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Case: 1:15-cv-03115 Document #: 6 Filed: 04/09/15 Page 1 of 18 PageID #:22

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEFT FIELD MEDIA, LLC,
Plaintiff,
v.
CITY OF CHICAGO, Chicago Police
Commander Elias Voulgaris,
Defendants.

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No. 15 C 3115
Judge Alonso
Magistrate Judge Mason

PLAINTIFFS MEMORANDUM IN SUPPORT OF ITS MOTION


FOR EMERGENCY INJUNCTIVE RELIEF
Left Field Media LLC (Left Field), by its undersigned attorneys, pursuant to Fed. R.
Civ. Pro. 65 and in support of its Motion for Emergency Relief, states as follows:
I.

BACKGROUND
A.

The Magazine

Plaintiff Left Field Media publishes a magazine called Chicago Baseball four times per
year during the major league baseball season. Declaration of Matthew Smerge at 2 attached
hereto at Exhibit 1. (hereinafter Smerge Decl. at ) For 19 years, Chicago Baseball has served
as an alternative to the official Chicago Cubs program. Id. at 3. It is a full-color magazine that
contains news, analysis, and criticism about the Chicago Cubs and the teams players and
management. A typical issue of Chicago Baseball is between 24 and 36 pages long. Plaintiff
sells issues of Chicago Baseball for $2.00. Id. at 3. Matthew Smerge is the owner of Left Field
Media LLC and is the editor and publisher of Chicago Baseball. Id. at 2. He has been involved
with publication of the magazine since its inception in 1996. Smerge personally writes much of
the content in the magazine. Id.

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For the past 19 years, the sole method of selling and distributing Chicago Baseball has
been for Smerge and other vendors whom the magazine hires to stand on the public sidewalks
adjacent to Wrigley Field before and during Cubs home games and to offer copies for sale to
people as they approach the stadium. Id. at 4. Plaintiff sells approximately 1,000 copies of the
magazine per game. Id. at 5. Plaintiff typically employs four to eight vendors to sell the
magazine on the public sidewalks before and during home games. Id. Smerge himself sells the
magazine during most night and weekend games. He typically stands on the public sidewalk near
the intersection of Clark and Addison Streets. Id. Other Chicago Baseball vendors stand on the
public sidewalks surrounding the stadium. Typically, one vendor stands near the intersection of
Sheffield and Waveland; one stands on the public sidewalk on Waveland Avenue; and one stands
on the public sidewalk on Clark Street. Id. at 6.
All Chicago Baseball vendors remain on the public city sidewalks surrounding and
directly adjacent to Wrigley Field. Chicago Baseball vendors do not obstruct or interfere with the
flow of pedestrian traffic into, out of, and around the baseball stadium. No Chicago Baseball
vendor has ever been ticketed or cited for obstructing the public way. Id. at 7.
B.

The Citys Interference With Sales of the Magazine

In 1996, the first year that the magazine was published, Chicago police arrested all of the
Chicago Baseball vendors and charged them with violation of a City of Chicago ordinance that
prohibits peddling without a license. When the vendors appeared for hearings on these tickets,
the City, through its corporation counsel, dismissed the charges. Id. at 8. After that incident,
Chicago Baseball vendors sold copies of the magazine on the City sidewalks outside the stadium
during every home game without any interference by Chicago police until 2013. Id. at 9.

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On opening day of the Cubs season on April 8, 2013, Defendant Commander Voulgaris
approached Smerge while he was selling the magazine on the sidewalk near the corner of Clark
and Addison. Voulgaris told Smerge that he had to go across the street if he wanted to sell the
magazine. Voulgaris told Smerge that he would be arrested if he did not leave and that the police
would issue citations to all Chicago Baseball vendors. Smerge did not want to be arrested or
ticketed, so he went across the street to the southwest corner of Clark and Addison. Id. at 10.
The next day, on April 9, 2013, Jay Roper, who was the publisher of Chicago Baseball at
that time, wrote a letter to Commander Voulgaris. See copy of April 9, 2013 letter from Jay
Roper to Commander Elias Voulgaris, attached hereto as Exhibit 2. In this letter, Roper stated
that he believed Voulgaris order to cease selling the magazine on the public sidewalk near the
stadium was a violation of the First Amendment. Id. Smerge and the other Chicago Baseball
vendors resumed selling the magazine on the sidewalks adjacent to the stadium without incident
or interference for the rest of the 2013 baseball season. Smerge Decl. at 12.
On opening day of the Cubs season in April 2014, Smerge was selling the magazine on
the public sidewalk adjacent to Wrigley Field near the corner of Clark and Addison. Voulgaris
approached Smerge and told him that he and all of the other Chicago Baseball vendors could not
be on the sidewalks surrounding the stadium and could only sell the magazine on the other side
of the street. Smerge explained that he has a right to be there. Voulgaris told Smerge that he
would allow Smerge to stand in the street off the curb to sell the magazine. Id. at 13.
During all of the Cubs home games for the next two months, Smerge and other Chicago
Baseball vendors sold the magazine while standing in the streets. None of them was ticketed for
doing so. Id. at 14. On Sunday, June 22, 2014, Voulgaris approached Chicago Baseball vendor
Michael Montegano while he was selling the magazine on the sidewalk near Sheffield and

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Addison. Voulgaris told Montegano that he would have to move across the street. Montegano
asked whether it was necessary to move immediately, and Voulgaris said no. Montegano
continued selling the magazine on the sidewalk that day and informed Smerge of the
conversation. Id. at 15
The next day, Smerge sent an email to Voulgaris expressing concern about this
conversation and again asserted that he and other vendors have a First Amendment right to sell
the magazine on the sidewalk. Smerge received no response. See copy of June 23, 2014 e-mail
from Matt Smerge to Commander Elias Voulgaris, attached hereto as Exhibit 3.
Two days later, during the Cubs home game on June 25, 2014, Voulgaris came up to
Montegano, who was again selling the magazine on the sidewalk near the corner of Sheffield and
Addison, and said that it was OK to sell the magazine on the sidewalk. Smerge Decl. at 17.
After that, Smerge and the other Chicago Baseball vendors moved back onto the sidewalk and
stopped standing in the street. For the remainder of the 2014 season, all of Chicago Baseballs
vendors sold the magazine on the sidewalks surrounding Wrigley Field without interference. Id.
at 18.
On April 5, 2015, opening day of the Cubs 2015 season, Smerge and a group of Chicago
Baseball vendors went out to sell the magazine on the public sidewalks around Wrigley Field
around 3:30 p.m.. At about 4:00 p.m. Voulgaris approached vendor Steven Cline at the corner of
Addison and Sheffield and told him he could not sell the magazine on the sidewalks around
Wrigley Field. Immediately thereafter, Voulgaris approached vendor Michael Montegano on
public sidewalk on Addison between Clark and Sheffield and told him that all Chicago Baseball
vendors would have to sell the magazine across the street. Voulgaris then approached vendor
Brian Fuller, who was selling the magazine on the public sidewalk near Clark and Addison.

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Voulgaris told Fuller that he had to go across the street to sell the magazine. Id. at 20. Voulgaris
then approached Smerge and told him that he was absolutely prohibited from selling the
magazine on the public sidewalks adjacent to Wrigley Field for the entire 2015 baseball season.
Id. at 20.
Smerge asked Voulgaris to explain why the policy had changed from previous years.
Voulgaris told Smerge that the sidewalks around Wrigley Field are a no peddling zone and that
selling a magazine is not protected speech. Voulgaris told Smerge that if he didnt leave right
away, he would be issued a ticket. Voulgaris walked away. Id. at 21.
Smerge remained on the sidewalk and continued selling the magazine to approaching
fans for about half an hour. Id. at 22. Voulgaris then came up to Smerge again and wrote him a
ticket for violation of Chicago Municipal Code 4-244-140. See copy of ticket, attached hereto as
Exhibit 4. Section 4-244-140 is an ordinance that sets forth in relevant part that peddling is not
permitted on the sidewalks immediately adjacent to Wrigley Field. In the narrative section of the
ticket, Voulgaris indicated that he observed [Smerge] selling Chicago Baseball magazine in a
no peddling zone without a peddlers license. Id. Voulgaris told Smerge that if he attempts to
sell or distribute Chicago Baseball on the sidewalks around Wrigley Field again, he would be
arrested. Smerge Decl. at 23.
C.

Ongoing Harm to Plaintiff As A Result of Defendants Interference

Due to Voulgaris statements, along with the issuance of this ticket to Smerge and the
threat of arrest, Smerge and other Chicago Baseball vendors employed by Plaintiff are afraid to
exercise their First Amendment right to sell the magazine on the public sidewalks adjacent to
Wrigley Field and been chilled from doing so. As a result of vendors being banned from selling
the magazine on the public sidewalks adjacent to Wrigley Field, Plaintiff has suffered lost sales

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and lost income and will continue to suffer lost sales and income during each game at which it
cannot sell Chicago Baseball on the public sidewalks around Wrigley Field. Id. at 25.
Specifically, due to Voulgaris interference, Smerge believes that if he exercises his First
Amendment right to sell Chicago Baseball magazine on the public sidewalks adjacent to
Wrigley Field at the upcoming Cubs home games on Monday, April 13, Tuesday, April 14,
Wednesday, April 15, Friday, April 17, and Saturday, April 18, he will be at risk of being
arrested. Id. at 26.
There are many advantages to selling the magazine on the sidewalks adjacent to Wrigley
Field as opposed to across the street from the stadium. Chicago Baseballs target audience is
people who are attending the Cubs home games. Smerge and other vendors are best able to
reach their target audience by standing on the sidewalks adjacent to Wrigley Field and talking
with fans as they approach the game. In Smerges experience, sales are much lower across the
street, where he does not know if the people he is talking to are going to the game or merely
walking through the area. Id. at 27. Moreover, if barred from standing on the sidewalks adjacent
to Wrigley Field, Plaintiff will have to hire additional vendors to cover all of the various corners
from which fans may be approaching the stadium. On the sidewalks adjacent to the stadium,
Plaintiffs vendors are able to talk to all of the fans coming towards the gates using fewer
vendors. Id. at 28-29.
D.

Left Field Seeks to Sell Its Magazine In The Same Manner It Always Has

For 19 baseball seasons, Left Fields vendors have sold Chicago Baseball on the
sidewalks adjacent to Wrigley Field before Cubs games without any problems. Plaintiff seeks a
temporary restraining order to maintain the status quo while litigating the constitutionality of the
restrictions the Defendants now seek to place on Plaintiff as set forth in the complaint.

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II.

NOTICE TO ALL PARTIES.


Plaintiffs Motion for a Temporary Restraining Order and this memorandum are being

personally served on Defendant City of Chicago via hand delivery to the office of the City Clerk,
121 N. LaSalle St., Room 107, Chicago, IL 60602, along with a copy of Plaintiffs Complaint
and Summons by undersigned counsel on April 9, 2015. The Complaint, Summons, Motion for a
Temporary Restraining Order and this memorandum are being served on Defendant Commander
Elias Voulgaris via hand delivery to the Chicago Police Department, 3510 S. Michigan Avenue,
by undersigned counsel on April 9, 2015.
III.

ARGUMENT
A.

Standard for Issuing A Temporary Restraining Order Has Been Met Here.

It is well established that to be entitled to a temporary restraining order a plaintiff must


demonstrate: (1) some likelihood of succeeding on the merits, and (2) that he has no adequate
remedy at law and will suffer irreparable harm if relief is denied. Abbott Laboratories v. Mead
Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). If these two elements are established, the Court
should consider: (3) the irreparable harm the non-moving party will suffer if preliminary relief
is granted, balancing that harm against the irreparable harm to the moving party if relief is
denied; and (4) the public interest, meaning the consequences of granting or denying the
injunction to non-parties. Id. In deciding this motion, the court [is] sitting as would a
chancellor in equity, should weigh all four factors, and seek[] at all times to minimize the costs
of being mistaken. Id. As the Court held in Curtis v. Thompson, 840 F.2d 1291 (7th Cir. 1988):
This circuit employs a sliding scale approach in deciding whether to grant or
deny preliminary relief; so that even though a plaintiff has less than a 50 percent
chance of prevailing on the merits, he may nonetheless be entitled to the
injunction if he can demonstrate that the balance of harms would weigh heavily
against him if the relief were not granted.

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For the following reasons, Plaintiff requests that a TRO be granted in this case as set
forth in the Proposed Order attached hereto (forthcoming via e-mail, per the courts request).
B.

Plaintiff Has a Likelihood of Success on the Merits.

1.

Plaintiffs First Amendment Rights Have Been Violated.


a.

It Violates Plaintiffs First Amendment Rights for the City to Require


Plaintiff (or Its Agents) to Obtain a Peddlers License In Order to
Engage in Protected First Amendment Activity On the Public Way.

The Supreme Courts decision in 2002 in Watchtower Bible and Tract Society of New
York v. Village of Stratton, 536 U.S. 150 (2002) covers the very matters at issue in this case and
provides strong precedent for finding the Citys application of its anti-peddling laws to magazine
sellers like Plaintiff unconstitutional. In Watchtower, the Court held that a municipal ordinance
enacted by the City of Stratton, Ohio, setting forth a licensing requirement for canvassers,
solicitors, peddlers, hawkers, itinerant merchants, or transient vendors of merchandise violated
plaintiffs First Amendment rights. Id. at fn. 1 at 154. The particular ordinance at issue in
Watchtower was challenged by Jehovahs Witnesses, who as a religious practice go from door to
door to distribute books and periodicals.
The Court was particularly troubled by the Citys attempt to force a distributor of books
and periodicals to publicly register with city officials:
The mere fact that the ordinance covers so much speech raises constitutional
concerns. It is offensive-not only to the values protected by the First Amendment,
but to the very notion of a free society-that in the context of everyday public
discourse a citizen must first inform the government of her desire to speak to her
neighbors and then obtain a permit to do so. Even if the issuance of permits by the
mayors office is a ministerial task that is performed promptly and at no cost to
the applicant, a law requiring a permit to engage in such speech constitutes a
dramatic departure from our national heritage and constitutional tradition.
Id. at 165-166.
Significantly, Watchtower upheld the right of expression as it affected private property,

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i.e., individual residences. Where, as here, a city seeks to regulate speech activities on a public
forum, it faces a much higher burden. See, for instance, Perry Educ. Assn v. Perry Local
Educators Assn, 460 U.S. 37 (1983), where the Court wrote as follows:
In places which by long tradition or by government fiat have been devoted to
assembly and debate, the rights of the State to limit expressive activity are sharply
circumscribed. At one end of the spectrum are streets and parks which have
immemorially been held in trust for the use of the public and, time out of mind,
have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.
Id. at 45 (quoting Hague v. CIO, 307 U. S. 496, 515 (1939)).
Given that in Watchtower the Supreme Court struck an anti-peddling licensing scheme
regulating First Amendment activity on private property, Plaintiff suggests that the City of
Chicago faces a much a much greater, indeed insurmountable, burden in regulating First
Amendment activity on the public way through a similar licensing scheme. See Grossbaum v.
Indianapolis-Marion Bldg. Auth., 100 F.3d 1287, 1297 (7th Cir. 1996) (Given their greater
importance to the free flow of ideas, public fora receive greater constitutional protection from
speech restrictions.)
In addition to holding that Strattons licensing scheme was unconstitutional, the
concurring opinion in Watchtower (by Justices Breyer, Souter, and Ginsburg) stressed that a
municipality needs to clearly spell out the underlying reason for a speech-restricting ordinance,
and this requires more from a city than mere anecdote and supposition. Watchtower at 171.
That is, a municipality must do more than concoct some rationalization about what might happen
if speech is not curtailed; it must demonstrate a real harm to be prevented and must show that the
ordinance prevents that harm. In the case at bar, the City will almost certainly allege that the
ordinance at issue protects the smooth flow of traffic flow on the walkways around Wrigley
Field, but, as discussed more fully below on the section on reasonable-time-place-manner

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restrictions, the evidence here shows that the Plaintiff has sold its magazine for 19 years on the
public sidewalks adjacent to Wrigley Filed without incident or disruption to pedestrian traffic.
See Smerge Affidavit attached hereto at Exhibt 2. The best predictor of the future is (oftentimes)
the past, and here the absence of incident over 19 years is a strong indicator of the unlikelihood
of future disruption.
Moreover, the law is clear that the right to distribute printed materials is not diminished
simply because a publication is sold rather than given away. Heffron v. International Society for
Krishna Consciousness, 452 U.S. 640, 647 (1981); New York Times Co. v. Sullivan, 376 U.S.
254, 265-66 (1964); Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943) (It should be
remembered that the pamphlets of Thomas Paine were not distributed free of charge.)
Indeed, the Citys Municipal Code allows newspapers freely to be hawked in the same
area being prohibited to Plaintiffs magazine. See Chicago Municipal Code 10-8-520. This is
illogical. There is simply no basis to believe that the sale of a newspaper ($1.00 for the Chicago
Sun-Times $1.75 on Sundays) results in any less potential interference with pedestrians than
Plaintiffs selling Chicago Baseball for $2.00.
b.

The Citys Restrictions On The Sale of Chicago Baseball Are Not A


Reasonable Time, Place, Manner Restriction.

Even if this court decides that the City can impose a licensing scheme upon the sale of
Plaintiffs magazine on a public forum, the Citys restrictions here are not a reasonable time,
place, and manner restriction. A governmental body may impose reasonable restrictions on the
time, place, or manner of protected speech provided the restrictions are justified without
reference to the content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample alternative channels for
communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791 (quoting

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Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, (1984)).
This Ordinance fails the time-place-manner restriction in at least two ways. First, it is
content-based; and second, it does not serve a significant governmental interest. The Ordinances
content-based deficiency is addressed in full in section (c) below. In the analysis immediately
below, Plaintiff seeks to show that the Ordinance does not serve a significant governmental
interest.
1.

The Government Bears the Burden of Establishing That A


Problem Exists.

In order to satisfy the reasonable time-place-manner test, an ordinance must serve a


significant government interest. This prong really has two distinct elements(1) the government
must articulate a legitimate interest and (2) the government has the burden of producing
objective evidence showing that the restrictions served the interests asserted. Watchtower Society
v. Village of Stratton, 536 U.S. 150, 171(2002) (a municipality needs to clearly spell out the
underlying reason for a speech-restricting ordinance, and this requires more than mere anecdote
and supposition.) (Breyer, concurring); Horina v. Granite City, 538 F.3d 624, 633-34 (7th Cir.
2008) (affirming district courts invalidation of anti-handbill ordinance and stating that Granite
City had proffered no evidence showing that the ordinance was justified); Weinberg v. City of
Chicago, 310 F.3d 1029,1038 (7th Cir. 2002) ([T]he City cannot blindly invoke safety and
congestion concerns without more.) Moreover, the government has to show why the particular
individuals subject to the ordinance posed any greater burden on the police, or threat of crime,
than the numerous other visiting strangers that the ordinance did not purport to cover. Watseka
v. Illinois Public Action Council, 796 F.2d 1547, 1556 (7th Cir. 1986). Here, any claim by the
City that Chicago Baseball poses an interference with pedestrian traffic, without evidence, are an
insufficient basis for denying Plaintiffs First Amendment rights.

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2.

The Evidence Here Shows That Magazine Sales Do Not Create


A Problem.

In fact, the evidence in this case shows that Plaintiffs sale of Chicago Baseball does not
pose any problems. Plaintiff has sold this magazine for 19 years in the exact manner and location
that the City now seeks to prohibit. There has not been a single documented incident of magazine
sales causing a problem on the public sidewalks adjacent to Wrigley Field. Pedestrians were and
are free to walk pass or ignore Plaintiffs vendors. The City cannot rely on a speculative risk of
interference with pedestrian traffic to support a prohibition of First Amendment activities.
3.

The Existence of Newspapers Vendors On The Public


Walkways Around Wrigley Field Throws Serious Doubt On
The Governmental Interest In Banning Magazine Vendors.

Even ignoring the lack of evidence that Plaintiff causes any problems by selling Chicago
Baseball on the public ways adjacent to Wrigley Field, the Citys need to ban such sales is made
highly dubious by the fact that the Citys peddling Ordinance specifically exempts people who
sell newspapers from the Acts restrictions. . Section 10-8-520 of the Chicago Municipal Code
exempts newspapers from the anti-peddling ordinances.1.
Given the Citys newspaper exemption, the case at hand is analogous to City of
Cincinnati v. Discovery Network, Inc. 507 U.S. 410 (1993). There, the Court held that a city
ordinance banning newsracks filled with commercial speech but allowing newsracks filled with
non-commercial speech was invalid because all newsracks, regardless of whether they contain
commercial or non-commercial publications, were equally susceptible to causing clutter or
litterthe supposed ills at which the restriction was aimed. As the Court wrote, the distinction
Cincinnati has drawn has absolutely no bearing on the interests it has asserted. Id. at 428.

1

Section 10-8-520 of the Municipal Code reads as follows: No person, other than a licensed
peddler, as by the provisions of Chapter 4-244 of this Code, shall sell, offer or expose for sale, or solicit
any person to purchase any article or service whatsoever, except newspapers, on any public way.

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Here, too, the fact that newspaper vendors are not subject to the peddling restrictions
undercuts the Citys claim that Plaintiffs activities must be restricted. No principled distinction
can be made between the speech activities of newspaper vendors and magazine vendors. A
newspaper vendor and a magazine vendor are doing the same exact thingdistributing and
selling written material on the public street by appealing to pedestrians. Both vendors take
payment and give change to complete a transaction. As in Discovery Network, if the City were
really concerned about traffic flow caused by the activities of vendors, they would limit the
overall number vendors, but under current law an unlimited number of newspaper are allowed to
work freely on the public walkways. In short, the exemption for newspaper vendors makes the
reasonableness of the Citys restrictions here highly suspect.
c.

The Citys Licensing Scheme Violates the First Amendment Because


It Amounts to Content-Based Discrimination, Privileging the Sale of
Newspapers Over All Other Types of Printed Matter, Including
Plaintiffs Magazine.

As explained above, under the peddling ordinances at issue here, the City treats
magazines and newspapers differently for First Amendment purposes. Section 10-8-520 of the
Chicago Municipal Code exempts newspapers from the anti-peddling ordinances. This amounts
to a facially invalid distinction. A book, no less than a newspaper, magazine, pamphlet or
newsletter, comes under the category of First Amendment protected speech. The Supreme Court
has consistently held that differential treatment...[for]...the press...is presumptively
unconstitutional. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S.
575, 585 (1983). Sixty-seven years ago, in striking down an ordinance banning the distribution
of circulars, handbooks, advertising, or literature of any kind as facially unconstitutional, the
U.S. Supreme Court noted in Lovell v. Griffin, 303 U.S. 444 (1938) that the liberty of the press
is not confined to newspapers, but that it necessarily embraces all written formats. Id. at 452.

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In that case, Chief Justice Hughes stated that the press in its historic connotation comprehends
every sort of publication which affords a vehicle of information and opinion. Id. This broad
construction was further developed in Branzburg v. Hayes, 408 U.S. 665 (1972), where Justice
White noted that
Liberty of the press is the right of the lonely pamphleteer who uses carbon paper
or a mimeograph just as much as of the large metropolitan publisher who utilizes
the latest photocomposition methods. Freedom of the press is a fundamental
personal right which is not confined to newspapers and periodicals.
Branzburg, 408 U.S. at 703-705 (internal citation omitted), n17.
There is no mystery as to why books, newspapers, pamphlets, magazines, and newsletters
are all regarded as fully protected speech. Underlying the First Amendment is the concept that in
order to best exercise the choices afforded by a democracy, the public must have access to the
widest array of information. As the Supreme Court put it in Associated Press v. U.S., 326 U.S. 1
(1945), [The First] Amendment rests on the assumption that the widest possible dissemination
of information from diverse and antagonistic sources is essential to the welfare of the public. Id.
at 20. A magazine no less than a newspaper brings news and opinion to the citizenry and
encourages robust public debate and dialogue.
By restricting the sale of magazines as opposed to a newspaper, the City necessarily and
unavoidably restricts the expression of certain types of ideas in violation of the First
Amendment. In Branzburg v. Hayes, 408 U.S. 665, the Court wrote: [B]y affording a privilege
to some organs of communication but not to others, courts would inevitably be discriminating on
the basis of content. Id. 705, n. 40. Likewise, in Riley v. National Federation Of The Blind Of
North Carolina, 487 U.S. 781 (1988), the Court made clear that regulating how a speaker may
speak directly affects that speech. Id. at 790, fn. 5. Here, by restricting the First Amendment
activities of magazines, the City precludes Plaintiff and others from saying things that can best

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be said in the form of a magazine, which, generally speaking, allows for longer articles and
different print quality and photographs than found in a typical newspaper.
Perversely, by giving special status to newspapers over magazines, this Ordinance judges
the extent of First Amendment protections by whether something has a cover on it or how many
pages it contains, meaning the same exact content wrapped differently results in different First
Amendment protections. This is an absurd basis for determining important constitutional rights
and trivializes the constitutional right of free speech. To get around the Citys distinction
between a book and a magazine, a publisher would only have to avoid putting his or her work in
magazine format use cheap newsprint, slap a headline on it, and voila!its protected
speech. As Judge Flaum has put it, the First Amendment is about more than taxonomy. Air
Line Pilots Association, International v. Department of Aviation of The City of Chicago, 45 F.3d
1144, 1162 (7th Cir. 1995) (concurring opinion).
C.

There is No Adequate Remedy at Law and Plaintiff Will Suffer Irreparable


Harm If the Requested Relief is Not Granted.

As the Supreme Court held in Elrod v. Burns, 427 U.S. 347, 373 (1976), [t]he loss of
First Amendment freedoms, even for minimal periods of time, unquestionably constitutes
irreparable injury. See also Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir.
2006) (The loss of First Amendment freedoms is presumed to constitute an irreparable injury
for which money damages are not adequate, and injunctions protecting First Amendment
freedoms are always in the public interest).
D.

The Balance of Harms Weighs Strongly in Favor of Granting Plaintiff the


Relief Requested.

Plaintiff is seeking nothing more than protection of its right to distribute literature on
public City sidewalks in the same manner it has done for the past 19 years without incident.

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There is no evidence whatsoever that the City will suffer harm by allowing Plaintiff to continue
to operate in the same manner in which it has previously been permitted to operate for 19 years.
On the contrary, as set forth above, because Defendant Voulgaris has told Plaintiffs
vendors that selling Chicago Baseball on the public walkways adjacent to Wrigley Field is
legally prohibited and could subject them to tickets and/or arrest, Plaintiff is chilled from
exercising its First Amendment rights and is suffering a real and ongoing deprivation of First
Amendment freedoms as well as lost income. In the absence of injunctive relief, these harms will
continue. Thus, the balance of harms weighs in Plaintiffs favor.
E.

The Public Interest Factors Also Favors Plaintiff.


As the Seventh Circuit has made clear, injunctions protecting First Amendment

freedoms are always in the public interest. Christian Legal Society v. Walker, 453 F.3d 853, 859
(7th Cir. 2006). The relief sought by Plaintiff does not unduly impinge on any legitimate state
interest. Plaintiff is seeking nothing more than the same access it has had for the past 19 years.
Thus, the public interest factors in this case clearly favor Plaintiff
C.

Plaintiff Has Given As Much Notice to the Defendants as Reasonably


Necessary.
A motion for temporary restraining order may be granted without notice of any kind to

the defendants. See Rule 65. The Rule requires, however, that counsel advise the Court of what
notice was attempted. Plaintiffs service of this motion and memorandum on the City and
Voulgaris is set forth above. Courts have found that as little as a half hours notice may be
sufficient. See, e.g. Am. Warehousing Services, Inc. v. Weitzman, 169 Ill. App. 3d 708, 715, 533
N.E. 2d 366, 370 (1st Dist. 1988). In this case, the Court should find that the notice provided
was sufficient under the circumstances and that Plaintiff has complied with the requirements of
Rule 65.

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Case: 1:15-cv-03115 Document #: 6 Filed: 04/09/15 Page 17 of 18 PageID #:38

D.

No Bond or Security Should be Required in Excess of $10


It is well established at common law that, in deciding whether to grant a TRO, the court

may dispense with security where there has been no proof of likelihood of harm to the party
enjoined. International Controls Corp. v. Vesco, 490 F.2d 1334, 1356 (2d Cir.1974). The
language in Fed.R.Civ.P. 65(C) is sufficiently flexible to permit a district court discretion in
setting the amount of the bond, including no bond at all when Constitutional rights are involved.
See Smith v. Bd. Of Election Commissioners, 591 F. Supp. 70 (1984) where Judge Aspen
balanced the hardship a bond would cause to a private citizen exercising his Constitutional rights
against the lack of irremediable hardship on the governmental defendants. (We decline,
however, to order plaintiffs to post this bond. To do so, we believe, would condition the exercise
of plaintiffs' Constitutional rights upon their financial status.). To require a small independent
publisher like Let Field Media to post a significant bond would render its Constitutional rights a
nullity.
IV.

CONCLUSION
WHEREFORE, Left Field Media requests that this Honorable Court grant a temporary

restraining order enjoining Defendants from interfering with Plaintiffs selling Chicago Baseball
on the public sidewalks adjacent to Wrigley Field as set forth in the attached proposed order and
grant such additional and further relief as the Court deems just and proper.

Respectfully submitted,
/s/ Mark G. Weinberg
/s/ Adele D. Nicholas
Counsel for Plaintiff

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Case: 1:15-cv-03115 Document #: 6 Filed: 04/09/15 Page 18 of 18 PageID #:39

Mark G. Weinberg
3612 N. Tripp Ave.
Chicago, Illinois 60641
(773) 283-3913
Adele D. Nicholas
4510 N. Paulina Street, 3E
Chicago, Illinois 60640
(847) 361-3869
Neil Ament
955 Shermer, Suite 400
Northbrook, IL 60063
(847) 404-6377

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