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Court rules peddling ordinance is a prior restraint on free speech

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    NMU         SEVENTH CIRCUIT         Newsgathering         Nov 22, 2002    

Court rules peddling ordinance is a prior restraint on free speech

  • Reversing a district court’s decision, a federal appellate panel ruled in favor of an author who was kept from distributing his book outside a hockey arena.

A Chicago ordinance that prohibited a lifelong hockey fan from selling his book, critical of the team’s owner, was struck down by a panel of the U.S. Court of Appeals (7th Cir.) as unconstitutional, reversing a district court decision.

The Nov. 20 decision, written by Senior Judge William Joseph Bauer, said the city’s enforcement of its peddling ordinance against author Mark G. Weinberg invoked invalid time, place and manner restrictions and that its peddling licensure system constitutes an illegal prior restraint.

Weinberg was selling the self-authored Career Misconduct: The Story of Bill Wirtz’ Greed, Corruption, and the Betrayal of Blackhawk Fans in front of the United Center, home of the Chicago Blackhawks, when he was told by Chicago police that selling his book violated the city peddling ordinance.

The ordinance states that no person may sell merchandise, besides newspapers, within 1,000 feet of the United Center, unless they obtain a valid peddler’s license issued by the city. The city contended that the ordinance is meant to prevent crowding and congestion while the fans are entering and exiting the arena.

After noting that a public sidewalk is typically considered a public forum, the court held that the city did not appropriately demonstrate that its restriction is a reasonable “time, place or manner” restriction. Bauer wrote, “Using a speech restrictive blanket with little or no factual justification flies in the face of preserving one of our most cherished rights.” That assertion, along with the fact that the ordinance left no alternative means for speakers to reach their intended audiences, made the ordinance an unconstitutional restriction of speech.

Weinberg calls the 1,000 foot barrier a “prohibition on all forms of freedom of expression,” and claims to be the only person that “the city has ever tried to stop from selling printed matter on the street.”

“The City’s one-size-fits-all approach to restricting peddling cannot be reconciled with our First Amendment rights,” Bauer wrote.

The court agreed with the lower court in finding that the city has broad discretion in deciding when to issue a peddling license, as the ordinance is devoid of reasonable criteria for when licenses are granted or denied. It disagreed with the district court’s finding that Weinberg was only “incidentally” harmed by the licensing procedure, however.

“The licensing procedure gives the City the ability to ban messages or products simply because of its disfavored status … We cannot presume that officials will act in good faith and follow standards not explicitly contained in the ordinance,” Bauer wrote.

Weinberg said he was happy about the decision and will be awarded damages for the time he was unable to sell his book and for the infringement on his constitutional rights.

The issue, Weinberg said, is about public space and who controls it. In his opinion, “constitutionally-suspect” ordinances like Chicago’s will lead to “a slow deterioration of our freedoms.”

(Weinberg v. Chicago; Counsel: Martin Oberman, Chicago) AU

© 2002 The Reporters Committee for Freedom of the Press

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