Richard Graff v. City of Chicago, an Illinois Corporation

9 F.3d 1309, 1993 U.S. App. LEXIS 31045, 1993 WL 484167

• Court: Court of Appeals for the Seventh Circuit
• Decided: November 24, 1993
• Docket: 92-2352
• Status: Published

Opinions

MANION, Circuit Judge.

For nearly seventy years a newsstand has stood in front of the City of Chicago Cultural Center (formerly the Chicago Public Library). The plaintiff, Richard Graff, has operated his newsstand there since July 1984, when he purchased the stand for over fifty thousand dollars. This case concerns a City of Chicago municipal ordinance designed to force newsstand operators, such as Graff, to either acquire a permit or face eviction. Chicago threatened to remove Graff from his location. Rather than request a permit, Graff ultimately sought relief in the federal district court, with a facial challenge to the ordinance. The district court denied Graffs request to enjoin Chicago’s proposed enforcement of the ordinance. 800 F.Supp. 576. For the following reasons, we affirm.

I. Background

From all indications Graffs predecessors had no ownership or property rights to the newsstand. Such newsstands seemed to have operated on public property by sheer acquiescence. At the time Graff purchased the newsstand, Chicago ostensibly required newsstand operators to acquire permits. We say ostensibly, because Graff asserted that then and now newsstands have operated on the public way without permits and only Graff has been targeted for eviction.

Under what we shall call the old ordinance, these permits were issued at the discretion of the commissioner of streets and sanitation, and the mayor could revoke a permit at any time. The old ordinance provided that such newsstands could only sell Chicago papers, and provided the mayor with no standards to guide his discretion. It also lacked hearing procedures to review the decisions to deny or revoke a permit. Chicago Mun.Code §§ 10-28-130 to -190. Graff attempted to apply for a permit under the old ordinance without much success, although Chicago continued to issue permits for newsstands at other locations.

In November 1990, Chicago gave Graff two months’ notice to remove his newsstand from the public way. This order was later rescinded. Graff, however, had had enough. On February 20, 1991, he filed a complaint against Chicago and Mayor Daley alleging that the old ordinance violated the Commerce Clause and the First and Fourteenth Amendments to the United States Constitution.¹ He sought injunctive relief, compensatory damages and attorneys fees. Rather than defend the old ordinance, on June 28, 1991, Chicago amended it. Chicago Mun. Code §§ 10-28-130 to -192 (1991). The defendants thereafter moved to dismiss the complaint arguing the new ordinance corrected the constitutional deficiencies that Graff had identified in his complaint. The court dismissed the case without prejudice. Rather than apply for a permit under the new ordinance, on September 11, 1991, Graff amended his complaint and attacked the new ordinance on its face. The complaint sought comprehensive relief: declaratory, preliminary and permanent injunctions, compensatory damages and attorneys fees under the First and Fourteenth Amendments.

Broadly speaking, in count one Graff alleges that Chicago’s permit ordinance constitutes an unlawful prior restraint of free speech. In count two he alleges that the new ordinance violates the Equal Protection Clause because other, non-expressive uses of the public way (such as sidewalk cafes) are treated more favorably than newsstands. In count three he alleges that the old ordinance denied him equal protection of law under the Fourteenth Amendment. In 1987 Graff moved his newsstand from the east side of the Cultural Center to the west side entrance off of Randolph Street to accommodate construction of the underground Pedway Tunnel. Under count three he seeks to recoup the expenses of having had to move his newsstand and certain architectural expenses he incurred when filing his application for a permit under the old ordinance.

Again, Chicago moved to dismiss. Before the court ruled on the motion, on May 14, 1992, Chicago again notified Graff that it intended to remove his newsstand in fifteen days. Chicago had consistently objected to the size of the newsstand and had requested that it be built out of steel rather than wood. Graff filed an “Emergency Motion for Temporary Restraining Order and for Preliminary Injunction.” The motion had the effect of quickly forcing the court’s hand. On May 28, 1992, the court dismissed counts one and two and denied injunctive relief entirely.

The court initially found that the complaint could be read to raise an as-applied and a facial challenge to the new ordinance. But because Graff had not applied for a permit under the new ordinance, the court concluded that only a facial challenge was before it. As to count one, the court concluded that the new ordinance was content-neutral and did not raise the threat of self-censorship as enunciated in City of Lakewood v. Plain Dealer, 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). The court also concluded that the new ordinance contained reasonable time, place and manner restrictions necessary to accommodate the multiple uses of the public way, and contained adequate procedural safeguards. As to count two, the court ruled that Chicago could establish size limitations for newsstands, even though it did not do the same for sidewalk cafes. The court ruled that the municipal code did not support Graffs allegation that the landmark commission treated newsstands differently than other structures that visibly affected landmark property. Because Graff could not show a substantial likelihood of success on the merits, the district court denied Graffs motions for injunctive relief. Count three dealing with the old ordinance remains alive in the district court.

While Graff appealed the dismissal of counts one and two, he applied for a permit to operate two newsstands in front of the Cultural Center. Because of the location, Graff had to first seek permission from the Commission on Chicago Historical and Architectural Landmarks. That application was denied on August 13,1992, because the newsstands would compromise the architectural integrity of the adjoining landmark building. On August 14, 1992, Chicago again notified Graff that he had fifteen days to remove his newsstand. Graff sought an injunction in this court, which we promptly dismissed. We directed him to file the matter in the district court pursuant to Fed.R.App.P. 8(a). After the district court denied him relief, on September 16, 1992, we granted Graffs motion and enjoined Chicago from destroying the newsstand pending appeal.

On February 8, 1993, after oral argument but before decision, Chicago moved to dissolve the injunction because of planned rehabilitation of the Cultural Center. Chicago had hoped to replace the handicap access ramp, and clean and remodel the exterior stonework. On February 16,1993 a panel of this court issued its opinion reversing the district court because the new ordinance failed to provide sufficient judicial oversight, in violation of the First Amendment as espoused in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228, 110 S.Ct. 596, 606, 107 L.Ed.2d 603 (1990). See Graff v. City of Chicago, 986 F.2d 1055 (7th Cir.1993). Chicago’s motion to dissolve the injunction was denied as moot. On April 15,1993, this court granted Chicago’s petition for rehearing en banc and vacated the panel opinion. After en banc review, we now affirm.

II. Jurisdiction

In his complaint, Graff requested a preliminary injunction. He did not press the district court for an early hearing apparently because Chicago had not yet moved the bulldozers in for the kill. On May 14, 1992, however, Chicago notified Graff that he had fifteen days to vacate. A week later Graff filed an “Emergency Motion for Temporary Restraining Order and for Preliminary Injunction.” Within the week the court dismissed counts one and two, and denied all injunctive motions as moot. In his notice of appeal, Graff sought review of the district court’s order “denying the plaintiffs motion for a temporary restraining order, and granting, in part, defendant’s motion to dismiss plaintiffs first amended complaint.”

Initially, the City argues that we lack jurisdiction to hear this appeal because one count remains alive in the district court, and therefore, final judgment has not been entered. However, 28 U.S.C. § 1292(a)(1) grants us jurisdiction to hear certain interlocutory appeals, as when the district court refuses to enter an injunction. Here, the district court did just that; it refused to enter an injunction in favor of Graff by dismissing counts one and two of the complaint. Holmes v. Fisher, 854 F.2d 229, 230 (7th Cir.1988). It does not matter that Graff also sought review of the denial of his temporary restraining order (which is not yet appeal-able). See Geneva Assurance Syndicate, Inc. v. Medical Emergency Servs. Ass’n, 964 F.2d 599, 600 (7th Cir.1992) (per curiam). Therefore, we have jurisdiction to review the district court’s refusal to enter an injunction and whether the district court properly dismissed counts one and two.

III. Analysis

This case essentially involves two interdependent questions: whether the district court should have enjoined Chicago from removing Graffs newsstand and whether Chicago’s newsstand ordinance is constitutional. We conclude that the statute is constitutional. Also, the district court acted properly in refusing to enter a preliminary injunction and in dismissing counts one and two. Graff attempts to have Chicago’s newsstand ordinance declared unconstitutional in the hope that his newsstand stays put. However, without the newsstand ordinance, Graff still has no right to operate his newsstand on public property. Contrary to Graffs contentions about speech, this case involves a structure. Graff has no First Amendment right to build a structure on public property. The district court also acted properly in dismissing Graffs challenges to the new ordinance. The ordinance does not allow Chicago the opportunity to grant or deny newsstand permits because of the personal or institutional views of a government official. To the extent that the ordinance restricts the types of publications sold from a newsstand, the restrictions are reasonable. The ordinance contains reasonable time, place and manner restrictions, justified without reference to speech content, and leaves open alternative avenues to communicate the same information. We also conclude that the ordinance contains sufficient judicial review provisions and passes muster under Equal Protection analysis.

A. Newsstand Structure

1.

Chicago has passed numerous ordinances attempting to deal with the myriad of problems that arise on its public way, from carnivals to snow removal. Chicago Mun.Code §§ 10-28-010 to -800. Chicago asserts that this ordinance prohibits all vendors from building structures on the public way; newspaper vendors can erect a structure only after obtaining a permit. As a general starting point, unless another ordinance specifically authorizes otherwise, “no person shall erect or place any building, structure, or other stationary object, in whole or in part, upon any public way or other public ground within the city.” Id. at -040. There are exceptions. “It shall be unlawful for any person to erect, place or maintain in, upon or over any public way or other public place in the city, any [stand] ... for the display or sale of goods, wares or merchandise ... unless a permit for the same shall be obtained from the superintendent of compensa-tion_” Id. at -050. Specifically for newspaper vendors,

It shall be unlawful for any person to erect, locate, construct or maintain any newspaper stand on the public way or any other unenclosed property owned or controlled by the city without obtaining a permit therefor from the commissioner of transportation as hereinafter provided.

Id. -130. In this case the parties have focused their arguments in the district court and on appeal on the constitutionality of Chicago’s newsstand permit ordinance, id. at - ISO to -196. Graff sought an injunction to prevent Chicago from removing his newsstand under the supposition that if the permit ordinance were declared unconstitutional, his newsstand should stay. But even without the challenged newsstand ordinance, Graff still has no right to occupy the public sidewalk; that is, unless he has a constitutional right to build or maintain a newsstand on public property. If the ordinance goes down (along with the availability of a permit) the newsstand goes down as well. As a preliminary matter, then, we must examine whether he has an independent constitutional right to erect his newsstand on the public sidewalk.

In Lakewood the city had “absolutely prohibited the private placement of any structure on public property.” 486 U.S. at 753, 108 S.Ct. at 2142. The district court found that this prohibition violated the First Amendment as applied to newsracks. The city, however, did not appeal; rather, it enacted ordinances that permitted newsracks under certain conditions. The Supreme Court concluded that the new ordinances placed too much discretion with the city officials, thus rendering the ordinances unconstitutional. The Court did not reach the question of whether “a city may constitutionally prohibit the placement of newsracks on public property.” Id. at 762 n. 7, 108 S.Ct. at 2147 n. 7. Today, with regard to newsstands, we reach that question.

At the outset we note that no person has a constitutional right to erect or maintain a structure on the public way. In Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341 (7th Cir.1990), the City had decorated O’Hare Airport with Christmas trees and other ornaments; persons desiring to display religious symbols were allowed to lease an area of the airport. The Lubavitch Chabad House, however, did not want to pay. The organization sought to display a free standing Chanukah menorah in one of the public areas. We held that the ordinance did not involve any form of constitutionally protected speech.. Id. at 347. There is no

private' constitutional right to erect a structure on public property. If there were, our traditional public forums, such as our public parks, would be cluttered with all manner of structures. Public parks are certainly quintessential public forums where free speech is protected, but the Constitution neither provides, nor has it ever been construed to mandate, that any person or group be allowed to erect structures at will.

Id.; accord Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 813-15, 104 S.Ct. 2118, 2133-34, 80 L.Ed.2d 772 (1984).

Two years after we decided Lubavitch, the Supreme Court ruled that an airport was not considered a traditional public forum. The Lubavitch rule nevertheless stands that even in a public forum there is no constitutional right to erect a structure. 917 F.2d at 347. The structure of a Chanukah menorah deserves no less protection than the structure of a newsstand. The building of a newsstand is simply not a form of constitutionally protected expression. Thus Lubavitch is dispos-itive of Graffs request for an injunction. Requiring a permit for the structure is not a prior restraint on speech. While public forums certainly provide places where people have a right to express their views through handbills, literature and the spoken word, Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 671, 87 L.Ed. 869 (1943), they do not have the right to erect a newsstand, in this case on a public sidewalk. Without an ordinance and the permit it requires, newsstands and other structures have no protection from the city’s bulldozer.

2.

Lubavitch involved a structure used to advance speech and religion. Graff nevertheless maintains that Supreme Court precedent entitles structures for newspaper distribution to constitutional protection. In Lakewood a newspaper challenged a city ordinance that allowed the mayor to grant or deny permits to publishers to place their newsracks on public property. The mayor had to state specific reasons if he denied the application; in granting a permit, the mayor could add such terms and conditions he deemed reasonable and necessary. The newspaper elected not to apply for a permit, instead bringing a facial challenge to the ordinance. 486 U.S. at 754, 108 S.Ct. at 2142.

[A] facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.... The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.

Id. at 759,108 S.Ct. at 2145. The Court (in a four to three decision) found that the First Amendment was implicated because the specific ordinance involved newspapers and required them to renew their newsrack licenses annually. The Court saw the printing and circulation of newspapers as “conduct commonly associated with expression” and the periodic licensing scheme as closer to a regulation that allows the government to view actual speech content before issuing a permit.

Graff argues that newsracks and newsstands should receive identical First Amendment protection. But Lakewood does not so easily bridge the gap between newsracks and newsstands. They are significantly different methods of distribution and we must assess them on standards uniquely suited to each. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975) (“Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems”) (citations omitted).

Newsstands are large, permanent-type structures.² They are constructed, and once in place they are not easily moved. Newsstands do not present one viewpoint; rather they supply many and varying editorial opinions. Newsstands shelter a business operator and his operation; they do not merely dispense or hand deliver newspapers.³ Newsstands also are more likely to obstruct the views of pedestrians and automobile drivers. In short, newsstands compared to newsracks are much larger, more permanent structures that occupy a significant portion of limited sidewalk space.⁴ Thus, building and operating a newsstand is conduct, not speech, which the City can lawfully proscribe:

Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.

Schneider v. State, 308 U.S. 147, 160-61, 60 S.Ct. 146, 150-51, 84 L.Ed. 155 (1939); accord Lee, — U.S. at-, 112 S.Ct. at 2717 (“The principal purpose of streets and sidewalks, like airports, is to facilitate transportation, not public discourse.” (emphasis added) (Kennedy, J., concurring)).

In Lakewood the Court concluded the ordinance implicated speech because it required periodic license renewal and the licensing system was “directed narrowly and specifically at expression or conduct commonly associated with expression: the circulation of newspapers.” 486 U.S. at 760. This case neither concerns simply the circulation and printing of newspapers nor conduct commonly associated with expression. This case involves a structure. A newsraek, as a source of news, is inextricably tied to the publication it contains. For instance, Chicago has news-racks for the Chicago Tribune, the Chicago Sun-Times, USA Today, the Wall Street Journal, and whatever other publications might be popular in the city. To give a city official unfettered discretion over newsracks is to raise the possibility that the official— because of dissatisfaction over a particular editorial policy — might ban or severely limit the newsracks of a particular publication. For instance, if the official is lampooned by, say, the Chicago Tribune, as he or his boss makes a re-election bid, he would have an incentive to limit their newsracks. At the very least, the Chicago Tribune might limit its editorial efforts because of fear of such censorship.

The same threat of prior restraint does not exist for newsstands. They are structures not at all tied to particular publications. In our hypothetical, the Chicago official — even if he wanted to — could not retaliate against the Chicago Tribune by regulating newsstands. Only under the least likely scenario would a Chicago official be able to target a certain publication by targeting a certain newsstand. For a city official to accomplish this type of censorship, he would need a large staff to check all of the newsstands in the city to find the ones disseminating the objectionable material. Then he would have to deny permits to those newsstands. To “chill” similar distribution by others, he would have to make public that he was closing certain newsstands because they were distributing objectionable material. This scenario is hardly similar to one Chicago official nixing all of the news-racks of a certain publication by the stroke of his pen, while safely hidden behind the walls of city hall. So unlikely is the former scenario that the First Amendment does not require the ordinance to be drafted to avoid it. Further, the closing of newsstands would affect all of the publications in the newsstand equally, and the Chicago Tribune would still have its other methods of dissemination— newsboys, newsracks, in-building newsstands, etc. — to sell papers.

The protections provided newsracks are tailored to their peculiar characteristics. Judge Cummings’ dissent and Judge Flaum’s concurrence take the position that the same protections tailored to fit newsracks should be placed upon newsstands. But newsstands are not newsracks. The same threat of targeting one publication inherent in the regulation of newsracks is not present in the regulation of newsstands. Judge Cummings’ dissent offers a remote scenario where a city official might target certain “off-beat publications” or “pornographic” publications by targeting certain newsstands. Cummings, J. dissent at 1337-38. But the First Amendment does not require that we create unlikely scenarios for the censorship of speech and require city governments to draft their regulations to avoid these scenarios. Only when the ordinance at issue presents an obvious and immediate threat of censorship — as in the case of the newsrack ordinance in Lakewood — should we allow a facial challenge to head off the possibility of censorship. When the threat of censorship derives from the unlikeliest of scenarios — such as the targeting of “off-beat” or “pornographic” publications when issuing newsstand permits — a facial challenge is inappropriate. The threat is too remote and speculative.

Given that there is no constitutional right to build or maintain a newsstand on the public way, the district court properly refused to enjoin Chicago from removing Graffs newsstand. But Chicago is not interested in removing Graffs newsstand because it occupies public land. Rather Chicago wants to remove Graffs newsstand because he has no permit. Thus, the parties in this case did not focus their arguments on the propriety of whether the district court should have issued an injunction. They wanted a ruling on the constitutionality of the new ordinance. The district court obliged, and upheld the ordinance by granting Chicago’s motions to dismiss. On appeal Graff claims the ordinance gives Chicago too much discretion, imposes unreasonable time, place and manner restrictions, does not provide sufficient judicial review, and denies equal protection by treating newsstands and sidewalk cafes differently. We will address each of these constitutional challenges.

B. The Commissioner’s Limited Discretion

Graff argues that Chicago’s newsstand ordinance violates the First Amendment by vesting too much discretion in the government official, here the commissioner of transportation. In Lakewood the Court struck down the City’s ordinance because it vested too much discretion in the hands of a government official. 486 U.S. at 772, 108 S.Ct. at 2152. Graff argues that such a danger of viewpoint discrimination also exists in this case.

“[A] licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.” Id. at 757, 108 S.Ct. at 2143. A major premise in Lakewood was that “the Constitution requires that the City establish neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered.” Id. at 760, 108 S.Ct. at 2146. The Court struck down the Lakewood ordinance specifically because there were “no explicit limits on the Mayor’s discretion.” Id. at 769, 108 S.Ct. at 2150. In denying a permit application, the mayor was required only to state “it is not in the public interest.” Although the ordinance required the mayor to state his reasons, the Court found troubling the lack of specificity required and the limitless reasons the mayor could assert. Id. at 769-70, 108 S.Ct. at 2150-51. In granting a permit, the mayor could require the news-rack to be located “in an inaccessible location without providing any explanation whatsoever.” Id. This constituted “unfettered discretion” abridging the First Amendment. See FW/PBS, 493 U.S. at 223, 110 S.Ct. at 603; Freedman, 380 U.S. at 56, 85 S.Ct. at 737 (party can “challenge a statute on the ground that it delegates overly broad licensing discretion”); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-42, 84 L.Ed. 1093 (1939) (the offending statute subjected the defendant to “harsh and discriminatory enforcement by local prosecuting officials”).

In this case the commissioner of transportation considers six exclusive criteria by which to grant or deny permission to build a newsstand:

(1) Whether the design, materials and col- or scheme of the newspaper stand comport with and enhance the quality and character of the streetseape, including nearby development and existing land uses; (2) Whether the newspaper stand complies with this code; (3) Whether the applicant has previously operated a newspaper stand at that location; (4) The extent to which services that would be offered by the newspaper stand are already available in the area; (5)' The number of daily publications proposed to be sold from the newspaper stand; and (6) The size of the stand relative to the number of days the stand will be open and operating.⁵

Chicago Mun.Code § 10-28-160(a). The ordinance also contains a number of technical considerations, such as application forms, id. at -150, size and location regulations, id. at - 170, and maintenance requirements, id. at - 180. Graff specifically alleges that the commissioner should not be given discretion to remove a newsstand that “endangers public safety or property,” that “interferes with or impedes the flow of pedestrian or vehicular traffic,” or is placed “in such a manner as to impede or interfere with the reasonable use of [a display window].” Id. at -185(a) & (b).

By requiring the commissioner to consider these factors, his discretion is limited, not unbridled. The criteria give adequate and specific guidance to the commissioner as well as reasons for the applicant to anticipate the basis for granting or denying a particular permit to build a newsstand. If a permit to build a newsstand were denied, these express standards (and the commissioner’s written reasons, see id. at -160(c)) give the plaintiff adequate guidance in challenging the application of the ordinance to his particular case, and upon judicial review allow an informed inquiry into whether the commissioner made his decision in an unconstitutional manner, such as by disfavoring certain speech.

Even though the ordinance allows the commissioner to use some discretion, Lakewood nevertheless required the law to have “a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.” 486 U.S. at 759, 108 S.Ct. at 2145 (emphasis added). The criteria set out in Chicago’s ordinance in no sense pose a “real or substantial threat” of censorship. See Ward v. Rock Against Racism, 491 U.S. 781 at 794-95, 109 S.Ct. 2746 at 2755-56 (upholding as content-neutral regulations aimed at achieving the best musical volume and sound or appropriate sound quality in light of surrounding neighborhoods). Jacobsen v. Crivaro, 851 F.2d 1067, 1070 (8th Cir.1988) (upholding as non-discretionary an ordinance restricting news-rack locations and sizes). The criteria give the commissioner proper authority to advance the city’s desire to permit a given number of newsstands. At the same time they help avoid the threat of someone building a permanent newsstand of whatever size, design and location he chooses.

Graff still finds a problem with what he terms the commissioner’s unbridled discretion in determining the number of permits to issue. But the ordinance caps the number of permits the commissioner may issue to the number of newsstands already located on Chicago’s streets. Chicago Mun.Code § 10-28-130 (“No new permit for a newspaper stand shall be issued on or after the effective date of this ordinance”). As permits expire, or have been revoked, the commissioner may advertise that a permit is available. Id. at - 130 & -135. Graff and others may compete for those the commissioner chooses to reissue. Id. at -160(e).⁶

True, the commissioner has discretion in determining how many permits to reissue. But that is “the business of government.” Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325, 329 (7th Cir.1991). Not all discretionary decisions implicate the First Amendment. See City of Cincinnati, — U.S. at-, 113 S.Ct. at 1517 (the City may limit the total number of newsracks for safety and aesthetic reasons). Since the limited discretion given to the commissioner in Chicago’s ordinance does not in any way limit the speech content of the newsstand operator, there is no threat or risk of censorship which violates the First Amendment.

C. Reasonable Time, Place and Manner Restrictions

If the government seeks to control speech without reference to viewpoint, ordinances can contain reasonable time, place and manner restrictions. These restrictions, however, must serve significant government interests (narrowly tailored) and leave alternative avenues to communicate the same information. See Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 2757, 105 L.Ed.2d 661 (1989); Clark, 468 U.S. 288 at 293, 104 S.Ct. 3065 at 3069, 82 L.Ed.2d 221. If, however, the ordinance discriminates on the basis of viewpoint, such as allowing only communication of particular political or religious messages, the government would face a near insurmountable burden. See City of Cincinnati v. Discovery Network, Inc., — U.S. —, —, 113 S.Ct. 1505, 1516, 123 L.Ed.2d 99 (1993) (noting that prohibiting the use of sound trucks because of noise must apply equally to “music, political speech, and advertising.”). Graff alleges that the ordinance controls speech content in several ways. Because the ordinance permits the newsstand to carry only newspapers, periodicals and similar publications, and favors the applicant who will carry the most daily publications, he claims it eliminates vendors who carry other expressive materials. He also complains that the newsstands’ size limitation magnifies these impermissible restrictions. Chicago does not dispute these characteristics; rather it argues that they are necessary and reasonable time, place and manner restrictions.

This case resembles City of Renton, 475 U.S. 41,106 S.Ct. 925, 89 L.Ed.2d 29. There the City of Renton, Washington, enacted a zoning ordinance to prohibit adult motion picture theaters from locating within a certain distance from residential, church, or school property. Id. at 43, 106 S.Ct. at 926. The Supreme Court determined that the ordinance

does not appear to fit neatly into either the “content-based” or the “content-neutral” category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the district court concluded, the Renton ordinance is aimed not at the content of the films shown at “adult motion picture theatres,” but rather at the secondary effects of such theaters on the surrounding community.

Id. at 47, 106 S.Ct. at 929. The Court analyzed the ordinance by looking at the time, place and manner restrictions in the regulation. The Court held that the ordinance was justified without reference to content, was thus “content-neutral,” id. at 48, 106 S.Ct. at 929, and served a substantial government interest while allowing for reasonable alternatives of communication. Id. at 53, 106 S.Ct. at 933. Surely if a city can restrict speech through the planning, regulation, and zoning of property because of the secondary effects of adult motion pictures on the neighborhood, id., Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976), Chicago should be allowed to regulate property on which newsstands could be located. Accord Cornelius, 473 U.S. at 799-800, 105 S.Ct. at 3447-48 (“Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.”). Here the time, place and manner restrictions are entirely reasonable.

Graff asserts that there is no showing that accommodating multiple uses of the public way and public safety requires an arbitrary size limitation on newsstands. The ordinance requires that the newsstand not occupy more than one-hundred and twenty square feet nor stand more than nine feet in height. Chicago Mun.Code § 10-28-170. In addition, the newsstand must always allow pedestrians at least six feet of clear passage, and cannot be located within three feet of a property line. Id. at -185(b). This is “the business of government.” Chicago Observer, 929 F.2d at 829. We are not in a position to second-guess the city council’s concerns. In any event, these restrictions are eminently reasonable. Pedestrians certainly should have access to enough space to walk on the sidewalks. Where structures block part of the sidewalk, pedestrians also have an interest in how far they must walk to get around them. In addition to being reasonable, these restrictions are content-neutral and do not constitute a prior restraint.⁷

Chicago readily admits that the “intended function” of the ordinance “is merely a preference for newsstands that maximize the number of newspapers sold.” Apparently Graff wants to carry more than newspapers, periodicals and similar publications. He asserts that the ordinance is content-based because it does not allow newsstands to sell books or videotapes, relying on Discovery Network, Inc. v. City of Cincinnati, 946 F.2d 464 (6th Cir.1991).⁸ There the district court held unconstitutional an ordinance that completely prohibited the distribution of commercial handbills on public property. The city had asserted its interests in safety and aesthetics, although it allowed newsracks to carry all other publications. The court of appeals concluded that the ordinance was an impermissible content-based restriction. 946 F.2d at 472, aff'd, — U.S. at—, 113 S.Ct. at 1516. In distinguishing City of Renton, the Sixth Circuit stated: “Had Cincinnati produced evidence that the types of news-racks distributing commercial speech caused effects distinct from newsracks distributing newspapers, such as the clogging of downtown streets, ... the ordinance may have been constitutional under the secondary effects doctrine.” Discovery Network, 946 F.2d at 472 n. 12. In affirming, the Supreme Court also noted that in contrast to City of Renton there were no distinguishing secondary effects attributable to newsracks containing commercial publications as compared to newsracks containing newspapers that would justify differing treatment. City of Cincinnati, — U.S. at -, 113 S.Ct. at 1517. Chicago, following this reasoning, notes that newspapers do not represent any favored viewpoints not represented in books or videotapes. The restrictions are “simply an effort to reduce clutter on the public way, ... and facilitate the distribution of newspapers from a newsstand without undue obstruction of the public ways.”

Certainly a city can regulate newsstands to reduce clutter on its streets. See Taxpayers for Vincent, 466 U.S. at 805, 104 S.Ct. at 2128. But Chicago has advanced no argument that books and videotapes clutter the streets any more than do newspapers. The assertion that newsstands themselves clutter the streets merely restates the issue. Chicago more convincingly argues that books and videotape sales would obstruct the flow of pedestrians. The city can recognize that people impulsively or routinely purchase newspapers in seconds. The more time-consuming purchase of books or videotapes, in contrast, would cause congregation and impede the flow of others who would then have to walk around not only the newsstand structure but the audience it attracted. See Hef-fron, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298. Also, browsers would block access to those who wanted to make a quick purchase of a newspaper. See Gannett Satellite Info. Net. v. Metro Transp. A, 745 F.2d 767, 773-4 (2d Cir.1984) (upholding as content neutral a regulation which allowed newspapers but not other vendors to install coin operated vending machines; “the newspapers are in a privileged position and are not and will not become the victims of discrimination”).

That the ordinance considers how many publications the newsstand will carry does not infringe, but rather promotes First Amendment interests. The ordinance clearly favors an applicant who has the higher, not the lower, proposed number of publications to be sold from the newsstand. This conceivably “censors” only the newsstand operator who himself might eliminate certain publications from distribution. In addition, an ordinance directed at the number of publications concerns quantity, not quality or content. Graff cites no case where an ordinance promoting more speech (in general) infringes the First Amendment.

Graff asserts that promoting the dailies serves to advance a message less controversial to the greatest number of people. This ignores the reality of the marketplace. The dailies succeed only because they sell to the greatest number of people, notwithstanding the government’s perceived agreement with any particular viewpoint. Any notion that Chicago is promoting the dailies because based on past experience it is likely to agree with their future viewpoints is mitigated by the ordinance favoring the newsstand operator who sells the most dailies — an obvious attempt at variety, not indoctrination. Chicago argued in the district court that the Supreme Court has encouraged the promotion of daily publications over the sale of other “expressive materials.” As stated in Lakewood, 486 U.S. at 771, 108 S.Ct. at 2151, “News is not fungible. Some stories may be particularly well covered by certain publications, providing that newspaper with a unique opportunity to develop readership. In order to benefit from that event, a paper needs public access at a particular time; eventual access would come too little and too late.” The manner in which this ordinance regulates the newsstand operation allows that necessary access.

Graff finally argues that the time, place and manner restrictions are not narrowly tailored to serve the asserted governmental interests. See Ward, 491 U.S. at 796, 109 S.Ct. at 2756; City of Los Angeles v. Preferred, 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986). Specifically, Graff argues the ordinance sets an arbitrary cap on the number of permits and that given the provision requiring minimum clearance around the newsstand, there is no reason for the arbitrary size limitation. He wants further discovery to show there are less restrictive alternatives.

The “requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799, 109 S.Ct. at 2758 (citations omitted). This test is not as heightened as Graff would have us believe.

So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, ... the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.

Id. at 800,109 S.Ct. at 2758. Because Chicago has the ability to .ban all newsstands, providing for some by a comprehensive permit scheme serves the people of Chicago well. The ordinance accommodates competing interests where pedestrians wish room to walk, several newsstand operators desire the same location, and tourists wish to take a picture of a famous landmark without a newsstand front and center. Without the permit ordinance, Chicago’s interests would not only be achieved with less effectiveness, but would fail. The restrictions also leave open alternative channels for communication of the information. Id. at 802, 109 S.Ct. at 2760. Chicago not only “teems with ads and with publications,” Chicago Observer, 929 F.2d at 328, one can easily discern that the public has no problem picking up a newspaper, book or videotape, be it in stores that actually own their own property or from newsboys yelling out the headlines.

For the foregoing reasons, we conclude that the time, place and manner restrictions contained in the new ordinance are reasonable, are justified without reference to specific content, and are narrowly tailored to serve significant interests of the people of Chicago. Alternative channels are also available to communicate any speech otherwise restricted.

D. The Propriety of Dismissal Versus Summary Judgment

The district court dismissed two counts of the complaint based in part on the reasonableness of the ordinance’s time, place and manner restrictions. Graff argues that the pleading stage is no place for such an inquiry, especially because the government has the burden on this issue. See Preferred, 476 U.S. at 496, 106 S.Ct. at 2038; accord Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (invalidating state procedure because it placed the burden on the individual to show the restriction on speech was unjustified). No doubt the norm is to wait until the summary judgment stage of the litigation to address the ultimate question of whether the ordinance should stand. FW/PBS, 493 U.S. at 221, 110 S.Ct. at 602; Renton, 475 U.S. at 45, 106 S.Ct. at 927; Vincent, 466 U.S. at 793, 104 S.Ct. at 2122; Young, 427 U.S. at 55, 96 S.Ct. at 2445. And Chicago does not dispute that it bears the burden on these issues. Contrary to Graff’s assertions, however, in this case the district court was correct in resolving this matter.

In International Caucus of Labor Committees v. City of Chicago, 816 F.2d 337, 339 (7th Cir.1987), the district court dismissed a facial attack on an ordinance that prohibited persons from setting up tables, hanging signs and storing literature at O’Hare International Airport. We had previously upheld parts of a similar ordinance in International Society for Krishna Consciousness, Inc. v. Rochford, 585 F.2d 263 (7th Cir.1978). The court, quoting from Supreme Court precedent, gave credence to the government’s ease at the pleading stage:

A state’s interests in protecting the safety and convenience of persons using the public forum is a valid governmental objective. The characteristic nature and function of the forum must be considered in assessing the constitutionality of the regulation.... As held in Rochford, the City has valid concerns about expediting the processing of travelers, maintaining the free and orderly flow of traffic, and avoiding the disruption of normal airport activities. Prohibitions on the use of banners or signs that exceed the body width and on the storing of materials, except in a carry bag that must be carried or harnessed, are reasonably related to the City’s legitimate interests.

International Caucus, 816 F.2d at 339-40 (citations and quotations omitted). As we have seen, Chicago asserted that many of these interests apply in this case as well. In International Caucus, we concluded that even in the First Amendment context, the plaintiff is not excused “from the requirement that the facts as alleged must state a cause of action.” Id. at 340.

In Rothner v. City of Chicago, 929 F.2d 297 (7th Cir.1991), we also affirmed the district court’s dismissal of a facial challenge to a city ordinance. Chicago had prohibited minors from playing video games while school was in session. With the caveat that “courts should proceed cautiously when asked to dismiss on the basis of the pleadings,” id. at 302, we concluded that the purpose of the ordinance, to encourage students to complete high school and discourage truancy, was unrelated to speech content. Also, the ordinance was narrowly tailored to serve an important governmental interest, namely “insuring that children receive an adequate education.” Id. at 303. And alternative channels of communication were open — the children were free to play the video games on their own time. There, we concluded that the First Amendment did not require us to “try the statute” beyond the pleading stage. Id. at 304 (citations omitted).

From Preferred, International Caucus and Rothner we gather several important principles. Courts should not merely assume that an ordinance advances the state’s interests. Preferred, 476 U.S. at 496, 106 S.Ct. at 2038. In Preferred the Court remanded to the district court because it needed to “know more about the present uses of the public utility poles and rights-of-way and how respondent proposes to install and maintain its facilities on them.” Id. at 495, 106 S.Ct. at 2038. In this case, however, no one is questioning the present uses of newspapers or sidewalks on the streets of Chicago. How Graff proposes to use his newsstand we accept as true from his complaint. See City of Renton, 475 U.S. at 53, 106 S.Ct. at 931. (City does not have to conduct studies or produce independent evidence on issues that are well developed here or elsewhere). Where the courts have already upheld a similar ordinance because of the governmental interests at stake, a future litigant should not be able to challenge similar governmental interests without showing some distinction at the pleading stage. E.g., International Caucus, 816 F.2d at 340.

In this case there are no disputed issues of material fact that we need to resolve. Nor are the interests that Chicago raises in this case unique or different. It has not relied on independent research studies or findings. Rather, Chicago has relied on a common sense approach and the desire to best allocate public property within the spirit of the First Amendment. As discussed in Part C, we conclude that as a matter of law Chicago can reasonably restrict newsstands to selling daily newspapers. Thus, the district court properly dismissed at the pleading stage Graffs arguments that the ordinance should allow him to operate a larger newsstand in which to sell books, videotapes and other methods of expression.

E. The Adequacy of Procedural Safeguards

Graff asserts that the ordinance is completely devoid of safeguards for review of the commissioner’s decision. Chicago responds that state law provides for judicial review, which in itself is sufficient. Primarily, the First Amendment protects speech by prohibiting the government from engaging in censorship. But even if an ordinance properly limits an administrator’s discretion, theoretically the government could still act improperly where its decision is not subject to review. The question is whether sufficient procedural safeguards exist to “obviate the dangers of a censorship system.” Southeastern Promotions, 420 U.S. at 559, 95 S.Ct. at 1247. In Freedman of Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 738-39, 13 L.Ed.2d 649 (1965), the Court set out certain “safeguards,” later summarized by Justice Brennan as follows:

(1) any prior restraint in advance of a final judicial determination on the merits must be no longer than that necessary to preserve the status quo pending judicial resolution; (2) a prompt judicial determination must be available; and (3) the would-be censor must bear both the burden of going to court and the burden of proof in court.

FW/PBS, 493 U.S. at 239, 110 S.Ct. at 611.⁹ Of concern to Graff, since he has no permit, are the procedures Chicago follows in removing a newsstand without a permit. Once the commissioner discovers a newsstand operating on public property without a valid permit, the commissioner has the authority to give the operator fifteen days after the posting of a removal notice to restore the public property to its original condition. Chicago Mun. Code § 10-28-190(c). Within that time the owner or operator may request a hearing before the commissioner of transportation, which will be scheduled within thirty days. Even if the commissioner were to rule unfavorably, the operator would not have to remove his newsstand until fifteen days after the commissioner’s final decision. Whether a newsstand is ordered removed, or a permit is granted, denied or renewed, the ordinance leaves these final determinations solely in the hands of the commissioner of transportation. But there is much opportunity for input and discussion before that final determination is made.¹⁰

Graff argues that the ordinance does not provide for “expeditious judicial review” of the commissioner’s decision. See FW/ PBS, 493 U.S. at 239,110 S.Ct. at 611.¹¹ The ordinance contains no mention of the role of the judiciary in reviewing the commissioner’s decisions. As an initial matter, it is not clear why the Court in Freedman set out the apparent requirement that an ordinance such as this explicitly provide for prompt judicial review. A person always has a judicial forum when his speech is allegedly infringed. Neither Graff nor the City argues that the judiciary cannot hear challenges to this ordinance simply because it does not have a specific provision designating a review process. The lack of these additional procedural safeguards does not in any way increase the threat of speech censorship. The “safeguards” or the absence thereof neither expand nor detract from the courts’ jurisdiction over constitutional questions. But we are not writing on a clean slate.

The Constitution of the State of Illinois, Article 7, Section 6 (1970), delineates the explicit powers of home rule units (which the parties do not dispute includes Chicago). See City of Chicago v. State & Mun. Teamsters, 127 Ill.App.3d 328, 82 Ill.Dec. 488, 492, 468 N.E.2d 1268, 1272 (1984). “A home rule unit may exercise any power and perform any function pertaining to its government and affairs.” Ill. Const, art. 7, § 6(a). The Supreme Court of Illinois took little time in holding that this power does not include providing for judicial review of administrative agency decisions. Paper Supply Co. v. City of Chicago, 57 Ill.2d 553, 317 N.E.2d 3, 16-17 (1974); Cummings v. Daley, 58 Ill.2d 1, 317 N.E.2d 22, 23 (1974). In each of those cases the Supreme Court of Illinois rejected a home rule municipality’s attempts to determine “both the jurisdiction of the circuit court to review its municipal administrative determinations and the procedure to be followed in seeking judicial review of those determinations.” Nowicki v. Evanston Fair Housing Review Bd., 62 Ill.2d 11, 338 N.E.2d (1976); see Quinlan & Tyson, Inc. v. City of Evanston, 25 Ill.App.3d 879, 324 N.E.2d 65 (1975). Just because Chicago lacks the separate authority to make available “expeditious judicial review,” FW/PBS, 493 U.S. at 239, 110 S.Ct. at 611, does not mean that such review does not exist.

The appropriate method to review Chicago’s administrative agency decisions is by the common law writ of certiorari. Holstein v. City of Chicago, 803 F.Supp. 205, 210 (N.D.Ill.1992); Stratton v. Wenona Comm’n Unit Dist. No. 1, 133 Ill.2d 413, 141 Ill.Dec. 453, 458, 551 N.E.2d 640, 645 (Ill.App.1990); Norton v. Nicholson, 187 Ill.App.3d 1046, 135 Ill.Dec. 485, 491, 543 N.E.2d 1053, 1059 (1989). Unless excused, claimants have six months to file, wherein review “is extremely broad in scope, and extends to all questions of fact and law contained in the record before the court, including de novo review of any constitutional issues.” Holstein, 803 F.Supp. at 210, citing Howard v. Lawton, 22 Ill.2d 331, 175 N.E.2d 556, 557 (1961).

[T]he court determines from the record alone whether there is any evidence fairly tending to support the order reviewed, and the court cannot set aside the order unless it is contrary to the manifest weight of the evidence.... [Findings and conclusions on questions of fact are prima facie true and correct. It is not the court’s function to resolve conflicting evidence.

Norton, 187 Ill.App.3d 1046, 135 Ill.Dec. 485, 543 N.E.2d at 1059. “If the circuit court, on the return of the writ, finds from the record that the inferior tribunal proceeded according to law, the writ is quashed; however, if the proceedings are not in compliance with the law, the judgment and proceedings shown by the return will be quashed.” Stratton, 133 Ill.2d 413, 141 Ill.Dec. 453, 551 N.E.2d at 645.¹²

In some other First Amendment cases the Supreme Court seemed to require an ordinance to provide for judicial review, even when the writ of common law certiorari was available. However, the Court has not been presented directly with the argument that certiorari was in itself sufficient review, especially where a state makes the common law writ the current common practice, and in fact forbids any other kind of review. We conclude that such review is sufficient. Illinois has shown that a judicial forum is available to review administrative agency decisions. The state maintains uniform judicial review procedures by forbidding home rule units such as Chicago from commenting on the matter. As such the state can expect such uniform procedures to expedite cases and better serve the interests of Graff in a case such as this one.

F. Equal Protection

In count two, Graff alleges that newsstands are treated differently than other permitted uses of the public way, such as sidewalk cafes. One would hope so. Differences are obvious. Each use requires a permit, but separate ordinances necessarily provide different criteria for issuing them. Where, as here, the newsstand ordinance passes strict scrutiny under the First Amendment, it most certainly will pass the rational basis test under equal protection analysis.

[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

Federal Commun. Comm. v. Beach Commun., Inc., — U.S. —, —, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). We have already explained why the ordinance infringes no fundamental First Amendment right.¹³ If reasonable time, place and manner restrictions outweigh Graffs right to free speech, they certainly are sufficient to pass as “conceivable” and “rational.”

Graff argues that Chicago taxes newsstands but not other uses of the public way. Chicago responds that Graff waived the argument because in the district court he questioned only the propriety of a newsstand fee as an invalid prior restraint under the First Amendment, an issue he has not raised on appeal. Graff also argues that newsstands and sidewalk cafes are treated differently with respect to landmark commission approval. Chicago disputes this. It argues Chicago Municipal Code section 2-120-740 subjects all structures on public property to equal treatment. In fact, it argues that seetion 4-384-060 gives the City even more discretion in refusing to grant a cafe permit (as compared to refusing a newsstand permit).

These distinctions do not really matter. Varying taxes and different permit requirements for obviously different uses do not merit word-by-word scrutiny by judges who might prefer to tax and regulate some other way. The question is whether the different treatment of newsstands and cafes occupying the public sidewalks are for “conceivable” and “rational” reasons. We can conceive of many rational reasons for the differences,¹⁴ not the least of which one serves food (a highly regulated enterprise) and the other does not. The only real similarity is that they occupy the sidewalk. It would arguably be irrational to treat these completely different purposes the same way. In fact, equal treatment with a sidewalk cafe would probably result in much more burdensome limitations for a newsstand anyway. Chicago has a very rational basis for mandating different permit requirements for these very different uses.

IV. Conclusion

Graff does not have a constitutional right to build a newsstand on public property. This ease involves a structure which in itself has no First Amendment protection. Thus, the district court properly refused to enter a preliminary injunction, notwithstanding the validity of a permit ordinance. Even if newsstands involve speech, Chicago’s new ordinance passes muster. The ordinance does not allow for content based discrimination by giving the commissioner of transportation too much discretion in ruling on a permit. To the extent that the ordinance restricts speech, Chicago has articulated reasonable time, place and manner restrictions to justify any infringement. The ordinance is also subject to adequate procedural safeguards; therefore the district court was correct in dismissing count one. Because the ordinance is constitutional under Equal Protection analysis, the court was correct in dismissing count two.

The district court is AFFIRMED.

1 . Mayor Daley was sued only in his official capacity. Graff does not appeal the district court’s dismissing Mayor Daley from the case. See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (official capacity suits are essentially against the municipality).

2 . In Lakewood the newspaper publisher insisted that it was not seeking to rent or permanently build a structure on the sidewalk; the newsrack was characterized as similar to a newsboy, and the newsrack his “mechanical cousin.” Id., 486 U.S. at 778 n. 6, 108 S.Ct. at 2155 n. 6. This large, immobile and permanent newsstand is precisely what the publisher in Lakewood implied was unacceptable.

3 . In Lakewood, 486 U.S. at 781-83, 108 S.Ct. at 2157, Justice White, in dissent, feared that equating newsracks with newsboys and conduct commonly associated with expression could allow newspaper publishers the right to take public property for private use. He concluded that such a comparison also ignored the governmental interests at stake: allowing all members of the public use of their streets and sidewalks, insuring the public's safety and aesthetic interests, especially where alternative methods of newspaper distribution are available. Although this argument was not successful as applied to newsracks, permanent newsstand structures present a much more imposing problem.

4 .We disagree with Judge Cummings that “size itself suggests nothing about whether the selling of newspapers and magazines from a stand is speech or conduct.” Cummings, J. opinion at 1336. Size is relevant, because at a certain size the city's unfettered ability to regulate structures eclipses its limited ability to regulate speech. The dissent will concede that the city can place a “prior restraint" on the construction of a ten story building on public property, even if the building happens to have a newspaper store on the first floor. The same is true for a five story building or a one story building. We submit that the same is also true for a newsstand on public property even if it is not true for a newsrack on public property. Size matters, and a newsstand is more closely related to a building than it is to a newsrack.

5 . Under the new ordinance, all existing newsstand permits expired on January 1, 1992. Chicago Mun.Code § 10-28-135. Although Graff has operated his newsstand since 1984, he has not operated under a permit. Presumably he must now compete for a permit on the same basis as any other person. As such, "when two or more otherwise equally qualified application are pending ... preference shall be given to the application for the newspaper stand offering the largest number of different daily publications.” Id. at -160(e). Once Graff is issued a permit under the new ordinance, the Commissioner's only consideration in not renewing it is whether the newspaper stand has complied with the code. Id. at -135(a) & -160(b).

6 . In a footnote in his reply brief, Graff argues for the first time that the current restrictions on the number of permits issued is a codification of arbitrary practices under the old ordinance. This argument is waived. Fed.R.App.P. 28(f) (“A reply brief shall be limited to matter in reply.”). The parties also have not addressed the extent to which having a permit under the old ordinance affects the locations of future newsstands. These issues are not properly before us on appeal.

7 . See Chicago Observer, 929 F.2d at 328; Jacobsen, 851 F.2d at 1070; International Caucus of Labor Comm. v. City of Chicago, 816 F.2d 337, 340 (7th Cir.1987) (upholding restrictions on physical props used to spread message based on the size of the property and public safety); see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 707, 106 S.Ct 3172, 3177, 92 L.Ed.2d 568 (1986) ("the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books”); Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 644 n. 4, 101 S.Ct. 2559, 2562 n. 4 (1981) (noting that there was no First Amendment violation when several hundred potential exhibitors were prevented from speaking because of the cap on booths and a "first come— first serve” policy).

8 . Discovery Network, 946 F.2d 464, was affirmed after the parties had completed briefing and while the appeal was pending. City of Cincinnati v. Discovery Network, Inc., - U.S. -, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993).

9 . In FW/PBS a plurality (O’Connor, Stevens and Kennedy, JJ.) found that "the first two safeguards are essential: the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained and there must be the possibility of prompt judicial review in the event that the license is erroneously denied.” 493 U.S. at 228, 110 S.Ct. at 606. Justices White and Scalia and Chief Justice Rehnquist did not apply any of the "safeguards.” And Justices Brennan, Marshall and Blackmun would have applied all three. The Court considered the nature of the speech and the discretion in the ordinance when determining to what extent the Freedman safeguards were necessary. Thus, if the full procedural protections of Freedman are not necessary in the context of sexually oriented licensing schemes, FW/PBS, 493 U.S. at 228, 110 S.Ct. at 606, it is an open question whether they are necessary in an ordinance that regulates the building of newsstands on public property.

10 , In this case Chicago utilizes the usual procedure in ruling on a permit application — set up more than one level of inquiry and get as many people involved in the process as possible; public hearings, of course, are necessary, at least politically. To begin the process, the commissioner of transportation advertises the availability of newsstand permits (in a newspaper, of course) and shortly thereafter accepts applications. Chicago Mun.Code § 10-28-135. Copies are soon distributed to the commissioner of planning and development and the alderman of the ward affected. The appropriate city council committee is also involved in holding public hearings on the permit. All interested persons, including the applicant, are given an opportunity to speak. The city council committee submits its recommendation to the commissioner of planning and development. He then submits a report to the commissioner of transportation, who gives the previous recommendations “due consideration,” and acts on it within thirty days of that receipt. Id. at -160(a). All are bound by the six enumerated considerations, listed supra. The total time from application to decision can be no less than thirly-fíve and no more than sixty-five days. If the application is denied, the applicant can request a hearing before the commissioner of transportation which must be held within the next thirty days (a quasi-motion for reconsideration). Id. at -160(c).

11 . In FW/PBS the Court held that the city of Dallas need not bear the burden of going to court nor the burden of proof once in court for two reasons: The ordinance was not presumptively invalid because the decisionmaker did not pass "judgment on the content of any protected speech.” Also, "[bjecause the license [or in this case, a permit] is the key to the applicant's obtaining and maintaining a business, there is every incentive for the applicant to pursue a license denial through the court." 493 U.S. at 229-30, 110 S.Ct. at 606. These same reasons apply in this case. We have already held that the ordinance does not give the commissioner unfettered discretion and that any content restrictions are reasonable. Graff's newsstand is also as much a business as an adult book store. Therefore, Chicago need not prove its case in court before ruling on a permit application or removing a newsstand.

12 . The case of Smith v. Department of Public Aid, 67 Ill.2d 529, 10 Ill.Dec. 520, 367 N.E.2d 1286 (1977), helps illustrate the importance of the common law writ of certiorari in the constitutional context. In Smith a county public aid department increased the purchase price for food stamps. A state department of public aid affirmed that decision. On writ of certiorari the trial court declared certain state and federal statutes unconstitutional. In particular, the trial court found that the Illinois Public Aid Code, Ill.Rev.Stat.1975, ch. 23, par. 11-8.7, and a portion of the federal food stamp program, 7 U.S.C. § 2022 (1970), deprived the plaintiffs of due process and equal protection under the Illinois Constitution and the Fifth and Fourteenth Amendments to the United States Constitution, because they did not provide for sufficient judicial review. 67 U1.2d 529, 367 N.E.2d at 1292. The Supreme Court of Illinois reversed, holding that the common law writ of certiorari provided sufficient oversight. Id. at 1293.

13 . Graff alleged in his amended complaint and in the facts section of his brief on appeal that then and now newsstands have operated on the public way without permits and only Graff has been targeted for eviction. Why was this not pursued in response to Chicago's motion to dismiss? If Chicago was allowing newsstands without permits, surely it could not seriously argue that it could remove a newsstand that had not secured one. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295 n. 6, 104 S.Ct. 3065, 3070 n. 6, 82 L.Ed.2d 221 (1984). Obviously there would be no need for the district court to rule on the constitutionality of an ordinance on its face when it was being applied in such a random fashion. Indeed, the record shows that Graff received notices to remove his newsstand which for whatever reasons were later rescinded. Graff, however, raised the equal protection analysis only in arguing that Chicago discriminated by its treatment of newsstands as compared to other, nonexpressive uses of the public way. He did not explicitly or implicitly argue any disparity in requiring newsstand permits to the district court or on appeal; thus, the issue is; waived. Brookins v. Kolb, 990 F.2d 308, 316 (7th Cir.1993); Textile Banking Co. v. Rentschler, 657 F.2d 844, 853 (7th Cir.1981). We have proceeded in this case on the assumption that Chicago evenhandedly enforces its ordinances.

14 . Chicago could reasonably feel that newsstands impede the flow of pedestrian traffic more so than sidewalk cafes. Cafes involve a restaurant that seeks to extend its eating facility to the fresh air. It is reasonable for Chicago to believe that newsstands will not ordinarily attach to nearby buildings. They are free standing on the sidewalk, thus requiring size limitations so as to accommodate adjacent structures. For pedestrians wishing to determine whether it is safe to cross the street, or for drivers wishing to avoid hitting pedestrians, cafes pose less serious threats to safety. It is not only conceivable, but probably a certainty, that many cafes are located in front of property already in use as a restaurant. Extending that type of business onto part of the sidewalk would compromise landmark property no more than the restaurant operating there in the first place. Newsstands, by contrast, stick out; Chicago could feel that such structures are not as aesthetically pleasing. They are separate entities usually having nothing to do with adjoining property. Chicago should be given deference in asserting that lack of patrons would run unattractive cafes out of business, giving them ample incentive to maintain aesthetically pleasing premises. Persons merely wanting a newspaper probably do not regard the beauty of the newsstand of any consequence. Cafes require sufficient space to accommodate sitting customers and tables for food. Newsstands, in contrast, differ radically in the amount of space necessary, and employ fewer people. Eating establishments are heavily regulated and taxed in their own right.