AP Photo/Nam Y. Huh
Matthew Smerge holds a copy of Chicago Baseball magazine at his home in Vernon Hills on Oct. 9, 2015. His lawyer told a federal appeals court today that the city of Chicago is putting a price tag on the right to free speech by preventing him from selling his magazine outside Wrigley Field. Smerge was ticketed for selling the magazine in a no-peddling zone outside the stadium in April 2015. 
Posted April 4, 2016 2:51 PM

Panel umpires battle between city, publisher

AP Photo/David Goldman
Vendor Matthew Smerge holds a copy of Chicago Baseball magazine outside Wrigley Field before Game 3 of the National League baseball championship series between the New York Mets and the Chicago Cubs on Oct. 20, 2015. 
By Patricia Manson
Law Bulletin staff writer

The city is putting a price tag on the right to free speech, a lawyer for the publisher of Chicago Baseball magazine told a federal appeals court today.

Adele D. Nicholas of Adele D. Nicholas Law Office argued the city is favoring the rich and powerful over individuals of more modest means with ordinances restricting sales just outside Wrigley Field.

A ban on peddling on the public sidewalks adjacent to the ballpark does not apply to people and organizations with the resources to give their publications away, Nicholas told a three-judge panel of the 7th U.S. Circuit Court of Appeals.

And another ordinance, she said, requires individuals to obtain a peddler’s license — for a fee — before they may hawk their wares on the public way.

Nicholas’ contention that the sidewalk ordinance violates the First Amendment was met by the panel with skepticism.

For example, Judge David F. Hamilton remarked that bookstores would be exempt from zoning laws if courts held restrictions on the location of sales of written material infringe on free speech.

However, Nicholas’ contention that the peddling ordinance runs afoul of the U.S. Constitution seemed to hit a nerve.

Noting that a vendor who has unpaid traffic tickets or has failed to remit sales taxes to the city may not obtain a license, Judge Frank H. Easterbrook remarked that such prohibitions “strike me as screamingly invalid laws.”

Assistant Corporation Counsel Jonathon Delmar Byrer countered that the ordinance applies to those who refuse — rather than cannot — pay their debts.

But Easterbrook cut him off mid-sentence with the comment, “That’s quibbling.”

And U.S. District Judge Pamela Pepper of the Eastern District of Wisconsin appeared unimpressed with Byrer’s contention that requiring individual vendors to get licenses and wear identification tags makes it easier for buyers to address any misconduct on a vendor’s part.

“So people are threatened, then, by someone who didn’t pay their taxes?” asked Pepper, who sat on the 7th Circuit by designation.

The panel did not rule immediately in the appeal filed by Nicholas’ client, Left Field Media LLC.

Left Field Editor and Publisher Matthew Smerge and his vendors sold Chicago Baseball on the sidewalks adjacent to Wrigley Field for 19 years without a problem.

But on the Cubs’ opening night in April 2015, Smerge was ticketed by Chicago police Cmdr. Elias Voulgaris for selling the magazine in a no-peddling zone.

Left Field sued the city and Voulgaris three days later, alleging the sidewalk and peddling ordinances violate the right to free speech.

The city refrained from requiring Chicago Baseball vendors from obtaining peddling licenses while the appeal was pending.

And the 7th Circuit granted Left Field’s motion to enjoin enforcement of the sidewalk ordinance during that same time.

Left Field’s appeal challenges only Alonso’s denial of its motion for a preliminary injunction.

But following today’s argument, Nicholas said the 7th Circuit’s decision on that matter will shape Alonso’s ultimate ruling on the merits of the argument that the sidewalk and peddling ordinances are unconstitutional.

The appeals court’s ruling also likely will influence the city’s actions concerning the ordinances, Nicholas said.

In her argument before the 7th Circuit panel, Nicholas rejected the notion that a ban on peddling on the public sidewalks adjacent to the ballpark is an even-handed way to help prevent congestion.

The ban doesn’t prevent people from standing on the sidewalks giving away products or preaching, she said.

She also maintained that Cubs vendors contribute to the congestion by selling programs and raffle tickets outside Wrigley Field.

Prohibiting magazine vendors from plying their trade on the public sidewalks bans them from “traditional public forum,” Nicholas contended.

She also argued that an exemption for newspaper vendors in the peddling ordinance shows that Chicago Baseball vendors are subjected to a content-based infringement on their right to free speech.

Byrer, however, contended that no distinctions are being made on the basis of a publication’s content.

Instead, he argued, the ordinance makes an exception on the basis of “the form of transmittal” of the written word.

The case is Left Field Media LLC v. City of Chicago, et al., No. 15-3233.

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