Santa Monica Nativity Scenes v. City of Santa Monica , 784 F.3d 1286 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTA MONICA NATIVITY SCENES No. 13-55011
COMMITTEE, a California non-profit
association, D.C. No.
Plaintiff-Appellant, 2:12-cv-08657-
ABC-E
v.
CITY OF SANTA MONICA, a OPINION
municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
February 6, 2015—Pasadena, California
Filed April 30, 2015
Before: Michael J. Melloy,* Jay S. Bybee,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Bybee
*
The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
2 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
SUMMARY**
Civil Rights
The panel affirmed the district court’s order dismissing a
complaint brought by the Santa Monica Nativity Scenes
Committee seeking to continue the decade-old practice of
exhibiting nativity scenes during the month of December in
Palisades Park, Santa Monica, California.
The Committee challenged the constitutionality of the
City of Santa Monica’s Ordinance No. 2401, which repealed
an exception to the City’s general ban on “unattended
displays” in its parks. The repealed exception had permitted
certain unattended “Winter Displays” in the City’s Palisades
Park every December, using a lottery system to allocate the
available space.
The panel held that the heckler’s veto doctrine had no
application in this case, which involved the City’s
generally-applicable repeal of a special exception to its policy
of excluding unattended displays from its parks. The panel
held that the repeal was a content-neutral time, place, and
manner regulation.
The panel held that the Committee’s Establishment
Clause claim was without foundation. The panel determined
that the City had several secular rationales for enacting
Ordinance 2401—e.g., improving the aesthetics of Palisades
Park and alleviating administrative burdens on the City. The
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 3
panel further held that it was not plausible that, considering
Ordinance 2401 in context, a “reasonable observer” would
conclude that its primary effect was to communicate a
message of disfavor toward Christianity.
COUNSEL
William J. Becker (argued), The Becker Law Firm, Los
Angeles, California; Michael J. Peffer, Pacific Justice
Institute, Santa Ana, California, for Plaintiff-Appellant.
Yibin Shen (argued), Deputy City Attorney, Jeanette
Schachtner, Chief Deputy City Attorney, Barry A.
Rosenbaum, Senior Land Use Attorney, Heidi Von Tongeln,
Deputy City Attorney, Santa Monica, California, for
Defendant-Appellee.
OPINION
BYBEE, Circuit Judge:
No trip to Santa Monica, California, is complete without
a visit to Palisades Park—a picturesque strip of land 14
blocks long that overlooks Santa Monica State Beach and the
Pacific Ocean and is regarded as the “crown jewel” of the
City’s park system. Beginning in about 1955, every year
during December, local residents erected a series of large
dioramas in the Park depicting various scenes from the
biblical story of Christmas. The display consisted of 14
booths, each 18 feet long and filled with life-sized
mannequins and decorations. Putting up and taking down this
elaborate display was a significant undertaking, and in 1983,
4 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
the nonprofit Santa Monica Nativity Scenes Committee was
organized to manage the yearly construction of the dioramas.
In 1994, the City prohibited the construction of
unattended displays—i.e., large, multi-day installations—in
its parks, but it nonetheless continued to allow the nativity
scenes. Subsequently, in 2003, the City Council enacted an
exception to the general prohibition on unattended displays.
This “Winter Display” exception authorized unattended
displays during the month of December, and only in Palisades
Park. Under the “Winter Display” rule, all members of the
community, not just the Committee, were permitted to put up
displays, and display space was to be allocated on a first-
come, first-served basis.
The Winter Display system functioned without incident
in its first few years of existence, during which time the only
applicant who requested substantial display space was the
Committee. In 2011, however, applications for Winter
Display space surged. That year, a number of atheists who
opposed the placement of religious displays in Palisades Park
applied for Winter Display space in what the Committee
alleges was a coordinated attempt to keep the space away
from the Committee and other religious groups. The City
used a lottery system it had created to allocate the available
space, and the atheists received the majority of the display
spots. The Committee and the atheists both vowed to flood
the display-space lottery with even more applications in 2012.
Rather than continue the lottery system and expend the
effort necessary to process all of these expected applications,
the City elected to repeal the Winter Display exception and
keep the Park free of all unattended displays. The Committee
responded by suing the City, alleging that the repeal
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 5
ordinance violated the Committee’s right to free speech
because it was an unconstitutional “heckler’s veto.” The
Committee also alleged that the repeal violated the
Establishment Clause by conveying the message that the City
disapproved of Christianity.
Neither of these allegations constitutes a viable claim for
relief under the First Amendment. The heckler’s veto
doctrine, which applies in situations where a particular
speaker is silenced because his speech invites opposition,
disorder, or violence, has no application in this case, which
involves the City’s generally-applicable repeal of a special
exception to its policy of excluding unattended displays from
its parks. The repeal was a content-neutral time, place, and
manner regulation, not a heckler’s veto. The Committee’s
Establishment Clause claim, meanwhile, is without
foundation. We therefore affirm the district court’s order
dismissing the Committee’s complaint under Federal Rule of
Civil Procedure 12(b)(6).
I
In the early years of the nativity scenes’ existence, the
City of Santa Monica had no formal regulations dealing with
private, unattended structures on public park land, and the
City allowed and even encouraged the yearly display of the
Committee’s nativity scenes. In 1994, the City enacted an
ordinance prohibiting the erection of any “tent, lodge, shelter,
or structure” in city parks without authorization from the
City. Following the enactment of this ordinance, the City
issued “community events” permits for the nativity scenes
each year.
6 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
In 2001, however, the City adopted a new “Community
Events Ordinance” that did not cover multi-day events or
installations. The Community Events Ordinance’s more
restrictive scope meant that the City could no longer permit
multi-day, unattended displays such as the nativity scenes as
“community events.” In 2001 and 2002, the nativity scenes
were thus “installed with the City’s knowledge but without
permits.” The City subsequently received inquiries from both
the Committee and City residents about the legal status of the
nativity scenes.
In order to provide a legal framework that would allow
the “long-standing tradition” of the nativity scenes to
continue while respecting content neutrality, the City Council
passed an ordinance in 2003 that modified the general
prohibition on “structures” in City parks, adding an explicit
exception for so-called “Winter Displays.” The ordinance
defined these displays as “[u]nattended installations or
unattended displays in Palisades Park . . . during the month of
December in an area designated by City Council resolution.”
The ordinance provided that, if the amount of Winter Display
space requested was greater than the area that the City
Council had allotted, spaces would be allotted on a first-
come, first-served basis, “irrespective of the content of [each]
display or installation and irrespective of the identity of the
person or persons responsible for the display.” The City
Council subsequently passed a separate ordinance specifying
an area of Palisades Park roughly two city blocks long as the
area available for Winter Displays.
The first-come, first-served system for Winter Displays
was in place from 2003 until 2010. During this period, the
number of requests for space in the Winter Display area never
exceeded about half of the total area that the City Council had
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 7
allotted, or one city block. The Committee continued to
display its 14 nativity scenes each year.
In 2010, the demand for Winter Display space increased.
The City received three applications for space; two of these
applications requested the same space in the same city block,
which had never happened before, and for the first time, all
of the space in the two city blocks that the City Council had
designated was allocated to applicants. The Winter Displays
filled one city block and also included “two sizeable
displays” in the second block. One of the three applicants
that year was Damon Vix, an atheist who opposed the nativity
scenes’ presence on City property. Vix erected only a single
display in the space he was assigned, leaving the rest of his
area empty. The display was a chain-link fence surrounding
a signboard bearing a quote from Thomas Jefferson:
“Religions are all alike—founded upon fables and
mythologies.”
The City anticipated that demand for Winter Display
space would increase even more in 2011 and accordingly
revised its Winter Display guidelines to create a lottery
system that could be used to allocate space fairly in the event
that multiple requests were submitted the same day. The City
divided the area of the Park allotted for Winter Displays into
21 separate “spots” and allowed applicants to request up to
nine spots each.
In the 2011 application cycle, Vix and several other
atheists each applied for the maximum number of spots. The
City received 13 applications requesting a total of 109
spots—far more than the 21 spots available—and was
required to run the lottery it had set up. In the lottery, two of
Vix’s confederates received nine spots each, Chabad of Santa
8 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
Monica (a Jewish religious organization) received one spot,
and the Committee—which came in fourth in the lottery—
received two spots. As a result, the Committee had space for
just three of the 14 nativity scenes it traditionally erected.
The competition for display space attracted both local and
national attention; the New York Times published a story in
December 2011 describing Vix’s opposition to the nativity
scenes and proclaiming the City to be “embroiled in a
seasonal controversy it has somehow avoided for decades.”
Jennifer Medina, Where Crèches Once Stood, Atheists Now
Hold Forth, N.Y. Times, Dec. 22, 2011, at A28.
In early 2012, the City Attorney, Marsha Jones Moutrie,
submitted two separate reports to the City Council in which
she recommended that the Council eliminate the legal
exception permitting Winter Displays in Palisades Park. In
these reports, Moutrie explained that, because the First
Amendment prohibited the City from picking and choosing
which displays to allow in the Park during December, the
City had only two options: it could continue with the lottery
system it had in place, or it could repeal the Winter Display
system altogether.
Moutrie recommended the latter option. She explained
that Santa Monica residents wanted to “preserve the aesthetic
qualities” of the Park and their ability to “look at the ocean
vista” for which the Park was renowned, rather than continue
to allow the Winter Displays. She also reported that,
according to City staff, the lottery system for display space
was “time consuming and costly” to operate, requiring the
investment of hundreds of hours of staff time—a problem that
was likely to intensify in the future because the groups
involved had indicated that they planned to “flood” the lottery
process in future years “to increase their odds of being
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 9
allocated more spaces.” Moutrie concluded that eliminating
the Winter Display exception would “serve the purpose[s] of
resolving the controversy, eliminating legal risks, conserving
the staff time and resources necessary to operate a
constitutionally valid regulatory system, conforming usage of
Palisades Park to the long standing, City-wide standard which
prohibits unattended displays in parks, and protecting the
views of the park and ocean.”
The City Council agreed with Moutrie’s conclusions and,
on June 26, 2012, it unanimously adopted Ordinance 2401,
which repealed the Winter Display exception. Three months
later, the Committee filed suit in the Central District of
California against the City and the seven members of the City
Council, alleging violations of the First Amendment’s Free
Speech and Establishment Clauses and of the Fourteenth
Amendment’s Equal Protection Clause. The Committee
prayed for declaratory relief, an injunction against the City’s
“policy . . . of banning private unattended displays in
Palisades Park,” nominal damages, and attorneys’ fees.
The Committee moved for a preliminary injunction a day
after filing its complaint. After a hearing, the district court
denied this motion, explaining that the Committee had not
shown a likelihood of success on the merits of any of its
constitutional claims.1
1
The district court’s denial of the Committee’s motion for a preliminary
injunction is before this court as part of the present appeal. Because we
affirm the district court’s Rule 12(b)(6) dismissal of the complaint,
however, we need not separately address the question whether the denial
of the Committee’s motion for a preliminary injunction was proper. See,
e.g., Cal. ex rel. Younger v. Mead, 618 F.2d 618, 622 (9th Cir. 1980).
10 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
While the motion for a preliminary injunction was
pending, the defendants moved to dismiss the complaint for
failure to state a claim. After denying the preliminary-
injunction motion, the district court granted this 12(b)(6)
motion as to the City; the Committee agreed voluntarily to
dismiss the individual defendants with prejudice.
In its dismissal order, the district court held that both of
the Committee’s First Amendment claims were legally
deficient. The court determined that the City’s policy of
banning all unattended displays in Palisades Park was content
neutral, rejecting the Committee’s argument that the ban
should be deemed a content-based “heckler’s veto.” After
concluding that the ban was content neutral, the district court
held that it was a valid time, place, and manner regulation and
that the Committee had therefore failed to state a claim under
the Free Speech Clause.
The district court also held, under the tripartite framework
of Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), that the
total ban did not violate the Establishment Clause. The
district court dismissed the Committee’s First Amendment
claims with prejudice.2 The Committee timely appealed.
We review the district court’s dismissal of the complaint
under Rule 12(b)(6) de novo. Gant v. Cnty. of L.A., 772 F.3d
608, 614 (9th Cir. 2014). As part of this assessment, “we
inquire whether the complaint’s factual allegations, together
with all reasonable inferences, state a plausible claim for
relief.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc.,
2
The order did not address the Committee’s equal-protection claim,
which the Committee voluntarily dismissed with prejudice.
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 11
637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal,
556 U.S. 662 (2009)).
II
We begin with the Committee’s claim under the Free
Speech Clause. When analyzing the validity of a regulation
under this Clause, we “apply a forum analysis” whose first
step involves determining what type of forum is affected by
the regulation. Flint v. Dennison, 488 F.3d 816, 830 (9th Cir.
2007). “Once the forum is identified, we determine whether
[the] restrictions on speech are justified by the requisite
[legal] standard.” Id. (internal quotation marks omitted).
All agree that Palisades Park—the forum that Ordinance
2401 finally and completely closed to unattended
displays—is a traditional public forum. See, e.g., Berger v.
City of Seattle, 569 F.3d 1029, 1036 (9th Cir. 2009) (en banc)
(noting that parks are “categorized for First Amendment
purposes as traditional public fora”). In such a forum, the
government’s ability to regulate speech is “sharply
circumscribed.” Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983). A content-based speech
regulation in a traditional public forum is subject to strict
scrutiny and will be upheld only if it is narrowly drawn to
serve a compelling governmental interest. Id.Content-neutral time, place, and manner regulations, on
the other hand, are permitted in traditional public forums if
the regulations are narrowly tailored to serve a significant
governmental interest and leave open ample alternative
channels of communication. Berger, 569 F.3d at 1036 (citing
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
Both this court and the Supreme Court have indicated,
12 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
moreover, that a content-neutral ban on all private unattended
displays in a city’s parks is very likely to be a legitimate time,
place, and manner regulation. Capitol Square Review &
Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995); id. at
783–84 (Souter, J., concurring); Am. Jewish Cong. v. City of
Beverly Hills, 90 F.3d 379, 384 (9th Cir. 1996) (en banc)
(“The City constitutionally could ban all unattended private
displays in its parks.”); see also Lubavitch Chabad House,
Inc. v. City of Chi., 917 F.2d 341, 347 (7th Cir. 1990) (“We
are not cognizant of[] . . . any private constitutional right to
erect a structure on public property. If there were, our
traditional public forums, such as our public parks, would be
cluttered with all manner of structures.”). Indeed, the
Committee concedes, in light of this case law, that such a ban
is constitutional as long as it is content neutral.
Much depends, therefore, on whether Ordinance 2401 is
content based or content neutral—the question to which we
now turn.
A. Content Neutrality
The Committee does not dispute that Ordinance 2401 is
facially content neutral. Nor could it. By repealing the legal
exception that previously allowed for Winter Displays, the
ordinance effectively bans all unattended displays in
Palisades Park. It does not discriminate between particular
displays based on their content.
The Committee argues, however, that Ordinance 2401
should be considered content based pursuant to the
“heckler’s-veto” doctrine, which holds that a regulation of
speech is to be deemed content based when “listeners react to
speech based on its content and the government then ratifies
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 13
that reaction by restricting the speech in response to listeners’
objections.” Ctr. for Bio-ethical Reform, Inc. v. L.A. Cnty.
Sheriff Dep’t, 533 F.3d 780, 789 (9th Cir. 2008) (emphasis
omitted). The doctrine prohibits the government from
pointing to the “reaction of listeners” to speech as a
“secondary effect” justifying that speech’s regulation; in
other words, the government may not regulate speech on the
grounds that it will cause its hearers anger or discomfort. Id.(citing Boos v. Barry, 485 U.S. 312, 321 (1988)). If speech
provokes wrongful acts on the part of hecklers, the
government must deal with those wrongful acts directly; it
may not avoid doing so by suppressing the speech.
The Committee contends that Ordinance 2401 was a
heckler’s veto because the City Council enacted it in response
to the atheists’ objections to the Committee’s nativity scenes.
It argues that the City reacted to the controversy that had
begun to brew over the competing claims for display space in
Palisades Park by opting to suppress speech there altogether.
It cites to City Attorney Moutrie’s reports, both of which
reference the importance of resolving the “controversy” that
had arisen over the Winter Displays, and to the public
remarks of individual City Council members during
deliberations over Ordinance 2401, when a number of
Council members expressed fear that the display controversy
would escalate and turn ugly.
As the Committee is forced to concede, however, this
case is far afield from the heartland of the heckler’s veto
doctrine. The prototypical heckler’s veto case is one in which
the government silences particular speech or a particular
speaker “due to an anticipated disorderly or violent reaction
of the audience.” Rosenbaum v. City & Cnty. of S.F.,
484 F.3d 1142, 1158 (9th Cir. 2007); see also Zamecnik v.
14 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
Indian Prairie Sch. Dist. #204, 636 F.3d 874, 879 (7th Cir.
2011) (heckler’s veto doctrine applies when particular,
protected speech is “met by violence or threats or other
unprivileged retaliatory conduct”); Richard F. Duncan, Just
Another Brick in the Wall: The Establishment Clause as a
Heckler’s Veto, 18 Tex. Rev. L. & Pol. 255, 264 (2014) (“The
classic heckler’s veto case arises when someone wishes to
speak in a public forum and someone else threatens to
violently stop the speech.”). Indeed, every appellate decision
applying the heckler’s veto doctrine of which we are aware
involved the restriction of particular speech due to listeners’
actual or anticipated hostility to that speech.3 The
3
See, e.g., Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123,
126–27, 134 (1992) (ordinance allowing parade permit fees to be adjusted
based on expected cost of maintaining order during the parade was content
based because the adjustments would “depend on [an] administrator’s
measure of the amount of hostility likely to be created by the speech based
on its content”); Terminiello v. City of Chi., 337 U.S. 1, 5 (1949)
(disorderly conduct ordinance violated First Amendment because it
“permitted conviction of [a defendant] if his speech stirred people to
anger, invited public dispute, or brought about a condition of unrest”);
United States v. Marcavage, 609 F.3d 264, 283 (3d Cir. 2010) (park
rangers engaged in content-based restriction of protester’s speech when
they removed him from a public street near the Liberty Bell because they
were “concerned by visitors’ reactions to [his] message and [his] signs[]”);
Ctr. for Bioethical Reform, 533 F.3d at 789 (state law, if applied to
protesters driving truck with anti-abortion messages around a public
school, would be an unconstitutional heckler’s veto because it “permitted
[the speech] until the students and drivers around the school reacted to it,
at which point the speech was deemed disruptive and ordered stopped”);
Lewis v. Wilson, 253 F.3d 1077, 1081–82 (8th Cir. 2001) (state’s refusal
to allow driver to have license plate with number “ARYAN-1” was an
unconstitutional heckler’s veto because the decision was based on the
“mere possibility of a violent reaction” to the license plate by other
drivers); Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v.
Dist. of Columbia, 972 F.2d 365, 374 (D.C. Cir. 1992) (city’s proposal to
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 15
Committee’s heckler’s veto claim would thus have some
force if the City, in response to the atheists’ complaints and
applications for space, had decided that no religious displays
could henceforth be erected in Palisades Park.
But the City did no such thing. Instead, as the district
court noted below, the City adopted a generally applicable
regulation meant to balance “competing speech rights” rather
than to “suppress[] . . . a [particular] message because of the
audience’s reaction to it.” In 2010 and 2011, the City was
confronted for the first time in its history with a profusion of
requests for display space in Palisades Park—requests that the
City reasonably believed the First Amendment required it to
treat equally, given that the Park is a traditional public
forum.4 The City made an effort to accommodate both the
Committee and the other applicants for space, but the City
soon came to the conclusion that the administrative problems
and intramural strife caused by the Winter Display lottery
system outweighed the benefits of continuing it. To address
the problems and restore communal peace, the City adopted
restrict location of KKK march due to the “threat of listeners’ violent
reaction to the message being delivered” was content based).
4
In its briefs, the Committee argues at great length that the City could
have excluded the atheists from the Winter Display system because the
atheists’ displays were not intended to celebrate “[l]egitimate winter
holidays.” Whether the First Amendment in fact permitted the City to
exclude the atheists from the Winter Display system is not, however,
relevant to the outcome here, and we therefore decline to render an
advisory opinion on that issue. It is sufficient for present purposes to note
that the City set for itself the laudable goal of treating all applicants
equally and that, once the City concluded that perpetuating the Winter
Display system would be more trouble than it was worth, the City
addressed the problem with a neutral regulation that banned all unattended
displays, whether religious or secular.
16 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
an evenhanded regulation—Ordinance 2401—that removed
the legal exception that permitted the “Winter Displays.” The
ordinance did not single out the Committee’s speech and,
accordingly, was not the stuff of a traditional heckler’s veto.
We acknowledge that, described at a high level of
abstraction, Ordinance 2401 sounds a bit like a heckler’s
veto. The repeal of the Winter Display exception did, in
some sense, ratify the atheists’ opposition to the nativity
scenes; the atheists started a “controversy” over the scenes,
and the City reacted by excluding the scenes (along with all
other unattended displays) from Palisades Park. We would
expand the heckler’s veto doctrine significantly, however, if
we held here that the doctrine applies to neutral regulations
that do not target particular speech, and the logic underlying
the heckler’s veto doctrine does not support our doing so.
The heckler’s veto doctrine is concerned with the possibility
that particular speech will be wrongfully excluded from the
marketplace of ideas merely because it is “offensive to some
of [its] hearers.” See Bachellar v. Maryland, 397 U.S. 564,
567 (1970). That possibility is absent when a regulation
applies to all speech and does not allow for arbitrary
enforcement based on particular speech’s “offensive[ness].”
See Ovadal v. City of Madison, 416 F.3d 531, 536–37 (7th
Cir. 2005) (city’s policy of prohibiting signs hung from
highway overpasses if they “impair[ed] traffic safety” was
content based because officers could “decide on an ad hoc
basis whether to allow the protest to continue depending
on how drivers react to the signs,” but a general ban on
all signs on overpasses would “certainly be a legitimate
place and manner restriction because it would be clearly
content-neutral”).
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 17
We find no support in federal case law, moreover, for the
proposition that a city that chooses to permit unattended
displays in its public spaces for some period of time becomes
estopped by the First Amendment from withdrawing that
permission if those displays happen, eventually, to invite
“controversy.” Indeed, we impliedly rejected that very notion
in our decision in American Jewish Congress v. City of
Beverly Hills. There, the city of Beverly Hills had a general
policy against unattended displays on public property but
made an exception every year for a large menorah erected in
a park during Chanukah. 90 F.3d at 380–81. Two
individuals unsuccessfully applied for permission to erect a
“winter solstice” display and a Latin cross in the park, and the
denial of their applications led to a challenge to the city’s
permitting policy for displays. Id. at 381. This court held
that Beverly Hills’ policy violated the First Amendment
because it was susceptible to arbitrary application. Id. at 385.
In the course of reaching this conclusion, we commented in
dicta that the city “constitutionally could ban all unattended
private displays in its parks.” Id. at 384. We did not suggest
that the city was barred from adopting such a ban now that a
controversy had arisen over the menorah’s privileged status.
The First Circuit came to a similar conclusion in Knights
of Columbus, Council #94 v. Town of Lexington. 272 F.3d 25(1st Cir. 2001). That case involved a crèche that had been
erected on the Battle Green in Lexington, Massachusetts, for
many decades—first by the town itself and then, from 1973
onward, by two fraternal organizations. The crèche “long
ha[d] been a source of friction within” Lexington, and some
residents had “complained bitterly about its presence on the
Green.” Id. at 29. In the fall of 1999, the town received
“requests to allow a wide range of other religious structures
on the Green for comparable periods,” including displays
18 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
relating to Judaism, “witchcraft,” and “the Egyptian Sun God
Ra.” Id. The town, which was unwilling to “compromise the
aesthetic and historic elements of the Green” by permitting all
of these displays, decided to ban the erection of unattended
structures on the Green. Id. at 29–30. The fraternal
organizations responsible for the crèche sued, alleging a
violation of their freedom of speech.
The First Circuit upheld the ban. The court explained
that, because the ban was “facially neutral,” the only basis on
which the court could hold that the town’s action was content
based was the fraternal organizations’ claim that “the
regulation’s primary purpose [was] to prevent display of the
crèche.” Id. at 31. The court determined, however, that
“nothing in the record . . . evince[d] a content-based animus
against the crèche.” Id. at 32. On the contrary, the record
indicated that the town had acted out of a desire to protect the
Green and “treat all religious expression even-handedly.” Id.
The Knights of Columbus court did not, in other words,
consider Lexington’s ban on unattended displays to be a
heckler’s veto directed at the crèche, even though that ban
had been enacted to resolve a controversy over display space
that the crèche had previously monopolized.
We similarly conclude that Ordinance 2401 is content
neutral. The fact that the speakers who succeeded in crowding
the nativity scenes out of Palisades Park were atheists who
explicitly opposed the scenes’ display is surely a bitter pill for
the Committee, and it may appear to some observers that the
City’s decision to ban unattended displays from Palisades
Park affected the Committee disproportionately. By 2011,
however, the nativity scenes were living on borrowed time.
The scenes owed their long, uninterrupted, and near-exclusive
occupation of the Park—a public forum open to all—largely
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 19
to the fact that for many years, hardly anyone else in the
community wished to put up displays there. That was bound
to change sooner or later, and in 2010, it finally did. By
repealing its Winter Display exception, the City did no more
than treat all potential displays equally. Accord id. at 32 (“If
the [plaintiffs] feel that the burden of the regulation falls most
heavily on them, it is perhaps because they are now held to
the same standard as all other similarly situated applicants.
While the adjustment may not be an easy one, the outcome is
inescapably content-neutral.”).5
B. Time, Place, and Manner Regulation
Although we conclude that Ordinance 2401 is content
neutral, that does not mean that the ordinance necessarily was
constitutional. In order to pass constitutional muster as a
time, place, and manner regulation, Ordinance 2401 must also
be “narrowly tailored to serve a significant governmental
interest” and “leave open ample alternative channels for
communication.” Ward, 491 U.S. at 791. We have little
5
To say that generally applicable bans on particular forms of speech are
content-neutral regulations is not to suggest that such bans will always be
constitutional. On the contrary, the Supreme Court has indicated that such
bans are suspect when they suppress more speech than is necessary to
accomplish their objectives. See, e.g., Martin v. City of Struthers,
319 U.S. 141, 145–46 (1943) (ordinance prohibiting ringing doorbells for
the purpose of distributing handbills violated the First Amendment,
because “[d]oor to door distribution of circulars is essential to the poorly
financed causes of little people”); Schneider v. Town of Irvington,
308 U.S. 147, 162 (1939) (ordinances banning all distribution of literature
in public streets in order to prevent litter were invalid under the First
Amendment; the better course was for cities to punish “those who actually
throw papers on the streets”). In this section of our opinion, we hold only
that blanket bans applicable to all speakers are content-neutral.
20 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
difficulty, however, in concluding that the ordinance satisfies
all of these requirements.
1. Significant governmental interests
Ordinance 2401 served at least two significant
governmental interests: First, it preserved the aesthetic
qualities of Palisades Park and prevented obstruction of
patrons’ views of the ocean. The Supreme Court has held on
several occasions that governments may regulate speech for
aesthetic purposes. See, e.g., Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 296 (1984) (National Park
Service could ban camping in certain public parks in order to
“maintain[]” the parks “in an attractive and intact condition”);
Members of City Council of L.A. v. Taxpayers for Vincent,
466 U.S. 789, 808 (1984) (city of Los Angeles could ban
posters on public utility poles in order to combat “visual
clutter and blight”). And the City has long manifested its
intent to preserve its parks from clutter: since at least 1994,
it has prohibited unattended displays in all parks while
making a limited exception for “Winter Displays” in
Palisades Park. Ordinance 2401 simply made that prohibition
applicable to all of Santa Monica’s parks at all times.
Second, Ordinance 2401 conserved the City’s resources.
Prior to 2011, coordinating the Winter Displays in Palisades
Park had been an easy task for the City’s staff; in 2011,
however, the staff spent “hundreds of hours” administering
the lottery system, and all indications were that the system
would become more time-consuming in the future as the
number of applications for space increased. It was
permissible for the City to seek to alleviate this burden on its
employees’ time. See, e.g., Clark, 468 U.S. at 296–97
(National Park Service’s total ban on sleeping in certain parks
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 21
could be justified on the ground that operating a selective
permitting system for camping demonstrations would be an
administrative burden on the Park Service).
The Committee dismisses both of these rationales as
insignificant and argues that Ordinance 2401 does not further
either of them. “Conclusory allegations of law, however, are
insufficient to defeat a motion to dismiss.” Lee v. City of
L.A., 250 F.3d 668, 679 (9th Cir. 2001). The Committee must
allege facts that show that the Ordinance 2401 did not serve
the ends the City said it did, and the Committee has failed to
do this. The Committee has no answer whatsoever to the
statements by City employees—which the Committee itself
reproduced as an exhibit to its complaint—that eliminating
the Winter Displays saved the City many hours of staff time,
other than stating that it simply does not believe the City.
And with respect to the City’s stated aesthetic concerns, the
Committee has offered only one factual allegation that
indicates that those concerns were insignificant: the fact that
at the time that the City created the formal Winter Display
system in 2003, the City’s staff believed that allocating a two-
block area of Palisades Park for the displays would not cause
problems. This fact does not plausibly show that the aesthetic
concerns the City cited in 2012 to justify Ordinance 2401
were insignificant. The City was entitled to reassess
conditions in the Park as it gained experience with the Winter
Display system over time, and by 2012, the City was clearly
convinced that change was needed.
The Committee also contends that, in any event, the
City’s stated concerns are not valid bases for regulation
because they stem from the “emotive impact” of the
Committee’s religious speech. But the Committee has not
alleged any plausible facts to support this claim. The City’s
22 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
regulation targeted the aesthetic and logistical problems
created by the influx of display space applications in 2011,
not the emotional impact of the nativity scenes on people who
saw them. The atheists who applied for display space in
Palisades Park may have done so in reaction to the presence
of the nativity scenes, but that does not mean that any
problems that the increased number of applications created
for the City are a consequence of the “emotive impact” of the
nativity scenes. A regulation impermissibly targets the
“emotive impact” of speech only if it is justified by reference
to the immediate emotional reaction of listeners. See Boos,
485 U.S. at 321 (invalidating ordinance aimed solely at
“protect[ing] the dignity of foreign diplomatic personnel by
shielding them from speech that is critical of their
governments”—protest signs outside of embassies).
Ordinance 2401 is not such a regulation.
2. Narrow tailoring
We also conclude that Ordinance 2401 was narrowly
tailored. Although the Committee points out several steps
that the City could have taken to address the problems it
identified, short of repealing the Winter Display exception,
these observations are irrelevant to the question of narrow
tailoring. A time, place, and manner regulation “need not be
the least restrictive or least intrusive means” of furthering the
government’s interests in order to be narrowly tailored.
Ward, 491 U.S. at 798. Rather, narrow tailoring requires only
that a regulation “promote[] a substantial government interest
that would be achieved less effectively absent the regulation”
and not “burden substantially more speech than is necessary
to further” that interest. Id. at 799.
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 23
There is no question that Ordinance 2401 furthers the
City’s interests in preserving the aesthetics of Palisades Park
and conserving City resources. Nor did the ordinance burden
substantially more speech than necessary: unattended displays
contribute to clutter and require laborious permitting in ways
that other forms of speech, even attended displays, usually do
not, and the ordinance affected only unattended displays. See
Frisby v. Schultz, 487 U.S. 474, 485 (1988) (stating that a
regulation is narrowly tailored if it “eliminates no more than
the exact source of the ‘evil’ it seeks to remedy”). The City’s
regulation therefore satisfies the narrow tailoring
requirement.
3. Alternative channels of communication
Finally, we find that Ordinance 2401 leaves open ample
alternative channels of communication. As the district court
observed, there remain “many alternative avenues” by which
the Committee can communicate its religious message: it can
erect its unattended nativity scenes on private property, and
it can speak in many other ways in Palisades Park, including
erecting one-day, attended displays, leafleting, preaching,
holding signs, and caroling.6
6
During the pendency of this appeal, the City made two requests for
judicial notice of various documents that purport to show that, in the years
after Ordinance 2401 was passed, the Committee did several of these
things, including displaying the unattended nativity scenes on private
property and holding live Christmas events in Palisades Park. The
pertinent question for our purposes, however, is whether Ordinance 2401
left open ample alternative channels of communication; it does not matter
whether the Committee actually availed itself of those alternative
channels. We therefore deny the City’s two requests for judicial notice on
the grounds that the documents to be noticed are irrelevant. See, e.g., Ruiz
v. City of Santa Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (denying
24 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
The Committee offers several arguments why the
alternative channels of communication left to it are
inadequate. First, it contends that “[a]n alternative is not
ample if the speaker is not permitted to reach the intended
audience,” Bay Area Peace Navy v. United States, 914 F.2d
1224, 1229 (9th Cir. 1990) (internal quotation marks
omitted), and that its “intended audience” is visitors to
Palisades Park, which it claims is “the optimum location for
reaching the greatest number of spectators” in Santa Monica.
Even assuming, however, that the Committee is entitled to
insist that it be specifically allowed to reach visitors to
Palisades Park, the Committee is still able to speak in the
Park after Ordinance 2401; it simply cannot do so by erecting
large, unattended structures. Compare Knights of Columbus,
272 F.3d at 34 (ban on unattended structures on Battle Green
left open alternative channels of communication, in part
because a creche could still appear on the Green as an
attended display), with Bay Area Peace Navy, 914 F.2d at
1229 (75-yard security zone around reviewing stand for
Navy’s “Fleet Week” did not afford pacifist demonstrators
ample alternative channels of communication, because it
prevented them from reaching their intended audience of
visitors to Fleet Week).
Second, the Committee argues that it would be
“impractical” for it to arrange for the nativity scenes to be
attended displays because the Committee “cannot practically
recruit volunteers or afford to pay people to be present” while
the displays are up. In general, however, the fact that the
alternative channels of communication left open by a
regulation are more expensive is not, by itself, sufficient to
request for judicial notice, in part because information to be noticed did
not bear on the “relevant issue” before the court).
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 25
show that those alternative channels are inadequate. See, e.g.,
Taxpayers for Vincent, 466 U.S. at 812 & n.30 (ordinance
prohibiting posting of signs on utility poles left open
alternative channels of communication, such as speaking in
person and distributing literature in the same locations—both
of which tactics are presumably more expensive); Kovacs v.
Cooper, 336 U.S. 77, 88–89 (1949) (fact that “more people
may be more easily and cheaply reached by sound trucks”
than by other means was not enough to “call forth
constitutional protection” for that specific mode of
communication).
Finally, the Committee argues in its reply brief that the
First Amendment “protects [its] right to choose a particular
means or avenue of speech”—i.e., unattended displays. But
although we have held that speakers have a First Amendment
right to “choose a particular means or avenue of speech . . . to
advocate their cause,” we have also made clear that “[t]his is
not the same as saying that [speakers] have a First
Amendment right to dictate the manner in which they convey
their message within their chosen avenue. Government may
regulate the manner of speech in a content-neutral way.” Foti
v. City of Menlo Park, 146 F.3d 629, 641–42 (9th Cir. 1998)
(although abortion protesters had the right to communicate
their message by picketing, city was permitted to regulate the
manner of this picketing, e.g. by regulating the size and
number of their signs). Thus, even assuming that the First
Amendment protects the Committee’s right to speak through
large displays, the City was permitted to limit the manner of
that speech by requiring that such displays be attended or
erected as part of limited-duration “community events.” See
Foti, 146 F.3d at 641–42; see also United Bhd. of Carpenters
& Joiners of Am. Local 586 v. NLRB, 540 F.3d 957, 969 (9th
Cir. 2008) (“We will not invalidate a regulation merely
26 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
because it restricts the speaker’s preferred method of
communication.”). Ordinance 2401, which allows the
Committee to disseminate its message in person in many
different ways, including attended displays and unattended
displays that are part of single-day “community events,”
therefore leaves open sufficient alternative channels of
communication.
Because Ordinance 2401 was a valid time, place, and
manner regulation, we affirm the district court’s conclusion
that the Committee’s claim under the Free Speech Clause is
not viable and must be dismissed.
III
The other claim at issue is the Committee’s claim that
Ordinance 2401 violated the Establishment Clause because it
conveyed impermissible “disapproval of and hostility toward
the Christian religion.” We need not detain ourselves long
with this allegation, which falls well short of amounting to a
plausible claim for relief.
A regulation violates the Establishment Clause if (1) it
lacks a “secular legislative purpose,” (2) “its principal or
primary effect” is to “advance[ or] inhibit[] religion,” or (3)
it “foster[s] an excessive government entanglement with
religion.” Lemon, 403 U.S. at 612–13 (internal quotation
marks omitted).7 The Committee makes no attempt to argue
7
As a mode of analysis for Establishment Clause inquiries, Lemon has
been much criticized both inside and outside the Court—and sometimes
ignored by the Court altogether, see, e.g., Town of Greece v. Galloway,
134 S. Ct. 1811 (2014). Nevertheless, Lemon remains the Court’s
principal framework for applying the Establishment Clause. See Cnty. of
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 27
that Ordinance 2401 creates entanglement between the City
and religion, focusing instead on the first two prongs of the
Lemon test.
The Committee’s allegation that Ordinance 2401 lacked
a secular legislative purpose is plainly inadequate. A
regulation “will stumble on the purpose prong ‘only if it is
motivated wholly by an impermissible purpose.’” Kreisner
v. City of San Diego, 1 F.3d 775, 782 (9th Cir. 1993)
(emphasis added) (quoting Bowen v. Kendrick, 487 U.S. 589,
602 (1988)). As we have explained, the City had several
secular rationales for enacting Ordinance 2401—e.g.,
improving the aesthetics of Palisades Park and alleviating
administrative burdens on the City. That is enough to satisfy
Lemon’s first prong. See id. (“A reviewing court must be
‘reluctant to attribute unconstitutional motives’ to
government actors in the face of a plausible secular purpose.”
(quoting Mueller v. Allen, 463 U.S. 388, 394–95 (1983))).
As for the Committee’s allegation regarding Lemon’s
second prong—i.e., that Ordinance 2401 has the primary
effect of “convey[ing] disapproval of religion”—we find it
simply implausible. The history we have recounted shows
that, far from disapproving the nativity scenes, the City
welcomed and accommodated the Committee’s displays for
over fifty years and repealed the Winter Display exception
only when it was convinced that no other course of action
made sense. Indeed, a third party might well have had
grounds to sue the City on the grounds that the Winter
Display system itself violated the Establishment Clause by
Allegheny v. ACLU, 492 U.S. 573, 592 (1989) (“[Lemon’s] trilogy of tests
has been applied regularly in the Court’s later Establishment Clause
cases.”).
28 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA
unduly privileging religion. Thus, it is not plausible that,
considering Ordinance 2401 in context, a “reasonable
observer” would conclude that its primary effect was to
communicate a message of disfavor toward Christianity. See
Am. Family Ass’n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114,
1122 (9th Cir. 2002).
We conclude that Ordinance 2401 passes muster under
the Lemon test and that the Committee has failed to state a
claim under the Establishment Clause. The district court
properly dismissed this claim under Rule 12(b)(6).8
IV
We do not doubt that the Committee resents the way in
which the City curtailed its traditional way of celebrating the
Christmas season in Palisades Park, but its grievances do not
8
The Committee’s opening brief argues in passing that the district court
erred by dismissing this action with prejudice. We disagree. We are
skeptical that the Committee—which never asked the district court for
leave to amend its complaint—can now be heard to complain that the
district court did not grant such leave. See, e.g., Alaska v. United States,
201 F.3d 1154, 1163–64 (9th Cir. 2000) (“Where a party does not ask the
district court for leave to amend, [a] request on appeal to remand with
instructions to permit amendment comes too late.” (alteration and internal
quotation marks omitted)). And in any event, leave to amend is not
warranted where, as here, “[i]t is clear that no amendment could save [the]
complaint.” Desaigoudar v. Meyercord, 223 F.3d 1020, 1026 (9th Cir.
2000). We cannot conceive of any additional facts—and the Committee
proffers none—that would cure the deficiencies in the Committee’s First
Amendment claims. The district court thus did not abuse its discretion by
dismissing the case with prejudice. See, e.g., In re VeriFone Sec. Litig.,
11 F.3d 865, 872 (9th Cir. 1993).
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 29
state a viable claim that the City violated the First
Amendment. The judgment of the district court is
AFFIRMED.