Chicago Baseball magazine lawsuit

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION LEFT FIELD MEDIA, LLC, ) ) Plaintiff, ) ) No. 15 C 3115 v. ) ) Judge Alonso CITY OF CHICAGO, Chicago Police ) Magistrate Judge Mason Commander Elias Voulgaris, ) ) Defendants. )

PLAINTIFF’S 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 team’s 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.

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

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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 City’s 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 Baseball’s

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 didn’t 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 Baseball’s 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 Smerge’s 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,

Plaintiff’s 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 Field’s 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.

Plaintiff’s 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 Plaintiff’s 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 court’s request).

B. Plaintiff Has a Likelihood of Success on the Merits.

1. Plaintiff’s First Amendment Rights Have Been Violated.

a. It Violates Plaintiff’s 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 Court’s 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 City’s 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 Jehovah’s Witnesses, who as a religious practice go from door to

door to distribute books and periodicals.

The Court was particularly troubled by the City’s 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 mayor’s 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. Ass’n v. Perry Local

Educators Ass’n, 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 Stratton’s 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 City’s Municipal Code allows newspapers freely to be hawked in the same

area being prohibited to Plaintiff’s 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

Plaintiff’s selling Chicago Baseball for $2.00.

b. The City’s 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

Plaintiff’s magazine on a public forum, the City’s 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 Ordinance’s

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 Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s 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 City’s need to ban such sales is made

highly dubious by the fact that the City’s peddling Ordinance specifically exempts people who

sell newspapers from the Act’s restrictions. . Section 10-8-520 of the Chicago Municipal Code

exempts newspapers from the anti-peddling ordinances.1.

Given the City’s 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

litter—the 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 City’s claim that Plaintiff’s 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 thing—distributing 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 City’s restrictions here highly suspect.

c. The City’s 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 Plaintiff’s 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 City’s 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!—it’s 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 Plaintiff’s

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 Plaintiff’s 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. Plaintiff’s service of this motion and memorandum on the City and

Voulgaris is set forth above. Courts have found that as little as a half hour’s 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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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 Plaintiff’s 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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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


Chicago Baseball magazine lawsuit

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