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No. 13-2842 ______________________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ______________________________________________________________________________ The Life Center, Inc., an Illinois not-for-profit corporation d/b/a TLC Pregnancy Services, and on behalf of those women who seek and may seek its reproductive healthcare services and their unborn children, Plaintiffs-Appellees, v.

The City of Elgin, Defendant-Appellant. ______________________________________________________________________________ Appeal from the United States District Court for the Northern District of Illinois No. 13-cv-01759, Judge Samuel Der-Yeghiayan _________________________________________________ Brief of the Plaintiffs-Appellees _________________________________________________ John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661 M. Casey Mattox Alliance Defending Freedom 801 G Street, NW, Suite 509 Washington, D.C. 20001 (202) 393-8690 Counsel for Plaintiffs-Appellees Oral Argument Requested

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CIRCUIT RULE 26.1 DISCLOSURE STATEMENT (1) The full name of every party that the attorney represents in this case: The Life Center, Inc., doing business as TLC Pregnancy Services (2) The name of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court.

Mauck & Baker, LLC Alliance Defending Freedom (3) (i) (ii)

There are no parent corporations. This is a not-for-profit corporation.

There are no publicly held companies that own 10% or more of the party’s stock. None.

Attorney’s Signature: /s/ John W. Mauck__________Date: _November 19, 2013____ Attorney’s Printed Name: _John W. Mauck____ Counsel of Record pursuant to Circuit Rule 3(d)

Yes:

X

Address: Mauck & Baker, LLC, One N. LaSalle Street, Suite 600, Chicago, IL 60602 Phone Number: (312) 726–1243

Fax Number: (866) 619–8661

Email Address: jmauck@mauckbaker.com

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................... iii JURISDICTIONAL STATEMENT ............................................................................... 1 SCOPE OF REVIEW ..................................................................................................... 1 ISSUES PRESENTED FOR REVIEW ......................................................................... 3 STATEMENT OF THE FACTS .................................................................................... 3 SUMMARY OF ARGUMENT ..................................................................................... 11 ARGUMENT ................................................................................................................ 13 I.

Elgin Forfeited Any Challenge to the District Court’s Decision That the Temporary Use Provision was Unduly Burdensome. ........................................... 13

II. The District Court’s Decision to Permanently Enjoin Elgin From Enforcing the Temporary Use Provision was also Proper because it is Overbroad, Vague, and Violates the Free Speech Rights of TLC and the Constitutional Rights of Women Who Seek TLC’s Information and Services. ............................................ 14 A.

Elgin’s Brief Fails to Identify a Single Genuine Issue of Material Fact. ..... 14

B.

Elgin’s Temporary Use Provision is Overbroad and Vague. ........................ 16

C.

Elgin’s Temporary Land Use Provision Unduly Burdens The Exercise of Constitutional Rights including TLC’s freedom of speech and the women’s right to choose life. ......................................................................................... 26

CONCLUSION............................................................................................................. 39 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32 ............................................. 40 CERTIFICATE OF SERVICE ..................................................................................... 41

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FEDERAL CASES

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TABLE OF AUTHORITIES

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................................................................... 16 Anderson Mktg. v. Design House, 70 F.3d 1018 (8th Cir. 1995) ......................................................................... 2, 13 Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)............................................. 31 Bigelow v. Virginia, 421 U.S. 809 (1975) ........................................................................................... 28 Bolles v. People, 541 P.2d 80 (Colo. 1975) ................................................................................... 27 Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) ........................................................................................... 11 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ........................................................................................... 26 Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807 (6th Cir. 2007) ............................................................................. 28 Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept., 533 F.3d 780 (9th Cir. 2008) ............................................................................. 28 City of Ladue v. Gilleo, 512 U.S. 43 (1994) ............................................................................................. 35 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) ........................................................................................... 30 Connally v. General Constr. Co., 269 U.S. 385 (1926) ........................................................................................... 16 Craig v. Boren, 429 U.S. 190 (1976) ........................................................................................... 37 DeBoer v. Village of Oak Park, 267 F.3d 558 (7th Cir. 2001) ............................................................................. 30

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Delloma v. Consolidation Coal Co., 996 F.2d 168 (7th Cir. 1993) ............................................................................. 11 Duggan v. Board of Education, 818 F.2d 1291 (7th Cir. 1987) ........................................................................... 14 Eisenstadt v. Baird, 405 U.S. 438 (1972) ........................................................................................... 37 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) ........................................................................................... 31 Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................................................... passim Hope Clinic for Women, Ltd. v. Flores, 991 N.E.2d 745 (Ill. 2013) ............................................................................. 1, 38 Healy v. James, 408 U.S. 169 (1972) ........................................................................................... 33 Joseph Burstyn v. Wilson, 343 U.S. 495 (1952) ........................................................................................... 31 Larsen v. Fort Wayne Police Dep't, 825 F. Supp. 2d 965 (N.D. Ind. 2010) ............................................................... 30 Lloyd Corp. Ltd. v. Tanner, 407 U.S. 551 (1971) ........................................................................................... 30 Manfredonia v. Barry, 401 F. Supp. 762 (E.D. N.Y. 1975).................................................................... 27 Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) ........................................................................................... 31 Meyer v. Nebraska, 262 U.S. 390 (1923) ........................................................................................... 38 New York v. Ferber, 458 U.S. 747 (1982) ........................................................................................... 25 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ........................................................................................... 11 iv

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North Shore Right to Life Committee v. Manhasset American Legion Post No. 304, 452 F. Supp. 834 (E.D. N.Y. 1978).................................................................... 27 Planned Parenthood v. Casey, 505 U.S. 833 (1992).............................................. 28, 38 Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir. 2002) ............................................................................. 31 Prince v. Massachusetts, 321 U.S. 158 (1944) ............................................................ 38 Prohosky v. Prudential Ins. Co. of America, 767 F.2d 387 (7th Cir. 1985) ............................................................................. 10 Riley v. Nat'l Fed'n of Blind, 487 U.S. 781 (1988) ........................................................................................... 35 Roberts v. United States Jaycees, 468 U.S. 609 (1984) ........................................................................................... 33 Roe v. Wade, 410 U.S. 113 (1973) ........................................................................................... 37 Sherbert v. Verner, 374 U.S. 398 (1963) ........................................................................................... 10 Singleton v. Wulff, 428 U.S. 106 (1976) ........................................................................................... 37 Stuart v. Huff, 834 F.Supp.2d 424 (M.D.N.C. 2011)................................................................. 29 Surita v. Hyde, 665 F.3d 860 (7th Cir. 2011) ............................................................................. 31 Tong v. Chi. Park Dist., 316 F. Supp. 2d 645 (N.D. Ill. 2004) ................................................................. 15 United States v. Feinberg, 89 F.3d 333 (7th Cir. 1996) ........................................................................... 2, 13 United States v. Israel, 317 F.3d 768 (7th Cir. 2003) ............................................................................. 11 v

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United States v. Kokinda, 497 U.S. 720 (1990) .......................................................... 30 United States v. O’Brien, 391 U.S. 367 (1968) ........................................................................................... 31 United States v. Stevens, 559 U.S. 460 (2010) ........................................................................................... 30 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ........................................................................................... 34 Weinberg v. Chicago, 310 F.3d 1029 (7th Cir. 2002) ........................................................................... 36 3M v. Pribyl, 259 F.3d 587 (7th Cir. 2001) ............................................................................. 11 STATE COURT CASES

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County of Lake v. First National Bank of Lake Forest, 68 Ill. App. 3d 693 (2nd Dist. 1979)............................................................ 21, 25 County of Lake v. First Nat'l Bank, 79 Ill. 2d 221 (1980) .................................................................................... 21, 25 STATUTES, RULES, ORDINANCES, AND OTHER AUTHORITIES FED. R. APP. P. 9(e) .................................................................................................... 14 FED. R. APP. P. 28 .................................................................................................. 2, 13 FED. R. CIV. P. 56(c) ................................................................................................... 15 U.S. CONST. amend. I .........................................................................................passim U.S. CONST. amend. XIV ........................................................................................... 16 SECONDARY SOURCES LAURENCE, TRIBE, ABORTION: THE CLASH OF ABSOLUTES 5 (1980) ............................ 26 GAYLORD, SCOTT W. & MOLONY, THOMAS J., CASEY AND A WOMAN’S RIGHT TO KNOW: ULTRASOUNDS, INFORMED CONSENT, AND THE FIRST AMENDMENT, 45 Conn. L. Rev. 595 (Dec. 2012)................................................................. 28-29 vi

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JURISDICTIONAL STATEMENT The jurisdictional summary in the appellant’s brief is complete and correct.

SCOPE OF REVIEW As a threshold matter, Elgin has specifically informed this Court that its interlocutory appeal is limited to “the portion” of the “District Court’s August 8, 2013 Memorandum Opinion and Order permanently enjoining the City of Elgin from enforcing its temporary use ordinance.” (Appellant’s Mot. to Stay Proceedings, Appellate Dkt. 11-1 at p. 2; City’s Br. at 5.) In that portion of its order, the district court based its permanent injunction on three separate and distinct holdings, namely that Elgin’s Temporary Use Provision was: (1) facially overbroad and (2) vague, and (3) as applied, unduly burdensome of the fundamental, constitutional rights of the women who seek or may seek TLC services and support to choose life in the context of their pregnancies. (City’s Short Appendix A (“App. A”) at 13-14.)

Elgin’s opening brief, however, only challenges the merits of the district court’s overbreadth and vagueness holdings. See City’s Br. at p. 4, 20, 30, 37. Elgin’s brief makes no effort to challenge the holding that the Temporary Use Provision unduly burdens TLC’s ability to provide the free pregnancy information, services and support to the women and the women’s right to choose life 1 and care for their The district court’s decision protecting the rights of women to care for, and be informed about, their pregnancies echoes the Illinois Supreme Court’s unanimous decision in Hope Clinic for Women, Ltd. v. Flores, which focused on the best interest of pregnant minors and upheld the Illinois Parental Notice Act and its aim to “ensur[e] that a minor is sufficiently mature and well-informed to make the difficult decision whether to have an abortion.” 991 N.E.2d 745, 763 (Ill. 2013).

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pregnancies, in this case. As a result, Elgin forfeited any challenge to this specific holding and the permanent injunction should be affirmed in view of the wellestablished rule of federal appellate procedure that a court of appeals may only pass on a district court’s holding if the appellant challenges that holding by sufficiently raising and arguing the issue in its opening brief. Fed. R. App. P. 28(9)(a); United States v. Feinberg, 89 F.3d 333, 340 (7th Cir. 1996) (“Any issues or arguments of which the appellate may wish to avail himself are forfeited unless proffered in the appellate brief”); see also Anderson Mktg. v. Design House, 70 F.3d 1018, 1020 (8th Cir. 1995) (This appellate rule applies “with even greater force in a case involving a constitutional question, as federal courts should be hesitant to render an unnecessary decision that a statute, as applied, is or is not constitutional.”)

Therefore, the scope of this Court’s review in this interlocutory 2 appeal is limited to the holdings of overbreadth and vagueness challenged by Elgin, and the appeal should be dismissed, since the appellant only challenges two of the three reasons for the injunction and this Court cannot offer any effective relief to Elgin. A decision that reversed the district court on two of the three independent bases for its injunction, which is all that Elgin seeks in this Court, would be little more than an advisory opinion, leaving the injunction in place.

As set forth more fully in the briefing of Elgin’s pending motion to stay the district court proceedings (Appellate Dkt. at 11-1, 16-1, 17), the district court has retained jurisdiction of, and allowed TLC to proceed to discovery on, the remaining and primarily as-applied claims (listed in the City’s brief at pages 1 and 2) upon which the TLC may establish Elgin’s liability and recover damages. TLC reserves the right to and indeed is proceeding with these claims, and Elgin has now produced written discovery.

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ISSUES PRESENTED FOR REVIEW 1.

Did Elgin waive any argument that the District Court erred in enjoining the Temporary Use Provision as applied to the Plaintiffs on the ground that it unduly burdens the free speech rights of TLC and the constitutional rights of the women who seek TLC’s pregnancy information and services to care for and continue their pregnancies?

2.

Did the District Court err in permanently enjoining Elgin from enforcing the Temporary Use provision where it is overbroad, vague, and violates the free speech rights of TLC and the constitutional rights of women who seek TLC’s services?

STATEMENT OF THE FACTS I. TLC Pregnancy Services’ Mobile Ultrasound Ministry and Outreach.

The Life Center, Inc., is an Illinois not-for-profit corporation, operating as TLC

Pregnancy Services (“TLC”), which was established in 1984 and exists for charitable and religious purposes. (Declaration of Vivian Maly (“Maly Decl.”), Dkt. 1-1 at ¶ 1, p. 1.) TLC, through its trained medical staff and volunteers operating out of its mobile ultrasound facility (pictured below in the Elgin Covenant Church parking lot at 1565 Larkin Avenue, Elgin, IL), offers women free pregnancy information, pregnancy tests, prenatal vitamins, limited obstetrical ultrasound services, and medical referrals to local healthcare providers. (Maly Decl., Dkt. 1-1 at ¶ 2, p. 1.)

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In addition to free limited obstetrical ultrasounds 3 and pregnancy tests, TLC offers women information on pregnancy care and fetal development and growth, professional referrals, maternity clothes, and baby items; TLC also offers men a mentoring program which encourages them to become responsible and caring fathers. (Maly Decl., Dkt. 1-1 at ¶ 4, p. 2.) For those interested, TLC’s staff and volunteers aboard the mobile facility provide a message of hope by sharing the truth of God’s love for them and the life they can find in and through Jesus. Bibles and religious literature are distributed at no charge. (Maly Decl., Dkt. 1-1 at ¶ 7, p. 2.)

TLC’s mobile ultrasound facility is staffed and operated by Janine DeFily, a Registered Diagnostic Medical Sonographer (“R.D.M.S”) and is operated under the supervision of licensed physician Dr. Ronald Winters, who has delivered over 2,000 babies in his over 40 years as a physician in the Elgin area. (Maly Decl., Dkt. 1-1 at ¶ 8, p. 2; DeFily Decl., Dkt.1-2 at ¶ 1, p. 1.)

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According to TLC’s Executive Director Vivian Maly, many of the young women who come to TLC’s mobile facility come because they lack the funds or insurance to obtain the tests and ultrasound services elsewhere and for many reasons need and prefer the accessibility and anonymity the mobile facility provides. (Maly Decl., Dkt. 1-1 at ¶ 5, p. 2.) Many young women also come afraid and alone. (Maly Decl., Dkt. 11 at ¶ 6, p. 2.)

In September 2010, TLC’s mobile ultrasound facility began providing the aforementioned free reproductive healthcare services, information, and spiritual support in private parking lots in Elgin periodically, such as on certain Friday afternoons for two hours, with the permission of the property owners. (Maly Decl., Dkt. 1-1 at ¶ 9, p. 3.) The mobile facility does not require any hook ups to land either for electrical, sewer, water, telephone, or other services. (Maly Decl., Dkt. 1-1 at ¶ 10, p. 3.) In addition to the Elgin Covenant Church parking lot, (Maly Decl., Dkt. 1-1 at ¶ 14, pp. 3-4.), TLC regularly parks in the parking lot of J.B.’s Pub & Pietro’s Pasta just two blocks south of the Elgin Larkin High School at 297 South McLean Boulevard, Elgin, IL 60123. (Maly Decl., Dkt. 1-1 at ¶ 15, p. 4.)

Over the years, TLC has found that accessibility and reliability are critical to its ability to serve and address the needs, fears and questions of those child bearing age women seeking the aforementioned reproductive healthcare services. (Maly Decl., Dkt. 1-1 at ¶¶ 5 & 6, p. 2.) Accordingly, the mobile facility needs to be parked with regularity in certain, clearly visible and accessible locations in Elgin like at the Church or J.B.’s. (Maly Decl., Dkt. 1-1 at ¶ 11, p. 3.) The Church’s parking lot is

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uniquely situated to provide TLC’s mobile facility with the visibility and accessibility necessary to convey TLC’s message to the young women from the adjacent Elgin Larkin High School. (Maly Decl., Dkt. 1-1 at ¶ 13, p. 3.) The Church’s lot abuts the High School and can be reached on foot from the high school. (Id. at ¶18; see second image above.) J.B.’s is also proximate to the Elgin Community College, the St. Edwards Catholic High School, and two low income housing complexes—places where many young women who may face unplanned pregnancies reside or attend. (Id. at ¶16.)

The Elgin Covenant Church has sponsored TLC’s operation and ministry efforts in Elgin and has permitted TLC’s mobile ultrasound facility to park in its lot for several years, and several members of the Church have donated volunteer hours to TLC. (Maly Decl., Dkt. 1-1 at ¶ 14, pp. 3-4.)

II. Elgin’s Temporary Use Provision & Restriction of TLC’s Mobile Outreach.

Prior to June 2012, the City had required TLC to apply and pay for a permit before engaging in its activity at these private locations. (Maly Decl., Dkt. 1-1 at ¶17, p. 4; Dkt. 12 at pp. 1-2.) The cost of each “temporary use” permit in 2012 was $190.00 (Maly Decl., Dkt. 1-1 at ¶18, p. 4; Dkt. 12 at Exhs. 1, 2, and 3.) On January 24, 2012, TLC filed applications with Elgin’s Community Development Department for prior approval of its use of J.B.’s lot from 1:00 p.m. to 5:00 p.m. every Tuesday in January to June 2012 and use of the Church’s lot (Dkt. 12 at Exh. 2, p. 10) every Friday from 11:00 a.m. to 1:00 p.m. from January to July 2012. These applications

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apprised the City that all of the mobile pregnancy services were being provided free of charge and that TLC was a 501(c)(3) organization. (Dkt. 12 at Exh. 3, p. 11.)

These permits were granted and authorized TLC to operate for a few hours once a week out of the Church’s or J.B.’s lot for the requested length of time each calendar year. The days of TLC’s use, taken in the aggregate amounted to about 52 days per zoning lot each year and each non-consecutive day was not counted as an independent and distinct temporary use requiring a separate permit. (See Dkt. 20-3 at Exh. C, pages 1-4 which proposed the amendment from City Manager Sean Stegall and Director Marc. S. Mylott.) Over the last three years, TLC’s mobile facility has provided approximately 200 women with free reproductive healthcare information, services, and support. (Maly Decl., Dkt. 1-1 at ¶ 22, p. 5; DeFily Decl., Dkt. 1-2 at ¶ 7, p. 2.)

Subsequently, on June 27, 2012, the City Council passed Ordinance G38-12 amending the temporary use regulations and definition of “Use, Temporary” (as set forth more fully in the City’s brief at p. 6 and App. A at 9-10.) According to the June 13, 2012 memorandum from the City Manager and the Director Of Community Development to the Mayor and Members of the City Council in support of the ordinance, the purpose of the amendment was to “clarify the way in which temporary uses are counted” and to deal with an unspecified “temporary use business model” the City staff had been presented with in last two last years “that does not operate on consecutive days, rather on one or two regularly scheduled days per week over the course of several months.” (Dkt. 20-3 at Exh. C, p. 1.) The

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memorandum also provided that the amendment was recommended in furtherance of Elgin’s interest in “enhancing the effectiveness of the zoning ordinance” and bettering “the City’s image.” (Dkt. 20-3 at Exh. C, p. 4.)

The amendment changed the way temporary uses were counted by treating each non-consecutive day of use as “an independent and distinct temporary use”—each subject to the permit and fee requirements and each counting towards the limit of four “temporary uses” per zoning lot per year. (August 14, 2012 e-mail correspondence between Planning Technician Cindy A. Walden and Director of Community Development Marc S. Mylott, Dkt. 20-2 at Exh B, p. 1; Ordinance, App. A at 9-10.) Since TLC was operating its mobile facility at J.B.’s on Tuesdays only, each separate Tuesday was considered “an independent and distinct temporary use.” Id. After the amendment, TLC was limited to 4 non-consecutive days per year (at $190 per day/permit) at each and any one location. Id. About a month after the ordinance passed, on August 7, 2012, Elgin’s Chief of Police, Jeffrey Swoboda boarded TLC’s mobile facility parked in J.B.’s lot, and according to TLC’s certified ultrasound technician, told her that TLC had to “cease and desist” its activity and provision of free reproductive healthcare services at that location. (DeFily Decl., Dkt.1-2 at ¶ 3, p. 2.) After the visit from the Chief of Police, TLC’s representatives attempted to renew its permit later in August of 2012, as it had done numerous times before. (Maly Decl., Dkt. 1-1 at ¶ 19, p. 4.)

Prior to filing this lawsuit, TLC made three formal requests to Elgin to accommodate TLC’s mobile outreach at these locations. First, the Chairman of

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TLC’s Board of Directors, John Juergensmeyer, Esq., and TLC’s Executive Director, Vivian Maly, met with Elgin’s Planning Technician Cindy Walden and were informed that TLC could no longer obtain a permit, because it had parked in Elgin more often than was allowed under the recent amendment to the Elgin Zoning Code provision governing temporary land uses. (Maly Decl., Dkt. 1-1 at ¶ 20, p. 4; see App. B at 33.) After saying she had met with her supervisor, Community Development Director Mr. Mark Mylott, Ms. Walden informed TLC that the City would allow TLC to continue parking at J.B.’s only for the remainder of the Tuesday afternoons in August and no more in 2012 in accordance with the amended ordinance, and thereafter, Elgin would only permit TLC to park in any one Elgin location four times per calendar year at a cost of $190.00 per permit, per time and per location beginning in 2013. (Maly Decl., Dkt. 1-1 at ¶ 21, p. 5.; see also Mylott Affidavit, Dkt. 28-1 at ¶ 23, p. 4.)

Second, in September 2012, TLC, by its attorneys, wrote the City to confirm TLC’s understanding of the facts and that the municipal code section being applied to restrict TLC’s activity was Section 19.90.015, as amended by Ordinance #G38-12, Section 2. (Ltr. of Sept. 19, 2012 to Elgin, Dkt. 1-4 at 2.) The letter informed Elgin that if it intended to regulate TLC’s activities as a temporary land use, its actions would be subject to the provisions of the Religious Land Use And Institutionalized Persons Act, 42 U.S.C 2000cc, et seq. and violated TLC’s civil rights as protected by inter alia the First Amendment of the United States Constitution. (Ltr. of Sept. 19, 2012 to Elgin, Dkt. 1-4 at 3 - 4.) The letter also informed Elgin that it was

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inappropriate to regulate TLC’s activity in the various private parking lots as a “land use” as the mobile facility is not land nor a fixture to land, nor is it anything but incidental to the actual land uses for which the actual properties are zoned and otherwise used and occupied—pointing out that thousands of vehicles are parked throughout Elgin on a daily basis for a myriad of purposes and in conjunction with countless activities. (Ltr. of Sept. 19, 2012 to Elgin, Dkt. 1-4 at 4.)

The letter closed with a request for an accommodation from each provision which is not supported by a compelling government interest and the least restrictive means of furthering that interest in view of its infringement upon TLC’s First Amendment rights, referencing Sherbert v. Verner, 374 U.S. 398, 406 (1963) (“only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.”) (Ltr. of Sept. 19, 2012 to Elgin, Dkt. 1-4 at 4.).

Elgin responded by letter dated October 5, 2012, to confirm that it intended to prohibit, limit, and regulate TLC’s mobile ultrasound facility, without exception or accommodation, as a temporary land use subject to the recently amended ordinance.

(Dkt. 1-5.) This suit followed after TLC replied to Elgin with a second letter and its third request for an accommodation was denied.

STANDARD OF REVIEW Review of a district court's decision to grant a permanent injunction “is limited to the determination of whether the district court abused its discretion.” Prohosky v.

Prudential Ins. Co. of America, 767 F.2d 387, 391 (7th Cir. 1985). Any “[f]actual

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determinations are reviewed for clear error and legal conclusions are given de novo review.” 3M v. Pribyl, 259 F.3d 587, 597 (7th Cir. 2001).

Further, this Court may affirm on any basis supported by the record. Delloma v.

Consolidation Coal Co., 996 F.2d 168, 170 (7th Cir. 1993). And “[w]here First Amendment concerns are at issue, appellate courts must conduct an ‘independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” United States v.

Israel, 317 F.3d 768, 770 (7th Cir. 2003) citing Bose Corp. v. Consumers Union, 466 U.S. 485, 499 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86 (1964)).

SUMMARY OF ARGUMENT Elgin’s Temporary Land Use Provision is overbroad, vague, and restricts and interferes with the exercise of fundamental constitutional rights in Elgin. Elgin’s Temporary Use Provision goes well beyond traditional zoning powers to regulate and restrict any type of activity for which land in Elgin can be used for a “fixed period of time.” (see City’s Separate Appendix B (“App. B”) at 33). As this case shows, even if an activity is expressive in nature and the time frame is as brief as TLC’s two hour 4 use of a church parking lot on a Friday, Elgin’s Temporary Use Provision requires a $190 permit for each nonconsecutive “temporary use” and prohibits any more than four non-consecutive “temporary uses” of any one location in a year. In view of the breadth and reach of this provision, it was not an abuse of The City concedes on page 30 of its brief that even “a fixed number of hours” constitutes a “fixed period of time” subject to the temporary use restrictions and fee.

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discretion to permanently enjoin Elgin from enforcing it or error to declare it unconstitutional as (1) overbroad, (2) vague, and (3) unduly burdensome as a matter of law. (App. A at p. 14.)

While Elgin’s brief argues at length that there were factual issues which should have precluded summary judgment, it fails to show how any of the three specific facts it claims are in dispute are material to any of the district court’s three distinct holdings. There is no factual dispute about what the Temporary Use Provision states or the definitions it incorporates (App. B at 32-33) or that it has been applied to restrict TLC’s mobile outreach to pregnant women who seek the free pregnancy information and support TLC volunteers and staff provide aboard the mobile unit.

Only questions of law are in dispute. And as to the law, Elgin’s brief has only challenged the first two holdings of overbreadth and vagueness (see City’s Br. at p.

4, 20, 30, and 37), thereby waiving any challenge to the court’s holding that its Temporary Use Provision unduly burdens the exercise of constitutional rights, specifically a woman’s right to choose life. Even if Elgin has not waived this argument, the record is more than sufficient to support affirmation of the district court’s permanent injunction of the Temporary Use Provision on the basis that it impermissibly interferes with constitutionally protected activities. Allowing the permanent injunction to remain in place will simply force Elgin to amend its Code to make explicit its new found position that “advocacy, proselytization, distribution of literature, or similar speech activities on private property” are not purposes or “type[s] of activity” regulated by the Provision. (Dkt. 28-1 at Exh. 1, ¶ 3, p. 1.)

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ARGUMENT I. Elgin Forfeited Any Challenge to the District Court’s Decision That the Temporary Use Provision was Unduly Burdensome.

As stated above, Elgin's failure to brief any of the issues pertaining to the constitutional basis for the district court ruling means Elgin does not contest (and effectively concedes) that the district court had a sound basis for enjoining the Temporary Use Provision. See, e.g., Feinberg, 89 F.3d at 340 (“Any issues or arguments of which the appellate may wish to avail himself are forfeited unless proffered in the appellate brief.”) Here, Elgin’s brief does not raise any issues or arguments challenging the court’s explicit decision that the Temporary Use Provision unduly burdened TLC’s mobile outreach and the fundamental, constitutional right of the women who seek TLC’s services and support to choose life in the context of their pregnancies. (App. A at p. 14.)

As a result, Elgin forfeited any challenge to this specific holding and the permanent injunction should be affirmed in view of the well-established rule of federal appellate procedure that a court of appeals may only pass on a district court’s holding if the appellant challenges that holding by sufficiently raising and arguing the issue in its opening brief. Fed. R. App. P. 28; Feinberg, 89 F.3d at 340; see also Anderson, 70 F.3d at 1020 (8th Cir. 1995) (This appellate rule applies “with even greater force in a case involving a constitutional question, as federal courts should be hesitant to render an unnecessary decision that a statute, as applied, is or is not constitutional.”)

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Even if Elgin were to attempt to raise an issue in its reply brief with respect to the district court’s holding that the Temporary Use Provision is unduly burdensome, Rule 9(e) provides that issues appearing for the first time in a reply brief will not be considered by this court. Duggan v. Board of Education, 818 F.2d 1291, 1293 (7th Cir. 1987). Wherefore, Elgin’s appeal should be dismissed and the permanent injunction affirmed.

II. The District Court’s Decision to Permanently Enjoin Elgin From Enforcing the Temporary Use Provision was also Proper because it is Overbroad, Vague, and Violates the Free Speech Rights of TLC and the Constitutional Rights of Women Who Seek TLC’s Information and Services.

Even within the scope of issues raised by Elgin on appeal, the district court’s permanent injunction was proper as there were no genuine issues of material fact to preclude the district court from holding as a matter of law that Elgin’s Temporary Use Provision is unconstitutionally overbroad, vague, and unduly burdensome.

A. Elgin’s brief fails to identify a single genuine issue of material fact.

Despite its oft repeated and conclusory claim that material facts are genuinely in dispute, Elgin’s brief only identifies three alleged issues of fact, none of which are material: 1. On page 9 of its brief, Elgin states that “[t]he parties dispute the specific conversation between Chief Swoboda and the TLC staff,” but makes no effort to explain how such a dispute, even if genuine, is in any way material to the facial overbreadth and vagueness of Elgin’s Temporary Use Provision.

2. On page 17, Elgin cites as its primary example the court’s observation that Elgin’s “motives in amending the [Zoning] Code in 2012 were highly suspect and 14

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Elgin appears to have been targeting [TLC].” But again, Elgin makes no effort to explain how the court’s suspicions amount to factual findings material to the issues of the facial overbreadth and vagueness of the Temporary Use Provision. These facial issues do not require a showing of malice or motive.

3. On page 18, Elgin claims that there is a dispute over the fact that TLC, since 2010, has strategically placed its mobile ultrasound facility on certain private parking lots that were easily accessible to young women. (App. A. at p. 13.) Here, Elgin fails to not only explain how this fact is material to any of the court’s three distinct holdings but also fails to establish that the fact is genuinely in dispute. Not only was this fact established by the affidavit of TLC’s Executive Director who has personal knowledge of where, when, and why TLC places its mobile ultrasound facility, but Elgin failed, as the nonmoving party, to “submit competent and specific facts showing that there is a genuine issue for trial.” Tong v. Chi. Park Dist., 316 F. Supp. 2d 645, 652 (N.D. Ill. 2004) citing Fed. R. Civ. P. 56(c).

The remainder of Elgin’s contentions concerning the district court’s treatment of the facts is equally conclusory and fails to specify what material “conflicts” were resolved in TLC’s favor and which material “unsupported statements of raw opinion” were treated as facts. See City’s Br. at 19. While Elgin may disagree with certain of the court’s comments about to the “valu[e]” of TLC’s mobile outreach or the “puzzling” and “suspect” origin of the ordinance, it does not argue or show that these are final findings of fact material to the holdings in the district court’s interlocutory order.

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Further, the district court’s lack of citations to Elgin’s affidavits or documents does not mean that the district court did not consider Elgin’s evidence or consider the record as a whole in the light most favorable to Elgin as the court understood it should. See App. A at p. 5. (The district court cited to and quoted the requisite standards laid out in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986)).

As will be shown more fully below, the record was not only sufficient to support each of the court’s holdings but was also sufficient to support additional bases upon which this Court may affirm the permanent injunction.

B. Elgin’s Temporary Use Provision Is Overbroad and Vague.

In an overbreadth analysis, “[t]he crucial question … is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.” Grayned v. City of Rockford, 408 U.S. 104, 114-115 (1972). In a vagueness analysis, the question is whether the ordinance “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”

Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). The problem with both overbroad and vague laws alike is that they have the impermissible effect of deterring “privileged activity,” Grayned, 408 U.S. at 114.

1. The Temporary Use Provision is overbroad because it regulates any and all types of activities, even speech activities, which occur for “a fixed period of time.”

Elgin spends much of its brief directing the Court’s attention to its definitions of “structure” and “land use”—with which TLC has no quarrel per se, for the issue is

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not their breadth in isolation. The issue is rather the overbreadth of the Temporary Use Provision which incorporates and expands these broad definitions to apply to any activity for which land in Elgin can be used for a “fixed period of time,” even if that time frame is as brief as TLC’s two hour 5 use of a church parking lot on a Friday. Elgin’s arguments ignore the fact that the district court found Elgin’s definitions of “structure” and “land use” to be broad, not overbroad, in isolation.

(App. A at p. 11-12.) What the district found to be overbroad was how the Temporary Use Provision incorporated and applied these broad definitions to an even broader category of activities, namely any and all activities which occur for a “fixed period of time” in Elgin. (App. A. at p. 19.) For all of Elgin’s citations to other zoning codes and land use treatises dealing with the definitions of “land use” and “structure,” Elgin fails to support the use of these broad terms in the even broader temporary use context.

Elgin, however, so misconstrues the district court’s limited decision that it hyperbolically claims that it “effectively invalidate[s] Elgin’s entire Zoning Ordinance” and “calls into question the validity of municipal zoning codes within the Circuit and the country.” City’s Br. at 13-14. Rubbish. If Elgin truly believed this, it would have moved for reconsideration or a modification of the order before the district court or for an expedited appeal to avoid having to go without a valid Zoning Ordinance during the pendency of this appeal.

The City concedes on page 30 of its brief that even “a fixed number of hours” constitutes a “fixed period of time” subject to the temporary use restrictions.

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If zoning doomsday has indeed struck Elgin, why has Elgin proffered zero examples of a particular use, harmful to the people of Elgin, which it has been unable to stop because of the district court’s opinion? It was TLC that faced the real doomsday last year when it discovered that this temporary use provision effectively meant the end of their mobile ultrasound outreach as they knew it in Elgin.

Simply put, the question is whether Elgin is constitutionally permitted to so expand its zoning power to regulate and restrict, on an hour by hour basis, all activities, even free speech activities on private property, like TLC’s mobile ultrasound outreach in the church parking lot. Before the district court, Elgin conceded that its “Regulation applies equally to all temporary uses of land,” (emphasis supplied, Dkt. 23 at 16), and there is nothing in Elgin’s Zoning Code which would indicate that speech activities are excepted. In fact, the record shows that TLC informed Elgin of the communicative and charitable nature of its activities and that Elgin wrote TLC to confirm that there were no exceptions made under the Ordinance for such activities. See Dkt. 28 at 18-19, ¶¶ 43-47 (admitting that the letters of record as Dkt. 1-4 and 1-5 are true and accurate copies of the initial letters exchanged between Elgin and TLC last fall).

With such sweeping definitions, it is hard to imagine a type of temporary activity occurring on land which would fall outside the scope of “temporary land use.” If, as Elgin has insisted, “the plain meaning of such regulations” includes any time TLC’s part-time sonographer parks the mobile facility for a few hours in an effort to reach young women with free pregnancy information, services, and

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support, (Dkt. 1-4, Ex. D to Compl.), then mobile libraries, earth-day awareness trailers, mobile art shows, news vans, campaign buses, and other expressive activities engaged from mobile units on land are required to get and pay $190 for a temporary use permit before they go on any private property for any “fixed period of time,” whether for five minutes or five weeks. It would also apply to a prayer vigil, a theatrical performance, a temporary art display, a townhall event, a protest, and any other type of temporary, expressive activity which Elgin determines to be not incidental or accessory to the primary use for which a property is zoned.

As to the text of the Temporary Use Provision itself, which is not in dispute, there are no stated distinctions or exceptions made on account of an activity being, for example, speech related or organized for a religious or charitable purpose. In fact, Elgin can only point to the self-serving statement of its Development Director for the position or interpretation that “advocacy, proselytization, distribution of literature, or similar 6 speech activities on private property” (emphasis supplied) are not purposes or “type[s] of activity” regulated by the provision. (Dkt. 28 at Ex. 1, ¶ 3.) While a specific exception for constitutionally protected speech activities is welcome and warranted, if not constitutionally required, no such exception exists under the Temporary Use Provision.

To the extent that the City wants to conclude that TLC’s communicative use of ultrasounds fits within the exception the Development Director is creating and will agree to a consent order that will give TLC the confidence that its speech activities are no longer subject to censor and regulation under its temporary land use restrictions, TLC is open to such a resolution, but the City has never agreed to such a consent order.

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According to the text of the Temporary Use Provision and Elgin’s application of it to TLC, the Temporary Use Provision applies no matter what the purpose or type of activity on land is, no matter the number of people involved, and no matter the amount of land or space occupied or the brevity of time for which it is being used.

This is exactly the type of impermissible ordinance which is so overbroad that it “cast[s] a net so wide that its regulation impermissibly burdens speech.” Schultz v.

City of Cumberland, 228 F.3d 831, 848 (7th Cir. 2000).

Wherefore, the district court’s permanent injunction and overbreadth holding should be affirmed.

2. The Temporary Use Provision is unconstitutionally vague because it is susceptible to arbitrary, subjective, or discriminatory enforcement, and inhibits the exercise of First Amendment freedoms.

Elgin’s Temporary Use Provision is so broad and unclear in its possible scope that people of common intelligence must necessarily guess at its meaning and would certainly differ as to its application, if the absurd result of requiring a temporary use permit prior to engaging in any activity on land or in a “structure” for a “fixed period of time” (be it a minute, an hour, or twenty-four hours) is to be avoided. The difference between how Elgin’s attorneys interpret and applied the provision as opposed to how Elgin’s Development Director now interprets the provision is a perfect example. In communications with TLC before this suit and in support of Elgin’s motion to dismiss, Elgin’s attorneys insisted that the provision “applies equally to all temporary uses of land” without exception for speech, religious, or charitable activities. (Dkt. 1-5, Exh. E at 1; Dkt. 23 at 16). Now the City

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Development Director insists that the provision does not apply to “speech activities,” (Dkt. 28 at Exh. 1, ¶ 3), even though such an exception is nowhere to be found in Elgin’s zoning code.

Because this exception for “speech activities” is nowhere to be found in Elgin’s zoning code, people of common intelligence are at best left to guess and differ over the application of the Temporary Use Provision. At worst, the Temporary Use Provision is so broad and vague that it is susceptible to excessively discretionary, arbitrary and discriminatory application and enforcement by city officials—be it by an Elgin Zoning Enforcement Officer or by a City Council person in cooperation with the Chief of Police as may have been the case herein.

In County of Lake v. The First National Bank of Lake Forest, a temporary use provision and structure regulation nearly identical to Elgin’s was rejected as overbroad and vague by the Illinois Appellate Court. 68 Ill. App. 3d 693, 699 (2nd Dist. 1979) aff’d by County of Lake v. First Nat'l Bank, 79 Ill. 2d 221 (1980). The court held that a zoning provision which defines and regulates a “temporary land use” or “structure” as “[a]nything constructed, erected, or placed, which requires location in or on the ground or is attached to something having a location on the ground…” (emphasis supplied) was “without doubt unconstitutionally vague and overbroad.” (emphasis supplied) Id. The court reasoned that “to make any other finding would lead to the patently absurd result of requiring the permission of the county zoning officer before one places anything whatsoever in or on the ground or even before one paints one’s own 21

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house.” (emphasis supplied) Id. Thankfully, zoning codes in Illinois have not collapsed as a result of this 1980 decision.

Vagueness challenges are appropriate where a law fails to provide clear notice of what is being regulated or prohibited, because they are susceptible to arbitrary, subjective, or discriminatory enforcement, or may chill or “operate[s] to inhibit the exercise of [First Amendment] freedoms.” Grayned, 408 U.S. at 108-109. Here, the impermissible vagueness of the Temporary Use Provision is highlighted by the fact that nothing in the text of the provision itself would give a person of ordinary intelligence a reasonable opportunity to know that Elgin, through its Development Director, now takes the position or interpretation that “advocacy, proselytization, distribution of literature, or similar speech activities on private property” are not purposes or “type[s] of activity” regulated by the Ordinance. (Dkt. 28 at Ex. 1, ¶ 3.)

And the lack of such an express exception for the very speech activities identified by Elgin’s Development Director highlights the provision’s overbreadth.

As it stands now, Elgin’s Corporation Counsel took the position in its letter to TLC that “the city’s position remains that [TLC’s] activities constitute a temporary use,” (Dkt. 1-5 at 5) and Elgin has argued that its “Regulation [on its face] applies equally to all temporary uses of land,” (Dkt. 23 at 16). In obvious conflict with the Corporation Counsel’s position, Elgin’s Development Director asserted in his declaration before the district court that it is Elgin’s (yet uncodified) policy to exempt “speech activities” on private property from the Temporary Use Provision.

(Dkt. 28 at Ex. 1, ¶ 3.) Both cannot be true, and the text sets forth no such

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exception. Since such an exemption is necessary but not set forth in the Ordinance itself, the district court’s declaration of the Temporary Use Provision’s overbreadth and vagueness served to confirm that such an express exemption is indeed necessary and would benefit those of ordinary intelligence who have only read the Code itself or read the letter from Elgin’s Corporation Counsel (not the zoning official’s declaration in this case) and are left wondering if their speech activities, like TLC’s, are governed by the broad terms and strict requirements of the Temporary Use Provision. They should not be forced, as TLC was, to send letters to Elgin’s attorneys and sue Elgin in order to get such belated assurance. Indeed, a person of ordinary intelligence would consider TLC’s mobile outreach and ultrasound service, which is principally charitable and expressive in nature, to be a speech activity on private property within the Director’s stated exception.

The Supreme Court’s decision in Grayned, 408 U.S. at 110-14 supports the district court’s holding that the Temporary Use Provision is impermissibly vague.

In Grayned, the Court found “no unconstitutional vagueness” in an ordinance prohibiting “any noise or diversion” near schools, because the Ordinance had: (1) a “clear” purpose (preventing the disruption of “normal school activities”), (2) limiting language (only applied to noise occurring “adjacent” to a “school in session”), and (3) a prior state court interpretation upholding the use of similar language (Illinois Supreme Court upheld use of “tending to disturb” language). Id.

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Distinguishing Grayned point (1), here Elgin’s Temporary Use Provision has no clear purpose. At the TRO hearing, Elgin’s attorney argued that the ordinance was in place to protect “brick-and-mortar” businesses from unfair competition. (Dkt. 15 at 15, lines 1-5.) However, in its Motion to Dismiss, Elgin argued that the provision served the various alleged purposes of managing “land use density” and “open space,” avoiding “encroachment on required yards and setbacks” and “interference with stormwater runoff patterns …ingress, egress, and circulation of pedestrian and vehicular traffic,” as well as dealing with “increased parking demands.” (Dkt. 23 at 20.) Then in opposition to summary judgment, Elgin argued that the purpose of the provision was a catchall to “enhance the effectiveness of the zoning ordinance.” (Dkt. 27 at 14.) Even assuming this incoherent muddle of municipal interests, Elgin makes no effort to show how charitable and religiously motivated expressive activities like TLC’s mobile ultrasound outreach threatens any of these interests—especially when they occur only for a few hours a week on private property.

Distinguishing Grayned point (2), the Temporary Use Provision has no limiting language and Elgin fails to clearly identify a limiting construction. Elgin’s attempt to appeal to its use of exclusive zoning, City’s Br. at 24, wherein only the specific uses listed are allowed within the various districts, also fails because the TLC’s mobile outreach and ministry is not listed as a permitted or conditional use in any district. Under Elgin’s Code Section 19.10.400, land uses or types of activity which are not expressly allowed are prohibited. While it may be true that J.B.’s lot is

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zoned to allow “nursing and personal care facilities,” TLC’s charitable and speech related mobile pregnancy support services can be hardly shoe-horned into such a category. None of the zoning districts expressly allow the non-commercial type of speech related activities at issue here.

Addressing Grayned point (3), the closest state court decision in this case, County of Lake v. First Nat’l Bank of Lake Forest, 386 N.E.2d 394, 398 (Ill. App. Ct. 1979) rejected a nearly identical zoning provision as overbroad and vague as set forth above. In Grayned, the Supreme Court’s concerns about the overbreadth and vagueness of the noise ordinance were assuaged in part because the Illinois Supreme Court had interpreted the same troubling language in another case in a limiting away. 408 U.S. at 111. In the Lake County case, however, the Illinois Appellate Court did not strain to interpret the zoning ordinance, which required a permit from the Zoning Officer before the use of any structure 7 or land within the County was changed, but rightly concluded that the language was “without doubt unconstitutionally vague and overbroad.” First Nat’l Bank of Lake Forest, 386 N.E.2d at 398.

As such and because the Temporary Use Provision “sweeps within its prohibitions” a substantial amount of activity protected by the First Amendment, Grayned, 408 U.S. at 114-15. The result is no different should the case be examined under New York v. Ferber, 458 U.S. 747, 770 (1982) or Broadrick v. Okla., 413 U.S.

Defined by Lake County, almost identically as it under Elgin’s Code, as “Anything constructed, erected, or placed, which requires location in or on the ground or is attached to something having a location on the ground.” 386 N.E.2d at 398.

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601, 615 (1973) because the overbreadth of the Temporary Use Provision is not only real but substantial in light of even what City contends is its purpose.

C. Elgin’s Temporary Land Use Provision Unduly Burdens The Exercise of Constitutional Rights including TLC’s freedom of speech and the women’s right to choose life.

Even if Elgin has not waived its challenge to the district court’s distinct holding that the Temporary Use Provision was unduly burdensome on fundamental rights, this Court should affirm the district court’s permanent injunction on that ground.

1. The Temporary Use Provision Impermissibly Restricts TLC’s Free Speech Rights.

Despite Elgin’s efforts to pigeon-hole TLC’s mobile outreach as merely the operation of a “mobile clinic,” the record establishes, and Elgin cannot genuinely dispute, that the purpose of TLC’s mobile outreach is primarily to use ultrasounds to inform interested women about the life inside them. (Maly Decl., Dkt. 1-1 at ¶¶ 1—15.) TLC’s experience has confirmed that, if a picture is worth a thousand words, a live ultrasound image of your baby is worth a million. No other medium of expression can inform and reach a woman about the real life inside her like an ultrasound revealing her child’s beating heart, clenched fists, gender, smile, or yawn. As Professor Laurence Tribe writes, Many [people], who can readily envision the woman and her body, who cry out for her right to control her destiny, barely envision the fetus within that woman and do not imagine as real the life it might have been allowed to lead. For them, the life of the fetus becomes an *** invisible abstraction.

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LAURENCE, TRIBE, ABORTION: THE CLASH OF ABSOLUTES 5 (1980). No pro-life pamphlet, sign, or even photograph can render the invisible visible and the abstract real like an ultrasound.

Although TLC has found no better way of providing a practical and needed service at no charge while communicating its pro-life message to the women in Elgin, the City contends that TLC’s use of free ultrasounds to inform and persuade the women about the life inside them does not constitute protected speech activity.

Elgin instead focuses solely on the limited medical component of TLC’s mobile outreach and entirely ignores the clearly communicative component of TLC’s use of ultrasounds, even though ultrasounds have been widely recognized as an effective, expressive medium for informing the public on the life of the unborn. In fact, Elgin goes to such great lengths to avoid the discussion of TLC’s expressive use of ultrasounds that it only even mentions “ultrasounds” in a single sentence of its thirty-seven pages. See City’s Br. at 26.

Over the years, the courts have gone to great lengths to protect what the Supreme Court defined in Roe v. Wade, 410 U.S. 113 (1973) as a woman’s privacy right to have an abortion, as well as to protect the methods and mediums used by citizens on both sides of the issue to maintain and influence the public discourse on the issue. Bolles v. People, 541 P.2d 80, 85 (Colo. 1975) (protecting right to massmail brochure depicting aborted fetuses); Manfredonia v. Barry, 401 F. Supp. 762 (E.D. N.Y. 1975) (protecting use of “graphic displays” of self-abortion devices); North Shore Right to Life Committee v. Manhasset American Legion Post No. 304, 452 F.

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Supp. 834 (E.D. N.Y. 1978) (protecting right to participate in a parade); Bigelow v.

Virginia, 421 U.S. 809 (1975) (protecting right to publish abortion advertisements).

Both the Sixth Circuit in Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 813, 816 (6th Cir. 2007) and the Ninth Circuit in Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept., 533 F.3d 780, 785 (9th Cir. 2008) protected the right to use a truck covered with large pictures of aborted fetuses to influence the public discourse. If the use of graphic and gruesome images of aborted fetuses publically displayed on a truck is protected speech activity, how much more so the use of ultrasound images of a woman’s own live fetus, yet untouched by the world, privately displayed aboard TLC’s mobile facility by a medical professional to an interested mother?

In Planned Parenthood v. Casey, the Supreme Court recognized as a guiding principle that “structural mechanism[s]” and measures designed and employed by the State or even private parties to “express profound respect for the life of the unborn” or “to persuade [the mother] to choose childbirth over abortion” are constitutionally permitted—in this case protected from government interference. (emphasis supplied) 505 U.S. 833, 877-78 (1992). As Professors Scott W. Gaylord & Thomas J. Molony chronicle in their December 2012 University of Connecticut Law Review article entitled CASEY AND A WOMAN’S RIGHT TO KNOW: ULTRASOUNDS, INFORMED CONSENT, AND THE FIRST AMENDMENT, “national attention has [now] focused on the use of ultrasound technology,” (footnotes omitted) 45 Conn. L. Rev. 595, 597:

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Twenty-three states having enacted statutes that require physicians to perform, offer to perform, or follow specific protocols when performing an ultrasound prior to any abortion procedure. Thirteen states currently have legislation pending that would impose similar ultrasound requirements. The trend shows no sign of stopping.

In fact, both sides of the public discourse recognize that the ultrasound can be a medium of informing a woman about the life insider her and its use can in fact be speech activity—the ultrasound laws are even dubbed “speech-and-display requirements” when they require the images to be shown and explained to the women. In Stuart v. Huff, for example, the court held that requiring a physician to use ultrasound to inform women about their pregnancies constituted compelled speech, because it required the physician “to orally and visually convey specified material about the fetus to their patients.” 834 F.Supp.2d 424, 429 (M.D.N.C. 2011).

Plaintiffs are not arguing that every ultrasound is necessarily performed for expressive purposes and any regulation of ultrasound violates the First Amendment. See Casey, 551 U.S. at 884 (Holding that in some cases the First Amendment rights of the physicians may be implicated but “only as part of the practice of medicine, subject to reasonable licensing and regulation by the state.”).

TLC offers free ultrasounds to women and does not offer any additional ultrasound services beyond limited obstetrical ultrasounds performed by a registered sonographer or licensed physician. It is unrebutted that TLC does so not as part of a larger medical service but in order to share with women the facts and its opinions about the human life inside them. In this context the ultrasound is used as part of

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TLC’s First Amendment protected speech activity, not as part of any medical service subject to Illinois’ regulation of the practice of medicine.

In this way TLC’s use of ultrasound images is no less a speech activity than a photographer’s use of photographic images, or videographer’s use of a video to inform and persuade. Larsen v. Fort Wayne Police Dep't, 825 F. Supp. 2d 965, 979 (N.D. Ind. 2010) (noting that the taking and sharing of photographs or videos for a communicative purpose is protected by the First Amendment); see also United States v. Stevens, 559 U.S. 460, 452 (2010) (holding that even video depictions of animal cruelty are not categorically unprotected by the First Amendment). Thus, even if Elgin’s Temporary Use Provision only applied to TLC’s mobile facility because of the ultrasounds provided therein, the provision would still have the effect of restricting TLC’s speech. In fact, TLC’s method of communicating with and to the young women is entitled to the greatest protections afforded by the First Amendment because it involves: 1) the free distribution of non-commercial information, see United States v.

Kokinda, 497 U.S. 720, 734 (1990); 2) elements of religious expression, see DeBoer v. Village of Oak Park, 267 F.3d 558, 570 (7th Cir. 2001); and 3) communication on private property with the owner’s permission and support, see Lloyd Corp. Ltd. v. Tanner, 407 U.S. 551, 570 (1971) (The fundamental rights of speech and private property can be compatible, and both must be “respected and protected” from governmental interference.)

While ultrasound has unique aspects, such uniqueness, however, simply presents the Court with an opportunity to apply “the broad principles of the First Amendment,” in recognition that “each method of communicating ideas is ‘a law 30

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unto itself,’” (internal citation omitted) Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501 (1981) and that those broad “principles, as they have frequently been enunciated by this Court, make freedom of expression the rule”—not the exception.

Joseph Burstyn v. Wilson, 343 U.S. 495, 503 (1952). And if Elgin’s regulations would constitute impermissible limitations on speech activity in traditional public forums, they would a fortiori constitute impermissible limitations on speech activity on the private lots at issue herein.

Elgin has entirely failed to show that it has “a sufficiently important” or “compelling” governmental interest in regulating any element of TLC’s activities determined to be non-speech which is of “sufficient importan[ce]” to justify the limitations on TLC’s substantial First Amendment freedoms and speech activity.

United States v. O’Brien, 391 U.S. 367, 376-77 (1968).

Further, since TLC’s mobile outreach is a speech activity, the Temporary Use Provision acts as an impermissible prior restraint, because it obligates TLC to pay for and get permission prior to engaging in protected speech activity at each private lot. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992); and Surita v. Hyde, 665 F.3d 860, 875 (7th Cir. 2011). The provision provides Elgin officials the “power to deny the use of a forum in advance of actual expression.”

Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 999-1000 (7th Cir. 2002). The Supreme Court has held that there is a “heavy presumption” against the validity of such prior restraints, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), and that cities bear a heavy burden to justify such restraints. Forsyth, 505 U.S. at 130.

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At a minimum, Elgin must show that its Temporary Use Provision is a “proper time, place, or manner restriction[]… narrowly tailored to serve a significant government interest unrelated to the suppression of free expression and leave open alternative channels for communication.” (internal citations omitted) Pleasureland, 288 F.3d at 999-1000.

While a number of TLC’s applications were granted, Elgin’s amended Temporary Use Provision facially fails to provide adequate procedural safeguards, see Freedman v. Maryland, 380 U.S. 51 (1965), to limit when and why an application for temporary use can be denied. To the extent that Elgin may argue that such safeguards are unnecessary or that there is no room for discretion in its permitting scheme, Elgin’s temporary use restrictions and $190 permit fee (required for each independent use of each lot) are essentially a license tax which is being imposed as a precondition of TLC’s exercise of its First Amendment rights in Elgin, irrespective of the fact that TLC is a charitable organization seeking to provide free information and support on private property. See Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943) (“[a] flat license tax, the payment of which is a condition of the exercise of these constitutional privileges.”) As the Supreme Court has stated, “[t]he power to tax the exercise of a privilege is the power to control or suppress its enjoyment,” and “the power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down.” Id. at 112-113.

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A $190 fee is hardly nominal when one considers that TLC must pay $190 for every one of the four Friday afternoons to which it would be limited at the Church lot or for every one of the four Tuesday afternoons to which it would be limited at J.B.’s., as well as any other location to which TLC might wish to move. Even assuming, strictly arguendo, that TLC was able to find and continue moving to enough locations in Elgin to continue operating its mobile facility just two days a week, such as on Tuesdays and Fridays on two different lots as it has in the past, and even assuming that Elgin would grant TLC 15 day permits despite its days of use not being consecutive, TLC’s “permit” fees would still total more than $9,000.00 a year ($190 for each of the 24 fifteen day periods in a year for each of the two lots) and $4,500 per year for each additional location. (Dkt. 27, p. 13, City has conceded that TLC could “theoretically” pay over $9,000 a year in permit fees to operate all year round.) Such a licensing tax scheme does not “bear a rational relationship to the public services involved with the matter licensed,” Joelner v. Village of Wash.

Park, 378 F.3d 613, 626 (7th Cir. 2004), and is certainly not narrowly drawn.

Further, the Supreme Court has long held “implicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984); see also Healy v. James, 408 U.S. 169 (1972). Here, Elgin’s Temporary Use Provision also acts as an impermissible prior restraint on TLC’s right to the freedom of expressive association to the extent that they require TLC to obtain prior

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approval before it can park on the private lots of those, like the Church, who wish to share in and support TLC’s message.

As prior restraints on TLC’s First Amendment rights to both speech and expressive association, Elgin bears a “heavy burden” to justify its temporary use regulation of TLC’s mobile facility. The Memorandum sent from the City Manager and Director of Community Development to the Mayor and City Council of Elgin in support of the adoption of the amended ordinance, Exh. C to Plaintiffs’ SOF, reveals that the amendment was proposed and enacted strictly in furtherance of Elgin’s alleged interest in enhancing the effectiveness of the zoning ordinance, bettering the city’s image, and dealing with an unspecified “temporary use business model” that staff had been presented with within the last two years “that does not operate on consecutive days, rather on one or two regularly scheduled days per week over the course of several months.” Id. Based on the memorandum, TLC asks the Court to conclude that Elgin’s underlying “governmental interest” in enacting the ordinance is as insufficient and vague as the ordinance itself.

Furthermore, Elgin cannot establish that its temporary use regulations constitute reasonable time, place, and manner restrictions that are “narrowly tailored to serve a significant governmental interest, and … leave open ample alternatives for communication.” See United States v. Grace, 461 U.S. 171, 177 (1983); see also Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Elgin has not even attempted such justification and under Fed. App. Rule 28 has waived the right to make such an argument.

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When considering whether a law is narrowly tailored and leaves open ample alternatives for communication, the Supreme Court has held that “the First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.” Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 790-91 (1988). The Supreme Court also held in Schneider v. State, that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” 308 U.S. 147, 163 (1939). TLC knows that the best way and best places to reach the young women, particularly those in high school who are or may become pregnant, with its free information and support is by consistently and reliably parking the mobile facility at certain locations which are clearly visible and accessible for TLC’s intended audience. (Maly Decl., Dkt. 1-1 at ¶11.) The Church’s lot and J.B.’s lot are unique in that they are both proximate to the High School, highly visible, and accessible from the school. (Id. at ¶¶12-16.) The Church’s lot in particular abuts the High School and can be reached on foot from the high school.

(Id.) J.B.’s is also proximate to the Elgin Community College, the St. Edwards Catholic High School, and two low income housing complexes—places where many young women who may face unplanned pregnancies reside or attend. (Id.) And perhaps more importantly, the locations are owned by those who support TLC’s ministry and wish to encourage the hearing of TLC’s life affirming message. See City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (Holding that location was an

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important component of the communicative message and necessary to reach the intended audience).

Before the district court, Elgin failed to identify a sufficient interest supporting its regulation of where and how often TLC’s mobile outreach may inform and reach the pregnant women about the life they have within them and about the life they can find in and through Jesus. Even if Elgin could somehow show, as argued before the district, that “there are more than 3,400 eligible8 sites” in Elgin which TLC could jump around to during the year in order to comply with the Temporary Use Provision (and avoid using one place more than four times), there is no way those sites would provide TLC the ability to effectively communicate and reach its intended audience with the support of the property owner—especially when one considers that TLC and expectant mothers would be denied any regular or reliable location in view of its four use per lot limit now in effect. These other sites are not legitimate and ample alternatives for TLC’s communication, see Clark v.

Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); see also Weinberg v.

Chicago, 310 F.3d 1029, 1042 (7th Cir. 2002). And requiring TLC’s mobile outreach to avoid using any one location more than four times simply does not serve any government interest.

The City defined eligible only in terms of whether the parcel is zoned in such a way as to allow for the provision of “mobile pregnancy support services,” (Dkt. 12 at Exh. A, ¶ 5), and gave no consideration to whether any of the sites provide TLC with the accessibility, visibility, consent and support offered by the Church and J.B.’s which are critical to TLC’s ability to reliably serve and reach the young women.

8

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2. The Temporary Use Provision unduly burdens the fundamental, constitutional right of the women who seek or may seek TLC’s services and support to choose life in the context of their pregnancies.

In accordance with a number of Supreme Court decisions which approved thirdparty standing, the district court has allowed TLC to proceed with its claims on behalf of the women who seek and may seek the free information, services, and support its mobile facility provides. See, e.g. Eisenstadt v. Baird, 405 U.S. 438, 445 (1972), Singleton v. Wulff, 428 U.S. 106 (1976), and Craig v. Boren, 429 U.S. 190 (1976) (“vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.”) Elgin has not challenged TLC’s standing or third-party standing on appeal.

As advocates of the rights of the women who seek access to its mobile pregnancy services, TLC maintains that the district court properly held that the Temporary Use Provision unduly burdens their fundamental, constitutionally protected right to privacy which encompasses their freedom of choice regarding healthcare and access to information concerning their pregnancy. See, e.g., Eisenstadt, 405 U.S. 438 (1972) (recognizing a right to obtain and use contraceptives); e.g. Roe, 410 U.S. at 153 (1973)(recognizing a right to have an abortion). Elgin has not challenged the standing of TLC to argue the right of women to make informed decisions concerning their pregnancies. And there is no basis in law or common sense to think that women have less freedom or less substantial rights to care for and further their pregnancies than they have to prevent them or abort them—especially in light of

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what the Supreme Court has recognized as the state’s compelling interests to support not thwart maternal health, the preservation of fetal life, and in ensuring the woman’s choice is informed. Planned Parenthood v. Casey, 505 U.S. 833, 878 (1992); Roe, 410 U.S. at 150.

The decisions of Prince v. Massachusetts, 321 U.S. 158 (1944) and Meyer v.

Nebraska, 262 U.S. 390 (1923) also serve to highlight the Supreme Court’s commitment to ensuring the “private realm of family life,” which includes the fundamental rights to “the custody, care and nurture of the child reside first in the parents,” is not interfered with by the state absent a compelling state interest.

Prince, 321 U.S. at 166. Elgin asserts certain interests in support of its Temporary Use Provision: “land use density,” “open space,” “stormwater runoff patterns,” “pedestrian” and “vehicular traffic,” and “parking,” (City’s Br. at 35), but never suggests the women’s particular use implicates those interests at all much less in a way sufficiently compelling to justify the provision’s restrictions on women’s access to and benefit from the only free mobile pregnancy support service in the area.

Like the recent and unanimous decision from the Supreme Court of Illinois in Hope Clinic, 991 N.E.2d at 763 (Ill. 2013) upholding the Illinois Parental Notice Act, the decision of the district court serves to protect the right of young women to be well-informed in their pregnancy decisions and upholds the welfare of young pregnant women as paramount. For many women served by TLC, the information and assistance it provides is a critical resource for their maternal health and for insuring the health of their unborn child. At every turn and even on appeal, Elgin

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has ignored this interest—so much so that it failed to even address it in its opening brief before this Court even though it was one of the primary bases upon which the district court rested its opinion.

CONCLUSION This Court should affirm the permanent injunction and judgments of the district court.

Respectfully Submitted, The Life Center, Inc. By: /s/ John W. Mauck__________ Counsel for Plaintiffs-Appellees

John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661 M. Casey Mattox Alliance Defending Freedom 801 G Street, NW, Suite 509 Washington, D.C. 20001 (202) 393-8690 Counsel for Plaintiffs-Appellees

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No. 13-2842 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7)(B) The undersigned, counsel of record for the Plaintiffs-Appellees The Life Center, Inc., hereby certifies that this brief conforms to the rules contained in F.R.A.P. Rule 32(a)(7)(B) for a brief produced with a proportionally spaced font.

The length of this brief as counted by the word-processing system used to prepare this brief is 10,616.

Dated: November 19, 2013 /s/ Noel W. Sterett__________ Counsel for Plaintiffs-Appellees John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661 M. Casey Mattox Admitted Pro Hac Vice Alliance Defending Freedom 801 G Street, NW, Suite 509 Washington, D.C. 20001 (202) 393-8690 Counsel for Plaintiffs-Appellees

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No. 13-2842 CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that on November 19, 2013, he caused the Plaintiffs-Appellees The Life Center, Inc.’s Brief, to be filed with the Seventh Circuit Court of Appeals electronic filing system, which electronically served notification and copies of such filing upon all attorneys who have appeared and are of record. /s/ Noel W. Sterett__________ Counsel for Plaintiffs-Appellees John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661 M. Casey Mattox Alliance Defending Freedom 801 G Street, NW, Suite 509 Washington, D.C. 20001 (202) 393-8690 Counsel for Plaintiffs-Appellees

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