From the Winter 2003 issue of The News Media & The Law, page 18.
By Alicia Upano
After the Chicago police cited him for violating the city’s peddling ordinance, preventing him from selling his book in front of the United Center for nine months, Mark Weinberg returned to the sidewalks in December 2002 with a U.S. Court of Appeals (7th Cir.) victory that rendered the ordinance unconstitutional.
Weinberg, a 40-year-old lifelong hockey fan, claims to be the only man the city has tried to stop from selling printed matter in the street. His story invokes the spirit of the lonely pamphleteer against the government, or more precisely, one hockey fan against Blackhawks owner Bill Wirtz, whom Weinberg describes as one of the wealthiest and most powerful men in Chicago.
In January 2002, a federal district court found in favor of the city saying the peddling ordinance did not violate the First Amendment. Weinberg appealed, claiming the ordinance violated his free speech rights.
The appellate court agreed with several of Weinberg’s theories about why the city’s peddling ordinance is unconstitutional, including that it invoked invalid time, place and manner restrictions and is an unlawful prior restraint. The city has requested that all 15 judges of the Seventh Circuit rehear the case.
If the court upholds the decision, Chicago would have to alter its ordinance to accommodate the November ruling or appeal to the U.S. Supreme Court.
Weinberg began selling his opinion of Wirtz in the form of a magazine on the sidewalks of the arena where the Blackhawks played and later at the United Center. He did so until 1997 without police interference.
In December 2000, Weinberg diversified his wares and began selling “Career Misconduct: The Story of Bill Wirtz’s Greed, Corruption, and the Betrayal of Blackhawk Fans,” a 156-page book that he calls a “malicious satire” of Wirtz. Two months later, Chicago police told Weinberg he was violating the city’s peddling ordinance.
The ordinance, part of Chicago’s Municipal Code, restricts the selling of all goods within 1,000 feet of the arena without a license issued by the city with the exception of newspapers.
Weinberg calls the 1,000-foot barrier a “prohibition on all forms of freedom of expression.”
While Chicago allowed Weinberg to continue selling his book during litigation, the city enforced the ordinance as soon as the district court ruled for the city, said Weinberg’s attorney Martin Oberman.
“I have not found any ordinance in the country . . . that’s gone to court where a local government that has made any attempt to ban the selling of First Amendment material on a public sidewalk,” Oberman said. “There’s a long tradition in this country of peddling your point of view on the sidewalks for money. In that sense, it’s astounding that the City of Chicago would litigate.”
The city contended that the ordinance is meant to prevent traffic congestion and disturbance outside the arena. In response, appellate judge William Joseph Bauer wrote in the court opinion that the city provided “no objective evidence” of congestion on the sidewalks where and when Weinberg sells his book.
Bauer also said the peddling ordinance is inconsistent. While the ordinance bans peddling, it allows leafleting, newspaper sales, street performances and charitable solicitations.
According to the decision, the city claims these forms of First Amendment activity do not cause disruption but that book-selling may “create chaos.”
After noting that a public sidewalk is typically considered a public forum, the court held that the city did not appropriately demonstrate that its ordinance is a reasonable “time, place or manner” restriction.
“Using a speech restrictive blanket with little or no factual justification flies in the face of preserving one of our most cherished rights,” Bauer wrote.
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.
The court agreed with the lower court in finding that the city has overly 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.
“The City’s one-size-fits-all approach to restricting peddling cannot be reconciled with our First Amendment rights,” Bauer wrote.
The appeals court disagreed, however, with the district court’s finding that Weinberg was only “incidentally” harmed by the licensing procedure.
“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.
He also said he continues to be a die-hard Blackhawks fan “despite all the conflicts with management.”
Weinberg said he receives a lot of support from his fellow fans. In fact, he said that on his first night back at the United Center, a police lieutenant came up to him, slapped him on the back and said: “Man, I was hoping you’d win that lawsuit.” (Weinberg v. Chicago)