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RCP Publications Inc. v. City of Chicago

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

March 31, 2018

RCP PUBLICATIONS INC., Plaintiff,
v.
CITY OF CHICAGO, Defendant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY United States District Judge.

         Employees of the City of Chicago issued RCP Publications Inc. a ticket for a sign advertising a movie screening that was affixed to a city-owned streetlight pole. Posting "commercial advertising material" to City property is a violation of section 10-8-320 of the Chicago Municipal Code. RCP contends that section 10-8-320 is an unconstitutional restriction on speech, void for vagueness, and overbroad. Both RCP and the City of Chicago have moved for summary judgment. RCP has also moved to exclude the City's expert witnesses.

         Background

         RCP publishes and distributes a variety of pamphlets, movies, books, posters, and other materials containing political messages. It also operates a website that makes books, newspapers, and DVDs available for purchase. In July 2014, a poster that promoted a film, "Revolution and Religion: The Fight for Emancipation and the Role of Religion" was affixed to a streetlight pole.[1] RCP made the advertised film available for download or purchase on its website and sold tickets for a screening of the film. The parties dispute whether RCP sponsored the screening. On July 14, 2015, RCP received notice that a poster attached to a City streetlight pole may have violated section 10-8-320 of the Chicago Municipal Code, which the Court will refer to as the sign ordinance. The sign ordinance states:

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 upon 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, except such as may be required by the laws of the state and the ordinances of the city, 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) (for ease of reference, the Court will refer generally to the extensive list of municipal property cited in the ordinance as "City property"). The sign ordinance does not define "commercial advertising material." Before the Chicago City Council amended the ordinance in 2007, the ordinance's ban on signs was not limited to "commercial advertising material."

         At a hearing on October 15, 2015, an Administrative Law Judge (ALJ) found that RCP owned the offending poster. At a subsequent hearing, the ALJ held that RCP was liable for violating section 10-8-320(a) on the ground that the poster contained a commercial message. RCP had the option to appeal the ALJ's decision, but it did not do so. Since receiving the citation, RCP has continued to publish its materials, which include posters, and it has not tried to warn others not to post its materials.

         RCP alleges that the sign ordinance's regulation of speech violates the First Amendment. In September 2016, the Court denied the City's motion to dismiss RCP's complaint. RCP Publ'ns, Inc. v. City of Chicago, 204 F.Supp.3d 1012 (N.D. Ill. 2016). In January 2017, RCP filed an amended complaint on behalf of a putative class. In May 2017, the Court certified, without objection by the City, a plaintiff class consisting of "all persons who have been ticketed since December 21, 2013, under Municipal Code of Chicago § 10-8-320."

         Discussion

         Both sides have moved for summary judgment. The City supports its motion with reports from expert witnesses. The Court first reviews RCP's motion to exclude the City's expert witnesses and then considers the parties' motions for summary judgment.

         I. Motion to exclude

         Federal Rule of Evidence 702 governs the admission of opinion testimony by expert witnesses. Rule 702 requires a district court "to determine (1) whether the expert would testify to valid scientific knowledge, and (2) whether that testimony would assist the trier of fact with a fact at issue." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (citation omitted). RCP argues that the City's expert witnesses, Michael Kuzel and Sam Karow, should be excluded on the ground that neither offers testimony that would be helpful to a factfinder.

         A. Michael Kuzel

         Kuzel is an expert in the study of "human factors, " which is the study of how products, tasks, and environments may be created to meet the needs of human users in a system. D.E. 69, Pl.'s Ex. 18 at 1 (Kuzel Expert Rep.). Kuzel describes how advertisements are intended to capture the attention of persons who perceive them and therefore have an effect on those passing by the advertisement. Id. at 5. He opines that (1) posted signs can distract drivers, "leading to decrements in performance and erratic behaviors, " (2) the placement and number of signs may make it more difficult for drivers to detect hazards, and (3) the sign ordinance is "an appropriate response" to the hazards that advertising in the public way creates. Id. at 9.

         RCP's primary contention is that Kuzel's testimony is not relevant, because it concerns the traffic safety effects of all signs, not just the commercial signs affected by the sign ordinance. That does not make Kuzel's testimony irrelevant. The City has asserted an interest in reducing the adverse traffic safety effects of signs posted to City property, and there is evidence that commercial signs make up the largest proportion of such signs. Moreover, Kuzel also states that "[a]dvertisements have also been found to attract significantly more glances than other road signs, " which indicates that, at least in certain instances, he has compared the effects of different types of signs. Id. at 5.

         The Court also overrules RCP's other arguments for excluding Kuzel's opinions. RCP contends that Kuzel's testimony is irrelevant because it assumes that the alternative to the sign ordinance is unregulated posting on City property, rather than a newly-drafted ordinance with different sorts of restrictions, for example, on the number of postings. In addition, RCP argues that Kuzel's testimony should be excluded because it does not adequately take into consideration the facts of this litigation. These are not grounds to exclude Kuzel's testimony. Neither argument suggests that Kuzel's opinions are unhelpful, even if those opinions might not, in and of themselves, establish the validity of the sign ordinance. His opinions indisputably bear on the question of whether the ordinance advances the City's asserted interest in traffic safety.

         Finally, RCP contends that a factfinder does not need expert testimony to understand that drivers may be distracted by posted signs. This argument, however, is undercut by arguments RCP has advanced in its briefs. RCP argues that "the City has not offered a single instance of a posting (commercial or otherwise) on City property causing an accident or incident supporting the City's claim that [the ban] is necessary . . . to advance traffic safety." Pl.'s Reply in Supp. of Mot. for Summ. J. at 9. Kuzel's testimony, therefore, is helpful and properly admissible, for it provides information that bears on a point that RCP itself calls into question.

         B. Sam Karow

         RCP also contends that Sam Karow, the City's second expert witness, should be excluded. Karow is an expert in advertising and communications. D.E. 69, Pl.'s Ex. 19 at 2 (Karow Expert Rep.). His report describes how commercial advertisers wish to reach many viewers with their ads, how outdoor signs constitute a cheap and effective means of reaching views, and how "[r]evising or removing" the ordinance would produce an increase in the number of signs posted to City property. Karow opines that, because of the popularity, ease, and effectiveness of outdoor signs as advertising techniques, id. at 5-6, lifting the ordinance would produce a "massive proliferation" of posted signs on City property. Id. at 14.

         RCP contends that Karow's testimony should be excluded because it is assumes that, if the sign ordinance is found unconstitutional, the City would be unable to replace the ordinance with some other constitutionally appropriate restriction. RCP also argues that whether the sign ordinance ensures fewer commercial signs is irrelevant in determining the constitutionality of the current ordinance. The Court disagrees. The City's argument is that signs posted to City property burden its interests and that, by enforcing the sign ordinance, it has reduced the adverse effects of commercial signs, the single largest source of posted signs. Given this contention, Karow's expert testimony that the ordinance prevents a "massive proliferation" of signs is relevant to assessing the City's assertion that the ordinance assists in minimizing the adverse impact of commercial signs. See also Smith, 215 F.3d at 721 ("[U]nder Rule 702, expert testimony need only be relevant to an issue in the case; it need not relate directly to the ultimate issue.").

         For these reasons, the Court denies RCP's request to bar the City's expert witnesses.

         II. Motions for summary judgment

         The Court next turns to the parties' motions for summary judgment. The City contends that the sign ordinance is a permissible regulation of commercial speech. RCP argues the opposite and also contends that the sign ordinance is impermissibly vague and unconstitutionally overbroad. RCP asserts facial and as-applied challenges.

         A. Regulation of commercial speech

         1. The ...


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