applied thirty days in advance

and was subject to the fourteen day extension received a

notice of denial in the mail at the very last minute, the

application could still be moot, since the appeal process

would still have seven days to run. Thus, this seven-day

appeal provision increases the Park District's ability to

exercise discretion over the permitting process.

(b) The Ordinance in Graff Applied Only

to the Initial Permit Grant

As the concurring opinion of Judge Flaum (joined

by Judge Cudahy) notes, even the limited discretion in

45a

Graft would have been unconstitutional had it also been

applied in a permit renewal situation, rather than only to

initial permit grants. 9 F.3d at 1329-30. In Graff, once the

initial permit was granted, the renewal was virtually

automatic. Id. at 1318 n.5. This pro forma license

renewal situation did not clearly allow opportunity for a

licensing official to suppress speech based upon prior

speech. The licensing official would not know what the

vendor planned to sell (or sold) until after the initial

permit issued. However, if the same criteria (as applied to

first time license applicants) also was applied to license

renewals, then it would have raised constitutional

concerns because of a danger that the licensing officials

would use aesthetic or safety issues as “ “post hoc

rationalizations” to justify otherwise unlawful suppression

of speech (which is exactly what Mr. MacDonald is

alleging happened to him). Graff, 9 F.3d at 1328 (quoting

City of Lakewood, 486 U.S. at 758. The case at bar is

much like the renewal situation envisioned by Judges

Cudahy and Flaum; in fact, under the Park District's

Ordinance, an applicant’s prior permit experiences are

expressly held against him as a basis for permit denial.

Therefore, the situation in Graff also differed from

the one at issue here because the grants of permits in Graff

were much more limited, and the decisionmaker’s

discretion applied only to the initial permit grant and not

to renewals thereafter.

(2) Judicial Review

With respect to the second issue in Graff -

adequate procedural safeguards - the Seventh Circuit's

holding is unclear. Although the plurality of five (Judges

46a

Posner, Coffey, Easterbrook, Manion, and Kanne) held

that a common law writ of certiorari was an adequate

safeguard for a prior restraint, it does not appear that any

of the concurring (or dissenting) Judges agreed. See

11126 Baltimore Blvd., Inc. v. Prince George County, Md.,

58 F.3d 988, 1000 n.17 (4" Cir. 1995) (discussing Graff

and determining that the majority of the Seventh Circuit

did not hold that the prompt judicial review requirement

is satisfied when common law certiorari is available).

Instead, it appears that at least five Judges found that a

common law writ of certiorari would not satisfy First

Amendment concerns — (the three dissenters — Judges

Cummings, Bauer and Fairchild, as well as concurring

Judges Cudahy and Flaum). Concurring Judges Ripple

and Rovner did not explicitly address the issue, but

seemed to agree with the dissent that the “literal” strict

application of FW/PBS and City of Lakewood, would lead

to an invalidation of the City’s ordinance. Graff, 3 F.3d at

1333-35 (Judge Ripple, with Judges Cudahy and Rovner

concurring)."®

18. However, they also found that FW/PBS and City of

Lakewood were inapplicable to the particular City

ordinance because of an absence unbridled discretion.

19. In Freedman, the Supreme Court held that a statute,

requiring the submission of movies to state censors before

exhibition, was an unconstitutional prior restraint on

expression because it lacked judicial participation and

gave no assurance of prompt judicial review. 380 U.S. at

51. Freedman held that, in order to provide proper

safeguards, the censor (not the exhibitor) would have the

burden of instituting judicial proceedings, and then

47a

Additionally, the concurring opinion of Judge

Flaum, joined by Judge Cudahy, expressly rejected the

plurality’s view. That concurring opinion stated that a

common law writ of certiorari was not the sort of review

that Freedman v. State of Maryland, 380 U.S. 51 (1965)'?

envisioned and, therefore, was an inadequate safeguard

against prior restraints imposed by City officials acting

with unbridled discretion.” Graff, 9 F.3d at 1331.

proving, during those proceedings, that the expression was

unprotected. Id. at 58-59. Furthermore, Freedman held

that the scheme must assure a prompt final judicial

determination. Id.

20. However, the concurrence ended up finding that the

ordinance did not vest City officials with unbridled

discretion. Additionally, this concurrence noted that “the

judgments we wisely do not trust to administrative

officials without the benefit of a watchful judicial eye are

those judgments that are made or are likely to be made in

the First Amendment plane.” Graff, 9 F.3d. at 1333.

However, the Freedman system of judicial review was not

necessary for a “nonthreatening” scheme that only asks

and allows administrators to make determinations “for

which they are especially suited” including questions

about aesihetics and traffic flow. Id.

21. There is no “holding” of a majority of Judges

comprising the en banc panel on this point. Therefore this

Court is forced to choose between the plurality opinion

joined by five Judges, and the opinions of the five Judges

who joined either in the concurrence by Judge Flaum or

the dissenting opinion. In the absence of more definitive

48a

In the case at bar, the whole determination of

adequacy of judicial review turns upon whether the Park

District has too much discretion. If the Park District has

too much discretion, then the Ordinance constitutes a

prior restraint on free speech, and the common law writ of

certiorari would be an inadequate procedural safeguard

under the rationales set forth in the concurring opinion by

Judge Flaum and in the dissenting opinion.” If, on the

other hand, it is determined that the Park District does not

have too much discretion, then Graff would govern” and

the common law writ of certiorari would be an adequate

procedural safeguard.

c. Conclusion

In viewing the Ordinance in the light most

favorable to Mr. MacDonald, the Park District's discretion

is far greater than the City’s in Graff. Therefore, summary

judgment in the Park District's favor is foreclosed at this

time.

2. Mr. MacDonald's Motion

guidance, this Court finds the latter more persuasive.

22. If they do not have too much discretion, then

irregardless of how the different opinions in Graft line up

on the issue of adequate judicial review/procedural

safeguards, the instant case would be factually

indistinguishable from Graff.

restraint depends on whether the Park District A pon

much discretion over the issuance of permits. As

discussed in the previous section, there are three primary

sources of substantial discretion in the Ordinance: (a)

discretion to deny permit applications; (b) discretion as to

the fees and expenses imposed on permittees; and (Cc)

discretion as to the time taken to process an application.

However, viewing each of these in the light most favorable

to the Park District, as non-moving party, the Court finds

that a reasonable trier of fact could conclude that the Park

District's discretion is substantially more limited than it

would appear from an initial facial analysis of the

Ordinance.

a. Discretion to Deny Permit Applications

Mr. MacDonald's primary challenge is centered on

§ C(S)(e), which concerns the notice and grounds for

denial of a permit.” Although the Park District appears to

have available, under this subsection, at least four

alternative means of exercising discretion, reading the

Ordinance in the light most favorable to the Park District,

it is possible that more objective criteria have, in practice,

developed which would guide the application of these

otherwise open-ended bases for denial. Although the

discretion available under this provision could render it

unconstitutional, it is necessary to review more evidence

in order to determine whether the Ordinance is actually

23. He has also raised other challenges during briefing

and hearings. See MacDonald, 976 F. Supp. 1125.

50a

applied in a subjective fashion, or whether the

District uses criteria that makes application of these

provisions, in reality, non-subjective.

b. Discretion as to Permit Fees, Costs,

and Other Requirements

The imposition of fees and costs, under § C(4),

appears to create another opportunity for the Park District

to exercise discretion. Under § C(4)(b), there is no

provision for waiver of the application fee for people who

cannot afford to pay it. However, perhaps future evidence

will show that, in practice, there is some type of waiver

available.

Likewise, § C(4)(c), which requires the applicant to

agree to bear “policing” and other clean-up costs raises

some concerns. Initially, the Court notes that the term

“policing” is unclear and that evidence is needed to

determine how “policing” has traditionally . been

interpreted. The evidence may show that “policing” is

more limited or that damages from angry crowds are not,

in practice, assessed by the Park District. Thus, in the

light most favorable to the non-moving party, the Park

district, this Court cannot determine that this provision

provides the Park District with too much discretion.

Again, similar to § C(4)(b), there are concerns

about the differing categorizations and amounts for the

security deposit required by § C(4) (d). Like § C(4) (c), the

costs imposed here go, in part, towards “policing the

event. Again, more information is needed concerning the

Park District's actual practice and prelitigation

interpretation of this section.

Sla

The insurance requirement in § C(4)(f) arguably

allows the Park District to pass along its discretion to the

insurance companies. Also, although the Park District is

not required to assist an applicant in obtaining insurance,

it sometimes chooses to help. It is unclear, at this time,

whether the Park District’s practice is to help all

applicants, or just select applicants. Thus, the insurance

requirement does not, when considered in the light most

favorable to the non-moving party, require a grant of

summary judgment in favor of Mr. MacDonald.

Finally, § C(6)(c) provides for waiver of the user

fee, security deposit, and/or the insurance requirements,

if the activity the permit is sought for is “protected by the

First Amendment” and would otherwise be too financially

burdensome for the applicant to pay. The Ordinance

provides no definition of what are “protected” activities.

Thus, the discretion available under these provisions could

make the Ordinance unconstitutional. However, it is

necessary to review evidence of the actual application of

this rather vague section in order to determine whether

the provisions are actually applied in a subjective fashion,

or whether the Park District uses criteria that makes

applications of these provisions, in reality, non-subjective.

c. Discretion as to Time for Processing

Section C(5)(b) requires that all conditions

precedent to the issuance of a permit must be satisfied at

least thirty days prior to the event unless a longer time

period is prescribed by the General Superintendent.

Section C(5)(C) provides the Park District with a period of

up to twenty-eight days within which to grant or deny a

permit. Here, the sixty-day advance application

52a

requirement for festivals, set forth in the schedule of fees,

appears extraordinarily long. Even the thirty-day advance

application requirement in the Ordinance is quite long.

The procedure for appeal of a denial, § C(6)(a)(2), gives

the General Superintendent seven days within which to

serve notice of his decision. Thus, the processing

deadlines and seven-day appeal provision increases the

Park District's ability to exercise discretion over the

permitting process. Nonetheless, the Park District's

practice of allowing “spontaneous” events might, if

consistently applied, vitiate this apparent defect. More

evidence on this subject (and what constitutes a

“spontaneous” rally) is necessary to such a determination.

d. Conclusion

Notwithstanding the fact that this Court found

enough discretion under the Ordinance’s terms to

recommend denial of the Park District's motion for

summary judgment as to the facial challenge, Mr.

MacDonald's cross-motion should also be denied. The

terms of the Ordinance appear to give the Park District a

lot of discretion, but how the Park District actually

interprets its Ordinance is important. In its final analysis,

this Court will give deference to any narrowing

construction or practice of the Park District. See, e.g., City

of Lakewood, 486 U.S. at 770 n.11 (citing Poulos v. State

of New Hampshire, 345 U.S. 395 (1953); Erznoznik v. City

of Jacksonville, 422 U.S. 20S (1975)). The Park District's

reasonable construction and implementation of the

Ordinance may in fact remedy the apparent defects. For

example, the Ordinance contains a provision which

appears to allow the Park District to permanently prohibit

a prior violator from ever holding another event, yet in

53a

practice, it appears that the Park District allows any

previous violation to be cured by paying the fine assessed.

Therefore, the Park District's interpretation of the

Ordinance could change the Court's view of the amount of

discretion it has/is exercising. Thus, viewing the facts in

the light most favorable to the Park District, in analyzing

Mr. MacDonald's motion for summary judgment, at this

time, the Court must view the Park District's discretion as

only relating to things comparable to aesthetics and safety,

which are permissible under Graff.

CONCLUSION

Although the Ordinance, on its face, appears to give

the Park District too much discretion, there is a genuine

issue of material fact with respect to how the Park District

actually applies (and interprets) the Ordinance’s

provisions. Thus, evidence concerning the past practices

of the Park District, with respect to interpreting and

applying the Ordinance, is necessary to determine whether

the Park District actually exercises as much discretion as

the Ordinance would seem to allow. For this reason, the

Court recommends that neither of the cross-motions for

partial summary judgment be granted.

It is therefore recommended that Plaintiff's Motion

for Second Preliminary Injunction be denied. The Court

further recommends that each cross-motion for partial

summary judgment as to the “facial” challenges be denied.

Finally, this Court recommends that Defendant's motion

for partial summary judgment, as to the “as applied”

54a

challenge, be granted.

DATED: April 27, 1998 RESPECTFULLY SUBMITTED:

ARLANDER KEYS

United States Magistrate Judge

Counsel have ten days from the date of service to

file objections to this Report and Recommendation with

the Honorable George M. Marovich. See FED. R. Civ. P.

72(b); 28 U.S.C. § 636(b)(1). Failure to object constitutes

a waiver of the right to appeal. Egert v. Connecticut Gen.

Life Ins. Co., 900 F.2d 1032, 1039 (7™ Cir. 1990).

55a

Dated: March 8, 1999

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROBERT MACDONALD, )

)

Plaintiff, )

) No. 97 C 2963

v. ) Judge George M. Marovich

)

CHICAGO PARK DISTRICT, ) Magistrate Judge

a body political and ) Arlander Keys

corporate, )

)

Defendant. )

TO: THE HONORABLE GEORGE M. MAROVICH

UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

Before the Court are the parties’ cross-motions for

summary judgment. For the reasons set forth below, this

Court recommends that Plaintiff's motion for summary

judgment be granted, in part. The Court also recommends

that Defendant’s motion for summary judgment be

denied.

56a

BACKGROUND’

On April 27, 1998, this Court issued a Report and

Recommendation advising the District Court to deny both

Defendant’s and Plaintiff's cross-motions for summary

judgment. In its Report and Recommendation, this Court

noted that, even though the Ordinance’s provisions

appeared to give the Park District too much discretion,

future evidence might indicate that the Ordinance is

actually applied constitutionally in accord with well-

established practice. Hence, this Court stated that

additional evidence was necessary to determine whether

the Ordinance is, in fact, applied constitutionally. (April

27, 1998, Report and Recommendation at 15, 35—40.)

The District Court agreed that more evidence was

necessary. Therefore, upon remanding the cross-motions

for summary judgment to this Court (for an amended

Report and Recommendation), the District Court ordered

the parties to provide evidence about whether the

Ordinance is applied constitutionally in well-established

practice by “supplement(ing) their respective Local Rule

12(M) and (N) statements consistent with Magistrate

Judge Keys’ R & R.” (July 1, 1998, Order.) The

1. For a more detailed discussion of the underlying facts

and procedural history see MacDonald v. Chicago Park

District, 976 F. Supp. 1125 (N.D. Ill. 1997) (entering

preliminary injunction against Park District), vacated, 132

F.3d 355 (7™ Cir. 1997); and Report and

Recommendation of April 27, 1998.

57a

supplemental information provided in response to the

District Court’s Order will be addressed in the

Supplemental Facts section below.

STANDARD FOR SUMMARY JUDGMENT

The parties have filed cross-motions for summary

judgment with respect to the constitutionality of the

Ordinance, on its face. According to the Federal Rules of

Civil Procedure, the moving party is entitled to summary

judgment as a matter of law when “there is no genuine

issue as to any material fact.” FED. R. CIV. P. 56(c).

The initial burden is on the movant to point out

“those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any,” which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed. R. Civ. P.

56(c)). The non-moving party then has the burden of

providing facts that demonstrate a reason for trial. Rush

v. McDonald ’ Corp., 966 F.2d 1104, 1109 (7 Cir. 1992):

see also Waldridge v. American Hoechst Corp., 24 F.3d 918,

920 (7™ Cir. 1994)(conveying that reliance on mere

allegations in the pleadings is not enough to survive

summary judgment). Summary judgment should be

denied when there is enough evidence for a jury verdict in

favor of the non-moving party. Anderson v. Liberty Lobby,

477 U.S. 242, 249 (1986); County of Vernon v. United

States, 933 F.2d 532, 534 (7 Cir. 1991). The Court must

view all the facts in the light most favorable to the non-

movant when deciding a motion for summary judgment.

Griffin v. Thomas, 929 F.2d 1210, 1212 (7 Cir. 1991).

58a

SUPPLEMENTAL FACTS

The Park District has virtually exclusive control

over the information concerning “the Park District's

historical pre- litigation practices and/or interpretations of

the Ordinance,” which is the information that Judge

Marovich ordered to be presented to this Court. (July 1,

1998, Order, quoting April 27, 1998, Report and

Recommendation at 15.) Because the Park District

generally provided only superficial answers to Plaintiff's

interrogatories, Plaintiff had access to few “supplemental”

facts. Thus, the following meager facts have been

provided by the Park District, and are the only evidence

presented concerning historical practices with respect to

the Ordinance.

The Park District states that if a permit application

is complete, is accompanied by the appropriate fees, and

the location is permitted and available, then it looks at the

Ordinance’s provisions to determine if anything would

prevent the application from being granted. (Plaintiff's

Supplemental 12(M), Exhibit N, Defendant's Answers to

Second Set of Interrogatories at 3.) In addition, the Park

District reiterates that the procedure that determines

whether to accept an application is generally prescribed in

the Ordinance and through “long established practice.”

(Id.) However, the Park District failed to provide any

details about that practice; therefore, the Court cannot,

even on a motion for summary judgment, credit this

statement.

The categorization of an event is initially made by

the applicants. (Id.) The applicant checks of f a box that

indicates the purpose of the permit. (Id.) The Park District

59a

accepts the category chosen by the applicant unless there

— clear reason” why the chosen Category is incorrect.

. The Park District states that the decision to waive

permit fees, the requirement for insurance, and other costs

is usually referred to the legal department, which makes

that decision by giving a “broad interpretation of .. .

(the) First Amendment.” (ld. at 4-5; Defendant's

Supplemental 12(N) Additional Facts 4 2.) The Park

District uses the Windy City Hemp Development Board as

an example. This group was granted a waiver for the user

fee, security deposit, and insurance. (Defendant's

Supplemental 12(N), Additional Facts 4 3.)? The Park

District granted Mr. MacDonald a waiver for insurance

and user fees for two earlier events. (Defendant's

Supplemental 12(N), Additional Facts 4 3; Defendant's

Supplemental 12(N), Supplemental Affidavit of Joan

Fencik 4 4.)

A Park District employee or independent contractor

is assigned tO monitor permitted events, and that

individual checks the permitted area before, during, and

after the event. (Defendant's Supplemental 12(M),

Affidavit of Joan Fencik 411.) This monitor makes notes

of damages and permit violations and may also take

2. Although the Park District does not actually provide a

citation for this factual statement in its 12(N), the Court

notes that it comes from the Supplemental Affidavit of

Joan Fencik, which was attached to Defendant's

Supplemental 12(N).

60a

photographs. (Id.) The security deposit is withheld if the

monitor believes that the permittee proximately caused

the damage or undertook activities that were outside the

scope of the permit. (Id. 4 13.)

The Park District has different deadlines for

submitting applications for events because some events

are more complex than others. (Plaintiff's Supplemental

12(M), Exhibit N, Defendant's Answers to Second Set of

Interrogatories at 5.) In addition, the Park District only

denies an application for lateness if there is not enough

time to conduct all of its responsibilities. (/d.) The Park

District has “never” used the 14-day extension in C(5)(B)

to extend the date of deciding whether to grant a permit

application beyond the date of a proposed event, nor has

the Park District ever received a complaint on this matter.

(Defendant’s Supplemental 12(M), Affidavit of Joan

Fencik 44 9,10.)

In 1998, the Park District issued special event

permits to 21 groups who had forfeited their security

deposits during the previous year. (Defendant's

Supplemental 12(N), Ex. A.) However, all of these

groups’ events appear to be corporate and/or athletic.

Furthermore, there is no evidence as to how many permits

were denied to individuals or groups who previously

forfeited security deposits.

DISCUSSION

Certain provisions of the Ordinance are

unconstitutional because they lack neutral criteria limiting

the Park District’s discretion, or penalize unpopular

speech. Additionally, the three cases cited by the Park

6la

District in its Supplemental Memorandum are inapposi

as discussed below. =

A. Sections Invalid Because They Lack Neutral Criteria

Because the Ordinance is clearly a prior restraint,’

Stokes v. City of Madison, 930 F.2d 1163, 1168 (7" Cir.

1991), “the Constitution requires that the [Park District]

establish neutral criteria to insure that the licensing

decision is not based on the content or viewpoint of the

speech being considered.” City of Lakewood v. Plain Dealer

Publ g Co., 486 U.S. 750, 760 (1988). The Constitution

requires neutral criteria because a regulation that may be

arbitrarily applied has the potential to improperly suppress

disfavored speech or disliked speakers. Forsyth County,

Ga. v. Nationalist Movement, 505 U.S. 123, 131 (1992);

see also Lakewood v. Plain Dealer, 486 U.S. at 750 (holding

invalid an ordinance that allowed the city to deny a permit

~ to place newsracks on public property - for any reason,

and did not impose a time limit on the decision to grant or

deny a permit). Further, the neutral criteria that limits an

ordinance must be “made explicit by textual incorporation,

3. Under section C (S) (e), the Park District may deny use

of traditional public fora in advance of actual expression

or assembly.

62a

binding judicial or administrative construction, or well-

established practice.” Lakewood v. Plain Dealer, 486 U.S.

at 770.

As discussed below, a considerable amount of the

Ordinance’s text requires the Park District to exercise its

discretion, unbridled by neutral criteria, in deciding

whether to issue a permit. Since the text leaves much

room for discretion, and there are no judicial or

administrative constructions, the validity of the Ordinance

must stand or fall on the existence of well-established

practice. This Court, in its Report and Recommendation,

and the District Court, in its Order, determined that more

evidence was necessary to determine whether, despite

plain language to the contrary, the Ordinance has actually

been historically applied constitutionally. This Court was

willing to hold an evidentiary hearing, but both parties

expressed the belief that an evidentiary hearing would not

be helpful to the Court. (September 30, 1998, Tr. of

Proceedings at 4.)

Thus, despite Judge Marovich’s Order for the

submission of additional evidence, and despite claiming

that a hearing was unnecessary, the Park District basically

has provided no new evidence to demonstrate a “well-

established practice” narrowing construction of the

Ordinance. In addition, Defendant's answers to Mr.

MacDonald's interrogatories did not provide him with the

information he requested, and barely mentioned any

historical practices of the Park District. Finally, the Park

District’s own 12(M) (and Affidavits of Joan Fencik) failed

to show evidence that demonstrates a historical practice in

its interpretation of the Ordinance, and instead merely

parroted the language of the Ordinance or the words

63a

“established practice”, without providing context.

Therefore, this Court must conclude that there is ag

ee practice limiting application of the

1. Section C(5)(e)

. Throughout the history of this case, Plaintiff's

primary focus has been on section C(5)(e), which

CoTenns (he grounds for denial of a permit, and reads as

ollows:

To the extent permitted by law, the Park District

may deny an application for permit if the applicant

or the person on whose behalf the application for

permit was made has on prior occasions made

material misrepresentations regarding the nature

4. o.... pot poe be conclusion on the dearth of

evidence, as as numerous opportunities given to

the Park District to provide this critical cient

In addition (and alternatively, in the event that such

evidence does exists, but was not presented to Mr.

MacDonald or the Court) this Court finds that sanctions

are warranted against the Park District for its refusal to

fully cooperate in discovery, and, more importantly, for its

refusal to produce the evidence (to the Plaintiff and to this

Court) as ordered by Judge Marovich on July 1, 1998.

FED. R. CIV. P. 37(d); 37(b)(2)(A). T he Court further

finds that a just sanction for the Park District’s

disobedience is to deem, as admitted, the fact that there is

no well-established practice limiting application of the

Ordinance.

64a

or scope of an event or activity previously

permitted or has violated the terms of prior permits

issued to or on behalf of the applicant. The Park

District may also deny an application for permit

on any of the following grounds:

(1) _ the application for permit . . . is not fully

completed and executed;

(3) the application for permit contains a

material false or misrepresentation; .. .

5) the applicant or the person on whose

behalf the application me pee was made has

on prior occasions damaged Park District property

and has not paid in full for such damage, or has

other outstanding and unpaid debts to the Park

District; . . . [or]

(11) the use or activity intended by the

applicant is prohibited by . . . the regulations of

the General Superintendent . .

(emphasis added).

As discussed in this Court's prior Report and

Recommendation, the plain language of this subsection

fails to provide any neutral criteria to guide the Park

District's: determination of olan of nn ena .

material misrepresentation, a of ap ;

a material falsehood on an application, or damage to

Park District property on +. occasion (collectively

referred to herein as “alleged misconduct”); decision as

to who was responsible for the alleged misconduct; and

decision as to which applications ( misconduct has

6Sa

been found) should be permitted anyway.°

Ordinance for vehat type of evidence brescinel tonne

ce for t type to

alleged misconduct, or even an indication that any proof

is n . Further, it is not clear who at the Park

District is designated to make these determinations - it

appears that any Park District employee could make a

notation in a file that a prior permittee violated some

provision of the Ordinance. Most troubling, however, is

the omission of any limit how long an instance

of alleged misconduct can cause an individual to be

barred from obtaining a permit. The Ordinance provides

no maximum ty. Thus, it a that the Park

District could c to exercise its on to prevent

someone from ever a permit again. This

subjective determination d be even more invidious

due to the fact that permit seekers whose audiences have

caused prior permit violations (resulting in alleged

misconduct vis a vis the —s are likely those

whose speech generates the most public outcry.

The Park District did provide a list of groups that

forfeited security deposits 1997, but received

permits in 1998. However, none of these groups cited by

the Park District appear to have had unpopular or

controversial speakers — a strong indication that the Park

District is exercising its discretion to deny permits due to

prior misconduct only where the speaker is

controversial. Most of the groups the Park District listed

seem to involve corporate or athletic events® (which

S. The subparts regarding a “complete” permit and

specifying denial for activities prohibited by regulations of

the General Superintendent also are subject to discretion.

5. “March of Dimes”, “Bark in the Park”, “Y Me Race

Against Breast Cancer”, “Cancer Survivors Walk”, “Orbis

(continued...)

66a

would only involve incidental free , if any).

Hence, this is not evidence of a well-established practice

that alleviates the Court’s concerns. Based on the

foregoing, even in a light most favorable to the Park

District, the discretion available under this section of the

Ordinance renders it unconstitutional, on its face.

2. Section C(6)(c)

Section C(6)(c) provides for waiver of certain

fees, but such waiver is totally discretionary:

Any requirement for a user fee, security

y= By, or certificate of insurance shall be

waived by the General Counsel, if the activity

is protected by the First Amendment of the

United States Constitution and the

requirement would be so _ financially

burdensome that it would preclude the

applicant from using Park District property

for the proposed activity... .

(emphasis added).

(...continued)

Broadcast Group”, “Burnham Consultants/Mike Gaynor”,

“A V.P.”, “Timothy O’Tooles”, “Embassy Suites Hotel”,

“Twin Cities Chicago Aids Ride”, “Jack Brazier/2626

Condo Assoc.”, “Park Community Church”, “Friends of

Park/LATE Ride”, “G.E. Capitol Corp.”, “Tripp Mfg.

Company”, “Bulls 3 on 3”, “Capri Events/Kids’s

Triathlon”, “Capri Events/Mrs. T’s Triathlon”, “United

Negro College Fund”, “AIDS Walk Chicago”, and “LaSalle

Banks Chicago Marathon”. (Defendant's Supplemental

12(N), Ex. A.)

67a

As discussed in this Court's previous Report and

Recommendation, if the Park District's General Counsel,

Ms. Fencik, determines that an activity is “protected” by

the First Amendment and that the user fee, security

deposit, or certificate of insurance is financially overly

burdensome, then those requirements are waived. There

is no definition of what are “protected” activities.

Presumably, all and assembly are protected by

the First Amendment, but such a reading of the

Ordinance would render the “protected by the First

Amendment” language superfluous.

The Park District says that it broadly interprets

the language regarding First Amendment activities;

however, it notes one t of (full) waiver -- to the

Windy City Hemp Development Board - and reiterates

that it previously, on two occasions, ited Mr.

MacDonald a waiver for the insurance and the aser fees.

These are, given the Park District's nse to Mr.

MacDonald's interrogatories, presumably the

instances in which it granted waivers. The evidence of

three isolated waivers is not enough to indicate a well-

established practice that would limit the Park District's

discretion, even viewed in a light most favorable to the

Park District. Because the Park District did not provide

the information needed to establish that application of

the Ordinance is limited, the Court must look only to the

actual language of the Ordinance. As this Court

discussed in its April 27, 1998 Report and

Recommendation, this provision gives the Park District

too much discretion. Therefore, this section of the

Ordinance is unconstitutional on its face.

B. Sections Invalid Because They Penalize Unpopular

Speech

“Freedom of speech . . . [is] available to all, not

merely to those who can pay their own way.” Murdoch

v. Pennsylvania, 319 U.S. 105, 111 (1943). “A state may

not impose a charge for the enjoyment of a right granted

by the federal constitution.” Jd. at 113. e cost of

68a

maintaining order cannot be passed along to those

wishing to demonstrate in a public forum as a vt

ne of the granting of a permit. Forsyth, 505 U.S.

at 134-35.

1. Section C(4) (c)

Section C(4)(c) states that no permit shall be

granted unless the applicant has:

executed an agreement with the Park District

(promising] to bear all costs of policing,

eaning up and restoring the park upon

conclusion of the event or activity; to

reimburse the Park District for any such costs

incurred . . . and to indemnify the Park

District and hold the Park District harmless

from any liability to any person resulting

from any damage or injury occurring in

connection with the permitted event

proximately caused by the action of the

pernittee, the sponsoring organizer, its

Officers, Employees or agents or any person

— their control insofar as permitted by

aw.

(emphasis added).

This provision conditions the issuance of a permit

on the ability of the applicant to pay for ne and

damage resulting from and assembly. The

indemnification and reimbursement expenses depend

upon the crowd’s reaction to the speech and ———-

Thus, by requiring the permit applicant to personal

bear the cost of his/her public , the conveyance of

9 messages could be chilled. This provision

could dissuade speakers from using public parks for

political speeches because of a fear of huge financial

consequences. This regulation could be to punish a

speaker for attracting too many followers; for example, a

large crowd might result in a speaker being held

responsible for trampli

charges for resodding the park. “| contrast, ~

unpopular er night be

states:

2. Section C(4)(d)

Section C(4)(d), concerns security deposits and

no application for permit shall be granted

unless the applicant paid . . . the security

deposit in an amount in accordance with the

schedule of fees . . . The amount of the

security deposit set in the schedule of fees

shall equal to the estimated cost of

—- cleaning up, and restoring the park

upon the conclusion of the use or activity. . .

Promptly after the conclusion of a permit

activity, the Park District shall inspect the

premises and equipment used by the

permittee... .

(2) If it is determined by such inspection,

that the permitted event proximately caused

damage ... or... that fines should be

assessed . . . the Park District shall retain the

security deposit or any portion, thereof,

necessary to pay for the cost of repair or any

fines ass against the permittee... .

Like § C(4)(C), the costs imposed here go, in

70a

part, towards “policing” the event. However, this section

chiefly deals with security deposits, and requires that the

security deposit be equal to the estimated cost of

policing and cleaning up after the conclusion of an

activity. In its previous Report and Recommendation,

the Court expressed concerns that this section would

deter a person from delivering a speech that incited

bottle throwers because the person would have to pay

more for the permit. The Park District states that it only

holds the speaker accountable for damages that are

“proximately” caused a the — (Defendant's

Supplemental 12(M), davit of Joan Fencik 4 13.)

But there is no evidence regarding the standard or

procedures je Park District uses in calculating what

damages aie proximately caused by the speaker, and

what damages are not.’

Additionally, the Park District cannot, and does

not, determine whether the debris or — being

cleaned up at the site of the event is from the speaker or

from an unruly crowd not under the perinittee’s control.

The Park District’s schedule of fees provides that security

deposits are tripled for organizations that have forfeited

their security deposits at prior events. This punitive

trebling of the security deposit is another penalty

imposed for the crowd’s negative reaction to the

speaker’s message. As the Supreme Court explained in

Forsyth, a regulation was invalid because ‘(t]hose

wishing to express views unpopular with bottle

throwers, f or example, may have to Pay more for their

ermit.” Forsyth, 505 U.S. at 134. “Speech cannot be

inancially burdened, any more than it can be punished

or banned, simply because it might offend a hostile

mob.” Id. at 134-35. Nor can an applicant’s future

7. This also raises similar issues of unfettered discretion

and lack of evidence of narrowing through well-

established practice, as were addressed in Part A of this

Report and Recommendation.

7la

speech be barred outright because prior speech has

offended such a mob. Thus, this coentalnn of the

Ordinance is facially unconstitutional.

3. Section C(4)(f)

_ Section C(4) (f) imposes a hefty insurance

requirement on applicants:

Applicant shall procure and maintain at all

times during its use of Park District property,

insurance in such amounts and with such

coverages as shall reasonably be required

the Park District . . . . The Division of Ris

Management shall prepare a _ uniform

schedule of insurance guidelines for

particular types of activities. Applicant shall

provide Park District with a certificate from

an insurer evidencing such coverage prior to

applicant’s use of Park District Property... .

There is no provision for waiver if the applicant is

unable to obtain insurance because no company will

provide it. This section allows the Park District to pass

along its discretion to the insurance companies - the

insurance providers decide whether an event is too risky

to insure, and may (likely will) make their

determination based on the message or content of the

event. Those with unpopular views (especially those

likely to receive a negative response from the public)

will have a difficult, if not impossible time getting

insurance, or it will cost tiem much more. See Collin v.

Smith, 447 F. Supp. 676, 684 (N.D. Ill. 1978) (insurance

was beyond the reach of Nazi organization because

“insurance companies are simply not interested in

writing the kind of policy required due to the unknown

risks involved ... .“), affd, 578 F.2d 1197 (7™ Cir.

1978), cert. denied, 439 U.S. 916 (1978); see also

Pritchard v. Mackie, 811 F. Supp. 665, 668 (S.D. Fla.

1993) (insurance requirement “fails to take into account

72a

the possibility that the most heinous political groups in

American society may find it difficult, if not impossible

to actually purchase insurance.”). The Park District is

not required to assist an applicant in, obtaining

insurance, but it sometimes chooses to help” - itself an

indication that insurance can be difficult to obtain.

Thus, this provision of the Ordinance is facially

unconstitutional.

C. Park District’s Cases

The Park District does not again raise discussion

of Graff v. City of Chicago, 9 F.3d 1309 (7™ Cir. 1993) (en

banc), in its Supplemental Memorandum. Therefore,

this Court simply incorporates its previous exhaustive

analysis of Graf's inapp ~~~ | to the instant case from

the April 27, 1998 Report and Recommendation. The

Park District does cite three new cases to support its

argument that the Ordinance is constitutional; however,

none of these cases are controlling. In addition, all of

these cases are distinguishable from the present

situation.

MacDonald v. City of Chicago, 97 C 5266, 1998

U.S. Dist. LEXIS 15361, at *3 (N.D. Ill. September 23,

1998) and MacDonald v. Safir, No. 98 Civ. 2332, 1998

U.S. Dist. LEXIS, at *2 (S.D. N.Y. June 16, 1998) both

involved parade ordinances (and denial of parade

rmits for major public streets). The present case,

owever, does not involve a permit scheme for a parade.

Instead, the Ordinance here covers the use of p for a

variety of activities, including pure speech. As the

8. Again, this raises issues of unfettered discretion

and lack of evidence of narrowing through well-

established practice, similar to those addressed in Part

A of this Report and Recommendation.

73a

Supreme Court has held, the First Amendment does not

give the same protection to conduct such as marchin

and patrolling as it does to expressing oneself throu 4

pure speech. Shuttlesworth v. City of Birmingham, 394

U.S. 147, 152 (1969). Therefore, the present Ordinance

is more closely examined than a parade ordinance.

The Park District also cites Gasparo v. City of New

York, No. 98 CV 3168, 1998 U.S. Dist. LEXIS 12300, at

*30—31 (E.D. N.Y. May 26, 1998) and notes that the

district court found the discretion of New York City in

licensing newsstands to be similar to that of Chicago in

Graff. (Park District’s Supplemental Memorandum at 7.)

The Park District argues that Gasparo’s finding of

similarity to Graff supports a finding that the Ordinance

here is facially constitutional. However, that argument is

unavailing. This Court has already exhaustivel

distinguished the city’s discretion in Graff from the Park

District’s discretion in the instant case. (April 27, 1998,

Report and Recommendation at 16—32.) In short, the

discretion afforded by the scheme in Graff was much less

than the unbridled discretion afforded by the Ordinance

here. Gasparo’s finding of similarity to Graff does

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