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RCP Publications Inc. v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

September 2, 2016

CITY OF CHICAGO, Defendants.


          MATTHEW F. KENNELLY United States District Judge.

         RCP Publications Inc. has sued the City of Chicago for violating its First Amendment rights and the rights of a class of those similarly situated. RCP contends that section 10-8-320 of the Chicago Municipal Code (entitled "Posting Bills") is an unconstitutional restriction on speech. The City has moved the Court to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the Court denies the City's motion.


         RCP Publications is a not-for-profit corporation based in Chicago that publishes a variety of materials related to political, economic, and social issues. In March 2015, RCP hosted on its website an online premiere of a movie called "Revolution and Religion: The Fight for Emancipation and the Role of Religion, " making the film available for free. A second organization, the BA Everywhere Committee, hosted an in-person premiere for the film. The complaint does not allege whether the in-person showing was free or whether, instead, there was a charge to see the film.

         BA Everywhere produced posters advertising both the online and in-person premieres of the film. According to RCP, BA Everywhere gave copies of the posters to its supporters to distribute how they wished. An unknown person taped a copy of the BA Everywhere poster to a street light pole at 5701 S. Kimbark Avenue in Chicago, allegedly without RCP's knowledge. On July 14, 2015, RCP received official notice that it had violated ordinance section 10-8-320 of the Chicago Municipal Code, which involves the posting of "commercial advertising material." The ordinance provides:

No person shall distribute or cause others to distribute, as defined in Section 10-8-325, commercial advertising material by means of posting, sticking, stamping, tacking, painting or otherwise fixing any sign, notice, placard, bill, card, poster, advertisement or other device calculated to attract the attention of the public, to or upon any sidewalk, crosswalk, curb or curbstone, flagstone or any other portion or part of any public way, lamppost, electric light, traffic light, telegraph, telephone or trolley line pole, hydrant, shade tree or tree-box, or up on the piers, columns, trusses, girders, railings, gates or parts of any public bridge or viaduct, or upon any pole box or fixture of the police and fire communications system . . ., or on any bus shelter, except that the city may allow the posting of decorative banners in accordance with Section 10-8-340 below.

Chi. Mun. Code § 10-8-320(a). The ordinance does not define "commercial advertising material." It establishes a rebuttable presumption that anyone whose goods, services, or activites are promoted in the commercial advertising matter caused it to be distributed. Id. § 10-8-320(b). It provides for a fine up to $1, 000 for each offense. Id. § 10-8-320(c).

         RCP contested the ticket. On November 16, 2015, the administrative law judge handling the matter found that RCP liable had violated the ordinance and imposed a fine of $350 plus $40 in fees.

         One month later, RCP filed the present lawsuit. RCP contends that section 10-8- 320 violates its First Amendment rights and those of all persons who have been ticketed or fined under the ordinance. RCP argues that the ordinance is an unconstitutional content-based restriction because it regulates speech based on the topic discussed, specifically, it restricts "commercial" signs but not others. According to RCP, there is no compelling government interest served by the restriction.

         The City has moved to dismiss, arguing that the ordinance does not violate the First Amendment and that RCP has failed to state a plausible claim. The Court denies the City's motion for the reasons stated below.


         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although "the degree of specificity required is not easily quantified . . . the plaintiff must give enough details about the subject-matter of the case to present a story that holds together." McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). The Court "accept[s] as true all well-pleaded facts in the complaint, and draw[s] all reasonable inferences in favor of the plaintiff." Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)).

         A. Commercial or noncommercial speech

         The First Amendment prohibits the government from "abridging the freedom of speech." U.S. Const. amend. I. Certain categories of speech-like commercial speech-receive a lesser degree of protection. See Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 515 (7th Cir. 2014). "[C]ommercial speech is constitutionally protected but governmental burdens on this category of speech are scrutinized more leniently than burdens on fully protected ...

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