The opinion of the court was delivered by: Castillo, District Judge.
MEMORANDUM OPINION AND ORDER
The South/Southwest Association of Realtors, Inc. ("the
Association"), seeks a preliminary injunction against enforcement
of Evergreen Park's ordinance against residential solicitation.
The Association argues that the ordinance violates realtors'
First Amendment commercial speech rights by prohibiting all
solicitation of owners and occupants of residential real estate
at their residence if the owner or occupant has filed a
non-solicitation notice and the realtor has received the notice.
After careful scrutiny of the ordinance in light of case
precedents, we conclude that the Association is not entitled to a
Article VI of Evergreen Park's municipal code is entitled
"Non-Solicitation." (R. 2, Mot. for Prelim. Inj. Ex. 1, Evergreen
Park Municipal Code Article VI ("Ordinance").) Section 16-181
(Ordinance Art. VI § 16-181.) The Ordinance defines "solicit" as
any communication with any owner or occupant of
residential real estate which is carried out by means
of (1) in-person contacts at the real estate; or (2)
written material mailed or delivered at the real
estate, such as direct mail, leaflets or pamphlets;
or (3) telephonic contacts at the real estate; or (4)
electronic mail or other communications transmitted
through telephone lines such as facsimile
transmissions and e-mail.
(Ordinance Art. VI § 16-180(e).)*fn1 Finally, § 16-182 details
the notice procedures: "Upon the request of any owner or occupant
of residential real estate, the Village Clerk shall prepare a
non-solicitation notice advising that solicitation at a specific
residential real estate is prohibited." Section 16-182 provides
for notice by certified, return-receipt mail.
PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is "an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion." Mazurek v.
Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162
(1997) (quotation omitted). To succeed on its motion the
Association must first show a likelihood of success on the
merits, irreparable harm if the preliminary injunction is denied,
and the inadequacy of its remedies at law. Cooper v. Salazar,
196 F.3d 809, 813 (7th Cir. 1999); Boucher v. School Bd. of the
Sch. Dist. of Greenfield, 134 F.3d 821, 823-24 (7th Cir. 1998).
Should the Association make this threshold showing, we must then
balance the harm to the Association if the injunction is
wrongfully denied against the harm to the Village if it is
wrongfully granted, and weigh the public's interest in the
matter. Cooper, 196 F.3d at 813.
A. The Likelihood of Success on the Association's First
To determine the Association's likelihood of success in its
quest for invalidation of Evergreen Park's anti-solicitation
ordinance, we apply the four-part test enunciated in Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557,
566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), for restrictions on
commercial speech. We ask (1) whether the speech concerns lawful
activity and is not misleading; (2) whether the government's
asserted interest is substantial; (3) whether the ordinance
directly advances that asserted interest; and (4) whether the
ordinance is not more extensive than necessary to serve that
interest. Id.; see also Lavey v. City of Two Rivers,
171 F.3d 1110, 1113-14 (7th Cir. 1999); Pearson v. Edgar, 153 F.3d 397,
401 (7th Cir. 1998).
Here, the Association easily satisfies the first two parts of
the Central Hudson test. There is no question that the
restricted speech is protected by the First Amendment because it
is lawful, non-misleading commercial speech. See Lavey, 171
F.3d at 1113 ("[O]nly speech that is truthful and not misleading
receives First Amendment protection."). Additionally, Evergreen
Park's asserted interest in protecting residential privacy is
substantial. See Pearson, 153 F.3d at 405 ("[R]esidential
privacy is unquestionably a very substantial interest.").
Thus, this case turns on the last two parts of this test, which
"examine the fit between the restriction on speech and the
government's justification for that restriction." Id. at 401.
In the context of commercial
speech, the Supreme Court requires "a `fit' between the
legislature's ends and the means chosen to accomplish those ends
— a fit that is not necessarily perfect, but reasonable." City
of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 n.
12, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (quotation omitted).
Consequently, we must determine whether the Association has a
"better than negligible chance," Boucher, 134 F.3d ...