91 F.4th 1318
9th Cir.2024Background
- Plaintiffs were arrested by Seattle police for using charcoal and chalk to write political messages on city property, specifically outside the SPD’s East Precinct.
- The arrests were made under Seattle Municipal Code § 12A.08.020, which criminalized marking property without permission.
- Plaintiffs were released, no charges were filed, but they later sued, challenging the ordinance’s constitutionality under the First and Fourteenth Amendments and seeking a preliminary injunction.
- The City amended the ordinance during litigation, shifting the burden to the prosecution to prove a lack of permission, but plaintiffs continued their facial challenge to the revised law.
- The district court granted a preliminary injunction, barring enforcement of the ordinance for likely overbreadth and vagueness; the Ninth Circuit subsequently reviewed this decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Redressability) | Requested injunction would stop credible threat of enforcement | State law still criminalizes conduct, so relief not redressable | Plaintiffs have standing; injury is redressable |
| First Amendment Overbreadth | Ordinance covers substantial protected speech, facially invalid | Only target is unpermitted marking; plaintiffs rely on hypotheticals | District court erred; overbreadth not sufficiently shown |
| Fourteenth Amendment Vagueness | Express permission requirement too vague for public fora | Ordinance clear in application; enforcement discretion is valid | District court erred; facial vagueness not established |
| Scope of Injunctive Relief | Sought to enjoin the revised ordinance’s enforcement | Injunction should not extend to valid applications | Scope must be tailored; reversed and remanded |
Key Cases Cited
- United States v. Salerno, 481 U.S. 739 (facial challenges generally require plaintiff to show no valid application of the law)
- Virginia v. Hicks, 539 U.S. 113 (overbreadth doctrine provides breathing room for free expression)
- United States v. Williams, 553 U.S. 285 (overbreadth analysis requires realistic, not fanciful, unconstitutional applications)
- Grayned v. City of Rockford, 408 U.S. 104 (some vagueness is tolerable, even for laws implicating free speech)
- Hill v. Colorado, 530 U.S. 703 (speculation about hypothetical vagueness is insufficient for facial attack)