and all day on Sundays until 5:30 p.m. We are persuaded by the
evidence that crowd and traffic conditions were dense enough
during those times to create serious safety problems when
performers draw large audiences. Applying the analysis
detailed in Conclusions 3-8, 11-21, we hold that the ordinance
as narrowed satisfies the rigorous demands of the First
28. We also uphold Section 1(b) of the ordinance with
respect to its total ban of performances during the Christmas
season. The record shows that crowds are especially heavy
then, and stores keep long hours. However, we uphold this part
of the ordinance for the same reasons that we upheld the
Division Street ban. Plaintiffs have not shown that they did
or intend to perform during the cold Christmas season. Indeed,
as plaintiffs' counsel pointedly asked Sergeant Flanagan on
cross-examination, "You never saw a breakdancer dancing on
snow, did you?" Although intending to show that the ban was
not necessary at that time, the plaintiffs implicitly admitted
here and elsewhere that they lack standing on this issue,
since their First Amendment interests have not been, and
apparently will not be, implicated by the Christmastime ban.
29. With respect to those portions of Section 1(b) that we
have upheld, we note again that much depends on the evidence
that serious safety problems in fact occurred in 1984.
However, Sergeant Flanagan testified that the performances
were primarily by breakdancers, see Flanagan testimony at
18-19, and that only breakdancers ever caused pedestrians to
flow into the street in 1984. Id. at 39. Indeed, Sergeant
Flanagan said he never paid much attention to performers other
than breakdancers. Id. at 31. Thus, to the extent breakdancing
has run its course and that no other entertainment fad
demanding large sidewalk space and attracting big crowds
replaces it, the potentially hazardous conditions which upheld
the ordinance may very well no longer exist. The City should
consider seriously any changed conditions if and when it begins
the process of re-enacting the Second Amended Ordinance.
30. At closing argument, plaintiffs' counsel also challenged
Chapter 36.1-5(d)(1) of the ordinance, as amended,
see Finding 5, which mandates that performers maintain at least
six feet of sidewalks clear for pedestrian passage when they
perform anywhere in the City. We grant the City's oral motion
to strike that challenge. Such a claim was not raised in the
amended complaint, and the City did not address it fully at
trial. We hold that the City did not impliedly consent to try
that issue, and it was prejudiced by its failure to do so.
Accordingly, we deny what amounts to plaintiffs' implicit
motion to amend its complaint to conform to whatever proof it
might have introduced on this section of the amended ordinance.
See Fed.R.Civ.P. 15(b).
31. However, plaintiffs' additional challenge to the "noise
control" section of the ordinance is meritorious. That section
forbids performers to use sound amplification equipment unless
granted a special permit issued by the City Council.
See Findings 4, 4A. The section does not specify how to obtain
such a permit and sets no standards or guidelines concerning
the granting of such a license. Although the City plainly may
impose reasonable limitations on performer's volume, see
Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294,
2303, 33 L.Ed.2d 222 (1972), it has done so here via the prior
restraint of a license, with no restraint on official
discretion concerning when to grant a license. Such a restraint
violates the First Amendment. See, e.g., Shuttlesworth v. City
of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938, 22
L.Ed.2d 162 (1969) ("a law subjecting the exercise of First
Amendment freedoms to the prior restraint of a license, without
narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional"); cf. Davenport v.
City of Alexandria, 710 F.2d 148, 150 (4th Cir. 1983)
(upholding permit requirement for street performers because
standards were precisely defined and city officials had no
discretion about whether to
issue a permit). The City contends that these permits are
granted as a matter of right, but the ordinance does not say
that. Under its literal terms, no standard controls official
discretion as to granting permits. Thus, we reject the City's
defense of the amplification permit requirement of Section
32. The plaintiffs' equal protection challenge to the Second
Amended Ordinance must fail to the same extent that its First
Amendment claim failed. We note first that the Equal
Protection Clause applies to this ordinance since it limits
only one class of speakers, "performers"; if religious groups
wish to perform or people wish to speak or picket, the Second
Amended Ordinance does not apply. However, the Supreme Court
has recognized that where legislative classifications affect
fundamental First Amendment rights, equal protection analysis
largely coincides with First Amendment analysis. See Police
Dept. of City of Chicago v. Mosley, 408 U.S. 92, 94-95, 92
S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972). Both amendments
require strict judicial scrutiny of the asserted governmental
ends and of how closely the means chosen serve those ends. Id.
at 98-102, 92 S.Ct. at 2291-94. This is the analysis we
employed in Conclusions 3-8, 11-21, and our conclusions apply
with equal force to both the First Amendment and Equal
33. One aspect of the equal protection analysis should be
addressed before moving on. At closing argument, we expressed
concern along equal protection lines that the ordinance
prohibits, for example, a guitarist for pleasure or profit but
not a guitarist soliciting or advocating for a religious or
political group, the latter of which is of course
theoretically capable of drawing a large audience. Despite
this potential underinclusiveness, we think the ordinance as
narrowed must stand. Strict scrutiny demands very precise
governmental classification, but not perfection. No evidence
showed that any performer other than one defined as such by
the ordinance ever drew an audience which created a serious
safety problem. As such, banning performers like religious
solicitors, would be unnecessary, as well as potentially
offensive to other First Amendment interests. In sum, we think
the City's restrictions reached both as broadly and as
narrowly as necessary to achieve its interests in public
safety and do not violate equal protection principles.
34. Finally, we reject plaintiffs' separate equal protection
challenge to Chapter 36.1-5(b)(1), as amended, which bans
performances everywhere in the City after 10 p.m. on Sunday
through Thursday and 11 p.m. on Friday and Saturday.
See Finding 5A. We note first that this general time regulation
does not offend the First Amendment. While many areas of the
City, including Rush Street or Michigan Avenue, could probably
accommodate performances at later hours, as such shows would
not be "basically incompatible with the normal activity of a
particular place at a particular time," Grayned v. City of
Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d
222 (1972), the City was not obligated to identify and make
special rules for all of the scores of main areas in the City
that could host such performances after 10 or 11 p.m. See
National Anti-Drug Coalition, Inc. v. Bolger, 737 F.2d 717, 727
(7th Cir. 1984).
35. Having concluded that the City properly drew city-wide
"curfews" for performances, we turn to and reject plaintiffs'
equal protection complaint that such curfews are directed only
at them, but not at other speakers, such as politicians or
leafletters. We presume that this aspect of the ordinance
exists primarily to regulate noise. The evidence has shown,
and we may judicially notice that, most street performances
are noisy. Amplifiers are common; but even when amplifiers are
not used, performances are often loud, such as when a
saxophonist or bongo-drummer plays. See Finding 49. Also, as
have emphasized elsewhere, street performances are common.
Other sorts of noisy speech are not. We think the City
properly singled out and restricted performers as a recurring
and special source of noise. Noise from performers was
definitely a problem for the residents who testified. Although
the City has a general anti-noise ordinance, a special one
directed at street performers was necessary to deal with the
regular noise problems caused by performers. It is well
established that cities may reasonably restrict noisy speech.
See, e.g. Grayned, 408 U.S. at 117, 92 S.Ct. at 2304; Concerned
Jewish Youth v. McGuire, 621 F.2d 471, 477 (2d Cir. 1980).
Banning performances generally during late night and early
morning hours is closely related both to the times when such
performances would be most offensive and to the performers most
likely to make such noise. Moreover, many alternative times are
left open for noisy expression. In short, we perceive no equal
protection problem with Chapter 36.1-5(b)(1).
For the foregoing reasons, the Court declares that the
ordinances at issue are unconstitutional to the extent they:
a. Ban performances in the Rush Street area on
Wednesdays between 3 p.m. and 11 p.m., and on
Fridays and Saturdays from 3 p.m. to 7 p.m.
b. Ban performances on Rush Street south of Oak
during the operative hours of the Second
c. Ban performances in the Michigan Avenue area
between 7:30 and 10 p.m. on Weekdays and 5:30
and 10 p.m. on Sundays.
d. Require a special permit for sound
Our "surgical excision" of the constitutionally defective
parts of an ordinance is proper, since we have not completely
reconstructed the ordinance in the process. See Conclusion 8A.
The City is enjoined from enforcing the ordinance's bans to the
extent we have held them constitutionally defective. In all
other respects, we uphold the ordinances and therefore deny the
remaining aspects of plaintiffs' request for permanent
injunctive relief. It is so ordered.