LAKI KAAHUMANU; MAUI WEDDING AND EVENT PROFESSIONALS ASSOCIATION, a non-profit organization v. STATE OF HAWAII, DEPARTMENT OF LAND AND NATURAL RESOURCES; WILLIAM J. AILA, JR., Chairperson; DOES 1-5, INCLUSIVE
No. 10-15645
United States Court of Appeals, Ninth Circuit
June 6, 2012
673 F.3d 1203
D.C. No. 1:09-cv-00036-SPK-BMK
Appeal from the United States District Court for the District of Hawaii Samuel P. King, Senior District Judge, Presiding
Argued and Submitted February 16, 2011—Honolulu, Hawaii
Filed June 6, 2012
Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.
Opinion by Judge William A. Fletcher
*William J. Aila, Jr., is substituted for his predecessor Laura Thielen, as Chairperson of the Board of DLNR, pursuant to
COUNSEL
William Joseph Wynhoff, OFFICE OF THE HAWAII ATTORNEY GENERAL, Honolulu, Hawaii, for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs are Laki Kaahumanu, a Native Hawaiian pastor who performs religious wedding ceremonies, and Maui Wedding and Event Professionals Association (“Event Professionals“), an association of individuals and businesses providing commercial services for weddings. Defendants are the State of Hawai‘i Department of Land and Natural Resources (“DLNR“), which manages, controls and administers public lands in Hawai‘i, and William J. Aila, Jr., Chairperson of the Board of DLNR.
Plaintiffs bring a First Amendment and other constitutional challenges to regulations and associated guidelines that require permits for “commercial weddings” on public beaches in Hawai‘i. We uphold the regulations and guidelines in all respects but one.
I. Background
Over 200 public beaches in Hawai‘i are under DLNR‘s jurisdiction. See Beaches, Hawai‘i Department of Land and Natural Resources, available at http://hawaii.gov/dlnr/land/forms-1/WikiPermitLocations.pdf (last visited Feb. 10, 2012) (listing beaches). These include such beautiful beaches as Wailea Beach on Maui; Waimea Bay Beach on Oahu; and Papohaku Beach on Molokai. Many commercial companies provide services for recreational activities on Hawai‘i‘s beaches. During the late 1990s and early 2000s, these services were largely unregulated, with the result that some public beaches became congested by commercial enterprises. For example, kayak and surf schools stored equipment on and operated from public beaches, and hotels set out chairs and
In November 2002, DLNR began to regulate commercial activities on “unencumbered” public beaches. Unencumbered lands are public lands, including beaches, that have not been “(1) Set aside for any purpose, by statute, executive order, or other means to a governmental agency; or (2) Encumbered by lease, license, permit, easement, or other document issued by [DLNR].”
DLNR regulations provide, “No person shall engage in commercial activities of any kind without a written permit from the board or its authorized representative.”
the use of or activity on state land for which compensation is received by any person for goods or services or both rendered to customers or participants in that use or activity. . . . Commercial activities include activities whose base of operations are outside the boundaries of the unencumbered state lands, or provide transportation to or from the unencumbered state lands.
. . .
“Compensation” includes, but is not limited to, monetary fees, barter, or services in-kind.
An applicant seeking a permit for a commercial event, including a wedding ceremony, may apply by mail or may use a “Wiki Permits” website. Ninety-five percent of permit applications are made through Wiki Permits. The welcoming page of the website, entered into the record in the district court, states, “Commercial activity for which a permit is required would include a beach wedding, a baby christening, the scattering of ashes, or the teaching of a hula class, as possible . . . . It is essential that all commercial activity for which a permit is obtained comply with the General Terms and Conditions for Commercial Activity.”
The Terms and Conditions provide that a permit can reserve a “right-of-entry area” for no more than two hours. The fee for a permit is $0.10 per square foot of the requested beach area, with a minimum of $20 per “event.” An applicant for a permit must obtain “comprehensive public liability insurance,” naming the State of Hawai‘i as an additional insured, of “at least $300,000 per incident and $500,000 aggregate.” An applicant must also agree to indemnify and hold harmless DLNR for loss or damage arising out of actions by the applicant. No alcoholic beverages are allowed in the permitted area. An applicant must agree to restore the beach to its original condition after the event.
The Terms and Conditions provide further:
No accessories, structures, devices, amplified instruments, appliances, apparatus or equipment of any type whatsoever shall be placed on or within the right-of-entry area or premises, including but not limited to the following:
arches; bowers; alters [sic]; tables;
chairs; kahilis1; tents and or tarps; event signage
of any type including banners, sandwich boards; kiosks or carts; stanchions, posts, ropes or similar equipment for the purpose of demarcation of the right-of-entry area; and surfboards, windsurf boards, kayaks or other ocean recreation equipment;
with the exception of the following:
loose flowers, leis, bouquets, corsages or boutonnieres; unamplified musical instruments, including a conch shell; doves or butterflies for releases; a limited number of chairs as strictly necessary for the support of elderly, infirm, or disabled persons attending the event(s); cameras and camera equipment; other non-obtrusive hand-carried wedding accessories; small podium or cake stand, not to exceed three feet square in size; and ocean vessels/equipment used exclusively for the purpose of scattering ashes during authorized funeral services.
The Terms and Conditions provide no limitation on the people who may be involved in a wedding. Nor do they provide any restriction on the apparel of participants, or any limitation on what participants are allowed to say.
Paragraph 17 of the Terms and Conditions provides, “All disputes or questions arising under this right-of-entry shall be referred to the Chairperson [of the Board of DLNR] . . . . The Chairperson‘s decision shall be final and binding on the parties herein.” Paragraph 18 provides, “The right-of-entry permit is revocable and terminable at anytime for any reason in the sole and absolute discretion of the Chairperson.” Paragraph 21 provides that DLNR reserves “the right to impose additional[ ] terms and conditions as it deems necessary or appropriate while the right-of-entry is in force.”
Guidelines specifically addressed to commercial weddings were published by DLNR in the form of answers to “Frequently Asked Questions.” The answers provide, among other things, “Weddings taking place on a state beach which have any component that involves the receipt of compensation for services or goods other than the services of a photographer require a permit from the DLNR.” A permit is required even if the only person paid in connection with the wedding is a minister, priest, rabbi, or “other religious or nonprofit entit[y].” A civil penalty of up to $5,000 may be levied for failure to have a permit or for violation of the terms and conditions of a permit. Weddings with as few as three people (the wedding couple and a paid officiant) require a permit. The two-hour maximum period of a permit “includes set up and restoring the area after the event.” Permit holders have exclusive occupancy of a “right-of-entry area” of the beach during the period of the permit, but they may not reserve any particular area in advance. Permit holders “must find an open area when they arrive at the beach” and cannot displace people who are already on the beach.
Plaintiffs filed suit in the federal district court of Hawai‘i in January 2009, alleging that DLNR‘s permit requirements unduly burden their right to organize and participate in weddings on unencumbered state beaches, in violation of the First Amendment, equal protection, and due process. Plaintiffs contend that the regulations and
Plaintiffs timely appealed.
II. Standard of Review
We review de novo a grant of summary judgment. Hargis v. Foster, 312 F.3d 404, 409 (9th Cir. 2002). We conduct an independent review of the facts in First Amendment cases. Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1019 (9th Cir. 2009).
III. Discussion
A. Article III Standing
To establish standing under Article III, a plaintiff must show that
(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 180-81 (2000).
DLNR challenges Plaintiffs’ Article III standing, contending that Plaintiffs have not been injured and do not face imminent threat of injury. According to undisputed evidence submitted by DLNR, more than 7,000 beach wedding permits were granted in the year since the permitting requirements were first applied to commercial weddings. Members of Event Professionals have received more than 1,700 beach wedding permits. No member has been denied a permit.
Plaintiffs who challenge a permitting system are not required to show that they have applied for, or have been denied, a permit. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1034 (9th Cir. 2006) (“That [appellant] has never applied for a permit under the . . . [o]rdinance does not destroy its standing.“). Plaintiffs must only have declined to speak, or have modified their speech, in response to the permitting system. See Ariz. Right to Life PAC v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003).
Ronald Winckler, President of Event Professionals, states that he has coordinated fewer weddings as a result of the permitting requirements. Winckler states that “[h]anging over the heads of the wedding professionals and their clients is the threat of permitted weddings being cancelled arbitrarily and without notice at the sole discretion of the DLNR.” He states further that DLNR‘s regulations have sparked negative commentary on the internet and have made Hawaiian beach weddings less desirable. Reverend Kahu Alalani Hill, a member of Event Professionals, is the operator of Kuhina Hawaiian Weddings and Blessings. He states that permitting fees and insurance requirements have caused his wedding planning rates to go up, and that fewer couples have decided to hire him as a consequence. Hill also declares that DLNR‘s prohibition on the use of kahilis requires him to exclude them from his wedding ceremonies.
Reverend Ayesha Sandra Lee Furumoto, a licensed minister and a wedding and
[1] A plaintiff generally “may only bring a claim on his own behalf, and may not raise claims based on the rights of another party.” Pony v. Cnty. of L.A., 433 F.3d 1138, 1146 (9th Cir. 2006). However, an association can bring claims on behalf of its members. See Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009); Hunt v. Wash. State Apple Adver. Comm‘n, 432 U.S. 333, 342-43 (1977). Plaintiff Event Professionals thus has standing to assert the litigating rights of its members, including Winckler and Hill.
“[L]imitations on a litigant‘s assertion of jus tertii are not constitutionally mandated, but rather stem from a salutary ‘rule of self-restraint’ designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative.” Craig v. Boren, 429 U.S. 190, 193-94 (1976) (citations omitted). Jus tertii standing is based on a litigant‘s assertion that the application of a statute or rule to a third party violates that party‘s rights. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 n.3 (1989). “[V]endors 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.” Craig, 429 U.S. at 195. See also Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1082 (9th Cir. 1987) (court confers third party standing when it is satisfied that plaintiff will be “effective proponent[ ] of third-party rights“).
[2] Event Professionals has Article III standing to assert claims on behalf of those who seek to marry on an unencumbered state beach in Hawai‘i. As in Craig, application of DLNR regulations to commercial weddings has resulted in economic injury to “vendors,” that is, to the members of Event Professionals, who organize such weddings. Also as in Craig, members of Event Professionals are “subject to sanctions and loss of license for violation of the [regulations],” making Events Professionals “a proper party in interest to object to [their] enforcement.” Id. at 193; see also Carey v. Population Servs., Int‘l, 431 U.S. 678, 682-84 (1977) (distributor of contraceptives had standing to bring a privacy challenge against New York law limiting distribution of contraceptives on behalf of potential purchasers); Eisenstadt v. Baird, 405 U.S. 438, 445 (1972) (distributor of contraceptives who acted as “an advocate of the rights of persons to obtain contraceptives and those desirous of doing so” had third party standing); Barrows v. Jackson, 346 U.S. 249, 254-60 (1953) (seller of land who acted as an advocate of minority rights had standing to defend against racially restrictive covenant). “The legal duties created by [DLNR‘s challenged rules] are addressed directly to vendors such as [Event Professionals]. [Event Professionals] is obliged either to heed the [regulatory prohibition], thereby incurring a direct economic injury through the constriction of [its] market, or to disobey the [regulatory] command and suffer” legal sanction. Craig, 429 U.S. at 194.
[3] Because we hold that Event Professionals has Article III standing, we need not reach the question whether plaintiff Kaahumanu also has Article III standing. See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981) (“Because we find [one plaintiff] has standing, we do not consider the standing of the other plaintiffs.“).
B. First Amendment
[4] Plaintiffs’ First Amendment challenge poses three questions. First, do wedding ceremonies constitute “speech” protected by the First Amendment? Second, what is the nature of the forum? Third, are the challenged restrictions on commercial weddings permissible in the forum? See, e.g., Flint v. Dennison, 488 F.3d 816, 826-30 (9th Cir. 2007).
1. First Amendment Protection
DLNR suggests that wedding ceremonies “may not implicate First Amendment protected speech at all” because they are “personal, private, and non-political communication.”
The First Amendment protects more than political speech. “[E]ven though political speech is entitled to the fullest possible measure of constitutional protection, there are a host of other communications that command the same respect.” Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 816 (1984); see, e.g. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (First Amendment protects parades; paintings, music and poetry are “unquestionably shielded“); Int‘l Soc‘y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677-78 (1992) (citing cases) (First Amendment protects public ritual of disseminating religious material and soliciting funds for support); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (First Amendment protects door-to-door religious evangelism).
[5] The First Amendment also protects more than just the spoken and written word. It protects expressive conduct so long as that conduct “convey[s] a particularized message” and is likely to be understood in the surrounding circumstances. Spence v. Washington, 418 U.S. 405, 409-11 (1974) (per curiam); see, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (First Amendment protects nude dancing); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66 (1981) (live entertainment); Berger v. City of Seattle, 569 F.3d 1029, 1035-37 (9th Cir. 2009) (en banc) (balloon art and other street performances). A “narrow, succinctly articulable message” is not required. Hurley, 515 U.S. at 569. See also W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 642 (1943) (failure to salute a flag); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969) (right to wear an armband in a public school).
[7] The core of a wedding ceremony‘s “particularized message” is easy to discern, even if the message varies from one wedding to another. Wedding ceremonies convey important messages about the couple, their beliefs, and their relationship to each other and to their community. “[A] private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech.” Hurley, 515 U.S. at 569-70. The core of the message in a wedding is a celebration of marriage and the uniting of two people in a committed long-term relationship. “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967) (internal quotation marks and citation omitted). We have no difficulty concluding that wedding ceremonies are protected expression under the First Amendment.
2. Nature of the Forum
The standards we use to determine whether DLNR‘s regulations and guidelines violate the First Amendment depend on the nature of the forum at issue. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001). The Supreme Court has divided public forums into three categories: “traditional public forums,” “designated public forums,” and “limited public forums.” Christian Legal Soc‘y v. Martinez, 130 S. Ct. 2971, 2984 n.11 (2010); see also Pleasant Grove City v. Summum, 555 U.S. 460, 469-71 (2009); Wright v. Incline Vill. Gen. Improvement Dist., 665 F.3d 1128, 1134 (9th Cir. 2011). The rest of government property is either a nonpublic forum or no forum at all. Ark. Educ. Television Comm‘n v. Forbes, 523 U.S. 666, 677 (1998).
[8] Traditional public forums are “devoted to assembly and debate” because of a “long tradition or . . . government fiat.” Id. (quoting Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n., 460 U.S. 37, 45 (1983)) (internal quotation marks omitted). “The government can exclude a speaker from a traditional public forum ‘only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.’ ” Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985)).
“Designated public for[ums] . . . are created by purposeful governmental action.” Id. ” ‘The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse.’ ” Id. (quoting Cornelius, 473 U.S. at 802) (alterations in original). “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove, 555 U.S. at 469-70.
Limited public forums are forums that the government has reserved “for certain groups or the discussion of certain top-ics.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). We have sometimes referred to the limited public forum as a “sub-category of a designated public forum.” Flint, 488 F.3d at 830 (quoting Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001)). “In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint-neutral.” Pleasant Grove, 555 U.S. at 469-70 (citation omitted).
[9] “Other government properties are either nonpublic for[-ums] or not for[ums] at all.” Forbes, 523 U.S. at 677. In a nonpublic forum, regulations must be “(1) reasonable in light of the purpose served by the forum and (2) viewpoint neutral.” Ctr. for Bio-ethical Reform, Inc. v. City & Cnty. of Honolulu, 455 F.3d 910, 920 (9th Cir. 2006) (quoting Brown v. Cal. Dep‘t of Transp., 321 F.3d 1217, 1222 (9th Cir. 2002).
The parties dispute the nature of the forum. DLNR contends that all unencumbered state beaches are nonpublic forums. Plaintiffs contend that they are all traditional public forums. Hawai‘i‘s unencumbered state beaches vary from heavily trafficked beaches to isolated beaches accessible only by foot or watercraft. On the record before us, it is difficult to put all of Hawai‘i‘s unencumbered state beaches into a single forum category. See Boardley v. U.S. Dep‘t of the Interior, 615 F.3d 508, 515 (D.C. Cir. 2010) (rejecting contention that all national parks are traditional public fora because “[t]he record before this court is woefully inadequate to determine the forum status of the hundreds of national parks governed by the NPS regulations“).
[10] We need not decide the precise nature of the forum. For the regulations we uphold, we will assume without deciding that unencumbered state beaches in Hawai‘i are, as Plaintiffs contend, a traditional public forum. That is, we will assess the validity of all the regulations we uphold under the most exacting test for restrictions on forum access. For the regulations that we conclude are invalid, we will assume with-out deciding that the unencumbered state beaches in Hawai‘i are, as DLNR contends, nonpublic forums. That is, we will assess their validity under the less exacting test for restrictions on forum access.
3. Validity of Restrictions on Commercial Weddings
a. Facial or As-Applied Challenge
Plaintiffs seek to bring both facial and as-applied challenges to DLNR‘s regulations of commercial weddings. We conclude that they may bring only an as-applied challenge, with one exception. Plaintiffs may bring a facial challenge to the regulations giving DLNR discretion to
[11] In Southern Oregon Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir. 2004), we described the conditions under which a facial challenge to a statute or regulation may be brought:
[T]o be subject to facial challenge, a licensing law must have a close enough nexus to expression, or conduct commonly associated with expression, to pose a real and substantial threat of the risks of censorship. [L]aws of general application that are not aimed at conduct commonly associated with expression and do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken, such as laws requiring building permits, pose little danger of censorship and may therefore be challenged only by the usual as-applied method. In other words, a facial challenge is proper only if the statute by its terms seeks to regulate spoken words or patently expressive or communicative conduct, such as picketing or handbilling.
Id. at 1135 (emphasis added; internal quotation marks and citations omitted). The law at issue in Barter Fair was Ore-gon‘s Mass Gathering Act, which “regulates gatherings of large numbers of people overnight in open spaces.” Id. We noted, “It is certainly possible to imagine gatherings that might be subject to the Act but are purely recreational and devoid of expressive purpose, such as some carnivals, festivals, and . . . . Nonetheless, the statute is broad enough to cover gatherings that are expressive, such as large-scale demonstrations or religious ceremonies.” Id. We concluded “that the Act bears a sufficiently close nexus to conduct commonly associated with expression that it is subject to a facial challenge.” Id. at 1136.
In Food Not Bombs, the law at issue was a municipal ordinance regulating the serving or distribution of food in public parks. Id. at 1029. Plaintiff Food Not Bombs sought to distribute free food to “highlight a connection between the lack of food for the poor and war-preparation activities of the United States government.” Id. at 1030 (internal quotation marks omitted). We held that a facial challenge to the ordinance was not available: “Food Not Bombs does not argue that food distribution is on its face an expressive activity. Whether food distribution can be expressive activity protected by the First Amendment under particular circumstances is a question to be decided in an as-applied challenge, should one be brought.” Id. at 1032 (internal citations omitted). We also expressly noted that plaintiffs did not challenge the licensing official‘s discretion in determining whether to grant or deny a permit. See id. at 1037 n.15 (explaining that plaintiffs did not challenge “the breadth of official discretion” but instead challenged the ” ‘other’ requirements of time, place, and manner jurisprudence“) (quoting Galvin v. Hay, 374 F.3d 739, 747 n.5 (9th Cir. 2004)).
[12] We conclude that this case is closer to Food Not Bombs than to Barter Fair. The regulations imposing restrictions on commercial weddings do not on their face “seek[ ] to regulate spoken words or patently expressive or communicative conduct, such as picketing or handbilling.” Barter Fair, 372 F.3d at 1135. The breadth and generality of DLNR‘s regulation of commercial activity, combined with DLNR‘s failure to regulate in any manner who may officiate at a wedding, who may attend the wedding, what may be worn at a wedding, and what words may be spoken at a wedding, convince us that a facial challenge is not available. We therefore treat most of this case as an as-applied
[13] However, we address as a facial challenge Plaintiffs’ objection to the regulations that give DLNR discretion to grant and revoke permits, and to amend their terms and conditions. DLNR has not actually exercised this discretion adversely to Plaintiffs, but such exercise of authority is not necessary. The Supreme Court and the Ninth Circuit have repeatedly allowed facial attacks premised on the grant of unbridled discretion to a licensing official. See City of Lakewood v. Plain Dealer Publ‘g Co., 486 U.S. 750, 759 (1988) (“[A] facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.“); Freedman v. Maryland, 380 U.S. 51, 56 (1965) (“[I]t is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.“); Long Beach, 574 F.3d at 1020 (allowing unbridled discretion claim to proceed as facial challenge); Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality, Repression, & the Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 794 (9th Cir. 2008) (collecting cases allowing facial challenge to regulation that confers unbridled discretion on government official to restrict expressive activity).
We allow facial challenges to such discretion for two reasons:
First, the mere existence of the licensor‘s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused . . . . Second, the absence of express standards [i.e., unbridled discretion] makes it difficult to distinguish, ‘as applied,’ between a licensor‘s legitimate denial of a permit and its illegitimate abuse of censorial power.
Long Beach, 574 F.3d at 1019-20 (omission in original) (quoting City of Lakewood, 486 U.S. at 757-58).
A plaintiff must meet two requirements to bring a facial unbridled discretion challenge. “First, a plaintiff must satisfy the standing requirements of Article III by showing that the challenged provision or provisions apply to its conduct.” Id. at 1020. As noted above, Plaintiffs have Article III standing. “Second, the challenged [regulation granting discretion] ‘must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.’ ” Id. (quoting City of Lakewood, 486 U.S. at 759). We conclude that the grant of discretion to DLNR to administer the permitting scheme has a sufficient nexus to protected expression to satisfy this requirement.
[14] We conclude that Plaintiffs may bring a facial challenge for their claim that the regulations give DLNR unbridled discretion to grant, revoke, or modify the permits.
b. Plaintiffs’ Challenge
[15] “[R]easonable time, place, [and] manner restrictions on speech are
Plaintiffs object to three aspects of DLNR‘s regulation of commercial weddings: (i) the permit requirement; (ii) the limitation on accessories; and (iii) the insurance and indemnification requirement. We address these three objections in turn.
i. Permit Requirement
[16] A reasonable time, place, and manner restriction for a traditional public forum “can include permitting requirements.” Id. Such a requirement must satisfy the three-part test described above for a valid time, place, and manner restriction. See Food Not Bombs, 450 F.3d at 1037 (assessing a content-neutral permit requirement as a time, place, and manner restriction). We have also established a fourth criterion when a permitting scheme is challenged. Such a scheme ” ‘may not delegate overly broad licensing discretion to a government official.’ ” Long Beach, 574 F.3d at 1024 (quoting Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992)).
(a) Time, Place, and Manner Restriction
[17] We conclude that the permitting requirement serves a significant governmental interest. DLNR is charged with regulating competing and overlapping uses of Hawai‘i‘s public lands, including its public beaches. The task of DLNR is much like the task of the Park District in Thomas v. Chicago
Park District, 534 U.S. 316 (2002). In sustaining the district‘s permit requirement, the Supreme Court wrote:
[T]he object of the permit system . . . is not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible under the Park District‘s rules, and to assure financial accountability for damage caused by the event.
Id. at 322. The permitting requirement in this case allows DLNR to serve the permissible purposes described and approved in Thomas. The requirement is reasonably designed to minimize conflicting uses of limited beach area and to conserve the physical resource of the beaches. As the district court noted, “[the permitting requirement] is directed at keeping public beaches open to the public, towards minimizing congestion, promoting maximum use, encouraging safety and cleanliness, and assuring accountability for possible damage.”
[18] The permitting requirement is narrowly tailored to further this interest. The application process is not burdensome. Most commercial wedding permits are obtained online via DLNR‘s Wiki Permits Online System. The online application process has two steps. The first step is to register on Wiki Permits as a user. To do so, an applicant — typically a commercial wedding planner, or a minister, priest or rabbi — fills out and mails an application to register, along with a Certificate of Insurance naming Hawai‘i as an additional insured. An applicant need register only once.
[19] The permit conditions are also narrowly tailored. They further the state‘s interest by requiring an applicant to specify the amount of space needed for the wedding; by requiring a permit holder not to reserve space on the beach ahead of time and not to disturb people already on the beach; by limiting a permit to two hours; and by requiring that a permit holder leave the beach clean after the event or activity. Plaintiffs do not identify any way in which these conditions are overly restrictive.
However, Plaintiffs argue that DLNR‘s permitting requirement is not narrowly tailored because it applies to weddings as small as three individuals — the two people getting married and the minister. The President of Event Professionals states that “[b]each weddings usually involve the couple, a minister, and less than 20 guests.” Plaintiffs rely on our decision in Berger v. City of Seattle striking down a permitting requirement imposed on street performers in a Seattle public park. See 569 F.3d at 1048. In Berger, we disapproved of the government‘s “registration system that govern[ed] speech in a public forum and applie[d] to groups as small as a single individual performing without an audience.” Id. at 1058; see also id. at 1039; Long Beach, 574 F.3d at 1034 (“Advance notice and permitting requirements applicable to [groups smaller than 75 people] would likely be unconstitutional, unless such uses [of public property] implicated other significant governmental interests, or where the public space in question was so small that even a relatively small number of people could pose a problem of regulating competing uses.“); Food Not Bombs, 450 F.3d at 1043 n.17 (noting that permitting requirements for groups less than 150 people “may well not comport comfortably with the limited governmental inter-ests at play in public parks and open spaces“). We explained, “The presumptive invalidity and offensiveness of advance notice and permitting requirements stem from the significant burden that they place on free speech.” Berger, 569 F.3d at 1037. We do not retreat from our holdings in these cases, but they are inapplicable here.
In Berger, the plaintiff settled his as-applied claims with the city and appealed from summary judgment on his facial challenge to the permitting requirement. Id. at 1035. We analyzed hypothetical unconstitutional applications of the permitting requirement to strike it down. Id. at 1046, 1056. Here, we must limit our review to Plaintiffs’ challenge as applied to beach weddings. Vincent, 466 U.S. at 802. Nothing we say is meant to suggest that the beach use permitting requirement at issue would necessarily be valid with respect to other individuals or small groups, such as political demonstrators, street performers, or religious canvassers soliciting funds on Hawai‘i‘s state beaches.
Berger identified four particular burdens imposed by the existence of a permitting requirement: (1) “the procedural hurdle of
[20] Further, we conclude that the permitting requirement is content-neutral. DLNR‘s regulations require a “written permit” before a person can “engage in commercial activities of any kind” on unencumbered beaches.
[21] We also conclude that there are ample alternative channels for expression. “The Supreme Court generally will not strike down a governmental action for failure to leave open ample alternative channels of communication unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting.” Ctr. for Fair Pub. Policy v. Maricopa Cnty., 336 F.3d 1153, 1170 (9th Cir. 2003) (internal quotation marks omitted) (quoting Colacurcio v. City of Kent, 163 F.3d 545, 554 (9th Cir. 1998)). The “entire medium” of a beach wedding is clearly not foreclosed. A person need not obtain a permit to conduct a commercial beach or beach-related wedding on sites other than a state beach. These alternative sites include county beaches or private property next to any beach. Non-commercial weddings on state beaches are in no way restricted by the challenged regulations.
[22] Finally, we conclude that, with two exceptions explained in the next section, the permit requirement does not delegate overly broad discretion to a government official. The substantive criteria for granting a permit are clear. So long as an applicant agrees to the terms and conditions of the permit and pays the fee, the regulations leave little or no discretion to the DLNR in deciding whether to grant a permit.
(b) Discretion to Revoke and Modify Permit
While we are satisfied that the power to grant permits is sufficiently constrained, we conclude that the discretion DLNR has reserved to revoke a permit, and add to its terms and conditions, is not. Paragraph 18 of the Terms and Conditions provides, “The right-of-entry permit is revocable and terminable at anytime for any reason in the sole and absolute discretion of the Chairperson [of the Board of DLNR].” Further, Paragraph 21 grants
For purposes of our analysis in this section, we assume that the state‘s unencumbered beaches are nonpublic forums. In a nonpublic forum, restrictions on access must be “(1) reasonable in light of the purpose served by the forum and (2) viewpoint neutral.” Ctr for Bio-ethical Reform, Inc., 455 F.3d at 920 (quoting Brown, 321 F.3d at 1222).
[23] The Supreme Court has not expressly held that the viewpoint neutrality requirement includes the prohibition on a licensing authority‘s unbridled discretion, but at least two other circuits have expressly held so. See Child Evangelism Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Schs., 457 F.3d 376, 384 (4th Cir. 2006) (“[V]iewpoint neutrality requires not just that a government refrain from explicit viewpoint discrimination, but also that it provide adequate safeguards to protect against the improper exclusion of viewpoints.“); Southworth v. Bd. of Regents of Univ. of Wisc. Sys., 307 F.3d 566, 579 (7th Cir. 2002) (“[W]e conclude that the prohibition against unbridled discretion is a component of the viewpoint-neutrality requirement.“). We agree with those circuits.
The Supreme Court has shaped the unbridled discretion doctrine with the prohibition on viewpoint discrimination in mind. In City of Lakewood, 486 U.S. 750, the Court sustained a facial challenge to a city ordinance conferring unbridled discretion on the mayor to deny an application for the placement of a news rack. Id. at 769-70. In so doing, it tied the prohibition on unbridled discretion to the constitutional requirement of viewpoint neutrality. The Court wrote,
[A] law or policy permitting communication in a certain manner for some but not for others raises the specter of . . . viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official. As demonstrated above, we have often and uniformly held that such statutes or policies impose censorship on the public or the press, and hence are unconstitutional, because without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the . . . viewpoint of the speaker.
Id. at 763-64; see also Forsyth, 505 U.S. at 130 (condemning unbridled discretion in licensing authority as having “the potential for becoming a means of suppressing a particular point of view” (internal quotation marks omitted)); Thomas, 534 U.S. at 323 (premising unbridled discretion doctrine on risk that “licensing official . . . will favor or disfavor speech based on its content“).
Twelve years later, in Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), the Court implied that the unbridled discretion doctrine is necessary to protect against viewpoint discrimination. Id. at 235. In Southworth, it examined a university rule regulating the funding or defunding of a student organization by majority vote of the student body. Id. It wrote, “It is unclear to us what protec-tion, if any, there is for viewpoint neutrality in this part of the process. To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are
In these cases, the Supreme Court has made clear that conferring an unbridled discretion on a licensing official creates the danger of self-censorship, as well as a danger of government censorship. A citizen may hesitate to express, or refrain from expressing, his or her viewpoint for fear of adverse government action such as the denial of a permit. See City of Lakewood, 486 U.S. at 759 (describing “self-censorship by speakers in order to avoid being denied a license to speak” as risk of unbridled discretion). A standardless discretion also makes it difficult to detect, and protect the public from, unconstitutional viewpoint discrimination by the licensing official. See id. at 759 (explaining difficulty of “effectively detecting, reviewing, and correcting” censorship “without standards by which to measure the licensor‘s action“); see also Thomas, 534 U.S. at 323 (describing risk that “[a licensing official] will favor or disfavor speech based on its content,” posed by vesting a public official or body with unbridled discretion).
[24] “[A] time, place, and manner regulation [must] contain adequate standards to guide the official‘s decision and render it subject to effective judicial review.” Id. at 323. Adequate guiding standards are not provided here, given that DLNR may revoke a permit “at anytime.” “for any reason,” and “in the sole and absolute discretion of the Chairperson.” Further, DLNR may add terms and conditions to a permit “as it deems necessary or appropriate.” In some contexts, the phrase “necessary and appropriate” may sufficiently constrain the authority of a permitting official. But here, when read in pari materia with the Chairperson‘s discretionary power to revoke a permit, there are insufficient limitations on the official‘s authority. See Forsyth County, 505 U.S. at 130 (“[A permit requirement] may not delegate overly broad licensing discretion to a government official.“); see also World Wide Rush, LLC v. City of L.A., 606 F.3d 676, 687 (9th Cir. 2010) (stating that “a law cannot condition the free exercise of First Amendment rights on the unbridled discretion of government officials“) (internal quotation marks omitted) (quoting Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996)).
[25] There is nothing in the record to indicate that either the Chairperson or the DLNR has ever used Paragraphs 18 and 21 to “favor some speakers and suppress others.” Barter Fair, 372 F.3d at 1138. To the contrary, the record indicates that permits for commercial weddings have been issued as a matter of course, and that the discretionary power reserved in Paragraphs 18 and 21 has never been exercised. However, because the potential for the exercise of such power exists, we hold that this discretionary power is inconsistent with the First Amendment.
ii. Limitation on Accessories
[26] Plaintiffs challenge DLNR‘s limitation on accessories. With certain exceptions, the limitation prohibits “accessories” from being “placed on or within the right-of-entry area.” Given the purpose of DLNR‘s regulation of activities on public beaches under its jurisdiction, the limitation on accessories furthers a significant
On the assumption that the unencumbered state beaches are traditional public forums, we apply the three-part test appropriate to that forum. We have already described DLNR‘s significant interest in regulating land uses of state beaches and the ample alternative channels for beach weddings.
We also hold that DLNR‘s limitation on accessories is narrowly tailored to serve a significant government interest. DLNR faces a classic line-drawing problem and it has chosen to draw the line in a manner that substantially limits the adverse impact of commercial weddings on other users’ enjoyment of Hawai‘i‘s public beaches. DLNR limits a commercial wedding to the area reserved in the permit, limits the ability of wedding participants to displace other users from favored places on the beaches, limits the duration of a wedding, limits the type (and thereby the volume) of musical instruments, and limits accessories. But DLNR allows unamplified musical instruments, allows loose flowers, allows chairs for elderly or disabled attendees, allows a cake stand or podium, and allows “non-obtrusive hand-carried wedding accessories.”
We construe the limitation on accessories narrowly. As we have noted earlier in our opinion, the Terms and Conditions provide:
No accessories [nor] structures . . . shall be placed on or within the right-of-entry area or premises, including but not limited to the following: arches; bowers; alters [sic]; tables; chairs; kahilis; tents or tarps; event signage of any type including banners, sandwich boards; kiosks or carts; stanchions, posts, ropes or similar equipment for the purpose of demar-cation of the right-of-entry area; and surfboards, kayaks or other ocean recreation equipment[.]
The use of the verb “placed,” combined with the illustrative list of prohibited accessories, strongly suggest that the limitation applies only to things that are placed on the beach without being held or carried by anyone. The Terms and Conditions expressly allow “non-obtrusive hand-carried wedding accessories.” Plaintiffs have not identified any instance in which DLNR prohibited the use of hand-held religious objects such as hand-held chuppas, chalices, and small, hand-held kahilis. We therefore construe the Terms and Conditions as not prohibiting these objects. Cf. Frisby v. Schultz, 487 U.S. 474, 483 (1998) (construing statute narrowly to allow for First Amendment activities). We see nothing in the First Amendment that requires DLNR to allow more than what is thus permitted by the Terms and Conditions.
The limitation on accessories is also content-neutral. Plaintiffs contend that the limitation impermissibly shows a “clear preference for nonliturgical religions” and “target[s] people of Catholic, Orthodox or Jewish faiths.” We disagree. When determining the content neutrality of a restriction, we do not “make a searching inquiry of hidden motive” but “look at the literal command of the restraint.” Menotti, 409 F.3d at 1129. The text of the limitation on accessories, which makes no reference to religion, belies Plaintiffs’ contention. That the limitation may have an incidental effect on the use of specific religious implements or physical symbols does not render it impermissible. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.“); cf. Emp‘t Div., Dep‘t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (denying religious exemption from “valid and neutral law of general applicability” based on Free Exercise challenge).
iii. Insurance and Indemnification/Hold-Harmless Requirements
[27] Plaintiffs also contend that DLNR‘s insurance and indemnification/hold-harmless requirements are impermissible. We disagree.
Paragraph 3 of Terms and Conditions provides:
Applicant shall procure at Applicant‘s own expense, and maintain during the entire period of the . . . permit . . . a policy or policies of comprehensive public liability insurance in an amount of at least $300,000 per incident and $500,000 aggregate insuring the State of Hawaii against all claims for personal injury, death, and property damage.
The applicant must submit a certificate naming Hawai‘i as an additional insured on his or her policy.
Paragraph 4 requires the applicant to
indemnify, defend, and hold [DLNR] harmless from and against any claim . . . arising out of or resulting from: (a) any act or omission on the part of Applicant relating to Applicant‘s use . . . of the right-of-entry area or premises; (b) any failure on the part of Applicant to maintain the right-of-entry area or premises and areas adjacent thereto in Applicant‘s use and control . . . ; and (c) from and against all . . . claims by whomsoever brought or made by reason of Applicant‘s [failure to follow] the terms . . . [of the permit] or [federal and state law].
The insurance and the indemnification/hold-harmless requirements serve a significant governmental interest. These requirements compensate third parties and DLNR for injury or property damage caused by the permittee. They also protect DLNR from liability to third parties caused by the permittee.
The requirements are narrowly tailored to this interest. Evidence in the record shows that the cost of insurance does not pose a substantial burden on Plaintiffs. Reverend Eve Hogan declares that she has been quoted a price of “upwards of $500 a year” for the insurance required to satisfy DLNR‘s permitting requirement for a commercial wedding. She states that insurance for a wedding “coordinator” would be approximately $250 a year. Reverend Hogan says that she “only do[es] a few weddings a month.” Id. Assuming that “a few” means three, Reverend Hogan‘s insurance cost attributable to DLNR‘s permitting requirement is about $14 per wedding.
The indemnification/hold-harmless requirement is not overly broad. We invalidated an indemnification/hold-harmless requirement in Long Beach, 574 F.3d at 1040, but in that case the indemnification/hold-harmless clause was extremely broad. It required permittees to indemnify and hold the city harmless not only for harm caused by third parties reacting to the expressive activity of the permittees, but also for harm caused by the city to the permittees, and harm “caused by the conduct of the event” to third parties, when “conduct” included actions by the city or other parties unrelated to the permittees. Id.
The insurance and indemnification/hold-harmless requirements are also content-neutral. See Food Not Bombs. See 450 F.3d at 1056 (Kleinfeld, J., concurring, writing for the majority) (holding insurance and indemnification/hold-harmless requirements to be viewpoint neutral). Nothing in the requirements at issue in this case turns on the type of wedding involved, its religious content, or indeed any content-based discrimination. Nor does the amount of insurance, or the price to be paid for it, vary depending on the type of commercial wedding or the content of what might be said at the wedding. Compare id. at 1052 (Berzon, J., dissenting).
iv. Conclusion
In sum, we hold that DLNR‘s regulation requiring a person to obtain a permit for commercial weddings on unencumbered state beaches is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits. We hold that the limitation on accessories, insurance requirement, and the indemnification/hold-harmless clause also satisfy the traditional public forum standard. However, we hold invalid the grant of discretion to DLNR to revoke, or add terms to, a permit under the least exacting standard of review for a nonpublic forum.
C. Equal Protection and Due Process
[28] Plaintiffs also contend that DLNR‘s permitting requirements violate the Equal Protection and Due Process Clauses. We disagree.
1. Equal Protection
Plaintiffs contend that the permitting requirements violate equal protection because they subject commercial weddings, but not non-commercial weddings, to regulation. They also contend that the permitting requirements are enforced unequally, allowing much commercial activity on unencumbered beaches without requiring permits for that activity.
We recognize that the right to marry is a fundamental right. See Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (recognizing right to marry as “of fundamental importance“). But DLNR‘s regulation of commercial weddings on unencumbered state beaches does not impinge on the right to marry. Freedom of expression is also a fundamental right under the First Amendment. See McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 336 n.1 (1995) (listing the “right of free speech” as a fundamental right). But for the reasons given above, DLNR has not violated the First Amendment rights of Plaintiffs. We therefore do not subject DLNR‘s regulation of commercial weddings to the hard-to-satisfy strict scrutiny test. Rather, we apply the more lenient rational basis test.
The record in this case makes clear that commercial beach weddings in Hawai‘i are an important business. DLNR began requiring permits for commercial
Plaintiffs argue for the first time on appeal, without supporting evidence in the record, that DLNR enforces its permit requirement only for commercial weddings, leaving the permit requirement for other commercial activities unenforced. Plaintiffs have waived that argument by not raising it in the district court. See GoPets Ltd. v. Hise, 657 F.3d 1024, 1033 (9th Cir. 2011).
2. Due Process
Plaintiffs’ due process argument is based on its contention that DLNR‘s regulation of commercial beach weddings violates the First Amendment. We have already rejected that contention.
Plaintiffs also raise another due process claim, arguing that DLNR‘s permitting requirement is unconstitutionally vague. This challenge fails because the statute is sufficiently definite as applied to commercial wedding organizers and their prospective clients. See Schwartzmiller v. Gardner, 752 F.2d 1341, 1346 (9th Cir. 1984).
Conclusion
We uphold the constitutionality of DLNR‘s regulation of commercial weddings on the state‘s unencumbered beaches in all respects but one. The only provisions that violate the First Amendment are Paragraphs 18 and 21 of the Terms and Conditions, giving to the Chairperson of the Board of DLNR the authority to revoke an already issued permit “at anytime and for any reason in [his or her] sole and absolute discretion,” and giving to DLNR the authority to add terms and conditions to an already issued permit such “as it deems necessary or appropriate.”
AFFIRMED in part, REVERSED in part, and REMANDED. Costs on appeal to appellees.