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Judge Cries Foul Over a Chicago Law That Favored the Cubs

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Chicago squared off against the First Amendment this week -- at Wrigley Field, of all places. An appeals court upheld a city ordinance that bans all peddling, including printed matter, on the blocks immediately around the stadium. But at the same time, the court insisted that the rules must apply to everybody, including the Cubs. The home team is accustomed to selling team merchandise in this area.

The First Amendment is as American as baseball, and it was at the heart of this interesting and important case. An independent company called Left Field Media produces four issues per season of a magazine called Chicago Baseball and sells them on game days (for $2!) through vendors on the streets around Wrigley.

On the day of the Cubs 2015 home opener, the magazine’s editor, Matthew Smerge, was selling the magazine at the corner of Clark and Addison Streets, just outside the stadium.  A Chicago police officer told Smerge that he must go across the street to sell the magazine.

The officer was enforcing the law. The city ordinance says that “No person shall peddle any merchandise on the sidewalk immediately adjacent to Wrigley Field.” The reason is sensible enough. Unlike modern urban stadiums, whose old-fashioned charm has been carefully crafted, Wrigley is the real thing, a baseball park from 1914 tightly enmeshed in a densely populated city neighborhood.

Instead of the 30 acres enjoyed by the average park, Wrigley sits on 3 acres. Before and after games, the sidewalks around the field are tight and crowded. The purpose of the ordinance is to keep the sidewalks clear and keep people moving.

The opinion for the U.S. Court of Appeals for the Seventh Circuit was written by Judge Frank Easterbrook, who takes a close interest in the First Amendment. The Wrigley decision was an opportunity for him to explore some tricky issues.

The first was whether the sale of printed matter is distinct from the sale of other items, because of the First Amendment guarantee of free press and free speech. Here Easterbrook’s answer was a resounding no.

He explained that the Chicago ordinance isn’t directed at speech but at peddling. It affects Chicago Baseball only incidentally, in that the thing its vendors are selling happens to be a magazine.

Under the important 1968 Supreme Court precedent set by U.S. v. O’Brien, a law that is targeted at conduct and only incidentally burdens speech is analyzed under what the courts call “intermediate scrutiny.” That means the law must serve an important government interest and do so by means substantially related to that interest.

In the O’Brien case, the law prohibited destroying or defacing a draft card. The law was aimed at the act of destruction, and was intended to require potential draftees to hold on to their cards. O’Brien burned his card as an act of symbolic protest. The court upheld his conviction, reasoning that although O’Brien was speaking, he wasn’t being punished for his speech.

Applying the O’Brien precedent, Easterbrook concluded that the city ordinance served the important government interest of keeping human traffic moving around Wrigley and was designed in a way substantially related to the interest.

The magazine’s owners pointed to a Seventh Circuit case from 2002 that essentially required a printed matter exception from a Chicago ordinance banning all peddling within 1,000 feet of the United Center sports arena. Easterbrook engaged in some fancy footwork to avoid that circuit precedent. He said the 2002 opinion was probably wrong, but in any event had “practically invited” the city to pass ordinances that prohibited peddling within a much narrower scope.

The thrust of Easterbrook’s argument was that selling magazines is no different from selling anything else -- so long as the law applies to all sales of any kind. To underscore this point, he added that the law would similarly prohibit the Cubs from selling merchandise on sidewalks adjacent to the stadium. It didn’t matter, said, whether the team owned those sidewalks.

The Cubs may have gotten more than they bargained for with this statement. Their preferential position in selling outside of Wrigley is now legally barred. If the city enforces the law against any peddlers, it will have to enforce it against all peddlers.

Easterbrook then turned to one further pressing issue: the effect of an important new Supreme Court case, Reed v. Gilbert, decided in 2015. The Reed case establishes a firm rule that laws restricting speech must be absolutely content neutral or else be subjected to a high degree of judicial scrutiny that few such laws would survive.

Last summer, Easterbrook, relying on the Reed case, struck down a Springfield, Illinois, panhandling ordinance that his court had previously upheld. There the judge adopted a very stringent interpretation of the court’s precedent.

Easterbrook used the case here to criticize a separate Chicago ordinance that requires licensing for all peddlers except those selling newspapers. He said that it would probably be unconstitutional to deny the exemption to other publications while giving it to newspapers. That wouldn’t exactly be a distinction based on content, but on format -- but Easterbrook suggested that such a distinction would also be suspect.

Easterbrook concluded by suggesting that the city should treat Chicago Baseball as a newspaper. It still can’t be sold adjacent to Wrigley, but its vendors wouldn’t need to be licensed.

The Cubs may now seek to get the city ordinance changed. And the magazine may seek rehearing by the whole Seventh Circuit to work out the potential contradiction between this decision and the 2002 decision about the United Center. In the meantime, the Cubs are in first place.

  1. Fenway Park was opened in 1912, two years earlier.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net