United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
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.
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. 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
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."
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.
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."
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
Motion to exclude
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.
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.
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.
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.
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
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.
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.").
these reasons, the Court denies RCP's request to bar the
City's expert witnesses.
Motions for summary judgment
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.
Regulation of commercial speech