LONG BEACH AREA PEACE NETWORK; Diana Mann, Plaintiffs-Appellees, v. CITY OF LONG BEACH, a municipal corporation, Defendant-Appellant.
No. 05-55083
United States Court of Appeals, Ninth Circuit
April 15, 2008
Amended July 24, 2009
522 F.3d 1010
Carol A. Sobel, Santa Monica, CA, for the appellees.
Before: HARRY PREGERSON, W. FLETCHER, and MARSHA S. BERZON, Circuit Judges.
ORDER
The opinion filed on April 15, 2008 and reported at 522 F.3d 1010 is amended as follows:
(1) At 522 F.3d at 1022, following the first citation sentence for Ward v. Rock Against Racism, insert the following sentence:
But see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-30, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (invalidating as an impermissible prior restraint a licensing ordinance regulating the use of private property).
(2) At 522 F.3d at 1022, at the end of the first paragraph, change the citation from ”Id.” to ”Ward, 491 U.S. at 795 n. 5, 109 S.Ct. 2746.”
(3) In the last paragraph at 522 F.3d at 1023, after the citation sentence for Ward, insert the following text:
The Supreme Court has cautioned that “this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government‘s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Id.
The panel has unanimously voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote to rehear the matter en banc. See
IT IS SO ORDERED.
OPINION
WILLIAM A. FLETCHER, Circuit Judge:
We review the constitutionality of
We hold that five challenged features of
We remand to allow the district court to determine whether the unconstitutional provisions are severable from the remainder of
I. Background
As described by the district court, the Long Beach Area Peace Network is “an
The march was conducted on public streets along the route suggested by the City. The event concluded with a rally in Bixby Park, a public park in the City. Several elected officials, including a City Council member and a State Assembly member, participated in the rally. According to some estimates, between 1,000 and 1,500 people attended the event.
The permit application, signed by Ruyle in February 2003, provided that the Peace Network would “hold the City harmless from any liability caused by the conduct of the event“; that the “City will not be liable for any mishaps or injuries associated with the event“; and that “[f]ull responsibility for activities at the event will be assumed by [the Peace Network].” The application also provided that the Peace Network would “be responsible for all costs incurred by City departments for use of City personnel and/or equipment.” After submitting the application, Ruyle wrote a letter to the City requesting a waiver of the permit application fee and the departmental services charges imposed under
On March 20, 2003, approximately one month later, the United States launched an aerial assault on Baghdad. In anticipation of the assault, the Peace Network had already organized another march and rally, to be held on March 22. Ruyle had submitted a letter to the City on or about March 18 describing the anticipated “spontaneous” event. Section 5.60 defines a “spontaneous” event as one “occasioned by news or affairs coming into public knowledge within five (5) days” of the event. See
In a letter addressed to Ruyle dated March 21, the City granted permission to conduct a march and rally on March 22. In the letter, the City imposed a number of conditions, including the route of the march and the location of the rally. The letter contained a summary of estimated departmental services charges for “Police,” “Public Works,” “Park, Recreation & Marine (Park Staff),” “Parks, Recreation & Marine Maintenance,” “Space Permit Fee,” and “Junipero Parking Lot.” The total estimated charges were $7,041. The letter set forth a schedule of payment in four equal installments during the next year. Ruyle and other members of the Peace Network signed the last page of the letter under a heading reading “Conditions Accepted.” As signed, this page contained a handwritten notation at the top, stating that the “signers reserve[d] the right to challenge the total,” but that they would
The march on March 22 took slightly more than one hour, and the event concluded with an anti-war rally at Bixby Park. The district court found that approximately 1,000 people participated in the March event. According to Ruyle‘s declaration, in contrast to the pre-war rally at the park in February, no elected officials participated in the March anti-war rally.
As part of the March event, members of the Surfrider Foundation placed surfboards on the beach in the shape of a peace symbol. The display was visible to participants of the march as they walked near the beach. The display took place entirely on the beach, did not interfere with any vehicular or pedestrian traffic, and did not result in any damage to the beach. Following the event, the surfboards were removed from the beach.
In his initial email, Ruyle had stated that Peace Network planned to request a waiver of insurance and departmental services charges. In its March 21 letter granting the permit, the City waived the insurance requirement but did not waive event-related charges. As he had done after the February march and rally, Ruyle wrote a letter to the City after the March event asking for a waiver of charges. Ruyle states in his declaration that a city official gave “no other guidelines than simply to write the letter” to ask for a waiver. The only material differences between Ruyle‘s requests for waivers of charges for the February and March events were descriptions of event-specific matters such as the march routes.
The City did not waive the departmental services charges for the March event. In April 2003, the City sent a letter to the Peace Network members whose signatures (or, in the case of Diana Mann, whose name had been signed by someone else) appeared at the bottom of the March 21 letter. The letter requested payment of $7,041, in the installments specified in the March letter. The total amount was exactly the same as the estimate contained in that letter. Part of the total included a charge of $1,500 for the use of the beach for the surfboard display. The City‘s April letter noted that the first check, which Ruyle had given to the City on March 22, had been misplaced. The letter asked that payment on that check be stopped and that a new check be written for that amount. Peace Network members did not write a new check or make any of the requested payments.
The City filed an action in state Superior Court against Diana Mann and the Peace Network members who had signed the agreement. The court granted judgment of $5,901 for the City. That amount excluded the $1,500 charge for the use of the beach for the surfboard display because, according to the Superior Court, that charge was “not sufficiently justified as to actual costs” and was “an improper restraint of expression.”
The Peace Network then filed a “facial challenge” to
After the district court‘s decision and after initial briefing was completed on appeal, we decided Santa Monica Food Not Bombs v. City of Santa Monica (“Food Not Bombs“), 450 F.3d 1022 (9th Cir. 2006), assessing the constitutionality of a similar ordinance in Santa Monica, California. We asked the parties to file supplemental briefs addressing our decision in Food Not Bombs.
II. Standard of Review
We review de novo the district court‘s holding of unconstitutionality. Berry v. Dep‘t of Soc. Servs., 447 F.3d 642, 648 (9th Cir. 2006). We also review de novo the district court‘s determinations on mixed questions of law and fact that implicate the question of constitutionality. Rosenbaum v. City & County of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007). We generally review for clear error the district court‘s findings of fact. Gaudiya Vaishnava Soc‘y v. City & County of San Francisco, 952 F.2d 1059, 1062 (9th Cir. 1991) (as amended). However, we conduct an independent review of the facts for the “issues arising under the
III. Nature of the Challenge
The Peace Network‘s complaint asserts a facial challenge to
The Peace Network organized two separate events covered by
The Peace Network claims that several provisions of the LBMC “allegedly vest[] unbridled discretion in a government official over whether to permit or deny expressive activity.” City of Lakewood v. Plain Dealer Publ‘g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). There are two primary rationales for allowing this type of facial challenge.
First, the mere existence of the licensor‘s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.... Second, the absence of express standards makes
[T]he rule is not based upon any assumption that application for the license would be refused or would result in the imposition of other unlawful regulations. Rather it derives from an appreciation of the character of the evil inherent in a licensing system. The power of the licensor ... is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern. It is ... the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.... Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.
To assert this type of facial challenge, a plaintiff must meet two requirements. First, a plaintiff must satisfy the standing requirements of Article III by showing that the challenged provision or provisions apply to its conduct. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (“Such holdings invalidated entire statutes, but did not create any exception from the general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court.“). As noted above, the Peace Network has Article III standing.
Second, the challenged ordinance “must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.” City of Lakewood, 486 U.S. at 759, 108 S.Ct. 2138. We conclude that
We therefore conclude that the Peace Network has satisfied the additional requirements to raise a facial challenge on unbridled discretion grounds.
IV. General Considerations
The
A. Presumptively Invalid Regulations
1. Regulation of Speech Protesting Government Action
We have recognized that certain types of speech enjoy special status. See, e.g., Nat‘l Adver. Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir. 1988) (“The first amendment affords greater protection to noncommercial than to commercial expression.“). Political speech is core
The Supreme Court has recognized that “the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (quoting Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981)); see also Edwards, 372 U.S. at 235, 83 S.Ct. 680 (stating that peaceable assembly at the site of the state government to protest government action is the “most pristine and classic form” of exercising
The Supreme Court has established different levels of scrutiny for analyzing alleged
“Public open spaces” such as parks are distinguished from streets because their use for expressive activities rarely implicates other important governmental interests. Food Not Bombs, 450 F.3d at 1042. Public parks and sidewalks “are uniquely suitable for public gatherings and the expression of political or social opinion.” ACORN v. City of Phoenix, 798 F.2d 1260, 1267 n. 5 (9th Cir. 1986). Courts have recognized a somewhat greater governmental interest in regulating expressive activity on city streets because of the public safety concerns raised by vehicular traffic. Id. at 1267. Nonetheless, we have rejected the proposition that “the Supreme Court‘s designation of streets as public fora” is limited to “sidewalks and other locales traditionally reserved for public communication.” Id. at 1266. The Supreme Court has recognized that “[n]o particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora.” Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).
Traditional public fora gain even more importance when they are host to core
Section 5.60 requires a permit for “special events” on all public property within the City of Long Beach, including streets, sidewalks, and public parks. See
3. Regulation by Prior Restraint
Prior restraints on speech are disfavored and carry a “heavy presumption” of invalidity. Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395. “This heavy presumption is justified by the fact that ‘prior restraints on speech ... are the most serious and the least tolerable infringement on
In Grossman, we noted that a permitting ordinance that required a written application before users could hold an organized demonstration in a public park did not fit entirely within “classic prior restraint cases.” 33 F.3d at 1205 n. 9 (internal quotation marks and citation omitted). But we held nevertheless that the permitting system still bore “a heavy presumption against its constitutional validity.” Id. at 1204 (internal quotation marks omitted); see also Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395 (applying a “heavy presumption” against validity of a regulation imposing advance fees on parades and assemblies held on public property because it was a “prior restraint” on speech). Section 5.60 is similar to the permitting system in Grossman, though it reaches a broader range of conduct. Section 5.60 regulates not only expressive activity in parks located in Long Beach, but also any activity on public streets, sidewalks, and right-of-ways. See
B. Reasonable Time, Place and Manner Restrictions
“[R]easonable time, place, [and] manner restrictions” on speech are permissible. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Such restrictions can include permitting requirements for core
The first criterion is that the restriction be content-neutral. That is, the restriction must be based on something other than the content of the speech. Grace, 461 U.S. at 177, 103 S.Ct. 1702. A law is content-based rather than content-neutral if “the main purpose in enacting it was to suppress or exalt speech of a certain content, or it differentiates based on the content of speech on its face.” ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006). Though “an improper censorial motive” is sufficient, such a motive is not necessary to render a regulation content-based. Simon & Schuster, Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105, 117, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). If a regulation “distinguish[es] favored speech from disfavored speech on the basis of the ideas or views expressed,” it is content-based. Foti v. City of Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998) (internal quotation marks omitted).
A content-based regulation is generally subject to strict scrutiny. The government therefore “must show that its regulation is necessary to serve a compelling state interest,” Perry Educ. Ass‘n, 460 U.S. at 45, 103 S.Ct. 948, and that the regulation uses “the least restrictive means to further the articulated interest,” Foti, 146 F.3d at 636. “[A] content-based restriction on political speech in a public forum ... must be subjected to the most exacting scrutiny.” Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988).
Under the second criterion, the government must show: (1) that the governmental interest is substantial and “unrelated to suppression of expression,” Baldwin v. Redwood City, 540 F.2d 1360, 1365 (9th Cir. 1976); and (2) that the regulation is narrowly tailored to meet that interest, Ward, 491 U.S. at 797, 109 S.Ct. 2746.
The first aspect is substantial governmental interest. The Supreme Court has recognized substantial governmental interests in regulating competing uses of public fora, Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395, in maintaining parks in an “attractive and intact condition,” Clark, 468 U.S. at 296, 104 S.Ct. 3065, in regulating “streets to protect and insure the safety, comfort, or convenience of the public,” Murdock v. Pennsylvania, 319 U.S. 105, 116, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), and in collecting nominal fees to “defray the expenses of policing” the regulated activity, id. at 113-14, 63 S.Ct. 870. We have also recognized as a substantial governmental interest the need to “provide notice to the municipality of the need for additional public safety and other services.” Food Not Bombs, 450 F.3d at 1042. Although the public safety interests in regulating street use are substantial, “those interests must give way on occasion to the temporary dedication of the streets to picketing and parading.” ACORN, 798 F.2d at 1267 n. 5.
Three questions guide courts in analyzing narrow tailoring, the second aspect. First, does the regulation achieve its ends without restricting substantially more speech than necessary? This “requirement ... is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.‘” Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)) (second alteration in Ward). The Supreme Court has cautioned that “this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to
The third criterion applicable to time, place and manner restrictions is that regulations “must leave open ample alternatives for communication.” Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395. Several considerations are relevant to this analysis. First, “[a]n alternative is not ample if the speaker is not permitted to reach the intended audience.” Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990) (internal quotation marks omitted); see also Menotti, 409 F.3d at 1138. Second, if the location of the expressive activity is part of the expressive message, alternative locations may not be adequate. Galvin, 374 F.3d at 756; ACORN, 798 F.2d at 1267 n. 5. Third, we consider the opportunity for spontaneity in determining whether alternatives are ample, particularly for political speech. City of Richmond, 743 F.2d at 1356. Fourth, we consider the cost and convenience of alternatives. City of Ladue v. Gilleo, 512 U.S. 43, 57, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).
Finally, the fourth criterion is the prohibition on regulations that confer unbridled discretion on a permitting or licensing official. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Regulations must contain “narrow, objective, and definite standards to guide the licensing authority,” id., and must require the official to “provide [an] explanation for his decision,” Forsyth County, 505 U.S. at 133, 112 S.Ct. 2395. The standards must be sufficient to “render [the official‘s decision] subject to effective judicial review.” Thomas v. Chi. Park Dist., 534 U.S. 316, 323, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). This requirement applies to an official‘s “authority to condition the permit on any additional terms” not stated in the ordinance. City of Lakewood, 486 U.S. at 772, 108 S.Ct. 2138.
V. Analysis of § 5.60
A. Description of the Ordinance
Section 5.60 requires groups to obtain city-issued permits in order to hold “special events” as defined in the Ordinance.1
The City Manager “shall” grant a permit for a special event if certain criteria are satisfied.
Departmental services charges are “the actual costs which a department of the city incurs in connection with activities for which a permit is required,” including costs associated with fire safety, traffic and/or pedestrian control, water safety, the closure of streets or intersections, the diverting of traffic, the salaries of city personnel involved in administration or coordination of city services for the event, the cost in the city to provide support personnel, equipment, materials and supplies, and related city costs such as fringe benefits or employee overtime.
“Spontaneous” events are exempt from the permitting requirement applicable to special events. An organizer of a spontaneous event must provide at least twenty-four-hour advance notice to the City.
The Peace Network challenges nine features of
B. Constitutional Features of § 5.60
1. Expressive Activity Distinctions
The Peace Network argues that certain provisions distinguishing between “expressive activity” and other activity are impermissibly content-based because they provide for differential treatment of activities based on the messages those activities seek to convey.
“‘Expressive Activity’ means conduct, the sole or principal object of which is the expression, dissemination or communication by verbal, visual, literary or auditory means of opinion, views or ideas. Expressive activity includes, but is not limited to, public oratory and the distribution of literature.”
However, we conclude that these distinctions between expressive activities and non-expressive activities are permissible. These subsections of
Further, the Ordinance does not “sin-gle[] out certain speech for differential treatment based on the idea expressed,” see ACLU of Nevada, 466 F.3d at 794 (internal quotation marks omitted), and it does “not distinguish among the expressive events based on their content,” see Food Not Bombs, 450 F.3d at 1037. Identifying “expressive activity” protected by the
2. Conditions on Permits for Special Events
The Peace Network argues that
The city manager may condition any permit ... with reasonable requirements concerning the time, place or manner of holding such event as is necessary to coordinate multiple uses of public property, assure preservation of public property and public places, prevent dangerous, unlawful or impermissible uses, protect the safety of persons and property and to control vehicular and pedestrian traffic in and around the venue, provided that such requirements shall not be imposed in a manner that will unreasonably restrict expressive or other activity protected by the California or United States constitutions.
LBMC § 5.60.020(D) (emphasis added).
The subsection then goes on to provide a non-exhaustive list of conditions that the City Manager may impose to achieve these specified purposes. These conditions include “accommodation of an event‘s pedestrian and vehicular traffic, including restricting events to city sidewalks, portions of a city street, or other public right-of-way,” “provision of a waste management plan, and the clean up and restoration of the site of the event,” and “reasonable designation of alternate sites, times, dates, or modes for exercising expressive activity.”
The purposes specified in
We therefore conclude that
3. Proof of Indigent Status
The Peace Network also challenges as allowing unbridled discretion
Section 5.60.050(B) defines an “indigent natural person” to include any person who is “eligible for county relief and support” under the California Welfare and Institutions Code, but the definition “is not limited to” such persons.
First, the definition of indigency based on the California Welfare and Institutions Code is content-neutral and objective. Section 5.60.050(B) allows the City Manager to determine which “relevant information and documentation” is “reasonably necessary to verify [indigency] status.”
Requiring additional limitations governing the type of documentation the City Manager may request as proof of indigency would be, in the words of Justice Scalia, “insisting upon a degree of rigidity that is found in few legal arrangements.” See Thomas, 534 U.S. at 325, 122 S.Ct. 775. Moreover, the indigency provisions are designed to “further[], rather than restrict[], free speech,” see id., and therefore should be construed favorably in the absence of evidence of a pattern of abuse.
The Peace Network makes a related challenge to the indigency exception, contending that the definition of indigent natural person, which “is not limited to” a person eligible for county relief, vests the City Manager with unbridled discretion to decide who else may qualify for the exception. We disagree. Indigency is a common term with a well understood definition. One may disagree, within certain limits, about the level of income or assets needed to qualify as an indigent under the Ordinance, but the disagreement will be in a fairly narrow range. Further, the Ordinance has given a baseline in specifying that persons “eligible for county relief” qualify as indigent. We therefore conclude that the definition of indigent natural person does not confer unbridled discretion. Like the documentary provisions, the expansive definition is designed to further, rather than to restrict, free speech and therefore should be construed favorably.
We also note that if the application is denied, the City Manager must provide the applicant with a statement explaining the reasons for denial.
4. Insurance Requirement
Section 5.60.080(B) provides that permittees must “procure and maintain [an insurance policy] in full force and effect during the term of the permit.” The Peace Network argues that this provision is content-based and allows public officials to exercise unbridled discretion. We disagree.
Section 5.60.080(C) authorizes the City Manager to waive the insurance requirement if he determines that the planned event does not present a “substantial or significant public liability or property damage exposure for the city or its officers[.]” Further,
parades or special events shall be required to either: (1) agree to indemnify, protect, defend and hold harmless the city, its officers and employees against all claims, damages, expenses, loss or liability of any kind or nature whatsoever arising out of, or resulting from, the alleged acts or omissions of permittee, its officers, agents or employees in connection with the permitted parade, event
or activity; or (2) provide the city with a certificate of insurance....
LBMC § 5.60.080(D). Thus, an organization planning an expressive event may choose between providing the City with insurance or agreeing to the hold-harmless and indemnification provision. This feature of the insurance provision is content-neutral because it is “justified without reference to the content of the regulated speech.” See Clark, 468 U.S. at 293, 104 S.Ct. 3065. Like the expressive activity distinctions discussed above, the insurance exception “treats expressive events more favorably than others.” See Food Not Bombs, 450 F.3d at 1037. The provision thus does not violate the
Further, the insurance requirement is not unconstitutional for conferring unbridled discretion. The City Manager “may” waive the insurance requirement for non-expressive events if he or she determines that the event does not present a “substantial or significant public liability or property damage exposure.” LBMC § 5.60.080(C). Though we held in Food Not Bombs, 450 F.3d at 1040-42, that similar expansive language in Santa Monica‘s ordinance was unconstitutionally broad because it was not narrowly tailored, the Ordinance here contains a specific exception for all expressive activities. Under that exception, the City Manager has no discretion. Groups engaged in expressive activities may always choose the hold-harmless and indemnification option instead of insurance. See
The Peace Network also argues that the insurance requirement is unconstitutional because it is not narrowly tailored. Specifically, the Peace Network contends that the City‘s interest in protecting itself from liability is not a significant governmental interest, and that the insurance requirement is not the least restrictive means to achieve that interest. We disagree. The City‘s interest in “protecting the public treasury” is a significant governmental interest. City of Richmond, 743 F.2d at 1355. We have previously upheld insurance requirements for expressive activities where the requirement was “not used as a tool for the ‘unconstitutionally-motivated’ suppression of free speech.” Grossman, 33 F.3d at 1207 n. 13. The insurance requirement is “no more than a ‘nominal fee’ intended to ‘defray the expenses of policing the activities in question.‘” H-CHH Assocs. v. Citizens for Representative Gov‘t, 193 Cal.App.3d 1193, 1212 (1987) (quoting Murdock, 319 U.S. at 113-14, 63 S.Ct. 870). The City Council has established by resolution a schedule for permit fees and departmental services charges. To the extent those fees and charges reflect the actual costs to the City of a permit for a special event, they are constitutional. See Murdock, 319 U.S. at 113-14, 63 S.Ct. 870. The insurance requirement here is comparable to such a fee, as it serves to defray the City‘s potential liability for activities for which a permit is required.
The Peace Network further argues that the insurance requirement is not narrowly tailored because it does not provide an exception for indigent groups that cannot afford insurance. As we explain above, the Ordinance does provide an alternative for groups engaged in expressive activity—the hold-harmless and indemnification provision. See
In Food Not Bombs, we examined Santa Monica‘s similar insurance requirement. 450 F.3d at 1056-57 (Kleinfeld, J., writing for the majority); id. at 1049-52 (Berzon, J., dissenting in part). The Santa Monica ordinance required permittees to obtain insurance “that the Risk Manager determines to be necessary and adequate under the circumstances” for demonstrations and parades. Id. at 1028 (Berzon, J., maj. op.) (internal quotation marks omitted). The ordinance exempted expressive events from the insurance requirement, so long as the organizers indemnified the city, “unless there is a specific, demonstrable history of personal injury or property damage claims being awarded against the applicant attributable to the applicant‘s conduct of previous events in the City that are similar in nature to the proposed event.” Id. (internal quotation marks omitted).
The majority of the panel upheld the insurance requirement, concluding that it was content-neutral. Id. at 1057 (Kleinfeld, J., writing for the majority). Judge Berzon, writing for herself, would have struck down the requirement as content-based. Id. at 1051-52 (Berzon, J., dissenting in part). The majority observed that
[p]olitical demonstration organizers can avoid ... the insurance provision if they cooperate with the City Manager to design the event “to respond to specific risks, hazards and dangers to the public health and safety identified by the City Manager ... as being reasonably foreseeable consequences of the permitted event.” Thus, most demonstration organizers will not have to provide insurance and even those with a destructive history can avoid the insurance requirement if they choose to work with the City Manager to avoid repetition of past injuries or property damage.
Id. at 1057 (footnote and citation omitted).
The Peace Network argues that by authorizing the Long Beach City Manager to determine whether insurance is required, the Ordinance requires the City Manager to evaluate the content of the message that is conveyed. While we conclude below that the indemnification provision in
The Peace Network also argues that
Section 5.60.080(C) is a logical extension of the second alternative in subsection (D). If there is no need to redesign or reschedule an expressive event because it poses no substantial risk of public liability or property damage, then the City Manager can waive the insurance requirement altogether. We read the mandatory language of subsection (D) in conjunction with the permissive language of subsection (C) to require the City Manager to waive the insurance requirement if the event does not present a substantial risk of public liability or property damage, thereby obviating any need to redesign or reschedule the event. It would be absurd to require the City Manager to propose that the event be redesigned or rescheduled in situations where the change is not necessary because the event poses minimal risks of public liability in the first place. Based on this commonsensical reading of the statute, we conclude that the insurance waiver provision provides the City Manager with content-neutral, objective factors which control and direct the City Manager‘s decision whether to grant a waiver.
We recognize that the Ordinance does not, in terms, require the City Manager to provide an explanation for the decision not to waive the insurance requirement. See Forsyth County, 505 U.S. at 133. However, it does require the City Manager to identify the “specific risks, hazards and dangers to the public health and safety” and to propose that the organizers “redesign or reschedule” the event in response to those risks.
5. Criminal Liability for Violation of the Ordinance
The Peace Network contends that the Ordinance is unconstitutional because it authorizes criminal liability for unknowing violations of its provisions. According to the Peace Network, the Ordinance “imposes strict liability on anyone who participates or engages in, or permits another to conduct a special event.” The Peace Network has misread the Ordinance. Section 5.60.120 authorizes a misdemeanor penalty, but does so only for a “person who intentionally violates any of the provisions of” § 5.60.
C. Unconstitutional Features of § 5.60
1. “Special” Events
A “special event,” as defined by the Ordinance, requires a permit issued by the City Manager. There are three categories of special events under the Ordinance. The Peace Network argues that requiring a permit for the second and third categories is unconstitutional. We disagree with its arguments as to the second category, but agree with its argument as to the third category.
A special event requires a permit if it is conducted “in, on or upon any city street, sidewalk, alley, park, way, pier, public place, public property or public right-of-way which is owned or controlled by the city.” Id. at
- Any organized formation, parade, procession, demonstration or assembly which may include persons, animals, vehicles, or any combination thereof, which is to assemble or travel in unison on any street, sidewalk or other public right-of-way owned or controlled by the city which does not comply with applicable traffic regulations, laws or controls; or
- Any organized assemblage of seventy five (75) or more persons at any public place, property or facility which is to gather for a common purpose under the direction or control of a person; or
- Any other organized activity involving seventy five (75) or more persons conducted by a person for a common or collective use, purpose, or benefit which involves the use of, or has an impact on, public property or facilities and which may require the provision of city public services in response thereto.
Id.
The Peace Network first argues that because the term “common purpose” in the second category of special event is not defined, “[t]he determination of whether a group is assembled for a ‘common purpose’ is, necessarily, a content-based judgment.” We disagree.
The “common purpose” language in the second category can be “justified without reference to the content of the regulated speech,” Clark, 468 U.S. at 293, because the provision applies regardless of whether the people are engaged in an expressive activity and because it furthers the City‘s interest in receiving advance notice when large groups are planning to assemble so that it may regulate competing uses—a justification unrelated to the content of speech. See Food Not Bombs, 450 F.3d at 1042. The language of the category applies when the “organized assemblage” is planning “to gather for a common purpose under the direction or control of a person.”
The Peace Network next argues that because the second special event category requires a permit for any “organized assemblage” of seventy-five or more people at any public place, without specifying any adverse impact on any substantial govern
The second category encompasses only events that take place “at any public place, property or facility.” Id.
The second category of special event applies to groups of seventy-five or more people conducting activities “at any public place, property or facility,” exactly half the number we upheld in Food Not Bombs.
Finally, the Peace Network argues that the third category of special event is not narrowly tailored to serve a substantial governmental interest. We agree.
The distinction between the second category of “special event,” defined as “[a]ny organized assemblage of seventy five (75) or more persons at any public place” and the third category of “special event,” defined as “[a]ny other organized activity involving seventy five (75) or more persons” in a public place is discernible, but only with some effort. As we construe the
It is unclear to us whether the third category is confined to events in public places. If it is not so confined, an advance permitting requirement cannot be justified, as it can be for the second category, on the ground of regulating competing uses in such places. But even if the third category is confined to events in public places, it is still not narrowly tailored.
The critical qualifying criterion for inclusion in the third category is that the event “may require the provision of city public services in response thereto.”
In Food Not Bombs, we upheld an ordinance that required a permit for any “march, procession, walk, run or assembly on public sidewalks or City park paths” that was “likely to [] interfere with the free use of any public way ... or not comply with traffic regulations.” 450 F.3d at 1038-39 (internal quotation marks omitted; second alteration in Food Not Bombs; emphasis removed). That is, we held that the permitting requirement was valid to the extent that the event was likely to interfere with the use of public ways or to violate traffic regulations. We think it is also safe to say that a permitting requirement would be valid to the extent that the event was likely to pose a threat to public safety.
But the third category, described in
keep[ing] the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech[.]
308 U.S. 147, 162 (1939). Unlike the government‘s interest in regulating competing uses of park
Three of the other specified city public services are clearly related to free use of public ways, traffic violations or public safety, and would thus be permissible bases for requiring advance permits: “street blockage,” “erecting barriers,” and “traffic control.” The two remaining city public services are less clearly related to substantial governmental interests—“construction” and “crowd control.” These two services could be sufficiently related, depending on the type and purpose of the construction and crowd control, but a more precise definition would be needed before we could conclude that they were.
The government has the burden of showing that a restriction is narrowly tailored. Bay Area Peace Navy, 914 F.2d at 1227. We conclude that the City has failed to carry its burden to show that the definition of the third category of special event, described in
2. “Spontaneous” Events
“Spontaneous” events are defined as “parades, assemblies or demonstrations involving expressive activity and which are occasioned by news or affairs coming into public knowledge within five (5) days of such parade, assembly or demonstration.”
Spontaneous events are not subject to the permitting requirements applicable to “special” events. Id. However, organizers who wish to hold spontaneous events are required to “give written notice to the city manager at least twenty four (24) hours prior to such parade or assembly.” Id. The twenty-four-hour advance notice requirement for spontaneous events is less demanding than the three, five or ten-day notice requirements for “special” events involving expressive activity.
The City Manager may impose “reasonable time, place and manner restrictions” on a spontaneous event. Id.
Courts have considered several factors in determining the validity of requirements applicable to expressive activity in response to late-breaking news or to issues of immediate or urgent concern. These factors include the ability of individuals to respond quickly to events or issues of concern, the scope of the regulation, and available alternative means of expression. See Food Not Bombs, 450 F.3d at 1046-47. We consider these factors in turn.
Second, a spontaneous event includes all “[s]pontaneous parades, assemblies, or demonstrations involving expressive activity” occasioned by “news or affairs coming into public knowledge withing five (5) days of such parade, assembly or demonstration[.]”
But the definition of an “assembly” that constitutes a spontaneous event is not so obvious. The definition of a “special event” requiring a permit includes “[a]ny organized assemblage of seventy five (75) or more persons in any public place, property or facility which is to gather for a common purpose under the direction or control of a person.”5 Because a spontaneous event is the same thing as a special event but for its time sensitivity, we take the definition of “assembly” to be at least as broad as “organized assemblage.” The definition of “assembly” may well be broader, but for present purposes that does not matter, for the definition of organized assemblage includes assemblies that take place on the lawn in front of a city hall, in a public park, on a publicly owned soccer field, or possibly even on a privately
Third, alternative means of expression are limited for people who cannot comply, or who could comply only with difficulty, with the twenty-four-hour advance notice requirement. We wrote in Food Not Bombs, “[T]o comport with the First Amendment, a permitting ordinance must provide some alternative for expression concerning fast-breaking events.” 450 F.3d at 1047. Therefore, we “consider ... whether the [LBMC] advance notice requirement, including the spontaneous expression exception, overall provides adequate alternatives for expression, both planned and spontaneous.” Id. at 1046; see also Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1170 (9th Cir. 2003) (“The Supreme Court generally will not strike down a governmental action for failure to leave open ample alternative channels of communication unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting.” (citation and internal quotation marks omitted)).
We conclude that the regulation of “spontaneous” events under the Ordinance is not narrowly tailored to regulate only events in which there is a substantial governmental interest in requiring such advance notice. The regulation requires twenty-four-hour advance notice irrespective of whether there is any possibility that the event will interfere with traffic flow. Further, the regulation fails to provide ample alternative means of communication for people wishing to participate in spontaneous expressive events.
The regulation of spontaneous events under the Ordinance stands in stark contrast to the Santa Monica spontaneous event regulation that we recently upheld in Food Not Bombs. There, “with respect to time-sensitive speech,” large groups had three alternatives to providing notice before such an event. First, the City Hall lawn was open to any group wishing to engage in speech. Food Not Bombs, 450 F.3d at 1048. Second, a “safe harbor provision” described formations for sidewalk marches that would not require a permit and that would be available for “groups as large as 1,999.” Id. Third, the ordinance explicitly exempted “unorganized” gatherings from the provisions. Id. at 1049; see City of Richmond, 743 F.2d. at 1355-56 (“[T]he delay inherent in advance notice requirements inhibits speech. By requiring advance notice, the government outlaws spontaneous expression. Immediate speech can no longer respond to immediate issues. The quantity of effective speech is limited.“).
3. Hold-harmless and Indemnification Clauses
The Ordinance contains a broadly worded clause under which a permittee is required to agree to hold harmless and indemnify the City for harm arising out of the permitted activity.
The hold-harmless and indemnity clause of the Ordinance provides, in relevant part:
We evaluate not only the text of the Ordinance, but also the manner in which it has been implemented by governing authority. See Ward, 491 U.S. at 795-96 (including the administrative implementation of a challenged provision in the Court‘s constitutional analysis); cf. Forsyth County, 505 U.S. at 131 n. 9 (examining the language of a permit application form to determine how the local government interpreted an ordinance provision). The terms “hold-harmless clause” and “indemnity clause” often refer to the same thing—an agreement under which “one party agrees to answer for any ... liability or harm that the other party might incur.” Black‘s Law Dictionary 784 (8th ed. 2004) (defining “indemnity clause,” noting that the clause is “[a]lso termed hold-harmless clause; save-harmless clause” (emphasis in original)).
Another provision of the Ordinance provides that “departmental service charges” may be assessed against a permittee, except that such charges may not include a charge for police protection of the permittees.
The clauses, taken together, require permittees (1) to agree to compensate the City for any “damages, expenses, loss or liability ... arising out of or resulting from the alleged actions or omissions” of permittees; (2) to agree to hold the City harmless for “any liability caused by the conduct of the event” to permittees; and (3) to agree to reimburse the City for “any liability caused by the conduct of the event” to third parties. The phrase “any liability caused by the conduct of the event” is susceptible to a broad reading, encompassing liability caused by the acts or omissions of any person or entity involved in the event, including acts and omissions not only of the permittees but also of the City and third parties.
We conclude that the clauses are not narrowly tailored to serve a substantial governmental interest. In performing our narrow tailoring analysis, we ask whether
First, the clauses require that the permittees compensate the City for any “damages, expenses, loss or liability ... arising out of ... the alleged acts or omissions of permittee.”
Second, the clause contained in the permit application requires that permittees hold the City harmless for “any liability caused by the conduct of the event“—including, under a broad reading of this language, liability of the City to the permittees. That is, the clause requires that the permittees agree, as a condition of obtaining a permit to engage in expressive speech, to forgo recovery on any cause of action they might otherwise have against the City. The clause encompasses not only liability for physical harm to the permittees, but also for deprivation of permittees’ constitutional rights. Compare generally Orin v. Barclay, 272 F.3d 1207, 1216 (9th Cir. 2001) (holding in a § 1983 action that state officials were not entitled to qualified immunity for limiting the message of a speaker who was protected by First Amendment). We think it obvious that permittees cannot be required to waive their right to hold the City liable for its otherwise actionable conduct as a condition of exercising their right to free speech.
Third, the clause in the permit application requires that permittees hold the City harmless for “any liability caused by the conduct of the event” to third parties. The permit application requires permittees to take “[f]ull responsibility for activities at the event.” The provision requires permittees to assume legal and financial responsibility even for those “activities at the event” that are outside the control of the permittee, indeed including activities of the City. In NAACP v. Claiborne Hardware Co., the Supreme Court reviewed the damages awards from a civil rights boycott in Mississippi and explained that liability for costs arising out of protected expressive activity is limited by the amount of control the speaker exerts over the actors and the message of the speech. 458 U.S. at 916-20 (1982). The Court held that “the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages,” id. at 916-17, and declined to impose liability “merely because an indi
The City argues that the clauses should be upheld because we did not strike down similar provisions in Food Not Bombs. For two reasons, we disagree. First, the clauses in this case are broader than the provisions upheld in Food Not Bombs. See 450 F.3d at 1056 (Kleinfeld, J., writing for the majority). In that case, Santa Monica had imposed a hold-harmless provision that was limited to “all claims, damages, expenses, [and] loss or liability” resulting from “alleged willful or negligent acts or omissions of permittee, its officers, agents, or employees in connection with the permitted event or activity.” Id. at 1056 n. 10 (internal quotation marks omitted).
Second, although we did not address the issue of narrow tailoring in Food Not Bombs because plaintiffs had challenged the provision only on the ground that it was content-based, id. at 1058 (Wardlaw, J., concurring), our conclusion in this case is supported by the comments of two of the judges on the Food Not Bombs panel. 450 F.3d at 1052 (Berzon, J., dissenting in part); id. at 1058 (Wardlaw, J., concurring). Judge Berzon wrote that the indemnification provision in that case was “not narrowly tailored to the governmental interest in protecting the City from bearing costs arising from injuries or other liabilities due to the permittees’ wrongful conduct of the event or conditions at the site.” Id. at 1052 (Berzon, J., dissenting in part). Judge Wardlaw acknowledged that the contention that the provision was not narrowly tailored “might have been the better argument,” but in her view, the argument had been waived because the plaintiff had failed to raise it. Id. at 1058 (Wardlaw, J., concurring).
4. Funding and Waiver of Permit Fee and Departmental Services Charges
The Ordinance authorizes the imposition of a fee for a permit to hold a “special event,” as well as the imposition of “departmental services charges” for costs incurred by the City as a result of either “special” or “spontaneous” events. The Ordinance allows the City, in its discretion, to fund or waive the permit fee and the departmental services charges. The Peace Network argues that the funding and waiver provision allows the exercise of unbridled discretion and is therefore unconstitutional. We agree.
The Ordinance provides that “a permit fee” “shall be established by the city council by resolution,” but that the fee may be “funded or waived by council resolution or ordinance.”
We note at the outset that the unbridled discretion argument is somewhat unusual in this case. Here, the discretion to fund or waive the fees and charges rests in the hands of the City Council—the elected, legislative body of the City. Unbridled discretion challenges typically arise when discretion is delegated to an administrator, police officer, or other executive official. See, e.g., Thomas, 534 U.S. at 318 (Chicago Park District); Forsyth County, 505 U.S. at 132 (county administrator); Cox, 312 U.S. at 576 (licensing board); Menotti, 409 F.3d at 1144 (police officers); S. Or. Barter Fair, 372 F.3d at 1137 (Department of Human Services); Linick, 195 F.3d at 542 (Forest Service). But see City of Richmond, 743 F.2d at 1357 (City Council). Delegation in the administrative law context refers to delegation of legislative authority to the executive branch. See, e.g., United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). In the First Amendment context, some of the delegation of authority concerns are the same, such as lack of accountability and inability to obtain effective judicial review. See Freedman v. Maryland, 380 U.S. 51, 57 (1965). Two other concerns, largely unrelated to delegation, are relevant to our First Amendment analysis: the need for narrow tailoring, Gaudiya Vaishnava Soc‘y, 952 F.2d at 1065, and the desire to eliminate the opportunity for officials to engage in content-based discrimination through the exercise of discretion, Forsyth County, 505 U.S. at 133. Those concerns are relevant to a First Amendment analysis even if the discretion remains with a legislative body and has not been delegated to an administrative official.
The permitting scheme of the Ordinance requires organizers to come to the City for permission to hold an expressive event. If a legislative body retains discretion to make an important decision as part of that permitting scheme—here, whether to fund an event or to waive fees and charges—that discretion is distinct from the general discretion a legislative body has to enact (or not enact) laws. Absent a preexisting permitting scheme, a city council could not in advance impose service charges or other fees on a group seeking to hold a demonstration in a public forum. Cf. Simon & Schuster, Inc., 502 U.S. at 115-16; Rust v. Sullivan, 500 U.S. 173, 194-95, 199-200 (1991). The Long Beach City Council‘s reserved authority to waive or fund charges is thus unlike its usual legislative authority. We conclude that in the First Amendment context, where a legislative body has enacted a permitting scheme for expressive conduct but has reserved some decisionmaking authority for itself under that scheme, that reserved authority is vulnerable to challenge on grounds of unbridled discretion.
Our conclusion is supported by Shuttlesworth v. City of Birmingham, in which the Supreme Court evaluated an ordinance requiring participants in parades and other public demonstrations to obtain a permit from the “City Commission,” 394 U.S. at 148, which was “the governing body of the City of Birmingham,”
We fail to see how it matters for First Amendment purposes whether unguided discretion is vested in the police or the city council. Vesting either authority with this discretion permits the government to control the viewpoints that will be expressed. Whether the city council or the police exercise this power, we believe that it runs afoul of the basic principle that “forbids the government from regulating speech in ways that favor some viewpoints or ideas at the expense of others.”
Id. at 747 (quoting Taxpayers for Vincent, 466 U.S. at 804). We disagree with the apparently contrary conclusion of the California Court of Appeal in Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 14 Cal.App.4th 312, 344, 17 Cal.Rptr.2d 861 (1993) (“It is not a delegation of power to an official but a recognition of the innate authority of the City‘s legislative body. The city council has the power to grant special permits, and to amend Chapter 5.60; the mere existence of that potential does not present a case of unguided discretion.“).
The City has pointed to no provision of the Ordinance, or to any implementing regulation, that guides the City Council‘s decision whether to fund or waive fees and charges. The lack of specific articulated bases for making this decision compels the conclusion that the City Council has unconstitutional unbridled discretion. See City of Richmond, 743 F.2d at 1357 (“The dangers of discretion are particularly evident in parade permit schemes, where waivers will often be sought for politically controversial causes. It is precisely when political and social pressures are most likely to affect decisionmaking that objective standards to govern discretion are most essential.” (internal quotation marks omitted)).
The City argues, based on Thomas, that because the waiver provision is permissive it cannot be an unconstitutional infringement on speech. In Thomas, the Supreme Court held that the “permissive nature” of a provision that allowed city officials to grant a permit for an expressive event despite an application‘s “fail[ure] to meet ... technical requirements,” so long as a waiver did not harm the “policies furthered by the application requirements,” was not unconstitutional. 534 U.S. at 325. The Court wrote that the provision “furthers, rather than constricts, free speech.” Id. The Court added, “Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements.” Id. The challenged provision in Thomas is strikingly dissimilar to the provision in our case. In Thomas, the provision operated only in the narrow circumstance where the permit application was technically deficient. The provision then provided a generous criterion for forgiving the technical defect and allowing the event to go forward despite the defect. By contrast, this Ordinance authorizes the City Council to decide whether to fund or waive fees and
The City argues that the City Council has not, in fact, used its authority to fund or waive fees and charges based on the content of the expressive activity. Even if this were so, it would be irrelevant. The question is not whether a city has unlawfully favored certain messages or certain kinds of speech. The question is whether the ordinance in question allows the City to do so. A presumption that a city official “will act in good faith and adhere to standards absent from the ordinance‘s face ... is the very presumption that the doctrine forbidding unbridled discretion disallows.” City of Lakewood, 486 U.S. at 770.
Although we need not do so for the disposition of this case, we note that, contrary to the City‘s argument, the record contains evidence of content-based favoritism. The Peace Network held two similar events, separated by less than two months, both with at least 1,000 attendees. For the February event, held before the United States initiated hostilities in Iraq and attended by government officials, the City assessed no fee or charges. For the March event, held after the commencement of hostilities in Iraq and not attended by government officials, the City assessed charges of $7,041. This favoritism is a manifestation of the very dangers inherent in unbridled discretion.
The Peace Network does not argue that, in the absence of unbridled discretion, the provisions allowing the assessment of fees and charges are unconstitutional. We therefore do not address the issue whether, absent the authority to exercise unbridled discretion to fund or waive the fees and charges, the provisions allowing their assessment are narrowly tailored and allow ample alternatives for speech.
VI. Severability
The district court found that
VII. Conclusion
For the foregoing reasons, we hold that some features of
AFFIRMED in part; REVERSED in part; REMANDED.
BERZON, Circuit Judge, concurring:
I concur fully in Judge Fletcher‘s opinion.
I continue to believe that an insurance requirement of the kind imposed by Long Beach is potentially content-based, and therefore invalid. The Long Beach ordinance does not limit the requirement to insurance policies priced solely on the size and location of the special event. See Thomas v. Chicago Park Dist., 227 F.3d 921, 925 (7th Cir. 2000) (upholding an insurance requirement where “[t]he required amount and the cost of the insurance de
I fully expressed this view, however, in Food Not Bombs, but did not prevail. The Food Not Bombs majority did not acknowledge the substantial case law supporting my conclusion, and did not consider the likelihood that insurance premiums would, like the fees set in Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992), reflect the content of the permittee‘s expression and the likely reaction of bystanders to that content. Still, I am bound by Food Not Bombs as precedent, and so concur.
I note that the discussion in this opinion of the indemnification provision supports my view that setting an unrestricted insurance requirement as a condition for issuing a permit for expressive activity is unconstitutional. We explain today why the indemnity provision is not narrowly tailored. Insurance companies typically set premiums by first determining the risk of loss. Nothing in the Long Beach ordinance would prevent any issuer from taking into account, in assessing the risk of loss and then setting the premium for event insurance accordingly, the very considerations we conclude make the indemnity provision insufficiently narrowly tailored. Moreover, an insurance requirement demands up front payment even if the insured risk never eventuates, making it even less narrowly tailored, and more likely to discourage communicative activities in public fora than an indemnity requirement.
I nonetheless concur, as I agree with Judges Fletcher and Pregerson that there is no difference of principle between the insurance requirement in this case and the one in Food Not Bombs.