Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division. No. 97 C 2963 Arlander Keys, Magistrate Judge.
Before CUMMINGS, KANNE, and ROVNER, Circuit Judges.
DECIDED DECEMBER 12, 1997
The Chicago Park District appeals from a preliminary injunction entered by the district court on August 15, 1997. After Robert MacDonald advanced a facial challenge to those provisions of the Park District Code that require a permit for certain types of events in Chicago's parks, the district court preliminarily enjoined the Park District from applying or enforcing portions of its Code. Among the provisions enjoined are those regulating the denial of permit applications and those requiring applicant-users to submit application fees, user fees, security deposits, and proof of insurance. The district court found that a facial challenge to the Code is appropriate in these circumstances because the provisions at issue amount to a prior restraint on speech, and because they accord Park District officials virtually unfettered discretion in deciding to grant or deny a permit and in setting the amount of fees. See MacDonald v. Chicago Park Dist., 976 F. Supp. 1125, No. 97 C 2963, 1997 WL 472124 (N.D. Ill. Aug. 15, 1997). The injunction's effect is to prevent the Park District from denying permit applications on designated grounds until MacDonald's suit is resolved, and from requiring fees, a security deposit, and liability insurance from applicant-users. The Park District tells us that as a result of the injunction, it will lose thousands of dollars in fees that cannot be recouped should it ultimately prevail, and that it also will lose the ability in the interim to regulate the use of Chicago's parks for the benefit of all. On the Park District's motion, we stayed enforcement of the preliminary injunction and expedited consideration of the Park District's appeal. For the reasons set forth below, we find that the district court abused its discretion in entering such a broad proscriptive order. As a result, we now vacate the injunction.
Although MacDonald makes a facial challenge to the Park District Code, his interest in doing so relates to his desire to hold further rallies in Grant Park (particularly in Butler Field adjacent to the Petrillo Bandshell) in order to advocate drug policy reform, including the legalization of marijuana. MacDonald's proposed rallies would include approximately 10,000 attendees per day, live music, vendors, tents, and amplified sound. MacDonald staged two such rallies in August 1996 after obtaining permits from the Park District.*fn1 Yet when he applied for a further permit to hold a similar rally in May of the following year, the Park District denied his application, citing various violations of the two earlier permits. The Park District Code authorizes the denial of a permit if the applicant "has violated the terms of prior permits issued to or on behalf of the applicant." Park District Code sec. C(5)(e). Although the Park District denied MacDonald's permit application and the district court refused his request for a preliminary injunction addressed to that denial, the Park District permitted MacDonald to hold his rally on May 10-11, 1997. The Park District also assisted MacDonald by opening bathrooms, providing garbage cans, and allowing MacDonald to use portable speakers to amplify sound.
The preliminary injunction at issue in this appeal relates to MacDonald's desire to hold a similar rally in August 1997, and again in May 1998. Fearing that the Park District would deny permit applications based on the earlier violations, MacDonald did not request permits for those rallies. He instead advanced a facial challenge to the Park District's permit procedure, arguing that portions of the Park District Code are facially invalid because they violate the First Amendment. In granting MacDonald's renewed request for a preliminary injunction based on that claim, the court ordered the Park District to allow the August rally, and MacDonald staged that rally in Grant Park on August 23-24, 1997.*fn2
Four factors are relevant to whether a preliminary injunction should issue: (1) the plaintiff's likelihood of prevailing on the merits of his claim; (2) whether the plaintiff would suffer irreparable harm absent an injunction in that he would have an inadequate remedy at law; (3) the harm to the defendant if the injunction were granted as balanced against the harm to the plaintiff if it were not; and (4) the public interest, or the effect that granting or denying the injunction would have on third parties. Meridian Mutual Ins. Co. v. Meridian Ins. Group, Inc., No. 97-1963, slip op. at 4, 1997 WL 685521 (7th Cir. Oct. 29, 1997); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1067 (7th Cir. 1994). Before the final two factors come into play, the plaintiff must establish a likelihood of success and irreparable harm. Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287, 1291 (7th Cir. 1996), cert. denied, 117 S. Ct. 1822 (1997). Yet once the plaintiff has done so, the court must balance the harm to the defendant if the injunction issues against the harm to the plaintiff if it does not, and must also consider where the public's interest lies. Even if the suit may look to have some merit, an injunction should not necessarily issue if the harm that it would work to the defendant substantially outweighs the harm to the plaintiff without the injunction. See Ayres v. City of Chicago, 125 F.3d 1010, 1012 (7th Cir. 1997) ("The balance between the harm to the plaintiff if injunctive relief is denied and the harm to the defendant if it is granted is a critical consideration in deciding whether to grant a preliminary injunction."); see also Curtis 1000, Inc. v. Suess, 24 F.3d 941, 945 (7th Cir. 1994); American Hosp. Supply Corp. v. Hospital Prod. Ltd., 780 F.2d 589, 593 (7th Cir. 1986). When the balance of harms tips so strongly in the defendant's favor, a stronger showing of likely success is required. McKenzie v. City of Chicago, 118 F.3d 552, 557 (7th Cir. 1997); Vencor, Inc. v. Webb, 33 F.3d 840, 845 (7th Cir. 1994).
We review the district court's weighing of the relevant factors for an abuse of discretion (Meridian Mutual Ins., No. 97-1963, slip op. at 4; Ayres, 125 F.3d at 1013), but the lower court would necessarily abuse its discretion by making an error of law. Koon v. United States, 116 S. Ct. 2035, 2047 (1996); Vencor, 33 F.3d at 844. We emphasize, moreover, that the decision to grant or to deny a preliminary injunction "is not a decision on the merits of the plaintiff's suit." Ayres, 125 F.3d at 1013.
Rather than first assessing the likely merit of MacDonald's various claims, as is our usual practice when reviewing a preliminary injunction, we shall begin with the relative harms to the parties. See McKenzie, 118 F.3d at 555-56. The district court was no doubt correct in recognizing that the loss of the First Amendment right to speak and associate, even for a short period of time, will necessarily give rise to an irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373 (1976). To the extent, then, that MacDonald's First Amendment rights would be compromised by the enforcement of the Code's permit provisions, an award of money damages would not fully compensate him for that injury.
But that leads us to ask whether MacDonald's First Amendment rights have been compromised or whether they are likely to be compromised during the pendency of this case? We are not so sure, because despite its earlier denial of MacDonald's permit application, the Park District has never prevented MacDonald from staging a rally on its property. After the district court denied MacDonald's request for a preliminary injunction addressed to the May 1997 rally, the Park District allowed the rally to go forward and even assisted MacDonald in a variety of ways. The Park District's willingness to allow MacDonald to conduct that rally without a permit is consistent with its practice of allowing "spontaneous" First Amendment rallies and demonstrations to go forward despite the failure of the event's organizers to obtain a Park District permit. Indeed, there is nothing in the record to indicate that the Park District has ever intervened to stop a First Amendment rally in one of its parks due to the absence of a permit. The Park District's counsel told us at oral argument that once his client becomes aware of an unauthorized event, the most that it will do is to monitor the event for potential safety concerns and attempt to move the event to another location if necessary to prevent interference with other scheduled events. Thus, regardless of the validity or invalidity of the Park District's permit procedure, there is no indication that the procedure has ever resulted in the suppression of protected speech.*fn3 In this case, moreover, because MacDonald was allowed to hold his August 1997 rally, it seems to us very unlikely that any of MacDonald's First Amendment rights will be infringed prior to the final resolution of his facial challenge. And to the extent that any harm may become imminent (e.g., if the Park District should deny MacDonald a permit for his May 1998 rally and attempt to prevent that rally from occurring), he could apply to the district court for more limited relief addressed to that particular harm. At present, however, any harm to MacDonald appears to be minimal and seems to us insufficient to justify a broad injunction against the general application and enforcement of the challenged sections of the Code.*fn4
Against what we perceive to be the limited harm to MacDonald from the denial of a preliminary injunction, we must balance the harm to the Park District that will result from the injunction entered below. The district court found that the only harm to the Park District would be "administrative headaches," cleanup costs, and "ordinary wear and tear on the parks." (R. 36 at 44 & 47.) The court therefore required MacDonald to post a nominal bond of $100, finding that "Mr. MacDonald has limited financial resources, and his organization is an unincorporated association with no assets." (R. 36 at 46-47.) See Fed. R. Civ. P. 65(c) (party granted preliminary injunction must give security in an amount deemed sufficient by the court "for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained."). Before this court, the Park District takes strong exception to the lower court's characterization of the harm it will endure, and we think the Park District's point is a valid one.
By characterizing the harm to the Park District as almost negligible, it appears that the district court was addressing only the harm of allowing MacDonald's August 1997 rally to go forward. But that certainly is not the only effect of the injunction the court entered, for as we said, the injunction prohibits further enforcement of the enjoined provisions as to any permit application addressed to "First Amendment activities," not simply to MacDonald's permit applications. Thus, the injunction potentially prohibits the Park District from collecting any application and user fees during the pendency of the case. The record reveals that the application fees required under the Code range from $10 to $105 per event, while user fees range from $50 to $8,400, depending on the size and type of event. We also were told at argument that the Park District receives thousands of permit applications each year. Absent the injunction, then, the Park District would take in a sizeable sum in application and user fees while MacDonald's case is litigated in the district court. If it were unable to collect those fees due to the injunction, the fees could not be recouped if the Park District were ultimately to prevail. And MacDonald would not be good for the lost fees himself because the district court required a bond of only $100 after emphasizing MacDonald's limited ...