Seventh Circuit affirms denial of preliminary injunction against Chicago's peddling laws, but leaves their ultimate fate in doubt

Left Field Media LLC v. City of Chicago, No. 15-3233 (7th Cir. May 23, 2016).

Under Chicago law, you cannot peddle any merchandise on the sidewalks immediately surrounding Wrigley Field. You can go across the street to sell magazines, but you can’t do it right outside the stadium. The publisher of a magazine called Chicago Baseball has sued the city, asserting that Chicago’s restrictions on peddling are unconstitutional under the First Amendment.

The district court denied the magazine publisher a preliminary injunction. On appeal, the Seventh Circuit unequivocally upholds one part of Chicago’s restrictions. Because Chicago prohibits the peddling of any merchandise, whether printed or not, this prohibition is “neutral with respect to speech (both the fact of speech and the content of speech).” 

But the publisher also challenges another Chicago law requiring anybody peddling anything on its streets to get a license. It exempts newspapers from this licensure requirement, but not magazines. Reed v. Town of Gilbert, which was issued after the district court had denied a preliminary injunction, may require more intensive scrutiny of this licensing law. What’s more, Chicago’s licensure requirement is personal. Each peddler, rather than merely each employer of peddlers, must obtain a license. The Seventh Circuit notes that this may make it harder for Chicago Baseball to hire the peddlers it wants. 

Despite all of these doubts, however, the Seventh Circuit affirms because the city has never ticketed the publisher and its peddlers for lacking licenses. Plus, it’s not clear whether the city treats Chicago Baseball as a newspaper or a magazine—hence the publisher may lack standing to challenge the licensing requirement at all. But the Seventh Circuit notes that the district court may consider a new request for an injunction should one be forthcoming on remand. The ultimate fate of the licensing requirement is left open.