97 S.Ct. at 2707. Second, it is more "objective" insofar as
"[t]he truth of commercial speech . . . may be more easily
verifiable by its disseminator than news reporting or
political commentary, in that ordinarily the advertiser seeks
to disseminate information about a specific product or service
that he himself provides and presumably knows more about than
anyone else." Virginia Board of Pharmacy, 425 U.S. at 772 n.
24, 96 S.Ct. at 1830 n. 24. In this way, "[C]oncerns for
uncertainty in determining the scope of protection are
reduced." Bates, 433 U.S. at 381, 97 S.Ct. at 2707.
With respect to some forms of regulation, the durability and
objectivity of commercial speech may insure that less
protected speech will be chilled by the threat of overbroad
enforcement.*fn8 In such circumstances, the rationale for
overbreadth analysis would disappear. This is not so, however,
where commercial speech is regulated by an overbroad licensing
statute. Such a statute may chill a substantial amount of
protected speech, particularly where the speaker perceives
that the licensing process is so costly, troublesome or futile
that he would prefer to forego the speech entirely. The
potential for chilling commercial speech aside, an overbroad
licensing statute presents an even stronger reason for the
application of overbreadth analysis. That is, statutes which
allow for arbitrary licensing may result in an absolute
prohibition of the regulated speech, regardless of the nature
of that speech. The central vice of enactments like the one at
bar is not that they chill speech by requiring a prediction of
legality by the speaker, but rather that they condition
legality on the judgment of the censor. The overbreadth of
such ordinances is not lessened by the nature of the speech it
regulates. The overbreadth is, on the contrary, inherent in
the nature of the regulation, i.e., standardless prior
For these reasons, we think that an overbreadth challenge is
especially appropriate with respect to the Bellwood ordinance.
We now address that challenge. The Supreme Court has indicated
that in cases in which a commercial speaker may mount an
overbreadth attack, "[t]he overbreadth of the statute must not
only be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep." Ohralik, 436 U.S. at
462-463 n. 20, 98 S.Ct. at 1922 n. 20, quoting Broadrick v.
Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d
830 (1973). We have no difficulty in finding that Ordinance
77-13 is overbroad in a real and substantial way. The ordinance
bestows absolutely uncontrolled discretion on the Council to
determine whether the content of certain communications would
be "detrimental to the welfare of the community." As with
similar statutes the Court has invalidated,*fn9 the overly
broad language in Ordinance 77-13 lays at the very heart of the
ordinance, i.e., the objectionable language is contained in the
licensing standard itself, and consequently would infect its
operation in every case. In the absence of standards to control
the Council's discretion, the Village is utterly incapable of
insuring in any case brought before it that it will be able to
"filter out those who will engage in protected speech from
those who will engage in unprotected speech, restraining only
the latter." International Society For Krishna Consciousness,
454 F. Supp. at 120.
We therefore find that Ordinance 77-13 is unconstitutionally
Plaintiffs also claim that the ordinance violates due
process, since its key language is so vague that "men of
common intelligence must necessarily guess at its meaning."
Connally v. General Construction Co., 269 U.S. 385, 391, 46
S.Ct. 126, 127, 70 L.Ed. 322 (1926). We agree.
We begin with the following guidelines:
As a matter of due process, "no one may be
required at peril of life, liberty or property to
speculate as to the meaning of penal statutes.
All are entitled to be informed as to what the
State commands or forbids." (cites) The general
test of vagueness applies with particular force
in review of laws dealing with speech. "Stricter
standards of permissible statutory vagueness may
be applied to a statute having a potentially
inhibiting effect on speech; a man may the less
be required to act at his peril here, because the
free dissemination of ideas may be the loser."
Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755,
1760, 48 L.Ed.2d 243 (1976).
The ordinance is impermissibly vague in two respects. First,
the coverage of the ordinance is unclear. It purports to
regulate "real estate solicitation for listings," yet it fails
to state what constitutes a "solicitation." Plaintiffs
properly query whether the ordinance would prohibit a realtor
from distributing business cards or from mailing
advertisements for his business to homeowners in the Village.
It cannot be argued that Section I of the ordinance defines
the term. That section states that "[S]uch solicitation
includes solicitation by telephone, by mail, in person or any
other means." It is apparent that this sentence presumes that
the definition of "solicitation" is known. Leaving this
central term undefined may not only "trap the innocent by not
providing fair warning," Grayned v. City of Rockford,
408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972), but may
also "chill" the realtors' exercise of their First Amendment
rights: Some realtors may find the application procedure so
costly or so futile that, rather than becoming entangled in the
"bureaucratic red tape," they would prefer to forego engaging
in the protected speech entirely.
The sections of the ordinance regarding the licensing of
solicitation requests contains an even more egregious example
of vagueness. The statute allows the Council to deny an
application if in its "opinion" solicitation would be
"detrimental to the community." This language neither
specifies what "those within its reach must do in order to
comply," Hynes, 425 U.S. at 621, 96 S.Ct. at 1761, nor provides
"explicit standards for those who apply" it. Grayned, 408 U.S.
at 108, 92 S.Ct. at 2298. The language in this section is a far
cry from the kind of precision which is required — and which
we have come to expect — in statutes affecting First Amendment
We therefore hold that Ordinance 77-13 is unconstitutionally
II. Ordinance 77-2
Plaintiffs make two objections to this ordinance: first,
that it deprives certain persons of equal protection and
second, that it is impermissibly vague.
On the equal protection point, plaintiffs argue that the
ordinance arbitrarily distinguishes between residential
property regarding which the owners have executed a listing
agreement or issued a public notice of intent to sell on the
one hand, and residential property which is available for rent
or sale but has neither been listed nor publicly advertised,
on the other. Without the benefit of evidence on the purpose
of the ordinance and the possible bases for the distinction,
we are not in a position to decide whether the ordinance
deprives persons within its coverage of equal protection of
the laws. Plaintiffs' motion for summary judgment on this
point is therefore denied.
We are prepared, however, to rule on plaintiffs' due process
challenge to Ordinance 77-2. Plaintiffs argue that the
ordinance lacks the requisite precision with respect to its
coverage and with respect to
what those within its reach must do to comply. Covered by the
ordinance are "all owners, agents, Brokers or any individual
or legal entity having ownership or control over any
residential property which is offered for sale. . . ."
Plaintiffs contend that this language does not sufficiently
specify who would be considered a "broker," an "agent," or an
"individual or legal entity having ownership or control."
We do not agree that the terms "broker" and "agent" are
unclear. The statute is obviously aimed at procuring notice
from the owner of the property or in the case of a "broker" or
"agent," from a person hired by the owner to promote a sale.
It is less clear, however, who falls into the category of
persons "having ownership or control." Plaintiffs wonder
whether the phrase describes apartment managers, mortgagees
and trustees of a land trust. It might also be asked whether
the language applies to tenants as well. Regardless of how
these questions are answered, we do not see how plaintiffs
have standing to raise them.
Embedded in the traditional rules governing
constitutional adjudication is the principle that
a person to whom a statute may constitutionally
be applied will not be heard to challenge that
statute on the ground that it may conceivably be
applied unconstitutionally to others, in
situations not before the Court.
Broadrick, 413 U.S. at 610, 93 S.Ct. at 2914. These rules of
standing in the First Amendment area have been relaxed only
with respect to challenges to a statute's overbreadth. Id. at
611-612, 93 S.Ct. at 2915-2916.*fn10 For this reason, if there
be any ambiguity in the terms "ownership and control,"
plaintiffs who are admittedly real estate brokers and therefore
clearly subject to the ordinance, are not the proper parties to
raise the issue.
Plaintiffs do have standing, however, to challenge the
vagueness of that section of Ordinance 77-2 which requires
them to "notify the Village of Bellwood" five days after
advertising a sale. Plaintiffs argue that this language does
not sufficiently specify what those within the reach of the
statute must do to comply with its terms. We agree. In
Hynes v. Mayor of Oradell, supra, the Court struck down a
virtually identical statute which provided that any person
soliciting door-to-door for charitable or political causes
"shall be required to notify the Police Department, in writing,
for identification only." In holding the statute facially
invalid, the Court observed that
The citizen is informed that before soliciting
he must "notify the Police Department, in
writing, for identification only." But he is not
told what must be set forth in the notice, or
what the police will consider sufficient as
"identification." . . . In this respect . . .
this law "may trap the innocent by not providing
Hynes, 425 U.S. at 621-622, 96 S.Ct. at 1761.