The opinion of the court was delivered by: Grady, District Judge.
Plaintiffs brought this action for declaratory and
injunctive relief challenging the constitutionality of two
Bellwood ordinances. Before the court is plaintiffs' motion
for summary judgment. The motion is granted.
The text of each ordinance is set forth in an appendix to
this opinion, and we will therefore provide only a brief
description here. Ordinance 77-23 is entitled "An Ordinance
Regulating Real Estate Solicitation In The Village of
Bellwood, Cook County, Illinois" and provides that before any
real estate agent "enters into any form of real estate
solicitation for listings in the Village of Bellwood," the
agent must obtain a permit from the Village government. An
application must be submitted to the Citizens Advisory Council
("the Council") which shall refuse to issue the permit "if in
the opinion of the Council, said solicitation shall be deemed
detrimental to the welfare of the community," in violation of
Bellwood's anti-panic peddling ordinance or in violation of
its Fair Housing Ordinance, "either in intent or effect."
Solicitations made in violation of the ordinance subject the
offender to a fine of not less than $50.00 nor more than
$500.00 for each violation.
Plaintiff Illinois Association of Realtors is a
not-for-profit corporation consisting of over 300 members who
are engaged in the real estate business in Bellwood. The
Association is dedicated, inter alia, to "recommend[ing] and
promot[ing] legislation which will safeguard and advance the
interest of property ownership" and to "provid[ing] a unified
medium for real estate owners and those engaged in the real
estate business whereby their interests may be safeguarded and
advanced." By-Laws, ¶¶ 4, 8, Complaint, ¶ 4. Plaintiffs Francis
M. Davies, John M. Davies and John M. Davies, III are engaged
in the realty business in Bellwood under the name Davies Realty
Shop. Plaintiff Ora Dee Williams is also a realtor in Bellwood
and operates Donora Realty. The employees of both realty
companies have submitted affidavits stating that they have "in
the past engaged in lawful solicitation for real estate
listings" and desire to continue "to engage in such
solicitation in the future." Davies Affid., ¶ 4; Williams
Affid., ¶ 4.*fn1
Plaintiffs have filed a two-count complaint for declaratory
and injunctive relief. In Count I, plaintiffs allege that
Ordinance 77-13 is facially invalid in that it imposes an
unconstitutional prior restraint on their efforts to solicit
business and is impermissibly overbroad and vague. In Count
II, plaintiffs claim that Ordinance 77-2 also is
unconstitutionally vague and denies equal protection.*fn2
The kind of speech in which plaintiffs wish to engage and
which Ordinance 77-13 regulates is entitled to First Amendment
protection. Linmark Associates, Inc. v. Willingboro,
431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977); Virginia Board of
Pharmacy v. Virginia Consumers Council, 425 U.S. 748, 96 S.Ct.
1817, 48 L.Ed.2d 346 (1976). Brokers play a key role in the
real estate market by linking buyers with sellers. Although
brokers do "no more than propose a commercial transaction,"
Pittsburgh Press Co. v. Human Relations Commission,
413 U.S. 376, 385, 93 S.Ct. 2553, 2558, 37 L.Ed.2d 669 (1973), their
efforts doubtlessly aid in "the proper allocation of resources"
through enhancing the "flow of commercial information."
Virginia Board of Pharmacy, 425 U.S. at 764, 96 S.Ct. at 1827.
In serving the important societal goal of allocative
efficiency, real estate solicitation merits some First
The conclusion that plaintiffs' commercial speech merits
some First Amendment protection does not answer the harder
question, namely, how much protection. The Supreme Court has
stated that for purposes of First Amendment analysis, "Certain
features of commercial speech differentiates it from other
varieties of speech in ways that suggest that `a different
degree of protection is necessary to insure that the flow of
truthful and legitimate commercial information is
unimpaired.'" Friedman v. Rogers, 440 U.S. 1, 10, 99 S.Ct. 887,
894, 59 L.Ed.2d 100 (1979). For this reason, the Court's
"decisions dealing with more traditional First Amendment
problems do not extend automatically to this as yet uncharted
area." Id. at 11 n. 9, 99 S.Ct. at 895 n. 9. Further, the
special characteristics of commercial speech may "allow [for]
modes of regulation that might be impermissible in the realm of
non-commercial expression." Ohralik v. Ohio State Bar
Association, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d
In particular, the Court has noted that the traditional
prohibition on prior restraints may not apply to regulation of
speech which merely proposes a transaction. Virginia Board of
Pharmacy, 425 U.S. at 772 n. 24, 96 S.Ct. at 1831 n. 24. The
Court has also held that the overbreadth doctrine, a tool for
judicial scrutiny of laws which implicate First Amendment
interests, might not be applicable to commercial speech cases.
Since two of plaintiffs' three arguments for invalidating
Ordinance 77-13 are that it imposes an unconstitutional prior
restraint and is impermissibly overbroad, we think it necessary
to explore the applicability of these two limiting doctrines
with respect to commercial speech cases in general and the
instant case in particular.
As a preliminary matter, we note that Ordinance 77-13
imposes a prior restraint on the flow of market information.
The elements of a prior restraint are (1) the person desiring
to engage in the communication must apply to a government
agent prior to engaging in the desired communication; (2) the
government agent is empowered to grant or deny the application
on the basis of the content of the proposed communication; (3)
approval of the application depends on the agent's affirmative
action; and (4) approval is not routinely granted but is the
result of the exercise of the agent's judgment.
Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 554, 95
S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1974); Cantwell v.
Connecticut, 310 U.S. 296, 305, 60 S.Ct. 900, 904, 84 L.Ed.
1213 (1940). Each of these elements is present in Ordinance
77-13. Before soliciting, a broker must apply to the Village
for a permit. The Village may grant or deny the application on
the basis of content. Approval of a broker's request depends
entirely on the Village's affirmative action. And finally,
approval is based on the Council's judgment as to whether the
proposed solicitation would be "detrimental to the welfare of
Having determined that Ordinance 77-13 imposes a prior
restraint, we now consider whether prior restraints are
permissible in this area and, if so, under what circumstances
they may be constitutionally imposed. In the more traditional
First Amendment areas, the Court has held that "[P]rior
restraints are not unconstitutional per se," but that there is
a "heavy presumption against [their] constitutional validity."
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95
S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975); Bantam Books v.
Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584
(1963); New York Times Co. v. U.S., 403 U.S. 713, 714, 91 S.Ct.
2140, 2141, 29 L.Ed.2d 822 (1971). In these cases, the Court
has required that statutes allowing for censorship "first must
fit within one of the narrowly defined exceptions to the
prohibition against prior restraints and, second, must have
been accomplished with procedural safeguards that reduce the
danger of suppressing constitutionally protected speech."
Southeastern Promotions, 420 U.S. at 559, 95 S.Ct. at 1247;
Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 738, 13
L.Ed.2d 649 (1965).
Whether some forms of commercial speech such as real estate
solicitation might be added to the few "narrowly defined
exceptions to the prohibition against prior restraints"
depends on the strength of the interests the government seeks
to protect. Thus, for example, it has been suggested that the
government may restrain the publication of certain information
during time of war. Near v. Minnesota, 283 U.S. 697, 716, 51
S.Ct. 625, 631, 75 L.Ed. 1357 (1931).
Similarly "the security of the community life may be protected
against incitements to acts of violence and the overthrow by
force of orderly government." Ibid. The publication of the
Pentagon Papers, on the other hand, did not implicate
sufficiently important interests to justify censorship. New
York Times Co. v. U.S., 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d
822 (1971). In stating that the prohibition against prior
restraints may not apply to commercial speech cases, the Court
cited a number of cases, all of which stand for the proposition
that prior restraints are available to prevent what has been
found to be false and misleading advertisements and trade
practices.*fn4 While it appears that the government has strong
enough interests to subject false and misleading commercial
information to prior restraints, the issue before us is a
different one: viz. whether the government may place prior
restraints on the communication of apparently truthful
commercial information which is otherwise deemed to be
harmful.*fn5 There is no quick answer to this question, and it
cannot be resolved by the papers before us. The strength of
Bellwood's interests in promulgating Ordinance 77-13 can be
determined only on the basis of more evidence than we presently
have. However, the strength of the government's interests in
suppression of speech is only one of two criteria for
determining the validity of prior restraints. Additionally,
"[A] system of prior restraint avoids constitutional infirmity
only if it is accomplished with procedural safeguards that
reduce the danger of censorship." Southeastern Promotions, 420
U.S. at 559, 95 S.Ct. at 1247; Freedman v. Maryland, 380 U.S.
at 58, 85 S.Ct. at 738; Bantam Books v. Sullivan, 372 U.S. at
70-71, 83 S.Ct. at 639-640. These procedural safeguards
First, the burden of instituting judicial
proceedings, and of proving that the material is
unprotected, must rest on the censor. Second, any
restraint prior to judicial review can be imposed
only for a specified brief period and only for
the purpose of preserving the status quo. Third,
a prompt final judicial determination must be
Southeastern Promotions, 420 U.S. at 560, 95 S.Ct. at 1247.
We understand defendants to argue that these procedural
safeguards were designed to protect against state intrusions
into kinds of speech which involve more significant First
Amendment values than those implicated by the commercial
speech at issue here. Hence, defendants conclude that in
regulating the relatively less significant speech in which
plaintiffs wish to engage, Ordinance 77-13 may dispense with
these procedural safeguards.
We disagree. The procedural safeguards established in the
prior restraint cases are founded on the concern for reducing
as much as possible the risk of suppressing constitutionally
protected speech. Southeastern Promotions, 420 U.S. at 559, 95
S.Ct. at 1246; Freedman v. Maryland, 380 U.S. at 57-59, 85
S.Ct. at 738-739. The government runs that risk, of course,
whenever it engages in censorship. The risk may be greater
where the speech involved is subject to greater protection.
Conversely, when the censored speech is commercial in nature,
the risk of suppressing protected
speech may lessen. But the risk does not disappear completely.
When the censor becomes overzealous and the risk of
suppressing constitutionally protected speech becomes a
reality, the result is no less obnoxious to First Amendment
values because the content of the speech happens to be
commercial. Thus, the important point is not that the
suppressed speech is commercial; the important point is that
it is protected.
The Supreme Court has recognized that the censorship of any
protected speech without the procedural safeguards is
inconsistent with the First Amendment, even where the
suppressed speech embodies less significant First Amendment
values. Thus, in Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423,
27 L.Ed.2d 498 (1971), the Court held unconstitutional a
statute allowing the Postmaster to return to the sender letters
posted for the purpose of obtaining or seeking money for
"obscene matter." The statute was defective, said the Court,
since it imposed a prior restraint without the requisite
safeguards mandated by Freedman v. Maryland, 400 U.S. at 417,
91 S.Ct. at 428. If a statute which restricts access to the
mails of persons sending obscene materials — a form of
communication not held in high constitutional repute — must
contain the procedural safeguard, we have no doubt that similar
safeguards must be employed in the case at bar.
We find that Ordinance 77-13 is utterly devoid of the
procedural safeguards required of legislative enactments which
impose a prior restraint. The ordinance does not place on the
Village the burden of initiating enforcement proceedings or of
proving that the solicitations are unprotected. Rather, the
Council's decision appears to become effective without
judicial approval. Nor does the statute provide for expedited
decisions by the Council. On the contrary, Section IV of the
ordinance states that the Council shall review the
applications "only at its regular meetings." The Council may
meet weekly or even monthly. We do not know. But regardless of
the frequency of the meetings, the ordinance is inadequate in
that it places the timing for making decisions entirely in the
hands of the censor. Additionally, Section VII provides that
"[N]o person shall file for said solicitation more than once
in a six month period." Thus, taking ...