A Chicago federal judge has thrown out a citation the city of Chicago slapped on a nonprofit publishing company for sticking a poster on a city light pole, saying a city ordinance forbidding commercial postings on lamp posts doesn’t pass constitutional muster because it leaves too open to interpretation which kinds of posters or speech could be allowed.
On March 31, U.S. District Judge Matthew Kennelly said the city’s sign ordinance doesn’t include definitions of “commercial advertising material” sufficient to allow the city to continue to enforce ordinance’s rules.
Adele D. Nicholas
“Parties … have no guidance on whether their sign will violate the ordinance,” Kennelly wrote. “Likewise, enforcing officials are enabled to make wholly subjective and arbitrary decisions - raising the possibility that signs promoting unpopular causes or events may draw a citation, while others will escape sanction.
“The absence of a definition of this key term is fatal to the ordinance.”
The case had landed in federal court in January 2016, when Chicago-based nonprofit corporation RCP Publications sued Chicago City Hall, arguing the city’s sign ordinance violates the U.S. Constitution’s First Amendment by restricting certain kinds of speech posted on public property.
RCP publishes Revolution Newspaper, as well as books focusing on political, economic and social issues, and distributes fliers and posters trying to direct people to their website.
In 2015, the group sought to promote the online premiere of “Revolution and Religion: The Fight For Emancipation and the Role of Religion,” a film which RCP streamed free at its website. An unaffiliated group, BA Everywhere, hosted an in-person premiere, using posters that mentioned both the web stream and live event to promote the film.
Chicago city officials wrote RCP a ticket over one such poster, which was attached to a streetlight pole at 5701 S. Kimbark Avenue. The ordinance under which the city cited RCP forbids people from distributing “commercial advertising material by means of posting, sticking, stamping, tacking, painting or otherwise fixing any sign … calculated to attract the attention of the public, to or upon any … lamppost.”
RCP contested the ticket at an administrative hearing in November 2015, but were assessed a $350 fine.
In its lawsuit, RCP asserted the ordinance was unconstitutional because it regulates speech by topic.
RCP had also sought certification of a class action under its lawsuit.
RCP is represented in the action by attorneys Mark G. Weinberg and Adele D. Nicholas, of Chicago.
In response, the city asked Judge Kennelly for summary judgment, arguing commercial advertising should be easily recognizable to the public under a “common-sense meaning,” which would include speech that would “promote a business or offer goods and services for sale.”
But Kennelly said the city’s suggested rules leave the ordinance much too open for interpretation by city officials, which could lead to some kinds of “commercial advertising” punished, while other forms, which may be more favored by City Hall, are allowed to remain.
“Under the definitions that the City has put forward, a sign that says ‘Boycott Amazon.com’ would run afoul of the ordinance under one definition, but not another,” the judge said. “There is no commonly understood common-sense meaning of ‘commercial advertising material,’ as the alternative definitions offered by the City and its personnel make clear.”
Further, the judge rejected the city’s contentions requiring specific definitions of prohibited commercial advertising speech under the ordinance would create “needless bloat” within the ordinance, saying the definition of such prohibited speech is essential to the enforcement of the ordinance.
“’Commercial advertising material’ is the sign ordinance’s central term, the primary point on which determination of a violation hinges,” Kennelly wrote.