"newspaper" is unconstitutionally vague. The Court disagrees. An
ordinance is unconstitutionally vague if 1) it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct
is prohibited; and 2)it permits or promotes arbitrary and discriminatory
enforcement. Hill v. Colorado, 503 U.S. 703, 732 (2000).
Plaintiff contends that publications such as Newsweek, which can not be
neatly labeled a book or a newspaper, highlight the vagueness of the
ordinance. However, "it is clear what the ordinance as a whole prohibits
. . . [and] speculation about possible vagueness in hypothetical
situations not before the Court will not support a facial attack on a
statute when it is surely valid `in the vast majority of its intended
applications'" Id. at 733. (quoting United States v. Raines, 362 U.S. 17,
The Court finds that a person of ordinary intelligence understands the
term "newspaper"*fn8 and that the exclusion of newspapers from the ban
on peddling merchandise affords such persons a reasonable opportunity to
understand what conduct is prohibited. In addition, the exclusion of
newspapers from the ban on peddling merchandise does not encourage or
authorize arbitrary or discriminatory enforcement. The exemption of
newspapers from the peddlers' ordinance does not render the ordinance
The Plaintiff's Motion for Summary Judgment on the issue of the
constitutionality of the peddlers' ordinance is denied. Summary Judgment
is instead granted in favor of Defendant.
III. The Licensing Procedures Under Chapter Four of the City's Municipal
Code Do Not Violate the First Amendment.
Plaintiff next challenges the City's peddlers' licensing ordinance as
an unconstitutional prior restraint, claiming that the ordinance vests
the City with unfettered discretion to decide whether to grant or deny
peddlers a permit to sell their merchandise in the City of Chicago, in
violation of the First Amendment. At the outset, the Court notes that
neither party has presented the Court with substantial argument or
research on this issue. Inexplicably, neither party found it necessary to
address whether there is a sufficient nexus between the licensing scheme
and protected expression, challenge or assert standing, explain whether
the ordinance permits the licensing official to review the content of
items to be peddled, present evidence on the actual implementation of the
ordinance, or discuss the issue of redressability. While some of these
matters are readily disposed of, such as redressability*fn9, others
present complex legal and factual issues, which the Court must address
without the benefit of the parties' briefing.
Plaintiff admits that he neither applied for nor was denied a permit to
peddle, but claims that a facial challenge to the peddlers' ordinance is
warranted because the ordinance unconstitutionally vests in City
officials unfettered discretion to grant or deny peddling permits. FW/PBS
Inc. v. City of Dallas, 493 U.S. 215, 223 (1990) ("Although facial
challenges to legislation are generally disfavored, they have been
permitted in the First Amendment context where the licensing scheme vests
unbridled discretion in the decisionmaker and where the regulation is
challenged as overbroad.") A person need not subject himself to the
requirements of an ordinance if the ordinance, on its face, vests
unbridled discretion in a government official over whether to permit or
deny expressive activity. City of Lakewood v. Plain Dealer Publ'g Co.,
486 U.S. 750, 755-56 (1988). "The success of a facial challenge on the
grounds that an ordinance delegates overly broad discretion to the
decisionmaker rests not on whether the administrator has exercised his
discretion in a content-based manner, but whether there is anything in
the ordinance preventing him from doing so." Forsyth County, Ga. v.
Nationalist Movement, 505 U.S. 123, 133 (1992).
Courts permit plaintiffs to challenge licensing schemes granting
officials unfettered discretion, not because discretion, in and of
itself, is unconstitutional, but because such schemes frequently carry
the risk of self-censorship and confer upon corrupt public officials the
ability to conceal their illegitimate abuse of power by censoring
protected expression. City of Lakewood, 486 U.S. at 759; see also Forsyth
County, 505 U.S. at 131 (holding ordinance unconstitutional where it
permitted county official to examine the content of the applicant's
message and to correspondingly vary fees for assemblies to reflect the
cost of maintaining public order with respect to the particular message).
It necessarily follows, therefore, that not every licensing scheme that
vests a decisionmaker with unbridled discretion is subject to a facial
attack. City of Lakewood, 486 U.S. at 759. Rather, the licensing scheme
must also have a "close enough nexus to expression or expressive conduct
to give rise to a substantial threat of undetectable censorship" Id.
Therefore, the Court must determine both whether the peddlers'
licensing ordinance vests City officials with unfettered discretion and
whether the ordinance has a close nexus to expression.
A. The Ordinance Vests the Licensing Official With Unfettered
Plaintiff convincingly argues that the Chicago peddlers' licensing
ordinance vests City officials with unfettered discretion to grant or
deny peddling licenses. The ordinance is devoid of any criteria to guide
licensing officials in reviewing license applications, providing only