Freedom Foundation v. Wa State Dep't of Labor & Indu ( 2022 )

FILED
NOT FOR PUBLICATION
MAR 7 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREEDOM FOUNDATION, a No. 21-35342
Washington State Nonprofit Corporation,
D.C. No. 3:19-cv-05937-BJR
Plaintiff-Appellant,
v. MEMORANDUM*
WASHINGTON STATE DEPARTMENT
OF LABOR & INDUSTRIES, a
Washington government agency;
HEATHER NORMOYLE, in her official
capacity; ELIZABETH SMITH, in her
official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted February 10, 2022
Seattle, Washington
Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Freedom Foundation’s canvassers were ejected from the second-floor terrace
in the Washington Department of Labor and Industries’ (L&I’s) Tumwater
Headquarters on June 27, 2019 pursuant to L&I’s Policy 5.04. Under the policy,
outside groups wishing to use the space for an event must make a request in
writing and the event must not conflict with a previously scheduled activity.
Freedom Foundation sued, arguing that Policy 5.04 violates its First Amendment
free speech rights. The district court granted summary judgment to L&I. We
affirm.
The parties disagree about whether the second-floor terrace is a designated
or a nonpublic forum. We need not decide the category of the forum because
Freedom Foundation’s First Amendment claim would fail even under the more
exacting test for restrictions on forum access. If, as Freedom Foundation argues,
the second-floor terrace is a designated public forum, Policy 5.04’s scheduling
requirement is permissible if it is a reasonable time, place, and manner restriction.
See Kaahumanu v. Hawaii, 682 F.3d 789, 802–03 (9th Cir. 2012). “Such
restrictions are constitutionally valid if they are (1) content-neutral, (2) narrowly
tailored to serve a significant governmental interest, and (3) leave open ‘ample
alternatives for communication.’” United States v. Griefen, 200 F.3d 1256, 1260
(9th Cir. 2000) (quoting United States v. Linick, 195 F.3d 538, 543 (9th Cir.
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1999)). First, Policy 5.04’s scheduling requirement is content neutral because it
“serves purposes unrelated to the content of expression.” See Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). The object of the scheduling
requirement is not to exclude speech of a particular content, but to minimize
conflicting uses in limited space and to avoid interference with agency business.
See Kaahumanu, 682 F.3d at 803. Second, Policy 5.04 is narrowly tailored to
further this compelling interest because it requires an applicant to request the space
in advance by submitting a facility use application and allows L&I to deny an
application if it conflicts with a previously scheduled activity or would interfere
with agency business. Finally, the policy leaves open ample alternatives for
communication—Freedom Foundation, like other outside groups, could have
secured permission to use the second-floor terrace at a different time had it
submitted a request to reserve the space for a time when no other activity was
previously scheduled for the space.
Freedom Foundation also argues that Policy 5.04 is an unconstitutional prior
restraint because L&I’s failure to define “use,” “event,” and “activity” grants
decision makers unbridled discretion. This argument is unavailing. “[U]ncertainty
at a [policy’s] margins will not warrant facial invalidation if it is clear what the
[policy] proscribes ‘in the vast majority of its intended applications.’” Gospel
3
Missions of Am., a Religious Corp. v. City of Los Angeles, 419 F.3d 1042, 1047
(9th Cir. 2005) (quoting Cal. Tchrs. Ass’n v. State Bd. of Educ., 271 F.3d 1141,
1151 (9th Cir. 2001)).
AFFIRMED.
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