Santa Monica Food v. City of Santa Monica , 450 F.3d 1022 ( 2006 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTA MONICA FOOD NOT BOMBS, an 
unincorporated association;
INTERNATIONAL ANSWER/LOS ANGELES,
an unincorporated association;
No. 03-56621
DEBORAH BAXTER; MOIRA LA
MOUNTAIN; CHRISTINE SCHANES, D.C. No.
Plaintiffs-Appellants,  CV-03-00032-
MLR
v.
CITY OF SANTA MONICA, a municipal
corporation; SUSAN E. MCCARTHY;
JAMES T. BUTTS,
Defendants-Appellees. 
SANTA MONICA FOOD NOT BOMBS, an 
unincorporated association;
INTERNATIONAL ANSWER/LOS ANGELES,
an unincorporated association;
No. 03-56623
DEBORAH BAXTER; MOIRA LA
MOUNTAIN; CHRISTINE SCHANES, D.C. No.
Plaintiffs-Appellants,  CV-03-00032-
MLR
v.
OPINION
CITY OF SANTA MONICA, a municipal
corporation; SUSAN E. MCCARTHY;
JAMES T. BUTTS,
Defendants-Appellees. 
6645
6646 SANTA MONICA FOOD v. CITY OF SANTA MONICA
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
February 14, 2005—Pasadena, California
Filed June 16, 2006
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
Marsha S. Berzon, Circuit Judges.
Opinion and Partial Dissent by Judge Berzon;
Partial Majority Opinion, Partial Concurrence, and
Partial Dissent by Judge Kleinfeld;
Concurrence by Judge Wardlaw
6652 SANTA MONICA FOOD v. CITY OF SANTA MONICA
COUNSEL
Carol A. Sobel, Law Office of Carol A. Sobel, Santa Monica,
California, for the appellants.
Barry A. Rosenbaum, Senior Land Use Attorney, Santa Mon-
ica, California, for the appellees.
OPINION
BERZON, Circuit Judge, with whom Judge Kleinfeld concurs
except as to Sections II.B.2.b.(1)(ii) and II.C, and Judge
Wardlaw concurs except as to Section II.C:
We consider the facial constitutionality of ordinances
enacted by the City of Santa Monica to regulate activity in its
outdoor public spaces. During the pendency of this litigation,
both these ordinances and Santa Monica’s administrative
interpretation of them have changed substantially. Appellants’
persistent urging and Santa Monica’s willingness to change its
regulations have together produced a transformation in the
applicable permitting scheme that — to the credit of all par-
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6653
ties involved — provides significantly more opportunity for
those who wish to make their views heard in public spaces to
do so without first obtaining permits.
We review only the present version of the ordinance and
implementing regulations and, of course, only those portions
that appellants specifically challenge.1 Doing so, we hold that
Santa Monica’s Community Events Ordinance is, save a sin-
gle provision, a content-neutral time, place, and manner
restriction that does not violate the First Amendment. One
provision of Santa Monica’s administrative interpretation of
the ordinance, however, is not constitutionally sound and can-
not be enforced. Additionally, the facial challenges to other
ordinances either are moot or fail on the merits.
I. FACTUAL AND LEGAL BACKGROUND
A. Santa Monica and the Ordinances at Issue2
1
As always, we are not to be understood as having reviewed or
approved aspects of the ordinances or implementing regulations not here
challenged. To clarify our holdings in this sensitive area, we have endeav-
ored throughout to be quite specific about the limited nature of the chal-
lenges to which we respond.
2
Santa Monica has requested that we take judicial notice of six docu-
ments: Staff Report, City Council of the City of Santa Monica (Feb. 10,
2004) at 6-20; Staff Report, City Council of the City of Santa Monica
(Feb. 10, 2004) at 21-31; City of Santa Monica Ordinance No. 2116; City
of Santa Monica Ordinance No. 2117; Event Permit Application; City of
Santa Monica Defense, Indemnity, and Hold Harmless Agreement. Santa
Monica submits that each document is a certified public record. The first
four documents are on file with the City Clerk of the City of Santa Mon-
ica. The remainder can be accessed at Santa Monica’s official website
found at www.santa-monica.org/ccs/events and are on file with the Open
Space Management Division of the Community and Cultural Services
Department of the City of Santa Monica. Judicial notice may be taken of
a fact “not subject to reasonable dispute in that it is capable of accurate
and ready determination by resort to sources whose accuracy cannot rea-
sonably be questioned.” FED. R. EVID. 201. We decline to take judicial
notice of the two Staff Reports, as they are not relevant to the resolution
6654 SANTA MONICA FOOD v. CITY OF SANTA MONICA
The City of Santa Monica (“Santa Monica” or the “City”)
is a vibrant beach community in southern California occupy-
ing less than eight square miles with a weekday population of
300,000 that swells to 500,000 on weekends. About eight per-
cent of the land in Santa Monica is dedicated to public open
space, of which 245 acres are dedicated to public parks. The
limited public park space is occupied, in part, by tennis, bas-
ketball, and shuffleboard courts, a lawn bowling green, base-
ball and soccer fields, a gymnasium, a child care center, and
senior and youth centers. The remaining public park space is
used by large numbers of people for a variety of activities,
both organized and spontaneous. For example, schools, com-
panies, churches, and the City itself sponsor picnics, festivals,
rallies, and demonstrations in the parks.
Santa Monica’s downtown area accommodates fairly dense
usage. It includes the popular Third Street Promenade, an out-
door pedestrian mall lined with shops, movie theaters, and
restaurants and frequented by street performers. In the recent
past, Santa Monica has seen demonstrations in public open
spaces and in front of hotels and retail stores on issues con-
cerning workers’ rights, environmental protection, and the
abolition of sweatshops.
Before the district court, appellants challenged the constitu-
tionality of Santa Monica’s (1) street banner ordinance, SANTA
MONICA, CAL., MUN. CODE (“SMMC”) §§ 4.08.490-.500; (2)
community events ordinance, SMMC §§ 4.68.010-.220; and
(3) food distribution ordinances, SMMC § 5.06.010 (concern-
of this appeal. See Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 392
n.7 (9th Cir. 2000); Ruiz v. City of Santa Maria, 160 F.3d 543, 548 n.13
(9th Cir. 1998). The rest of the documents are proper subjects for judicial
notice. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)
(noting that judicial notice may be taken of public records); Newcomb v.
Brennan, 558 F.2d 825, 829 (7th Cir. 1977) (“[C]ity ordinances fall within
the category of ‘common knowledge’ and are therefore proper subjects for
judicial notice.”). Santa Monica’s request is granted as to them.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6655
ing food distribution in public parks) and SMMC § 5.06.020
(concerning food distribution on public streets and sidewalks).
Those aspects of these ordinances central to the resolution of
the issues presented are set forth in detail in this section.
Other provisions, not described immediately below, are set
forth in later portions of this opinion as they become relevant.
1. The Community Events Ordinance
To manage competing uses of Santa Monica’s public
spaces, streets, and sidewalks while “protect[ing] the rights of
people to engage in expressive activities in the City’s public
places,” SMMC § 4.68.010, the Santa Monica City Council
adopted Ordinance No. 2008 (CCS) § 1, adding Chapter 4.68
to the Santa Monica Municipal Code, on May 8, 2001. Chap-
ter 4.68, known as the Community Events Ordinance (the
“Events Ordinance”), establishes a permitting process for
community events held in public spaces including parks,
streets, and sidewalks. The Events Ordinance was amended
on November 13, 2001, by Ordinance No. 2024 (CCS), and
again on April 22, 2003, by Ordinance No. 2073 (CCS). The
most recent amendment occurred after appellants had filed
their complaint.
The Events Ordinance specifically provides that “[t]he City
Manager, or his/her designee, shall adopt administrative regu-
lations that are consistent with and that further the terms and
requirements set forth within this Chapter.” SMMC
§ 4.68.200. Pursuant to this provision, the City Manager
issued Administrative Instruction No. II-4-4 (the “Instruc-
tion”),3 on June 7, 2001, to aid Santa Monica’s staff in imple-
menting the Events Ordinance. The Instruction has been
amended three times, on July 7, 2003, on July 15, 2003, and,
most recently, on February 8, 2005.
3
Unless otherwise specified, all references to the Instruction are to the
February 8, 2005 version in effect at the time this case was argued before
this Court. See Instruction, http://santa-monica.org/ccs/events/pdf/ii-~4-
4.pdf (last visited May 8, 2006).
6656 SANTA MONICA FOOD v. CITY OF SANTA MONICA
The Events Ordinance requires that permits be obtained for
three categories of community events:
(a) A parade, procession, march or assembly
consisting of persons, animals, vehicles, or any other
combination thereof, which is to assemble or travel
in unison on any public street, highway, alley, side-
walk or other City-designated public way and which
either (1) may impede, obstruct, impair or interfere
with free use of such public street, highway, alley,
sidewalk, or other public way . . . or (2) does not
comply with normal or usual traffic regulations or
controls;
(b) Any activity or event involving one hundred
fifty or more persons on City owned, controlled, or
maintained property not subject to the requirements
of subsection (a) of this Section;
(c) Any activity or event on public property
which requires the placement of a tent, canopy, or
other temporary structure if that placement requires
a permit from the City Fire Department or Building
and Safety Division.
SMMC § 4.68.040. As to subsection (a), the Instruction states
that marches, processions, walks, runs, and assemblies on
public sidewalks or park paths require a permit only if the
event “is likely to . . . interfere with the free use of any public
way by others . . . or not comply with traffic regulations.”
Instruction at 23 (Section V(4)). Further, the Instruction sets
out a “safe harbor” provision which establishes that a march,
procession, walk, run, or assembly “will not interfere with the
free use by others,” and does not require a permit, if the group
consists of 500 or fewer people and the participants
“[a]ssemble, march, walk, or run in groups of less than 50, 2
abreast (to create spacing between groups), and give way to
others they encounter on the public way.” Id. To avail itself
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6657
of this safe harbor, the group must obey all traffic and park
regulations and must not obstruct traffic flow. Id. As to sub-
section (b), the Instruction provides that “[f]or purposes of
this subsection, any activity or event which the applicant
intends to advertise in advance via radio, television and/or
widely-distributed print media shall be deemed to be an activ-
ity or event of 150 or more persons” Id. at 5 (Section
III(1)(b)).
The Instruction separates events into three categories,
which do not track precisely the categories in the Events Ordi-
nance: Category 1, which encompasses non-expressive
events, and Categories 2 and 3, which include all expressive
events. Id. at 5-6 (Section III(2)(a)-(c)).4 Category 2 events
are “[e]vents not included within Category 1 . . . but which
require a permit from Building and Safety and/or the Fire
Department.” Id. at 6 (Section III(2)(b)).5 Category 3 events
are “[e]vents not included within Categories 1 and 2.” Id.
(Section III(2)(c)). Category 2 events require, at a minimum,
three business days advance application to obtain a permit;
Category 3 events, those most central to this case, require at
least two days advance application. Id. at 11-12 (Section
4
As provided by the Instruction, Category 1 events are those involving:
recreation (e.g., games, arts [and] crafts activities, reunions, birth-
day parties, participatory dances)[;] competition/contests (e.g.,
surfing contests, sand castle building)[;] spectator sports (e.g.,
beach volleyball, hockey, basketball)[;] athletic events (e.g.,
races, runs)[;] circuses, fairs and carnivals (e.g., booths, games,
rides and similar amusements)[;] food-related events (e.g., barbe-
ques, cook-offs, picnics, food distribution, food festivals)[;] sales/
trade shows/business promotions (e.g., crafts shows, antique
shows, merchandise sales or exhibits, product launches)[;] beach/
park clean-ups[; and] training activities (e.g., corporate sessions,
team-building activities).
Instruction at 5-6 (Section III(2)(a)).
5
Such permits may be required, for example, for an event involving
temporary structures, open flames or candles, cooking, liquid petroleum
gas, or pyrotechnics. Instruction at 28 (Section VII(4)).
6658 SANTA MONICA FOOD v. CITY OF SANTA MONICA
IV(1)(b)-(c)). Under the Events Ordinance, a permit is not
required for “[s]pontaneous events which are occasioned by
news or affairs coming into public knowledge less than forty-
eight hours prior to such event[s],” if such events are con-
ducted on the lawn of City Hall. SMMC § 4.68.040(g).
To receive a permit, one must submit an application that
describes the event, the area, and the manner in which public
property will be used and that also provides contact informa-
tion for the event’s organizers. Id. § 4.68.050. The Events
Ordinance directs that “the Community Events Committee
shall issue” a permit if certain enumerated criteria are met. Id.
§ 4.68.060 (emphasis added). The ordinance also specifies the
bases upon which a permit shall be denied or revoked. Id.
§ 4.68.070. As required by the ordinance, the Instruction also
spells out the timing of the review process, establishing
response times that depend upon when an application is sub-
mitted. Id. § 4.68.050(c); Instruction at 47-52 (Section X). For
example, if an application for a Category 3 event is submitted
between two and ten days prior to the proposed event, a deci-
sion on review must be given within two days of the submis-
sion. Instruction at 11-12 (Section IV(1)(c)), 51 (Section X).
Any permit applicant aggrieved by an adverse decision may
appeal to the Chairperson of the Community Events Commit-
tee within five business days of the decision; the Chairperson
is directed to decide that appeal within one working day.
SMMC § 4.68.090.
The Events Ordinance imposes certain additional obliga-
tions on permittees. Under it, every permittee must execute an
indemnification agreement with Santa Monica agreeing to
“defend, indemnify, and hold harmless the City against losses
and liabilities incurred from the conduct of the permittee or its
officers, employees, and agents.” Id. § 4.68.110. Unless other-
wise exempt — either because prohibited by law or pursuant
to the regulations implementing Chapter 4.68 — each permit-
tee must also obtain insurance “that the Risk Manager deter-
mines to be necessary and adequate under the circumstances.”
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6659
Id. § 4.68.120(a). The Instruction provides that organizers of
expressive events who comply with the indemnification pro-
vision “will not be required to meet the insurance require-
ments . . . unless there is a specific, demonstrable history of
personal injury or property damage claims being awarded
against the applicant attributable to the applicant’s conduct of
previous events in the City that are similar in nature to the
proposed event.” Instruction at 35 (Section VII(14)(g)). Fur-
ther, “[i]n addition to the payment of the non-refundable per-
mit application fee and as detailed in the administrative
guidelines . . . , a permittee shall pay the City for City depart-
mental service charges incurred in connection with or due to
the permittee’s activities under the permit.” SMMC
§ 4.68.140. The Instruction specifies how these departmental
service charges are calculated. Instruction at 36-39 (Section
VIII(1)). There is an indigency exception, with fairly complex
requirements, to the application fee and service fee require-
ments, but not to the indemnification provision. SMMC
§§ 4.68.080(b)-(c), 4.68.140(c)-(d), & 4.68.120.
In the two years between the adoption of the present system
and the summary judgment hearing, almost 190 permit appli-
cations were processed. According to the City, of the 190,
only two such applications were denied.6
2. The Street Banner Ordinance
On May 8, 2001, as part of Ordinance No. 2008 (CCS),
which established the Events Ordinance, the Santa Monica
City Council also amended SMMC § 4.08.490 (prohibiting
street banners) and SMMC § 4.08.500 (providing exceptions
6
Santa Monica offers the following explanations regarding the denied
permits: The first was denied because the applicant wanted to use an entire
major arterial street, Ocean Avenue, during peak traffic hours; the City
suggested that the demonstration be moved to off-peak hours or onto the
sidewalk, but the applicant refused these alternatives. The other denial
occurred when an applicant applied only one day before the event.
6660 SANTA MONICA FOOD v. CITY OF SANTA MONICA
to the street banner prohibition). On February 24, 2004, how-
ever, the Santa Monica City Council amended the ordinance
to allow street banners only for city-produced or city co-
produced events. The exceptions to the general ban on street
banners provided for in the earlier version of SMMC
§ 4.08.500 were stricken.
3. The Food Distribution Ordinance
On October 22, 2002, the Santa Monica City Council
adopted Ordinance No. 2055 (CCS), which added two provi-
sions to the municipal code regarding the distribution of food.
The first food distribution ordinance, SMMC § 5.06.010
(Oct. 22, 2002), concerned public parks and stated that:
Any person who serves or distributes food to the
public in City parks or on the City Hall lawn must:
(a) comply with applicable state health and
safety standards regulating food service and distribu-
tion, including, but not limited to, the requirements
of obtaining and displaying a valid permit from the
Los Angeles County Department of Health which
includes City approval as to location; and
(b) comply with all applicable requirements of
the City of Santa Monica’s Community Events Law.
The second food distribution ordinance, SMMC § 5.06.020
(Oct. 22, 2002), concerned distribution of food on public
streets and sidewalks. That provision declared:
No person shall distribute or serve food to the
public on a public street or sidewalk without City
authorization. Any person violating this Section shall
be guilty of a misdemeanor which shall be punish-
able by a fine not exceeding One Thousand Dollars
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6661
per violation, or by imprisonment in the County Jail
for a period not exceeding six months, or by both
such fine and imprisonment.
On February 24, 2004, the Santa Monica City Council
amended both food distribution provisions. With respect to
the October 22, 2002 version of SMMC § 5.06.010 (public
parks), the City added language clarifying that “City approv-
al” meant approval “pursuant to State guidelines administered
by Los Angeles County and guidelines adopted by the City.”
SMMC § 5.06.010(a). Additionally, the amended ordinance
clarifies that compliance with Santa Monica’s Park Mainte-
nance Code is necessary.
With respect to the October 22, 2002 version of SMMC
§ 5.06.020 (public sidewalks), the Council clarified that City
authorization could come “in the form of a vending permit,
use permit, outdoor dining license or community event per-
mit.” SMMC § 5.06.020. Of particular import to this case, the
ordinance now states that “no permit or license shall be
required for a noncommercial food distribution that does not
interfere with the free use of the sidewalk or street by pedes-
trian or vehicular traffic.” Id. (emphasis added).
B. Appellants7
The appellants are several plaintiffs who, together, chal-
lenged these ordinances and regulations. As their standing is
at issue, we briefly describe each.
Plaintiff Santa Monica Food Not Bombs is an unincorpo-
rated association that seeks to highlight a “connection
between the lack of food for the poor and war-preparation
activities of the United States government.” The organization
“regularly provides meals to homeless residents of the City of
7
To simplify matters, when we refer to appellants collectively we allude
to them as “Food Not Bombs.”
6662 SANTA MONICA FOOD v. CITY OF SANTA MONICA
Santa Monica.” One of its organizers, Peggy Lee Kennedy,
declared that in so doing they “have never been told [that
they] have impeded anyone’s passage on the sidewalks or
other public ways.” On January 3, 2003, the organization
helped set up a march from Palisades Park to the Third Street
Promenade. The marchers distributed lollipops emblazoned
with messages such as “War Sucks.” The march was meant,
in part, to protest Santa Monica’s food distribution ordinance
as applied to sidewalks.
Also, the organization has participated in several protests
on the lawn of the Santa Monica City Hall and often plans or
participates in spontaneous demonstrations. For example, on
February 15, 2003, the group participated in an event called
“Peace on the Beach” in Santa Monica. In April 2003, a Santa
Monica Park Ranger told the group that Santa Monica
intended to start enforcement of the challenged ordinances
and that in the future the group would need to comply with
the permitting ordinance.
Plaintiff INTERNATIONAL ANSWER/LOS ANGELES
(“ANSWER”) is an organization that secured permits and
scheduled a number of demonstrations in the City of Los
Angeles in 2003. ANSWER has also participated in several
spontaneous demonstrations without a permit, such as a
march in Hollywood following the outbreak of the war in
Iraq. ANSWER would like to hold a march in Santa Monica
but has chosen other locations instead because of the permit
requirements, which it regards as overly cumbersome. Also,
ANSWER claims that Santa Monica’s “spontaneous event”
policy is inconsistent with the way the group organizes
events; it might prefer, for example, to hold a spontaneous
demonstration near a hotel where a public figure is speaking,
rather than on the City Hall lawn.
Plaintiff Deborah Baxter is a Religious Science Practitioner
and one of the coordinators of Hand-to-Hand Hunger Project
(the “Project”). The Project serves food to homeless and some
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6663
non-homeless people in front of City Hall on Saturdays and
city holidays. According to Baxter, the Project has never
obstructed entry to City Hall. Baxter has participated in sev-
eral protests in front of City Hall challenging the food distri-
bution ordinance as applied to public sidewalks.
Plaintiff Moira LaMountain is a coordinating member of
Helping Other People Eat (“HOPE”). HOPE serves meals
twice a week, fifty weeks a year in Palisades Park. LaMoun-
tain does not believe it would be economically feasible for
HOPE to comply with Santa Monica’s ordinances because to
do so the organization would have “to provide toilets and hot
and cold running water among other things.”8 LaMountain
does not believe the state regulations apply to HOPE but fears
that she will be jailed under the ordinances. HOPE also partic-
ipated in the January 3, 2003 march from Palisades Park to
the Third Street Promenade.
Plaintiff Christine Schanes is a founder and leader of Chil-
dren Helping Poor and Homeless People (“CHPHP”). CHPHP
regularly serves food to homeless people in Santa Monica,
both at Memorial Park and on public sidewalks. Schanes
reports that on June 23, 2003, a member of CHPHP was told
by a Santa Monica Park Ranger that the group could not serve
food at Memorial Park without a permit from the County
Health Department. Schanes fears being prosecuted for a mis-
demeanor because she regularly gives out food to homeless
people on sidewalks.
C. Lower Court Proceedings
On January 3, 2003 — the same day as the abovementioned
march from Palisades Park to the Third Street Promenade —
Food Not Bombs filed a complaint seeking, as here pertinent:
8
LaMountain offers no explanation as to why she thinks that the appli-
cable ordinances so required, and it is not apparent from the record that
they did.
6664 SANTA MONICA FOOD v. CITY OF SANTA MONICA
(1) declaratory and injunctive relief under the First and Four-
teenth Amendment and 42 U.S.C. § 1983; (2) declaratory and
injunctive relief under analogous provisions of the California
Constitution;9 and (3) declaratory and injunctive relief under
state statutory law, on the ground that certain aspects of the
challenged ordinances are preempted by state law.10 On
August 11, 2003, the district court granted Santa Monica’s
motion for summary judgment,11 adopting, for the most part,
the defendants’ proposed Statement of Uncontroverted Facts
and Conclusions of Law and declining to hold any aspect of
the challenged ordinances facially unconstitutional. Food Not
Bombs appealed to this Court.
II. ANALYSIS
A. Street Banner and Food Distribution Ordinances
As a preliminary matter, we must clarify which, if any, of
the original challenges to the street banner and food distribu-
tion ordinances are still live. “We must review the judgment
of the District Court in light of [the] law as it now stands, not
as it stood when the judgment below was entered.” Diffender-
fer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412,
414 (1972) (per curiam); Lathan v. Volpe, 455 F.2d 1111,
1123 (9th Cir. 1971) (citing Diffenderfer); see also Naturist
Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992)
(“Where a law is amended so as to remove its challenged fea-
tures, the claim for injunctive relief becomes moot as to those
features.”).
9
The analogous free speech claims under the California Constitution
either were abandoned by Food Not Bombs in the Memorandum of Points
and Authorities to the district court or have not been asserted here.
10
The complaint contained a prayer for damages, but Food Not Bombs
now seeks only prospective relief.
11
The motion for summary judgment was filed by Santa Monica, Susan
McCarthy, Santa Monica City Manager, and James Butts, Santa Monica
Chief of Police. We refer to appellees collectively as “Santa Monica.”
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6665
[1] As Food Not Bombs recognizes, the February 24, 2004
amendments to the street banner ordinance render the original
challenge to that ordinance — premised on the distinctions
drawn by providing exceptions for some private speech but
not others — no longer viable. By precluding all private par-
ties from putting up street banners and limiting such “banner-
ing” to the City itself, the Council has now closed the
designated public forum in which appellants sought to exer-
cise their rights. See Currier v. Potter, 379 F.3d 716, 728 (9th
Cir. 2004) (noting that the government may close a designated
public forum “whenever it wants”), cert. denied sub nom.
Seattle Hous. & Res. Effort v. Potter, 125 S. Ct. 2935 (2005);
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 46 (1983) (“[A] state is not required to indefinitely retain
the open character of the [designated public forum] . . . .”). As
the challenge to the street banner ordinance is moot, we
vacate the district court’s judgment insofar as it upheld the
validity of that ordinance. See U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 24-25 (1994) (noting that
vacatur is appropriate where “mootness results from unilateral
action of the party who prevailed below”); Internal Revenue
Serv. v. Pattullo (In re Pattullo), 271 F.3d 898, 902 (9th Cir.
2001) (same).
[2] Similarly, as Food Not Bombs also recognizes, amend-
ments made subsequent to the filing of this suit render moot
the challenge to the food distribution ordinance concerning
city sidewalks, SMMC § 5.06.020. That ordinance as it now
stands allows appellants to do precisely what they sought to
do — engage in non-commercial food distribution on public
sidewalks. As appellants have therefore abandoned any chal-
lenge to this food distribution ordinance, we vacate the district
court’s judgment insofar as it upheld its validity.
[3] While Food Not Bombs’ First Amendment challenge to
the ordinance concerning distribution of food in public parks,
SMMC § 5.06.010, is not moot, a facial challenge to that ordi-
nance is not available. Food Not Bombs does not argue that
6666 SANTA MONICA FOOD v. CITY OF SANTA MONICA
food distribution is on its face an expressive activity. See
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
n.5 (1984) (“Although it is common to place the burden upon
the Government to justify impingements on First Amendment
interests, it is the obligation of the person desiring to engage
in assertedly expressive conduct to demonstrate that the First
Amendment even applies.”); Roulette v. City of Seattle, 97
F.3d 300, 305 (9th Cir. 1996) (“By its terms, the ordinance
here prohibits only sitting or lying on the sidewalk. . . .
[T]hese are not forms of conduct integral to, or commonly
associated with, expression. We therefore reject plaintiffs’
facial attack on the ordinance.”). Whether food distribution
can be expressive activity protected by the First Amendment
under particular circumstances is a question to be decided in
an as-applied challenge, should one be brought. See S. Or.
Barter Fair v. Jackson County, 372 F.3d 1128, 1135 (9th Cir.
2004) (“[A] facial challenge is proper only if the statute by its
terms seeks to regulate spoken words or patently expressive
or communicative conduct, such as picketing or handbilling,
or if the statute significantly restricts opportunities for expres-
sion.” (citations omitted)), cert. denied, 126 S. Ct. 367 (2005);
Nordyke v. King, 319 F.3d 1185, 1189 (9th Cir. 2003) (noting
that the inquiry into whether the possession of firearms is an
expressive activity is best suited to an as-applied challenge).
[4] Food Not Bombs’ challenge also asserts state preemp-
tion of SMMC § 5.06.010.12 Under California law, “ ‘[a] con-
flict [between a local ordinance and state law] exists [only] if
the local legislation [1] duplicates, [2] contradicts, or [3]
enters an area fully occupied by general law, either expressly
or by legislative implication.’ ” S.D. Meyers, Inc. v. City &
County of San Francisco, 336 F.3d 1174, 1177 (9th Cir. 2003)
(last four alterations in original) (quoting Sherwin-Williams
Co. v. City of Los Angeles, 844 P.2d 534, 536 (Cal. 1993)).
The food distribution ordinance does not substantively dupli-
12
It is clear that appellants, who regularly distribute food in city parks,
have standing to assert this portion of their argument.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6667
cate or contradict state law; it simply states, for the public’s
information, that state law pertaining to food distribution
applies in Santa Monica’s public parks and on the City Hall
lawn. SMMC § 5.06.010 (providing that distributors of free
food must comply with “[a]pplicable State health and safety
standards regulating food service and distribution”). The ordi-
nance also does not duplicate or contradict the enforcement
provisions of state law, as it includes no provision regarding
the enforcement of state law. In any event, the state law
enforcement provision vests primary enforcement authority in
local agencies. See CAL. HEALTH & SAFETY CODE § 113725.13
Finally, it is not at all clear that the preemption provision cited
by Food Not Bombs, id. § 113705, even applies to this sort of
ordinance, as it purports to preempt only local regulation of
“retail food facilities.” Because it adds no substantive regula-
tions and contains no enforcement provisions, the ordinance
does not intrude on the field covered by the state law health
and safety preemption provision.
B. The Community Events Ordinance
The remaining challenges in this case concern various sec-
tions of the Community Events Ordinance, SMMC
§§ 4.68.010-.220.
1. Standing
[5] To maintain their challenge to the provisions of the
Events Ordinance, or the implementing administrative inter-
pretation, appellants must establish constitutional standing
with regard to the provisions challenged. See Allen v. Wright,
468 U.S. 737, 750-51 (1984). To do so, they must allege (1)
a “distinct and palpable” injury-in-fact that is (2) “fairly trace-
able” to the challenged provision or interpretation and (3)
13
Section 113725 provides: “[p]rimary responsibility for enforcement of
this chapter shall be with local health agencies.” CAL. HEALTH & SAFETY
CODE § 113725.
6668 SANTA MONICA FOOD v. CITY OF SANTA MONICA
would “likely . . . be redressed” by a favorable decision. Id.
at 751 (internal quotation marks omitted).
Additionally, special standing principles apply in First
Amendment cases. Facial constitutional challenges come in
two varieties: First, a plaintiff seeking to vindicate his own
constitutional rights may argue that an ordinance “is unconsti-
tutionally vague or . . . impermissibly restricts a protected
activity.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th
Cir. 1998); see Nunez v. City of San Diego, 114 F.3d 935, 949
(9th Cir. 1997) (“Plaintiffs may seek directly on their own
behalf the facial invalidation of overly broad statutes that
‘create an unacceptable risk of the suppression of ideas
. . . .’ ” (quoting Sec’y of Md. v. Joseph H. Munson Co., 467
U.S. 947, 965 n.13 (1984))). Second, “an individual whose
own speech or expressive conduct may validly be prohibited
or sanctioned is permitted to challenge a statute on its face
because it also threatens others not before the court.” Brockett
v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1984); see
NAACP v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir.
1985). The former sort of challenge — which, as will become
clear, is what we have here — may be paired with the more
common as-applied challenge, where a plaintiff argues that
the law is unconstitutional as applied to his own speech or
expressive conduct. See Foti, 146 F.3d at 635; see also City
of Richmond, 743 F.2d at 1352 (“[The NAACP] argues both
that its own activity is protected by the first amendment and
that the Richmond ordinance impermissibly suppresses the
speech of all potential marchers.”). It is within this framework
that appellants must and do establish standing.
ANSWER organizes marches and demonstrations and has
obtained permits to do so in other localities besides Santa
Monica. Its intended activities arguably require a permit
under SMMC § 4.68.040, both because the activities are often
“marches” or “assemblies” and because ANSWER publicizes
events widely to ensure maximum attendance. ANSWER spe-
cifically avers that it would like to hold a march that starts in
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6669
Santa Monica and has pursued other locations only because of
the burden of the City’s permit requirements. ANSWER also
declares that its practice of organizing spontaneous events is
inconsistent with Santa Monica’s spontaneous expression
exception, SMMC § 4.68.040(g), because it may want to hold
a spontaneous event that is close to the target of its protest.
That ANSWER has never applied for a permit under the
Events Ordinance does not destroy its standing. See City of
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56
(1988) (“[O]ne who is subject to the law may challenge it
facially without the necessity of first applying for, and being
denied, a license.”). Furthermore, ANSWER avers that it has
modified its behavior (by choosing locations other than Santa
Monica for events) because of Santa Monica’s permit require-
ments. See Ariz. Right to Life Political Action Comm. v. Bay-
less, 320 F.3d 1002, 1006 (9th Cir. 2003) (“[I]t is ‘sufficient
for standing purposes that the plaintiff intends to engage in a
course of conduct arguably affected with a constitutional
interest and that there is a credible threat that the challenged
provision will be invoked against the plaintiff.’ ” (quoting
LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000)
(internal quotation marks and citation omitted))).
[6] In short, ANSWER’s apprehension that the Events
Ordinance would be enforced against it for engaging in activi-
ties protected by the First Amendment without a permit is suf-
ficient to establish an injury-in-fact and support a facial
challenge. The remaining prongs of the constitutional stand-
ing requirements are also met, as the injury alleged is “fairly
traceable” to the Events Ordinance and would likely be
redressed by a decision in appellants’ favor. ANSWER there-
fore has standing to bring a facial challenge to the Events
Ordinance on its own behalf. See id. at 1007.
Appellants also seek to assert the rights of third parties not
present to the litigation through an overbreadth facial chal-
lenge to the Events Ordinance. We need not address the avail-
6670 SANTA MONICA FOOD v. CITY OF SANTA MONICA
ability of such a challenge, as ANSWER has standing to bring
a facial challenge to all the pertinent aspects of the ordinance
on its own behalf. See Nunez, 114 F.3d at 949 (noting that
“whether the ‘overbreadth doctrine’ applies to [plaintiffs’]
First Amendment challenge is more of a technical academic
point than a practical concern”).
[7] As we conclude that ANSWER has standing, there is no
need to inquire further about the injury-in-fact standing of the
other appellants. See Planned Parenthood of Idaho, Inc. v.
Wasden, 376 F.3d 908, 918 (9th Cir. 2004), cert. denied, 125
S. Ct. 1694 (2005).
2. Permitting Requirements Under the Events
Ordinance
a. Review Includes the Administrative Instruction
Before addressing the merits of Food Not Bombs’ chal-
lenge to the Events Ordinance, we must take another detour
and address the scope of this facial challenge. At oral argu-
ment, there was some confusion over the role played by the
Administrative Instruction. On the one hand, the Events Ordi-
nance does call for promulgation of “administrative regula-
tions that are consistent with and that further the terms and
requirements set forth within this Chapter.” SMMC
§ 4.68.200. On the other hand, counsel for Santa Monica
stated that although available to the public online, the Instruc-
tion principally is meant to bind staff in their application of
the Events Ordinance, including as a prosecutorial directive.
Appellants’ counsel, for her part, maintained that the Events
Ordinance, not the Instruction, informs the public as to what
the law is.
In like circumstances, it is common to consider a city’s
authoritative interpretation of its guidelines and ordinances.
See Forsyth County v. Nationalist Movement, 505 U.S. 123,
131 (1992) (“In evaluating respondent’s facial challenge, we
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6671
must consider the county’s authoritative constructions of the
ordinance, including its own implementation and interpreta-
tion of it.”); Ward v. Rock Against Racism, 491 U.S. 781,
795-96 (1989) (“Administrative interpretation and implemen-
tation of a regulation are, of course, highly relevant to our
analysis, for ‘[i]n evaluating a facial challenge to a state law,
a federal court must . . . consider any limiting construction
that a state court or enforcement agency has proffered.’ ”
(quoting Hoffman Estates v. The Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494 n.5 (1982) (alterations in original))).
To affect the constitutional analysis, such a limiting construc-
tion must “be made explicit by textual incorporation, binding
judicial or administrative construction, or well-established
practice.” City of Lakewood, 486 U.S. at 770.
[8] The district court found that “[t]he City has adopted
Administrative Instruction II-4-4 . . . as amended July 7,
2003, to provide specific standards and guidelines for imple-
mentation of the Community Events Ordinance.” See Ward,
491 U.S. at 795 (looking to district court’s express findings).
The Instruction is thus binding on the City’s enforcement
staff, as well as explicitly authorized by the ordinance. That
the Instruction has been amended a number of times does not
affect its pertinence, as the amendments, like the original
Instruction, are publicly available. The Instruction is therefore
properly viewed as Santa Monica’s authoritative interpreta-
tion of the Events Ordinance, and we review the constitution-
ality of the ordinance in light of the Instruction.
b. Breadth of the Advance Notice and Permitting
Requirements
[9] The Events Ordinance applies to “ ‘public places’ his-
torically associated with the free exercise of expressive activi-
ties, such as streets, sidewalks, and parks.” United States v.
Grace, 461 U.S. 171, 177 (1983). Such places “are consid-
ered, without more, to be ‘public forums.’ ” Id.; Hague v.
CIO, 307 U.S. 496, 515 (1939) (“[S]treets and parks . . . have
6672 SANTA MONICA FOOD v. CITY OF SANTA MONICA
immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has,
from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens.”); Grossman v. City of Port-
land, 33 F.3d 1200, 1204 (9th Cir. 1994) (describing public
parks as “the quintessential public forums” (internal quotation
marks and citation omitted)).
[10] Notwithstanding the primacy of such areas as locations
for communicative activity among citizens, “in order to regu-
late competing uses of public forums, [local governments]
may impose a permit requirement on those wishing to hold a
march, parade, or rally.” Forsyth County, 505 U.S. at 130.
Such control, however, “[must be] exerted so as not to deny
or unwarrantedly abridge the right of assembly and the oppor-
tunities for the communication of thought and the discussion
of public questions immemorially associated with resort to
public places.” Cox v. New Hampshire, 312 U.S. 569, 574
(1941). As traditional public fora, parks, sidewalks, and
streets “provide a free forum for those who cannot afford
newspaper advertisements, television infomercials, or bill-
boards.” Grossman, 33 F.3d at 1205. Those fora must not be
regulated too restrictively, lest they become unavailable to
those who have little or no recourse to other, often costly,
areas for public discourse.
[11] At the same time, although schemes imposing prior
restraints on protected speech face a “heavy presumption
against validity,” Forsyth County, 505 U.S. at 130 (internal
quotation marks omitted), time, place, and manner regulations
of speech in public areas bear a somewhat lighter burden, so
long as they are content neutral. See id.; see also Thomas v.
Chicago Park Dist., 534 U.S. 316, 322 (2002). Their purpose
is the coordination of use, not the preclusion of particular
expression. Although Food Not Bombs maintains otherwise,
it is apparent that under Thomas, the Events Ordinance must
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6673
be viewed as a content-neutral time, place, and manner per-
mitting scheme, not as a scheme imposing “subject matter
censorship” through prior restraint. See Thomas, 534 U.S. at
322-23 (“ ‘A licensing standard which gives an official
authority to censor the content of a speech differs toto coelo
from one limited by its terms, or by nondiscriminatory prac-
tice, to considerations of public safety and the like.’ ” (quot-
ing Niemotko v. Maryland, 340 U.S. 268, 282 (1951)
(Frankfurter, J., concurring in result))).
This conclusion is compelled by the marked parallels
between the Events Ordinance and the ordinance at issue in
Thomas. In reaching its conclusion that the Thomas permit-
ting ordinance was subject to review under the standard
applied to time, place, and manner regulations, the Supreme
Court noted that (1) “[n]one of the grounds for denying a per-
mit has anything to do with what a speaker might say”; (2)
“the ordinance (unlike the classic censorship scheme) is not
even directed to communicative activity as such, but rather to
all activity conducted in a public park”; and (3) the object of
the permitting scheme was “to coordinate multiple uses of
limited space, to assure preservation of the park facilities, to
prevent uses that are dangerous, unlawful, or impermissible
under the Park District’s rules, and to assure financial
accountability for damage caused by the event” rather than to
exclude expression based on any particular content. Id. at 322.
Although the Events Ordinance differs from that in Thomas
in certain respects, it shares these three characteristics. Addi-
tionally, the provision laying out the criteria governing the
issuance of permits under the Events Ordinance concludes:
In deciding whether to approve an application, no
consideration may be given to the message of the
event, the content of speech, the identity or associa-
tional relationships of the applicant, or to any
assumptions or predictions as to the amount of hos-
tility which may be aroused in the public by the con-
tent of speech or message conveyed by the event.
6674 SANTA MONICA FOOD v. CITY OF SANTA MONICA
SMMC § 4.68.060.14 The Events Ordinance thus falls more
comfortably under the purview of the content-neutral time,
place, and manner regulation category subject to intermediate
scrutiny, than it does under that of the content-based prior
restraint category. Like the ordinance in Thomas, “ ‘[t]he
[permit] required is not the kind of prepublication license
deemed a denial of liberty since the time of John Milton but
a ministerial, police routine for adjusting the rights of citizens
so that the opportunity for effective freedom of speech may
be preserved.’ ” Thomas, 534 U.S. at 323 (second alteration
in original) (quoting Poulos v. New Hampshire, 345 U.S. 395,
403 (1953)).
“[E]ven content-neutral time, place, and manner restric-
tions,” however, “can be applied in such a manner as to stifle
free expression.” Id. In particular, “[a]dvance notice or regis-
tration requirements [can] drastically burden free speech.”
Rosen v. Port of Portland, 641 F.2d 1243, 1249 (9th Cir.
1981). The restrictions therefore “must meet certain constitu-
tional requirements.” Forsyth County, 505 U.S. at 130. Such
restrictions (1) must not delegate overly broad discretion to a
government official; (2) must not be based on the content of
the message; (3) must be narrowly tailored to serve a signifi-
cant governmental interest; and (4) must leave open ample
alternatives for communication. Id.; see also Galvin v. Hay,
374 F.3d 739, 746 (9th Cir. 2004).15
14
Appellants do not raise a discrete challenge to any specific criterion
as providing undue discretion to administrators to engage in content-based
determinations, presumably in light of this provision.
15
Although the ordinance at issue in Thomas had many features similar
to those challenged here, “[t]he Court in Thomas considered only a chal-
lenge to the breadth of official discretion, not ‘[the other] requirements of
[the] time, place, and manner jurisprudence.’ ” Galvin, 374 F.3d at 747 n.5
(quoting Thomas, 534 U.S. at 323 n.3); see also Thomas, 534 U.S. at 323
(“Where the licensing official enjoys unduly broad discretion in determin-
ing whether to grant or deny a permit, there is a risk that he will disfavor
speech based on its content.” (emphasis added)). Appellants here chal-
lenge the “other” requirements of time, place, and manner jurisprudence,
explicitly not at issue in Thomas.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6675
[12] As noted, Food Not Bombs does not identify any of
the permitting criteria as containing a grant of overly broad
discretion. Food Not Bombs, however, does argue that the
Events Ordinance, as implemented by the Instruction, allows
for content-based application because it treats expressive
events more favorably than others. The Instruction, however
does not distinguish among the expressive events based on
their content, and therefore satisfies the content-neutrality
requirement for valid, time, place, and manner regulations.
See City of Richmond, 743 F.2d at 1354 (“The [parade] ordi-
nance requires all speakers, regardless of the content of their
message, to provide . . . advance notice . . . .” (emphasis
added)); Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1155
(9th Cir. 2003) (“A rule is content-neutral if it is unconcerned
with the literal content of the spoken or written words. . . .
[S]peech-regulating rules are content-neutral when the rule is
not related to the subject or topic of the speech.” (internal
quotation marks and citation omitted)). We therefore consider
whether the challenged provisions of the Events Ordinance
are narrowly tailored and leave open ample alternatives for
communication.
(1) Narrow Tailoring
[13] A narrowly-tailored permitting regulation need not be
the least restrictive means of furthering a locality’s asserted
interests. The regulation may not, however, burden substan-
tially more speech than necessary to achieve a scheme’s
important goals. See United States v. Baugh, 187 F.3d 1037,
1043 (9th Cir. 1999). “[T]he requirement of narrow tailoring
is satisfied ‘so long as the . . . regulation promotes a substan-
tial government interest that would be achieved less effec-
tively absent the regulation.’ ” Ward, 491 U.S. at 799 (quoting
United States v. Albertini, 472 U.S. 675, 689 (1985)).
As we have noted, local governments can exercise their
substantial interest in regulating competing uses of traditional
public fora by imposing permitting requirements for certain
6676 SANTA MONICA FOOD v. CITY OF SANTA MONICA
uses. See Cox, 312 U.S. at 574 (“The authority of a munici-
pality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but
rather as one of the means of safeguarding the good order
upon which they ultimately depend.”); Rosen, 641 F.2d at
1247 (“The governmental interest in regulating parades, when
large groups use public streets and disrupt traffic by causing
major arteries to be closed and transportation rerouted, is
apparent.” (emphasis added)); Grossman, 33 F.3d at 1206
(“Some type of permit requirement may be justified in the
case of large groups, where the burden placed on park facili-
ties and the possibility of interference with other park users is
more substantial.”).
Food Not Bombs advances two reasons why the Events
Ordinance is not sufficiently narrowly tailored to those sub-
stantive interests: First, Food Not Bombs contends that
because the advance notice permit requirement is applicable
to groups smaller than 150, the Events Ordinance does not
advance the asserted governmental interest relating to the use
of public spaces by large groups. Second, Food Not Bombs
questions whether the temporal aspect of the two-day advance
notice requirement is sufficiently narrowly tailored. We
address each contention in turn.
(a) As to the first point — the claimed ill-fit with the
asserted governmental interests — Food Not Bombs points to
two different aspects of the Events Ordinance, one pertaining
to the use of streets, sidewalks, and park paths for marches
and similar events and the other applicable to gatherings in
parks and other public spaces.
(i) First, under SMMC § 4.68.040(a), a permit is required
for:
A parade, procession, march or assembly consisting
of persons, animals, vehicles, or any other combina-
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6677
tion thereof, which is to assemble or travel in unison
on any public street, highway, alley, sidewalk or
other City-designated public way and which either
(1) may impede, obstruct, impair or interfere with
free use of such public street, highway, alley, side-
walk, or other public way owned, controlled, or
maintained by the City or (2) does not comply with
the normal or usual traffic regulations or controls
....
(emphases added).
Pursuant to the Instruction, “[a] march, procession, walk,
run, or assembly on public sidewalks or City park paths [is]
. . . required to obtain a . . . [permit] only if it is likely to:
interfere with the free use of any public way . . . or not com-
ply with traffic regulations.” Instruction at 23 (Section V(4))
(emphasis added). The Instruction also provides a “safe har-
bor” to groups potentially affected by this provision, which
applies to only sidewalks and park paths:
[A] march, procession, walk, run or assembly, will
not interfere with the free use by others of a public
sidewalk or City park path and is not required to
obtain a Community Event Permit if the total group
consists of 500 or fewer participants and if all partic-
ipants: [(1)] [a]ssemble, march, walk, or run in
groups of less than 50, 2 abreast (to create spacing
between groups), and give way to others they
encounter on the public way[;] [(2)] do not obstruct
traffic flow[; ] [(3)] obey all traffic regulations[;]
[and (4)] obey all park regulations.
Id. (Section V(4)(a)) (emphases added). Additionally, no per-
mit is required for marches, processions, walks, and runs on
public sidewalks and park paths involving more than 500 but
fewer than 2,000 people, if the event otherwise complies with
the safe harbor requirements and, in addition, the start times
6678 SANTA MONICA FOOD v. CITY OF SANTA MONICA
are staggered, the group gathers at the start and finish of the
event on private property, and the organizers plan for the
parking needs of the event participants. Id. (Section V(4)(b)).
With respect to public ways other than sidewalks or park
paths — essentially, roadways of any kind — the Instruction
contains no limiting construction specifying that permits are
required only for events “likely” to interfere with free use of
the road. Nor does the Instruction contain any specification
concerning when an event on a street, as distinct from a side-
walk or park path, “may impede, obstruct, impair or interfere”
with the free flow of traffic. Instead, for such locations the
Ordinance applies to groups of any size and to any street in
the City, and applies without regard to the group’s expectation
of interference with the free flow of vehicular traffic or to
whether interference actually occurs.
[14] Food Not Bombs argues that because it lacks an
explicit numerical floor, SMMC § 4.68.040(a), as imple-
mented by the Instruction, potentially applies to activities of
small groups of people traveling “in unison” even when the
activities of such small groups do not significantly interfere
with the public’s use of streets, sidewalks, and park paths, and
is therefore insufficiently narrowly tailored. Absent the imple-
menting Instruction pertaining to sidewalks and park paths,
we would agree. As the cautionary language in our earlier
opinions indicates, the significant governmental interest justi-
fying the unusual step of requiring citizens to inform the gov-
ernment in advance of expressive activity has always been
understood to arise only when large groups of people travel
together on streets and sidewalks. See Rosen, 641 F.2d at
1247; see also Grossman, 33 F.3d at 1206; City of Richmond,
743 F.2d at 1355. Small groups, however, can also “march”
and “assemble” for expressive purposes, and can do so with-
out interfering with the free flow of traffic (except in the triv-
ial respect that anyone walking on a public sidewalk or
roadway takes up space and therefore prevents someone else
from traveling precisely the same route). Without a provision
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6679
limiting the permitting requirements to larger groups, or some
other provision tailoring the regulation to events that realisti-
cally present serious traffic, safety, and competing use con-
cerns, significantly beyond those presented on a daily basis by
ordinary use of the streets and sidewalks, a permitting ordi-
nance is insufficiently narrowly tailored to withstand time,
place, and manner scrutiny.
The Sixth Circuit recently so held in American-Arab Anti-
Discrimination Committee v. City of Dearborn, 418 F.3d 600
(6th Cir. 2005). In City of Dearborn, the court considered an
ordinance that applied to “special events,” defined as “any
walkathon, bikeathon, or jogging group or other organized
group having a common purpose or goal, proceeding along a
public street or other public right-of-way.” Id. at 608. The
Dearborn ordinance provided that all “special events,” no
matter the size, had to apply for a permit, which would then
be granted if the city council determined that the event
“[would] not in any manner act so as to breach the peace or
unnecessarily interfere with the public use of the streets, side-
walks, parks and public areas . . . .” Id. at 603. Importing the
analysis employed in Grossman (which concerned small
groups in public parks) to apply to the Dearborn ordinance
(which covered “special events” in streets, parks, and public
areas), the court observed that “[p]ermit schemes and
advance notice requirements that potentially apply to small
groups are nearly always overly broad and lack narrow tailor-
ing.” Id. at 608. The court held that the Dearborn ordinance
was “hopelessly” overbroad because it applied, as does the
ordinance here, to “any procession of people with a common
purpose or goal, whether it be a small group of protestors or
a group of senior citizens walking together to religious ser-
vices.” Id. As such, the Dearborn ordinance was not narrowly
tailored because:
The city of Dearborn’s significant interest in crowd
and traffic control, property maintenance, and pro-
tection of the public welfare is not advanced by the
6680 SANTA MONICA FOOD v. CITY OF SANTA MONICA
application of the Ordinance to small groups. In
most circumstances, the activity of a few people
peaceably using a public right of way for a common
purpose or goal does not trigger the city of Dear-
born’s interest in safety and traffic control.
Id. (citations omitted). The City of Dearborn court also took
umbrage with the fact that the ordinance required small
groups to seek a permit in the first instance; only after a per-
mit was sought was the city council authorized to issue per-
mits to those events that it found would not “unnecessarily
interfere with the public use of the streets, sidewalks, parks
and public areas.” Id. at 603 (emphasis added) (internal quota-
tion marks omitted). In other words, the Dearborn ordinance
presumed an interference with government interests, even
when common sense would dictate otherwise.
[15] We find the reasoning in the City of Dear-
born persuasive and hold that a narrowly tailored permit
requirement must maintain a close relationship between the
size of the event and its likelihood of implicating government
interests. With respect to streets and sidewalks, as distinct
from other public areas, SMMC § 4.68.040(a), like the Dear-
born ordinance, contains no restriction as to the size of the
group. It does, however, provide that organizers of only two
sorts of group events must apply for a permit: (1) those that
“may impede, obstruct, impair or interfere” with the free flow
of traffic or (2) those that “do[ ] not comply with the normal
or usual traffic regulations or controls.” SMMC § 4.68.040(a).
The second permit trigger is narrowly tailored, as its applica-
tion is limited only to events that actually implicate the gov-
ernmental interest in enforcement of established traffic
regulations. The first permit trigger, however, standing alone,
is not narrowly tailored under our precedents and City of
Dearborn, because it lacks any specification as to the size of
the group covered and contains no other sufficiently close tie
to the government interest in the free flow of traffic.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6681
As with the criterion relating to the violation of traffic regu-
lations, it would have been simple enough to tailor the permit-
ting requirement to marches, processions and assemblies that
the organizer expects or intends actually to impede traffic
flow. Other similar Santa Monica ordinances are so limited.
See id. § 5.06.020 (specifying that no permit is required for
“noncommercial food distribution that does not interfere with
the free use of the sidewalk or street” (emphasis added)); id.
§ 3.12.810 (prohibiting any pedestrian from “stand[ing] in any
roadway or street other than in a safety zone or in a cross
walk if such action interferes with the lawful movement of
traffic” (emphasis added)). The Events Ordinance, however,
instead requires organizers of marches, processions and
assemblies, with no further guidance and no limitation as to
the size of the group, to project in advance whether their event
on a public street or sidewalk “may” prove an impediment to
the free flow of traffic.
“May” is a term of nearly infinite elasticity, given the
unbounded variety of human events. While many things are
quite unlikely to happen, almost anything physically possible
“may” happen. Thus, while “[i]n most circumstances, the
activity of a few people peaceably using a public right of way
for a common purpose or goal does not trigger the city[’s] . . .
interest in safety and traffic control,” City of Dearborn, 418
F.3d at 608, unforeseen circumstances “may” result in unin-
tended and unexpected impediment of traffic. For example, a
member of the group could injure herself, necessitating emer-
gency services, or the street or sidewalk could be especially
crowded that day for reasons not connected with the group’s
activities and not predictable. As no organizer of a small
group event can rule out that any of these circumstances
“may” occur, events will be subject to the permitting require-
ment even though, in the vast majority of instances, there will
in fact be no interference with the quotidian traffic norm.
The term “may,” in other words, simply takes in too many
circumstances that do not, as matters actually turn out, impli-
6682 SANTA MONICA FOOD v. CITY OF SANTA MONICA
cate the governmental interests justifying the permitting
requirement. The “may impede” requirement thus does not
prove a meaningful operational distinction between Santa
Monica’s Events Ordinance and the ordinance struck down in
City of Dearborn, and does not cure the absence of any limit-
ing group size threshold.
We observe as well that there are obvious alternative ways
the City could adjust the Events Ordinance so that it is appro-
priately tailored to its asserted interests. A group size specifi-
cation or a limitation to actual impediment, using language
similar to the Food Ordinance, are two examples already men-
tioned. Other possibilities might include a focus on whether
the group plans to interfere with traffic; specification of a sig-
nificantly heightened probability of impediment or obstruc-
tion, beyond what “may” happen; or a prohibition on walking
or assembling directly in the path of traffic on specified road-
ways.
Time, place, and manner restrictions need not, of course, be
the least restrictive alternative available. See Ward, 491 U.S.
at 798. As we have observed in the past, however, where there
are easily available alternative modes of regulation that both
satisfy the government’s substantial, legitimate concerns and
affect considerably less speech than the mode chosen, we are
likely to conclude, as we do here, that the governmental
restriction sweeps in substantially more speech than is neces-
sary to meet the government’s concerns. See Galvin, 374 F.3d
at 753.
[16] With respect to sidewalks and public paths, however,
the Instruction does contain a limiting construction of the
“may impede” requirement. That construction limits the appli-
cation of the “may impede” requirement for sidewalks and
park paths to circumstances in which interference is “likely.”
Instruction at 23 (Section V(4)). It also specifies conditions
under which even relatively large groups can demonstrate
without being deemed “likely” to interfere with the flow of
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6683
traffic. Id. We conclude that these two clarifying additions to
the Events Ordinance sufficiently limit the permit requirement
to those situations in which the significant governmental
interests in regulating conflicting uses of sidewalks and public
paths are in play.
The “likely to interfere” standard provides an objective
standard that, as we read it, applies when a reasonable person
viewing the situation in advance would anticipate significant
interference with the ordinary flow of traffic.16 Whether an
event meets the “likely to interfere” standard will turn on the
reasonable expectations of the organizers of the event, given
the size of the group, the precise plans for the event, whether
the intention is to block traffic or to avoid doing so, and the
predictable conditions at the location and time the organizers
have chosen. The safe harbor provision, in turn, does not
require groups engaged in expressive activity to abide by its
standards, but does establish a definitely ascertainable stan-
dard that, if followed, eliminates any possibility that interfer-
ence will be considered “likely.”
This combination of a general but narrow standard with a
more specific alternative makes for a close fit with the gov-
ernmental interests underlying the permitting requirement. As
noted above, another approach would be to articulate the
requirement in terms of actual interference. But permits must
be obtained in advance. A forward-looking standard that
focuses on a reasonable prediction that there will be — not
just might be — actual interference adjusts for that consider-
ation while not encompassing substantially more speech than
necessary to meet the governmental interests underlying the
permitting requirement.
16
Food Not Bombs does not independently challenge the “interfere”
standard. Our understanding is that the Instruction uses “likely to inter-
fere” as shorthand for “likely to impede, obstruct, impair, or interfere,”
and that that litany, taken as a whole, applies only to activities that signifi-
cantly alter the usual flow of traffic, making it difficult or impossible for
citizens to reach their destinations without hindrance.
6684 SANTA MONICA FOOD v. CITY OF SANTA MONICA
[17] We conclude that the Instruction provides an adequate
limiting construction of SMMC § 4.68.040(a) as applied to
sidewalks and park paths; but, with respect to all other city
streets and public ways, SMMC § 4.68.040(a) is insufficiently
narrowly tailored to withstand constitutional scrutiny.
(ii) Food Not Bombs’ second narrow tailoring challenge
concerns subsection (b) of SMMC § 4.68.040. This subsec-
tion applies to those events not subject to subsection (a) —
that is, not occurring on streets, sidewalks, or public ways —
which involve “one hundred fifty or more persons on City
owned, controlled, or maintained property.”
In public open spaces, unlike on streets and sidewalks, per-
mit requirements serve not to promote traffic flow but only to
regulate competing uses and provide notice to the municipal-
ity of the need for additional public safety and other services.
Only for quite large groups are these interests implicated, so
imposing permitting requirements is permissible only as to
those groups. See Grossman, 33 F.3d at 1205-08 (finding per-
mit requirement potentially applicable to groups as small as
six to eight people insufficiently narrowly tailored); see also
Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996)
(expressing doubt that application of a permit requirement to
groups with as few as ten people is sufficiently narrowly tai-
lored).
[18] Groups of 150 or more, whether demonstrating or
playing soccer, are by any measure sufficiently large enough
to affect or “have an impact on” the use of Santa Monica’s
public spaces by other citizens and therefore to implicate the
City’s interest in maintaining the safe and compatible use of
limited public open space. See Thomas, 534 U.S. at 322
(“[T]o allow unregulated access to all comers could easily
reduce rather than enlarge the park’s utility as a forum for
speech.” (alteration in original) (internal quotation marks
omitted)). We therefore hold that, standing alone, the subsec-
tion (b) permit requirement, applicable only to groups of 150
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6685
or more, is narrowly tailored to Santa Monica’s governmental
interest in allocating use of Santa Monica’s public open space
among competing groups of citizens.17
[19] The related Instruction, however, fatally undermines
this narrow tailoring by mandating that “any activity or event
which the applicant intends to advertise in advance via radio,
television and/or widely-distributed print media shall be
deemed to be an activity or event of 150 or more persons.”
Instruction at 5 (Section III(1)(b)). This provision does more
than simply advise potential event organizers that when they
advertise they cannot be sure of the number of attendees and
that, if more than 149 people actually attend, they will be held
to the permit requirement. Were it so drafted, the Instruction
would simply implement the large group trigger, and its valid-
ity would not be in question. The “shall be deemed” language
of the Instruction, however, precludes reading it as advisory.
Instead, the language creates a per se rule, rendering any
advertised event a qualifying one whether or not 150 or more
people actually attend. As written, the Instruction detaches the
Events Ordinance from the asserted interest of the City in
allocating use of public open space by large groups.18
17
Whether 150 people is the outside limit for a permitting requirement
is a question we do not decide, except to caution that a substantially lower
number may well not comport comfortably with the limited governmental
interests at play in public parks and open spaces.
18
We note that advertising an event in broadly available media is itself
a form of expression protected by the First Amendment. See Metromedia,
Inc. v. City of San Diego, 453 U.S. 490 (1981). To require a permit simply
because an event is advertised is in effect to require a permit to advertise,
based on the content of that advertisement. Whether this application of the
Instruction runs afoul of the First Amendment for reasons independent of
its impact on speech in public fora has not been raised by the parties, and
we need not decide the question here. See Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60, 65 (1983) (“With respect to noncommercial speech,
this Court has sustained content-based restrictions only in the most
extraordinary circumstances.”).
6686 SANTA MONICA FOOD v. CITY OF SANTA MONICA
[20] We conclude that, as implemented by the Instruction,
SMMC § 4.68.040(b) is not a narrowly tailored time, place,
and manner restriction and cannot be enforced. Without the
advertising trigger, however, SMMC § 4.68.040(b) passes
constitutional muster.
[21] (b) We next consider whether the two-day advance
notice requirement applicable to Category 3 events, those
events not encompassed within Categories 1 and 2, is nar-
rowly tailored.
As noted by the Seventh Circuit:
[T]he length of the required period of advance notice
is critical to its reasonableness; and given that the
time required to consider an application will gener-
ally be shorter the smaller the planned demonstration
and that political demonstrations are often engen-
dered by topical events, a very long period of
advance notice with no exception for spontaneous
demonstrations unreasonably limits free speech.
Church of the Am. Knights of the Ku Klux Klan v. City of
Gary, 334 F.3d 676, 682 (7th Cir. 2003). Courts, including
ours, have struck down a variety of advance notice require-
ments on the ground that the length of the required notice
period was too long. See, e.g., City of Dearborn, 418 F.3d
606-07 (striking down a thirty-day advance notice require-
ment for events in parks, on streets, or in other public areas);
City of Gary, 334 F.3d at 682-83 (striking down a forty-five-
day advance notice requirement for demonstrations on city
streets or public property); Douglas, 88 F.3d at 1523-24
(striking down a five-day advance notice requirement for pro-
cessions of ten or more persons on streets, sidewalks, and
public ways on the grounds that it was unjustifiably long and
applied to groups as small as ten); City of Richmond, 743 F.2d
at 1356-57 (striking down a twenty-day advance notice
requirement for parades).
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6687
[22] Conversely, ordinances requiring fewer than three
days advance notice of large expressive events have survived
challenge. See, e.g., A Quaker Action Group v. Morton, 516
F.2d 717, 735 (D.C. Cir. 1975) (approving a two-day advance
notice requirement for planned public gatherings on a desig-
nated area on the grounds of the White House); Powe v.
Miles, 407 F.2d 73, 84 (2d Cir. 1968) (upholding a two-day
advance notice requirement); Local 32B-32J v. Port Auth. of
N.Y. & N.J., 3 F. Supp. 2d 413, 417-22 (S.D.N.Y. 1998)
(upholding a thirty-six-hour advance notice requirement for
expressive activity in the World Trade Center and Port
Authority Bus Terminal).
Food Not Bombs offers two cases in support of its argu-
ment that the two-day advance application requirement is not
narrowly tailored. Both cases — one from our circuit and one
from the Seventh Circuit — involved substantially longer
notice requirements than the requirements imposed by the
Events Ordinance.
In City of Richmond, we held that a twenty-day advance
notice requirement was not the “least restrictive means” for
protecting the city’s asserted interests. 743 F.2d at 1357.19 In
so holding, however, we reviewed ordinances from other cit-
ies with significantly shorter advance notice requirements,
suggesting that an ordinance with an advance notice require-
ment that was quite short could pass muster. See id. at 1356-
57 (citing twenty-four-hour, thirty-six-hour, two-day, and
three-day provisions).20
19
In Ward, decided after City of Richmond, the Supreme Court rejected
the use of the least restrictive means analysis and reaffirmed that “the
requirement of narrow tailoring is satisfied so long as the . . . regulation
promotes a substantial government interest that would be achieved less
effectively absent the regulation.” Ward, 491 U.S. at 798-99 (alteration in
original) (internal quotation marks omitted).
20
At oral argument, counsel indicated that City of Richmond had served
as the guidepost for the City’s two-day advance notice provision.
6688 SANTA MONICA FOOD v. CITY OF SANTA MONICA
In City of Gary, our sister circuit struck down a forty-five-
day advance permit application requirement that applied to
parades, rallies, or demonstrations of groups as small as fifty.
334 F.3d at 682-83. The court noted the “reasonableness in
general of requiring that a permit to hold a demonstration on
city streets be sought in advance of events” but found that the
challenged ordinance suffered from two detectible infirmities:
(1) it failed to incorporate the notion that the smaller the
planned demonstration, the less time a city would need to pro-
cess a permit application, and (2) it provided no exception for
spontaneous demonstrations. Id. at 682.
[23] These two cases, while disapproving of long advance
notice provisions, do not lead us to question Santa Monica’s
two-day requirement. The two-day period (seventy-two-hour
period, if an applicant needs a permit from the Fire or Build-
ing and Safety Departments) accords with Santa Monica’s
significant governmental interests by (1) providing a coordi-
nated process for managing community events in heavily bur-
dened and limited public space, and (2) ensuring that
qualifying events, which often require the provision of public
services, do not impede traffic on sidewalks and busy streets
without the benefit of advance notice to the City. It does take
some time to coordinate the various demands on the streets,
sidewalks, and parks; assess what services (such as additional
police) are needed; contact those services; ensure their avail-
ability; and allow those services to prepare for the events.
Santa Monica’s requirement, while not the shortest possible,
is nearly so. Given that a two-day advance permit requirement
accords with the few advance permitting ordinances previ-
ously cited with approval by federal courts; that it includes an
exemption for spontaneous events, discussed below; and that,
on the present record, the notice requirements have not in
practice constricted substantial amounts of spontaneous
expression, we hold that the two-day notice, on its face, is suf-
ficiently narrowly tailored.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6689
Volume 2 of 2
6690 SANTA MONICA FOOD v. CITY OF SANTA MONICA
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
February 14, 2005—Pasadena, California
Filed June 16, 2006
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Partial Majority Opinion, Partial Concurrence, and
Partial Dissent by Judge Kleinfeld;
Concurrence by Judge Wardlaw
(2) Ample Alternatives
We now consider whether the permitting provisions pre-
serve ample alternative means for communicating protected
expression. As we recently stated, “[i]n the ‘ample alterna-
tives’ context, the Supreme Court has made clear that the First
Amendment requires only that the government refrain from
denying a ‘reasonable opportunity’ for communication.”
Menotti v. City of Seattle, 409 F.3d 1113, 1141 (2005) (quot-
ing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54
(1986)); see Edwards v. City of Coeur d’Alene, 262 F.3d 856,
866 (9th Cir. 2001) (“If an ordinance effectively prevents a
speaker from reaching his intended audience, it fails to leave
open ample alternative means of communication.”); Galvin,
374 F.3d at 755-56 (noting that the ample alternatives prong
can also require an opportunity to speak at a location con-
nected to the message conveyed).
Santa Monica’s spontaneous events exception provides that
“[s]pontaneous events which are occasioned by news or
affairs coming into public knowledge less than forty-eight
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6691
hours prior to such event may be conducted on the lawn of
City Hall without the organizers first having to obtain a Com-
munity Event Permit.” SMMC § 4.68.040(g). Practically
speaking, this exception is necessary only for groups that
would otherwise require a permit — that is, events falling
under section 4.68.040(a) that do not or cannot avail them-
selves of the Instruction’s safe harbor, or events falling under
section 4.68.040(b) because they take place in parks or public
spaces and involve more than 150 people.
Echoing the statement that “[public] protests frequently
occur in response to topical events, and [as such] their effec-
tiveness may depend on both their immediacy and the forum
where they take place,” City of Richmond, 743 F.2d at 1350,
Food Not Bombs stakes out the position that the Events Ordi-
nance fails to preserve ample alternative means of communi-
cation because the exception for spontaneous events (1)
hinges on how recently a matter entered into public knowl-
edge and (2) forecloses affected groups from choosing the
location of their spontaneous expression.21
The spontaneous expression exception expands the amount
of free expression otherwise allowed in public fora under the
Events Ordinance. It makes little sense, therefore, to consider
whether the exception itself is sufficiently narrowly tailored
to the asserted governmental interests. Instead, what we must
consider is whether the Events Ordinance advance notice
requirement, including the spontaneous expression exception,
overall provides adequate alternatives for expression, both
planned and spontaneous.
The strong interest in protecting the opportunity for sponta-
neous expression in public fora with respect to individuals or
small groups has been emphasized by prior cases. See, e.g.,
21
Food Not Bombs also advances similar arguments in support of its
contention that the spontaneous events clause is not narrowly tailored.
Because the arguments are duplicative, we address them all in this section.
6692 SANTA MONICA FOOD v. CITY OF SANTA MONICA
Watchtower Bible & Tract Soc’y, of N.Y., Inc. v. Village of
Stratton, 536 U.S. 150, 165-66 (2002) (“It is offensive — not
only to the values protected by the First Amendment, but to
the very notion of a free society — that in the context of
everyday public discourse a citizen must first inform the gov-
ernment of her desire to speak to her neighbors and then
obtain a permit to do so.”); Grossman, 33 F.3d at 1206-07
(noting the importance of preserving the ability of small
groups to engage in spontaneous expression). Less conclu-
sively decided is the question whether this First Amendment
interest in spontaneous expression is similarly strong with
respect to large groups or mass conduct. See Bayless, 320
F.3d at 1007-14 (striking down a twenty-four-hour advance
notice requirement, applicable to political action campaigns,
as an impermissible burden on protected speech); Rosen, 641
F.2d at 1247-48 (striking down an advance notice requirement
because it reached the conduct of small groups and individu-
als).22
[24] Advance notice or permitting requirements do, by their
very nature, foreclose spontaneous expression. See Grossman,
33 F.3d at 1206 (recognizing that “because of the delay
caused by complying with the permitting procedures,
[i]mmediate speech can no longer respond to immediate
issues” (alteration in original) (internal quotation marks omit-
ted)); City of Richmond, 743 F.2d at 1355 (“[T]he delay inher-
ent in advance notice requirements inhibits speech. By
requiring advance notice, the government outlaws spontane-
ous expression.”); Rosen, 641 F.2d at 1249. Consequently, in
any particular forum, true spontaneous expression and the
application of an advance notice requirement are mutually
exclusive. Groups may be able to engage in expressive con-
duct after the notice period has expired, but the change in tim-
ing will alter the potential impact of their speech. For speech
22
Bayless, which concerned a prior restraint directed at political speech,
applied strict scrutiny. The concerns voiced in that opinion, nevertheless,
are relevant here.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6693
that is truly time sensitive, the precise spontaneous moment
will be lost.
[25] Bayless provides an example of this concern. As we
noted in that case:
Restricting spontaneous political expression places a
severe burden on political speech because, as the
Supreme Court has observed, “timing is of the
essence in politics . . . and when an event occurs, it
is often necessary to have one’s voice heard
promptly, if it is to be considered at all.” To suggest
that the [twenty-four hour] waiting period is minimal
ignores the reality of breakneck political campaign-
ing and the importance of getting the message out in
a timely, or, in some cases, even instantaneous fash-
ion.
Bayless, 320 F.3d at 1008 (citations omitted) (quoting Shut-
tlesworth v. City of Birmingham, 394 U.S. 147, 163 (1969)
(Harlan, J., concurring)); see also City of Richmond, 743 F.2d
at 1356 (“A spontaneous parade expressing a viewpoint on a
topical issue will almost inevitably attract more participants
and more press attention, and generate more emotion, than the
‘same’ parade 20 days later.”). In an era in which peaceful
gatherings of large groups in public spaces to protest breaking
events have resulted in rerun elections, as in the Ukraine, the
importance of allowing such spontaneous public demonstra-
tions cannot be underestimated. We conclude that to comport
with the First Amendment, a permitting ordinance must pro-
vide some alternative for expression concerning fast-breaking
events.
Food Not Bombs argues that limiting the spontaneous
expression exemption to events coming into the public knowl-
edge within the past forty-eight hours makes the ordinance
unconstitutionally burdensome of speech. Were we to decide
that the “spontaneous” event could be based on older news,
6694 SANTA MONICA FOOD v. CITY OF SANTA MONICA
however, the exception would swallow the rule, and event
organizers could simply avoid applying for a permit. The
whole purpose of the spontaneous expression exemption is to
accommodate speech when groups would otherwise be unable
timely to seek a permit. Santa Monica’s exemption serves pre-
cisely this purpose.23
[26] We conclude that where a city has erected a very brief
advance notice requirement and where that requirement is
otherwise limited and properly tailored in its application, a
spontaneous expression exemption that accommodates time-
sensitive expression does not, without more, offend the First
Amendment.
Food Not Bombs’ second basis of attack maintains that the
exemption is inadequate because it opens only the City Hall
lawn to spontaneous expression. The problem, Food Not
Bombs asserts, is that groups that wish to tie their expression
to a particular locale may not do so if they are availing them-
selves of the spontaneous expression exemption.
The ability to communicate a particular message in a par-
ticular location can significantly contribute to the effective-
ness of that communication. See Galvin, 374 F.3d at 750
(“The Court has recognized that location of speech, like other
aspects of presentation, can affect the meaning of communi-
cation and merit First Amendment protection for that rea-
23
Appellants argue that “[i]f a group [ ] learned early Friday that the
newly-elected governor was going to be appearing at an event in Santa
Monica on Sunday afternoon, they would not come within the ‘spontane-
ous’ speech limits if they organize[d] a protest for any time after 9:00 a.m.
on Sunday morning, even if they hold it on City lawn.” Pursuant to the
Instruction, permits for Category 3 events can be obtained from the Com-
munity Events Office during business hours and if that office is closed,
from the Police Department between the hours of 8:00 a.m. and 5:00 p.m.
Instruction at 11 (Section IV(1)(c)(1)), 44 (Section IX(11)(d)), & 50 (Sec-
tion X). The timing of appellants’ hypothetical event would thus allow for
the group to obtain a permit.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6695
son.”); City of Richmond, 743 F.2d at 1350 (noting that
“[certain] protests frequently occur in response to topical
events, and their effectiveness may depend on both their
immediacy and the forum where they take place”). In Galvin,
the court identified a number of ways in which speech or
expression might be tied to a particular location: (1) a location
may be symbolic of the very object of the protest; (2) a loca-
tion may be “one where many people habitually gather, pro-
viding an inexpensive way for individuals with a message to
communicate to reach a general audience composed of a
cross-section of their community”; (3) a location may be “one
at which the particular audience the speaker seeks to reach is
present”; or (4) a location itself may be significant to the con-
tent of the message. Galvin, 374 F.3d at 747-50.
The protection of location-specific speech, while broad, is
not, however, without boundaries. “[T]he First Amendment
does not guarantee the right to communicate one’s views at all
times and places or in any manner that may be desired.” Hef-
fron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S.
640, 647 (1981); see Galvin, 374 F.3d at 751 (“As speakers
may generally control the presentation of their message by
choosing a location for its importance to the meaning of their
speech, they may ordinarily — absent a valid time, place, and
manner restriction — do so in a public forum.” (emphasis
added)).
The question, then, is not whether some limitation of the
ability of groups to engage in spontaneous expression at some
locations in Santa Monica is valid, but whether the particular
exception the City has crafted goes far enough in permitting
outlets for expression when the usual two-day application
deadline cannot be met. Food Not Bombs cites Galvin for
support of the proposition that it does not.
In Galvin, the United States Park Service Police declined
to issue a permit to an advocacy group, Religious Witness
with Homeless People, that applied for one in order to con-
6696 SANTA MONICA FOOD v. CITY OF SANTA MONICA
duct a protest at the San Francisco Presidio National Park. See
374 F.3d at 742. At the protest, held without a permit, the
police forced most of the protesters into alternate “First
Amendment” areas 150 to 175 yards away from the specific
building the protesters had chosen as their protest location. Id.
at 743. We concluded that the particular restrictions the park
police sought to place on where a protest might occur violated
the First Amendment. As framed by Galvin, a regulation fails
to leave open ample alternative means of communication
when “[it] prevents the speakers from expressing their views,
where that expression depends in whole or part on the chosen
location.” Id. at 756 (emphasis added).
For four reasons, the Events Ordinance does not preclude
appellants from effectively expressing place-dependent views:
First, insofar as the speech is not time-sensitive, even large
groups can engage in speech in any public forum location in
the City if they comply with the advance notice/permitting
requirements.
Second, with respect to time-sensitive speech, large groups
have the opportunity to speak on the City Hall lawn, an area
abutting the primary symbol of governmental power and
authority in Santa Monica. That location is likely in most
instances to satisfy the locational interests of those speakers
who wish to discuss public affairs in the City.
Third, the safe harbor provision applicable to sidewalks and
park paths will nearly always satisfy any remaining location-
specific interest connected to spontaneous expression. Groups
as large as 500 are permitted to protest without a permit so
long as they abide by the less-than-fifty, two-abreast forma-
tion. By so doing, they can fully communicate their thoughts
to an audience gathered in a particular location, such as a
hotel or office building, in which a newsworthy event is tak-
ing place. Also, by so doing they can incorporate any location
abutting a city sidewalk as part of their message. Even groups
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6697
as large as 1,999 can partake of this safe harbor as long as
they gather initially in a location in which they do not need
a permit, including — as we understand the Events Ordinance
and Instruction, read together — the City Hall lawn.
Fourth, unorganized gatherings do not fall under the pur-
view of the Events Ordinance. The Events Ordinance, as
exemplified in the Instruction’s permit application procedure,
presumes the existence of an event organizer. See Instruction
at 10-13 (Section IV(1)-(3)). Thus, if a news event or affair
motivates an individual to express his or her views in public,
the individual is under no obligation to obtain a permit.
[27] Given these various outlets for location-specific
speech, we conclude that the Events Ordinance, taken as a
whole and in light of the Instruction, provides ample alterna-
tives for speech.
3. Service Fees
[28] Citing to City of Gary, Food Not Bombs argues that
SMMC § 4.68.140, which allows the City to charge depart-
mental service fees, invites content-based or otherwise
improper fee assessments. On the contrary, the Instruction
provides content-neutral standards for post-event fee assess-
ment, specifying that “[a] permittee shall not be required to
provide for or pay for the cost of public safety personnel who
are present to protect event attendees from hostile members of
the public or counter-demonstrators or for general law
enforcement in the vicinity of the event.” Instruction at 37
(Section VIII(1)(a)); see S. Or. Barter Fair, 372 F.3d at 1141
(“[T]he standard does not allow the governing body to gauge
the reaction the applicant’s message will generate and set the
fee according to the projected costs of policing hostile listen-
ers, a feature the Supreme Court disapproved of in Forsyth as
impermissibly content-based.”); City of Gary, 334 F.3d at 682
(“It is apparent . . . that the requirement of the fee is not based
on a concern with the burden on public services that parades
6698 SANTA MONICA FOOD v. CITY OF SANTA MONICA
and other open-air assemblies impose — a concern that would
be entirely legitimate and would permit the charging of a cost-
based fee.”); see also E. Conn. Citizens Action Group, 723
F.2d at 1056 (finding that an administrative permit fee was
acceptable only to the extent that the official body could dem-
onstrate its necessity in relation to costs that were actually
incurred in connection with processing applications). The
departmental service fee provision therefore withstands con-
stitutional scrutiny.
C. Insurance and Indemnification Provisions
[29] As to the insurance and indemnification provisions, for
reasons that appear in the separate opinions of Judge Klein-
feld and Judge Wardlaw, the majority of the panel is of the
view that the provisions are valid. I, however, do not agree.
This portion of this opinion therefore represents only my own
views, not those of the panel majority.
Appellants argue that the Event Ordinance’s insurance pro-
vision, SMMC § 4.68.120, does not sufficiently cabin official
discretion. They also protest that the indemnification provi-
sion is invalid because it encompasses all suits against the
City, without regard to the merit or outcome of the claims.
Santa Monica, for its part, maintains that (1) the insurance
provision presents no constitutional problem because permit-
tees engaged in protected expression may elect to agree to
indemnify the City instead; and (2) the indemnification agree-
ment requires that the permittee indemnify the City “against
[only those] claims attributable to the acts or omissions of the
permittee.” I respectfully disagree with my colleagues’ con-
clusion that the Event Ordinance’s insurance and indemnity
provisions withstand constitutional scrutiny.
With a valid indemnification alternative, the insurance pro-
vision would present no constitutional problem. The particular
indemnification alternative Santa Monica has adopted, how-
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6699
ever, is not a valid one because, as implemented, it imper-
missibly burdens speech in public places.
Employing a variety of standards, courts have commonly
acknowledged that insurance requirements can indirectly
restrict speech on the basis of its content. See, e.g., E. Conn.
Citizens Action Group v. Powers, 723 F.2d 1050, 1056 n.2
(2d Cir. 1983) (noting that an insurance requirement may
allow for content-based considerations by the third-party
insurance providers); Collin v. Smith, 578 F.2d 1197, 1209
(7th Cir. 1978) (noting that “the [insurance] requirement does
not turn on the content of a proposed demonstration except in
the sense that controversial groups will likely be unable to
obtain insurance, as here.” (emphasis added)); Invisible
Empire of the Knights of the Ku Klux Klan v. Mayor of Thur-
mont, 700 F. Supp. 281, 285 (D. Md. 1988) (noting that the
Ku Klux Klan could not obtain the required special event
insurance because of the controversial nature of the group’s
message); Long Beach Lesbian & Gay Pride, Inc. v. City of
Long Beach, 17 Cal. Rptr. 2d 861, 876-77 (Ct. App. 1993)
(striking down insurance provision in part because “[the pro-
vision’s] delegation of the amount of insurance charges to the
market . . . appears inescapably to create a system of charges
subject to impact and adjustment based on ‘content,’ includ-
ing the element of hostility anticipation”); Mardi Gras of San
Luis Obispo v. City of San Luis Obispo, 189 F. Supp. 2d 1018,
1030 (C.D. Cal. 2002) (following Long Beach). But see
Thomas v. Chicago Park Dist., 227 F.3d 921, 925 (7th Cir.
2000) (upholding an insurance requirement where “[t]he
required amount and the cost of the insurance depend only on
the size of the event and the nature of the facilities involved
in it (a bandstand, stage, tents, and so forth)”), aff’d on other
grounds, 534 U.S. 316 (2002).
The Instruction, pursuant to SMMC § 4.68.120(a), excludes
Category 2 and 3 events — the categories that include expres-
sive activity — from the insurance requirement imposed by
SMMC § 4.68.120, if the applicants agree to indemnify the
6700 SANTA MONICA FOOD v. CITY OF SANTA MONICA
City. Instruction at 35 (Section VII(14)(g)).24 The Instruction
spells out the indemnification agreement as one in which the
permittees
agree[ ] to defend, protect, indemnify and hold the
City, its officers, employees, agents, and volunteers
free and harmless from and against any and all
claims, damages, expenses, loss of liability of any
kind or nature whatsoever resulting from the alleged
willful or negligent acts or omissions of permittee,
its officers, agents, or employees in connection with
the permitted event or activity; and the permit shall
expressly provide that the permittee shall, at permit-
tee’s own cost, risk and expense, defend any and all
claims and all legal actions that my [sic] be com-
menced or filed against the City its officers, agents,
employees, or volunteers, and that the permittee shall
pay any settlement entered into and shall satisfy any
judgment that may be rendered . . . as a result of the
alleged willful or negligent acts or omissions of per-
mittee . . . in connection with the uses, events, or
activities under the permit.
Id. at 35-36 (Section VII(15)) (emphases added). The actual
indemnification agreement, submitted as part of Santa Moni-
ca’s request for judicial notice, contains significantly broader
language, requiring that:
[a permittee] defend, indemnify, and hold harmless
the City of Santa Monica . . . from and against any
and all loss, damages, liability, claims, suits, costs
and expenses, whatsoever, including reasonable
24
In cases where “there is a specific demonstrable history of personal
injury or property damage claims being awarded against the applicant
attributable to the applicant’s conduct of [similar] previous events,” Cate-
gory 2 and 3 event applicants are required to obtain insurance. Instruction
at 35 (Section VII(14)(g)).
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6701
attorney’s fees, regardless of the merit or outcome of
any such claim or suit, resulting from the alleged
acts or omissions of permittee . . . in connection with
the permitted event or activity.
Request for Judicial Notice at 49 (emphasis added).25
“Listeners’ reaction to speech is not a content-neutral basis
for regulation.” Forsyth County v. Nationalist Movement, 505
U.S. 123, 134 (1992). Because of the broad language in the
Instruction and indemnification agreement, the agreement
runs afoul of this basic principle.
In Forsyth County, the Court struck down a provision
allowing a city administrator to assess a fee against permit
applicants based on the cost of protecting persons participat-
ing in and observing covered events. See id. at 134. The pro-
vision was held infirm because the assessed fee would
necessarily depend on the administrator’s estimation of the
hostility “likely to be created by the speech based on its con-
tent.” Id. (emphasis added) (“Those wishing to express views
unpopular with bottle throwers, for example, may have to pay
more for their permit.”).26
25
Although Food Not Bombs argues that the City faces no liability,
there is no reason to decide whether that is so. The indemnification agree-
ment seeks to hold permittees financially responsible for suits not neces-
sarily predicated on any actual liability the City might face.
26
Forsyth County demonstrates the error in Judge Wardlaw’s view that
Santa Monica’s indemnification provision is not impermissibly content
based. As it stands, the indemnification provision is necessarily premised
on the behavior and reactions of third parties. See Forsyth County, 505
U.S. at 134. While the indemnification provision and the actual indemnifi-
cation agreement do not make permittees potentially liable for actions of
hecklers who attend the event, they do not protect permittees from bearing
liability for lawsuits brought by a different sort of heckler who, after the
fact, seeks to make permittees liable for damages for actions which alleg-
edly occurred during the event, whether or not the actions actually
occurred. Also, and most significantly, the indemnification provision and
6702 SANTA MONICA FOOD v. CITY OF SANTA MONICA
Here, the indemnification provision is limited to the costs
of suit and liability premised on a permittee’s own “alleged
willful or negligent acts or omissions.” This limitation might
appear to avoid the problems that made the fees challenged in
Forsyth County unconstitutional. On closer examination,
however, that is not the case.
Under the indemnification provision, permittees are respon-
sible for costs created after the event by litigants seeking to
establish that the permittees owe them damages for something
that allegedly happened during the event. If this indemnifica-
tion provision were limited to meritorious suits concerning
permittees’ actual activities, I would have no problem
approving it. But it is not. Instead, the provision requires per-
mittees to promise to pay for Santa Monica’s legal defense in
cases brought by third parties, based on “alleged,” rather than
actual, “acts or omissions.” So the indemnification require-
ment is not limited to permittees’ actual behavior.
Also, the indemnification provision does not exclude law-
suits against the City triggered by or focused on injuries
caused by the content of purely expressive activity allowed
for by a permit. For example, a retail clothing business
located on one of Santa Monica’s streets could file a lawsuit
against the City alleging economic harm from loss of business
caused by a permitted event protesting the use of sweatshop
agreement are drafted without regard to whether a permittee’s alleged lia-
bility is based on constitutionally protected activity. Permittees, therefore,
might be required to pay the City’s costs for litigating suits brought to
obtain damages caused by the content of their peaceful, constitutionally
protected speech. It would be simple to change the requirement so that
permittees must reimburse the City only for the cost of meritorious law-
suits, which by definition would not permit damages for constitutionally
protected speech and would also remove the threat that permittees will be
subject to an after-the-fact heckler’s veto in the form of a costly, non-
meritorious lawsuit. Without such a fix, the provision is not, in my view,
constitutionally sound.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6703
labor. The indemnification provision would require that an
event organizer, although constitutionally entitled to conduct
his event and to seek to persuade observers to boycott the
retailer, reimburse the City for costs of defending the lawsuit.
The result is that permittees’ speech is contingent on an
agreement to cover costs in an unknown amount, generated by
third parties over whom the speakers have no control and who
may be hostile to them, and who may be seeking damages for
injuries caused solely by the content of constitutionally pro-
tected activity. In other words, as in Forsyth County, those
costs may be premised not on any tort or other wrongdoing
by the permittees, but on the reactions of third parties to the
permittees’ communication. Because the costs generated need
not reflect the permittees’ actual behavior and could be the
result of the content of the permittees’ speech, the indemnifi-
cation provision, like the fee provision in Forsyth County,
exposes event organizers to costs based not on their own acts
or omissions but on costs “associated with the public’s reac-
tion to the speech.” 505 U.S. at 134.
For these reasons, the indemnification provision is not con-
tent neutral. Also for these reasons, the indemnification provi-
sion, despite its limitation to allegations concerning
permittees’ own behavior, is not narrowly tailored to the gov-
ernmental interest in protecting the City from bearing costs
arising from injuries or other liabilities due to the permittees’
wrongful conduct of the event or conditions at the site.
To require that event organizers engaged in constitutionally
protected speech contractually bind themselves to indemnify
the City for the costs associated with wholly meritless suits
brought by third parties is thus constitutionally unsound.
Because I would therefore hold the insurance and indemnifi-
cation provisions invalid, I respectfully dissent on this single
point.
6704 SANTA MONICA FOOD v. CITY OF SANTA MONICA
III. CONCLUSION
In sum, the panel (1) vacates as moot the district court’s
summary judgment with respect to appellants’ challenges to
the street banner ordinance, SMMC § 4.08.490-.500, and to
one of the food distribution ordinances, SMMC § 5.06.020,
and remands to the district court with instructions to dismiss
the relevant claims; (2) affirms the district court’s order with
respect to the other challenged food distribution ordinance,
SMMC § 5.06.010; (3) reverses and vacates the district
court’s order insofar as it upholds the constitutionality of
SMMC § 4.68.040(a), with respect to city streets and public
ways, and holds that the Instruction’s per se publicity provi-
sion, Instruction at 5 (Section III(1)(b)), renders unconstitu-
tional SMMC § 4.68.040(b) and cannot be enforced;27 and (4)
otherwise affirms the district court’s judgment upholding the
Events Ordinance and Instruction.28
VACATED and REMANDED in part; AFFIRMED in
part.
27
We also hold that the indemnification provision is not preempted, as
Santa Monica is not attempting to expand its statutory immunities. See
Societa per Azioni de Navigazione Italia v. City of L.A., 645 P.2d 102,
112-13 (Cal. 1982) (holding that a city may not by ordinance abridge its
duty to provide implied comparative indemnification under the California
Tort Claims Act).
28
The district court did not address the per se publicity provision, as that
provision was added to the Instruction after judgment was entered.
Food Not Bombs also challenged the timelines established by the
Events Ordinance for the issuance of permits and determination of
appeals. In the aftermath of Thomas, we have held that content-neutral
permit schemes need not contain the procedural safeguards required for
content-based schemes. In South Oregon Barter Fair, we held that “[a
content-neutral scheme] need not include either a deadline for consider-
ation by the governing body or a provision for prompt judicial review[,]”
so that “[t]he lack of a permit application deadline [for consideration by
the governing body] is not sufficient to invalidate the Act in a facial chal-
lenge.” S. Or. Barter Fair, 372 F.3d at 1138-39. Therefore, the challenge
to the timelines fails.
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6705
KLEINFELD, Circuit Judge:
I concur in parts of Judge Berzon’s opinion, and dissent
from parts. As to one issue, the ordinance’s hold harmless and
insurance provisions, this separate statement constitutes the
majority opinion of the court.
I concur in the results the majority reaches insofar as the
majority holds that the ordinances, as interpreted and enforced
through the administrative instructions, are constitutionally
permissible. As to those parts, I do not entirely concur in the
opinion itself, largely because dicta goes beyond what we
need to decide.
Under the Constitution, the “judicial power” extends only
to “cases.”1 The case before us here is one in which we have
largely upheld the ordinances and instructions. We do not
have the power to codify the law of public assemblies under
the First Amendment, just to decide this case. I therefore do
not join in the opinion to the extent that it speaks to cases con-
trary to the facts in this case and suggests what the law would
be were we to decide those cases. While I appreciate the util-
ity of clarifying our expression by contrasting other hypotheti-
cal cases in which we might reach different conclusions, we
do not have authority to make law for such other hypothetical
cases or to issue advisory opinions.2
For example, in the analysis portion of the opinion, section
II, subsections A, (B)(2)(a), and (B)(2)(b)(1)(a)(i) strike me as
correct until I get to page 6678, lines 22 through 24, which
say what our view would be if the implementing instruction
were not there. That is a case not before us, and one which we
lack authority to decide. This error is carried forward at page
6681, lines 1, et seq., where we purport to hold unconstitu-
tional an ordinance unaccompanied by the instruction, even
1
U.S. Const. art. III, §2, cl. 1.
2
United Public Workers of America v. Mitchell, 330 U.S. 75, 89 (1947).
6706 SANTA MONICA FOOD v. CITY OF SANTA MONICA
though such an unaccompanied ordinance is not before us for
adjudication. Likewise, we plainly announce in footnote 17
that we are not deciding a question not before us, then issue
a “caution” as though we were. I would leave the issuance of
“cautions” about matters not at issue in the present case to
municipal attorneys. I do not mean to imply that these are the
only dicta or that these are the only dicta that I would not
reach. These statements merely illustrate the types of trou-
bling language that prevent me from joining the majority
opinion.
I do not agree with the holding that the ordinance is uncon-
stitutional, as page 6684, lines 3-5, purports to hold, for “all
other city streets and public ways.” The word “may” that trou-
bles the majority is in a section that requires permits, but does
not condition their issuance.3 Issuance of permits is bounded
by strictly tailored requirements that do not impinge upon
content or viewpoint and legitimately protect the use of public
ways by others while demonstrations and marches proceed.
The organizers of the demonstration are in a far better posi-
tion than the municipality to know whether their planned
activity may impede traffic or violate the traffic regulations.
The permit process necessarily requires uncertain prediction
of the future because permits are obtained before the events.
Requiring a permit for these types of activities protects the
rights of other citizens without unduly burdening those seek-
ing to demonstrate.
3
The full text of this section states “(a) A parade, procession, march or
assembly consisting of persons, animals, vehicles, or any other combina-
tion thereof, which is to assemble or travel in unison on any public street,
highway, alley, sidewalk or other public way and which either (1) may
impede, obstruct, impair or interfere with free use of such public street,
highway, alley, sidewalk, or other public way owned, controlled, or main-
tained by the City or (2) does not comply with normal or usual traffic reg-
ulations or controls.” SMMC §4.68.040(a).
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6707
I. Advertising Provision
I also respectfully dissent from the majority’s conclusion,
found at section II(B)(2)(b)(1)(a)(ii), that the advertising
instruction vitiates the narrow tailoring of the ordinance for
large groups. The ordinance and instruction do not in any way
regulate or limit advertising. The ordinance requires a permit
for assemblies that may impede free use of the public ways
by others or that will not comply with traffic regulations.4 It
also requires a permit for activities involving groups of 150
or more on city property.5 The majority properly concludes
that this permit requirement, as it stands, is constitutionally
permissible because any group this large on city property is
bound to affect use of the property by others equally entitled
to use it. The problem the majority identified is with the
administrative instruction, which deems events publicized
over radio, television or “widely-distributed print media” to
be events with 150 or more people.6 I disagree with the major-
ity’s conclusion that this in some way restricts advertising or
vitiates the narrow tailoring of the ordinance.
As anyone who has organized a demonstration, concert,
lecture, parade, or picnic knows, one cannot predict in
advance how many people will show up. One publicizes the
event and hopes for the best. Turnout is likely to be affected
not only by support for the cause but also by the weather. I
have been to boring lectures with sexy titles or famous speak-
4
Id.
5
Requiring a permit for “[a]ny activity of a group of 150 or more
persons on City owned, controlled, or maintained property.” SMMC
§4.68.040(b).
6
The instruction requires a community events permit for “[a]ny activity
or event of 150 or more persons on City owned, controlled or maintained
property not subject to the requirements in subsection (a) of this section.
For purposes of this subsection, any activity or even which the applicant
intends to advertise via radio, television and/or widely-distributed print
media shall be deemed to be an activity or event of 150 or more persons.”
Administrative Instruction II-4-4 (III)(1)(b).
6708 SANTA MONICA FOOD v. CITY OF SANTA MONICA
ers that had people standing outside the doors just to hear a
little, yet I also went to an appearance by Milton Friedman in
the 1960’s that drew only four faculty members and one stu-
dent. Attendance is inherently unpredictable, but municipali-
ties and event organizers have to do some planning to avoid
the risk of a traffic or public health catastrophe if thousands
of people come to an enormous event that provides no toilets
or causes a traffic jam that prevents people from getting to
work or, perhaps, to voting booths, and blocks ambulances,
police cars, and fire trucks.
The size of a public demonstration cannot be known in
advance, yet has to be predicted somehow in order to properly
provide for public safety and fairly shared use of public prop-
erty. After all, people are entitled to use the public spaces not
only to express political opinions, but also, with every bit as
much entitlement, to go to work, walk their dogs, toss fris-
bees, or get a six pack of beer. This administrative instruction
is a legitimate, common-sense means of channeling the dis-
cretion of administrative personnel, since it is impossible to
predict how big an event will be. The majority cites no case
that would make the advertising instruction unconstitutional
and I see no justification for abridging common sense. Event
organizers who advertise “via radio, television and/or widely-
distributed print media,” as the administrative instruction pro-
vides, are certainly not trying to hold attendance down, as
though it were a wedding reception that cost the bride’s fam-
ily $200 a plate. It can reasonably be inferred from mass
advertising that they are hoping for a large turnout and trying
to get all the people they can.
If the organizers advertise on radio and television without
getting a permit, but in the end get a disappointing turnout of
less than 150 people, they cannot be prosecuted, because,
although the instructions say they should have sought a per-
mit, they have not violated the ordinance itself; a violation
requires that the event on city property actually have “150 or
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6709
more persons.”7 If they advertise widely and hope for the best,
then the neutral permit procedure gives them a safe harbor in
case the advertising attracts a big turnout.
Even if the organizers without a permit ring the bell with
an advertising campaign that draws hundreds of demonstra-
tors, they can still avoid prosecution if they give a little atten-
tion to the ordinance and the rights of other members of the
public. All they have to do under the administrative instruc-
tions is break the demonstration into groups of under 50, walk
two abreast, follow traffic laws, and avoid impeding others.8
That way the commuters, shoppers, and dog walkers can
peacefully pass through. Even groups of up to 1,999 people
can still proceed but with additional restrictions on how the
group is divided up.9
7
Mirro-Dynamics Corp. v. United States, 374 F.2d 14, 16 (9th Cir.
1967) (Citing Hirshon v. United States, 116 F. Supp. 135, 136 (Ct. Cl.
1953), for the proposition that administrative instructions cannot go
beyond the underlying law).
8
Administrative Instruction II-4-4(V)(4)(a) provides that “[a] march,
procession, walk, run or assembly will not interfere with the free use by
others of a public sidewalk or City park path and is not required to obtain
a Community Event Permit if the total group consists of 500 or fewer par-
ticipants and if all participants:
• Assemble, march, walk, or run in groups of less than 50, 2
abreast (to create spacing between groups), and give way to
others they encounter on the public way.
• do not obstruct traffic flow.
• obey all traffic regulations.
• obey all park regulations.”
9
Administrative Instruction II-4-4(V)(4)(b) provides that “[a] march,
procession, walk, or run that exceeds 500 participants, but is less than
2,000 participants, will not interfere with the free use by others of a public
sidewalk or a City park path and is not required to obtain a Community
Event Permit if the requirements of subsection (a) of this Section are met,
if start times are staggered to create spacing between groups, if private
property is used as the start/finish location, and if the event organizer pro-
vides a plan for participants’ parking. All assemblies on a public sidewalk
or park path that exceed 500 participants will require a Community Event
Permit.”
6710 SANTA MONICA FOOD v. CITY OF SANTA MONICA
This is about as narrowly tailored as an ordinance can be,
considering the impossibility of predicting in advance how
successful a demonstration will be. And some such ordinance
is necessary to enable people besides the demonstrators to
make reasonable use of the municipal property on the day of
the demonstration.
II. Hold Harmless Provision
This portion of my separate opinion is joined by Judge
Wardlaw, and is, therefore, the majority opinion of the court.
The ordinance requires permittees to defend the city, to
hold the city harmless from claims arising out of the permit-
tee’s actions,10 and, with exceptions, to provide proof of insur-
ance covering the city for the risks.11 To the extent that the
10
As articulated by the Administrative Instruction: “Each permit for
Category 1, 2, and 3 events shall expressly provide that the permittee
agrees to defend, protect, indemnify and hold the City, its officers,
employees, agents, and volunteers free and harmless from and against any
and all claims, damages, expenses, loss of liability of any kind or nature
whatsoever resulting from the alleged willful or negligent acts or omis-
sions of permittee, its officers, agents, or employees in connection with the
permitted event or activity; and the permit shall expressly provide that the
permittee shall, at permittee’s own cost, risk and expense, defend any and
all claims and all legal actions that may be commenced or filed against the
City, its officers, agents, employees, or volunteers, and that the permittee
shall pay any settlement entered into and shall satisfy any judgment that
may be rendered against the City, its officers, agents, employees, or volun-
teers as a result of the alleged willful or negligent acts or omissions of per-
mittee or permittee’s officers, agents, or employees in connection with the
uses, events, or activities under the permit.” Administrative Instruction II-
4-4(VII)(15).
11
“Except as otherwise prohibited by law or an exemption is obtained
as provided by this Chapter and the implementing regulations, the permit-
tee shall procure and maintain in full force and effect during the term of
the permit a policy of insurance from a reliable insurance company autho-
rized to do business in the state, which policy includes the City, its boards,
officers, agents, employees, and volunteers as named insureds or addi-
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6711
insurance and hold harmless provisions of the ordinance apply
to expressive activity, they are content and viewpoint neutral.
Our dissenting colleague’s concern is that the provisions
require indemnification for conduct that is not the permittee’s
fault. There are two apparent ways (and doubtless more not
so apparent) that such a claim might trigger the requirement.
First, a suit could be non-meritorious or frivolous. Second,
someone could be hurt by the conduct of an opponent of the
demonstration through no fault of the permittee.
These possibilities do not undermine the constitutionality
of the requirement. Liability insurance policies typically obli-
gate the insurer to defend the insured against covered third
party claims even if they are “groundless, false, or fraudu-
lent,” and are typically construed to impose that duty even
when they do not use the “groundless, false, or fraudulent”
phrase.12 The reason is that anyone seeking to be held harm-
less needs such defense, and the groundlessness, falseness, or
fraudulence of the claims cannot be established until the
defense has already been provided. Indemnification, by means
of a hold harmless agreement and liability insurance, by users
of others’s property, is a common condition for the use of
both private and public property. Like liability insurance, it
must protect against both well-founded and unfounded claims
to be useful.
tional named insureds and which provides the coverage that the Risk Man-
ager determines to be necessary and adequate under the circumstances.
Proof of insurance shall be submitted to the City prior to issuance of the
permit and maintenance of this insurance shall be a condition of the per-
mit.” SMMC §4.68.120.
12
Keeton, Robert E. & Alan I. Widiss, Insurance Law: A Guide to Fun-
damental Principles, Legal Doctrines and Commercial Practices 1021-22
(Practitioner’s ed. 1988); Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 271-72
(1966).
6712 SANTA MONICA FOOD v. CITY OF SANTA MONICA
The administrative instructions set out three categories of
events.13 The insurance and hold harmless provisions apply
most generally to non-expressive activities not implicating the
First Amendment such as games, surfing contests, and races.14
13
“There are three principal categories of community events. Different
regulations apply depending on the category. The categories are:
a. Category 1 Events
• recreation (e.g., games, arts & crafts activities, reunions,
birthday parties, participatory dances)
• competition/contests (e.g., surfing contests, sand castle
building)
• spectator sports (e.g., beach volleyball, hockey, basket-
ball)
• athletic events (e.g., races, runs)
• circuses, fairs and carnivals (e.g., booths, games, rides
and similar amusements)
• food-related events (e.g., barbeques, cook-offs, picnics,
food distribution, food festivals)
• sales/trade shows/business promotions (e.g., crafts shows,
antique shows, merchandise sales or exhibits, product
launches)
• beach/park clean-ups
• training activities (e.g., corporate sessions, team-building
activities
b. Category 2 Events
Events not included within Category 1 above but which
require a permit from Building and Safety and/or the Fire
Department as detailed in Section VII (4) and (5) of this
Administrative Instruction.
c. Category 3 Events
Events not included within Categories 1 and 2.”
Administrative Instruction II-4-4 (III)(2).
14
“Category 1 events will be required to provide general liability insur-
ance. The City’s Risk Manager will review the Community Event Permit
applications and may require additional insurance, such as auto, liquor, or
garagekeeper’s liability, if it is deemed necessary.” Administrative
Instruction II-4-4 (VII)(14)(a).
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6713
Political demonstrations generally do not have to provide
insurance “unless there is a specific demonstrable history of
personal injury or property damage claims being awarded
against the applicant attributable to the applicant’s conduct of
previous events in the City that are similar in nature to the
proposed event.”15 Political demonstration organizers can
even avoid both the hold harmless provision and the insurance
provision if they cooperate with the City Manager to design
the event “to respond to specific risks, hazards and dangers to
the public health and safety identified by the City Manager or
his/her designee as being reasonably foreseeable conse-
quences of the permitted event.”16 Thus most demonstration
organizers will not have to provide insurance and even those
with a destructive history can avoid the insurance requirement
if they choose to work with the City Manager to avoid repeti-
tion of past injuries or property damage.
There is no authority for holding such neutral, common-
sense protections against municipal liability unconstitutional.
Our dissenting colleague relies on Forsyth County, Georgia v.
Nationalist Movement,17 but it is not on point. In Forsyth, the
county charged $5 to the Girl Scouts, $25 to a bicycle race,
and $100 to the racist demonstrators.18 By contrast, the ordi-
nance in this case merely protects the county from liability in
the conventional manner of any property owner, with no dis-
cretion for administrators to discriminate by expressive con-
tent or viewpoint.
Thus, I would affirm the district court judgment in full.
15
Administrative Instruction II-4-4 (VII)(14)(g).
16
Id.
17
Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123
(1992).
18
Id. at 132.
6714 SANTA MONICA FOOD v. CITY OF SANTA MONICA
WARDLAW, Circuit Judge, concurring:
I concur in Judge Berzon’s principal opinion, except as to
Part II.C. In my view, the indemnification provision is content
neutral. “In determining whether a regulation is content based
or content neutral, we look to the purpose behind the regula-
tion.” Bartnicki v. Vopper, 532 U.S. 514, 526 (2001); see also
Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1043-44 (9th
Cir. 2002). The purpose of Santa Monica’s indemnification
provision is to protect the public fisc, not to burden particular
speech. A regulation requiring permittees to defend against
suits that result from their own acts or omissions, regardless
of the ultimate success of the suit, does not discriminate based
on the content of the message; nor is it unreasonable. See Cal.
Civ. Code § 2778 (defining default rule in interpretation of
indemnification agreements that the indemnitor pays the cost
of defending claims).
Judge Berzon’s reading of Forsyth County v. Nationalist
Movement, 505 U.S. 123 (1992) is overly broad. In that case,
the ordinance allowed the county administrator to adjust the
size of the permitting fee, based on his perception of the
amount of police protection permittees might require. Id. at
133-34. That standardless, unfettered discretion raised the
specter that “[t]he fee assessed will depend on the administra-
tor’s measure of the amount of hostility likely to be created
by the speech based on its content.” Id. at 134; see also Am.
Civil Liberties Union v. City of Las Vegas, 333 F.3d 1092,
1107-08 (9th Cir. 2003). By contrast, the Santa Monica ordi-
nance does not expose any speaker to risks or costs that are
not equally faced by every other speaker.1 The permittee’s
1
If the provision made permittees responsible for acts or omissions
caused by parties other than the permittee or his agents, or if it placed
unfettered discretion in the hands of government administrators, I might
reach a different conclusion. See Forsyth County, 505 U.S. at 134-35;
Burk v. Augusta-Richmond County, 365 F.3d 1247, 1255 (11th Cir. 2004);
Van Arnam v. GSA, 332 F. Supp. 2d 376, 401 (D. Mass. 2004).
SANTA MONICA FOOD v. CITY OF SANTA MONICA 6715
burden of defending and indemnifying the city, against law-
suits meritorious or not, is the same whether the permittee
advocates against the war in Iraq or against the Da Vinci
Code. Such is the essence of content neutrality. The Santa
Monica indemnification provision might reach further than
necessary to protect the city’s interests, but that is a question
of narrow tailoring. It does not make the provision itself
content-based.
Food Not Bombs failed to raise what might have been the
better argument: that Santa Monica’s content neutral indemni-
fication provision is not narrowly tailored to legitimate gov-
ernment interests. See Ward v. Rock Against Racism, 491 U.S.
781, 798-99 (1989); see also Nationalist Movement v. City of
York, ___ F. Supp. 2d ___, 2006 WL 759645, at *10 (M.D.
Pa. Mar. 24, 2006) (upholding an indemnification requirement
against narrow tailoring challenge); Van Arnam v. GSA, 332
F. Supp. 2d 376, 403-04 (D. Mass. 2004) (striking down an
indemnification requirement as not narrowly tailored).
Because the issue was not argued before the district court or
on appeal, however, it has been waived.
Therefore, I join Judge Kleinfeld in holding that Santa
Monica’s indemnification provision does not violate the First
Amendment.