law ordinarily means that money damages would not suffice. American Medicorp, Inc. v. Continental Illinois Nat'l Bank and Trust Co., 475 F. Supp. 5, 7 (N.D. Ill. 1977). Money is no substitute for free speech and assembly. Therefore, money damages, even if they were measurable and available, would clearly be insufficient. Mr. MacDonald has shown that denial of the preliminary injunction would cause him to suffer an irreparable injury -- denial of the right to speak and assemble -- for which there exists no adequate remedy at law.
3. Balance of Harms
The balancing of harms involves a "sliding scale" analysis wherein "the greater the movant's chance of success on the merits, the less strong a showing it must make that the balance of harms is in its favor." Storck, 14 F.3d at 314. The Court has already found that Mr. MacDonald's likelihood of success on the merits, as to the prior restraint challenges, is strong. Additionally, in comparing the harm to Mr. MacDonald, if he is denied the right to speak and assemble (denial of a fundamental right), to the harm to the Park District if he is granted the right to speak and assemble (trampled grass, garbage, and graffiti), it is clear that the balance is in Mr. MacDonald's favor.
The First Amendment has been characterized as ". . . the matrix, the indispensable condition, of nearly every other form of freedom." Palko v. Connecticut, 302 U.S. 319, 327, 82 L. Ed. 288, 58 S. Ct. 149 (1937) (Cardozo, J.,), overruled, on other grounds, by Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969). Speech on public issues "occupies the 'highest rung of the hierarchy of First Amendment values'. . . ." Connick v. Myers, 461 U.S. 138, 145, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S. Ct. 3409, 3426, 73 L. Ed. 2d 1215 (1982)); see also Carey v. Brown, 447 U.S. 455, 467, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980). Furthermore, traditional public fora, such as parks and streets, "'have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515, 83 L. Ed. 1423, 59 S. Ct. 954 (1939)).
Denying Mr. MacDonald access to Butler Field, which is a traditional public forum where citizens address public concerns, and denying him his fundamental rights to expression and assembly there, is a harm of great magnitude. The freedom to put forth one's opinions and concerns in the marketplace of ideas is one of the most significant rights this country's citizens possess. Furthermore, Mr. MacDonald relies on rallies and demonstrations to publicize his cause. Contrastingly, the Park District, if Mr. MacDonald is given access and portions of the Ordinance are enjoined, will merely have to deal with administrative headaches and cleanup costs. Moreover, the Park District is free to adopt new regulations consistent with the First Amendment. Thus, in balancing the harms, it is clear that the scale tips heavily in Mr. MacDonald's favor.
4. Public Interest
The First Amendment "reflects a 'profound national commitment' to the principle that 'debate on public issues should be uninhibited, robust, and wide-open'. . . ." Boos v. Barry, 485 U.S. 312, 318, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964)). Thus, not only does the individual have the right to speak, the public has the right to listen.
See Bose Corp. v. Consumers Union, 466 U.S. 485, 503-04, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984) ("freedom to speak one's mind is not only an aspect of individual liberty -- and thus a good unto itself -- but also is essential to the common quest for truth and the vitality of society as a whole."); Garrison v. Louisiana, 379 U.S. 64, 74-75, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964) ("speech concerning public affairs is more than self-expression; it is the essence of self-government."); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139, 22 L. Ed. 2d 148, 89 S. Ct. 927 (1969). Whitney v. California, 274 U.S. 357, 375, 71 L. Ed. 1095, 47 S. Ct. 641 (1927) (Brandeis, J., concurring) ("freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. . . ."), overruled, in part, by Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969).
Speech on matters of public concern -- "core" First Amendment speech -- has been deemed essential to a democratic society. The First Amendment is based on the theory that the broadest possible dissemination of information, from diverse and often antagonistic sources, is essential to the public welfare and decision making process. It is undeniable that the "public has an interest in encouraging the free flow of information and ideas" and in "the vindications of an individual's constitutional rights." O'Brien v. Town of Caledonia, 748 F.2d 403, 408 (7th Cir. 1984). Therefore, granting the injunction will not disserve, but rather will promote, the public interest, since the public interest is clearly served by strong and vigorous protection of the First Amendment. Thus, the public interest in the outcome of this matter weighs in favor of granting the injunction.
C. Bond Requirement
Pursuant to Federal Rule of Civil Procedure 65(c), a bond must be posted as a condition of a preliminary injunction. Mr. MacDonald has limited financial resources, and his organization is an unincorporated association with no assets. The Court foresees no damage to the Park District, other than ordinary wear and tear on the parks and moderate administrative burdens, in the event that the Court has erred in granting the injunction. Under the circumstances, this Court finds that a nominal bond, in the amount of $ 100, is appropriate.
Having determined that Mr. MacDonald is entitled to a preliminary injunction, the Court must determine the scope and form of the injunction. The Court is mindful of the need to avoid scheduling conflicts, and to provide permits for large groups, amplified sounds, and sellers of goods. Although the Court has found most of the provisions in Section C of the Ordinance to be invalid, some of the provisions could survive in an ordinance drafted without discretion to deny permits on subjective grounds.
Therefore, the Court preliminarily enjoins the Park District from enforcing the following Ordinance provisions: § C(4)(b); § C(4)(c); § C(4)(d); § C(4)(e); § C(4)(f); § C(5)(b); § C(5)(c); § C(5)(e); and § C(6)(c). However, the Park District may continue to deny permits due to scheduling conflicts. Notice of approval or denial shall be given promptly. It is the Court's intent, by enjoining the foregoing provisions, that Mr. MacDonald may apply for and receive a permit for his festival/rally on the next available, or mutually agreeable, dates. The petition is denied as to the request for mandatory injunctive relief, which is not ripe in this facial challenge.
Accordingly, Plaintiff's Second Application for Preliminary Injunction is, hereby, GRANTED IN PART, and DENIED IN PART, consistent with this Court's attached Preliminary Injunction Order.
DATED: August 15, 1997
United States Magistrate Judge
PRELIMINARY INJUNCTION ORDER
I. The Park District, its agents, officers, servants, employees, independent contractors, and any others in active concert or participation with anyone receiving actual notice of this Order, are enjoined from applying or enforcing, § C(4)(b); § C(4)(c); § C(4)(d); § C(4)(e); § C(4)(f); § C(5)(b); § C(5)(c); § C(5)(e); and § C(6)(c) of the Park District's Ordinance, Chapter VII, entitled "Use of Parks", pending final decision in this case.
II. Mr. MacDonald shall post a nominal bond in the amount of one hundred dollars ($ 100), with the Clerk of the Court, to secure the payment of such costs and damages as may be suffered or sustained by any party who may be wrongfully restrained by this Preliminary Injunction Order.
III. This Preliminary Injunction Order shall not be construed by any party to enjoin the Park District from enforcing any other lawful ordinances, including safety ordinances.
IV. The parties shall promptly meet to determine a mutually agreeable time and place for Mr. MacDonald to conduct his rally/festival.
DATED: August 15, 1997
United States Magistrate Judge