*1 GRANTED; PETITION REMAND-
ED.
SANTA MONICA BOMBS, FOOD NOT unincorporated
an association; Inter Angeles,
national un an Answer/Los
incorporated association; Deborah
Baxter; Mountain; Moira La Chris Schanes,
tine Plaintiffs-Appellants,
v. MONICA,
CITY OF SANTA municipal
corporation; McCarthy; Susan E. Butts,
James T. Defendants-Appellees. Bombs,
Santa Monica Food Not un an
incorporated association; Internation
al Angeles, unincorpo Answer/Los association;
rated Baxter; Deborah Mountain;
Moira La Christine
Schanes, Plaintiffs-Appellants, Monica, of Santa municipal cor
poration; McCarthy; Susan E. James Butts, Defendants-Appellees.
T. 03-56621,
Nos. 03-56623.
United States Court Appeals,
Ninth Circuit.
Argued and Submitted Feb. 2005.
Filed June *3 substantially. changed of them tion have A. Carol Sobel, Office Law A. Carol urging and Santa persistent Appellants’ CA, appel- Monica, for the Sobel, Santa regula- change its 'willingness to Monica’s lants. a transfor- produced together have tions Rosenbaum, Land Use Senior Barry A. scheme permitting applicable in the mation CA, appel- Monica, Attorney, Santa involved— parties of all the credit that —to lees. opportunity more significantly provides heard views make their who wish
those first so without spaces do obtaining permits. version present only review
We regula- implementing ordinance *4 course, portions only those and, of tions WARDLAW, KLEINFELD, Do- challenge.1 specifically Before appellants that Judges. BERZON, Com- Circuit Monica’s so,' and Santa ing we hold is, single save Ordinance
munity Events time, place, Judge a content-neutral by provision, Partial Dissent and Opinion not vio- that 'does restriction Opinion, and manner BERZON; Majority Partial One' Amendment. late the First Dissent Concurrence, Partial and Partial interpre- administrative Monica’s by of Santa KLEINFELD; Concurrence Judge by ordinance, however, is not of the tation WARDLAW. Judge be en- and cannot constitutionally sound whom Judge, with BERZON, Circuit challenges the facial Additionally, forced. except as concurs or fail KLEINFELD are moot Judge either ordinances to other II.C, II.B.2.b.(l)(ii) and and Sections the merits. on as to except concurs WARDLAW Judge BACK- AND LEGAL I. FACTUAL II.C. Section GROUND constitutionality the facial consider We and Ordinances Monica A. Santa City of Santa by the enacted of ordinances at Issue2 in its outdoor activity regulate Monica (“Santa Moni- Santa Monica City of of pendency During the spaces. com- beach vibrant “City”) is a or the ca” ordinances these both litigation, this occupying California in southern munity interpreta- administrative Monica’s Santa City of San- 2117; Application; Permit Event to be understood always, are not we 1. As Defense, Hold Indemnity, and Monica ta aspects approved having reviewed submits Santa Monica Agreement. Harmless regulations implementing ordinances public rec- a certified is each document holdings in clarify our challenged. To here file documents four The first ord. area, endeavored have we sensitive this City Santa Monica. City of the Clerk about lim- quite specific throughout to be at Santa Mo- be accessed can remainder we challenges which nature ited www.santa- at found website official nica’s respond. with the file are on monica.org/ccs/events and Management we take Division requested Space Open has 2. Monica Santa Depart- Report, Services Community Cultural Staff of six documents: judicial notice Judicial (Feb. City Monica. of Santa Monica City of Santa ment City Council of subject to a fact "not may be taken 6-20; City 10, 2004) Report, Council notice Staff at capable of 10, 2004) dispute in (Feb. reasonable City of Santa Monica of 21-31; by resort ready determination accurate No. Ordinance Monica City Santa reasonably be accuracy cannot whose sources No. 2116; Ordinance Monica City Santa less than square eight miles with a sidewalks). week- Those aspects of these day 300,000 population of swells ordinances central to the resolution of the 500,000on eight weekends. About percent presented issues are set forth in in detail of the land in Santa Monica is dedicated to this section. Other provisions, de- public open space, of which 245 acres are scribed below, immediately are set forth dedicated parks. The limited portions later opinion as they be- public park space occupied, part, come relevant. tennis, basketball, courts, and shuffleboard a lawn bowling green, The Community baseball and soccer Events Ordi- fields, gymnasium, center, child nance care youth senior and centers. The re- To manage competing uses of Santa Mo- maining public park space is used large nica’s spaces, streets, and sidewalks numbers of people variety for a of activi- while “proteet[ing] the rights of people to ties, both organized spontaneous. For engage in expressive activities the City’s example, schools, companies, churches, and public places,” § 4.68.010, the San- itself sponsor picnics, festivals, ta Monica Council adopted Ordinance rallies, and demonstrations parks. in the No.2008(CCS) 1,§ adding Chapter 4.68 to Santa Monica’s downtown area Santa accom- Monica Code, Municipal May *5 ,fairly 8, modates dense usage. 2001. It Chapter 4.68, includes known as the Com- the popular Third Promenade, munity Street (the Events Ordinance “Events Or- outdoor pedestrian dinance”), mall lined with shops, establishes a permitting process theaters, movie and for community restaurants and fre- events held public in spaces quented by performers. street including In the parks, streets, re- and sidewalks. cent past, Santa Monica has seen demon- Events Ordinance was amended on public strations in open spaces 13, and in November 2001, front by Ordinance of hotels retail and No.2024(CCS), stores on issues con- and again April 22, on 2003, cerning workers’ rights, No.2073(CCS). environmental Ordinance The most protection, and the abolition of recent sweatshops. amendment occurred after appel- lants had filed their complaint. court,
Before the district appellants challenged the constitutionality of The Events Santa Ordinance specifically pro- (1) Monica’s ordinance, street banner vides that City “[t]he Manager, or his/her San- MoNiCA, Cal., ta (“SMMC”) designee, shall adopt Code Mun. regu- administrative (2) §§ 4.08.490-.500; community events or- lations that are consistent with and that dinance, §§ SMMC 4.68.010-.220; (3) further the terms requirements set food distribution ordinances, SMMC forth within this Chapter.” § 5.06.010 food (concerning § in distribution 4.68.200. Pursuant provision, this public parks) and (con- SMMC 5.06.020 City Manager issued Administrative In- cerning food distribution on public (the streets struction No. II-4-4 “Instruction”),3 questioned.” Fed. R. Evid 201. We decline cial may notice records); taken of public judicial to take notice of the Brennan, two Staff Re- 825, Newcomb v. (7th 558 F.2d 829 ports, they Cir.1977) as are not C‘[C]ity relevant to the resolu- ordinances fall within the category appeal. tion of this See Flick of Liberty v. 'common knowledge’ Mut. and are Co., 386, proper therefore subjects Fire Ins. judicial 205 (9th F.3d 392 for n. 7 no- tice.”). Cir.2000); request Santa granted Monica's Maria, v. City Ruiz Santa 160 to them. 543, F.3d Cir.1998). 548 n. 13 The rest proper documents are subjects judi- 3. Unless specified, otherwise all references to cial notice. Lee Angeles, Los 8, Instruction are to February 668, (9th Cir.2001) (noting judi- version in effect at the time this case was any public free use of with interfere staff Monica’s 2001, Santa 7, to aid June on comply with or not ... others way by Ordinance. the Events implementing Instruction at regulations.” traffic three amended has been Instruction Further, V(4)). the Instruction (Section July on times, July on provision which harbor” “safe out a February sets on recently, and, most walk, march, procession, that a establishes requires Ordinance The Events with interfere “will not run, assembly or categories three be obtained permits others,” and does use free community events: group if consists permit, require or as- march (a) procession, parade, A participants people 500 or fewer animals, persons, consisting sembly walk, groups march, or “[a]ssemble, run there- combination vehicles, any other or (to spacing create 50, 2 abreast less than travel or assemble of, which way to others give groups), between street, highway, public unison To way.” Id. public on the they encounter City-designated or other sidewalk alley, harbor, the group safe itself of avail (1) may either which way and regulations park all traffic obey must obstruct, or interfere impair impede, As Id. flow. traffic not obstruct must street, high- of such use with free (b), provides to subsection way sidewalk, or other alley, way, subsection, any of this purposes “[f]or normal comply ... or does in- applicant which activity or event controls; or regulations traffic or usual radio, via in advance to advertise tends involving one event (b) activity Any or print widely-distributed television and/or persons fifty more hundred activity or to be an be deemed media shall proper- controlled, maintained owned, Id. at persons” more requirements subject to ty not *6 III(l)(b)). (Section Section; (a) of this subsection into events separates Instruction or event
(c) activity Any pre- track do not which categories, placement three requires which property Ordi- Events in the categories temporary cisely tent, or other canopy, aof encompasses a which Category requires nance: placement if that structure events, Categories Department City non-expressive Fire from permit events. expressive all Safety Division. include which Building and or Catego- III(2)(a)-(c)).4 (Section at 5-6 (a), Id. toAs subsection § 4.68.040. SMMC with- not included “[e]vents are ry events marches, pro- states the Instruction a require which ... but Category runs, walks, and assemblies cessions, Safety Building and/or permit a require paths or park public sidewalks (Section Id. at Department.” Fire ... likely “is only if the event permit circuses, car- races, runs)[;] fairs and Instruction, (e.g., this Court. argued before booths, simi- rides and games, (e.g., nivals http://santa-monica.org/ccs/events/pdf/ii —4- (e.g., amusements)[;] events food-related 8, 2006). lar May (last 4.pdf visited cook-offs, distribu- picnics, food barbeques, festivals)[;] Instruction, trade Category tion, sales/ by food provided As (e.g., crafts promotions involving: those are events shows/business shows, shows, sales merchandise antique crafts games, [and] (e.g., arts recreation launches)[;] park exhibits, product beach/ parti- reunions, parties, activities, birthday (e.g., training activities clean-ups[; and] dances)[;] competition/contests cipatory sessions, team-building activi- corporate contests, build- castle surfing sand (e.g., ties). volley- (e.g., sports beach spectator ing)[;] III(2)(a)). (Section at 5-6 basketball)[;] events athletic ball, hockey, 102 III(2)(b)).5 Category 3 events person is directed to decide that appeal “[ejvents not included within Categories 1 within one working day. (Section
and 2.” Id. III(2)(c)). Category 2 § 4.68.090. require, minimum, events at a three busi- The Events Ordinance imposes certain days ness application advance to obtain a obligations additional on permittees. Un- permit; Category events, those most it, der every permittee must execute an case, central to this require at least two agreement indemnification with Santa Mo- days application. advance Id. at 11-12 nica agreeing “defend, indemnify, and (Section IV(l)(b)-(e)). Under the Events hold harmless against losses and Ordinance, a required liabilities incurred from the conduct of the “[spontaneous events which are occa- permittee officers, or its employees, and by sioned news affairs coming into pub- agents.” § Id. 4.68.110. Unless otherwise lic knowledge less than forty-eight hours exempt prohibited because —either law prior event[s],” to such if such events are pursuant to the regulations implement- conducted on the lawn of Hall. SMMC ing Chapter permittee 4.68-each must also § 4.68.040(g). obtain insurance “that the Risk Manager To receive permit, one must submit an determines to be necessary and adequate application that describes event, under circumstances.” Id. area, and the manner in which prop- § 4.68.120(a). The Instruction provides erty bewill used and that provides also that organizers of expressive events who contact information for the event’s organiz- comply with the indemnification provision § ers. Id. 4.68.050. The Events Ordinance “will not required to meet the insurance directs that “the Community Events Com- requirements ... unless there is specific, mittee shall issue” permit if certain enu- demonstrable history of personal injury or merated criteria are met. Id. 4.68.060 property damage claims being awarded (emphasis added). The ordinance also against applicant attributable to the specifies the upon bases which a permit applicant’s conduct of previous events in shall be denied or revoked. §Id. 4.68.070. the City that are similar in nature to the required As ordinance, the Instruc- proposed event.” (Sec- Instruction at 35 tion spells also out the timing the review tion VII(14)(g)). Further, “[i]n addition process, establishing response times *7 payment the of the depend permit upon non-refundable when application is sub- application fee and as detailed in mitted. the 4.68.050(c); § Id. ad- Instruction at (Section guidelines ministrative ..., X). 47-52 a permittee For example, if an pay shall application City the for City departmental for a Category 3 event is sub- charges mitted service between incurred two and ten days prior connection the with or proposed event, due to permittee’s the decision on review activities must given be under the within permit.” two days § of the SMMC sub- 4.68.140. mission. The (Section Instruction at Instruction specifies 11-12 how these de- (Section IV(l)(e)), X). partmental Any permit ap- service charges are calculated. plicant aggrieved by an (Section adverse decision at 36-39 VIII(l)). may appeal to the Chairperson of the There an indigency exception, with fairly Community Events Committee within complex five requirements, to the application days business of the decision; the Chair- fee and service fee requirements, but not 5. permits may Such required, be example, gas, pyrotechnics. leum or Instruction at 28 for an event involving temporary structures, (Section VII(4)). open candles, flames or cooking, liquid petro- permit a valid displaying obtaining and SMMC provision. indemnification to the Depart- County Angeles the Los 4.68.140(c)-(d), & 4.68.080(b)-(c), §§ ap- City includes of Health which ment 4.68.120. location; and toas proval adoption the between years two require- (b) applicable with all comply summary system present Monica’s City of Santa ments ap- hearing, almost judgment Law. Community Events According to processed. were plications ordinance, applica- 190, such only two distribution food City, of The second 2002), (Oct. 22, con- § were denied.6 tions 5.06.020 SMMC public on of food distribution cerned Ordinance Banner The Street de- That and sidewalks. streets Ordinance 8, 2001, part May On clared:
No.2008(CCS),
established
which
or serve
distribute
shall
person
No
City
Ordinance,
Monica
the Santa
Events
public
street
to the
food
§ 4.08.490
SMMC
amended
also
Council
City authorization.
without
sidewalk
banners) and SMMC
street
(prohibiting
shall
Section
violating this
person
Any
to the
exceptions
(providing
.500
§ 4.08
shall
which
aof misdemeanor
guilty
be
February
On
prohibition).
banner
street
exceeding
a fine
by
punishable
however,
Monica
Santa
2004,
24,
violation, or
per
Dollars
Thousand
One
allow
ordinance
amended
Council
for a
County Jail
imprisonment
by
city-produced
only for
banners
street
months,
exceeding six
period not
exceptions
events.
city co-produced
imprisonment.
fine and
such
both
pro-
banners
on street
ban
general
to the
Monica
Santa
February
On
of SMMC
version
the earlier
for in
vided
food distribu-
amended both
City Council
stricken.
§ 4.08.500were
Octo-
to the
respect
With
provisions.
tion
§ 5.06.010
SMMC
2002 version
Ordinance
ber
Food Distribution
3. The
language
City added
parks),
(public
Monica
the Santa
On October
ap-
meant
“City approval”
clarifying that
Ordinance
adopted
Council
ad-
guidelines
to State
“pursuant
proval
provisions
two
added
No.2055(CCS), which
County and
Angeles
by Los
ministered
distri-
regarding
code
municipal
to the
City.” SMMC
adopted
guidelines
food.
bution
amended
5.06.010(a). Additionally, the
ordinance,
distribution
food
first
compliance
clarifies
ordinance
2002),
(Oct. 22,
con-
§ 5.06.010
Code
Maintenance
Park
Monica’s
Santa
that:
and stated
parks
cerned
necessary.
or distributes
who serves
person
Any
22, 2002
the October
respect
With
City parks or
to the
food
side-
(public
*8
§ 5.06.020
of SMMC
version
lawn must:
Hall
City
City au-
clarified
walks), the Council
state
(a)
applicable
comply with
aof
form
“in
come
could
thorization
regulating
safety standards
health
dining
outdoor
permit,
use
vending permit,
distribution, including,
service
food
permit.”
community
license
to,
requirements
limited
but
to
moved
the demonstration
suggested explana-
following
offers
Santa Monica
sidewalk, but the
or onto
off-peak hours
first
The
permits:
denied
regarding
tions
oth-
alternatives.
refused these
applicant
wanted to
applicant
because
was denied
applied
applicant
when an
street,
denial occurred
er
Ocean
major arterial
an entire
use
event.
day before
only
hours;
one
City
Avenue, during peak traffic
SMMC 5.06.020.
particular
Of
import to would need to comply with the permitting
case,
the ordinance now states that
ordinance.
“no permit or license shall be required for
Plaintiff
INTERNATIONAL
AN-
a noncommercial
distribution that
food
(“ANSWER”)
ANGELES
SWER/LOS
does not
with the
use
interfere
or
free
organization
that secured permits and
sidewalk
street
pedestrian or vehicu-
scheduled a number of demonstrations in
lar
added).
traffic.”
(emphasis
Id.
City
of Los Angeles in 2003. AN-
SWER has also participated in several
B. Appellants7
spontaneous demonstrations
per-
without a
The appellants are
plaintiffs
several
mit, such as a march in Hollywood follow-
who, together, challenged these ordinances
ing the outbreak of the
inwar
Iraq. AN-
and regulations. As their standing
SWER would like to hold a march in Santa
issue, we briefly describe each.
Monica but has chosen other locations in-
Plaintiff Santa Monica Food Not Bombs
stead because of the permit requirements,
is an unincorporated association that seeks which it regards as overly cumbersome.
to highlight a “connection between the lack Also, ANSWER claims that Santa Moni-
of food for
poor
and war-preparation
“spontaneous
ca’s
event” policy is inconsis-
activities of the United
govern-
States
tent with
way
the group organizes
ment.”
organization
“regularly pro-
events;
it might prefer, for example, to
vides meals to homeless residents of the
hold a spontaneous demonstration near a
City of Santa Monica.” One of
organiz-
hotel
where a
figure is speaking,
ers, Peggy Lee Kennedy, declared
rather than on the City Hall lawn.
so doing they “have never been told [that
Plaintiff Deborah Baxter is a Religious
they] have impeded anyone’s passage on
Science Practitioner and one of the coordi-
the sidewalks or other public ways.” On
nators of Hand-to-Hand Hunger Project
January
2003, the organization helped
(the “Project”). The Project serves
set
food
up march from Palisades Park to the
to homeless and some
people
non-homeless
Third Street Promenade. The marchers
in front of
Hall
on Saturdays
distributed
lollipops
city
emblazoned with mes-
holidays. According Baxter,
sages such
the Project
as “War Sucks.” The march
has never obstructed
meant,
entry
was
part,
protest
Hall.
Santa Moni-
Baxter has participated
ca’s food
in several protests
distribution ordinance as applied
in front of
City Hall
sidewalks.
challenging the food
distribution ordinance as applied
Also,
organization
has participated
sidewalks.
in several protests on the lawn of the
Santa Monica City
Plaintiff
Hall
Moira
LaMountain
plans
often
is a
coordi-
participates
nating
in spontaneous
member of Helping
demonstra-
Other People
(“HOPE”).
tions. For
Eat
example, on
February
HOPE serves meals twice
the group
week,
participated
fifty
in an
weeks
year
event called
in Palisades
“Peace on the Beach” in
Park.
Santa Monica. In
LaMountain does not believe it
April
a Santa Monica Park
would be
Ranger
economically feasible for HOPE
told the group that Santa
comply
Monica
intended
Santa Monica’s ordinances
to start enforcement of the challenged or- because to do so
organization
dinances and that in the future the group
have
provide
“to
toilets and hot and cold
*9
matters,
7. To simplify
when we
appel-
refer to
Not Bombs.”
collectively
lants
we allude to them as "Food
for the
adopting,
judgment,11
summary
things.”8
other
among
running water
State-
proposed
the defendants’
reg-
part,
most
the state
believe
not
does
LaMountain
Conclu-
Facts and
she
Uncontroverted
ment
fears
but
to HOPE
apply
ulations
declining to hold
Law and
ordinances.
the
sions
jailed under
will
facially
3,
January
challenged ordinances
the
aspect
the
participated
also
HOPE
ap-
Bombs
the
Not
Food
Park to
Palisades
from
unconstitutional.
march
to this Court.
Promenade.
pealed
Street
Third
a founder
Schanes
Plaintiff Christine
ANALYSIS
II.
and
Poor
Helping
Children
leader of
and
(“CHPHP”).
CHPHP
Distribu-
Food
People
Banner
Homeless
Street
A.
people
to homeless
food
serves
regularly
tion Ordinances
Park
Monica,
Memorial
both at
Santa
clarify
matter, we must
preliminary
As a
reports
Schanes
on
sidewalks.
challenges
original
which,
of the
any,
if
CHPHP
2003,
member
23,
a
June
on
distribution
and food
banner
street
the
Ranger
Park
Monica
by a Santa
told
was
review
live. “We must
are still
ordinances
food
not serve
could
group
the
light
Court
District
judgment
the
from
Park without
Memorial
stands,
as it now
law
[the]
Schanes
Department.
County Health
en
was
judgment below
when
stood
misdemeanor
for a
being prosecuted
fears
Baptist
v. Cent
tered.” Diffenderfer
out food
gives
regularly
she
because
Inc.,
Fla.,
Miami,
404 U.S.
Church of
on sidewalks.
people
homeless
(1972)
30 L.Ed.2d
414, 92 S.Ct.
Volpe, 455 F.2d
curiam);
Lathan
(per
Proceedings
Court
Lower
C.
Cir.1971)
(9th
(citing
1111, 1123
Dffender
2003&emdash;theday as
same
January
On
v. Fil
Inc.
Soc’y,
Naturist
also
see
fer);
Palisades
march from
mentioned
above
Cir.1992)
1515, 1520
lyaw,
Promenade-F
Third Street
to the
Park
remove
as to
so
(‘Where
is amended
a law
seeking,
complaint
Bombs filed
Not
ood
in-
for
features,
claim
challenged
in-
(1) declaratory and
pertinent:
as here
toas
those
moot
relief becomes
junctive
Four
the First
under
relief
junctive
features.”).
1983;
U.S.C.
Amendment
teenth
recognizes,
Not Bombs
Food
As
under
relief
injunctive
declaratory
to the
24, 2004 amendments
February
Con
California
provisions
analogous
origi
render
ordinance
street banner
injunc-
(3) declaratory and
stitution;
ordinance&emdash;premised
to that
challenge
nal
law,
statutory
state
under
relief
tive
ex
by providing
drawn
the distinctions
chal
aspects
certain
ground
but not
speech
private
some
for
ceptions
by state
preempted
ordinances
lenged
others&emdash;no
By precluding
longer viable.
district
August
On
law.10
up street
putting
from
parties
private
all
motion
Monica’s
granted Santa
court
prayer for dam-
contained
complaint
why
10. The
as to
explanation
no
offers
8. LaMountain
only
now seeks
Not Bombs
ages,
Food
so
but
ordinances
applicable
that the
thinks
she
apparent
relief.
prospective
it is not
required, and
they did.
record
was
summary judgment
motion
11.
under
speech claims
analogous free
Monica,
McCarthy, San-
Susan
by Santa
filed
aban-
were
either
Constitution
California
Butts,
Manager, and James
ta Monica
Memoran-
Bombs in
Not
Food
doned
We refer to
of Police.
Chief
Monica
Santa
district
and Authorities
of Points
dum
collectively
Monica."
as “Santa
appellees
here.
been asserted
or have
court
*10
1032
banners and limiting such “bannering” to parks,
§ 5.06.010,
moot,
itself,
the Council has now closed facial challenge to that ordinance is not
the designated public forum in which ap
available. Food Not Bombs does not ar
pellants sought to exercise their rights.
gue that food distribution
its face an
Potter,
Currier v.
716,
379 F.3d
728 expressive activity. See Clark v. Cmty. for
(9th Cir.2004) (noting
government
Non-Violence,
Creative
288,
U.S.
468
293
may close a designated public forum
5,n.
104
3065,
S.Ct.
82
(1984)
L.Ed.2d 221
“whenever it wants”), cert. denied sub
(“Although it is common
place
the bur
Potter,
nom. Seattle Hous. & Res.
Effort
upon
den
the Government to justify im-
-
-,
U.S.
125
2935,
S.Ct.
162
pingements on First Amendment interests,
(2005);
L.Ed.2d 866
Perry Educ. Ass’n v.
it is
obligation
of the person desiring
Perry
Ass’n,
Local Educators’
37,
460 U.S.
engage
in assertedly expressive conduct
46,
948,
103
(1983)
S.Ct.
vacatur is appropriate where “mootness tected the First Amendment results par under unilateral action of the party ticular who circumstances prevailed question is a below”); Internal Revenue decided in (In an Serv. v. as-applied Pattullo Pattullo), challenge, re 271 should F.3d (9th Cir.2001) one be brought. (same). See S. Or. Barter Fair v. Jackson County, 372 (9th F.3d Similarly, as Food Not Bombs also rec- Cir.2004) (“[A] facial challenge is proper ognizes, amendments subsequent made only if the statute by its terms seeks to the filing of this suit render moot the regulate spoken words or patently expres challenge to the food distribution ordi- sive or conduct, communicative such nance as concerning city sidewalks, SMMC picketing or handbilling, or if the 5.06.020. That statute ordinance it now significantly restricts opportunities stands allows appellants ex to do precisely (citations denied, pression.” what they omitted)), sought to cert. do&emdash;engagenon- - -, commercial U.S. food S.Ct. distribution on public L.Ed.2d (2005); sidewalks. As appellants Nordyke v. King, have therefore abandoned Cir.2003) challenge to this food (noting dis- ordinance, tribution the inquiry we into vacate the whether possession district court’s judgment insofar as upheld firearms is an expressive activity is best validity. suited as-applied challenge).
While Food Not Bombs’ First Food Not Bombs’ challenge also Amendment challenge to the ordinance asserts state preemption of SMMC “ concerning distribution of food in public § 5.06.010.12Under law, California ‘[a] 12. It is clear that appellants, regularly who portion assert this argument. of their city distribute parks, food in have standing to
1033 §§ 4.68.010- Ordinance, SMMC Events ordinance a local [between conflict legisla local if [only] exists .220. law] state
tion
law, either
enters
plication.’
County
1177
City of
original)
The
Cal.Rptr.2d
law;
substantively
lic
mation,
distribution
parks
[1]
food distribution
(9th
it
an
simply
of
§ 5.06.010
duplicates,
that state
Los
(quoting
”
Cir.2003) (last
area
San
and on
expressly
S.D.
215,
applies
Angeles,
duplicate
states,
Francisco,
fully
844
Sherwin-Williams
Myers,
(providing
law
in Santa
[2]
P.2d
occupied
or
ordinance
4 Cal.4th
contradicts,
or contradict
pertaining
four
by
City Hall
Inc.
534, 536
336
legislative
Monica’s
public’s
alterations
by general
v.
F.3d
does
distribu-
893, 16
City & sions
(1993)).
or
v.Co.
infor
1174, plementing
lawn.
state
pub
food
im
not
[3]
appellants
standing with
737,
challenged.
(1984).
provision
“distinct
nal
“likely ... be
decision.
To
quotation
1.
750-51, 104 S.Ct.
maintain
of
“fairly
Standing
do To
or
Id.
must
administrative
Events
See Allen
interpretation
marks
traceable”
palpable”
their
redressed”
so, they must
regard
751,
establish
challenge to
Ordinance,
omitted).
104 S.Ct.
3315, 82 L.Ed.2d
v.
to
injury-in-fact
Wright,
interpretation,
constitutional
allege
a favorable
3315
or the
challenged
provisions
(3) would
468 U.S.
provi
(inter
(1) a
im
556
“[a]ppli-
comply with
must
food
of free
prin
tors
standing
Additionally, special
safety standards
health
cable State
cases.
Amendment
First
in'
apply
ciples
distribution”).
service
food
regulating
come
challenges
constitutional
Facial
duplicate
also does
seeking
ordinance
First,
plaintiff
two varieties:
provisions
enforcement
may
rights
contradict
constitutional
own
his
vindicate
re-
provision
no
law,
includes
as it
“is unconstitution
state
an ordinance
argue that
of state law.
the enforcement
restricts
garding
impermissibly
...
ally vague
pro-
enforcement
event,
state law
Menlo
City
v.
activity.” Foti
protected
authority
Cir.1998);
(9th
see
enforcement
primary
629, 635
Park,
vision vests
146 F.3d
935,
114
Diego,
Safe-
agencies.
San
Health
local
Cal.
v.
&
Nunez
at all
Cir.1997) (“Plaintiffs may
is not
seek
Finally, it
ty
§ 113725.13
949
Code
in
cited
facial
behalf
own
preemption
their
directly
on
clear
113705,
even
Bombs,
statutes
overly
id.
broad
Not
by Food
validation
sup
ordinance, as
risk of
unacceptable
sort
‘create
applies
Sec’y
(quoting
regulation
....’”
only local
ideas
preempt
pression
purports
Co., 467 U.S.
it adds
Because
H. Munson
Joseph
v.
food facilities.”
Md.
of “retail
L.Ed.2d
no
S.Ct.
and contains
n.
regulations
substantive
no
whose
Second,
(1984))).
does
“an individual
the ordinance
provisions,
enforcement
val
may
conduct
expressive
speech
the field covered
own
intrude
permit
or sanctioned
safety preemption
idly
prohibited
be
health
law
state
face be
a statute
challenge
ted
provision.
not before
others
threatens
it also
cause
Ordi-
Community
Arcades,
Events
B. The
Spokane
v.
Brockett
court.”
2794, 86
nance
105 S.Ct.
Inc., 472 U.S.
(1985);
NAACP
see
L.Ed.2d
in this case
challenges
remaining
(9th Cir.
1346, 1352
Richmond, 743 F.2d
Community
sections
various
concern
Cal.
agencies."
health
re-
with local
''[p]rimary
provides:
shall
Section
Safety
§ 113725.
chapter
Code
&
of this
Health
enforcement
sponsibility for
1984). The former
sort of challenge-
Monica’s
requirements. See Ariz.
which, as
clear,
will become
*12
is what we Right
Political Action Comm. v.
Life
have here-may
paired
with the more Bayless,
1002,
(9th
320 F.3d
Cir.2003)
1006
common as-applied challenge,
a
where
(“[I]t is ‘sufficient for standing purposes
plaintiff argues that the law is unconstitu
plaintiff
intends to engage
ain
tional as applied to his
speech
own
course of conduct arguably affected with a
expressive
Foti,
conduct. See
146
constitutional interest and that there
ais
635;
City Richmond,
see also
743 F.2d
credible threat
that the challenged provi-
(“[The
at 1352
argues
NAACP]
both that
”
sion will be
against
invoked
plaintiff.’
its
activity
own
protected
by the first
(quoting LSO, Ltd. v. Stroh,
1146,
205 F.3d
amendment and that the Richmond ordi
(9th Cir.2000) (internal
1154-55
quotation
nance
impermissibly
suppresses
the marks
omitted))).
and citation
speech of
potential marchers.”).
all
It is
short,
within this
ANSWER’S
framework that appellants
apprehension that
must and do
the Events
standing.
establish
Ordinance would be enforced
against it for engaging in
protect-
activities
organizes
ANSWER
marches and
ed
the First Amendment without a
demonstrations and has obtained permits
permit is sufficient to establish an injury-
to do so in other localities besides Santa
in-fact and support a facial challenge. The
Monica.
Its intended activities arguably
remaining prongs of the constitutional
require
a
under
4.68.040,
standing requirements
met,
are also
as the
both because the activities are often
injury alleged is “fairly traceable” to the
“marches” or “assemblies” and because
Events Ordinance and
likely
be re-
publicizes
ANSWER
widely
events
to en
dressed
a decision in appellants’
sure
favor.
maximum attendance. ANSWER
ANSWER therefore has standing to
specifically
bring
avers that it would like to hold
a facial challenge to the
a march
Events
Ordinance
starts
Santa Monica and
on its own behalf.
pursued
has
See id. at 1007.
other locations only because
of the burden
City’s permit
require
Appellants also seek to assert
rights
ments. ANSWER also declares that
parties
of third
present
to the litigation
practice of organizing spontaneous events
through an overbreadth facial challenge to
is inconsistent with Santa
sponta
Monica’s
the Events Ordinance. We
need
ad-
neous
expression
exception, SMMC
dress the availability of such a challenge,
§ 4.68.040(g),
may
because it
want to hold
as ANSWER has standing to
a
bring facial
a spontaneous event that
is close to the
challenge
all
pertinent
aspects of the
target of its protest.
ordinance on its own behalf.
Nunez,
That ANSWER has never applied
L.Ed.2d
(“[OJne
771
who
subject
to the
may
law
challenge
As
it facially
we conclude
without
that ANSWER has
necessity
first
for,
applying
standing,
there is no need to inquire fur
being denied,
license.”).
Furthermore,
ther about the injury-in-fact standing of
ANSWER avers that
it has modified its
the other appellants. See Planned Par
(by
behavior
choosing locations other
Idaho,
than
enthood
Wasden,
Inc. v.
376 F.3d
events)
Santa Monica for
because of
908,
Santa
Cir.2004),
918
denied,
cert.
544
Flipside,
Estates v.
(quoting
L.Ed.2d
S.Ct.
Hoffman
U.S.
n.
Estates, Inc.,
455 U.S.
(2005).
Hoffman
L.Ed.2d
102 S.Ct.
Under
Permitting Requirements
To affect
original))).
(alterations in
Ordinance
Events
limiting con
analysis, such
constitutional
by textual
explicit
made
“be
must
struction
Administra-
Includes
Review
a.
judicial or adminis
binding
incorporation,
tive
construction, or well-established
trative
Food
merits
addressing
Before
*13
Lakewood,
at
486 U.S.
practice.”
of
Ordi-
Events
to the
challenge
Not Bombs’
770, 108 S.Ct.
and
detour
another
nance,
take
must
we
challenge.
facial
this
scope of
found that “[t]he
court
address
district
The
confu-
was some
II-
there
argument,
Instruction
At oral
Administrative
adopted
has
the Adminis-
played
role
2003,
7,
pro-
over
July
sion
... as amended
4-4
hand, the
one
On the
Instruction.
for
trative
guidelines
and
standards
specific
vide
promul-
for
does call
Ordinance
Events
Community Events
of the
implementation
regulations
of “administrative
gation
795,
Ward,
U.S.
491
See
Ordinance.”
further
and
with
are consistent
court’s
to district
(looking
2746
109 S.Ct.
within
forth
set
requirements
and
terms
is thus
The Instruction
findings).
express
theOn
§ 4.68.200.
Chapter.”
staff, as
City’s enforcement
binding on the
stat-
Monica
hand,
for Santa
counsel
other
ordi-
by the
authorized
explicitly
as
well
public
to the
although available
ed
been
has
Instruction
That
nance.
is meant
principally
online, the Instruction
not affect
does
of times
a number
amended
of the
application
in their
staff
to bind
amendments, like the
as
pertinence,
its
a
Ordinance, including
prosecu-
as
Events
Instruction,
publicly available.
original
counsel, for
Appellants’
directive.
torial
properly
therefore
Ordi-
Events
that the
maintained
part,
her
in-
authoritative
Monica’s
as Santa
viewed
Instruction,
informs
nance,
Ordinance, and
the Events
terpretation
law is.
as what
public
ordi-
constitutionality of the
review the
we
circumstances, it is common
In like
Instruction.
light
of the
nance
interpre
city’s authoritative
a
to consider
ordinances.
guidelines
of its
tation
Notice
Advance
Breadth
b.
Move
Nationalist
v.
County
Forsyth
Requirements
Permitting
2395,
131,
123,
112 S.Ct.
ment, 505 U.S.
“ 'pub
applies
Ordinance
Events
(“In
re
evaluating
101
120 L.Ed.2d
historically associated
places’
lic
con
we must
challenge,
facial
spondent’s
activities, such
expressive
free exercise
construc
authoritative
county’s
sider
sidewalks,
United
parks.”
streets,
its own
ordinance, including
of the
tions
177,
171,
103
Grace,
U.S.
461
v.
States
it.”);
interpretation
implementation
(1983). Such
1702,
L.Ed.2d
S.Ct.
Racism,
U.S.
Against
v. Rock
Ward
more, to be
considered, without
“are
places
2746, 105 L.Ed.2d
795-96,
109 S.Ct.
”
CIO, 307
Id.;
Hague
forums.’
‘public
interpretation
(1989) (“Administrative
83 L.Ed.
59 S.Ct.
U.S.
are, of
regulation
of a
implementation
im
... have
(1939) (“[Sjtreets
parks
analysis, for
to our
course, highly relevant
use
in trust
held
memorially been
a state
challenge to
evaluating a facial
‘[i]n
mind, have
and,
out
time
... consider
must
court
law,
federal
assembly, com
purposes
used
been
court
state
that a
construction
limiting
”
citizens, and
between
thoughts
municating
proffered.’
has
agency
enforcement
discussing public questions. Such use of
though Food Not Bombs maintains other-
the streets and public places has, from wise, it is apparent
Thomas,
under
times,
ancient
been
part of
privi-
the Events Ordinance must be viewed
aas
leges, immunities, rights, and liberties of
time,
content-neutral
place, and manner
citizens.”); Grossman v. City
Portland,
permitting scheme,
not as a
impos-
scheme
33 F.3d
Cir.1994) (describ-
ing “subject matter censorship” through
ing public parks as “the quintessential
prior
Thomas,
restraint. See
534 U.S. at
(internal
forums”
quotation marks
322-23,
(“
At
facilities,
the
time,
prevent
same
although
uses that
schemes
are
im
dangerous,
prior
posing
unlawful,
restraints on
protected
impermissible
speech
un-
face a
der the
“heavy
Park
presumption
rules,
District’s
against
validi
to assure
ty,” Forsyth County,
financial
505
130,
accountability
U.S. at
for damage
112
caused
(internal
S.Ct. 2395
by
quotation
the event” rather
marks
than to
omit
exclude ex-
ted), time, place,
pression
and manner regulations
based on any particular content.
of speech
in
322,
areas
Id. at
bear a
somewhat
S.Ct. 775. Although the
lighter burden, so long
they
as
Events
content
Ordinance differs from that
in
id.;
neutral. see also Thomas v.
Chi Thomas
certain respects, it shares these
cago
Dist.,
Park
U.S.
three
characteristics. Additionally,
S.Ct.
(2002).
“[plermit from other areas, schemes and advance notice re quirements § 4.68.040(a), that potentially like the apply to Dearborn ordinance, small groups are nearly always overly contains broad no restriction as to the size of the lack narrow tailoring.” Id. at group. does, 608. The It however, provide that or- court held that the Dearborn ordinance ganizers only two sorts of group events was “hopelessly” overbroad because it ap apply (1) must permit: those that plied, as does the here, ordinance to “any “may impede, obstruct, impair or inter- procession of people with a common pur fere” with the free flow traffic or pose goal, whether it be a small group those “do[ ] not comply with the nor- protestors a group of senior citizens mal or usual traffic regulations or con- together walking to religious services.” 4.68.040(a). trols.” SMMC The second such, Id. As the Dearborn ordinance was permit trigger is narrowly tailored, not narrowly tailored because: application is only limited to events that The city of Dearborn’s significant inter- actually implicate governmental inter- est in crowd and control, traffic property est in enforcement of established traffic maintenance, and protection of pub- regulations. The first permit trigger, lic welfare advanced appli- however, standing alone, is narrowly *18 cation of the Ordinance to small groups. tailored under precedents our and City most circumstances, the activity of a of Dearborn, it few because lacks people any specifica- peaceably using public a right tion of as to the size way for a of the group common covered purpose or and goal does not contains trigger city the no other sufficiently of Dear- close tie to born’s in safety interest and the government traffic con- interest in the free of flow trol. traffic. with no in fact interference will be the there relating to the criterion As with norm. traffic quotidian the regulations, traffic of violation per- tailor the enough to simple been have words, simply in “may,” other The term marches, proces- to requirement mitting do that many circumstances in too takes organizer the assemblies sions and out, implicate actually turn not, as matters traf- impede to actually intends or expects the justifying interests governmental the ordi- Monica Santa similar Other fic flow. “may im requirement. permitting id. 5.06.020 See limited. so nances are a prove thus does requirement pede” required that no (specifying between distinction meaningful operational does distribution food “noncommercial the Ordinance and Monica’s Events Santa side- the free use with not interfere Dear struck down ordinance of added)); id. (emphasis or street” walk any of the born, absence does not cure and any pedestrian (prohibiting § 3.12.810 size limiting group threshold. or street roadway “standing] in are obvi- that there as well observe We in a cross or safety in a zone than other adjust could the ways alternative ous the with action such walk interferes if appro- it is so that Ordinance Events the add- (emphasis traffic” of lawful movement interests. to its asserted however, tailored in- Ordinance, priately ed)). Events to aor limitation specification marches, size pro- group A of organizers requires stead language similar using assemblies, impediment, no further with actual cessions Ordinance, examples the of are two size Food no limitation the guidance whether possibilities in advance Other project group, already mentioned. or sidewalk a street on on whether a focus their event might include free to the impediment traffic; spec- “may” prove to interfere plans group flow of traffic. heightened prob- significantly of a ification obstruction, be- or ability impediment of elas- nearly infinite of is a term “May” prohibition a “may” happen; or what yond of hu- variety the unbounded ticity, given directly assembling or quite walking things many are events. While man roadways. physi- specified anything of traffic almost path unlikely happen, Thus, while “may” happen. cally possible restrictions Time, manner place, a circumstances, activity of most “[i]n restrictive course, not, be least of need right using peaceably people few Ward, 491 U.S. See available. alternative does goal purpose a common way ob- we have 2746. As 109 S.Ct. at in safe- ... interest city[’s] trigger however, where there past, in the served Dearborn, control,” City traffic ty and modes alternative easily available circumstances at unforeseen F.3d govern- satisfy the both regulation unexpect- in unintended “may” result substantial, concerns legitimate ment’s example, For traffic. impediment ed than speech considerably less affect herself, injure could group member conclude, as likely chosen, we are mode services, emergency necessitating restric- here, governmental that the dowe especially be could sidewalk street substantially speech more sweeps tion not connect- day for reasons crowded govern- to meet necessary than is pre- and not activities group’s ed with Galvin, concerns. ment’s group a small organizer As no dictable. cir- these any of rule out event can sidewalks respect With occur, events will “may” cumstances con- does however, paths, even requirement permitting subject to “may limiting construction instances, tain majority in the vast though, *19 impede” requirement. That construction permits must be obtained in A advance. application limits the “may impede” forward-looking standard that focuses on a requirement for park paths sidewalks and prediction reasonable that there will be— to circumstances in which interference is just not might be—actual interference ad- “likely.” (Section V(4)). Instruction at 23 justs for that consideration while not en- It also specifies conditions under which compassing substantially more speech than relatively even large groups can demon- necessary to meet governmental inter- strate without being “likely” deemed ests underlying the permitting require- interfere with the flow of traffic. Id. We ment. conclude that these two clarifying addi- We conclude that pro- tions to the Events Ordinance sufficiently an adequate vides limiting construction of permit limit the requirement to those situ- § 4.68.040(a) SMMC as applied to side- in ations which significant governmen- walks and park paths; but, with respect to tal interests in regulating conflicting uses all city other streets ways, of sidewalks and public paths are play. 4.68.040(a) § is insufficiently nar- “likely to interfere” pro- standard rowly tailored to withstand constitutional objective vides an that, standard as we scrutiny. it, read applies when a person reasonable (ii) Food Not Bombs’ second narrow tai- viewing the situation in advance would an- loring challenge (b) concerns subsection ticipate significant interference with the SMMC 4.68.040. This subsection applies ordinary flow of traffic.16 Whether an to those events not subject to subsection “likely meets the to interfere” stan- (a) is, not occurring streets, —that side- dard will turn the reasonable expecta- walks, or public ways involve “one —which tions of the organizers of event, given hundred fifty or persons more on City size of the group, the precise plans for owned, controlled, or proper- maintained event, whether the intention is to block ty.” traffic or to so, avoid doing pre- dictable conditions at the location open and time spaces, unlike on streets organizers have chosen. The sidewalks, safe har- permit requirements serve provision, bor turn, does not require promote traffic flow only but groups engaged expressive activity to regulate competing uses provide no- abide by standards, but does establish a tice to the municipality of the need for definitely ascertainable that, standard if additional public safety and other services. followed, eliminates possibility that in- Only for quite large groups are in- these terference will be considered “likely.” implicated, terests so imposing permitting requirements
This permissible combination of a general only but nar- as to row standard with those groups. Grossman, specific more alterna- 33 F.3d at tive makes for a close fit 1205-08 (finding govern- with the requirement po- mental interests tentially underlying applicable permitting to groups as small as requirement. above, As noted six eight another ap- people insufficiently narrowly proach would be to articulate require- tailored); see also Douglas Brownell, ment in terms of actual But interference. Cir.1996) (expressing 16. Food Not Bombs does independently litany, whole, taken as applies only to challenge the "interfere” standard. Our un- activities significantly alter the usual flow derstanding is that the "likely traffic, Instruction uses making it impossible difficult or to interfere” as shorthand "likely to im- citizens to reach their destinations without obstruct, pede, impair, interfere,” and that hindrance.
1043 that, of attendees number of the require- sure permit of a application that doubt attend, actually people 149 more than if people as ten as few groups with ment to require- permit the tailored). held to they will be narrowly sufficiently is drafted, Instruction so Were ment. more, demon- whether 150 of or Groups group large implement simply any soccer, playing or strating in not be validity would and its trigger, affect to enough sufficiently large measure language “shall be deemed” question. of Santa the use on” impact “have an however, precludes Instruction, of citizens by other spaces public Monica’s Instead, the lan- advisory. reading it as inter- City’s implicate the to and therefore rule, rendering se per a creates guage compatible the safe maintaining in est one whether qualifying a event advertised See space. public open limited of use actually attend. more people 150 or not 775 122 S.Ct. Thomas, at 534 U.S. written, detaches the Instruction As com- to all access (“[T]o unregulated allow inter- the asserted Ordinance Events enlarge than rather easily reduce could ers of allocating in use est speech.” a forum utility as park’s by large groups.18 space open (internal quotation (alteration original) in that, omitted)). hold therefore We marks that, implemented conclude We (b) permit alone, subsection 4.68.040(b) standing not § is Instruction, SMMC groups only applicable requirement, time, and man- place, narrowly tailored a to Santa narrowly tailored more, is 150 or be enforced. cannot restriction ner in allocat- interest governmental Monica’s however, advertising trigger, Without open Monica’s of Santa ing use 4.68.040(b) passes constitutional of citi- groups competing among space muster. zens.17 (b) whether next consider We however, fatally Instruction, The related appli requirement notice two-day advance man- tailoring by narrow this undermines events, those events Category 3 cable which activity or event “any dating 1 Categories within encompassed not in ad- to advertise intends applicant narrowly tailored. widely- radio, television and/or vance via Circuit: by the Seventh As noted deemed be media shall print distributed period required length of the [T]he more 150 or activity event an be reason- to its critical notice is advance (Section at persons.” re- time ableness; given than does more III(l)(b)). This will application consider quired organizers potential advise simply the smaller be shorter generally they cannot they advertise when a require in effect is advertised an event limit outside people is the 17. Whether advertise, content on the based we do question permit to requirement is permitting application decide, Whether that a substan- except caution advertisement. comport of the First may well not afoul runs tially lower number the Instruction in- governmental comfortably independent the limited for reasons Amendment open public parks and play terests not been fora has speech in impact on spaces. decide we parties, and need by the raised Drug Youngs Bolger v. See question here. advertising an event note 18. We 60, 65, S.Ct. Corp., 463 U.S. Prods. itself form media is broadly available ("With respect to non- 77 L.Ed.2d by the First Amendment. protected expression sustained Court has speech, this commercial Metromedia, Diego, 453 City San Inc. only most restrictions content-based L.Ed.2d S.Ct. U.S. circumstances.”). extraordinary simply (1981). require a because To *21 1044 planned demonstration and that political v. Port N.J., Auth. & 3 F.Supp.2d of N.Y. engendered demonstrations often by 413, (S.D.N.Y.1998) 417-22 (upholding a events,
topical
very
a
long period of
thirty-six-hour advance
requirement
notice
advance notice with no exception for
for expressive activity in the World Trade
spontaneous demonstrations unreason-
Terminal).
Center and Port Authority Bus
ably
speech.
limits free
Food Not Bombs offers two cases in
Church
Knights
Am.
the Ku Klux
of
of
support of
argument
that the two-day
Klan
City
v.
Gary,
334 F.3d
682
of
advance application requirement
is not
(7th Cir.2003). Courts,
ours,
including
narrowly tailored. Both cases—one from
have struck
variety
down a
of advance
our circuit and one from the Seventh Cir-
notice requirements
ground
on the
that
substantially
cuit—involved
longer notice
length
of
required
notice period
requirements than
requirements
im-
See,
was
long.
too
e.g., City Dearborn,
of
posed by the Events Ordinance.
418 F.3d at
(striking
606-07
down a thirty-
In City
Richmond, we held that a
of
day advance
requirement
notice
for events
twenty-day advance
requirement
notice
streets,
on
parks,
or in other public
was not the “least restrictive means” for
areas); City Gary,
Conversely,
requirement
ordinances
requiring
applied to pa-
fewer
rades, rallies,
than three days
advance notice of
demonstrations of
large
groups
expressive
as small
fifty.
events have
survived
334
challenge.
F.3d at 682-83.
See, e.g., Quaker
A
The court
Action
noted the
Group v. Mor-
“reasonableness
ton,
516
general
F.2d
(D.C.Cir.1975)
of requiring
(ap-
permit
a
to hold
proving a two-day
notice
demonstration
city
advance
require-
streets
sought
ment
planned
in advance
gatherings on a
of events” but found that the
designated area on
grounds
challenged
ordinance suffered from two
House);
Miles,
White
Rowe v.
(1)
F.2d
detectible infirmities:
it failed to incor-
(2d Cir.1968)
(upholding a two-day
porate
ad-
the notion that
the smaller the
vance
requirement);
notice
Local
planned
S2B-32J
demonstration, the less
city
time
Ward,
19.
Richmond,
decided after
(alteration
(internal
S.Ct. 2746
original)
Supreme
rejected
Court
the use
quotation
omitted).
marks
least
analysis
restrictive means
and reaffirm-
ed that
requirement
"the
of narrow tailoring
argument,
At oral
counsel indicated that
long
is satisfied so
regulation
as the ...
pro-
City Richmond had served as the guidepost
motes a
government
substantial
interest
City's two-day
for the
provi-
advance notice
would be
effectively
achieved less
absent
sion.
Ward,
regulation.”
798-99,
491 U.S. at
Menotti
communication.”
opportunity’
applica-
process
need
Seattle,
exception for
(2)
no
provided
v.
tion, and
at 682.
Id.
Playtime
demonstrations.
City Renton
spontaneous
(quoting
41, 54, 106 S.Ct.
Theatres, Inc., 475 U.S.
disapproving
cases, while
two
These
(1986));
*22
see Edwards v.
lead
do
L.Ed.2d
provisions,
notice
long advance
two-day re-
d’Alene,
Santa Monica’s
262 F.3d
to question
us
Coeur
City of
(seventy-
period
two-day
quirement.
Cir.2001) (“If
effectively
an ordinance
needs a
applicant
an
if
period,
two-hour
his in-
reaching
speaker
from
prevents
Building and Safe-
Fire or
from the
permit
open am-
audience,
to leave
it fails
tended
Moni-
with Santa
accords
ty Departments)
communication.”);
means of
ple alternative
by
interests
governmental
significant
ca’s
(noting that the
Galvin,
at 755-56
F.3d
for
process
(1)
a coordinated
providing
require
can also
prong
alternatives
ample
heavily
in
community events
managing
con-
speak at
location
opportunity
an
(2)
space,
public
and limited
burdened
conveyed).
message
nected
events,
of-
which
qualifying
that
ensuring
services,
public
require
ten
ex-
events
spontaneous
Monica’s
Santa
on sidewalks
traffic
impede
do not
“[spontaneous
provides
ception
advance
the benefit of
without
busy streets
news or
are occasioned
which
events
take
time
It does
some
City.
to the
notice
knowledge less
public
into
coming
affairs
on the
demands
the various
to coordinate
to such
prior
hours
forty-eight
than
sidewalks,
assess what
streets,
parks;
lawn of
Hall
on the
may
conducted
(such
police) are
as additional
services
having to
first
ob-
organizers
without
services; ensure
needed;
those
contact
Permit.”
Community Event
tain a
services
those
and allow
availability;
their
speaking,
Practically
4.68.040(g).
Monica’s §
Santa
events.
for the
prepare
possi-
only
the shortest
for
necessary
groups
is
requirement,
exception
while
two-day
that a
is,
ble,
nearly so. Given
permit
is
require
otherwise
—that
accords
requirement
advance
4.68.040(a)
section
falling under
events
ordinances
permitting
advance
the few
themselves
avail
cannot
not or
that do
by federal
approval
cited with
previously
harbor, or events
safe
the Instruction’s
for
exemption
courts;
includes
that it
4.68.040(b) because
under section
falling
below; and
events, discussed
spontaneous
spaces
parks
in
place
they take
record,
notice
that,
present
people.
than 150
more
and involve
con-
practice
have not
requirements
spontane-
amounts
substantial
stricted
“[public]
statement
Echoing the
two-day
we hold
expression,
ous
response
occur
frequently
protests
narrowly
sufficiently
face,
notice,
effec-
their
events,
such]
[as
topical
tailored.
imme-
their
both
depend on
may
tiveness
they take
where
forum
diacy and the
(2)
Alternatives
Ample
Richmond,
place,”
per
whether
now consider
We
posi-
out
stakes
Bombs
Not
Food
ample alterna
preserve
mitting provisions
fails to
Events Ordinance
tion
communicating protected
tive means
com-
means
alternative
ample
preserve
stated,
recently
“[i]n
we As
expression.
spon-
exception
because
munication
context, the Su
‘ample alternatives’
recently
(1)
on how
hinges
events
taneous
that the
clear
First
made
has
Court
preme
knowledge
into
entered
a matter
govern
only that the
requires
Amendment
groups
affected
forecloses
a ‘reasonable
denying
refrain from
ment
choosing the location of
spontaneous
their
1247-48 (striking down an advance notice
expression.21
requirement because it reached the con-
duct of small groups
individuals).22
spontaneous
expression exception
expands the amount of free expression
Advance notice or permitting require-
otherwise
allowed
fora under the
do, by
ments
their very nature, foreclose
Events Ordinance.
It
sense,
makes little
spontaneous expression.
Grossman,
therefore,
to consider whether the excep-
light of appear reasons for provisions, for speech. alternatives Kleinfeld and Judge opinions of separate Fees Service panel Wardlaw, majority of Judge are valid. provisions that the the view Not Gary, Food Citing to portion This however, agree. not 4.68.140, I, do § that SMMC argues Bombs my only represents therefore opinion charge depart which allows majority. views, panel not those of fees, content-based invites own service mental assessments. improper fee or otherwise Ordi- the Event argue that Appellants provides the Instruction contrary, theOn provision, insurance nance’s post-event standards content-neutral sufficiently cabin offi- 4.68.120, does per- assessment, “[a] specifying fee that the protest also They cial discretion. provide required shall mittee because invalid indemnification safety person the cost pay for City, against all encompasses suits atten protect present nel who or outcome merit regard to the without *26 or of the members hostile dees from Monica, part, its Santa the claims. law general or for counter-demonstrators (1) provision insurance the that maintains the of event.” vicinity in the enforcement because problem no constitutional presents VIII(l)(a)); (Section see at 37 expres- protected engaged permittees Fair, at 1141 F.3d 372 Barter Or. S. indemnify the agree may elect sion gov the allow (“[T]he does not standard (2) instead; the indemnification City ap the reaction the body gauge erning in- the permittee that requires agreement the generate message will set plicant’s [only those] “against City demnify the of costs projected according to fee acts or omissions to the attributable claims listeners, the Su a feature hostile policing disagree respectfully I permittee.” of Forsyth as inof disapproved Court preme conclusion colleagues’ my with content-based.”); City impermissibly of and indemni- insurance Ordinance’s Event (“It ... apparent 682 F.3d at Gary, 334 scru- constitutional withstand ty provisions is not of the fee requirement tiny. the burden aon concern based alternative, indemnification aWith valid other parades services no present insurance concern impose&emdash;a assemblies open-air 1050 problem.
constitutional particular in- of cost the insurance depend only on demnification alternative Santa Monica has the size of the event and the nature of the however, adopted, is not a (a valid one be- facilities involved in bandstand, stage, cause, implemented, tents, as it impermissibly forth)”), and so on other aff'd speech burdens places. grounds, 316, 534 U.S. 122 S.Ct. (2002). L.Ed.2d 783
Employing standards, variety courts have commonly acknowledged Instruction, that insur pursuant to SMMC requirements § ance 4.68.120(a), indirectly can restrict excludes Category 2 and 3 speech on the See, basis of events—the categories its content. expres- include e.g., E. sive activity Conn. Citizens Action Group v. require- insurance —from Powers, (2d imposed by 723 F.2d ment 4.68.120, 1056 n. 2 Cir. if 1983) (noting applicants agree to indemnify an insurance require the City. (Section may ment Instruction at allow for VII(14)(g)).24 content-based consid The Instruction spells erations out the third-party pro indemnifica- insurance viders); agreement tion Smith, Collin as one in v. which permit- (7th Cir.1978) tees (noting that “the [in requirement surance] agree[] does not defend, turn on protect, indemnify content proposed of a and hold the City, officers, demonstration ex its employ- cept in ees, the sense that agents, groups controversial and volunteers free and will be likely insurance, unable to harmless obtain against any and all claims, here.” (emphasis added)); expenses, Invisible damages, Em loss of liabili- pire the Knights ty of any the Ku Klux kind or Klan v. nature whatsoever Mayor Thunnont, resulting 700 F.Supp. alleged from the willful neg- or (D.Md.1988) ligent (noting that acts the Ku or permittee, Klux Klan omissions of officers, could not required obtain the agents, special employees event in connec- insurance because of the tion with the permitted controversial na or activity; ture of group’s message); and the Long expressly Beach shall provide Pride, Gay Lesbian & Inc. that the City permittee shall, v. Long permittee’s Beach, cost, Cal.App.4th 312, own Cal.Rptr.2d risk and expense, defend any 876-77 (striking and all down legal insur claims all actions that ance provision in part my [sic] because provi “[the commenced or against filed delegation sion’s] amount its officers, agents, of insur employees, ance charges volunteers, to the market ... appears and that permittee inescapably pay to create shall system settlement charges entered into subject impact and shall adjustment satisfy any judgment based on that may ‘content,’ including be rendered ... as a the element of hostility result the al- anticipation”); leged willful negligent Mardi Gras acts or San Luis omis- Obispo permittee sions of *27 ... San Luis Obispo, 189 connection of uses, F.Supp.2d 1018, events, with the (C.D.Cal.2002) (fol or activities under Beach). permit. the lowing Long But see Thomas v. Dist.,
Chicago Park 227 F.3d (Section Id. at VII(15)) 35-36 (emphases Cir.2000) (upholding an added). insurance require The actual indemnification agree- ment required where “[t]he ment, amount submitted part of Santa Monica’s 24. In where specific cases is a "there demon- previous events,” [similar] of Category 2 and history strable personal of injury or property applicants 3 event required are to obtain in- damage being claims against awarded ap- the (Section surance. Instruction at plicant applicant’s attributable to the conduct VII(14)(g)). infirm be- was held provision 2395. notice, signifi- contains judicial request for necessarily fee would assessed the that: cause requiring language, cantly broader estimation the administrator’s depend on indemnify, and defend, permittee] [a created “likely to be hostility the Monica City Santa the hold harmless Id. on its content.” based speech the loss, any and all against ... from (“Those added) to ex- wishing (emphasis suits, claims, costs liability, damages, throw- with bottle unpopular press views whatsoever, including rea- expenses, pay have to more ers, may example, for the fees, regardless attorney’s sonable permit.”).26 their for or claim any stick outcome merit or acts alleged the suit, resulting provision Here, indemnification the ... in connec- permittee omissions liability of suit the costs limited to activity. permitted event tion unth “alleged own permittee’s on a premised (empha- omissions.” acts or negligent at Notice Judicial willful for Bequest to avoid might appear added).25 limitation This sis challenged fees made problems that is not speech reaction “Listeners’ On clos- County unconstitutional. Forsyth For regulation.” for basis content-neutral however, is not examination, that er Movement, 505 County v. Nationalist syth case. 2395, 120 L.Ed.2d 112 S.Ct. U.S. language (1992). of the broad provision, Because the indemnification Under indemnification costs creat- in the for responsible permittees afoul runs agreement agreement, by litigants seeking after the ed principle. this basic owe them permittees that establish hap- allegedly something damages for struck Court County, the Forsyth If this indemnifi- during the event. pened city adminis- allowing a provision down to meritori- limited were provision cation ap- permit against a fee to assess trator actual concerning permittees’ suits ous protecting cost of based on plicants ap- problem no activities, have I would observing in and participating persons Instead, is not. But it it. proving 112 S.Ct. id. at See events. covered damages for actions permittees liable for argues Although Not Bombs Food 25. event, during the allegedly occurred which no reason liability, there is City no faces actually occurred. the actions or not whether is so. indemnifica- whether decide Also, indemnifica- significantly, the most permittees finan- to hold agreement seeks tion' drafted agreement are necessarily provision and tion responsible for suits cially al- permittee’s regard whether liability without actual predicated on constitutionally pro- liability is based leged might face. therefore, Permittees, might activity. tected litigat- City’s for pay the costs required to be error County demonstrates Forsyth 26. damages caused brought to obtain ing suits Santa Monica’s Judge view Wardlaw’s constitutionally peaceful, of their content impermissi- is not provision indemnification simple to speech. It would stands, protected the indemni- As it based. bly content permittees requirement so that change the necessarily premised provision is fication only cost for the must reimburse parties. third reactions behavior and lawsuits, by definition which meritorious S.Ct. Forsyth County, 505 U.S. damages constitutional- would not the indemnification While also remove speech and would ly protected agreement do actual indemnification and the subject to an will be permittees the threat ac- potentially liable permittees not make *28 of a form veto the event, heckler's they after-the-fact the who attend hecklers tions of Without lawsuit. costly, non-meritorious bearing liabili- permittees from protect do not view, not, my fix, provision the a such sort of by different brought a ty lawsuits constitutionally sound. fact, who, make seeks to the after heckler provision permittees requires promise to with public’s the speech.” reaction the to pay for legal Santa Monica’s defense in 505 134,112 at U.S. S.Ct. 2395. brought by parties, cases third based on reasons, For these the indemnification
“alleged,” actual, rather than “acts or provision is not content neutral. Also for omissions.” So the indemnification re- reasons, these the provi- indemnification quirement is not permittees’ limited to ac- sion, despite its allegations limitation to tual behavior. concerning permittees’ behavior, own Also, the provision indemnification not narrowly does tailored to governmental not exclude lawsuits against City trig- interest protecting City from bear- gered by or injuries focused ing on caused costs by arising injuries or other the content of purely expressive liabilities due activity permittees’ to the wrongful allowed for permit. a For example, conduct event or conditions at the clothing retail site. business located one of Santa Monica’s could streets file lawsuit To require that organizers en-
against City alleging economic harm gaged in constitutionally protected speech from loss of business caused by permit- contractually bind themselves to indemnify ted event protesting the use of sweatshop for the costs associated with whol- labor. indemnification ly meritless brought by suits parties third require that an event al- organizer, is thus constitutionally unsound. Because though constitutionally entitled to conduct I would therefore hold the insurance and his event and to seek to persuade observ- indemnification provisions invalid, I re- boycott ers to retailer, reimburse the spectfully dissent on this single point. City for costs of defending the lawsuit. III. CONCLUSION
The result permittees’ is that speech is contingent agreement to cover sum, costs (1) panel vacates as in an amount, unknown generated by third moot the district summary court’s judg parties over whom speakers have no ment respect with to appellants’ challenges may control and who be them, hostile to the street banner ordinance, SMMC may and who be seeking damages inju- § 4.08.490-.500, and to one of the food ries solely by caused content consti- ordinances, distribution 5.06.020, § SMMC tutionally protected activity. In other and remands to the district court with words, inas Forsyth County, those costs instructions to dismiss the claims; relevant may premised be (2) not on tort other affirms the district court’s order wrongdoing by the permittees, but on respect to the other challenged food distri reactions of parties third permittees’ ordinance, bution (3) § 5.06.010; SMMC communication. Because the gener- costs reverses and vacates the district court’s need ated not reflect the permittees’ actual order insofar it upholds the constitu behavior and could be result of the tionality § 4.68.040(a), with re content of permittees’ speech, the in- spect city streets and ways, and provision, demnification like provi- the fee holds that the per Instruction’s se publicity sion in Forsyth County, exposes event or- provision, (Section ganizers to costs based not on their III(l)(b)), own renders unconstitutional SMMC acts or omissions but on costs 4.68.040(b) “associated and cannot enforced;27 27. We also hold that the pro- L.A., indemnification Italia v. 31 Cal.3d 183 Cal. preempted, vision is not as Santa Rptr. Monica is (hold P.2d 112-13 attempting expand statutory its ing immu- city may that a abridge ordinance nities. per See Societa Navigazione de duty Azioni provide implied comparative in- *29 contrasting by expression our clarifying of district the affirms otherwise and in we might which cases hypothetical Or- other the Events upholding judgment court’s conclusions, not we do have reach different and Instruction.28 dinance hypo- for such other law authority to make part; in REMANDED VACATED advisory opin- to cases or issue thetical part. in AFFIRMED ions.2 KLEINFELD, Judge: Circuit of analysis portion example, the For A, II, section subsections opinion, Berzon’s Judge the parts I concur (B)(2)(b)(l)(a)(i) me as (B)(2)(a), strike As to one parts. from and dissent opinion, 6678, say which page to get until I harmless hold correct issue, the ordinance’s implement- if the state- would be separate our view this what provisions, insurance That there. opinion not majority were ing the instruction ment constitutes we us, lack one which not before case the court. error is carried This authority to decide. majority the in the results I concur to purport we where page forward that majority holds the as insofar reaches unac- an ordinance unconstitutional hold and en- ordinances, interpreted as the instruction, though even by the companied instruc- administrative through the forced is not ordinance unaccompanied such As constitutionally permissible. tions, are Likewise, we adjudication. us before entirely concur I do not parts, to those 17 that we are in footnote announce plainly itself, dicta largely because opinion the us, then not before question deciding a not to decide. need what we beyond goes I were. though as we a “caution” issue Constitution, “judicial the Under of “cautions” the issuance leave would only “cases.”1 extends power” present in the at issue not matters about we in which one here is us case before I attorneys. do not municipal case to ordinances upheld the largely have only dicta are the imply that these mean power have the do not We instructions. I that only are the dicta or that these under assemblies the law codify mere- These statements not reach. Amendment, just decide the First troubling lan- types ly illustrate opinion in the join do not I therefore case. joining the me prevent that guage con- to cases speaks the extent opinion. majority suggests case and in this the facts trary to holding agree I do to decide were we law would what the unconstitutional, page 1042 as utility ordinance I appreciate those While cases. scheme] need content-neutral “[a Tort held California under demnification consider- deadline for either include Act). Claims body provision for or a governing ation review[,]” per ''[t]he so that lack judicial prompt not address court did district 28. The [for consider- application was deadline provision, permit publicity of a se body] sufficient judgment was is not governing after by the added to ation challenge.'' S. a facial Act in entered. invalidate Fair, There- at 1138-39. 372 F.3d Or. Barter challenged the time- also Food Not Bombs fore, fails. challenge timelines to the Ordinance for Events lines established determination permits issuance III, § cl. 1. art. Const. 1. U.S. Thomas, we aftermath appeals. In the content-neutral held have v. Mitch- America Workers Public 2. United procedural contain need not schemes 91 L.Ed. ell, 67 S.Ct. U.S. content-based required safeguards (1947). Fair, Oregon we Barter In Southern schemes. *30 hold, purports to for “all city other streets with traffic regulations.4 It requires also public ways.” “may” The word permit for activities involving groups of majority troubles the inis a section that 150 or city more on property.5 major- The requires permits, but does not condition ity properly concludes permit that this re- their issuance.3 Issuance permits quirement, stands, itas is constitutionally by strictly bounded requirements tailored permissible because any group large this that do not impinge upon content city or view- on property is bound to affect use of point and legitimately protect the use of the property by others equally entitled to public ways by others while demonstra- use it. problem The the majority identi- tions and proceed. marches organiz- is with fied instruction, administrative ers demonstration in a far better which deems publicized events radio, over position than municipality to know television or “widely-distributed print me- whether planned their activity may impede dia” to be events with 150 or more people.6 traffic or violate the regulations. traffic disagree I with the majority’s conclusion permit process necessarily requires that this in way some restricts advertising prediction uncertain of the future because or vitiates narrow tailoring of the ordi- permits are obtained before events. nance. Requiring permit types for these of ac- anyone As who has organized a demon- protects tivities rights of other citizens stration, concert, lecture, parade, picnic or
without unduly burdening those seeking to knows, one predict cannot in advance how demonstrate. many people will show up. publicizes One the event and hopes for the best. Turnout I. Advertising Provision likely to be affected only by support respectfully I also dissent from the ma- for the cause but also by the weather. I jority’s conclusion, found at section have been boring lectures sexy with II(B)(2)(b)(l)(a)(ii), that the advertising in- titles or speakers famous that had people struction vitiates the narrow tailoring of standing outside just the doors to hear a the ordinance for large groups. little, The ordi- yet I also went to an appearance by nance and instruction do not in any way Milton Friedman in the 1960’s that drew or regulate limit advertising. The only ordi- faculty four members and one stu- nance requires a permit for assemblies dent. Attendance is inherently unpredict- may impede free use of able, the public municipalities but and event organiz- ways by others or that will not comply have to ers do some planning to avoid the 3. The “(a) full text this section states A 5. Requiring permit for "[a]ny activity of a parade, procession, assembly group march or persons owned, con- 150 or more City animals, controlled, sisting vehicles, persons, any property.” or maintained or SMMC 4.68.040(b). thereof, § other combination which is to assem- ble or any street, travel public in unison on 6. The requires instruction a community highway, alley, sidewalk other way or "[a]ny events activity or event of obstruct, and which may impede, either persons owned, more con- impair or interfere with use pub- free of such trolled or property maintained subject street, sidewalk, highway, alley, lic or other requirements (a) in subsection of this sec- owned, controlled, way or maintained purposes subsection, tion. For (2). comply does not nor- activity or applicant even which the intends to regulations ormal usual traffic or controls.” radio, advertise via widely- television and/or 4.68.040(a). print distributed media shall be deemed to be activity or event of persons.” 150 or more 4. Id. 4—4(1II)(1)(b). Administrative Instruction 11— hoping for they are advertising that mass catastro- health a traffic risk of get all the trying turnout and large an a come people if thousands phe *31 they can. people toilets or no provides that event enormous people prevents jam that traffic a causes radio and advertise organizers If the voting or, to perhaps, to work getting from in permit, a but getting without television cars, ambulances, police booths, and blocks of less turnout disappointing get end a the fire trucks. prosecut- they cannot be people, 150 than say because, the instructions ed, although can- demonstration a public The size they permit, a sought have they should advance, to be has yet in known not be itself; a the ordinance not violated have properly to order somehow predicted city event on that the requires violation fairly shared safety public for provide per- “150 or more actually have property all, people After property. use 7 hope widely and advertise they If sons.” not spaces to use the entitled are pro- permit best, the then neutral the for also, but opinions, political express only to case harbor in a safe gives them cedure entitlement, go every bit as much with big turnout. attracts a advertising the frisbees, or toss dogs, work, their walk administrative This a of beer. without organizers if the get pack a six Even advertising campaign common-sense legitimate, is a the bell with ring instruction demonstrators, ad- discretion channeling the hundreds of draws means impossi- they give if it is prosecution since personnel, they still avoid can ministrative be. the event will big an to the ordinance how little attention predict a ble All public. of the no case that members rights cites of other majority administrative unconsti- under instruction do advertising they have to make for the demonstration justification break no I see instructions tutional abreast, two walk organiz- under groups Event sense. into common abridging oth- laws, impeding radio, and avoid television traffic “via follow advertise who ers commuters, media,” shoppers, way as That print ers.8 widely-distributed and/or pass peacefully can dog are provides, walkers instruction administrative 1,999 peo- toup groups of through. Even to hold attendance trying certainly not additional with but proceed recep- can still wedding ple a down, though it were is divided group on how a restrictions family $200 the bride’s that cost tion up.9 inferred reasonably be It can plate. way oth- give States, groups), ing between Corp. v. United Mirro-Dynamics way. they encounter ers 1967) (Citing Hirshon Cir. (cid:127) traffic flow. do not obstruct F.Supp. States, Ct.Cl. United (cid:127) regulations. obey traffic all ad (1953), proposition that for the (cid:127) regulations.” obey park all beyond go cannot instructions ministrative law). underlying II-4-4(V)(4)(b) Instruction 9.Administrative walk, march, procession, provides "[a] II-4-4(V)(4)(a) 8. Administrative less but is participants, that exceeds run walk, march, procession, provides "[a] 2,000 will interfere participants, than with the assembly not interfere will run public side- of a others use the free public sidewalk by others of a use free required path and is City park a walk or required obtain path and is not park if Community Permit Event obtain a group if total Community Event Permit (a) this Section subsection requirements of all and if participants 500 or fewer consists of staggered to create met, are times if start participants: private property groups, if spacing between location, and if march, walk, as the Assemble, groups used start/finish (cid:127) or run plan partid- provides organizer (to spac- 2 abreast create than of less
This is narrowly about as tailored as an Our dissenting colleague’s concern is be, ordinance can considering impossi- provisions require indemnification bility predicting conduct advance how is not permittee’s success- (and fault. There apparent ful are two ways a demonstration will be. And some doubtless more not so apparent) that such such necessary ordinance is peo- to enable might claim trigger requirement. ple besides the demonstrators to make First, a suit could be non-meritorious or reasonable use municipal property Second, frivolous. someone could be hurt on the day of the demonstration. by the conduct an opponent of the dem- *32 onstration through no fault of permit- the II. Hold Harmless Provision tee. portion This separate of my opinion is possibilities These do not undermine the joined by Wardlaw, Judge is, and there- constitutionality requirement. of the Lia- fore, majority the opinion of the court. bility policies insurance typically obligate The requires ordinance permittees the insurer to defend the against insured to city, defend the to hold the city harm covered party third claims they even if less arising from claims out of the permit- “groundless, false, fraudulent,” or and are actions,10and, tee’s with exceptions, pro to typically construed to impose duty
vide proof of insurance covering city the even they when do not “ground- use the for the risks.11 To the extent the less, false, or fraudulent” phrase.12 The insurance and hold provisions harmless anyone reason is that seeking to be held the ordinance apply to expressive activity, harmless needs defense, such and the they are content viewpoint and neutral. groundlessness, falseness, or fraudulence pants’ parking. All assemblies on a agents, employees or in connection with the park path sidewalk or partici- that exceed uses, events, or activities permit.” under the
pants
require
Community
will
Event Per-
Administrative
II-4-4(VII)(15).
mit.”
"Except
11.
prohibited
as otherwise
by law or
by
10.As
articulated
the Administrative In-
exemption
provided
by
obtained as
permit
1, 2,
struction: "Each
Category
Chapter and
implementing
the
regulations,
and 3 events
expressly provide
shall
that the
permittee
procure
shall
and maintain in
permittee
defend,
agrees
protect,
indemnify
full force and
during
effect
the term of the
officers,
City,
and hold the
its
employees,
permit
policy
of insurance
from reliable
agents, and
free
volunteers
and harmless
company
insurance
authorized to do business
against
claims,
from and
any and all
dam-
state,
in the
policy
which
City,
includes
its
ages, expenses,
liability
loss of
any
kind or
boards, officers, agents, employees, and vol-
nature
resulting
whatsoever
alleged
from the
unteers as named insureds
negligent
willful or
or additional
acts
per-
or omissions of
mittee,
named insureds
officers,
provides
and which
the cov-
agents,
its
employees
or
erage that
Manager
the Risk
permitted
connection with the
determines to be
event or activi-
necessary
adequate
ty;
under
permit
and the
expressly
circum-
provide
shall
shall,
stances. Proof
permittee
of insurance
be
permittee's
shall
submit-
own
cost,
City prior
to the
ted
expense,
risk and
issuance
defend
and all
and maintenance
legal
claims and all
of this
may
actions that
insurance shall be a
be com-
permit.”
condition
against
officers,
menced or filed
City,
its
SMMC 4.68.120.
agents,
volunteers,
employees, or
and that the
permittee
pay any
Keeton,
shall
Widiss,
settlement entered
E. &
Robert
Alan I.
Insur-
into
satisfy any
and shall
judgment
may
ance Law:
A Guide to Fundamental Princi-
against
City,
officers,
rendered
ples,
Legal Doctrines and Commercial Prac-
agents, employees, or volunteers
(Practitioner's
as a result of
ed.1988);
tices 1021-22
Gray
alleged
willful
negligent
or
Co.,
acts
omis-
263, 271-72,
Zurich Ins.
65 Cal.2d
permittee
sions
permittee's officers,
Cal.Rptr.
(1966).
the Santa Monica ordinance does not ex
WARDLAW, Circuit Judge, concurring:
pose any speaker to risks or costs that are
equally
faced
every other speaker.1
I concur in Judge Berzon’s principal
permittee’s
burden of defending and
opinion,
as to
except
Part
my
II.C. In
indemnifying
city,
against
view,
lawsuits
provision
indemnification
is con
not,
meritorious or
is the same whether
tent neutral.
“In determining whether a
permittee
against
advocates
the war in
regulation is content based or content neu
Iraq
against
the Da Vinci Code.
tral,
Such is
we look to the purpose behind the
the essence of content neutrality. The
regulation.” Bartnicki v. Vopper, 532 U.S.
Santa Monica
provision
indemnification
121 S.Ct.
less, unfettered discretion raised spec- holding that Santa Monica’s indemnifica- provision If the made permittees responsi- different conclusion. Forsyth County, 505 ble acts or omissions caused parties 134-35, 2395; U.S. at 112 S.Ct. v. Burk Au permittee other than the agents, his or if it gusta-Richmond County, 365 F.3d placed unfettered discretion in the Cir.2004); hands GSA, Van Arnam v. government administrators, might I F.Supp.2d reach (D.Mass.2004). First violate does not tion
Amendment. Plaintiff-Appellant, HART,
Anthony K.
v. Police; Marc PARKS, Chief
Bernard Daryl Rivera; McLe
Zavala; Robert Defendants-Appellees.
more, Plaintiff-Appellant, Hart,
Anthony K. Police; David Parks, Chief
Bernard Rivera; Zavala; Robert
Kalish; Marc Sanchez; Robert Avila;
Manny Ron Picture Academy Motion
Rehme; Staley; Sciences; D. James
Arts Defendants-Appellees. Davis, E.
Bruce 04-55553, 04-55555.
Nos. Appeals, Court States
United
Ninth Circuit. 5, 2006. April and Submitted
Argued 19, 2006. June
Filed