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August 15, 1997

ROBERT MacDONALD, Plaintiff,
CHICAGO PARK DISTRICT, a body political and corporate, Defendant.

The opinion of the court was delivered by: KEYS

 Before the Court is Plaintiff's Second Application for Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 65. For the reasons set forth below, this Court grants in part, and denies in part, Plaintiff's Second Application for Preliminary Injunction.


 This matter is brought under 42 U.S.C. § 1983, and alleges a violation of rights secured by the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. Plaintiff, Robert MacDonald, in his underlying Verified Complaint for Declaratory Judgment and Permanent Injunction ("Complaint"), seeks a declaration that the Chicago Park District's (the "Park District") grounds for permit denial, set forth in Chapter VII, § C(5)(e), of the Chicago Park District's Ordinance (the "Ordinance"), is unconstitutional. Mr. MacDonald also seeks an injunction permanently prohibiting the Park District from enforcing that portion of the Ordinance.

 On March 4, 1997, Mr. MacDonald applied to the Park District for a permit to hold "Hempfest/Stop the Drug War Rally and March" on May 10 and 11, 1997. On March 12, 1997, the Park District denied his permit application. On March 18, 1997, Mr. MacDonald appealed the denial of his permit application to the General Superintendent of the Park District. That appeal was denied on March 26, 1997.

 On May 23, 1997, Mr. MacDonald filed the instant Second Application for Preliminary Injunction (the "Second Application"), in which he requested an order enjoining the Park District from enforcing its permit ordinance, and permitting him to hold a rally on August 23 and 24, 1997. *fn2" On July 2, 1997, the parties consented to the exercise of jurisdiction by this Court concerning the Second Application. On July 21, 1997, an evidentiary hearing was held on the preliminary relief requested in the Second Application.


 I. Background

 Mr. MacDonald wishes to hold another rally addressing drug policy reform, specifically the legalization of marijuana, in a public park controlled by the Park District. *fn4"

 One year ago, in August of 1996, the Park District issued two permits to Mr. MacDonald to hold similar events. After those events -- the "Festival of Life" and the "Yippie! Festival of Life" -- the Park District's Deputy General Counsel, Joan Fencik, *fn5" mailed Mr. MacDonald written notice that his security deposit would not be returned. That letter, dated September 17, 1996, stated that the Park District was retaining Mr. MacDonald's security deposit due to expenses incurred by the Park District for: delivery and use of portable toilets; opening and cleaning the underground bathrooms at Butler Field; cleaning the stage and seating area at Butler Field (adjacent to Petrillo Bandshell) after the events; and restoring that seating area to its usual configuration. Ms. Fencik's letter also stated that, at the events, multiple violations of the permits' terms occurred, including: alcohol consumption; unpermitted vendors; unpermitted vehicles; unpermitted tents and canopies; improper location of the generator, in violation of the fire code; and loitering by individuals who remained in the park past 11:00 p.m. No hearing was held prior to these determinations, nor was Mr. MacDonald ever found guilty of violating any ordinance. The Park District never sought to impose any fine against Mr. MacDonald (other than the forfeiture of his security deposit) for the alleged multiple violations of the terms of the permit.

 On March 4, 1997, Mr. MacDonald applied to the Park District for a permit to hold "Hempfest/Stop the Drug War Rally and March" on May 10 and 11, 1997 (from noon until 10:00 p.m. each day). Mr. MacDonald sought to hold the rally at Butler Field, in Grant Park's Petrillo Bandshell. The purposes of the rally were, again, to provide a forum for public speech on drug policy reform, including the legalization of marijuana, and to raise money for this cause. The rally was expected to draw approximately 10,000 people and would have featured live music, as well as vendors occupying about fifty tents.

 Although his First Application was not granted, Mr. MacDonald held a rally, on May 10 and 11, 1997. (Tr. at 10-11.) During the rally, the Park District cooperated with Mr. MacDonald, and assisted him by opening up bathrooms, bringing in garbage cans, "allowing him to have a bullhorn", and allowing sound amplification (through portable speakers attached to poles). (Tr. at 11-12.) No trespassing or other complaint was made against Mr. MacDonald for this event.

 On May 23, 1997, Mr. MacDonald filed the Second Application, which is currently before the Court, seeking an order compelling the Park District to issue a permit to hold a rally at Butler Field on August 23 and 24, 1997 (in supporting memoranda, Mr. MacDonald also seeks to enjoin Chapter VII, § C(3) of the Ordinance and to compel the Park District to also allow a rally on May 9 and 10, 1998). He has not submitted a permit application for either rally.

 The Grant Park Symphony Orchestra and Chorus is scheduled to perform at Butler Field, in Petrillo Bandshell, on the evenings of August 23 and 24, 1997. (Stipulation of Facts, para. 4.) There is a rehearsal of the Orchestra scheduled from 11:30 a.m. until 2:00 p.m. on August 23, 1997. (Id.) Testimony from Ms. Fencik supports a finding that prior unrelated events in Butler Field have in the past disrupted the symphony.

 II. Permit Scheme

 The Park District requires a group of more than fifty people that desires to assemble, or anyone who wishes to use amplified sound other than for his/her own personal enjoyment, to obtain a permit for use of the public park. An application for a permit must be submitted between ten to sixty days in advance of the event, depending on whether the event is a "picnic", an "athletic event", or a "festival."

 The Park District is supposed to make a decision regarding the permit application within fourteen days. However, it can extend the decision-making period for an additional fourteen days. The Park District need not provide any reason for such an extension (Tr. at 63.)

 Permit fees and application deadlines are broken down by category, according to the schedule of fees. There are slightly conflicting descriptions on each of the fee schedules submitted into evidence. (Def.'s Ex. 4; Pl.'s Supp. Mem. at Ex. A.). Group weddings and picnics involving 50 people or more pay a $ 10 application fee, a user fee of $ 50 per 250 attendees, a security deposit of $ 100 per 250 attendees, and are required to have a $ 1 million certificate of insurance. The group picnic and wedding application (and the application fee, user fee, security deposit, and insurance certificate) are due no less than 14 days before the event. Athletic events -- races and corporate-sponsored tournaments that do not include vendors, stage, amplified sound *fn7" or alcohol -- pay a $ 53 application fee, a $ 1,050 user fee, a $ 1,575 security deposit, and are required to have a $ 1 million certificate of insurance. The athletic event application and application fee are due no less than 45 days before the event. Corporate Festivals with one stage, one source of amplified sound, less than 10,000 square feet of tents, (no corporate giveaways/sampling/signage, alcohol or rides allowed) pay a $ 105 application fee, a $ 525 per day user fee, a security deposit of $ 1,050 and are required to have a $ 1 million certificate of insurance. Corporate festivals with one stage, one source of amplified sound, up to 25,000 square feet for tents, (alcohol, corporate sponsorship, and signage are okay) pay a $ 105 application fee, a $ 4,200 per day user fee, a $ 1,575 security deposit, and are required to have a $ 2 million certificate of insurance. Similar corporate festivals with multiple stages or sources of amplified sound pay a $ 105 application fee, a $ 8,400 per day user fee, a $ 1,575 security deposit, and are required to have a $ 2 million certificate of insurance. All applications and application fees for corporate festival permits are due no less than 60 days before the event.

 Media permits for non-news, live or delayed broadcasts, pay a $ 26 application fee, a $ 105 user fee, a $ 105 security deposit and are required to have a $ 1 million certificate of insurance. Commercial/Movie/video permit seekers pay a $ 105 application fee, a $ 750 per day user fee, a security deposit of $ 1,050 and are required to have a $ 1 million certificate of insurance. Still photographers pay a $ 26 application fee, a $ 105 per day user fee, a $ 105 security deposit, and are required to have a $ 1 million certificate of insurance. All materials and fees for these media permits are due no less than 10 days before the event.

 All applications must be accompanied by an application fee. The application fee is supposed to cover costs relating to checking whether park space if available and appropriate for the desired event, coordination and meetings with other agencies, such as the Department of Streets and Sanitation, and police, and notification to park staff -- landscapers and security -- about the event. (Tr. at 17-20.) However, Ms. Fencik admitted that, if an individual with a bullhorn walks around a park to convey his message, the Park District would not incur any significant administrative costs. (Tr. at 79.) It also does not cost the Park District anything if people just show up and hang out in the park -- its part of "ordinary wear and tear on the parks. . . We just empty their garbage, put toilet paper in the bathrooms." (Tr. at 79-80.)

 The user fee, which is in addition to the application fee, includes costs for wear and tear, "coordination, clean up, landfilling, waste, [and] additional security." (Tr. at 21.) "The Park District has its own security force." (Id.) The security personnel are "off-duty police officers." (Tr. at 74.)

 Apparently, not content with an application fee and a user fee, the Park District also requires applicants to purchase liability insurance of at least one million dollars. Anyone using artificially amplified sound or having more than fifty people in attendance must get a million dollars worth of insurance. (Tr. at 78.)

 Finally, the Park District requires applicants to post a security deposit as an "incentive" to clean the park when the permittee is finished. (Tr. at 79.) The security does not relate to any particular cost, rather it is "an amount that was set that would give people an incentive to clean up after themselves and put things back." (Tr. at 79.)

 Notwithstanding its seemingly stringent permit scheme, the Park District sometimes allows more than fifty people to assemble, with artificial amplification of sounds, in the absence of a permit. These permitless events, though not recognized/exempted under the Ordinance, occur when there is a "spontaneous" demonstration, (Tr. at 36), or a Park District sponsored or City sponsored event. The Park District, apparently, simply determines whether to allow spontaneous events to occur "depending on what people are doing." (Tr. at 65.) For example,

there was [a spontaneous demonstration] about a month or so ago. I think people marched from three public housing sites . . . and then spilled over into Grant Park. They were like kiddy-corner from the bandshell. They had bullhorns and were making speeches. It happened to be right around noon, which was when the Grant Park Symphony was rehearsing. You know, we did nothing to stop the rally, and so we had to stop the rehearsal because . . . the musicians couldn't hear.

 (Tr. at 36.) Ms. Fencik testified that the Park District waived the permit requirement, although bullhorns require a permit and "they should have had a permit for a gathering of that size. . . ." (Tr. at 53; 80.) Thus, despite the fact that "hundreds" of people showed up spontaneously, the Park District "did not do anything about it." (Tr. at 53.)

 Similarly, even though Mr. MacDonald's rally had no permit for the May 10 and 11, 1997 rally, the Park District "told him" he could use a bullhorn anyway. (Tr. at 9-11; 54.) The Park District also allowed Mr. MacDonald to use other means of sound amplification, including "speakers on a stick." (Tr. at 12.) In summary, sometimes the Park District ignores its own requirements -- "we try to work with people" -- and sometimes it does not. (Tr. at 54.) Nonetheless, to the Park District's knowledge, no one has ever been arrested for having an event in Grant Park without a permit. (Tr. at 55.)

 With respect to the only written waiver provision contained in the Ordinance, the Park District waives the user fee, the security deposit, and/or the insurance requirement if the permit is sought for activity "protected" by the First Amendment and the applicant is unable to pay. Although the Park District "broadly" interprets the Ordinance's language -- "protected by the First Amendment of the United State Constitution" -- Ms. Fencik could provide no specific definition of what activities are covered. Basically, the Park District knows it when they see it, and waiver of fees and costs, therefore, "depends [on] what people are asking for." (Tr. at 28-29.)

 Permits may be denied for any number of reasons, including, but not limited to, an applicant's: prior "material misrepresentations" about a permitted event; violations of a prior permit; incomplete application; "material falsehoods" on the application; and prior damage to Park District property. However, the Park District does not always deny a permit, even if one or more of the enumerated bases for denial are met. The Park District had difficulty articulating how it determines whether or not to deny a permit, "it's not like a mathematical formula or something." (Tr. at 82.) Moreover, the Ordinance is silent on the issue of how long a person can be disqualified from getting another permit, based upon previous violations. The ban on speech and assembly conceivably could last a lifetime. (Tr. at 86.)


 I. Standing

 Before determining the Ordinance's constitutionality, the Court initially must address Mr. MacDonald's standing to raise these challenges.

 Despite the fact that Mr. MacDonald did not apply for a permit for the August 23 and 24, 1997 rally (or for May of 1998), he has standing, as do all other interested persons, to make facial challenges to the Ordinance. A prior restraint on expression, such as a permitting scheme, may be challenged facially by anyone, without the requirement that the permit be applied for or denied first. See Stokes v. City of Madison, 930 F.2d 1163, 1168 (7th Cir. 1991). Mr. MacDonald does not have standing to raise any "as applied" challenges to the Ordinance, however, nor does he claim any such standing for preliminary relief herein. Nonetheless, Mr. MacDonald's experiences with the Park District's permit system does shed light on the manner in which the Park District interprets and applies the Ordinance -- a factor the Court must consider. Ward v. Rock Against Racism, 491 U.S. 781, 795-96, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989).

 II. Preliminary Injunction

 A. Preliminary Injunction Standard

 To prevail on a motion for a preliminary injunction, the movant must initially clear a threshold requirement by showing that: (1) the case has a reasonable likelihood of success on the merits; and (2) there exists no adequate remedy at law and the movant will suffer irreparable harm if the preliminary injunction is not granted. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir. 1996); see also Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 313-14 (7th Cir. 1994). If these conditions are met, the initial threshold has been cleared and the court must next: (3) balance the irreparable harm to the movant if the injunction is denied, against the harm to the non-movant if it is issued improvidently; and (4) after weighing the interests of the parties, additionally consider the public interest (i.e. non-parties) consequences of either a grant or denial of the injunction. Mil-Mar, 75 F.3d at 1156; see also Storck, 14 F.3d at 314.

 B. Application

 1. Likelihood of Success on the Merits

 In determining the likelihood of success on the merits, the court must at least find that the petitioner's chances are "better than negligible." Kinney v. International Union of Operating Eng'rs, Local 150, 994 F.2d 1271, 1278 (7th Cir. 1993).

 The First Amendment to the United States Constitution proclaims that "Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble . . . ." The Fourteenth Amendment makes the First Amendment applicable to the States, Gitlow v. New York, 268 U.S. 652, 69 L. Ed. 1138, 45 S. Ct. 625 (1925), and their political subdivisions, Lovell v. City of Griffin, Ga., 303 U.S. 444, 82 L. Ed. 949, 58 S. Ct. 666 (1938). "The freedom of speech . . . which [is] secured by the First Amendment against abridgement by the United States, [is] among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgement by a state." Thornhill v. Alabama, 310 U.S. 88, 95, 84 L. Ed. 1093, 60 S. Ct. 736 (1940).

 It is against this backdrop, that Mr. MacDonald's likelihood of success on the merits, for each particular challenge to the Ordinance, is examined. The Court finds that he has a strong likelihood of success, because the Park District's permitting scheme is a prior ...

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