Magazine seller denied injunction to force city to allow them to sell on sidewalk outside Wrigley Field

By Scott Holland | Oct 7, 2015

Even if the Chicago Cubs do bring postseason baseball back to Wrigley Field in October, fans still won’t be able to buy copies of an unauthorized team-themed magazine outside the venerable stadium on the city’s North Side.

U.S. District Judge Jorge L. Alonso denied the request of magazine publishers Left Field Media to force the city to allow Left Field to sell its magazines outside the ballpark. The publishing company had sought an injunction to stop the city from enforcing what it argues is an illegal city ordinance concerning peddling on the sidewalk outside the Friendly Confines.

Conflict arose on April 5 before the Cubs played their first home game of the season. Matthew Smerge, owner of Left Field Media and the publisher and editor of Chicago Baseball, was selling copies of the quarterly for $2 on public property at the northeast corner of Clark and Addison streets. Chicago Police told Smerge and his vendors to move across the street or be ticketed.

When officers returned 30 minutes later and Smerge hadn’t moved, police issued a ticket for selling the magazine in a no peddling zone. Voulgaris then warned Smerge he would be arrested if he didn’t move across the street. Smerge complied, but later said the move cost him magazine sales. Left Field filed the motion for an injunction three days later, naming the city and the police officer as defendants.

Left Field targeted the section of code that prohibits peddling on all public ways adjacent to Wrigley, requires peddlers to obtain a license, which are $100 for two years, and allows only newspaper vendors an exemption from the peddling license rule.

Two days after filing the initial complaint, Left Field moved for a temporary restraining order to keep the city and police from interfering with access to public sidewalks near Wrigley. That motion was granted, and the court referred the case to Magistrate Judge Michael Mason for a preliminary injunction hearing.

In June and July, Mason conducted three evidentiary hearings on the injunction motion. He formally recommended denial on July 29; on Aug. 13, Left Field filed a federal objection to Mason’s report. On Aug. 27, the city and Voulgaris responded to the objection.

Alonso’s opinion backed the legal reasoning underscoring Mason’s report and recommendation. Mason found the city ordinance to be valid under the First Amendment, in that the city makes the needed accommodations to legally regulate Left Field’s rights. Left Field sought to make issue of the ordinance’s newspaper vendor exemption, but Mason said Left Field failed to develop a sufficient argument. “The newspaper exemption,” Alonso writes, “distinguishes between forms of publications, not their content.”

Mason further said the city’s ordinance is, as it needs to be, “narrowly tailored to service a significant government interest,” namely dealing with foot traffic. He said the stadium’s unique location deprives the city of a variety of other means to combat congestion, including reallocating police resources, as Left Field suggested.

Testimony, including video and Smerge’s own concession, showed Chicago Baseball vendors directly hampered pedestrian traffic. Mason also soundly rejected Left Field’s arguments about the validity of the peddler’s license system, which Alonso endorsed, again explaining how Left Field failed to present a valid claim about First Amendment violations and succinctly dismissing the idea the license fee promoted “economic favoritism.”

In addition to denying the motion for an injunction, Alonso set a status hearing for 9:30 a.m. Thursday, Oct. 8.

Left Field Media was represented in the action by attorneys Adele D. Nicholas, of the Nicholas Law Office, of Chicago; Mark G, Weinberg, of Chicago; and Neil S. Ament, of Chicago.

The city was represented by attorneys Michael J. Dolesh, Thomas P. McNulty, Ellen Wight McLaughlin and Margaret R. Sobota, all of the City of Chicago Department of Law.

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Organizations in this Story

Chicago Cubs Baseball Club, Inc. City of Chicago Law Office of Adele D. Nicholas Mark G. Weinberg Attorney at Law Neil Ament & Associates

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