United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
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.
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.
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
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).
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.
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.
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.
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)).
Commercial or noncommercial speech
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