Long Beach Area Peace Network v. City of Long Beach

Tam- dice, sentencing context. even LONG AREA PEACE BEACH PSR,

er’s in a entitled “Assessment section NETWORK; Mann, Diana Condition,” that he states of Financial Plaintiffs-Appellees, during at least million “earned $10 In and arrest.” capture before his months v. million, also the PSR addition to this $10 BEACH, municipal LONG CITY OF maximum ability “pay that his states Defendant-Appellant. corporation, supported by is also fíne and restitution During in 1999. the cash that was seized No. 05-55083. in December and seizures

the searches Appeals, United States Court alone, was over million cash $2 Ninth Circuit. apartments around three recovered Boulevard, was one of which on Wilshire 16, 2007. Feb. Argued Submitted $981,485.00 erroneous Ibrahim’s.” The April Filed therefore, only a por- figure, represented by the million in cash cited tion of the $2 only of- that number was itself

PSR —and million in Tamer’s supplement

fered to $10 It there- drug proceeds.

unaccounted-for unlikely that sentence

fore seems Tamer’s if materially affected

would have been prop- line from the PSR had been

relevant mil-

erly amended to state “over $1.5 recovered in or around

lion cash was ” .... apartments three event, directly

In this issue is not prejudice Tamer

before us. Whatever stage sentencing have suffered at the justifies nearly half-

hardly the “return” that were never

a-million dollars funds To

actually apartment. seized from his challenge Tamer wishes to his

the extent directly misplaced to the dec-

sentence due government

imal has stated dur- point, oppose that it argument oral would court. petition

a coram nobis to the district AND REMANDED.

REVERSED

Long Beach Area Peace Network and Di- (collectively ana Mann “the Peace Net- work”) challenged 5.60 under the .First Amendment after the Long Beach (“the City”) sought payment of administra- tive fees associated with a march rally held the Peace Network on March 2003. The district court held that 5.60 entirety its unconstitutionally restricts right to free speech permanently enjoined enforcing from it. We affirm in part and reverse in part. hold challenged that five features of (1) § 5.60 are constitutional: provi- distinguishing sions between (2) activity activity; and other provi- allowing sion Manager impose (3) purposes; conditions to meet stated provision authorizing Manager to (4) status; proof indigent obtain provision authorizing City Manager require permittee insurance; to obtain provision authorizing criminal penalties for violations of the Ordinance. However, we hold that four other features Fudge, Long Randall C. Beach At- (1) part are unconstitutional: provi- the Office, torney’s Beach, CA, Long for the (2) events”; defining sion “special pro- the appellant. applicable events; vision to “spontaneous” Sobel, Monica, CA, Carol A. Santa for (3) the hold-harmless indemnification appellees. (4) provision; provisions authoriz- departmen- waiver of fees and charges.

tal services We remand to allow the district court to determine whether the unconstitutional provisions are severable from the remain- PREGERSON, Before: HARRY W. § der of 5.60. FLETCHER, BERZON, and MARSHA S. Judges.

Circuit I. Background Opinion by Judge A. WILLIAM court, by described As the district FLETCHER; by Judge Concurrence Long Beach Area Peace “an Network is BERZON. unincorporated, loosely organized group of FLETCHER,

WILLIAM A. Circuit office, peace organiza- an activists without Judge: phone, organizational tional email or insur- 15, 2003, February ance.” On before the constitutionality § review the of 5.60 War, beginning Iraq of the the Peace Net- City Long Municipal Beach Code (“LBMC” “Ordinance”). Appellees sponsored protest rally work a march and Beach, coming into knowl- In news or affairs Long California.

in the event, Eugene Dr. days” for the of the event. preparation edge within five professor and Ruyle (“Ruyle”), a retired 5.60.030(A)(5). “spontane- A LBMC See member, ap- an submitted Peace Network per- a require event does not formal ous” “special permit, event” plication for mit, require twenty-four it does hours but 5.60.020(A). Long Beach by required City. to the The Man- advance notice 5.60.020(A) (“LBMC”) § Municipal Code may permission to hold such ager refuse the march route negotiating After event, “reasonable impose permit. Ruyle, City approved with time, and manner restrictions.” See place conducted The march was 5.60.030(B). An initial email LBMC suggested by the along the route streets City, sent two weeks Ruyle from to the rally City. with The event concluded earlier, Peace Net- had indicated Park, City. in the Bixby public park of at planned to ask for the closure work officials, including City elected Several of traffic for the march and least one lane Assembly and a State Council member Bixby Park for to reserve a bandshell member, rally. in the Accord- participated email, rally. Ruyle In his estimated 1,000 estimates, between ing to some that the March event would be “at least 1,500 the event. people attended big” February as the march and twice as signed by Ruyle permit application, rally. 2003, provided that the Peace February harmless would “hold Network Ruyle In a addressed to dated letter liability by caused the conduct of from City granted permission March event”; “City will not be liable that the rally a march and on March conduct injuries any mishaps or associated with letter, City imposed In the a number event”; responsibility and that “[f]ull conditions, including the route of will for activities at the event be assumed rally. The march and the location of the application Peace [the Network].” summary contained a of estimated letter the Peace Network provided also “Police,” departmental charges for all costs in- responsible would “be Works,” “Park, Recreation & Ma- “Public City departments for use of curred (Park Staff),” “Parks, Recreation & rine equipment.” After sub- personnel and/or Maintenance,” “Space Permit Marine Ruyle a let- mitting application, the wrote Fee,” Parking Lot.” The “Junípero and City requesting a waiver of the ter to the $7,041. charges The total estimated were departmen- permit application fee and payments a in letter set forth schedule charges imposed tal under 5.60. during the next equal four installments any charges fee or City The did not assess Ruyle other members of the year. and February event. signed page the last of the Peace Network 20, 2003, approximately March one On reading heading letter under a “Conditions later, an month the United States launched Accepted.” signed, page As this contained anticipation In Baghdad. aerial assault on top, stating a handwritten notation at the assault, the Peace Network had of the right “signers reserve[d] that the ral- already organized another march and total,” they but that would challenge Ruyle had ly, to be held on March of the four installments on pay the first City or about a letter to the on submitted Ruyle paid the first installment March-22. anticipated “spon- describing March 18 22, in with the hand- on March accordance a event. Section 5.60 defines taneous” “occasioned written notation. “spontaneous” event as one slightly 22 took March letter. The total amount The march on March was ex- hour, than one and the event con- actly more the same as the estimate contained in rally Bixby an cluded with anti-war that letter. Part of the total included a approx- found that Park. The district court $1,500 charge of for the use of the beach 1,000 imately participated in the people display. City’s for the surfboard The Ruyle’s decla- According March event. check, April letter noted that the first ration, pre-war rally in contrast to the Ruyle given which had to the February, no elected officials park misplaced. March had been The letter rally. in the March anti-war participated that payment asked on that check be event, part As of the March members of stopped and that a new check written placed Foundation surf- Surfrider for that amount. Peace Network mem- shape on the in the of a boards beach bers did not write new check or make symbol. display The was visible to peace any requested payments. they of the march as walked participants Superi- The filed an action state display place the beach. The took near against or Court Diana Mann and the beach, entirely on the did not interfere signed Peace Network members who had traffic, any pedestrian vehicular or

with agreement. granted judg- The court damage and did not result to the $5,901 City. ment of for the That amount event, the surf- Following beach. $1,500 charge excluded the for the use from the beach. boards were removed display the beach for the surfboard be- email, Ruyle In initial had stated his cause, Court, according Superior to the planned request that Peace Network charge sufficiently justified was “not departmental of insurance and ser- waiver improper as to actual costs” and was “an In charges. vices its March letter expression.” restraint of granting permit, waived the requirement insurance but did waive The Peace Network then filed a “facial charges. he event-related As had done challenge” to 5.60 federal district February rally, Ruyle after the march and court, declaratory injunctive seeking wrote letter to the after the March relief, compensatory damages, and attor- asking charges. for a waiver ney’s complaint fees and costs. The al- Ruyle that a states his declaration City’s “past, present leged gave guidelines official “no other than sim- threatened future actions” violate the First ply to write the letter” to ask for a waiver. The district court concluded Amendment. only material differences between entirety that the 5.60 constitutes Ruyle’s requests charges for waivers of speech restraint on unconstitutional February March de- events were injunc- assembly permanent and entered event-specific matters such as scriptions of prohibiting tion its enforcement. the march routes. timely appealed. City departmental did not waive the After the district court’s decision charges for the March event. In services briefing completed ap after initial was 2003, April sent a letter to the peal, we decided Santa Monica Food Not signatures Peace Network members whose (“Food Monica Bombs v. Santa (or, Mann, in the case of Diana whose of (9th Bombs”), Not 450 F.3d 1022 Cir. else) signed by name had been someone 2006), constitutionality of a assessing the March 21 appeared at the bottom of the Monica, in similar ordinance Santa Califor requested payment of letter. letter $7,041, parties supple- to file specified in the installments nia. We asked the

1018 [itjself to” subjecting addressing ous[] interest[] our decision mental briefs measure, Food Not Bombs. demon challenged and must seriously that “the defendant [is] strate II. of Review Standard challenged meas enforcing! ] intent on court’s Richmond, review de novo the district We ure,” 743 NAACP v. unconstitutionality. Berry v. holding of Cir.1984). (9th 1346, 1351 F.2d (9th Servs., 642, 447 F.3d 648 Dep’t Soc. organized Network two The Peace Cir.2006). review de novo the We also §by covered 5.60. The separate events mixed court’s determinations on district departmental assessed implicate fact that questions of law and for the charges against the Peace Network constitutionality. Rosenbaum question of Francisco, County San in state brought v. & second event and suit Cir.2007). (9th 1142, gener The Peace Net payment. court to obtain ally review for clear error the district it has provided work has evidence Gaudiya findings court’s of fact. Vaish as a of 5.60 modified its behavior result County Fran Soc’y City nava v. & San Long by declining to hold such events Cir.1991) (9th cisco, City’s of the Beach the future because (as amended). However, an we conduct See Food enforcement of Ordinance. for the independent review of the facts Bombs, 450 F.3d at 1034. The Peace Not Amend arising “issues under the First if in permanent Network states that Rosenbaum, ment.” 484 F.3d at 1152. §of 5.60 junction against the enforcement events in upheld, is it will hold Challenge III. Nature of the has Long Beach. The Peace Network complaint The Peace Network’s fairly in fact that injury thus established is challenge a facial 5.60. As asserts likely to be traceable to 5.60 and that matter, we conclude that the Peace initial if First Amendment suit is redressed its standing bring has Article III Network successful. challenge. Standing, in the constitu this sense, requires plaintiffs tional estab The Peace Network claims (1) injury in palpable” lish a “distinct and “allegedly provisions several LBMC “fairly to the fact traceable” in a govern unbridled discretion vest[] (3) that challenged provision and would whether to ment official over by a favorable “likely ... be redressed” deny expressive activity.” City Lake Wright, plaintiff. decision for the Allen v. Co., Publ’g wood v. Plain Dealer 486 U.S. 737, 750-51, 104 S.Ct. 750, 755-56, 100 L.Ed.2d (1984) (internal quotation L.Ed.2d 556 primary There are two ratio omitted); Food Not marks see allowing type this of facial chal nales for mounting a facial F.3d at 1033. Plaintiffs lenge. challenge to an ordinance establish First, of the li- the mere existence they standing by alleging that have “modi discretion, coupled censor’s unfettered fied behavior” as a result of the [their] restraint, prior intimi- power with the ordinance, “by choosing such as locations censoring own parties dates into their subject than areas to the ordi [the power if the discretion and speech, even plaintiff Id. at 1034. A “need nance].” Second, actually are never abused.... by a apply for a benefit conditioned express the absence of standards makes law,” facially unconstitutional United “as (9th distinguish, applied,” it 1037, difficult Baugh, v. F.3d 1041 States 187 Cir.1999), legitimate a licensor’s denial of must demonstrate a “seri- between but illegitimate adjudication abuse of constitutional requires and its a re- application view of the of a power. censorial statute to the Court.”). conduct of party before the 757-58, 2138; Id. at 108 S.Ct. see also S. above, As noted the Peace Network has County, Barter Fair v. Jackson Or. standing. Article III (9th Cir.2004). Hence, 1128, 1134-35 granted discretion attacks on the “[f]acial Second, challenged ordinance dependent a decisionmaker are not on the “must have a close enough nexus to ex surrounding any particular permit facts pression, commonly or to conduct associat County Forsyth decision.” v. Nationalist expression, pose ed with a real and Movement, 10, n. 505 U.S. substantial threat of the identified censor 120 L.Ed.2d 101 Lakewood, risks.” ship 486 U.S. Alabama, Court wrote Thornhill v. 310 759, 108 S.Ct. 2138. We conclude that 88, 97-98, 736, L.Ed. 60 S.Ct. 1093 § 5.60 has a sufficient expression nexus to (1940) (citations omitted): satisfy requirement. the second Section any upon rule is not based as- [T]he governs public 5.60 use of the traditional sumption application for the license streets, sidewalks, fora of or would result in the would refused Indeed, parks. provisions some regulations. of other unlawful imposition specifically apply to persons engaged appreciation Rather it derives from an See, “expressive activity.” e.g., LBMC of the character of the evil inherent in a 5.60.040(B) (“[Special permit] ap licensing system. power of the li- plications activities [involv merely by ... pernicious censor streets, sidewalks, the use of com- particular reason of the censure of parks] shall be filed in accordance with ments but reason of the threat section].”). D subsection of this The Peace comments on matters of censure in, engaged Network has and seeks to ... pervasive concern. It is threat in, engage public marches and rallies on very existence that consti- inherent its streets, sidewalks, Long parks danger tutes the to freedom of discus- gatherings sup Beach. show “[M]ass [to regulations sion .... Where of the liber- port for a bear a sufficient nexus to cause] concerned, ty of free discussion are commonly expres conduct associated with there are for observing reasons Fair, sion.” S. Or. Barter 372 F.3d at statute, the rule that it is and not regulates 1136. Section 5.60 mass those it, the accusation or the evidence under gatherings and therefore has “close con prescribes permissi- which the limits of expression” “regu nection to because it against ble conduct and warns trans- protected conduct which is itself lates gression. speech.” Gaudiya Soc’y, See Vaishnava 952 F.2d at 1062-63. type challenge, To facial assert this plaintiff requirements. must meet two We therefore conclude that the Peace First, plaintiff satisfy standing must Network has satisfied the additional re- by showing quirements challenge III to raise a facial requirements of Article grounds. unbridled discretion challenged provision provisions that the apply to its conduct. Members of IV. General Considerations Vincent, Taxpayers Council L.A. v. 789, 798, 104 S.Ct. prohibits The First Amendment (1984) (“Such holdings Congress enacting “abridging L.Ed.2d invali- from laws statutes, ... speech, right dated entire but did not create the freedom of or the people peaceably from rule that to assemble.” U.S. exception general 1020

Const, Supreme rageous I. The right Court has exercise of the of amend. free dis- cussion.”). protection First extended the states. Edwards v. Amendment The Supreme recognized Court has Carolina, 229, 235, 372 U.S. 83 South practice “the of persons sharing common (1963); 680, L.Ed.2d 697 Thorn 9 S.Ct. banding together views to achieve a com- 95, 736; hill, Hague 60 S.Ct. 310 U.S. deeply mon end is embedded the Ameri- C.I.O., 496, 512, 954, 59 v. 307 U.S. S.Ct. political process.” can v. NAACP Clai- types 1423 Three of 83 L.Ed. Co., 886, 907, borne Hardware 458 U.S. are speech regulation presumptively inval 3409, (1982) 102 S.Ct. 73 L.Ed.2d 1215 speech regulations protesting gov id: (quoting Against Citizens Rent Con- action, regulations affecting ernment Fair Hous. v. Berke- trol/Coal. for of forum, speech in a traditional and 290, 294, 434, ley, 454 U.S. 102 S.Ct. 70 By prior meeting certain crite (1981)); Edwards, restraints. L.Ed.2d 492 see also time, ria, place 235, and man content-neutral 372 U.S. at (stating S.Ct. 680 may pre ner restrictions overcome the peaceable assembly at the site of the state invalidity. sumption government of to protest government action pristine is the “most form” of classic Presumptively Regulations A. Invalid exercising First In rights). Amendment Baugh, United States v. wrote Speech of Regulation Protesting 1. “applie[d] particu- First Amendment with Action Government lar force” to a “march protest and other recognized types that certain of We have 1042; activities.” 187 F.3d see also See, speech enjoy special e.g., status. Am.-Arab Anti-Discrimination Comm. v. v. City Orange, Nat’l Adver. Co. of (6th Dearborn, 600, of (9th Cir.1988) (“The 246, first Cir.2005) (“[Pjarades processions are greater protection to amendment affords unique political and cherished form of expres- noncommercial than commercial expression, serving symbol as a of our sion.”). speech is Political core First democratic tradition. scarcely There is speech, Amendment critical to the func- powerful expression more form of than the tioning system. of democratic our march.”). political We have also noted the protest Peace Network’s of the United importance timely opportunity to ex- military Iraq type States action is the of press political by staging political views speech highest rung on the “rest[s] Richmond, march. 743 F.2d at hierarchy of First Amendment values.” (“[TJiming poli- is of the essence in Brown, 455, 467, See Carey v. occurs, .... tics an event it is often [W]hen (1980); 65 L.Ed.2d 263 see also necessary to have one’s voice heard Louisiana, 64, 74-75, Garrison v. promptly, if it is to be considered at all. A 85 S.Ct. 13 L.Ed.2d 125 delay day may even or two be intoler- (“[Sjpeech concerning public affairs is applied political able when speech self-expression; more than it is the es- may which the element of timeliness be Thornhill, sence of self-government.”); (internal important.” quotation marks (“Those 310 U.S. at omitted; 60 S.Ct. 736 who citation in City alterations Richmond)). won our independence had confidence power of free reasoning fearless Regulation Speech in Traditional and communication of ideas to discover Public Fora and spread political and truth. economic Noxious doctrines in those Supreme fields Court has estab refuted and their scrutiny evil averted cou- lished different levels of ana-

1021 violations, public gain Traditional lyzing alleged First Amendment fora even more importance they speech when are host to core depending on where the takes See, speech. First Amendment Perry Perry e.g., v. Local place. Educ. Ass’n 515-16, Ass’n, 45-46, Hague, 307 U.S. at 37, 59 S.Ct. 954. 103 Educators’ Portland, In v. (1983). Grossman we ex- 948, In tradi S.Ct. 74 L.Ed.2d of plained that the “venerable tradition of the fora, abili public government’s tional “the park a public suggested forum has—as ty permissibly con expressive restrict image speaker the attendant on a very v. duct is limited.” United States soapbox very practical side it to as well: Grace, 171, 177, 103 1702, 461 U.S. —a parks provide a free forum for those who (1983). locations, L.Ed.2d 736 In such advertisements, cannot afford newspaper protections strong First Amendment are infomercials, television or billboards.” 33 regulation suspect. est and is most Gross F.3d 1205. Government on restrictions Portland, 1200, man v. 33 F.3d of streets, public places use of such as (9th Cir.1994). “Public fora have sidewalks, parks placing speech risk law; achieved a status in our topics public importance on of within the extraordinarily an government must bear purview only wealthy of or those who heavy regulate speech burden to such enjoy support of local authorities. See Richmond, locales.” 743 F.2d at of 8; Richmond, id. at 1205 n. of 1355. (calling F.2d at 1356 for careful examina- open spaces” parks “Public such as tion of restrictions “when their effects fall distinguished are from streets because unevenly on ... groups different soci- rarely their use for activities ety”). governmental other implicates important requires “spe- Section 5.60 interests. Food Not cial events” on all public property within 1042. parks Public and sidewalks “are Beach, streets, Long including uniquely public gatherings suitable for sidewalks, public parks. See LBMC expression political opin or social 5.60.020(A). “Special events” include Phoenix, ion.” v. City ACORN demonstrations, parades, and assemblies (9th Cir.1986). 1260, 1267 n. 5 public size on streets and sidewalks recognized great Courts have a somewhat they if do with traf- comply applicable not governmental regulating er interest in ex regulations; organized assemblages fic pressive activity on streets because seventy-five people public or more public safety concerns raised vehic places; organized and other in- activities Nonetheless, ular traffic. Id. at 1267. seventy-five or more in- volving persons rejected have proposition “the of, on, volving having impact the use Supreme designation Court’s of streets as public property facilities. LBMC public fora” is limited to “sidewalks and 5.60.010(I)(l)-(3); Long Beach Adminis- traditionally (“AR”) locales reserved 8-28(IV)(A)(2) Regulation trative public (2007). communication.” Id. at 1266. The To the extent the Ordinance Supreme recognized has that “[n]o Court regulates public parks, the use of side- particularized inquiry precise walks, into na analyze provi- and streets we its specific necessary; ture of a street all traditional sions under standard for public public fora. streets are held trust properly and are traditional considered Regulation by Prior Restraint Schultz, Frisby fora.” v. speech 108 S.Ct. 101 L.Ed.2d 420 are Prior restraints “heavy carry presump- disfavored and invalidity. Forsyth County, range

tion” of 505 broader of conduct. Section 5.60 130, 112 heavy U.S. at S.Ct. 2395. “This regulates only expressive activity presumption justified by the fact that Beach, in parks Long located but also ... ‘prior speech restraints on are the activity streets, sidewalks, least in most serious and the tolerable 5.60.010(I)(1). right-of-ways. See LBMC ” fringement rights.’ on First Amendment regulates Section 5.60 even events that Grossman, (alteration 33 F.3d at 1204 in of, impact the use “involve[ ] ha[ve] Grossman) (quoting Neb. Press Ass’n v. on, public property or facilities” if such Stuart, 539, 559, 2791, 427 U.S. 96 S.Ct. 49 “likely are require provi- activities (1976)); L.Ed.2d 683 accord Rosen v. Port sion of city services.” [enumerated] Id. Portland, (9th 1243, 641 F.2d 1246-47 8-28(IV)(A). 5.60.010(I)(3); AR Cir.1981). Supreme explained Court Racism, in Against Ward v. Rock “[T]he Time, B. Reasonable Place and regulations prior we have found invalid as Manner Restrictions they restraints have ‘had this in common: time, place, “[Reasonable [and] gave public power deny officials the use speech per manner restrictions” on are in expres forum advance of actual missible. v. Cmty. Clark Creative 781, 5, sion.’” 491 U.S. 795 n. 109 S.Ct. Nortr-Violence, 288, 293, 468 U.S. 104 S.Ct. 2746, (quoting 105 L.Ed.2d 661 Se. 3065, 221 82 L.Ed.2d Such restric Conrad, 546, Promotions Ltd. v. 420 U.S. permitting tions can include 553, (1975)). requirements 1239, 95 S.Ct. 43 L.Ed.2d 448 speech for core First Amendment in prior A restraint tradi actually need not result fora, id., in suppression speech in order to they permis tional are constitutionally invalid. “The relevant they satisfy if sible four criteria. theAs question determining [in whether some Clark, Supreme Court wrote “We have thing prior is a is whether the restraint] often noted that restrictions of this kind sion of sion ....” Id. challenged regulation speech advance of its authorizes suppres expres regulated speech, fied without reference to the content of the are valid provided ^{[2] [1]} they they are narrow are justi Grossman, ly significant

In tailored to serve a permit- govern noted that a ting ordinance that required a written ap- mental interest, ^[3] they leave plication orga- before users could hold an open ample alternative channels for com nized public park demonstration did munication of information.” Id. entirely fit within prior “classic re- (bracketed added). Forsyth numbers In (inter- straint cases.” 33 1205 n. 9 Movement, County v. Nationalist omitted). quotation nal marks and citation 123, 130, 2395, 112 S.Ct. L.Ed.2d But we held nevertheless that permit- (1992), recognized the Court a fourth crite ting system still “a heavy presump- bore rion: a permitting “may scheme not dele against tion validity.” its constitutional gate overly licensing broad discretion to a (internal omitted); quotation marks government official.” 130, Forsyth County, see also 505 U.S. at “ The first criterion is that the re (applying ‘heavy pre- S.Ct. 2395 ” is, striction That be content-neutral. sumption’ against validity regulation of a restriction something must be based on imposing advance fees on parades and as- speech. than the content of the public property semblies held on because it Grace, 177, A 461 U.S. at 103 S.Ct. 1702. “prior speech). was a restraint” on Sec- law is content-based rather than permitting sys- tion 5.60 is similar to the content- Grossman, tem in it though reaches a neutral if main it purpose enacting “the 296, 3065, in regulat- of a cer 468 U.S. at 104 S.Ct. speech or exalt suppress towas content, based on or it differentiates protect tain “streets to and insure the safe- on its face.” ACLU speech the content of comfort, ty, public,” or convenience of the Vegas, Las Nevada v. Pennsylvania, v. Murdock of 784, Cir.2006). (9th “an im Though (1943), 63 S.Ct. 87 L.Ed. 1292 sufficient, such censorial motive” is proper collecting “defray nominal fees to necessary to render a is not a motive policing” regulated activi- expenses & content-based. Simon regulation 113-14, ty, have id. at 63 S.Ct. 870. We Schuster, N.Y. State Crime Victims Inc. v. recognized govern- also as a substantial 501, Bd., 105, 117, 112 S.Ct. 116 502 U.S. “provide mental interest the need to notice (1991). regulation If a “dis L.Ed.2d 476 municipality of the need for addi- speech favored from disfa tinguish[es] safety and other public tional services.” on the basis of the ideas or speech vored Bombs, at Al- Food Not 450 F.3d 1042. it content-based. Foti expressed,” views is safety in though public regu- interests Park, 629, 146 F.3d 636 v. Menlo of substantial, lating street use are “those (9th Cir.1998) (internal quotation marks way give interests must on occasion to the omitted). temporary dedication of the streets regulation gen A content-based ACORN, parading.” 798 picketing scrutiny. gov erally subject to strict n. F.2d at 1267 5. that its therefore “must show ernment in questions guide courts compel necessary to serve regulation Three Ass’n, interest,” analyzing tailoring, narrow the second as Perry state Educ. 460 ling 45, 948, First, and that regulation at 103 S.Ct. achieve its pect. U.S. does regulation uses “the least restrictive restricting substantially more ends without interest,” to further the articulated means necessary? “require than This speech Foti, at “[A] 146 F.3d 636. content-based long ... as the ... ment is satisfied ‘so in a political speech restriction on regulation promotes govern a substantial subjected ... must be to the most forum that be achieved less ment interest would ” Barry, exacting scrutiny.” Boos v. 485 Ward, regulation.’ effectively absent the 1157, 312, 321, 108 S.Ct. 99 L.Ed.2d U.S. 799, (quoting at 109 2746 491 U.S. S.Ct. (1988). 333 Albertini, 675, v. 472 U.S. United States (1985)) 689, 2897, L.Ed.2d 536 105 S.Ct. 86 criterion, the second Under (second Ward). Expansive in (1) alteration gov must show: that the government “a signal can the absence of close language “un interest is substantial and ernmental interests under suppression expression,” governmental related to fit with the 1360, City, v. 540 F.2d requirement.” Baldwin Redwood Food lying permitting (9th Cir.1976); regu 1365 (compar 450 F.3d at 1040-42 Not narrowly lation is tailored meet activity if an applies a restriction that interest, Ward, 797, at 109 S.Ct. 491 U.S. “may” implicate governmental interest if activi applies with restriction interest). “likely” to affect the Sec ty is gov aspect The first is substantial ond, alternatives that are there obvious Supreme interest. The Court ernmental objectives the same with would achieve governmental recognized has substantial cityA is not speech? restriction of less competing uses of regulating interests al required to select the least restrictive fora, Forsyth County, 505 U.S. ternative, of alterna but “an assessment 2395, 130, 112 maintaining parks S.Ct. condition,” Clark, the reasonableness tives can still bear on an “attractive and intact 1024 Richmond, Fourth, v. tailoring.” Menotti Se- 743 F.2d at 1356. (9th attle, 1113, n. 409 F.3d 31 Cir. we consider the cost and convenience of

2005); also Cincinnati v. see Dis- Gilleo, alternatives. Ladue v. Network, Inc., 410, covery 417 n. U.S. 43, 57, 2038, S.Ct. 129 L.Ed.2d 36 13, (1993). 1505, 113 S.Ct. 123 L.Ed.2d 99 (1994). Third, generic regulation is a needed “as Finally, the fourth criterion is the applied if it speakers,” to other even is not prohibition regulations un confer needed the case at hand? Galvin v. bridled discretion on a li permitting or (9th Cir.2004). Hay, 374 F.3d censing official. Shuttlesworth v. question multiplied This addresses “[t]he Birmingham, 150-51, particular activity effect of’ L.Ed.2d 162 Regula many organizations “if likewise de- “narrow, objective, tions must contain engage activity cided to on a perva- this guide licensing definite standards to ACORN, regular sive or basis.” id., authority,” require and must the offi 1270; Clark, see also 468 U.S. at 296- cial to “provide explanation [an] for his 97,104 S.Ct. 3065. decision,” Forsyth 133, County, 505 U.S. at The third criterion applicable to 112 S.Ct. 2395. The standards must be time, place and manner restrictions is that sufficient to [the “render official’sdecision] regulations open “must ample leave alter subject judicial to effective review.” natives for Forsyth communication.” Dist., 316, Thomas v. Chi. Park 130, County, 505 U.S. at 112 S.Ct. 2395. 323, 775, 122 S.Ct. 151 L.Ed.2d 783 Several considerations are relevant to this requirement This applies to an official’s First, analysis. “[a]n alternative is not “authority permit to condition the on ample speaker permitted if the is not to additional terms” not stated in the ordi Bay reach the intended audience.” Area Lakewood, 772, City nance. 486 U.S. at States, Navy

Peace v. United 108 S.Ct. 2138. (9th Cir.1990) (internal 1224, quota 1229 Menotti, omitted); tion marks see also 409 § Analysis Y. of 5.60 Second, F.3d at 1138. if the location of the Description A. of the Ordinance expressive activity part of the message, requires groups Section 5.60 may alternative locations not be obtain Galvin, 756; city-issued adequate. permits order to “spe- 374 F.3d at hold ACORN, Third, 798 F.2d at n. cial events” as defined in 1267 the Ordinance.1 5.60.020(A). § consider the opportunity spontaneity special for in LBMC Permits for determining whether involving expressive activity alternatives are am events not re- ple, particularly political speech. for quire sixty days at least advance notice to 1031-32; judicial ary 1. The has asked take us to notice 2007. Id. at see also Lakewood, City’s of the Santa Monica ordinance and the 486 U.S. at concerning § (describing requirements recent amendment to 5.60 for an adminis- special agree regulation definition of events. to take trative to affect constitutional anal- Bombs, judicial ysis). notice of the Santa Monica ordi As we stated in Food Not ”[w]e only nance. present See Food Not 450 F.3d at review version of the ordi- Brennan, (citing n. 2 implementing regulations.” Newcomb v. nance and (7th 1977)). agree Cir. We also F.3d at 1025. We also note that in an order 23, 2007, judicial January to take notice granted new definition of filed on this court .010, special City’s judicial events contained in subsection motion to take notice of interpreted by Long Chapter Chicago Beach Administrative VII of the Park District 8-28, Regulation promulgated AR on Febru- Code. 5.60.010(C). Departmental § services Id. contrast, permits special City. By by “costs incurred charges do not include activity require involving expressive events police protection to provide advance no- days three and ten between ” activity.’ Id. ‘expressive engaged those the location tice, on depending However, with ex- other costs associated § 5.60.040. Certain Id. event. planned beyond those associat- pressive special event exempt from are events activities— “police protection” included ed with include Those events requirement. permit —are charges. departmental conducted activities processions; funeral filming agencies; activi- exempt from by events are governmental “Spontaneous” provision another governed requirement applicable ties permitting pa- code; “spontaneous sponta- of a municipal organizer An special events. in- twenty- rades, or demonstrations at least provide assemblies must neous event activity” occasioned Id. City. notice to the volving expressive advance four-hour 5.60.030(A)(5). knowledge with- City Manager § into The coming events time, Id. and man- place event. days impose “reasonable five 5.60.030(A). spontaneous event. ner restrictions” 5.60.030(B). Further, Man- Id. grant per- Manager “shall” spon- deny permission to hold ager may if certain criteria special mit for event, the same criteria based on taneous 5.60.040(J)(1)-(13). Id. are satisfied. events. applicable permits deny revoke a “may” City Manager 5.60.030(C), organiza- An §§ 5.60.070. are satis- criteria if certain other event is holding spontaneous tion (B). 5.60.070(A)(1)-(15), per- § A Id. fied. permit application the fee required pay to and hold harmless agree mittee must to Id. events. to applicable and City and its officers indemnify the 5.60.030(A)(5). However, 5.60.040(F), §§ range broad claims against a employees required pay to be organization harms, must, cir- under certain and charges unless services departmental cumstances, Id. insurance. obtain by or waived the charges are funded those pay A must both permittee § 5.60.080. City Council. services “departmental fee and permit challenges nine fea- The Peace Network fund- they are to the unless charges” 5.60, in a number appearing § tures of by Council. waived ed or first of the Ordinance. subsections 5.60.050, §§ 5.60.090. are we hold five features that address “the charges are Departmental services four fea- then address constitutional. We city department of the costs which a actual unconstitutional hold are tures that we for with activities in connection incurs part. whole or including permit required,” which safety, fire traffic associated with costs §of 5.60 Features B. Constitutional control, safety, water pedestrian and/or Activity Distinctions Expressive intersections, or closure streets argues that traffic, The Peace Network the salaries of diverting of distinguishing provisions between certain city administration personnel involved activity activity” other are “expressive city coordination of for or they because content-based impermissibly event, city provide to the cost of activi treatment for differential provide equipment, materials support personnel, those activities messages based on the such ties and related costs supplies, convey. seek employee or overtime. fringe benefits “ conduct, ‘Expressive Activity’ 1037; means 450 F.3d at Burk v. Augusta- of. object principal the sole or of which is the County, Richmond 1254-55 expression, (11th Cir.2004) dissemination or communica- (finding an ordinance re- verbal, visual, literary by auditory tion stricting public gatherings to unlawfully opinion, Expres- means of views or ideas. content-based because it was “directed includes, to, activity sive but is not limited only to activity, communicative rather than public oratory and the distribution of liter- activity, to all and its applicability turnfed] 5.60.010(D). § ature.” Id. It is true that solely subject on the matter of what a § provisions distinguish some 5.60 be- speaker might say”). expressive non-expressive tween activ- Further, the Ordinance does not “sin- 5.60.010(C) ity. E.g., (prohibiting id. glen out certain speech for differential City Manager from imposing depart- treatment based on expressed,” the idea charges mental services for costs incurred Nevada, see ACLU 466 F.3d at 794 provide police protection to (internal quotation omitted), marks and it people engaged expressive activity); id. distinguish does “not among expres- 5.60.020(D) (prohibiting Manag- sive content,” events based on their see er from imposing permits conditions on Food Not 450 F.3d at 1037. Iden- “in a manner that unreasonably will re- tifying “expressive activity” protected by strict activity protect- the First Amendment can sometimes be ed the California or United States con- See, Johnson, difficult. e.g., Texas v. stitutions”); 5.60.040(G) id. (requiring 397, 399, U.S. 109 S.Ct. 105 L.Ed.2d Manager completed to act on ap- decision, (holding, in a 5-A plications permits involving expressive flag burning protected activity under the within days, pro- activities two business Amendment). First But difficulty such vide applicant with written notice ex- arises from the nature of the constitution- plaining reasons denial or con- ally protected speech and heightened ditional approval, and to consult with the protection provided by the First Amend- city attorney denying before or condition- See, Murdock, ment. e.g., ally approving involving expres- (“A 63 S.Ct. 870 certainly license tax sive does activity). acquire not validity constitutional because However, we conclude that these distinc- it classifies the privileges protected by the tions expressive between activities and First Amendment along with ... the mer- non-expressive permissible. activities are chandise of ... peddlers and treats them These “justified § subsections of 5.60 are all alike. equality Such in treatment does without reference to the content of the not save the ordinance. Freedom of ... Clark, regulated speech.” See 468 U.S. at speech ... preferred [is] a position.”). 293, 104 S.Ct. 3065. These subsections do It does not follow that those subsections of show that the has “adopted [the] § 5.60 that treat expressive activity more regulation speech because of disagree- favorably than non-expressive activity are ment message with the it conveys.” See impermissibly Indeed, content-based. Ward, 491 109 S.Ct. 2746. recently held Food Not Bombs that Here, opposite true, permis- “the comparable provisions of Santa sive Monica’s nature of the [exceptions favoring ex- ordinance, distinguishing pressive activity] furthers, “expres- between rather than constricts, sive” Thomas, “non-expressive” events, and speech.” free See 534 were permissible. U.S. at 122 775. Following S.Ct. All of the provisions Bombs, expressive “treat[ ] events more Food Not we so hold for these favorably than others.” Food Not subsections of 5.60 as well. 753-54, 770, Lakewood, U.S. at Permits on

2. Conditions allowing un- (striking down as Events Special allowing city a ordinance bridled discretion that argues The Peace Network terms “any other and mayor impose 5.60.020(D) Manager un gives § necessary and reason- deemed conditions on conditions impose discretion bridled (internal omitted)), quotation marks able” We dis special events. to hold permits Linick, v. with United States allows This subsection agree. (9th Cir.1999) a law (upholding allow- permits on impose conditions Manager and conditions as of “terms ing imposition pro It purposes. specified achieve only to necessary to deems the authorized officer vides: public interest” protect ... otherwise any manager condition (alteration quotation original; internal require- ... with reasonable omitted)). Further, the subsection marks time, place or concerning the ments requirements” only “reasonable authorizes as is nec- holding such event manner specified “necessary” to serve that are multiple uses essary to coordinate re- that such purposes, provides and preservation assure property, public re- “unreasonably must not quirements pre- places, property Menotti, activity. See strict” impermis- or dangerous, vent unlawful Fair, 63; 1145 n. S. Or. Barter 409 F.3d at uses, safety persons protect the sible also note that F.3d at 1139-41. We control vehicular and to property 5.60.040(G) City Manager requires § around in and pedestrian traffic Attorney and to to consult with venue, require- that such provided explana- a written applicant to an provide in a manner be imposed shall not ments imposes conditions tion for decision expres- restrict unreasonably will 5.60.040(G). LBMC permit. See on by the activity protected sive 5.60.130(A) §§ note that Finally, we constitu- States or United California .040(E) alternative, allow, in the direct tions. decision to either permitting appeal of added). 5.60.020(D) (emphasis LBMC court. Council state provide goes then subsection conclude therefore the We list of conditions non-exhaustive 5.60.020(D) not confer “unbridled does achieve these may impose to City Manager authority to permitting on the in- discretion” conditions purposes. These specified violation of First pedes- impose conditions an event’s “accommodation of clude provision has Although traffic, including re- Amendment. and vehicular trian might it sidewalks, challenge, portions this facial city survived to stricting events as-applied an to street, public right-of- be vulnerable or nonetheless of a if, there management implementation, in its challenge of a waste way,” “provision favorit of of unlawful up pattern restoration “a emerged and the clean plan, 324-25, event,” Thomas, ism,” “reasonable 122 534 U.S. the site of the see times, dates, Shuttlesworth, sites, see, 775; alternate e.g., of designation S.Ct. 935; activi- exercising expressive v. 156-59, for Cox New or modes 89 S.Ct. 5.60.020(D)(2),(9), 575-77, 569, § ty.” Id. S.Ct. Hampshire, (1941), if it resulted 762, or L.Ed. 1049 5.60.020(D) § in specified purposes The time, burdensome impermissibly in an are ob- permits imposing conditions on see, restriction, e.g., Gal place or manner have no relatively precise, and jective and 752-56; vin, n. One at 747 374 F.3d content of the connection to discernable County City v. & Family Now One City World Compare message. any particular of Honolulu, (9th necessary Cir. verify to [indigency] status.” of 1996). 5.60.050(B). § Id. But the documentation requirements do not affect the definition of Indigent of

3. Proof Status Rather, indigency. they merely give flexi- The Peace Network also chal bility City Manager in determining lenges allowing as unbridled discretion whether a particular applicant has satisfied 5.60.050(B), § which allows Man the criteria of the definition. We do not ager require “relevant information and regard flexibility providing this as the sort may, documentation as opinion of of unbridled discretion that would invali- city manager designee, be his/her date person’s the section. A indigent sta- reasonably necessary to verify” indi tus is always readily ascertainable. gent a person.2 validity status of of Proof of such status many come in 5.60.090(E), § which imposes departmental forms, depending on the circumstances charges services a permittee on unless he applicant. Coupled array with this qualifies she as an “indigent natural potential proof City’s forms is the inter- person,” depends part on the constitu est in verifying that an applicant request- .050(B). tionality of subsection LBMC ing a fee waiver is indigent. indeed .090(E). §§ 5.60.050(B), Ordinance, which limits to “rele- 5.60.050(B) Section “indigent defines an vant information” that is “reasonably nec- person” natural any person include who essary,” adequately ensures “eligible county support” relief and choice of proof means of is not left to the under the California Welfare Institu- “whim” Manager. Id. Code, tions but the definition “is not limit- 5.60.050(B); Fair, S. Or. Barter cf. 5.60.050(B). ed to” persons. such An F.3d at 1139. indigent person natural who to en- desires gage activity may request a Requiring additional limitations govern- waiver of permit application fee im- ing the type of documentation posed by subsection .050.3 con- Id. We Manager may request proof as of indigen- clude that eligibility provision does not be, cy Scalia, would the words of Justice confer unbridled discretion on the “insisting upon degree rigidity that is Manager. legal found arrangements.” few See Thomas,

First, 534 U.S. at definition indigency based Moreover, on the indigency provisions the California Welfare and Institutions are de- signed ], Code is objective. content-neutral to “further[ rather con- than 5.60.050(B) strict[], Section City Manag- speech,” id., allows the free see and there- er to determine which “relevant informa- fore should construed favorably in the tion and documentation” is “reasonably absence of pattern evidence of a of abuse. 2. The Peace challenge Network’s other imposes departmental That section provision 5.60.050 addresses the per- that a charges permittees they qualify unless applicant mit pay must a fee that is estab- “indigent person.” natural See LBMC through lished the Council a resolu- 5.60.090(E). § We reach the same conclu- tion unless the Council the fee. waives provision sion under that we as do The here: We provision address the waiver in Part City Manager's ability request to "relevant V.C.4, infra, regarding departmental fees and prove and information documentation” to in- charges. digent give public does status not the official "indigent 3. unbridled person” The term discretion. natural is used 5.60.090(E). in the same § fashion in LBMC 5.60.080(C) authorizes the a related Section makes Network Peace The exception, require- con- indigency to waive the insurance Manager to the challenge indigent nat- that the definition tending planned that the ment if he determines limited to” “is which not person, ural a “substantial or present does not event relief, vests the county eligible for person liability property or dam- significant discretion to unbridled Manager with its exposure officers[.]” or age the for the ex- may qualify else who decide 5.60.080(D) Further, excep- provides § is a Indigency disagree. emption. We stating requirement, tion to the insurance defi- understood with a well term common apply to to it “shall not be construed within certain may disagree, nition. One involving ... special or events parades or assets limits, of income about the level enjoy protection activity which under the indigent as an qualify to needed con- the States or California under United will be Ordinance, disagreement the but exception, qualify To for this stitutions[.]” Further, the Ordi- range. fairly narrow such specifying a baseline given has nance re- special or events shall be parades county relief’ “eligible for persons (1) indemnify, agree to quired to either: con- therefore indigent. as qualify harmless defend and hold the protect, natural indigent the definition of clude against city, employees its officers and unbridled discre- not confer person does claims, loss or expenses, damages, all documentary provisions, Like the tion. or nature whatsoev- liability of kind fur- designed to definition is expansive the from, of, resulting the arising out or restrict, er speech free ther, than to rather permittee, alleged favor- acts or omissions be construed therefore should officers, in con- agents employees or ably. its event permitted parade, the nection with application if the note that alsoWe redesign to or activity; agree or denied, provide must City Manager event to re- permitted reschedule explaining with a statement applicant risks, 5.60.070(C). hazards and specific dan- spond for denial. LBMC reasons safety ap- public health opportunity gers to the has the applicant The Council, being id. city manager to the as the denial peal identified or, ap- 5.60.130(A), applicant if has consequences reasonably foreseeable than permit fewer for a plied parade special event[.] permitted event, directly to days thirty before Id. 5.60.040(E). court, For these id. state examined Santa Not In Food reasons, indigency provision proof requirement. similar insurance Monica’s City Manager unbridled give does (Kleinfeld, J., writing F.3d at 1056-57 the First Amend- in violation of discretion (Berzon, at 1049-52 majority); id. ment. J., The Santa Monica dissenting part). required permittees obtain ordinance Requirement Insurance Manager “that the Risk deter- insurance 5.60.080(B) provides Section adequate necessary and under mines to be and maintain “procure [an must permittees demonstrations the circumstances” for and effect force policy] full insurance (Berzon, J., maj.op.) parades. permit.” the term of the during omitted). (internal marks quotation provision this argues that Network Peace expressive events exempted ordinance officials allows content-based long so requirement, the insurance from We dis unbridled discretion. exercise city, “un- organizers indemnified agree. specific, demonstrable histo- planned they less there is wish to hold their event— ry injury property damage or personal redesign the event. nothing We see against being applicant claims awarded to distinguish the LBMC insurance re- applicant’s attributable to the conduct of quirement from the requirement insurance City that previous events are similar upheld as content-neutral in Food Not (in- proposed in nature to the event.” Id. Bombs. The redesign language omitted). quotation ternal marks 5.60.080(D) nearly identical to the lan- guage of the alternative evaluated Food majority panel upheld The of the Therefore, Not Bombs. because a “valid requirement, concluding insurance that it (Klein- exists, was Id. at ... alternative” pro- content-neutral. “the insurance feld, J., writing majority). for the Judge present[s] vision ... no constitutional Berzon, herself, writing would have problem.” Food Not 450 F.3d at requirement struck down the as content- 1049-50; (Berzon, J., id. 1049-50 cf. (Berzon, J., Id. at based. 1051-52 dissent- dissenting part) (stating that with a ing in part). majority observed that valid indemnification alternative the insur-

[pjolitical organizers demonstration can provision ance present at issue “would no ... avoid ... provision the insurance if problem”). constitutional they cooperate City Manager with the The Peace Network argues also that design respond the event “to specific 5.60.080(D) gives City Manager un- risks, dangers hazards and to the impose bridled discretion to or waive in- safety health and City identified requirements. However, surance the sub- Manager ... being reasonably fore- section provision states the insurance consequences seeable permitted of the “shall not apply” be construed to to ex- Thus, event.” most orga- demonstration pressive that qualify activities for the ex- provide nizers will not have to insurance emption. The words “shall not” do not and even those with a destructive histo- require connote discretion to insurance for ry can avoid requirement the insurance parades special involving events ex- if they choose to work with pressive If availability activities. Manager repetition to avoid past inju- exemption triggered because the ries or property damage. event expressive activity, involves there (footnote omitted). Id. at 1057 and citation are three alternatives: indemnification The Peace argues Network au- (which invalid), we hold redesign of the thorizing the Long Beach Manager to event, or insurance. The Ordinance does determine whether required, insurance is specify who selects between these requires Ordinance Manager options. available See LBMC to evaluate the content message of the 5.60.080(D). reading commonsense is conveyed. While we conclude below of this subsection is that applicant indemnification provision in seeking to parade hold a or “[ejach § 5.60.080(A),which applies to per- expressive that involves activity may select mit,” is invalid in the sense that the between the alternatives. may not require applicant pro- 5.60.080(C) Section is a logical extension indemnification, vide we conclude that a (D). city may second alternative in authorize subsection permit applicant provide, If at the there is no applicant’s option, redesign need to indemni- resched fication as an alternative to ule an poses insurance. event because it no Moreover, Long Beach leaves permit ap- substantial risk of liability prop plicants with they another if erty alternative damage, then the Manager can any ad- altogeth thority permit to condition the on requirement insurance waive terms”). mandatory language reasons, read the For these er. We ditional (D) per conjunction with the City Manag- subsection not afford the Ordinance does (C) re to language of''subsection missive exempt appli- to an er unbridled discretion insur Manager to waive the City quire the requirement. cant from the insurance not if the event does requirement ance liability public a substantial risk present Liability 5. Criminal for Violation thereby obviating any damage, property or of the Ordinance the event. redesign or reschedule need to Network contends that The Peace City require to It would be absurd the Ordinance is unconstitutional because the event be Manager propose to liability for unknow it authorizes criminal in situations redesigned or rescheduled provisions. According violations of its necessary not because change where Network, “im to the Peace the Ordinance public minimal risks of poses the event liability anyone partici on who poses strict on this place. in the first Based liability in, to pates engages permits or another statute, we reading of the commonsensical special conduct a event.” The Peace Net provi the insurance waiver conclude that Section work has misread Ordinance. City Manager with con provides the sion penal 5.60.120 authorizes misdemeanor tent-neutral, objective factors which con ty, only “person for a who City Manager’s decision but does so trol and direct a waiver. grant intentionally provisions whether to violates of the § § To the de of’ 5.60. LBMC 5.60.120. does recognize that the Ordinance con gree that the Ordinance is otherwise terms, Manager to not, require stitutional, in penalty a misdemeanor for the decision not explanation an provide provisions tentional violation of its does requirement. See the insurance to waive not violate the First Amendment. County, 505 Forsyth However, require it does 2395. § risks, Features of 5.60 C. Unconstitutional identify “specific

Manager health dangers to the hazards “Special” Events propose orga- that the safety” and to event,” by the A as defined “special the event “redesign or reschedule” nizers Ordinance, by the requires permit issued risks. LBMC response to those 5.60.080(D). categories There are three City Manager. consti- § This communication under the Ordinance. explanation special events tutes a sufficient recognize requiring decision. We also Manager’s argues The Peace Network ag- “any person allows that the Ordinance catego- and third permit for the second issuance, denial, or revoca- grieved disagree with ries is unconstitutional. We appeal the decision permit” tion of a category, as to the second arguments its to obtain a final determi- Council as to the third agree argument with its but nation, appealed then be which category. 5.60.080(A); § see id. court. Id. state requires A event 5.60.040(E). The Ordinance does “in, any city upon if it conducted on or using these organizers from prohibit sidewalk, way, pier, street, alley, park, conditions challenge of review to methods public property public place, 5.60.080(A); imposed permits. See id. or controlled which is owned right-of-way Lakewood, see also 5.60.020(A). The Ordi city.” (applying the unbridled dis- 108 S.Ct. 2138 as: “special event” “au- nance defines requirements cretion official’s formation, organized parade, City’s thers the interest Any receiving 1. ad- assembly demonstration or procession, large groups vance notice when are plan- animals, persons, may which include ve- ning may regulate to assemble so that it thereof, hicles, any or combination which competing justification uses—a unrelated any is to assemble or travel unison on to the content of speech. See Food Not street, public right-of- or other sidewalk Bombs, language 450 F.3d at 1042. The of way city owned or controlled category applies “organized when the comply applicable which does not with assemblage” planning gather “to for a controls; regulations, traffic or or laws purpose common under the direction or Any organized assemblage 2. of seven- person.” control a LBMC of (75) ty persons any five or more at 5.60.010(I)(2) added). § (emphasis With- public place, property facility or which is limitation, purpose out the common seven- gather purpose to for a common under ty-five people happened who to be in a a person; the direction or control of or park at the same time and who assembled Any organized activity involv- in an organized response manner in ing seventy persons five or more police instructions to move to a different by a a person conducted for common or part park require of the would permit a use, collective purpose, or benefit which do so. of, on, the use an impact involves or has argues The Peace Network next public property or facilities and which special because the second event category may require provision city public of requires permit any “organized as- response thereto. semblage” seventy-five people or more 5.60.010(I)(l)-(3). § Id. City recently The any public at place, specifying any without promulgated regulation limiting the third impact any adverse on govern- substantial category to “likely activities that are interest, mental it fails the narrow tailor- require provision services” for requirement. See LBMC six specified purposes: “street blockage,” 5.60.010(I)(l)-(3). disagree. We barriers,” “construction,” “erecting “traffic control,” control,” The category encompasses only “crowd or “litter second abate- (for ment place amounts excess of that nor- events that any public place, take “at mally expected for the public property 5.60.010(I)(2). or property facility.” Id. involved).” 8-28(IV)(A)(l)- facilities AR public places Such public open include spaces, where we have held that the sub- governmental stantial “only interests are argues Peace Network first regulate competing provide because the term uses and purpose” “common in the category second municipality not notice to the the need for defined, “[t]he determination of public safety whether additional and other ser- group purpose’ is assembled for a ‘common vices.” Food Not 450 F.3d at is, necessarily, a judgment.” content-based recognized 1042. We in Food Not Bombs disagree. We governmental sig- those interests are nificant, holding that “[gjroups of 150 or purpose” “common language more, demonstrating whether playing category “justified second can be without soccer, are any sufficiently measure reference to the content regulated large Clark, enough to affect or have an speech,” impact City’s] public the use of provision applies spaces by [the because the regard- less of the people engaged implicate whether are in other citizens and therefore to activity and fur- City’s because it in maintaining interest the safe large people together on public open groups limited travel compatible use of (internal sidewalks.”). quotation Compare streets and LBMC space.” omitted). cautioned, however, 5.60.010(I)(1) marks (requiring number substantially “a lower using groups size sidewalks comfortably with the lim- comport well not comply streets when the use “does play at in pub- interests governmental ited applicable regulations”), with traffic with at open Id. 1043 n. parks spaces.” lic and 5.60.010(I)(2) § (requiring id. a 17. or “at groups seventy-five persons of more special any public facility”). of event or category place, property,

The second groups seventy-five or more applies to of ar Finally, the Peace Network any conducting public “at activities people gues category the third of exactly facility,” or half the property place, narrowly is a tailored to serve upheld in Food Not Bombs. number we governmental substantial interest. We 5.60.010(I)(2); § at see F.3d LBMC agree. recog has Supreme Court 1042-43. between the cate- distinction second in government’s significant a interest nized event,” “[a]ny gory “special of defined as when competing large uses managing (75) organized assemblage seventy of five public prop to use groups people of intend any public more and Thomas, persons place” or at erty. See event,” question, category “special it is a close of de- Although third seventy-five people that a of group activity we hold as “[a]ny organized fined other Long in public open space a Beach is using (75) involving seventy per- five more or enough to warrant an advance notice large discernible, in place sons” a is but public See permitting requirement. Gross only As with some effort. we construe man, F.3d 1206. Advance notice Ordinance, “organized activity” an in a requirements applicable to permitting place necessarily “orga- is not an public groups likely would be unconstitu smaller assemblage.” example, group nized For tional, implicated unless such uses other in might a “5K Fun Run” which organize interests, governmental significant monitors, first fifty race. Course people in public space question was so where might be personnel, spectators aid relatively small that even small number “orga- This along stationed course. of pose problem regulat could people of sev- activity” easily nized could “involv[e] Similarly, competing advance uses. persons” more and would enty five permitting requirements notice and ... for a common or collec- be “conducted larger open spaces much than those use of 5.60.010(I)(3). ... Id. purpose.” tive might the LBMC uncon regulated runners, mon- spectators, Yet if course groups seventy-five. even for of stitutional itors, gather personnel first aid never category hold Because we that the second it together place, possible in one narrowly open spaces, in public tailored an “or- might never this event amount necessarily in narrowly tailored it is (75) or ganized assemblage seventy five sidewalks and public spaces such as 5.60.010(I)(2). persons.” more Id. streets, where interests governmental us the third It is unclear to whether stronger. are See Food Not public category is confined events (“[T]he significant govern at 1039 confined, not so an advance places. If it is justifying step interest the unusual mental justi- requirement cannot be permitting govern inform the requiring citizens to fied, category, can be for second it activity has ment advance of regulating competing on the always only ground been understood to arise when But even if places. regulation, uses such the third recent includes that may events to events in category is confined require nothing more than public ser- narrowly places, it is still not tailored. vices to deal with litter. The has argument offered no that litter abatement qualifying The critical criterion for inclu- governmental is a substantial In interest. category sion the third is that the event Schneider v. New Jersey, Supreme “may require provision city public Court held that legislation to fur- enacted in response thereto.” 5.60.010(I)(3). ther governmental interest only If we look to the Ordinance, text of the possibility keeping] the good streets clean and of requiring provision city public appearance is insufficient justify service—no matter trivial how the ser- prohibits ordinance which person enough qualify vice—is the event for rightfully on a street from hand- inclusion the third category. As indicat- ing literature willing to one to receive it. above, recently ed has promulgat- Any burden imposed upon au- regulation ed a attempt an to narrow thorities in cleaning caring for the city public the definition of services under streets as an consequence indirect of category. the third The six services listed such distribution results from the consti- in the regulation any new one of which — tutional protection of the freedom of would qualify the event a special as event speech[.] requiring an permit advance “street —are 147, 162, 60 S.Ct. 84 L.Ed. blockage,” barriers,” “erecting “construc- government’s Unlike the in- tion,” control,” “traffic control,” “crowd in regulating terest competing park uses of and “litter abatement.” We hold that this space, preserving free use public ways, of regulation sufficiently has not narrowed enforcing traffic rules or ensuring public city public definition of services that safety, government’s interest in litter required by event to abatement is not sufficient justify to satisfy the tailoring narrow requirement. prior restraint on an expressive activity Bombs, In Food Not upheld an ordi- through a permitting requirement. nance required for any Three of the specified city public “march, procession, walk, run assembly or clearly services are related to free use of public City park sidewalks or paths” public ways, traffic violations or “likely was to interfere with [] safety, permissible would thus be bas- free any public use of way ... or not requiring es for permits: advance “street comply with regulations.” traffic blockage,” barriers,” “erecting and “traffic (internal quotation 1038-39 marks omit- control.” The two remaining city public ted; Bombs; second alteration in Food Not clearly are less related to sub- removed). emphasis is, That we held that governmental stantial interests —“con- the permitting requirement was valid to struction” and “crowd control.” These the extent the event likely was to two services sufficiently related, could be interfere with the of public ways use or to depending type on the purpose of the violate regulations. traffic We think it is control, construction and crowd also but a say safe to that a permitting require- precise more definition ment would would be be valid to needed the extent that the before we could likely pose they was to conclude that threat to were. safety. government has the burden of

But category, third showing described in that a restriction is narrowly tai- § 5.60.010(I)(3), even as modified by the Bay lored. Navy, Area Peace 914 F.2d at 5.60.030(C). § has that the failed event. Id. Such criteria 1227. conclude include, alia, defini- carry disruption to its burden to show inter unreasonable event, category traffic, tion the third unreasonable interference with 5.60.010(I)(3) and the ac- stations, described access or fire police undue regulation, administrative companying hardship adjacent or resi- businesses significant narrowly tailored to serve 5.60.070(A). dents. interest.

governmental have considered several Courts factors requirements determining validity Events “Spontaneous” expressive activity in applicable to re- are defined “Spontaneous” events sponse late-breaking or to news issues demonstrations “parades, as assemblies or urgent concern. immediate These activity and which are involving expressive ability factors include the of individuals to by news affairs into coming occasioned respond or issues of con- quickly events (5) days five public knowledge within cern, and avail- scope regulation, assembly such or demonstration.” parade, expression. able alternative means of See 5.60.030(A)(5). Peace Net LBMC Food at 1046-47. Not argues provisions governing work that the these in turn. We consider factors “spontaneous” narrowly are not tai events First, noted, just the Ordinance re- provide sufficient alterna lored and do quires groups give at least agree. communication.4 We tive means of twenty-four-hours advance notice before subject to Spontaneous events are not holding “spontaneous” The Su- a event. requirements applicable to the permitting “timing has preme Court observed However, organizers “special” events. Id. politics.... of the essence [W]hen spontaneous who to hold events are wish occurs, necessary event it is often to have city required “give written notice promptly, one’s heard if it is to be voice (24) twenty four hours manager at least Shuttlesworth, at all.” considered assembly.” parade Id. prior to such or change at 89 S.Ct. 935. “[T]he The re- twenty-four-hour advance notice by an advance notice re- timingfimposed spontaneous quirement for events is less impact alter quirement] potential will three-, five- demanding than the or ten- speech. speech For participants’] [the day requirements “special” for notice sensitive, truly precise time activity. involving events spontaneous moment will be lost.” Food 5.60.040(D) three-day (requiring advance Bombs, “By requir- F.3d at “sidewalks,” Not 1046. events held on notice for notice, out- government advance “parks,” “waterways piers,” or five- “alleys rights-of- day spontaneous expression. and other Immediate notice laws sidewalks,” way ten-day other than speech longer respond no to immediate can “streets, highways Richmond, notice for thor- F.2d issues.” oughfares”). 1355; Right Political Ariz. to Life cf. Bayless, v. F.3d Action Comm. Manager may impose “reason- (9th Cir.2003) (“To suggest time, manner restrictions” place able is mini- [twenty-four-hour] waiting period 5.60.030(B). spontaneous on a event. Id. reality politi- ignores mal of breakneck Further, may deny Manager per- importance get- and the campaigning cal a spontaneous to hold event based mission or, in ting message timely, a out in a criteria applicable the same Not challenge events. Food The Peace Network does not Cf. non-spontaneous requirements 1043-45. notice fashion.”). cases, even instantaneous purpose some common under the direction or advance twenty-four-hour A notice re- control of person.”5 sponta- a a Because spontaneous a event is quirement for not neous thing event is the same a special as unconstitutional. But it categorically event but for its time sensitivity, we take so, on factors depending such as the “assembly” the definition of to be at least a spontaneous definition of event and the as broad “organized assemblage.” availability expres- of alternative means of “assembly” definition of may well be sion. broader, present but for purposes that Second, matter, spontaneous a event includes all does not orga- for the definition of assemblies, “[spontaneous parades, assemblage nized includes assemblies that involving expressive demonstrations activi- place take on the lawn in front city of a ty” by “news or coming occasioned affairs hall, in public park, on publicly owned public knowledge days into within five field, soccer possibly even on privately parade, assembly of such or demonstra- publicly owned but open space. accessible 5.60.030(A)(5). is, LBMC That tion[.]” Thus, spontaneous — n regulation spontaneous “special event would be a twenty-four-hour and the advance notice requiring event” a formal were it requirement apply to assemblies — time-sensitivity not for the of the event. A places where there is no disrup- threat of separately “demonstration” is defined tion of pedestrian the flow of or vehicular formation, “any Ordinance as proces- traffic. assembly sion or of persons pur- for the Third, expression alternative means of pose expressive activity, who intend to are people limited for comply, who cannot or do assemble or travel in unison on or who could comply only difficulty, with street, sidewalk or other right-of- twenty-four-hour with the advance notice way owned or controlled in a requirement. We wrote in Food Not that not comply manner does with normal Bombs, comport “[T]o with the First regulations, or usual traffic laws or con- Amendment, permitting a ordinance must 5.60.010(B). However, trols.” “pa- provide some alternative for expression “assembly” rade” and are separately not concerning fast-breaking assume, defined. events.” reasonably We Therefore, definition, even a F.3d separate without that we ... a “consider “parade” procession a place that whether takes the [LBMC] advance notice re public on a public right-of- street or other quirement, including spontaneous the ex way. pression exception, provides overall ade quate alternatives for expression, both

But the definition of an “assembly” that planned spontaneous.” 1046; Id. at spontaneous constitutes a event is not so see also Ctr. Fair Pub. Policy v. obvious. Mari The definition of a “special copa (9th County, event” requiring a permit “[a]ny includes Cir.2003) (“The organized (75) assemblage seventy Supreme of five Court generally or more persons any public in will not place, prop- strike down a governmental action erty or facility which gather is to for a for failure open ample to leave alternative 5. The special definition of a event also response in- or services in thereto.” "[a]ny organized activity cludes involv- We hold that this definition of event is seventy persons five or more conduct- unconstitutional narrowly because it is not person ed a for a common or collective supra tailored. See Part IV.C.l. We do not use, purpose rely or benefit which involves the use purposes on this definition for of deter- of, on, or impact public property has an mining or the “assembly,” definition of as that may require facilities and provision which term defining spontaneous is used in a event. gov- unless 3. Hold-harmless and Indemnification of communication channels Clauses will an entire enactment foreclose ernment expression across medium broadly The Ordinance contains particular community or landscape of clause under permittee worded which (citation quotation and internal setting.” to required agree to hold harmless and omitted)). marks indemnify arising for harm out of activity. LBMC permitted regulation conclude 5.60.080(A). permit application events under the Ordinance “spontaneous” broadly word form contains even more only narrowly regulate to is not tailored These to requirements apply ed clause. gov- in there is a substantial events which permit” from the indem “[e]ach differ in such ad- requiring interest ernmental nification alternative set forth to insurance requires The regulation notice. vance 5.60.080(D). ar in The Peace Network irrespec- twenty-four-hour advance notice gues that these clauses are unconstitution there is any possibility tive of whether they narrowly al because are tailored flow. event will interfere with traffic significant inter governmental to serve Further, regulation provide to fails agree. est. We ample alternative means of communication indemnity The hold-harmless clause wishing sponta- to people participate provides, part: of the Ordinance relevant neous events. shall expressly provide Each regulation spontaneous events defend, agrees protect, permittee to con- under the Ordinance stands stark officers, indemnify city, and hold its spontaneous the Santa trast Monica employees agents free and harmless recently upheld regulation claims, against any from and and all There, respect to Not Bombs. “with Food liability expenses, damages, loss speech,” groups had large time-sensitive arising any kind or nature whatsoever notice be- providing three alternatives of, from, resulting alleged acts out First, City Hall an event. fore such officers, permittee, or omissions its wishing open group lawn was employees in with agents or connection speech. Not engage Food activity[.] permitted event or Second, pro- at 1048. a “safe harbor 5.60.080(A). applica- permit LBMC The described formations for sidewalk vision” requires only permittees form not that tion require marches that would not indemnify the to hold agree harmless “groups as and that would available for or expenses resulting from “acts City for 1,999.” Third, Id. the ordinance large officers, “permittee, of the its omissions” exempted “unorganized” gather- explicitly employees.” requires also agents or It 1049; provisions. see ings from agree “organiza- permittees that that their Richmond, City 743 F.2d. 1355-56 any from City tion will hold the harmless (“[T]he delay notice inherent advance by liability caused the conduct of By requir- inhibits requirements speech. added.) It (Emphasis states event.” notice, out- government advance any not for mis- City will be liable “[t]he expression. Immediate spontaneous laws event,” injuries associated with haps longer can no to immediate speech respond respon- goes provide on to that “[f]ull quantity speech The will be sibility issues. effective for activities at the event limited.”). organization.” by assumed clauses, only together, require per- not the text of The taken

We evaluate (1) Ordinance, agree compensate also the manner which it mittees to to but by governing City any “damages, expenses, au for loss or implemented has been Ward, 795-96, 109 liability ... arising resulting 491 U.S. at out of or thority. See (including alleged the administrative from the actions or omissions” of S.Ct. 2746 (2) implementation challenged provision permittees; agree City of a to hold the analysis); “any liability by in the Court’s constitutional harmless for caused cf. Forsyth County, permittees; 505 U.S. at 131 n. 112 conduct of the event” to (examining language of a agree “any S.Ct. 2395 reimburse the for permit application liability by form to determine how caused the conduct of the government interpreted parties. phrase “any the local an ordi event” to third provision). liability nance The terms “hold-harm caused the conduct of the “indemnity often susceptible reading, less clause” and clause” event” is to a broad thing agreement encompassing liability refer to the same caused the acts —an party agrees to any person entity under which “one answer or omissions of in- any event, liability including for ... or harm that volved in the acts and party might only incur.” permittees Black’s Law omissions not of the but (8th ed.2004) Dictionary (emphasis parties. also of the and third added) clause,” (defining “indemnity noting We conclude the clauses are not the clause is termed hold- “[a]lso narrowly tailored to serve a substantial ” clause; harmless save-harmless clause governmental performing interest. In our (emphasis original)). tailoring analysis, narrow we ask whether governmen- the clauses serve a substantial provision pro- Another the Ordinance tal interest without restricting substantial- “departmental charges” vides that services ly speech necessary, more than and wheth- against permittee, be assessed ex- er there are obvious alternatives cept charges may that such not include a objectives would achieve the same while charge police protection permit- for of the restricting speech. less We hold that the 5.60.010(C); tees. Forsyth, LBMC see narrowly clauses are not tailored in three 133-36, 2395; 505 U.S. at Food respects. Not 450 F.3d at 1049. The Peace First, Network has challenged the assess- require the clauses that the per- departmental charges ment of compensate ex- mittees any “dam- (as section) cept ages, discuss the next expenses, liability loss or ... arising the extent that the Manager has un- out of ... alleged acts or omissions 5.60.080(A). bridled discretion to decide whether such permittee.” LBMC charges will be assessed in a particular permit application requires permit- further purposes analysis case. For of our indemnify tees to “mis- clauses, hold indemnity harmless and haps injuries,” otherwise, intentional or assume that the assessment of departmen- that are “associated with the event.” It is tal charges, charges services as those are well established that governments may not Ordinance, defined in permissible. the “recoup costs that are related to listeners’ us, question therefore, before speech. Forsyth County, reaction” to 505 City may require 12, whether the permit- the at n. S.Ct. 2395. The tees to indemnify hold harmless and the Supreme explained Court in Forsyth City remaining specified for the in County costs that recouping such costs is uncon- the clauses. “[sjpeech stitutional because cannot fi- be burdened, any permit application requires permittees more than it can The nancially banned, it simply responsibility because to take for at punished be activities “fflull at provision requires offend a hostile mob.” Id. 134- the event.” The might per- 35, specifi- 112 S.Ct. 2395. The Ordinance mittees to legal assume and financial re- providing that the cost of cally provides sponsibility even for those “activities at the “depart- excluded from police protection is event” that are outside the control of the charges,” see LBMC mental services permittee, indeed including activities of the 5.60.010(C), but the clauses re- would City. In NAACP v. Claiborne Hardware compensate City to the quire permittees Co., Supreme Court reviewed the dam- just “departmental than for more ages rights boycott awards from a civil and hold- charges.” The indemnification Mississippi explained liability that for harmless clauses contain no exclusion for arising protected expressive costs out of by the reac- losses to the occasioned activity by is limited the amount of control activity. permittees’ expressive tion to the the speaker exerts over the actors and the City impermis- The clauses thus allow the speech. message 458 U.S. at 916- to sibly to shift some of the costs related 20, 102 that S.Ct. 3409. Court held speech listeners’ reactions to from presence activity protected by “the permittees. to the imposes First Amendment restraints on grounds may give that to Second, damages rise per the clause contained permittees liability persons may that and on the who be application requires mit “any liability damages,” harmless for held accountable for those hold id. 3409, 916-17, caused the conduct of the event”— 102 S.Ct. and declined to including, reading under a of this liability broad impose “merely because an indi- language, liability per- to the belonged group, vidual to a some members is, requires mittees. That the clause of which committed acts of violence.” Id. permittees agree, condition of 3409. The S.Ct. Court wrote obtaining permit engage to liability imposed by “[f]or reason speech, forgo recovery cause of alone, necessary it is association es- they might against action otherwise have group possessed tablish that the un- itself City. encompasses only The clause not goals lawful and that the individual held a liability physical permit- harm to the specific illegal intent to further those aims tees, deprivation permittees’ but also for field, “because” this sensitive ‘[i]n Compare rights. generally constitutional broadly employ State not “means (9th Barclay, Orin v. personal liberties when stifle fundamental Cir.2001) (holding 1983 action that narrowly end can be more ’” qualified state officials were not entitled to (quoting Carroll v. achieved.” immunity limiting message of a Anne, 175, 183-84, Princess protected by First speaker who was (1968)). Requir- L.Ed.2d 325 Amendment). We think it obvious permittees compensate parties third permittees required cannot be to waive hecklers, counterpro- for harm caused right their to hold the liable for its testers, persons part per- or other as a condition otherwise actionable conduct substantially organization restricts mittees’ exercising right speech. their to free liability un- speech more than the found

Third, constitutional in Claiborne Hardware. See permit applica- the clause 916-17, 918-19, 102 3409. 458 U.S. at requires permittees tion that hold the Similarly, requiring permittees compen- “any liability by for caused the harmless by harm acts parties. parties to third sate third caused conduct of the event” City impermissibly Funding of the of Permit and omissions Waiver Departmental Fee and speech. restricts Charges Services City argues that the clauses should The Ordinance authorizes the im upheld be because we did not strike down position permit of a fee for a to hold a provisions in Food Not Bombs. similar event,” “special imposition as well as the reasons, First, disagree. For two “departmental charges” services for costs are than the clauses this case broader by incurred result of either in Food provisions upheld Not Bombs. “special” “spontaneous” events. The (Kleinfeld, J., at writing See 450 F.3d discretion, City, Ordinance allows the its case, majority). In that Santa permit fund or waive the fee and the imposed pro- Monica had a hold-harmless departmental charges. services The Peace claims, that was limited to “all dam- vision Network argues funding ages, expenses, liability” loss or re- [and] provision waiver allows the exercise of un sulting “alleged negligent from willful or bridled discretion and is therefore uncon officers, permittee, acts or omissions of its agree. stitutional. We agents, employees in connection with provides permit The Ordinance that “a permitted activity.” event or Id. by city fee” “shall be established coun- (internal quotation n. marks omit- resolution,” by cil but that the fee ted). by “funded or waived council resolution or 5.60.050(A). ordinance.” LBMC Second, although we did not address Ordinance further provides “depart- tailoring issue of narrow in Food Not mental charges” services shall be assessed Bombs plaintiffs challenged because had against “permittee.” 5.60.090(a), §§ only provision ground on the that it 5.60.010(C). context, In this the term content-based, (Wardlaw, was id. at 1058 “permittee” appears to include both some- J., concurring), our conclusion in this case one who granted has been to hold by supported the comments of two event,” “special as well as someone who judges on the panel. Food Not Bombs exempt permit process from the formal (Berzon, J., dissenting given permission but has been to hold a (Wardlaw, J., part); id. at 1058 concur- “spontaneous” event. The pro- Ordinance ring). Judge Berzon wrote that the in- departmental vides that charges provision demnification that case was “funded, may be partially funded or narrowly governmental “not tailored to the waived action of the council.” Id. interest in protecting from bear- 5.60.090(A). The Ordinance does not arising injuries costs from or other specify determining criteria for whether liabilities due permittees’ wrongful to the charges those fees and will be funded or conduct of the event or conditions at the waived Council. (Berzon, J., site.” Id. at 1052 dissenting We note at the outset the unbridled part). Judge acknowledged Wardlaw argument discretion is somewhat unusual provision contention that the was not Here, in this case. the discretion to fund

narrowly “might tailored have been the or waive the charges fees and rests in the argument,” view, better but in her elected, hands of the Council—the argument had been waived because the legislative body City. Unbridled dis- plaintiff had failed raise it. Id. at 1058 challenges cretion typically arise when dis- (Wardlaw, J., concurring). administrator, delegated cretion is to an

1041 seeking a to hold a demon- officer, group official. fees on other executive police 318, See, Thomas, at 122 in a forum. Simon & 534 U.S. stration e.g., Cf. District); Schuster, Inc., 115-16, Forsyth 112 (Chicago Park 502 U.S. at 775 S.Ct. 132, Sullivan, 173, 112 2395 501; at S.Ct. County, 505 U.S. Rust v. 500 U.S. S.Ct. Cox, administrator); at 312 U.S. 199-200, 1759, (county 194-95, 111 114 board); Menot 576, (licensing (1991). 61 S.Ct. Long City The Beach L.Ed.2d 233 officers); ti, (police at 1144 S. Or. 409 F.3d authority to reserved waive or Council’s Fair, (Department at 1137 372 F.3d Barter charges legis- thus unlike its usual fund Linick, Services); at 195 F.3d Human of authority. that in the lative We conclude Service). (Forest But see of context, a legisla- First Amendment where Richmond, (City at Coun 743 F.2d permitting enacted a scheme body tive has cil). law Delegation in the administrative expressive conduct but has reserved delegation legislative to context refers decisionmaking authority for itself some See, executive branch. authority to the scheme, authority under that that reserved Corp., v. Mead 533 U.S. e.g., States United challenge grounds is vulnerable to 2164, 226-27, 218, 150 L.Ed.2d 121 S.Ct. unbridled discretion. (2001). con In the First Amendment supported conclusion is Shuttles- Our authority text, delegation of some of the City Birmingham, in which the worth v. same, lack of such as concerns are an ordinance re- Supreme Court evaluated accountability inability to obtain effec and other quiring participants parades See Freedman v. Ma judicial tive review. demonstrations to obtain a 57, 734, 55, 85 S.Ct. ryland, 380 U.S. Commission,” at “City from the 394 U.S. (1965). concerns, other Two L.Ed.2d 935, 148, govern- which “the 89 S.Ct. was delegation, are rele largely unrelated Birmingham,” ing body of the analysis: our First Amendment vant Birmingham, 281 v. Shuttlesworth Gaudiya tailoring, the need for narrow 544, 542, Ala. 206 So.2d 348 1065, F.2d at and the Soc’y, 952 Vaishnava city’s concluded that because Court for offi opportunity to eliminate the desire upon ... conferred “ordinance in content-based discrimi engage cials to and abso- virtually unbridled Commission discretion, exercise of through nation and dem- prohibit” parades power lute 133, at 112 S.Ct. Forsyth County, 505 U.S. 150, Shuttlesworth, onstrations, are to a Those concerns relevant facially unconstitution- it was 89 S.Ct. analysis even if the dis Amendment First 935. The al. id. 89 S.Ct. See legislative body and remains with a cretion a similar conclusion Tenth reached Circuit an delegated to administra has not been Community Organiza- in Association tive official. (ACORN) v. Munic- Now tions for Reform of the Ordinance permitting scheme (10th Golden, ipality of requires organizers to come to Cir.1984). that the exer- The court held If to hold an event. permission by city coun- cise of unbridled discretion body retains discretion legislative was unconstitu- permitting cil in a scheme part of that important make an decision as tional. It wrote: here, fund whether to permitting scheme— it matters for First fail to see how charges— or to waive fees and unguided purposes whether Amendment general distinct from the that discretion is or the police is vested in the discretion body to enact legislative has discretion authority Vesting either enact) city council. (or preexisting laws. Absent a govern- permits discretion scheme, with this could not council permitting that will viewpoints to control the ment impose charges service advance city application requirements,” Whether the council thered expressed. power, this exercise police or the at was unconstitutional. 534 U.S. afoul of the basic that it runs believe that S.Ct. 775. The Court wrote government that “forbids principle “furthers, constricts, than provision rather ways in fa- speech that regulating from added, speech.” free Id. The Court viewpoints or ideas at the ex- vor some (or, “Granting speakers waivers to favored pense of others.” precisely, denying more them disfavored Vincent, Taxpayers (quoting Id. at 747 speakers) would of course be unconstitu- for 2118). 804, 104 466 U.S. tional, but we think that this abuse must apparently contrary con- disagree with with if and when a pattern be dealt of Appeal the California Court of clusion of appears, than unlawful favoritism rather Pride, Gay Lesbian & Inc. v. Long Beach a insisting upon degree rigidity that Beach, City Long Cal.App.4th legal arrangements.” is found few (1993) (“It 344, Cal.Rptr.2d 861 is not a challenged provision The in Thomas is delegation power to an official but a strikingly provision dissimilar to the our authority of the innate recognition Thomas, provision operated case. In City’s body. city The council legislative only in the narrow circumstance where the power grant special permits, has the permit application technically was defi- 5.60; Chapter and to amend the mere provision provided gen- cient. The then potential present existence of that does not forgiving erous criterion for the technical discretion.”). unguided case of allowing go defect and the event to for- provision City pointed The has to no contrast, despite By ward the defect. this Ordinance, any implementing or to City Ordinance authorizes Council to regulation, guides City that Council’s decide whether to fund or waive fees and decision whether to fund or waive fees and for all charges permissive subject events charges. specific The lack of articulated Ordinance, to the not limited to events for making compels bases for this decision permit application technically which a was City conclusion that the Council has uncon- deficient, and authorizes the Council stitutional unbridled discretion. See to make that governing decision with no Richmond, (“The at 1357 dan- criteria whatsoever. gers particularly of discretion are evident schemes, parade permit where waivers City argues The that the Council sought will politically often be contro- not, fact, authority has used its to fund It precisely politi- versial causes. when charges or waive fees and based on the pressures cal are likely and social most content of the activity. Even if objective affect decisionmaking stan- so, this were it would be irrelevant. The govern dards discretion are most essen- question city is not whether a has unlaw- (internal omitted)). tial.” quotation marks fully messages favored certain or certain Thomas, City argues, based on speech. question kinds of is whether provision permissive because the waiver in question the ordinance allows it infringe- cannot be unconstitutional A presumption city to do so. that a official Thomas, speech. Supreme ment on In good “will act in faith and adhere to stan- Court “permissive held nature” of dards absent from the ordinance’s face ... provision officials to allowed very presumption is the that the doctrine grant an expressive forbidding unbridled discretion disallows.” despite an application’s to meet “fail[ure] Lakewood, ... requirements,” long technical so as a “policies waiver did not harm the fur- S.Ct. 2138. VII. Conclusion not do so for

Although we need that, case, con- we note of this disposition reasons, foregoing For the we hold that the record City’s argument, trary to some features of LBMC 5.60 are consti- favorit- of content-based contains evidence and that others are unconstitution- tutional held two similar The Peace Network ism. district court for al. We remand months, events, than two separated by less proceedings further consistent with this 1,000 attendees. For at least both with opinion. before the Unit- February event—held in part; in REVERSED AFFIRMED Iraq, initiated hostilities ed States REMANDED. part; officials—the by government attended For charges. no fee or assessed BERZON, Judge, concurring: Circuit commence- after the March event—held attended Iraq and not ment of hostilities fully Judge opin- I Fletcher’s concur officials—the assessed by government ion. $7,041. is a This favoritism charges an I continue to believe that insurance very dangers inherent

manifestation requirement imposed by Long of the kind in unbridled discretion. content-based, potentially Beach is that, argue does not The Peace Network Long invalid. The Beach ordi- therefore discretion, the in the absence of unbridled requirement limit nance does not of fees allowing the assessment provisions policies priced solely insurance on the size charges are unconstitutional. We and location of the event. See wheth- do not address the issue therefore Dist., Chicago v. Park 227 F.3d Thomas er, unbri- authority to exercise absent Cir.2000) (7th 921, (upholding an insur- the fees to fund or waive dled discretion required where requirement “[t]he ance allowing their charges, provisions the cost of the insurance de- amount and al- narrowly tailored and assessment are the event and the pend only on the size of ample speech. alternatives low (a in it nature of the facilities involved forth)”), bandstand, tents, and so stage, Severability

VI. 316, 122 ajfd grounds, on other 534 U.S. In- 775, S.Ct. 151 L.Ed.2d The district court found Sec stead, purchase requires ordinance restriction tion 5.60 was a content-based if, well even as could permanent and issued a of insurance speech on free case, reflects the premium the insurance injunction against enforcement of the Ordi of the connection be- insurer’s assessment entirety. nance in its We conclude and the content of tween the risk of loss features are constitutional and some For that expressive activity. parties the insured’s others are unconstitutional. so, reason, I I free to do would follow severability be were did not brief the issue holding case law such the substantial the district court or this court. Sev fore requirement unconstitutional as question is a insurance erability of a local ordinance Lakewood, Amendment. See a violation of First of state law. 2138; v. Monica Food Not Bombs Tucson Woman’s Santa (“Food (9th ”), Eden, Bombs Monica Not v. 556-57 Santa Clinic Cir.2006) (9th (Berzon, amended). Cir.2004) (as 1022, 1049-52 remand so F.3d J., (citing cases dissenting part); id. may conduct the the district court requirements invalidating insurance severability analysis in the first instance content-based). permits as parties. public forum briefing after from the view, however, in expressed this fully I America, UNITED STATES prevail. but did not

Food Not Plaintiff-Appellee, majority ac- did not Food Not Bombs sup- the substantial case law knowledge v. conclusion, my and did not consid- porting REVELES-ESPINOZA, Norberto premiums that insurance er the likelihood Defendant-Appellant. would, Forsyth County like the fees set No. 05-50905. Movement, v. Nationalist 2395, 134, 120 L.Ed.2d 101 112 S.Ct. Appeals, United States Court of (1992), permit- reflect the content Ninth Circuit, likely and the reaction of expression tee’s 20, Argued and Submitted Oct. 2006. Still, I am bystanders to that content. precedent, Food Not Bombs as bound Submission Withdrawn Feb. 2007. and so concur. Resubmitted Oct. 2007. opinion I note that the discussion this April Filed provision supports of the indemnification my setting an unrestricted insur- view issuing as a requirement

ance condition activity is unconsti- explain today why the in-

tutional. We

demnity provision narrowly is not tailored. companies typically premi-

Insurance set determining

ums first the risk of loss. Long in the Beach

Nothing ordinance prevent any taking issuer from into

would

account, assessing the risk of loss and premium for event insur- setting

then accordingly, very

ance considerations indemnity make provision

we conclude

insufficiently narrowly tailored. More-

over, an requirement insurance demands front if

up payment even the insured risk eventuates, it nar- making

never even less tailored,

rowly likely and more to discour-

age communicative activities in fora indemnity

than an requirement. concur,

I agree nonetheless as I with

Judges Pregerson Fletcher and that there no principle difference of between the requirement in

insurance this case and the

one in Food Not Bombs.

Case Details

Case Name: Long Beach Area Peace Network v. City of Long Beach

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 15, 2008

Citation: 522 F.3d 1010

Docket Number: 05-55083

Court Abbreviation: 9th Cir.