# Opposition Brief — MacDonald v. City of Chicago

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1113

## Text

Saynwane Court, U.S.
FILED

J

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1925%3A2. Public record. Not legal advice.