On Monday, the Seventh Circuit Court of Appeals determined that Chicago’s ban on the peddling of merchandise on sidewalks adjacent to Wrigley Field was a constitutional time, place, and manner regulation that survived intermediate scrutiny. The ordinance was challenged by Left Field Media, which publishes a magazine called Chicago Baseball and sells copies outside of Wrigley Field before Chicago Cubs home games. Chicago’s “Adjacent Sidewalks Ordinance” prohibits peddling merchandise on any sidewalk adjacent to Wrigley Field, for the purpose of allowing safe pedestrian passage. Because the Adjacent Sidewalks Ordinance prohibited the sale of all merchandise—“[t]he ordinance applies as much to sales of bobblehead dolls and baseball jerseys as it does to the sale of printed matter”—the appeals court found that the ordinance was content neutral in light of Reed v. Town of Gilbert. The appeals court’s decision upholds the prior denial by a federal district judge of the plaintiff’s motion for a preliminary injunction.
The plaintiff also challenged Chicago’s peddling license ordinance, which establishes a general requirement that peddlers of merchandise obtain a license and then excepts the sale of newspapers from that requirement. In the course of its opinion, the Seventh Circuit advised that the district court should, in the context of considering a request for permanent injunction, determine whether the peddling license ordinance and its newspaper exception are content neutral, and whether the peddling license requirement as applied to a magazine distributor might be too significant of a burden on a small magazine distributor such as Left Field Media. According to Circuit Judge Easterbrook:
Chicago maintains that the Peddlers’–License Ordinance is different because it applies to all peddling, to peanuts and Cracker Jack as well as periodicals. But the pesky exception for newspapers means that this is not quite right, and the weakness of the justification for regulating individual peddlers [for tax collection and fraud prevention purposes] takes a further toll on this ordinance.
It therefore remains to be seen whether the peddling license requirement is constitutional, but for now it seems that the prohibition on hawking magazines around Wrigley Field has the judicial seal of approval. And the Cubs are in first place in their division to boot.
Left Field Media, LLC v. City of Chicago, ___ F.3d ___, 2016 WL 2956879 (7th Cir. May 23, 2016).