In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1811
Caren Cronk Thomas and Windy City
Hemp Development Board,
Plaintiffs-Appellants,
v.
Chicago Park District,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 2963--George M. Marovich, Judge.
Argued April 19, 2000--Decided September 14, 2000
Before Posner, Coffey and Easterbrook, Circuit Judges.
Posner, Circuit Judge. Among the regulations of
the Chicago Park District governing the use of
its parks is one requiring that a permit be
obtained for an assembly, parade, demonstration,
sporting event, or other use of the park by a
group of 50 or more persons. Chi. Park Dist. Code
ch. VII sec. C. The regulation spells out the
criteria for the grant of such a permit, and the
procedures for obtaining it and for challenging
its denial, in considerable detail. The
plaintiffs, who want to use the park for rallies
in favor of repealing the laws criminalizing the
sale of marijuana, claim that the regulation
violates the free-speech clause of the First
Amendment "on its face," that is, without regard
to whether the regulation has been applied in
such a way as to infringe the right of free
speech. Forsyth County v. Nationalist Movement,
505 U.S. 123, 129-30 (1992); Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 755-59
(1988); North Avenue Novelties, Inc. v. City of
Chicago, 88 F.3d 441, 444 (7th Cir. 1996).
"Challenges to statutes as written, without
inquiring into their application, are appropriate
when details of implementation are
inconsequential (usually because nothing could be
done in the course of application to save the
law) or when the laws are so overbroad that the
risk of improper application leads persons to
withdraw from the borderland. Fear of penalty,
leading to a reduction in speech, supports the
doctrine that a person whose speech lawfully
could be regulated may challenge a statute
achieving regulation in an improper way, or to an
excessive extent." Harp Advertising Illinois,
Inc. v. Village of Chicago Ridge, 9 F.3d 1290,
1291-92 (7th Cir. 1993). The plaintiffs claim
that because a regulation that requires
permission to hold a political rally in a "public
forum" (as the Chicago Park District's parks are
conceded to be) imposes a "prior restraint" on
the exercise of free speech, it must, to pass
constitutional muster, be free of any element of
vagueness or uncertainty that might enable the
regulation to be enforced in such a way as to
deter or impede the exercise of this most
celebrated of constitutional rights.
We do not find this a helpful formula. The
historical referent of "prior restraints" is
censorship, see 4 William Blackstone,
Commentaries on the Laws of England 151-53
(1769), which the administration of a park system
does not much resemble. The statement in the
plaintiffs' brief that "denial of a permit to
hold a rally is the ultimate censorship" is
hollow rhetoric. It is a censor's business to
make a judgment about the propriety of the
content or message of the proposed expressive
activity. Because he is in the business of
suppressing such activity (friends of free speech
are not drawn to a career in censorship), the
danger of abuse is very great, especially when
assessed in light of the dismal history of
censorship. The regulation challenged here does
not authorize any judgment about the content of
any speeches or other expressive activity--their
dangerousness, offensiveness, immorality, and so
forth. It is not even clear that the regulation
reduces the amount of speech. A park is a limited
space, and to allow unregulated access to all
comers could easily reduce rather than enlarge
the park's utility as a forum for speech. See Cox
v. New Hampshire, 312 U.S. 569, 574-76 (1941);
cf. Beal v. Stern, 184 F.3d 117, 128-29 (2d Cir.
1999). Just imagine two rallies held at the same
time in the same park area using public-address
systems that drowned out each other's speakers.
Cf. Ward v. Rock Against Racism, 491 U.S. 781
(1989). The heterogeneity of the practices that
the "prior restraints" formula covers (with the
present case compare Freedman v. Maryland, 380
U.S. 51 (1965), involving a movie censorship
board) is reason to doubt that it can provide
much assistance to judges who have to decide a
novel case.
The problem is general. General language, the
language in which legal principles are couched,
tends not to help much in the decision of cases
in which weighty interests are on both sides of
the balance that the court is asked to strike.
Thus in this case there is, on the one hand, a
danger in giving officials broad discretion over
which political rallies shall be permitted to be
conducted on public property, because they will
be tempted to exercise that discretion in favor
of their political friends and against their
political enemies--and the advocates of
legalizing the sale of marijuana and other
controlled substances have very few political
friends. But, on the other hand, a permit
requirement is a sine qua non of managing a park
system in a way that will preserve the value of
the parks for the general public. Parks are
primarily for recreation rather than for
political and ideological agitation. They cannot
be preserved in the primary use for which they
are intended if any group can hold a rally of any
size and length at any time with amplified sound
of any volume. Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 296 (1984). Indeed,
as we noted earlier, without regulation even the
agitators might not be able to get their message
across.
The competing interests cannot be weighed in the
abstract in other than the grossest sense, and so
a "correct" balance cannot be struck. This must
give pause to any court minded to strike down a
permit regulation on its face and so without
consideration of its application to a particular
event for which a permit was denied. A challenge
to the wording as distinct from the actual
application of a regulation invites semantic nit-
picking and judicial usurpation of the
legislative drafting function in an effort to
avert, without creating loopholes, dangers at
best hypothetical and at worst chimerical. The
problem is well illustrated by this case as we
consider the plaintiffs' objections to the
regulation, all of which the district court
rejected en route to granting judgment for the
park district after another panel of this court
reversed the grant of a preliminary injunction.
MacDonald v. Chicago Park District, 132 F.3d 355
(7th Cir. 1997).
The regulation authorizes the denial of a permit
on a variety of grounds none of which has
anything to do with the content of expressive
activity. Chi. Park Dist. Code ch. VII sec.
C5(e). One is that the applicant "has on prior
occasions made material misrepresentations
regarding the nature or scope of any event or
activity previously permitted." The plaintiffs
contend that the word "material" is excessively
vague. The contention is frivolous. The word is
one of the elemental legal terms, and is
considered quite definite enough to form the
keystone of criminal prohibitions against fraud.
The residual vagueness that it shares with most
words could be eliminated only by eliminating it
from the regulation, but that would make the
regulation more rather than less restrictive. The
plaintiffs say that "misrepresentation" is vague
too, and would prefer "falsehood." They have not
suggested a substitute for "material" and so in
effect they want us to rewrite the regulation so
that it authorizes denying a permit to anyone who
has told the park district a fib. All that their
contention regarding the vagueness of "material
misrepresentation" shows is the limits of
language and so the inherent limitations of
"facial" challenges.
They complain that the grounds for denial of a
permit are permissive. The park district "may"
deny a permit because of a misrepresentation, the
failure to tender the fee, having damaged
property of the park district on a previous
occasion, or other grounds listed in the
regulation, but it is not required to; it can
forgive. The plaintiffs argue that this power of
mercy arms the park district to pick and choose
among applicants on political grounds. It indeed
creates such a danger; but if this discretionary
feature of the regulation were excised, the
regulation would be more restrictive than it is
(just as it would be if "falsehood" were
substituted for "material misrepresentation").
This is another example of how free speech is so
often on both sides of the balance in cases of
the regulation as distinct from the prohibition
of speech, a consideration that should make
courts hesitant to invalidate such regulations.
An even clearer example is a provision of the
ordinance waiving the required permit fee for
events protected by the First Amendment. The
plaintiffs complain that this is vague, but do
not indicate how it could be made less vague yet
encompass the myriad activities that the First
Amendment has been held to protect. Curtailing
speech is an odd way of protecting speech.
The regulation requires applicants for permits
to obtain liability insurance in the amount of $1
million to indemnify the park district against
liability arising from a rally that might
degenerate into a riot. (That is the amount of
the policy, not the premium, which for the type
of event envisaged by the plaintiffs would not
exceed $1,200.) The plaintiffs argue ingeniously
that since violence to person or property
incidental to a political rally is likely to
arise from the unpopularity of the cause espoused
by the rally's sponsors or speakers, the
requirement of buying insurance amounts to a
"heckler's veto," which the cases hold is not a
proper basis for restricting free speech. Forsyth
County v. Nationalist Movement, supra, 505 U.S.
at 134-35; Terminiello v. Chicago, 337 U.S. 1, 4-
5 (1949); Cox v. Louisiana, 379 U.S. 536, 551-52
(1965); Chicago Acorn v. Metropolitan Pier &
Exposition Authority, 150 F.3d 695, 701 (7th Cir.
1998). But the amount of insurance required is
not based on, or, so far as has been shown,
influenced by, the nature of the event, and
specifically by whether it involves controversial
expressive activity likely to incite violence by
onlookers or opponents. The required amount and
the cost of the insurance depend only on the size
of the event and the nature of the facilities
involved in it (a bandstand, stage, tents, and so
forth).
The park district requires that applications for
permits be filed 30 days in advance--60 days if
special facilities are to be involved, such as
sound amplification, which unless limited can
violate the city's noise ordinance. The
plaintiffs argue that these periods are too long
and inhibit rallies responding to fresh news and
startling events. But since thousands of permit
applications are filed with the park district
every year, it would be burdensome to require the
park to process the applications in a
significantly shorter time. The park district's
policy, moreover, is to allow "spontaneous"
rallies in reaction to current events. The
opportunities for abuse are manifest but are
minimized by the fact that if there is abuse the
victims can bring a judicial challenge to the
permit regulation as applied to them.
The plaintiffs reserve their strongest objection
for the regulation's failure to provide for
searching judicial review of permit denials. They
also complain about the absence of any deadline
for the completion of such judicial review as the
law affords them, not noticing the tension with
their desire that the review be penetrating and
meticulous--which takes time. In Graff v. City of
Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc),
the full court confronted the same issues of the
adequacy and timing of judicial review in the
context of an ordinance regulating newsstands on
the city's sidewalks. The court was badly
fractured, but counting noses one discovers that
a majority believed that the judicial review
procedure was good enough for a regulation of
expressive activity when the regulation is not a
form of censorship, that is, does not require or
permit the regulatory authority to evaluate the
content or message of the activity regulated. Id.
at 1324-25 (plurality opinion), 1330-33
(concurring opinion). This regulation does not.
Review of agency action in Illinois is governed
by an administrative procedure act (similar to
the federal act, International College of
Surgeons v. City of Chicago, 153 F.3d 356, 364
(7th Cir. 1998))--but only if the statute
creating the agency so provides. 735 ILCS 5/3-
104. If it does not so provide, and it does not
with respect to the park district's denial of
permit applications, the agency's action is
reviewable only by means of a proceeding for
common law certiorari. But this turns out to be a
distinction without a difference. The proceeding
is instituted in the same state court that would
review the action under the administrative
procedure act, Smith v. Department of Public Aid,
367 N.E.2d 1286, 1293 (1977), and although the
standard of review is stated in different words
from those used in that act, it amounts to the
usual substantial-evidence review that is
familiar from administrative law. The reviewing
court does not take evidence but relies on the
record compiled in the administrative proceeding
and seeks only to determine whether the agency's
legal conclusions are correct and the agency's
factual conclusions supported by substantial
evidence, e.g., Norton v. Nicholson, 543 N.E.2d
1053, 1059 (Ill. 1989), or in other words not
clearly erroneous. The review process is thus the
same as under the state's administrative
procedure act--as indeed the Supreme Court of
Illinois stated in Hanrahan v. Williams, 673
N.E.2d 251, 253-54 (Ill. 1996).
The plaintiffs argue that the park district
should in every case in which it denies a permit
be required to seek judicial review of its own
action. The argument is based on a misreading of
Freedman v. Maryland, supra, 380 U.S. at 58-59,
which holds only that the government may not
regulate the content of speech without judicial
authorization and so does not extend to time,
place, and manner licensing systems. The Supreme
Court made that clear in FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 228-230 (1990) (plurality
opinion), id. at 244 (concurring opinion), id. at
249 (concurring and dissenting opinion).
But their principal complaint about the
judicial-review procedure we've outlined, other
than the lack of a deadline for the court's
decision, is that there is no provision for an
oral hearing. An applicant denied a permit can
appeal the denial to the park district's
superintendent, and submit any documents he
wants, and the district must give written reasons
for its action. But all submissions are in
writing and therefore, the plaintiffs argue, the
record compiled before the park district is
insufficient to enable meaningful judicial review
of the superintendent's action. The argument is
defeated by the plaintiffs' own emphasis on the
importance of expedition. The regulation requires
the park district to act on a permit application
within 28 days and an appeal from the denial of
such an application to be decided by the
superintendent within 7 days. These deadlines are
too tight to permit an evidentiary hearing with
oral testimony, cross-examination, and the other
accouterments of a trial. The plaintiffs have to
choose between orality and expedition; they
refuse to do so.
The entire emphasis on judicial review and
evidentiary hearings is misplaced. If a person
denied a permit for reasons that he believes
violate the First Amendment is dissatisfied with
a paper record reviewed in state court by means
of common law certiorari, he has only to bring a
suit in federal district court and if the matter
is urgent to seek as these plaintiffs'
predecessor (the deceased MacDonald) did a
preliminary injunction. See Patsy v. Board of
Regents, 457 U.S. 496 (1982); Van Harken v. City
of Chicago, 103 F.3d 1346 (7th Cir. 1997);
Hameetman v. City of Chicago, 776 F.2d 636 (7th
Cir. 1985). Given that the plaintiffs have two
remedies, one in state court and the other in
federal court, the possible inadequacies of the
state remedy, inadequacies in any event balanced
by the expedition that barring oral testimony
permits, are trivial.
The plaintiffs fear that the required expedition
at the administrative level will be undone by
foot dragging at the state court level, since
there is no deadline on when the state court must
render its decision in a common law certiorari
proceeding. It is of course unusual though not
unknown to impose a time limit on judges, the
fear being that it will both disrupt the orderly
management of a judicial docket and conduce to
hasty decision making. Since 42 U.S.C. sec. 1983,
the statute under which federal constitutional
claims are litigated in the federal courts, does
not impose any requirement (with immaterial
exceptions) of exhausting state judicial
remedies, the victim of foot dragging in state
court can always bring a parallel suit in federal
court, complaining that the delay is denying him
an adequate remedy for the violation of his
constitutional rights.
Although a number of cases hold that judicial
review of the denial of a permit must indeed be
"deadlined," Baby Tam & Co. v. City of Las Vegas,
154 F.3d 1097, 1101-02 (9th Cir. 1998); 11126
Baltimore Blvd., Inc. v. Prince George's County,
58 F.3d 988, 998-1001 (4th Cir. 1995) (en banc);
East Brooks Books, Inc. v. City of Memphis, 48
F.3d 220, 224-25 (6th Cir. 1995); Redner v. Dean,
29 F.3d 1495, 1501-02 (11th Cir. 1994); contra,
City News & Novelty, Inc. v. City of Waukesha,
604 N.W.2d 870, 881-82 (Wis. App. 1999), cert.
granted, 120 S. Ct. 2687 (2000); TK's Video, Inc.
v. Denton County, 24 F.3d 705, 707-09 (5th Cir.
1994), they all involve special licensing regimes
for sexually oriented businesses. They are based
on Supreme Court cases involving censorship, such
as the Freedman case cited earlier, or quasi-
censorship, such as the ordinance at issue in
FW/PBS, Inc. v. City of Dallas, supra, which
required the licensing of such businesses. The
government's evident concern with the content of
the "speech" disseminated by such businesses
argues for greater judicial vigilance than in
time, place, and manner cases, in which our
rejection of deadlining in Graff, 9 F.3d at 1324-
25, stands uncontradicted. Cf. Jews for Jesus,
Inc. v. Massachusetts Bay Transportation
Authority, 984 F.2d 1319, 1327 (1st Cir. 1993).
Realism required recognition of the danger that
state courts might drag their heels in deciding
appeals by sexually oriented businesses from
denials of licenses. The permit requirement at
issue here is far more general and so far as
appears the permits that are denied do not relate
to controversial or unpopular expression.
Especially in the absence of any showing, which
has not been attempted, that the Chicago Park
District is trying to restrict the expression of
unpopular ideas or that the state courts are not
acting with reasonable promptitude on appeals
from permit denials, a more relaxed attitude
toward the pace of judicial review is warranted
than in the case of regulation targeted at
unpopular expression. Cf. Ward v. Rock Against
Racism, supra, 491 U.S. at 795; Stokes v. City of
Madison, 930 F.2d 1163, 1170 (7th Cir. 1991);
MacDonald v. Safir, 206 F.3d 183, 191 (2d Cir.
2000).
Affirmed.