Second City Music, Inc., Doing Business as Second Hand Tunes v. City of Chicago, Illinois

333 F.3d 846, 2003 U.S. App. LEXIS 13029, 2003 WL 21480358
CourtCourt of Appeals for the Second Circuit
DecidedJune 27, 2003
Docket02-4034
StatusPublished
Cited by22 cases

This text of 333 F.3d 846 (Second City Music, Inc., Doing Business as Second Hand Tunes v. City of Chicago, Illinois) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Second City Music, Inc., Doing Business as Second Hand Tunes v. City of Chicago, Illinois, 333 F.3d 846, 2003 U.S. App. LEXIS 13029, 2003 WL 21480358 (2d Cir. 2003).

Opinion

EASTERBROOK, Circuit Judge.

To prevent dealers in used merchandise from serving (wittingly or not) as fences for thieves, Chicago requires them to obtain licenses, collect information about each person from whom they purchase goods, and submit to searches on demand. Chicago Municipal Code §§ 4-264-005 to -230. The ordinance covers all dealers in “secondhand property,” a term that means any used “audio-video equipment, camera, computer hardware, jewelry made of precious metal or stone, article made of precious metal, precious stone or gem, sporting or athletic wear or equipment, including a bicycle, watch or currency.” Chicago Municipal Code § 4-264-005 ¶7. The phrase “audio-video equipment” has its own definition {id. at ¶ 1): “any stereo, speaker, radio, video recorder, video camera, television, tape or disc player, telephone, pager or satellite signal device.” That was the definition, at any rate, until June 2002, when the City added two items that it concluded had become popular with thieves: compact discs (CDs) and digital versatile discs' (DVDs). Second Hand Tunes believes that by doing this Chicago violated the first and fourth amendments, plus the due process clause of the fourteenth. Until the amendment, Second Hand Tunes had not needed a license to operate its business of buying and selling used recordings, and it had not needed to keep the records required by the law; it asked the district judge to prevent the City from applying the amendment to established businesses. After the district court denied its motion for a preliminary injunction, see 231 F.Supp.2d 784 (N.D.Ill. 2002), Second Hand Tunes took an immediate appeal, which we expedited. The arguments on appeal are a subset of those presented to the district court; we describe only those developed in this court.

Second Hand Tunes first contends that § 4-264-020 is unconstitutionally vague, at least as applied to dealers in materials protected as speech under the' first amendment. This section provides, among other things, that an applicant for a license to deal in used goods must be “of good character and repute.” According to Second Hand Tunes, the imprecision of this language enables the City to discriminate against dealers in songs and movies that the police find irksome — for example, gangsta rap, songs with lyrics extolling drug use or underage sex, and lurid movies that approach but do not cross the border into obscenity. Relying principally on Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), Second Hand Tunes contends that an open-ended licensing standard operates as a prior restraint on speech. The district court concluded, however, that the ordinance does not regulate speech, so that the special rules applicable to. that topic do not apply. Instead, the court thought, it is a generally applicable law, covering rare coin dealers, bicycle shops, and only incidentally sellers of used audio and video discs. This led the judge to apply the approach of Graff v. Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc), which holds that municipalities need not write generally applicable laws with the same precision required of laws that address speech.

Second Hand Tunes’ other target is § 4-264-050(f), which requires dealers to make their records available to the police for inspection on demand dining business hours. The record-keeping ■ rules are themselves extensive: dealers must learn *848 (and document) the identity of those from whom they buy, must log every item purchased in each transaction, and must deliver this information to the police daily; then dealers must hold new inventory unsold for 10 days, so that the police may retrieve any items that had been stolen. In the district court Second Hand Tunes directly challenged the record-keeping rules; on appeal these rules are relevant only to the extent that they ensure that, if police arrive for an inspection, there will be plenty to see. The district court held that the obligation to admit the police for inspection does not violate the fourth amendment because it is reasonable in time (being limited to business hours, when anyone may walk in off the street and peruse the inventory) and scope (being limited to records that facilitate identification of stolen goods). The district judge observed that sellers of used merchandise long have been closely regulated to separate legitimate dealers from fences, and that decisions such as New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), deem “reasonable” searches of business premises designed to ensure compliance with regulatory requirements. Cf. Dimeo v. Griffin, 943 F.2d 679 (7th Cir.1991) (en banc). This aspect of the district court’s decision seems to us correct, for the reasons the district judge gave. If the City should implement these provisions in an unconstitutional manner (for example, by increasing the frequency of inspections of shops that carry disfavored recording), then both money damages and injunctive relief will be available. If applied as written, though, they comport with the Constitution.

Vagueness in the licensing requirement is, however, a more difficult issue. Weinberg v. Chicago, 310 F.3d 1029, 1043-46 (7th Cir.2002), holds that precision is required with respect to a law’s application to speech even if that law principally covers matters other than speech. Yet neither is this case a replay of Weinberg, where the plaintiff had a particular viewpoint that he wished to communicate, or of Lakewood, where the ordinance was directed to newsracks. Second Hand Tunes is not itself a speaker but facilitates a market where speech is a product on sale. Plaintiff concedes that it has no point of view with respect to the works of authors, either; it buys and sells whatever comes on the market.

An effort to control where and how middlemen sell the written word differs in principle from a law addressed only to middlemen — such as, for example, a statute requiring all retail outlets, including bookstores, to be “clean” and “well lit”. These are vague terms, to be sure, but unlikely to have either the purpose or the effect of stifling speech, as a law that reads directly on the sale of books or newspapers could do. Intermediaries and agents often are subject to rules that could not be applied to primary speakers. Think of the requirements for admission to the bar. Lawyers must demonstrate character and fitness under standards that are no clearer than those Chicago applies to dealers in used merchandise, cf. In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961), and lawyers may be disciplined if they engage in “conduct unbecoming a member of the court’s bar”. See Fed. R.App. P. 46(b)(1)(B). No such rules could be applied to authors and publishers, but as applied to those who represent authors and publishers they are valid. See In re Mann,

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333 F.3d 846, 2003 U.S. App. LEXIS 13029, 2003 WL 21480358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/second-city-music-inc-doing-business-as-second-hand-tunes-v-city-of-ca2-2003.