The opinion of the court was delivered by: Marovitz, Senior District Judge.
Motion for Summary Judgment
Plaintiffs Citizens For A Better Environment (CBE) and Illinois
Public Action Council (PA) commenced this action under 42 U.S.C. § 1983
against 24 Chicago-area municipalities, alleging that
each municipality's ordinance regulating door-to-door
solicitation abridges plaintiffs' First Amendment rights.
Specifically, plaintiffs allege that the ordinances, which all
require prior municipal approval of door-to-door solicitation,
are constitutionally deficient in two respects: (1) because they
do not establish a specific time period in which applications to
solicit must be acted upon; and (2) because they restrict any
weekday door-to-door solicitation to certain daytime hours.
Plaintiffs seek declaratory and injunctive relief. The
jurisdiction of the Court is invoked pursuant to
28 U.S.C. § 1343(3).
The defendants named in plaintiffs' complaint are Village of
Olympia Fields, Village of Bensenville, Village of Bloomingdale,
City of Blue Island, Calumet City, Cicero, Country Club Hills,
Village of Deerfield, Village of Evergreen Park, Village of
Glencoe, Village of Hanover Park, Hickory Hills, Highland Park,
Village of Matteson, Village of New Lennox, North Chicago, Oak
Forest, Village of Oak Lawn, Village of Palatine, Village of
Riverside, Village of Romeoville, Village of Schiller Park,
Village of Steger Park, and Wheaton. Since the filing of this
action, Village of Olympia Fields, City of Blue Island, Calumet
City, Cicero, Village of Glencoe, Hickory Hills, Village of New
Lennox, Village of Romeoville, Village of Schiller Park, and
Village of Steger have voluntarily amended their ordinances to
cure the alleged constitutional defects therein. Plaintiffs have
voluntarily dismissed those municipalities.
The ordinances of the remaining defendants restrict
door-to-door soliciting to certain weekday daytime hours in one
of two ways. Some of the defendants restrict soliciting
year-round to the hours of 9:00 a.m. to some hour between 4:00
p.m. to 6:00 p.m., inclusive, while the other defendants permit
soliciting from 9:00 a.m. until "sunset."*fn1
CBE and PA are both Illinois non-profit organizations. CBE is
organized for the purpose of promoting environmental protection.
Its two primary functions are research and canvassing. CBE's
canvassing activities include door-to-door interviewing and
solicitation of funds. It alleges that the overwhelming majority
of its income is received from door-to-door solicitations. PA is
primarily concerned with energy, utility, and tax reform issues.
It also alleges that the majority of its income comes from
contributions made as a result of door-to-door solicitations.
Plaintiffs wish to conduct their door-to-door solicitation
campaigns in defendants' jurisdictions up until 9:00 p.m. on
weekdays throughout the year. They offer affidavits and survey
and statistical evidence in support of the proposition that more
persons are home from 6:00 p.m. to 9:00 p.m. on weekdays than any
significant block of time between 9:00 a.m. and 6:00 p.m.
Therefore, plaintiffs argue, their campaigns can be more
effectively conducted during those evening hours. Plaintiffs
allege that defendants have or are threatening to enforce their
ordinances against plaintiffs' members.
Pending before the Court is plaintiffs' motion for summary
judgment.*fn2 Fed.R.Civ.P. 56. Because the Court finds that the
contested issues material to plaintiffs' claims are only of a
legal nature, plaintiffs' claims are ripe for summary judgment.
Fed.R.Civ.P. 56(c). For the reasons set forth below, the Court
grants plaintiffs' motion.*fn3
Defendants can not dispute that plaintiffs' door-to-door
activities implicate the First Amendment freedoms of both
plaintiffs and defendants' residents. E.g., Village of
Schaumberg v. Citizens For A Better Environment, 444 U.S. 620,
633, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980); Virginia State
Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 756, 96 S.Ct. 1817, 1822, 48 L.Ed.2d 346 (1976);
Martin v. Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87
L.Ed. 1313 (1943).*fn4
Consequently, and contrary to generally applicable principles of
statutory construction, the ordinances complained of are
presumptively unconstitutional. Organization For A Better Austin
v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1
(1971); Citizens For A Better Environment v. Village of
Schaumburg, 590 F.2d 220, 224 (7th Cir. 1978), aff'd,
444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73. Defendants' ordinances may
withstand plaintiffs' constitutional challenge only if defendants
establish that the ordinances relate with narrow specificity to
one or several legitimate government interests and do not unduly
intrude upon the rights of free speech. Hynes v. Mayor of
Oradell, 425 U.S. 610, 616, 620, 96 S.Ct. 1755, 1758, 1760, 48
L.Ed.2d 243 (1976).
The Court turns first to plaintiffs' challenge to the time
restrictions on door-to-door solicitation found in defendants'
ordinances. Defendants assert the two interests which these
restrictions are designed to serve are those of crime prevention
and public annoyance. These interests are certainly of legitimate
government concern, id. at 616-17, 96 S.Ct. at 1758-59, and may
be furthered by reasonable regulation of door-to-door
solicitation. Citizens For A Better Environment v. City of Park
Ridge, 567 F.2d 689, 692 (7th Cir. 1975). Defendants contend that
the interest of crime prevention is furthered by the time
restrictions on door-to-door solicitation in that darkness
facilitates criminal activity and the annoyance interest
purportedly because most persons do not wish to be disturbed in
their homes during the evening hours. Further, defendants urge
the Court to consider as persuasive support for their position
the availability of alternate modes of communication, e.g., the
mails, and Saturday hours with respect to those defendants who
allow Saturday solicitation.
Defendants' arguments, however, are insufficient to support a
finding that their present weekday time restrictions are so
narrowly tailored to the asserted government interests as to be
constitutionally permissible. First, the Court notes that the
availability of Saturday hours and alternate modes of
communication is not particularly pertinent to plaintiffs'
attack upon defendants' time restrictions. Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239,
1245, 43 L.Ed.2d 448 (1975); Citizens For A Better Environment
v. Village of Schaumburg, 590 F.2d at 224.
With respect to defendants' interest in crime prevention, it is
incumbent upon them to by some means show that actual experience
establishes that their time restrictions prevent crime. Hynes v.
Mayor of Oradell, 425 U.S. at 617, 96 S.Ct. at 1759. This
defendants have not done. Presumably, statistics would indicate
that some crimes are more frequently perpetuated under the cloak
of darkness. However, defendants have not shown, and the Court
doubts, that many of those types of crimes most commonly
associated with door-to-door solicitation, e.g., consumer
fraud, are more commonly committed after sunset.
In any event, defendants time restrictions unduly impinge upon
First Amendment rights. To the extent defendants wish to prevent
the commission of those categories of crimes more frequently
committed at night by persons posing as door-to-door solicitors,
defendants can employ an array of legislative weapons which are
much less intrusive of plaintiffs' and their residents' First
Amendment rights than a blanket ban on solicitation after sunset
or some earlier hour. For example, defendants could enact
appropriate registration and identification procedures. See Hynes
v. Mayor of Oradell, 425 U.S. at 618, 96 S.Ct. at 1759; Martin v.
Struthers, 319 U.S. at 147, 63 S.Ct. at 865; but see Mayor of
Oradell, 425 U.S. at 610, 96 S.Ct. at 1756 (Brennan, J.,
concurring). Perhaps the best answer to defendants' concern about
crime, however, is simply that in view of the collision between
First Amendment rights and a time restriction on solicitation
they should look primarily to stringent enforcement of their
substantive criminal statutes to assuage that concern. See
Village of Schaumburg v. Citizens For A Better Environment, 100
S.Ct. at 837.
Defendants' public annoyance justification for their
ordinances' time restrictions demands little discussion. To
support the restrictions on this ground is to derogate the First
Amendment rights of plaintiffs and those of defendants' residents
who would be willing recipients of plaintiffs' message during the
evening hours to the nuisance concerns of those of their
residents who would not be willing listeners during those hours,
when the wishes of both groups can be easily accommodated.
Ordinances which make a solicitor liable for trespass for
ignoring a resident's no solicitation directive have long been
viewed as immune from constitutional challenge. Martin v.
Struthers, 319 U.S. at 148, 63 S.Ct. at 865; Hall v.
Commonwealth, 188 Va. 72, 49 S.E.2d 369 (1948), appeal dismissed
sub nom., 335 U.S. 875, 69 S.Ct. 240, 93 L.Ed. 418. Thus, a
resident wishing to avoid being called upon by door-to-door
solicitors may do so simply by posting a "no solicitation" or "no
trespassing" sign. Village of Schaumburg v. Citizens For A Better
Environment, 100 S.Ct. at 836-37.*fn5
The Court's research has unearthed but three cases that appear
to have squarely faced the question of the constitutional
validity of time restrictions on door-to-door solicitation.
Connecticut Citizens Action Group v. Town of Southington,
508 F. Supp. 43 (D.Conn., 1980); Westfall v. Board of Commissioners of
Clayton County, 477 F. Supp. 862 (N.D.Ga. 1979); McMurdie v.
Doutt, 468 F. Supp. 766 (N.D.Ohio 1979); see also Citizens For A
Better Environment v. Village of Elm Grove, 462 F. Supp. 820 (E.D.
Wis. 1978) (granting preliminary injunctive relief to exempt
plaintiffs from a solicitation ordinance for two consecutive days
from 9:00 a.m. to 9:00 p.m.). Southington found an ordinance
restricting door-to-door solicitation from 8:00 a.m. to 6:00 p.m.
to be unreasonably burdensome upon the plaintiffs' free speech
rights for reasons virtually identical to those voiced by the
Court today, while Westfall and McMurdie sustained the validity
of similar restrictions. The McMurdie opinion, however, is devoid
of any analysis on the time restriction question and Westfall's
limited analysis on the question does not, in this Court's
opinion, comport with the applicable principles of constitutional
free speech. The Westfall court's holding relied in part upon the
availability of both Saturday hours for door-to-door solicitation
and public places in which
the plaintiffs therein could deliver their message. As stated,
the availability of alternate modes of communication is not
pertinent to the constitutional validity of a particular
restriction on free speech. Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. at 556, 95 S.Ct. at 1245; Citizens For A
Better Environment v. Village of Schaumburg, 590 F.2d at 224. In
addition, this Court finds the Westfall court's reasoning
unpersuasive in that it ...