Federal Appeals Court Examines Constitutionality Of City Ordinance Which Regulates Use Of Public Spaces

In Santa Monica Food Not Bombs v. City of Santa Monica (— F.3d —, 2006 WL 1666707, C.A.9 (Cal.), June 16, 2006)), the United States Court of Appeals considered First Amendment free speech challenges by various organizations to the City of Santa Monica’s Community Events Ordinance. The Court of Appeals concluded that the City’s Ordinance and its application do not run afoul of free speech rights except for the provisions that do not take into account a group’s actual size or impact on public streets and ways.

Facts

Several organizations filed a lawsuit challenging an ordinance passed by the City of Santa Monica (“City”) to regulate the use of public spaces alleging that the ordinance violates their right to free speech under the First Amendment. A federal district court declined to find the ordinance unconstitutional.

Decision

The City’s Community Events Ordinance (“Ordinance”) establishes a permit process for events held in its open spaces. Permits must be obtained for the following three categories of community events: (1) any parades, marches or assemblies which assemble or travel in unison on any public street, sideway, or other public way that (a) “may impede, obstruct, impair or interfere with free use of ” the chosen public way or (b) “does not comply with normal or usual traffic regulations or controls;” (2) community events consisting of any activity or event involving 150 or more people on City property that are not subject to the requirements set out in the first category; and (3) events on public property which utilize a temporary structure which requires a permit from the Fire Department or Building and Safety Division.

An administrative instruction used to help implement the Ordinance provides that, if the permit applicant intends to advertise the event in advance on radio, television, or in widely-distributed print media the event “shall be deemed to be an activity or event of 150 people or more.”

A permit is not required for spontaneous events which are occasioned by news or affairs that come into public knowledge less than 48 hours before the event if the event is conducted on the lawn of City Hall.

The Ordinance requires a permit holder to indemnify the City from losses and liabilities incurred by the holder or its agents and obtain liability insurance. The administrative instruction provides that organizers of expressive events do not have to obtain insurance, except in specific situations, if they comply with the indemnification provision.
Local governments may impose a permit requirement for people wishing to hold a march, parade, or rally as long as they do not deny or unwarrantedly restrict the right of assembly. Although a government may not in most instances place prior restraints on speech, it can enact time, place and manner regulations on speech in public areas as long as the regulations are content neutral meaning they are not directed to the content of the speech. The Court determined that the City’s Ordinance is a content neutral time, place, and permitting scheme. However, even a content-neutral time, place, and manner restriction can be applied in a manner that stifles free expression and must comply with the following constitutional requirements: the restriction shall not “delegate overly broad discretion to a government official, or be based on the content of the speech and must be “narrowly tailored to serve a significant governmental interest” and “must leave open ample alternatives for communication.”

The Court of Appeals found all provisions of the ordinance to be constitutional except
for the requirement that an event organizer must apply for a permit, regardless of the number of participants, if the event “may impede, obstruct, impair or interfere” with the free flow of traffic on public streets. The Court concluded that this provision is not narrowly tailored to ensure a close relationship between the size of an event and the government’s interest in the free flow of traffic. The Court noted that the use of the term “may,” “simply takes in too many circumstances that do not, as matters actually turn out, implicate the governmental interests justifying the permitting requirement.”

The Court also found unconstitutional that portion of the administrative instruction which requires that a permit must be obtained if the event is to be advertised in advance on the radio or television or in widely-distributed print media because it triggers the permit process regardless of the number of people that actually show up.

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