United States District Court, Northern District of Illinois, E.D
April 11, 1984
NATIONAL PEOPLE'S ACTION, PLAINTIFF,
CITY OF BLUE ISLAND, ILLINOIS, DEFENDANT.
The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
This action under the Civil Rights Act of 1871, 42 U.S.C. § 1983
("§ 1983"), is before the court on the motion for partial summary
judgment of plaintiff National People's Action ("NPA") against the City
of Blue Island ("Blue Island"). NPA challenges the constitutional
validity of one of Blue Island's ordinances, both on its face and as
applied. The 1958 ordinance in controversy, entitled "An Ordinance
Regulating Peddlers, Solicitors and Canvassers and Providing for Permits
and Fees Therefor," No. 2005, as amended in 1966 by No. 2009, contains
several provisions that allegedly violate NPA's rights under the first
and fourteenth amendments to the United States Constitution. As relief,
NPA seeks a declaratory judgment that the ordinance violates the first
and fourteenth amendments of the United States Constitution, an
injunction enjoining future enforcement of
the ordinance, actual damages, costs, and reasonable attorneys' fees.
Briefly described, plaintiffs' allegations charge that on July 25,
1983, NPA agent Amy McGee requested information of Blue Island on how to
engage in canvassing, leafletting, petitioning, and soliciting of funds
in Blue Island. Several communications between Blue Island officials and
agents of NPA ensued in which NPA requested permission to conduct these
activities in Blue Island. These communications culminated in a letter
from Stan Lukas, president of the Blue Island Chamber of Commerce,
denying NPA's request because the city "had been inundated this year with
not only our own tag days but also outside requests to canvass our
community. . . ." NPA alleges that but for this enforcement of the
ordinance, NPA would engage in leafletting, petitioning, and solicitation
of funds in Blue Island.
Plaintiffs move for partial summary judgment "on the issue of liability
— the constitutionality of the municipal ordinance in question . .
." (Plaintiff's Motion for Partial Summary Judgment p. 1.) The contents
of the 1958 and 1966 documents are not in dispute. (See Memorandum in
Opposition pp. 1, 2 nn. 1-2.) Neither is it disputed that Lukas sent the
letter denying a permit to NPA on August 2, 1983. (Blue Island Answer
¶ 11.) The contents of that letter are not disputed. (Id.) Blue Island
admits that it is an Illinois municipality and that its actions in
denying NPA's request for a permit were taken under color of state law.
(Id. at ¶¶ 5, 14.) Indeed, Blue Island admits that the ordinance was
unconstitutionally applied to NPA's request, although it contends that
the ordinance is facially constitutional. (Memorandum in Opposition p.
1.) Before the court may inquire into the constitutionality of the
ordinance, however, it must address Blue Island's argument that the case
is moot, as no case or controversy is alleged.
Blue Island argues that the case is moot based upon two factual
assertions that NPA never denies. First, Blue Island claims to have
invited NPA to canvass two days after the present suit was filed.
Second, at some time after the suit was filed, Blue Island informed NPA,
and now informs the court, that NPA was in fact exempt from the
application of the ordinance, and could therefore canvass without a
permit. (The ordinance describes the sort of organizations that are exempt
from its scope. Incidentally, NPA nowhere alleges or argues that it ever
sought to determine whether it was exempt from the ordinance.) As there
is no longer a case or controversy, Blue Island contends, the court must
dismiss this action.
The Seventh Circuit has recently explained that
A case or controversy may become moot because there is
no reasonable expectation that the alleged act will
recur, and interim relief or events have completely
and irrevocably eradicated the effects of the alleged
Johnson v. Board of Education of Chicago, 664 F.2d 1069, 1071 (7th Cir.
1981), rev'd on other grounds, 457 U.S. 52, 102 S.Ct. 2223, 72 L.Ed.2d
Of course, a defendant's voluntary cessation of the actions complained
of will not moot a controversy, in part because the defendant would
otherwise be "free to return to his old ways." United States v. W.T.
Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). It
is the defendant's burden to prove that the offending activity has
stopped and will not be repeated before a court may dismiss an action for
mootness. Id. at 633, 73 S.Ct. at 897. Even when the defendant has
abrogated the policy causing the injury, plaintiff's case may not be moot
as "there can be no assurance that [the defendant] will not resurrect the
old procedure in the future. The propriety of injunctive relief cannot be
foreclosed by a promise to discontinue what has been an established
pattern of wrongdoing." Boyd v. Adams, 513 F.2d 83, 89 (7th Cir. 1975).
In addition, the court must satisfy itself that plaintiff has been
relief. In Black v. Brown, 513 F.2d 652, 654-655 (7th Cir. 1975), the
Court held plaintiff's claim for an injunction moot, since the injury of
which he complained, being held in a prison isolation cell, had ended.
However, the § 1983 action was not dismissed in full, for the
plaintiff still had claims for declaratory and monetary relief. Id. When
the action under examination for mootness is not a class action, the
inquiry centers on whether the particular plaintiff has been accorded a
full remedy and assured that, with respect to that plaintiff, the injury
will not be repeated. L. Tribe, American Constitutional Law § 3-14,
at 64, 67 (1978); but see id. at 64 n. 9. For example, in DeFunis v.
Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), plaintiff
DeFunis complained he was denied admission to law school on account of
his race. As the case made its way through the state court system;
DeFunis, who, by order of the trial court, had been admitted to the law
school for the year to which he had applied, made his way through law
school. At the time the United States Supreme Court heard the case,
DeFunis, who had not requested damages or declaratory relief, was in his
last year of law school. The law school assured the Court that he would
be permitted to finish his studies, whatever the outcome of the case. The
Court found DeFunis had been accorded full relief in the interim. The
Court explained that the particular action, refusal to admit DeFunis to
law school because of his race, could never again occur to DeFunis:
[M]ootness in the present case depends not at all
upon a "voluntary cessation" of the admissions
practices that were the subject of this litigation. It
depends, instead, upon the simple fact that DeFunis is
now in the final quarter of the final year of his
course of study, and the settled and unchallenged
policy of the Law School to permit him to complete the
term for which he is now enrolled. It might be
suggested that this case presents a question that is
"capable of repetition, yet evading review,"
[citations omitted] and is thus amenable to federal
adjudication even though it might otherwise be
considered moot. But DeFunis will never again be
required to run the gantlet of the Law School's
admission process, and so the question is certainly
not "capable of repetition" so far as he is
Id. at 318-319, 94 S.Ct. at 1706-07. The Court noted that if the
complained of admissions policies continue, "there is no reason to
suppose that a subsequent case attacking those procedures will not come
with relative speed to this Court, now that the Supreme Court of
Washington has spoken." The Court concluded that the case did not present
that exceptional situation warranting departure from the rule that a case
or controversy exist through all stages of an action, and not simply at
the time such action is commenced. See, e.g., Roe v. Wade, 410 U.S. 113
93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
The DeFunis decision that the case was moot relied strongly on the fact
that DeFunis's admission could not be reversed. The Court noted that
DeFunis complained of the school's admissions procedure. Had the question
of mootness arisen by reason of the law school's unilateral change in
admissions procedures, the Court continued, it may not have found the
[A] voluntary cessation of the admissions practices
complained of could make this case moot only if it
could be said with assurance "that `there is no
reasonable expectation that the wrong will be
repeated.'" [Citation omitted.] Otherwise, "[t]he
defendant is free to return to his old ways,"
[citation omitted], and this fact would be enough to
prevent mootness because of the "public interest in
having the legality of the practice settled."
[Citation omitted.] But mootness in the present case
depends not at all upon a "voluntary cessation" of the
admissions practices that were the subject of this
litigation. It depends, instead, upon the simple fact
that . . . the settled and unchallenged policy of the
Law School [is] to permit him to complete the term for
which he is now enrolled.
416 U.S. at 318, 94 S.Ct. at 1706.
With these principles in mind, it is clear that NPA's claim for
ages is not moot, as NPA has not been accorded financial relief for the
injury alleged. However, the action for declaratory and injunctive relief
is moot. Blue Island has informed both NPA and this court that under the
section of the ordinance in question, NPA is exempt. Blue Island has also
admitted that applying the ordinance to NPA was unconstitutional in
violation of NPA's first amendment rights under the federal
constitution. These admissions make unnecessary the declaration that the
ordinance was unconstitutionally applied or that NPA was exempt from its
scope, since there is no risk under Blue Island's interpretation that it
will ever apply the ordinance to NPA again. For the same reasons, the
injunctive remedy is also moot.
Constitutionality of the Ordinance
NPA has challenged the ordinance both on its face and as applied. The
court need not determine this latter issue, as Blue Island admits that
applying the ordinance to NPA was unconstitutional. The final liability
question is whether the statute is facially unconstitutional. The court
finds that it is.
The ordinance in question covers canvassers, peddlers, and solicitors.
It defines a canvasser as
any person who travels from place to place within the
city by foot or other conveyance distributing product
samples, advertisements or any item of similar nature
or seeking donations or information.
Blue Island, Ill., Ordinance 2005(1)(c). NPA's application was allegedly
for permission to canvass and to gather information. Hence, it is the
ordinance's treatment of canvassers that the court examines. The
ordinance provides that no person shall engage in canvassing, peddling,
or soliciting without either the consent of the occupant of each
residence visited or a permit issued by Blue Island upon application.
Id. at (2)(a). It also calls for an investigation of the applicant's
criminal record and of the application's accuracy. Id. at (3)(a).
Section 4, governing the "Issuance of Permit," however, prescribes no
standards with respect to issuing permits to canvassers, except for a
five-day waiting period between the application and the permit issuance,
id. at 4(a), and a prohibition of issuance to felons, those afflicted
with a communicable disease, and persons who have falsified their
applications, id. at 4(b). Section 5 requires an application to be
accompanied by a bond and a ten dollar fee. Id. at 5(a)-(b).
Blue Island admits these provisions are unconstitutional as applied to
NPA, but draws the court's attention to Section 6, amended on September
26, 1966. That section states in part:
Exemptions: The provisions of this ordinance shall not
apply to the following:
(e) persons, firms or corporations engaged in a
business or any other activity which is exempt by any
constitutional or statutory provisions of the laws of
the United States of America or of the State of
Illinois. . . .
NPA attacks the ordinance's unconstitutionality with respect to its
restrictions on canvassing. NPA is correct, and Blue Island apparently
agrees, that organizations that solicit donations and disseminate
information door-to-door engage in speech that is constitutionally
protected by the first amendment.
Prior authorities . . . clearly establish that
charitable appeals for funds, on the street or door to
door, involve a variety of speech interests —
communication of information, the dissemination and
propagation of views and ideas, and the advocacy of
causes — that are within the protection of the
Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620
632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73, reh'g denied, 445 U.S. 972
S.Ct. 1668, 64 L.Ed.2d 250 (1980). Of course, such "soliciting and
canvassing from door to door [is] subject to reasonable regulation so as
to protect the citizen against crime and undue annoyance, but . . . the
require[s] such controls to be drawn with `narrow specificity.'" Id.
(citing Hynes v. Mayor of Oradell, 425 U.S. 610
, 620, 96 S.Ct. 1755,
1760, 48 L.Ed.2d 243 (1976)). In Village of Schaumburg, the Supreme Court
warned that such regulation
must be undertaken with due regard for the reality
that solicitation is characteristically entwined with
informative and perhaps persuasive speech seeking
support for particular causes or for particular views
on economic, political, or social issues, and for the
reality that without solicitation the flow of such
information would likely cease.
444 U.S. at 632, 100 S.Ct. at 833. The ordinance in question at first
appears to apply to such organizations. See Blue Island, Ill., Ordinance
Proceeding on the theory that the ordinance applies to such
organizations, NPA contends that the ordinance is unconstitutional as
granting overly broad discretion to issue such permits to Blue Island
officials, as lacking procedural safeguards, as impermissibly denying
felons the right to canvass, and as impermissibly limiting the time of
day in which organizations may canvass. To cure these violations, Blue
Island points to § 6(e).
The court interprets § 6(e) as exempting from the ordinance's
scope any organization upon which such restrictions would be invalid,
under federal or state law or constitution. How § 6(e) is to be
executed is unclear. For example, should the Blue Island officials have
invited NPA to prove that it would be exempt under the federal
constitution from complying with the ordinance? Or, should the NPA have
simply determined on its own that it was exempt from the ordinance, and
proceeded to canvass the residents of Blue Island? The allegations do not
reveal any attempts by Blue Island to determine whether NPA would be
exempt or any attempts by NPA to request an exemption.
Simply put, the Blue Island ordinance purports to regulate canvassing,
peddling, and soliciting, except where regulation as prescribed by their
ordinance would be unconstitutional. The court must now determine whether
this exemption cures the admitted overbreadth and other constitutional
defects in the statutes, or simply creates a different defect, that of
The Supreme Court summarized the general principles of the
void-for-vagueness doctrine in Smith v. Goguen, 415 U.S. 566, 94 S.Ct.
1242, 39 L.Ed.2d 605 (1974). There, the Court explained
The [void-for-vagueness] doctrine incorporates notions
of fair notice or warning. Moreover, it requires
legislatures to set reasonably clear guidelines for
law enforcement officials and triers of fact in order
to prevent "arbitrary and discriminatory enforcement."
Where a statute's literal scope, unaided by a
narrowing state court interpretation, is capable of
reaching expression sheltered by the First Amendment,
the doctrine demands a greater degree of specificity
than in other contexts.
Due process requires that all "be informed as to what
the State commands or forbids," [citation omitted],
and that "men of common intelligence" not be forced to
guess at the meaning of the criminal law. [Footnotes
Id. at 572-573, 574, 94 S.Ct. at 1246-1247. Vagueness in statutes and
ordinances regulating speech has the additional problem of chilling
constitutional speech. See Baggett v. Bullitt, 377 U.S. 360
, 372, 84
S.Ct. 1316, 1322, 12 L.Ed.2d 377 (1964); see also United States v.
National Dairy Products Corp., 372 U.S. 29
, 36, 83 S.Ct. 594, 9 L.Ed.2d
561 (1963) (standards of specificity in antitrust laws less stringent
than in laws regulating speech, as vagueness in latter context may
infringe on constitutionally protected and socially desirable conduct,
which is not the case in conduct that may violate antitrust laws).
Moreover, when the vagueness of a statute is only marginal, and the core
of conduct sought to be prohibited is clear, the Court has been unwilling
to declare the statute void for vagueness. United States v. Petrillo,
332 U.S. 1
7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947). There, a statute rendered
criminal compelling an employer to hire "unneeded" employees. The Court
found the core conduct addressed by the statute sufficiently clear,
finding marginal any vagueness in applying the statute to conduct on the
fringes of the statute's scope.
Professor Tribe has explained that courts are hesitant to invalidate
statutes that are only marginally vague, as the legislature is faced with
difficult and conflicting policy choices in determining how broadly or
narrowly to write a statute. He concludes that finding a statute
unconstitutionally "vague and therefore void as a matter of due process
is thus unlikely to be triggered without two findings: that the
individual challenging the statute is indeed one of the entrapped
innocent, and that it would have been practical for the legislature to
draft more precisely." L. Tribe, American Constitutional Law §
12-28, at 719 (1978).
Cases in which the void-for-vagueness doctrine is examined with respect
to a particular statute attempt to determine whether the defendant had
notice that her or his conduct was regulated thereby. Here, the question
is whether NPA knew it was, as Blue Island contends, exempt from the
application of the ordinance. Evidence that they did not exists in the
fact that upon receipt of the copy of the ordinance, NPA did not
immediately start canvassing. Moreover, Blue Island's refusal to issue
the permit can only be taken as their understanding that NPA was within
the ordinance' s scope. These facts support a finding that the exemption
provision was in fact impermissibly vague.
The exemption provision may be described as a "savings clause"*fn1 in
that it attempts to "save" a statute that might otherwise be
unconstitutional solely by claiming that the statute should not be
construed in such a way as to render it unconstitutional. While the court
is aware of no case exactly on point, two Supreme Court cases are
informative on whether such a savings clause is void for vagueness.
In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495
(1945), the Court examined for impermissible vagueness a statute making
criminal the willful violation of the rights of citizens under the due
process and privileges and immunities clauses of the federal
constitution. (This statute is presently codified with few amendments at
18 U.S.C. § 242.) The petitioner in that case had been convicted
under the statute and argued that it was unconstitutional "in so far as
it makes criminal acts in violation of the due process clause of the
Fourteenth Amendment." Petitioner Screws contended that the due process
clause is capable of wide and varying interpretations; its "broad and
fluid definitions" provided "no ascertainable standard of guilt." Id. at
95, 65 S.Ct. at 1032. The Court discussed the "serious character of
In the instant case, the decision of the courts are,
to be sure, a source of reference for ascertaining the
specific content of the concept of due process. But
even so the Act would incorporate by reference a large
body of changing and uncertain law. That law is not
always reducible to specific rules, is expressible
only in general terms, and turns many times on the
facts of a particular case. [I]t is argued . . .
Congress did not define what it desired to punish but
referred the citizen to a comprehensive law library in
order to ascertain what acts were prohibited.
Id. at 96, 65 S.Ct. at 1032. The Court, suggesting that such a standard
would be unconstitutionally vague, pointed out that courts should
construe a law as to render it constitutional. Id. at 98, 65 S.Ct. at
1033. The Court also noted that were the statute's incorporation of the
due process clause impermissibly vague, the statute's incorporation of
the privileges and immunities clause would also be vague. Id. at
100, 65 S.Ct. at 1035. The Court did not have to declare the statute
unconstitutionally vague, however, as it construed "willful" as
incorporating a standard of specific intent. According to the Court, such
a construction would "relieve the statute of the objection that it
punishes without warning an offense of which the accused was unaware."
Id. at 102, 65 S.Ct. at 1035-36.
In Screws, it is strongly suggested that the due process and privileges
and immunities clauses of the federal constitution so vaguely prescribe
standards of behavior as to render void a statute criminalizing
violations of those standards. To avoid such an interpretation, the Court
construed the statute as incorporating a specific intent standard. Here,
the ordinance in question purports to regulate a certain type of speech,
canvassing, unless such regulation would violate not only the federal
constitution (here, the first amendment guarantees of free speech), but
federal law and Illinois's law and constitution. Potential canvassers are
put on notice that, unless federal or Illinois law so prohibits, they must
apply for and receive a permit before canvassing. Under the analysis
employed in Screws, to determine that such application was unnecessary,
the potential canvasser would need knowledge of all law applicable to her
or his activities. The court is unaware of any penalties imposed on those
who violate this ordinance. The potential canvasser, determining that her
or his speech was protected from the ordinance's requirements, would have
to weigh the risk of confronting any penalties if Blue Island's
interpretation of the law differed from her or his own. If the burden of
determining whether an applicant is exempt from the ordinance falls on
Blue Island, it is arguable that the standards of the exemption are so
vague as to allow incorrect, arbitrary, or invidious application of the
exemption. At least in this case, both parties failed to recognize that
NPA was under the exemption.
Without mentioning Screws, the Court recently appeared to cut back on
the analysis of that case in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct.
1633, 40 L.Ed.2d 15 reh'g denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d
1148 (1974). In Arnett, the court examined for vagueness and overbreadth
a provision allowing the removal or suspension without pay of federal
employees "for such cause as will promote the efficiency of the service."
Id. at 158, 94 S.Ct. at 1646. The Court recognized that this clause "is
without doubt intended to authorize dismissal for speech as well as other
conduct," id. at 160, 94 S.Ct. at 1647, and in fact the petitioner had
been fired for his speech. The Court noted, and the petitioner agreed,
"that in certain situations the discharge of a Government employee may be
based on his speech without offending . . . the First Amendment. . . ."
Addressing the vagueness issue, the Court held the language was not
unconstitutionally vague as petitioners could be guided by the
"longstanding principles of employer-employee relationships," which
regulations promulgated under the statute provided should guide its
interpretation. The Court noted further that the regulations provided
that its Office of General Counsel was available to counsel employees on
the statute and its regulations.
According to the Court, the availability of such counsel was crucial to
an earlier decision rejecting a vagueness attack on a similar statute in
Civil Service Commission v. National Association of Letter Carriers,
413 U.S. 548, 580, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973). The Court
concluded that the statute was not impermissibly vague, as "the Act
describes, as explicitly as is required, the employee conduct which is
ground for removal."
Discussing the overbreadth issue, the Court rejected petitioners' claim
that the Act allowed discharges for exercise of constitutionally
protectible speech. Justice Rehnquist explained that
"Congress . . . obviously did not intend to authorize
discharge under the Act's removal standard for speech
which is constitutionally protected. The Act
proscribes only that public speech which improperly
damages and impairs the reputation and efficiency of
agency. . . . We hold that the language "such cause as
will promote the efficiency of the service" in the Act
excludes constitutionally protected speech and that
the statute is therefore not overbroad."
Id. 416 U.S. at 162, 94 S.Ct. at 1648.
By this analysis, the Court rejected an overbreadth challenge, similar
to that propounded by NPA here, by construing the statute as not
regulating constitutionally protected speech. Blue Island asks the court
similarly to reject NPA's overbreadth and other first amendment
challenges by finding that the exemption prevents unconstitutional or
unlawful regulation of canvassing. Justice Marshall, joined by Justices
Brennan and Douglas, dissented in Arnett, explaining:
The majority purports to solve this potential
overbreadth problem merely by announcing that the
standard in the Act "excludes protected speech."
Nonetheless, it leaves the statutory standard intact
and offers no guidance other than general observation
as to what conduct is or is not punishable. The
Court's answer is no answer at all. To accept this
response is functionally to eliminate overbreadth from
the First Amendment lexicon. No statute can reach and
punish constitutionally protected speech. The majority
has not given the statute a limiting construction but
merely repeated the obvious.
Id. at 229, 94 S.Ct. at 1681. The court notes, however, that the
regulations and availability of counsel present in Arnett distinguish it
from Screws. The Arnett Court was clearly influenced by the ability of
these aids to alleviate any misunderstandings of the statutory language.
Professor Tribe has indicated that a "savings clause" of the type
implied in Arnett and found in this ordinance strongly risk impermissible
vagueness. He notes that were the saving interpretation related to first
amendment law that is relatively precise and applicable to several
categories of speech, it may pass constitutional muster. For example,
state libel statutes are understood to incorporate the principles of New
York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964), obviating rejection of all statutes that do not include specific
limitations on libel actions against public figures. However, other first
amendment doctrines are not so categorically applicable and clear, but
depend upon the various fact situations present in each circumstance. As
an example, he points out the "fighting words" doctrine of State v.
Chaplinsky, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), which turns
on "facts particular to the speaker, the audience, and their
interaction." L. Tribe, § 12-26, at 715. He concludes that
To construe a statute by reference to such a
fact-oriented standard is to inject an excessive
element of vagueness into the law because the standard
itself takes shape only as courts proceed on a
retrospective, case-by-case basis to determine when
offensive speech has become unprotected as an instance
of "fighting words."
Id. at 716. Criticizing Arnett as "simply exchang[ing] overbreadth for
vagueness," Professor Tribe posits that "the premise underlying any
instance of facial invalidation for overbreadth must be that the
Constitution does not, in and of itself provide a bright enough line to
guide primary conduct. . . ." (Emphasis original). Id.*fn2
this premise is clearly found in the Court's opinion in Screws.
The court is persuaded by the analysis of Screws. As mentioned above,
the exemption in the present ordinance alludes to state and federal law
and constitutions, thereby referring to a vast and diverse body of law as
guidance for the potential canvasser. Such a general exemption does not
sufficiently inform canvassers of the activity for which a permit is
required. In addition, the law of canvassing, unlike the
public figure doctrine, is not precise and capable of bright-line
drawing. In fact, door-to-door speech may be regulated to a certain
extent in a way that speech in a public place may not. A municipality may
legitimately be concerned about crime and annoyance of its residents,
rendering more important the specific facts of each applicant in the
balancing test it may employ in issuing permits. That such a balancing
test is difficult of both accurate and broad generalization is indicated
by the facts in this case.
Hence, the court finds that the exemption, in attempting to cure
overbreadth and other admitted constitutional defects in the ordinance,
in turn renders the ordinance unconstitutionally vague. Such a conclusion
is supported both by the cases discussing the void-for-vagueness doctrine
and by the analysis of Screws. Arnett is less persuasive because the
facts of that case indicate that the provision of guidance —
through regulations, the law of employer-employee relations, and the
services of the General Counsel — significantly aided those
affected by the statute in determining what constituted protected and
unprotected speech. Hence, the Court's construction, that the statute did
not reach protected speech, was not the only aid in interpreting the
scope of the statute.
NPA attacked the ordinance as facially unconstitutional on many
grounds. Blue Island's response was to admit that the ordinance was
unconstitutionally applied and to defend against NPA's constitutional
challenges solely by contending that § 6(e) cured any constitutional
defect. The court has found that this clause is unconstitutionally
vague. Moreover, the court interprets Blue Island's response as admitting
that the ordinance would be facially unconstitutional absent the
exemption clause. Hence, the court has not examined NPA's challenges and
accepts the parties' agreement on this point. If Blue Island contends
that absent § 6(e) the ordinance is still facially constitutional, it
should bring this contention to the court's attention in a motion to
Plaintiff's motion for partial summary judgment is granted. Blue
Island's admission indicates that the ordinance was unconstitutionally
applied. Moreover, the court interprets this admission and Blue Island's
argumentation as admitting that without the exemption in § 6(e), the
ordinance would be facially unconstitutional. Section 6(e) has been found
by the court to be unconstitutionally vague. Hence, the ordinance's
provisions relating to soliciting and canvassing are unconstitutional. The
ordinance contains a severability clause in § 9. As NPA has not
challenged, nor argued that it had standing to challenge, the ordinance's
provisions respecting peddling, the ordinance remains in effect for
It is so ordered.