dissenting:
I respectfully dissent from the majority opinion in this case because, contrary to the majority’s determination, the ordinance in this case is “content-based” and cannot survive the strict scrutiny test.
In Jones, our supreme court was asked to determine if an ordinance which exempted advertising from the restrictions of the sound amplification statute was a content-based restriction on free speech which violated the first amendment. Under the statute, the broadcast of an advertising message emanating from a vehicle which was loud enough to be heard at 75 feet away was permitted, while the broadcast of any other message at the same volume was prohibited. Jones, 188 Ill. 2d at 358.
The court concluded that the statute was a content-based regulation of expression, stating as follows:
“The sound amplification statute, by its plain terms, premises the permissibility of protected speech on its content. The statute’s restriction does not apply equally to all types of amplified sound. Rather, a certain type of speech, advertising, is exempted from the volume restriction. The statute thus allows the amplification of an advertising message, but prohibits the same amplification of all other messages, including religious speech, political speech and music. The permissible degree of amplification is dependent on the nature of the message being conveyed. Thus, by any ‘commonsense understanding of the term’ [citation], the statute’s restriction is content-based.” Jones, 188 Ill. 2d at 360-61.
The majority takes the position that the exception for participating in a parade or public assembly is not for a type of message but, rather, an exception for time and place of communication. I disagree.
Advertising is defined as “the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public.” Webster’s Third New International Dictionary 31 (1993). A parade is defined as “to assemble *** in formation” or “to march or take part in a procession.” Webster’s Third New International Dictionary 1635 (1993). An assembly is defined as “a company of persons collected together in one place us[ually] for some common purpose (as deliberation and legislation, worship, or entertainment).” Webster’s Third New International Dictionary 131 (1993).
In this case, the ordinance permits amplification of the message only if it is capable of being expressed in the form of a parade or public assembly. Parades and public assemblies are actually a form of “advertising” in that the purpose of such demonstrations is usually to make other persons aware of the participants’ particular message. Just as anyone can advertise for any purpose, anyone can parade or organize a public assembly for any purpose. If an exception for advertising is “content-based,” then so are exceptions for parades and public assemblies.
I am of the opinion that the exception in the ordinance for parades and public assemblies is a content-based restriction for just the same reasons as was the exception for advertising in the statute found to be unconstitutional in Jones. Further, as did the court in Jones, I would find no compelling state interest which would necessitate such a content-based restriction in the ordinance in this case.
Therefore, pursuant to Jones, I would uphold the trial court’s determination that the ordinance in this case is unconstitutional.
I further would conclude that the good-faith exception invoked by the State does not apply for the reasons set forth in People v. Aaron, 296 Ill. App. 3d 317 (1998). The State’s reliance on People v. Carlson, 185 Ill. 2d 546 (1999), is misplaced for the ordinance in this case is constitutionally, not statutorily, invalid.
For all of these reasons, I would affirm the judgment of the trial court. Therefore, I respectfully dissent.