Opposition Brief — MacDonald v. City of Chicago

Saynwane Court, U.S.

FILED

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No. 00-1839 , We 12 2001 |

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Jn The Supreme Court of the Anite —

ROBERT MACDONALD, et al.,

Petitioners,

V.

CITY OF CHICAGO,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

MARA S. GEORGES

Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL *

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant Corporation

Counsel

City Hall, Room 600

121 N. LaSalle Street

Chicago, Illinois 60602

(312) 744-5337

* Counsel of Record Attorneys for Respondent

WILSON-EPES PRINTING Co., INC. -— (202) 789-0096 -— WASHINGTON, D.C. 20001

® «Ges» co

QUESTIONS PRESENTED

1. Whether an ordinance that requires a permit for demon-

strations and other events that will obstruct the public ways,

and that limits municipal officials to consideration of criteria

addressed to only the time, place, and manner of the proposed

event when acting on permit applications, is a prior restraint

on speech within the meaning of the First Amendment.

2. Whether an ordinance granting licensing authorities

discretion to evaluate the time, place, and manner of proposed

events that will obstruct the public ways under identified

criteria that are unrelated to the content of anyone’s speech

grants effectively unchecked discretion to _ licensing

authorities in violation of the First Amendment.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED.................0cccscsccsssssesssessesees

TABLE OF AUTHORITIES .............scccsssessesseceesseseeeeees

SOSCESOESEE ESE SESE SESE SESE SEES SES EEE EEE ESHEETS ESEESEEHESEEEEES

PPUTTITIOIC Ie

(ii1)

Page

17

iV

TABLE OF AUTHORITIES

CASES: Page

11126 Baltimore Boulevard, Inc. v. Prince

George’s County, 58 F.3d 998 (4th Cir.) (en

banc), cert. denied, 516 U.S. 1010 (1995)......... 15

American Target Advertising, Inc. v. Giani, 199

F.3d 1241 (10th Cir.), cert. denied, 531 U.S.

EF ED sist icientarinsinsticiciadignideanbaandiianselpicnsantinn 16

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

Pe CE Gls We Patciicctctteciincenntshinpiannmsnanninsinns 15

Beal v. Stern, 184 F.3d 117 (2d Cir. 1999)............ 16

Blue Canary Corp. v. City of Milwaukee, 251

ce Riri ay, [+ ty __ \ SRMuRnCMnnrmneciemenrmnone 15

Boos v. Barry, 485 U.S. 312 (1988)............sssceseees 13

Boss Capital, Inc. v. City of Casselberry, 187

eed TAG CEE als BD cntsianinnstersininistalasiainen 15

Cannabis Action Network v. City of Gainesville,

231 F.3d 761 (11th Cir. 2000), petition for

cert. filed, 69 U.S.L.W. 3657 (U.S. March 29,

8) LO I LED natin sncitithinenvicanitshianiaanininins 8, 16

City of Lakewood vy. Plain Dealer Publishing

Cg RD Sha. Fe CR iniciteninaitinsinesicinnstnnsnniomes 10, 12

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

EE ais Sdb Fe ED cctticttnacccicaticltiantninentbivase 15

Cox v. New Hampshire, 312 U.S. 569 (1941)........ passim

East Brooks Books, Inc. v. City of Memphis, 48

F.3d 220 (6th Cir.), cert. denied, 516 U.S. 909

Ce scecennsicssnsii sviinninseradinnsinabninianebaicheaaneiccaniaiibidi 15

Fantasy Book Shop, Inc. v. City of Boston, 652

Fe BOE CERT TO ed isteiinseniniinisnaaenebinen 15

Forsyth County v. Nationalist Movement, 505

Fouls Rae 4 ee icsishiieestedinabiisniephibheisabaaseimenanuiniansiiibics 10

Freedman v. Maryland, 380 U.S. 51 (1965).......... passim

Frisby v. Schultz, 487 U.S. 474 (1988) .........cceseeee 4

FWIPBS, Inc. v. City of Dallas, 493 U.S. 215

Vv

TABLE OF AUTHORITIES—Continued

Page

Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.

1993) (en banc), cert. denied, 511 U.S. 1085

CDG) sinchatsieiasstanontnatscsshtaniddaiaticiiensavatianmaieinia 3

Grayned v. City of Rockford, 408 U.S. 104

CFF) ssinsnsisensaasdecsinncabdntanmavelscntsaciabcaadenialiaaais 13, 15

Handley v. City of Montgomery, 401 So. 2d 171

(Adm, Crier, Ai: SFE) cniscciscscctscisssitnccssssinassnaine 14, 16

Harkins v. Greenville County, 533 S.E.2d 886

(S.C. 2000), cert. denied, 121 S. Ct. 880

CIID ccdcncncssensantvcinnisnniaalaneintiiandbenamnsessaiannabbncninne 15

Hill v. Colorado, 530 U.S. 703 (2000) ...............66+ 8

Jews for Jesus, Inc. v. Massachusetts Bay

Transportation Authority, 984 F.2d 1319 (ist

Ce, Se aticndendisccsiesininipesnianincedibinaithcaiuianseauaainiines 16

MacDonald v. Safir, 206 F.3d 183 (2d Cir.

SAID ssitebinsticeinsisscitssteldibhadiaentlaigeitecihinacbiainsanenalinas 16

O’Connor v. City and County of Denver, 894

Be ee CO ae. RIOD stintsisecsesanidtinatarmnasaine 15

Outdoor Media Dimensions, Inc. v. State, 945

P.2d 614 (Or. Ct. App. 1997), aff'd, 20 P.3d

SREP Cs IIET Ditosinansnnitsnnenmassasicpapiiaibuapebolaislanaaans 16

P.M. Realty Investments, Inc. v. City of Tampa,

779 So. 2d 404 (Fla. Dist. Ct. App. 2000)......... 16

Riley v. National Federation of the Blind of

North Carolina, Inc., 487 U.S. 781 (1988) ....... 10

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

SPT CRIT sicesssniiapisiiensinnéngininainahiniatnanbiennaiiness 10

State v. Frinks, 201 S.E.2d 858 (N.C. 1974)......... 16

Stonewall Union v. City of Columbus, 931 F.2d

1130 (6th Cir.), cert. denied, 502 U.S. 899

CRE ET aciccsassdeguivscosnsscntiichpuabindecanensiniemstindiueaneaadanes 4

Thomas v. Chicago Park District, 227 F.3d 921

(7th Cir. 2000), cert. granted, 121 S. Ct. 2191

(ZAIRE) CR, GTI ve eiennscenscscensrenssrcsncsssonse 5, 6, 15, 17

vi

TABLE OF AUTHORITIES—Continued

Page

TK’s Video, Inc. v. Denton County, 24 F.3d 705

(SO Cas, 1D B)ccccccccsesceccosenpncstactinecsnintounentniataaane 15

United States v. X-Citement Video, Inc., 513 U.S.

G6 (BDDS) cnceccscccnissscsansinsstsnccsnstsonnimncenansinninnionie 14

Ward v. Rock Against Racism, 491 U.S. 781

(TDGB) cnsoccsrcsnreccnsesonenstantannacssatissenssennantiiniatenhaanes 7,8

Young v. American Mini Theatres, Inc., 427 U.S.

FO CID TED ccccessecsrecnnccnsecensnnctainvitgmmanteipnseandiitedions 14

ORDINANCE:

Municipal Code of Chicago, Ill. § 10-8-330(a)(1)

(BEE) secccosssnenssnssnsslicssanntesicaidhasinnaenhmeedniiiinisi l

Municipal Code of Chicago, Ill. § 10-8-330(a)(2)

(BTID cccocecotcsusescossnssvennscsneansassensacinsineniittiieninnsctns l

Municipal Code of Chicago, Ill. § 10-8-330(b)

(BITE) cccccccssesscececssntntectestnennentitiiatasiutibianntiaibiinihiits l

Municipal Code of Chicago, Ill. § 10-8-330(c)

(BBG nscccsccasacsenisncniéesciintscnnintasendigicnnitiiainisntntanea 2

Municipal Code of Chicago, Ill. § 10-8-330(e)

(BID ccorcesenescccndctnncncsstisiaimntenntsinssunsegiieiinminmnen 2

Municipal Code of Chicago, Ill. § 10-8-330(h)

(ZIT) coscescvessccescstnnsensintasecapsnessanenititiaiiianeniaiseciites 3,14

Municipal Code of Chicago, Ill. § 10-8-330(i)

(BI) nacerconesnccenccsninsmantinsinssssninniianasiananiiiasipinntins ye

Jn The Supreme Court of the Anited States

No. 00-1839

ROBERT MACDONALD, et ai.,

Petitioners,

Vv.

CiTy OF CHICAGO,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

STATEMENT

Chicago’s parade permit ordinance requires a permit from

Chicago’s Department of Transportation for any “parade,”

defined as any march or procession that “does not comply

with normal and usual traffic regulations or controls,”

Municipal Code of Chicago, Ill. § 10-8-330(a)(1) (2000), or

any “public assembly,” defined as “a company of persons

which is reasonably anticipated to obstruct the normal flow of

traffic upon the public way and that is collected together in

one place,” id. § 10-8-330(a)(2). See id. § 10-8-330(b).'

Under the ordinance, permit applications must be filed not

less than seven business days before the proposed event. See

' The pertinent ordinance is reproduced in the appendix to the petition

for a writ of certiorari. See Pet. App. 104a-i 14a.

2

id. § 10-8-330(c). The application must contain the name,

address, and telephone number of the person signing the

application and the other authorized and responsible leaders

of the organization conducting the event; the date and time of

the proposed event; the location of the proposed assembly

and disbanding areas; the approximate number of persons

expected to participate in the event and the basis on which

the estimate is made; and the proposed route including

the sidewalks or lanes of traffic it will occupy. See id.

§ 10-8-330(e). The Commissioner of Transportation must

then act upon the application within two business days. See

id. § 10-8-330(i).

Under the ordinance, the Commissioner of Transportation

must issue a permit when the Commissioner finds that:

(1) The proposed activity will not substantially or

unnecessarily interfere with the traffic in the area

contiguous to the activity or that if the activity will

substantially interfere with such traffic, there are

available at the time of the proposed activity sufficient

City resources to mitigate the disruption;

(2) There are available . . . a sufficient number of

police officers to police and protect lawful participants

in the activity and non-participants from traffic related

hazards in light of the other demands for police

protection at the time of the proposed event or activity;

(3) The concentration of persons, animals, vehicles, or

things at the assembly and disbanding areas and along

the parade . . . route will not prevent proper fire and

police protection or ambulance service;

(8) the application contains sufficient information

about the proposed route and crowd estimate to enable

the Commissioner to evaluate the proposed event under

this section.

a

3

Municipal Code of Chicago, Ill. § 10-8-330(h) (2000). If the

Commissioner disapproves an application, the Commissioner

must “provide by facsimile transmission or telephonically and

by mail directed to the applicant within two business days

after the date upon which the application was filed, notice of

his or her action, stating the facts and conclusions which

are the basis for his or her denial of the permit.” /d.

§ 10-8-330(i). Any aggrieved applicant may appeal to the

Mayor’s License Commission, which must hold a hearing

within three business days and then either affirm or reverse

the Commissioner’s decision. /d. Any final decision on an

application “shall be subject to judicial review in accordance

with applicable law.” /d.’ If either the Commissioner or the

Mayor’s License Commission fails to act on an application

within the time allowed by the ordinance, an “application for

a permit shall be deemed approved and the permit deemed

granted in conformance with the application.” /d. Moreover,

“{i]f the Commissioner denies an application for the failure to

provide sufficient information about the proposed route or

crowd estimate, he shall specify what additional information

must be provided in a new or amended application.” /d.

§ 10-8-330(J). In addition, whenever the Commissioner

denies an application, he must also issue an alternate permit

for an event which “shall to the extent practicable authorize

an event that will have comparable visibility and a similar

route, location and date to that of the proposed event.” /d.

Robert MacDonald was an “activist” who organized

marches advocating the legalization of marijuana. See Pet.

App. 52a.’ He filed this suit challenging the constitutionality

? Judicial review of municipal permitting decisions is reviewable under

Illinois law by common law certiorari. See, e.g., Graff v. City of Chicago,

9 F.3d 1309, 1324-25 (7th Cir. 1993) (en banc) (plurality opinion), cert.

denied, 511 U.S. 1085 (1994).

> MacDonald died during the pendency of the appeal, and the court of

appeals granted petitioners Caren Cronk Thomas and the Windy City

4

of the parade permit ordinance on its face under the First

Amendment. See Pet. App. 60a-6la. Ruling on cross-

motions for summary judgment, the district court concluded

that the criteria in the ordinance did not grant the

Commissioner impermissibly broad discretion when acting on

permit applications. See Pet. App. 65a-70a. But the court

also ruled that the Commissioner’s authority to consider

whether there are sufficient police officers available to protect

marchers amounted to an invalid content-based regulation of

speech. See Pet. App. 70a-73a. Further, the court found that

the ordinance’s failure to require the licensing authorities to

initiate judicial proceedings to review a decision denying a

permit application and to bear the burden of proof in those

decisions created an invalid prior restraint. See Pet. App.

74a-77a."

The court of appeals reversed the judgment of the district

court to the extent that it had invalidated portions of the

Chicago ordinance.” The court rejected petitioners’ claim

that the ordinance granted impermissible discretion to the

Cor imissioner, finding that the ordinance specified legitimate

criteria for acting upon license applications. See Pet. App.

16a-20a. The court also concluded that because the ordinance

regulated the time, place, and manner of speech, it should not

Hemp Development Board leave to substitute as plaintiffs. See Pet. App.

6a. The petition’s identification of MacDonald as a party accordingly is

incorrect.

* While the case was on appeal, the City filed a motion to vacate the

injunction based on various amendments that had been made to the

ordinance at issue. See Pet. App. 83a. The district court denied that

motion, concluding that the amendments did not cure the constitutional

infirmities that the court had identified. See Pet. App. 84a-90a.

*The court found that because the ordinance had been amended,

petitioners’ claims with respect to the earlier version of the ordinance

were moot, and only the ordinance as amended was properly before the

court. See Pet. App. 1la-12a. Petitioners do not contest that ruling in this

Court. See Pet. i.

>

be treated as a prior restraint on speech. See Pet. App. 20a-

28a. The court added that the ordinance properly regulated

speech, since it did not permit consideration of the content of

speech and was narrowly tailored to advance legitimate

governmental interests. See Pet. App. 28a-33a. Finally, the

court held that this content-neutral licensing ordinance need

not supply the elaborate procedural safeguards required when

a prior restraint is at issue. See Pet. App. 34a-39a.

ARGUMENT

The decision of the court of appeals was correct. Indeed,

the result below was compelled under this Court’s decision in

Cox v. New Hampshire, 312 U.S. 569 (1941), which held that

laws requiring marchers to obtain permits should be upheld

when they reasonably regulate the time, place, and manner of

expression, even if they permit licensing officials to make

discretionary judgments about when and where public

assemblies should take place.

As the court of appeals recognized, however, the decision

below is in conflict with decisions in other circuits that have

branded even laws directed only at the time, place, or manner

of expression as prior restraints. Moreover, to reach the result

below, the court of appeals relied on a decision which this

Court has since decided to review, Thomas v. Chicago Park

District, 227 F.3d 921 (7th Cir. 2000), cert. granted, 121

S. Ct. 2191 (2001) (No. 00-1249). Although, as we explain

below, the ordinance at issue in Thomas differs in a number

° Judge Rovner dissented in part, disagreeing with the court’s holding

that the ordinance was content neutral. In her view, the Commissioner’s

authority to consider whether adequate police resources are available to

protect marchers with respect to traffic-related hazards effectively created

content-based regulation, since the Commissioner could conclude that

marches that provoke a hostile audience reaction could provoke greater

traffic-related hazards, and for that reason the ordinance created a type

of “heckler’s veto” forbidden by the First Amendment. See Pet.

App. 43a-50a.

6

of critical respects from the ordinance at issue here, there is

nonetheless a sufficient relationship between this case and

Thomas that the Court will likely wish to hold this petition

pending its decision in Thomas. Nevertheless, only the

broadest and most radical positions pressed by the petitioners

in Thomas would even hint at a basis for reversing the court

of appeals in this case. Accordingly, after its decision in

Thomas, unless the Court has embraced the broadest

arguments pressed by the petitioners in that case, the petition

for certiorari should be denied. To the extent that the

decision in Thomas does not resolve the confusion in the

lower courts on any of the questions presented by the petition

in this case, and the Court deems the questions presented in

the petition worthy of plenary review, the Court should then

grant the petition.

1. Central to all of the arguments pressed by petitioners

is their view that the First Amendment ordinarily forbids

licensing laws that vest even a modicum of discretion in

licensing authorities. For example, petitioners argue that the

First Amendment “condemn{[s] the inclusion of discretion in

ordinances requiring a permit to engage in free speech... .”

Pet. 20. This view finds no support in this Court’s

precedents. To the contrary, it is settled that laws

empowering licensing officials to regulate the time, place,

and manner of expression are constitutionally sound.

The statute at issue in Cox v. New Hampshire, like the

ordinance at issue here, required demonstrators to obtain a

permit before they could lawfully march on public streets. To

obtain a permit, applicants were obligated to provide

licensing officials with sufficient advance notice “so as to

afford opportunity to afford proper policing.” 312 U.S. at

576. Thereafter, licensing officials were authorized to fix the

time and place of a march “to prevent confusion by

overlapping parades or processions, to secure convenient use

of the streets by other travelers, and to minimize the risk of

7

disorder,” and a permit would be issued only “if after a

required investigation it was found that the convenience of

the public in the use of the streets would not thereby be

unduly disturbed, upon such conditions or changes in time,

place, and manner as would avoid disturbance.” /bid. This

Court upheld the statute, reasoning:

If a municipality has authority to control the use of its

public streets for parades and processions, as it

undoubtedly has, it cannot be denied authority to give

consideration, without unfair discrimination, to time,

place and manner in relation to the other proper uses of

the streets. We find it impossible to say that the limited

authority conferred by the licensing provisions of the

statute im question as thus construed contravened any

constitutional right.

Ibid.

Since Cox, this Court has never deviated from the rule that

licensing laws may reasonably regulate the time, place, or

manner of expressive activities. Thus, in Ward v. Rock

Against Racism, 491 U.S. 781 (1989), the Court upheld a

sound regulation for public concerts requiring “the best sound

for all events,” and providing that event organizers “ensure

appropriate sound quality balanced with respect for nearby

residential neighbors and the mayorally decreed quiet zone of

[the] Sheep Mleadow.” Id. at 794. The Court acknowledged

that these stamdards required the exercise of discretion, but

found that discretion unobjectionable: “While these

standards are undoubtedly flexible, and the officials

implementing them will exercise considerable discretion,

perfect clarity and precise guidance have never been required

of regulations that restrict expressive activity.” Id.

In short, discretion that is confined to evaluating the time,

place, or manmer of expression does not render a law subject

to facial invaliidation under the First Amendment. Only when

EEE

8

the discretion conferred by a challenged enactment enables

the government to discriminate between favored and

disfavored speakers can it properly be invalidated without

reference to the manner in which it has been applied to the

party challenging it. As the Court explained in City of

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750

(1988), “a facial challenge lies whenever a licensing law

gives a government official or agency substantial power to

discriminate based on the content or viewpoint of speech by

suppressing disfavored speech or disliked speakers.” Jd. at

759. By contrast, as Cox and its progeny illustrate, this Court

has not indulged facial challenges when a law fails to grant

government officials this type of content-based discretion, but

merely allows the exercise of discretion with respect to the

time, place, and manner in which expressive activities are to

take place.

2. Petitioners claim that “a prior restraint analysis [must]

be applied to all statutes, ordinances, rules and regulations

requiring a permit before citizens may be heard... .”

Pet. 14. But Cox itself upheld a licensing law directed only at

the time, place, and manner of expression, and even

petitioners do not claim that any subsequent decision of this

Court has cast the slightest doubt on the vitality of Cox. To

the contrary, this Court has repeatedly explained that only

laws that forbid speech altogether, rather than regulating it,

should be characterized as prior restraints. In Rock Against

Racism, for example, the Court emphatically rejected an

argument that the sound guideline at issue constituted a prior

restraint, observing that the guideline “grants no authority to

forbid speech, but merely permits the city to regulate its

volume to the extent necessary to avoid excessive noise.”

491 U.S. at 795 n.5. Similarly, in Hill v. Colorado, 530 U.S.

703 (2000), the Court held that a statute restricting protest

activity near health care facilities was not a prior restraint,

explaining: “Under this statute, absolutely no channel of

9

communication is foreclosed. No speaker is silenced. And

no message is prohibited.” /d. at 734.

Nor is the existence of discretion in a licensing law enough

to brand it a prior restraint. As we explain above, the

existence of licensing discretion makes a law vulnerable to

facial challenge only when it permits the government to

prohibit speech based on an evaluation of its content. In

Freedman v. Maryland, 380 U.S. 51 (1965), for example, on

which petitioners place their primary reliance, the statute at

issue allowed a state board to view all films prior to their

exhibition and to prohibit the exhibition of films that “are

obscene, or such as tend, in the judgment of the Board, to

debase or corrupt morals or incite to crimes.” /d. at 52 n.2.

The Court noted the “peculiar dangers” of “a censorship

system”: “Because the censor’s business is to censor, there

inheres the danger that he may well be less responsive than a

court—part of an independent breach of government—to the

constitutionally protected interests in free expression.” /d. at

57 (footnote omitted). The Court therefore required rigorous

procedural protections “to obviate the dangers of a censorship

system.” Id. at 58. The Court held that to comport with the

First Amendment, licensing officials must bear the burden of

proving that a film is constitutionally unprotected, their

decisions can restrain exhibition of a film only during a

specified brief period of time in which the officials must

initiate judicial review, and a prompt judicial decision must

be assured. See id. at 58-59.

Since Freedman, this Court has imposed the complicated

and burdensome procedures mandated in that case only on

laws that permit officials to censor disfavored speech in the

same fashion as the system at issue in that case. For example,

laws granting licensors entirely unfettered discretion to

decide whether to issue licenses are treated as prior restraints

because they create a risk of censorship identical to the

system at issue in Freedman: “without standards governing

10

the exercise of discretion, a government official may decide

who may speak and who may not based on the content of the

speech or viewpoint of the speaker.” City of Lakewood, 486

U.S. at 763. See, e.g., Forsyth County v. Nationalist

Movement, 505 U.S. 123, 132-33 (1992); Shuttlesworth v.

City of Birmingham, 394 U.S. 147, 150-51 (1969). Laws that

do not require licensing officials to act on applications within

a specified period of time suffer from the same defect, since

“fw]here the licensor has unlimited time within which to

issue a license, the risk of arbitrary suppression is as great as

the provision of unbridled discretion.” FW/PBS, Inc. v. City

of Dallas, 493 U.S. 215, 226-28 (1990) (plurality opinion).

See, e.g., id. at 238-42 (Brennan, J., concurring in the

judgment); Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781, 801-02 (1988). But the prior

restraint doctrine has never been applied outside of these

contexts.

Petitioners nevertheless claim that in FW/PBS this Court

applied prior restraint doctrine to a licensing law that did not

permit officials to act on the basis of content of speech. See

Pet. 11-12. To be sure, a majority of the Court characterized

the ordinance at issue in FW/PBS as a prior restraint, but that

was because the ordinance did not require licensing officials

to act within a specified period of time, as we explain above.

The plurality, for example, wrote that “like a censorship

system, a licensing scheme creates the possibility that

constitutionally protected speech will be suppressed where

there are inadequate procedural safeguards to ensure prompt

issuance of the license.” 493 U.S. at 226 (emphasis

supplied). Nevertheless, while the plurality’s opinion in that

case is not entirely free from ambiguity, a majority of the

Court unquestionably concluded that Freedman was

inapplicable to the Dallas ordinance. The three-Justice

plurality, for example, concluded that when licensing

decisions must be made within a specified period of time and

judicial review is available, Freedman did not apply to the

11

licensing system at issue: “We conclude that the First

Amendment does not require the city to bear the burden of

going to court to effect the denial of a license application or

that it bear the burden of proof once in court.” 493 U.S. at

230.’ Three other Justices also rejected application of prior

restraint doctrine to the Dallas ordinance, concluding that it

created no impermissible risk of censorship of protected

speech. See id. at 246-48 (White, J., joined by Rehnquist,

C.J., concurring in part and dissenting in part) (relying on

ordinance’s content neutrality); id. at 259-64 (Scalia, J.,

concurring in part and dissenting in part) (construing

ordinance as regulating pandering and not protected speech).

Thus, no decision of this Court has ever applied Freedman’s

elaborate procedural rules to a content-neutral licensing law.

Accordingly, the court of appeals correctly rejected

petitioners’ view that even content-neutral regulation of the

time, place, or manner of speech should be considered a prior

restraint. Laws of this character continue to be governed by

Cox. And even aside from precedent, there is simply no

warrant for applying prior restraint doctrine to the ordinance

at issue here. That doctrine—by requiring the licensing

authority to initiate judicial review, to bear the burden of

proof in a de novo judicial proceeding, and to preserve the

status quo until a prompt judicial decision issues—effectively

makes judges the actual decisionmakers on_ license

applications. Under Freedman, licensing decisions are of no

effect if licensing officials cannot convince a judge that they

are correct. But when a licensing official is authorized to act

only on legitimate and content-neutral criteria, there is no

justification to transfer licensing authority to the judiciary.

’ The plurality added that the First Amendment required no more than

that judicial review be available: “there must be the possibility of prompt

judicial review in the event that [a] license is erroneously denied.” 493

U.S. at 228.

12

The ordinance at issue here, moreover, contains the type of

legitimate and content-neutral criteria that Cox and its

progeny hold may be utilized in licensing laws. The

ordinance identifies only legitimate criteria for decision

unrelated to the content of speech—criteria appropriately

based upon the impact of a proposed event on traffic flow and

police and fire service. The ordinance silences no one; it

governs only the time, place, and manner of expression.

Similarly, it disqualifies no one from receiving a permit,

requires that decisions be made within specified time periods,

and guarantees applicants whose requests are denied an

alternate permit for an event as similar as practicable to the

original proposal. This ordinance prevents no speech; it

merely regulates when and where speech will occur. That has

never before been thought to constitute a prior restraint.

3. Petitioners also claim that various provisions of the

ordinance delegate impermissibly broad discretion to the

Commissioner of Transportation. They point to the

requirement that the Commissioner consider whether a

proposed event will “substantially or unnecessarily interfere

with traffic,” whether there are “a sufficient number of peace

officers to police and protect lawful participants in the

activity and non-participants from traffic related hazards,”

and whether the proposed event would create a

“concentration of persons, animals, vehicles or things at the

assembly and disbanding areas and along the parade...

route” that would “prevent proper fire and police protection

or ambulance service.” See Pet. 19-20. But again, the First

Amendment does not condemn all discretion when making

licensing decisions; as we explain above, a challenged law

should be condemned only when it permits licensing officials

to act on the basis of content of speech. And for that reason,

“standards limiting the licensor’s discretion will eliminate

this danger... .” City of Lakewood, 486 U.S. at 758. The

ordinance at issue here contains ascertainable standards that

circumscribe licensing discretion and ensure that only the

13

time, place, and manner of expression will be considered, as

the court of appeals correctly concluded. See Pet. App. 16a-

20a.

Nothing in this Court’s precedents lends support to

petitioners’ claim that Chicago’s ordinance delegates

impermissibly broad discretion. In Boos v. Barry, 485 U.S.

312 (1988), for example, the Court upheld a law that

authorized the police to order demonstrators to disperse

whenever they reasonably believe that they threaten to disrupt

the “peace and security” of foreign embassies. See id. at 332.

Similarly, in Grayned v. City of Rockford, 408 U.S. 104

(1972), the Court upheld an ordinance that permitted police to

halt demonstrations near schools when “normal school

activity has been or is about to be disrupted.” /d. at 112. And

as we explain above, the statute upheld in Cox also permitted

licensing authorities to exercise substantial discretion. The

degree of discretionary authority upheld in these decisions

8 In addition to challenging the provisions of the ordinance that we

discuss above, petitioners also attack the provision in the ordinance

permitting the Commissioner to assess whether the application contains

sufficient information about the proposed route and crowd estimate to

allow the Commissioner to evaluate the proposed event under this section.

See Pet. 20. That claim, however, is not properly before this Court

because petitioners never advanced it in the district court. See Pet. App.

65a-70a, 100a-101a. Petitioners instead made this argument for the first

time on appeal, but since the district court had not enjoined this portion of

the ordinance, this was not a proper ground on which to affirm the district

court’s judgment, and the court of appeals properly declined to reach it.

See Pet. App. 14a-20a. In any event, this objection has no more merit

than any of the others, since this provision also does not act to silence any

speaker. Not only are applicants denied a permit under this provision

entitled to an alternate permit, but when an application is denied on this

basis, the Commissioner of Transportation must also “specify what

additional information must be provided in a new or amended

application.” Municipal Code of Chicago, Ill. § 10-8-330(/) (2000).

14

differs in no meaningful respect from the scope of discretion

contained in Chicago’s ordinance.’

Indeed, some measure of discretion is essential if the safety

of the public is to be protected. Whether the route and size of

a proposed event will unduly interfere with ambulance

service, for example, is simply not susceptible to a precise

formula. Public safety cannot practicably be secured unless

* In the briefest of footnotes, petitioners embrace Judge Rovner’s view

that the provision in the ordinance permitting consideration of whether

there are adequate police resources available to protect participants and

onlookers from traffic-related hazards is an impermissible content-based

criterion, since it permits consideration of a hostile audience reaction and

thus authorizes what amounts to an impermissible “heckler’s veto.” See

Pet. 20 n.16. This argument does not appear to be fairly included in any

of the questions presented in the petition. See Pet. i. And in any event, it

is based on an unwarranted construction of the ordinance. On its face, the

ordinance does not permit consideration of whether sufficient resources

are available to protect demonstrators from a potentially hostile audience,

but only whether there are resources available “to protect lawful

participants in the activity and non-participants from traffic related

hazards.” Municipal Code of Chicago, Ill. § 10-8-330(h)(2) (2000). The

ordinance makes no reference to hostile audience reaction, and petitioners

adduced no evidence that it has ever been construed or applied in that

fashion. The legitimacy of this criterion should be clear; the potential

hazards that traffic poses for demonstrators occupying the public ways

unless police are available to cordon off an event are plain. Indeed, at

least two other courts have rejected arguments that ordinances permitting

consideration of whether sufficient police resources are available to

protect participants in a proposed event from traffic-related hazards is

impermissible. See Stonewall Union v. City of Columbus, 931 F.2d 1130

(6th Cir.), cert. denied, 502 U.S. 899 (1991); Handley v. City of

Montgomery, 401 So. 2d 171, 180-83 (Ala. Crim. App. 1981). Moreover,

construing the ordinance to permit consideration of a hostile audience

reaction—when the ordinance itself contains no language mandating

consideration of such a criterion—would violate the settled rule that

challenged laws should be construed when possible in order to avoid

constitutional infirmity. See, e.g., United States v. X-Citement Video, Inc.,

513 U.S. 64, 69 (1994); Frisby v. Schultz, 487 U.S. 474, 482-83 (1988);

Young v. American Mini Theatres, Inc., 427 U.S. 50, 61 (1976).

15

officials retain at least a modicum of discretion to consider a

proposed event’s impact upon public safety. The fact that

some amount of judgment and discretion must be exercised

even when regulating speech within the meaning of the First

Amendment simply bows to practical reality. As this Court

has observed, “[c]ondemned to the use of words, we can

never expect mathematical certainty in our language.”

Grayned, 408 U.S. at 110.

4. Petitioners correctly observe that the holding below on

the prior restraint issue is in conflict with decisions in other

circuits holding that even content-neutral licensing laws

should be evaluated as prior restraints. See Pet. 11, 13,

15-16. This Court has also noted the existence of a split of

authority. See City News & Novelty, Inc. v. City of

Waukesha, 121 S. Ct. 743, 746 (2001). In the decision below,

the court of appeals acknowledged that conflict as well. See

Pet. App. 25a-26a, 35a-36a.'° The practical importance of

'° The disarray in the case law may-not be as aggravated as it appears.

Most of the cases that have applied prior restraint doctrine to content-

neutral licensing laws involved laws regulating establishments providing

sexually oriented entertainment. See, e.g., Baby Tam & Co. v. City of Las

Vegas, 154 F.3d 1097, 1101-02 (9th Cir. 1998); 11126 Baltimore

Boulevard, Inc. v. Prince George's County, 58 F.3d 998, 999-1000 (4th

Cir.) (en banc), cert. denied, 516 U.S. 1010 (1995); East Brooks Books,

Inc. v. City of Memphis, 48 F.3d 220, 224-25 (6th Cir.), cert. denied, 516

U.S. 909 (1995); Harkins v. Greenville County, 533 S.E.2d 886, 891-92

(S.C. 2000), cert. denied, 121 S. Ct. 880 (2001). As the Seventh Circuit

has observed, there may be greater justification for applying prior restraint

doctrine to those laws, since their applicability is triggered by the content

of an applicant’s speech. See Thomas, 227 F.3d at 927-28. Nevertheless,

some courts have declined to apply Freedman’s requirement that license

applicants be assured of a prompt judicial decision to content-neutral laws

that regulate sexually oriented establishments. See, e.g., Blue Canary

Corp. v. City of Milwaukee, 251 F.3d 1121 (7th Cir. 2001); Boss Capital,

Inc. v. City of Casselberry, 187 F.3d 1251, 1256-57 (11th Cir. 1999); TK’s

Video, Inc. v. Denton County, 24 F.3d 705, 709 (Sth Cir. 1994); O’ Connor

v. City and County of Denver, 894 F.2d 1210, 1220-21 (10th Cir. 1990);

Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, 1120-21

16

the questions presented here is also clear; permit requirements

like the one at issue here are ubiquitous—no doubt at least in

part because this Court blessed them in Cox—and if local

governments must now comply with Freedman whenever

they fail to grant applicants everything they seek, the practical

difficulties facing local officials will be enormous, as the

court of appeals observed. See Pet. App. 38a-39a. And

presumably because of the conflicting results in the lower

courts and the importance of this issue, the Court has granted

(ist Cir. 1981); P.M. Realty & Investments, Inc. v. City of Tampa, 779 So.

2d 404, 407-08 (Fla. Dist. Ct. App. 2000). But regardless of whether

cases involving licensing laws for sexually oriented businesses can be

distinguished from cases like this one, we acknowledge that the decision

below, while consistent with a number of other decisions, see, e.g., Jews

for Jesus, Inc. v. Massachusetts B.zy Transportation Authority, 984 F.2d

1319, 1326-28 (1st Cir. 1993); Handley, 401 So. 2d at 180-83; State v.

Frinks, 201 S.E.2d 858 (N.C. 1974); Outdoor Media Dimensions, Inc. v.

State, 945 P.2d 614, 623-24 (Or. Ct. App. 1997), aff'd on other grounds,

20 P.3d 180 (Or. 2001), cannot be reconciled with the Eleventh Circuit’s

application of prior restraint doctrine to a public congregation ordinance

that the court found to be content neutral. See Cannabis Action Network

v. City of Gainesville, 231 F.3d 761, 774-76 (11th Cir. 2000), petition for

cert. filed, 69 U.S.L.W. 3657 (U.S. March 29, 2001) (No.

00-1503). Less clear is whether the decision below is in conflict with the

law in the Second Circuit, which the court of appeals understandably

characterized in the decision below as “unclear.” Pet. App. 36a. In Beal

v. Stern, 184 F.3d 117 (2d Cir. 1999), the court remanded the case to the

district court for a determination whether the administration of the

ordinance at issue reflected excessive discretion, but added that under a

content-neutral law, the government need not bear the burden of initiating

judicial review. See id. at 126-29. While that approach appears

consistent with the decision below, the court also characterized any

licensing law as a prior restraint no matter how confined the discretion

that it confers. See id. at 124, 128. The court took the same approach in

MacDonald v. Safir, 206 F.3d 183, 194-95 (2d Cir. 2000). The Tenth

Circuit has also made this error, even though it upheld the law before it.

See American Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1253-54

(10th Cir.), cert. denied, 531 U.S. 811 (2000).

17

plenary review in Thomas, which was relied upon by the

court of appeals in the decision below.

To be sure, it is far from clear that even a decision by this

Court to reverse in Thomas will shed much light on the

correct resolution of this case. The ordinance at issue in

Thomas renders certain applicants altogether ineligible for

permits. See 227 F.3d at 924-25. For that reason, the Court

might treat the ordinance as a prior restraint or find it

otherwise impermissible under the First Amendment, rather

than upholding it as a regulation of time, place, or manner of

speech. Such a ruling would not bear on the ordinance at

issue in this case, which renders no one ineligible for a

permit, and silences no one either. Only if this Court

embraces the broadest arguments advanced by the petitioners

in Thomas, and holds that any licensing or permit law

involving expressive activities is governed by Freedman, will

the decision in that case bear on this one. Nevertheless, given

the relationship between the issues presented in Thomas and

those presented in the instant petition, the Court likely will

wish to hold this petition pending its decision in Thomas. At

that point, should the judgment in Thomas be affirmed, the

Court should deny the petition for a writ of certiorari. Should

the judgment be reversed, it may be appropriate at that point

for the Court to grant plenary review or, in the event that the

Court reverses in Thomas in a holding sufficiently broad to

bear on this case, to remand the case to the court of appeals

for reconsideration.

CONCLUSION

The petition for a writ of certiorari should be held pending

this Court’s decision in Thomas.

* Counsel of Record

July 12, 2001

18

Respectfully submitted,

MARA S. GEORGES

- Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL *

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant Corporation

Counsel

City Hall, Room 600

121 N. LaSalle Street

Chicago, Illinois 60602

(312) 744-5337

Attorneys for Respondent