In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-3233

LEFT FIELD MEDIA LLC,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, ILLINOIS, and ELIAS VOULGARIS,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 C 3115 — Jorge L. Alonso, Judge.

____________________

ARGUED APRIL 4, 2016 — DECIDED MAY 23, 2016

____________________

Before EASTERBROOK and HAMILTON, Circuit Judges, and 

PEPPER, District Judge.*

EASTERBROOK, Circuit Judge. Left Field Media publishes 

Chicago Baseball, a magazine that produces four issues over 

the course of a baseball season. Copies are sold for $2 outside Wrigley Field before the Chicago Cubs’ home games. 

 * Of the Eastern District of Wisconsin, sitting by designation.
2 No. 15-3233

On the day of the Cubs’ home opener in 2015, patrol officer 

Elias Voulgaris of Chicago’s police force saw Matthew 

Smerge, Left Field’s editor, selling the magazine at the corner 

of Clark and Addison streets. Voulgaris told Smerge to move 

across the street in order to comply with Chicago Municipal 

Code 4-244-140(b), which the parties call the AdjacentSidewalks Ordinance. Section 4-244-140(b) forbids all peddling on the streets adjacent to Wrigley Field. Smerge refused to move and was ticketed. Told that the next step 

would be an arrest, Smerge then crossed the street. A few 

days later Left Field sued under 42 U.S.C. §1983, contending 

that the Adjacent-Sidewalks Ordinance violates the First 

Amendment, applied to the states by the Fourteenth.

After the district court issued a temporary restraining

order, Chicago agreed not to enforce the Adjacent-Sidewalks

Ordinance while the district court considered Left Field’s 

motion for a preliminary injunction. The 2015 season ran its 

course, and just as the playoffs began the district court declined to issue a preliminary injunction. 2015 U.S. Dist. LEXIS

135632 (N.D. Ill. Oct. 5, 2015). The 2016 season is underway, 

and the Cubs are doing well on the field. Left Field hopes to 

do as well on appeal.

The Adjacent-Sidewalks Ordinance provides:

No person shall peddle any merchandise on the sidewalk immediately adjacent to Wrigley Field; such sidewalk consisting of the 

north side of Addison Street, the east side of Clark Street, the 

south side of Waveland Avenue, and the west side of Sheffield 

Avenue. For purposes of this subsection (b), the term “sidewalk”

shall mean that portion of the public way extending from the perimeter of the Wrigley Field stadium structure to the street curb 

or curb line.
No. 15-3233 3

A satellite picture of Wrigley Field and environs helps the 

reader to understand the ordinance:

In this picture, Clark is on the west, Addison on the south, 

Sheffield on the east, and Waveland on the north. As the picture shows, the park is surrounded by buildings (many of 

them residential), and an elevated railway (the CTA’s Red 

Line) is half a block to the east. The district court found (citations omitted):

[T]he area surrounding Wrigley Field indeed creates unique 

problems for the City ... . [Wrigley Field] has a “very small footprint” compared with other sports arenas; most stadiums have 

about thirty acres of land to work with, as opposed to Wrigley 

Field’s three acres. The area immediately surrounding the ballpark is bustling, with a high density of retail establishments, 
4 No. 15-3233

rooftop businesses, and residences. There are no vast swaths of 

parking lots around Wrigley; the park is uniquely hemmed in, 

and the flow of pedestrian traffic to the stadium is confined to 

the public ways. The surrounding sidewalks around game times 

are so congested that people often walk in the streets alongside 

the sidewalks. Because of the stadium’s position, a certain portion of the sidewalk on the north side of Addison between Clark 

and Sheffield is extremely narrow; only about three people at a 

time can pass in that section. The location of the CTA Addison 

Red Line stop contributes to the congestion because it is so close 

to the east side of the stadium. Alderman Tunney ... testified 

that in the three-year period before the Adjacent-Sidewalks Ordinance was enacted in 2006, he had received complaints about 

peddlers and street performers blocking the entrances to the 

ballpark and making it difficult to safely walk in the area.

2015 U.S. Dist. LEXIS 135632 at *23–25. Left Field wants to 

take advantage of the narrow passages, so that people who 

try to enter the stadium must pass someone selling Chicago 

Baseball; the other side of the street is less crowded and so, 

Left Field insists, less desirable as a place to sell magazines. 

But the district court ruled that the throngs of people on narrow sidewalks justify the ordinance, even on the assumption 

that it must satisfy the Supreme Court’s requirements for 

time, place, and manner regulation.

The Adjacent-Sidewalks Ordinance does not regulate 

speech. It regulates peddling, without regard to what the 

peddler sells, and under United States v. O’Brien, 391 U.S. 367 

(1968), and many later decisions, regulation of conduct may 

proceed even if the person who wants to violate the legal 

rule proposes to express an idea. See also, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 

(1981) (no constitutional leaflet exception to regulation of all 

sales at a state fair); Clark v. Community for Creative NonViolence, 468 U.S. 288 (1984) (no constitutional expressive-
No. 15-3233 5

sleeping exception to rules banning camping in a public 

park). The ordinance applies as much to sales of bobblehead 

dolls and baseball jerseys as it does to the sale of printed

matter—and because it regulates all sales alike, it is also content-neutral within the meaning of Reed v. Gilbert, 135 S. Ct. 

2218 (2015).

Left Field asks us to disregard O’Brien and similar decisions in light of Weinberg v. Chicago, 310 F.3d 1029 (7th Cir. 

2002), which held that cities sometimes must make exceptions to peddling-control ordinances in order to allow the 

sale of printed matter near sports venues. It is hard to see 

how a court of appeals can make exceptions to doctrine created by the Supreme Court. But we need not consider 

whether Weinberg should be reconsidered, as three members 

of this court have concluded. See 320 F.3d 682 (7th Cir. 2003) 

(dissenting from the denial of rehearing en banc). For Weinberg itself concluded only that there must be a publication 

exception allowing the sale of printed matter at a good distance from an arena—the ordinance at issue in Weinberg

banned peddling within 1,000 feet of the United Center in 

Chicago.

Weinberg observed that restricting peddling in a stadium’s crowded immediate environs would be a different matter. 310 F.3d at 1040–41. That decision practically invited the 

City to enact the sort of ordinance it did in 2006 for Wrigley 

Field, and Weinberg therefore does not offer any support for 

Left Field’s assertion of a printed-matter exception to the Adjacent-Sidewalks Ordinance. Because the ordinance is neutral with respect to speech (both the fact of speech and the

content of speech), the City need not bear any burden beyond 

supplying a rational basis—and the need to curtail activity 
6 No. 15-3233

that delays entry and induces crowds to spill into the streets 

is more than enough.

Left Field maintains that the Adjacent-Sidewalks Ordinance is invalid because the City has an exception for newspapers. It points to Chicago Municipal Code 10-8-520, which 

excepts newspapers from the requirement that peddlers be 

licensed. (The Code forbids all peddling on the public ways 

but includes exceptions for newspapers and licensed peddlers.) Nothing in the language of §10-8-520 suggests that 

newspapers may be sold where some other ordinance prohibits all sales. Chicago’s brief assures us that sales of newspapers on the streets immediately adjacent to Wrigley Field 

are treated just like sales of magazines and baseball caps. 

Left Field has not produced any evidence to the contrary.

There may be a problem, however, with a different kind 

of discriminatory enforcement. According to Left Field, police permit the Cubs’ employees (and authorized vendors) to 

sell game programs and logo-bearing merchandise outside 

the ballpark. Chicago’s lawyer told us at oral argument that 

this is proper, because the Cubs own two of the four adjacent 

sidewalks and sell only on their own property. The record 

does not show for certain just where the Cubs sell things (or, 

indeed, whether they sell anything at all on the adjacent 

sidewalks), and the district court did not make any findings 

on the subject. We do not blame the judge for this; Left Field 

did not press this point at the hearing on preliminary relief.

The Adjacent-Sidewalks Ordinance applies to all of the 

adjacent sidewalks, without regard to ownership—as one 

would expect if the goal is to reduce congestion and avoid 

people spilling into the streets to get around obstructions. So 

although we agree with the district court that Left Field has 
No. 15-3233 7

not established an entitlement to a preliminary injunction, if 

it can show at a hearing on a request for permanent relief 

that the City favors the Cubs’ official vendors over the sellers 

of other literature, then it will be entitled to some relief—if 

not an injunction against the Adjacent-Sidewalks Ordinance, 

then at least an injunction against discriminatory enforcement of that ordinance.

Left Field challenged not only the Adjacent-Sidewalks 

Ordinance but also Chicago Municipal Code 4-244-030, 

which the parties call the Peddlers’-License Ordinance. It requires licensure of anyone selling anything (with one exception), on streets anywhere in the City of Chicago. This means 

that people selling Chicago Baseball across the street from 

Wrigley Field, where they are free to operate, need a license. 

The exception to the Peddlers’-License Ordinance is the sale 

of newspapers. This is where §10-8-520 has an effect.

The exception for newspapers applied to the ordinance at 

issue in Weinberg, and we held that it did not invalidate that 

law. 310 F.3d at 1036. The district court relied on this part of

Weinberg to reject Left Field’s challenge to the Peddlers’-

License Ordinance. But governing law has changed since 

Weinberg. After Reed v. Gilbert, supra, “[a]ny law distinguishing one kind of speech from another by reference to its 

meaning now requires a compelling justification.” Norton v. 

Springfield, 806 F.3d 411, 412 (7th Cir. 2015). The Court in Gilbert wrote that “regulation of speech is content based if a law 

applies to particular speech because of the topic discussed or

the idea or message expressed.” 135 S. Ct. at 2227 (emphasis 

added). So a law that distinguishes discussion of baseball 

from discussion of politics, by classifying one kind of publication as a magazine and another as a newspaper, is at risk 
8 No. 15-3233

under the approach of Gilbert. We do not say that a newspaper exception necessarily makes the Peddlers’-License Ordinance invalid; the Supreme Court has never dealt with the 

question whether a law that classifies publications by frequency independent of content is invalid just because different kinds of content may lead to a different frequency of 

publication. But the analysis of Gilbert reinforces the warning 

in Lowe v. SEC, 472 U.S. 181 (1985), that newspaper exceptions to generally applicable laws create difficult constitutional problems.

Quite aside from the newspaper exception, requiring a license for the distribution of literature is problematic under 

the First Amendment. See Watchtower Bible & Tract Society of 

New York, Inc. v. Stratton, 536 U.S. 150 (2002). Chicago observes that the literature being distributed in Watchtower Bible was given away rather than sold, which is true, and we 

do not doubt that Chicago may apply general zoning and 

business-licensing rules to bookstores and newspapers. See 

Graff v. Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc). The exception for newspapers makes general licensure harder to 

justify, however, and the Peddlers’-License Ordinance has 

additional terms that may bear especially heavily on quarterly magazines that sell for $2 on the street.

Although a bookstore or newspaper must have a general 

business license and satisfy zoning requirements, the City 

does not attempt to regulate who may be employed as a 

sales clerk. But the Peddlers’-License Ordinance does regulate who may sell Chicago Baseball. Left Field cannot secure 

20 licenses and distribute them to its sales team for a home 

game. Instead each peddler must be licensed personally,

which places a damper on an organization that relies on cas-
No. 15-3233 9

ual or daily labor. (The Cubs play only 81 home games a 

year during the regular season; selling Chicago Baseball during an hour or two before each game is not remotely a fulltime job.) The $100 fee for a peddler’s license, even if it covers no more than the City’s costs of administering the program, is much higher per hour worked for a publication 

such as Chicago Baseball than for a business with a full-time 

staff—and it is a cost that newspapers (with the benefit of 

§10-8-520) and bookstores (with the benefit of fixed locations) need not bear.

Chicago tells us that licensing individual peddlers is essential because the police use the distinctive badges that 

peddlers must wear to ensure that a given peddler is authorized to sell and remits sales taxes. Chicago also tells us that 

the license helps control fraud in making pitches to customers. We don’t get it. A visible badge does not ensure that a 

peddler pays taxes after finishing a day’s sales. More than 

that, a peddler employed by an organization does not owe

taxes. Left Field, not the sales staff, is responsible for collecting and remitting taxes. Nor do the police listen to the peddlers’ pitches—and it is hard to see how one could identify 

fraud in the sale of a magazine. Could the police arrest a 

peddler for touting Chicago Baseball with the line “Step right 

up and learn everything you need to know about the Cubs”?

If an employer such as Left Field could acquire its own 

stock of badges (and the accompanying licenses) and distribute them to people who sell the magazine on a given day, 

the City’s ends of identifying authorized sellers and collecting taxes would be at least as well served as by a program of 

individual licensing. And fraud, if any, could be attributed to 

Left Field, which as the employer would be responsible un-
10 No. 15-3233

der tort law. (Corporate licensing would of course affect the 

number of licenses issued, but we are taking Chicago at its 

word that the $100 fee is designed to cover costs, not to raise 

revenue.)

What the individual-licensing program does do is give 

Chicago control over who can sell Chicago Baseball, depriving 

the magazine of discretion that employers value. That would 

not be a problem if a license could be had by supplying a 

name and plunking down the fee. But that’s not enough to 

get a peddler’s license in Chicago, according to testimony by 

the supervisor of the City’s Department of Business Affairs 

and Consumer Protection. Chicago will not issue licenses to 

people who owe state or local taxes or parking tickets or water bills. It will not issue licenses to people who are behind in 

child-support payments. It will not issue licenses to applicants who lack a residential address or a photo ID issued by 

the state. These requirements may make it hard for Left Field 

to hire the sort of casual, daily labor it needs to operate, for 

people without steady jobs are more likely than others to 

leave parking tickets and child-support unpaid or to lack a 

fixed address. Cutting these people off from a source of income may be counterproductive—that’s not a First Amendment problem, of course, but it leaves us wondering just 

what this ordinance is expected to accomplish that will justify its potential effect on fringe publications such as Chicago 

Baseball. Yet at the same time as it cuts down the supply of 

labor on which Chicago Baseball relies, the City of Chicago 

undoubtedly has among its own employees hundreds of 

persons who have unpaid parking tickets or are behind on 

taxes or child support.
No. 15-3233 11

The Supreme Court held in Zablocki v. Redhail, 434 U.S. 

374 (1978), that a state may not prohibit the marriage of persons who owe child support. It is impossible to imagine that 

the Court would countenance a rule limiting employment as 

a newspaper reporter, or a clerk in a bookstore, to persons 

who have paid all their parking tickets and other civil obligations. Chicago maintains that the Peddlers’-License Ordinance is different because it applies to all peddling, to peanuts and Cracker Jack as well as periodicals. But the pesky 

exception for newspapers means that this is not quite right, 

and the weakness of the justification for regulating individual peddlers (as opposed to requiring the employer to have a 

supply of licenses and require all vendors to wear ID tags) 

takes a further toll on this ordinance.

The district court did not discuss the person-specific nature of the Peddlers’-License Ordinance, the fact that it may 

bear especially heavily on publishers that require casual labor, or the fact that it may disqualify many participants in 

the casual-labor pool. These require attention at proceedings 

on Left Field’s request for a permanent injunction. But despite these omissions we cannot say that the district court 

abused its discretion in declining to issue a preliminary injunction, because Left Field did not introduce evidence that 

would tend to show how seriously the Peddlers’-License 

Ordinance hobbles its business.

Indeed, we have some doubt whether the challenge to 

the Peddlers’-License Ordinance is ripe for decision. Neither 

Left Field nor any of its street sellers has ever applied for a 

peddler’s license. Neither Left Field nor any of its street 

sellers has ever received a ticket for selling Chicago Baseball

without a peddler’s license. Maybe the police have decided 
12 No. 15-3233

to treat Chicago Baseball as a “newspaper” for the purpose of 

the Peddlers’-License Ordinance, just as in Lowe the Supreme 

Court held that a regularly published investment newsletter 

is a “newspaper” for the purpose of 15 U.S.C. §80b–

2(a)(11)(D), which exempts newspapers from any need to 

register as investment advisers.

If the police treat Chicago Baseball as a newspaper, then 

this dispute does not need judicial resolution—indeed, Left 

Field would not even have standing. See Spokeo, Inc. v. Robins, No. 13–1339 (U.S. May 16, 2016); Susan B. Anthony List v. 

Driehaus, 134 S. Ct. 2334 (2014). Likewise if it turns out that 

Chicago Baseball’s vendors can get peddler’s licenses without 

hassles. Until the judiciary knows whether the Peddlers’-

License Ordinance applies to Left Field and crimps its business model, constitutional adjudication is unwarranted.

The order denying Left Field’s motion for a preliminary 

injunction is affirmed. The district court now can consider 

any request for a new hearing and a permanent injunction.