Hunt v. City of Los Angeles
2011 U.S. App. LEXIS 5721
| 9th Cir. | 2011Background
- Venice Beach Boardwalk ordinances 42.15 (2004), 42.15 (2006), and 63.44 regulate vending and expressive activities on the Boardwalk.
- Hunt and Dowd, vendors on the Boardwalk, challenge these ordinances as unconstitutional under §1983 for multiple reasons.
- 42.15 (2004) required Public Expression Participant Permits and designated spaces; allowed only certain merchandise linked to a message via 'inextricably intertwined' language.
- 42.15 (2006) retained a broad vending ban with numerous exceptions and added a permit system and weekly lottery for spaces.
- 63.44 barred activities in City parks/Harbor Department properties; provisions were suspended in 2005.
- District court granted Hunt summary judgment on the 2004 version, denied on the 2006 version, and the City challenged damages/fees; court remanded to address 63.44.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LAMC 42.15 (2004) is void for vagueness | Hunt argues §42.15(2004) is vague and overbroad, failing to define 'religious, political, philosophical or ideological' messaging or 'inextricably intertwined.' | City contends Gaudiya-based standard provides adequate guidance; §42.15(2004) reasonably restricts unregulated vending. | Void for vagueness; §42.15(2004) fails to give ordinary people notice and invites arbitrary enforcement. |
| Whether LAMC 42.15 (2006) passes muster as to vagueness and as a commercial speech restriction | §42.15(2006) is vague and improperly limits protected speech intertwined with commerce. | §42.15(2006) clearly defines permissible vs. prohibited merchandise and addresses unregulated vending; it is a valid restriction. | Vagueness is not shown; the statute provides clear categories; the ordinance is a permissible restriction on commercial speech. |
| Whether §42.15 (2006) is a valid time, place, or manner restriction or a Central Hudson-compliant commercial speech regulation | Hunt/Dowd contend it is an overbroad time/place/manner restriction; improper for commercial speech when intertwined with protected speech. | Restriction targets unregulated vending and ordering of space; it is a reasonable fit and narrowly tailored under Central Hudson. | §42.15 (2006) constitutes a permissible commercial speech restriction with a reasonable fit to the City's objectives. |
| Whether §42.15 (2006) and related claims constitute a prior restraint | Challenge that permit/licensing creates unbridled discretion and prior restraint on speech. | Permits were issued; claim relies on hypothetical risk, not injury-in-fact due to existing permits. | Plaintiffs lack standing to attack the permitting process as a prior restraint to the extent they already possess permits; the claim fails. |
| Whether LAMC §63.44 claims should be addressed and remanded | Claims under §63.44 should be addressed; not abandoned by focusing on §42.15. | §63.44 not fully addressed below; remains a live issue for district court. | Remand to address §63.44 in the first instance. |
Key Cases Cited
- Gaudiya Vaishnava Soc'y v. City & Cnty. of San Francisco, 952 F.2d 1059 (9th Cir. 1990) (First Amendment protection for sale of merchandise when inextricably intertwined with message)
- Perry v. L.A. Police Dep't, 121 F.3d 1365 (9th Cir. 1997) (sale of merchandise with expressive messages protected when not solely commercial)
- Fox v. Board of Trustees, 492 U.S. 469 (Supreme Court 1989) (commercial speech vs. noncommercial messages; not all advertising is protected)
- Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980) (four-part test for commercial speech restrictions)
- Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (U.S. 2010) (vagueness and First Amendment considerations in expressive activities)
- Maldonado v. Morales, 556 F.3d 1037 (9th Cir. 2009) (application of vagueness to speech-related regulations)