Gathright v. City of Portland , 439 F.3d 573 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD GATHRIGHT, 
Plaintiff-Appellee,
v. No. 04-35402
CITY OF PORTLAND, Oregon, a  D.C. No.
municipal corporation; PIONEER CV-03-00130-ALH
COURTHOUSE SQUARE, INC., an
Oregon nonprofit corporation,
Defendants-Appellants.

EDWARD GATHRIGHT, 
Plaintiff-Appellee,
v. No. 05-35506
CITY OF PORTLAND, Oregon, a  D.C. No.
CV-03-00130-ALH
municipal corporation; PIONEER
COURTHOUSE SQUARE, INC., an OPINION
Oregon nonprofit corporation,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
September 14, 2005—Portland, Oregon
Filed February 24, 2006
Before: Raymond C. Fisher, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
1977
1978 GATHRIGHT v. CITY OF PORTLAND
Opinion by Judge Fisher
1980 GATHRIGHT v. CITY OF PORTLAND
COUNSEL
Harry Auerbach, Office of City Attorney, Portland, Oregon,
for the defendants-appellants.
Herbert G. Grey (argued) and Kelly E. Ford, Beaverton, Ore-
gon, and John M. Lotz, Daehnke & Cruz, Irvine, California,
for the plaintiff-appellee.
OPINION
FISHER, Circuit Judge:
This case concerns the intersection of two First Amend-
ment rights: on the one hand, the classic right of an individual
GATHRIGHT v. CITY OF PORTLAND 1981
to speak in the town square; on the other hand, the interest
organizations have in not being compelled to communicate
messages not of their choosing. Plaintiff Edward Gathright is
an evangelical Christian who preaches outdoors to the general
public. In recent years, he has taken to doing so in various
public locations in the City of Portland, including the Pioneer
Courthouse Square and Waterfront Park, and often at pri-
vately sponsored, City-permitted events open to the public in
those venues. Gathright himself has observed that it is “not
unusual” for people hearing his jeremiads “to become upset”
or “angry” when, for instance, he calls women “whores,”
“sluts,” “Jezebels,” “prostitutes” and “daughters of Babylon”
or, at an event celebrating tolerance of homosexuality, he
dons a t-shirt reading, “Got AIDS Yet?”
On at least six occasions, Portland’s police officers forced
Gathright to leave the open events he attended by threatening
him with arrest for trespass. They did so not because
Gathright violated a public nuisance law or like ordinance, but
because Portland enforces the right of permit holders sponsor-
ing an event to evict any member of the public who espouses
a message contrary to what the permit holder wants as part of
its event. Under Portland City Code (“PCC”) 20.08.060, “[i]t
is unlawful for any person unreasonably to interfere with a
permittee’s use of a Park.” The criminal trespass statute under
which Gathright was excluded defines trespass as remaining
unlawfully on the premises of an event after failing to honor
a permittee’s lawful direction to leave the event. O.R.S.
§§ 164.245, 164.205(3)(b). According to the City’s policy, a
permittee may order a person to leave an open event when
that person “unreasonably” interferes with the permittee’s use
of the licensed space. The police will enforce that order and
the attendee’s failure to obey the permittee is a Class C mis-
demeanor under Oregon criminal law.
In January 2003, Gathright brought suit, alleging that his
First Amendment rights had been violated by the City of Port-
land and Pioneer Courthouse Square of Portland, Inc., a pri-
1982 GATHRIGHT v. CITY OF PORTLAND
vate nonprofit corporation that manages the Square for the
City. The district court applied the test for First Amendment
claims relating to government property laid out in Ward v.
Rock Against Racism, 491 U.S. 781 (1989). The court con-
cluded that the City’s enforcement of its permittees’ demands
to eject Gathright infringed Gathright’s First Amendment
rights because the City’s policy was not narrowly tailored to
serve what the court acknowledged to be the City’s legitimate
interest in “protecting the free speech rights of permittees.”
The district court granted Gathright a preliminary injunction.1
After further proceedings, the district court in April 2004
entered a permanent injunction prohibiting the City from “re-
moving plaintiff and others similarly situated from an area
outside or inside of the boundaries under the control of an
event permit unless there is probable cause to believe that
they have violated a duly enacted statute or ordinance.” The
court also barred the City from enforcing PCC 20.08.060. The
City timely appealed to this court.
Subsequently, the district court granted plaintiff’s motion to
modify the injunction. The modified permanent injunction
requires the City to “delete from its event permits the ‘Rules
of Conduct’ section” that contained language authorizing
“ ‘Persons in Charge’ to evict or exclude” people from events
without probable cause; to notify all event permit holders of
the injunction and its provisions; to add a section to event per-
mits that “notifies future permit holders of the court’s injunc-
tion”; to notify Portland’s police officers of the same; and
“not [to] place unreasonable time, place, and manner restric-
tions on plaintiff’s speech, or that of others similarly situated
1
The City appealed, and this court affirmed in a memorandum disposi-
tion stressing the deferential standard of review of appeals of preliminary
injunctions. See Gathright v. City of Portland, 74 Fed. Appx. 810, 2003
U.S. App. LEXIS 18838 (9th Cir. Sept. 10, 2003). Our disposition affected
only the rights of the parties and remained in force pending the district
court’s final judgment.
GATHRIGHT v. CITY OF PORTLAND 1983
to plaintiff.” The City also appealed this modification, and we
consolidated the two appeals.
Because the district court properly concluded that the City
infringed Gathright’s First Amendment rights, we affirm that
part of its judgment. However, because the City of Portland
has repealed and replaced the provision of the Portland City
Code that was the basis of the district court’s decision, we
vacate the modified permanent injunction and remand to the
district court to reconsider it in light of current circumstances.
I. STANDARD OF REVIEW
“We review a district court’s decision to issue a permanent
injunction for abuse of discretion, but we review any determi-
nation underlying the court’s decision by the standard that
applies to that determination.” United States v. Hovsepian,
359 F.3d 1144, 1156 (9th Cir. 2004) (en banc). When, as here,
the injunction turns of a question of law, “we review de novo
the district court’s injunction.” Id.
II. DISCUSSION
A. The First Amendment
Gathright asserts his classic right to preach in the town
square. See, e.g., Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, 515 U.S. 557, 579 (1995) (“Our
tradition of free speech commands that a speaker who takes
to the street corner to express his views . . . should be free
from interference by the State based on the content of what
he says.”). The City in turn asserts its interest in protecting the
right of organizations holding events not to be forced to
include the words of a speaker “expressing a message not of
the private organizers’ own choosing.” Id. at 566. Gathright’s
right to speak must be weighed against the City’s interest in
1984 GATHRIGHT v. CITY OF PORTLAND
protecting its permittees’ speech from being diluted by what
Gathright says.2
The City concedes that Gathright’s preaching is a form of
expression protected by the First Amendment. It argues, how-
ever, that its policy of allowing permittees to exclude people
from events in public forums is a valid time, place or manner
regulation of public property. In evaluating this proferred jus-
tification, we are guided by the Supreme Court’s decisions in
Ward and Hurley.
[1] Hurley held that the State of Massachusetts could not
require the organizers of an annual St. Patrick’s Day parade
to allow an organization in favor of gay rights to march in the
parade. The Court explained that “[p]arades are . . . a form of
expression” entitled to First Amendment protection, 515 U.S.
at 568, and that those who organize parades “ha[ve] the
autonomy to choose the content of [their] own message.” Id.
at 573. The Court established that “when dissemination of a
view contrary to one’s own is forced upon a speaker inti-
mately connected with the communication advanced, the
speaker’s right to autonomy over the message is compro-
mised.” Id. at 576. Under the circumstances in Hurley, the
Court concluded that the organizers of the St. Patrick’s Day
parade had a First Amendment right not to be compelled to
allow the gay-rights organization to march as part of the
parade: to do so would have forced the parade’s organizers to
communicate a message they did not endorse.
2
Gathright argues that he as a private actor cannot infringe the permit-
tees’ speech rights inasmuch as the First Amendment applies against gov-
ernment action only. However, because Gathright has obtained an
injunction that restricts the City’s permittees from exercising their pur-
ported First Amendment rights, and because an injunction constitutes state
action, it is proper for us to conduct a First Amendment analysis. See Shel-
ley v. Kraemer, 334 U.S. 1, 15 (1948); see also Cohen v. Cowles Media
Co., 501 U.S. 663, 668 (1991).
GATHRIGHT v. CITY OF PORTLAND 1985
The City argues that Hurley requires us to vacate the dis-
trict court’s injunction because the City’s policy of evicting
on request those who express messages the permittees disap-
prove of is a valid time, place or manner restriction. In sup-
port of its argument, the City marshals three points: first, its
policy serves the legitimate, content-neutral interest it has in
protecting permittees’ right under Hurley to determine the
contents of their own messages; second, the policy is nar-
rowly tailored to that interest because it “limits only that
speech which permittees have a right to exclude”; and third,
Gathright has ample alternative channels of communication.
See Ward, 491 U.S. at 791.
[2] We disagree with the City’s reading of Hurley. Hurley
involved the exclusion of those who wished to participate in
the parade as marchers, not those who witnessed or opposed
the procession. Cf. Mahoney v. Babbit, 105 F.3d 1452, 1456
(D.C. Cir. 1997) (refusing to extend Hurley to allow parade
organizers to exclude people wishing to stand along parade
route holding protest signs). As the district court has here
observed, “[t]here is a distinction between participating in an
event and being present at the same location. Merely being
present at a public event does not make one part of the orga-
nizer’s message for First Amendment purposes.” Gathright v.
City of Portland, 315 F. Supp. 2d 1099, 1103 (D. Or. 2004).
[3] Applying Ward’s criteria to the facts before us, we con-
clude that the City’s policy is not a valid time, place or man-
ner regulation of public space. See Ward, 491 U.S. at 791.
Solely for the purposes of the City’s appeal, we accept its
proposition that its policy is content neutral and that it has a
significant interest in protecting the free speech rights of peo-
ple and organizations who have obtained permits to use a pub-
lic park for an event open to the public.3 We hold, however,
3
The City’s assertion that its policy is content neutral is questionable.
The policy enables private citizens to exclude people from events in public
forums solely on the basis of the content of their speech. However,
because Gathright has conceded the City’s assertion of content neutrality
as well as its substantial interest in protecting permittees’ speech, we
accept both as true for purposes of this appeal.
1986 GATHRIGHT v. CITY OF PORTLAND
that the policy of allowing permittees unfettered discretion to
exclude private citizens on any (or no) basis is not narrowly
tailored to the City’s legitimate interest in protecting its per-
mittees’ right under Hurley. See Ward, 491 U.S. at 798-800.
Because the City’s policy is not narrowly tailored, we do not
reach whether it leaves open ample alternative channels of
communication.
[4] Hurley does not, by its own terms, extend to these cir-
cumstances, where a speaker in a public forum seeks only to
be heard, not to have his speech included or possibly confused
with another’s, and has not violated a valid statute or ordi-
nance. In Hurley, the Supreme Court made clear that every
marching participant in the St. Patrick’s Day parade was an
expressive unit, the sum of which constituted the expressive
message attributable to the parade’s organizer. 515 U.S. at
574. The inclusion in the parade of the Irish-American Gay,
Lesbian and Bisexual Group of Boston “would likely be per-
ceived as having resulted from the [organizers’] customary
determination about a unit admitted to the parade, that its
message was worthy of presentation and quite possibly of
support as well.” Id. at 575. “[I]n the context of an expressive
parade, as with a protest march, the parade’s overall message
is distilled from the individual presentations along the way,
and each unit’s expression is perceived by spectators as part
of the whole.” Id. at 577. Here, there is no risk that
Gathright’s provocations could be mistaken by anybody as
part of the message of the events he protests. For this reason,
the City’s citation of Boy Scouts of America v. Dale, 530 U.S.
640 (2000), is also unavailing. In Dale, the Supreme Court
extended Hurley to hold that the Boy Scouts could not be
forced by a state antidiscrimination statute to employ a homo-
sexual scoutmaster because the act of doing so would send a
message contrary to the Boy Scout’s creed. Id. at 656. Dale’s
holding, like Hurley’s, was grounded in whether the plain-
tiff’s views could be mistaken for those of the defendant.
Gathright may be a gadfly to those with views contrary to
his own, but First Amendment jurisprudence is clear that the
GATHRIGHT v. CITY OF PORTLAND 1987
way to oppose offensive speech is by more speech, not cen-
sorship, enforced silence or eviction from legitimately occu-
pied public space. See Terminiello v. City of Chicago, 337
U.S. 1, 4 (1949) (“[A] function of free speech under our sys-
tem of government is to invite dispute.”). The City has not
argued that Gathright violated any ordinance other than PCC
20.08.060, and the district court’s injunction did not limit the
City’s ability to evict Gathright from events in public forums
where there is probable cause to believe that he violated a dif-
ferent, valid statute or ordinance. See, e.g., Virginia v. Black,
538 U.S. 343, 363 (2003) (allowing regulation of cross burn-
ing as subset of intimidating speech); Chaplinsky v. State of
New Hampshire, 315 U.S. 568, 572 (1942) (holding that
states may punish those words “which by their very utterance
inflict injury or tend to incite an immediate breach of the
peace”).
We find persuasive the reasoning of the Sixth Circuit in a
case with facts similar to these. In Parks v. City of Columbus,
395 F.3d 643, 654 (6th Cir. 2005), the court held that a
municipality could not evict a controversial street preacher
from a permitted event held on a public street simply because
the event’s organizers found the preacher’s message to be odi-
ous. Our sister circuit distinguished Hurley, as we do, on the
basis that Parks, like Gathright, “d[id] not seek inclusion in
the speech of another group.” Id. at 651. Instead, he was
“merely another attendee” of a permitted event open to the
public, in a public forum. Id. Correspondingly, we find
Sistrunk v. City of Strongsville, 99 F.3d 194 (6th Cir. 1996),
a Sixth Circuit case the City cites, to be distinguishable. In
Sistrunk, the event at issue was a closed political rally in favor
of the incumbent president, President George H. W. Bush. Id.
at 196. The rally was not open to the public, but was instead
“limited to the members of the organization and their
invitees.” Id.; see also Parks, 395 F.3d at 651. Because the
protester supporting the challenger, Governor Bill Clinton,
sought to be included in the message of a closed rally favor-
ing President Bush, and presumably to affect the media cover-
1988 GATHRIGHT v. CITY OF PORTLAND
age of the event, the protester threatened to infringe the
speech rights of those who organized the rally. Sistrunk, 99
F.3d at 199-200. Such circumstances differ from those here,
where Gathright does not seek inclusion in a closed event
strictly “limited to the members of [an] organization and their
invitees.” Id. at 196. “The City cannot . . . claim that one’s
constitutionally protected rights disappear [where] a private
party is hosting an event that remain[s] free and open to the
public.” Parks, 395 F.3d at 652.
[5] Because PCC 20.08.060 is not narrowly tailored to the
City’s interest in protecting its permittees’ right under Hurley,
we affirm the district court’s conclusion that the ordinance is
not a valid time, place or manner regulation.
B. The District Court’s Injunction
Having found the district court’s underlying analysis cor-
rect, we review the court’s injunction for abuse of discretion.
See United States v. Hovsepian, 359 F.3d 1144, 1156 (9th Cir.
2004) (en banc).
1. Enjoining Eviction Based on Activity Outside Event
Areas
The City argues that the district court abused its discretion
by entering an injunction partly premised on the assumption
that Gathright was threatened with arrest when he engaged in
protected speech at the periphery of a permitted event, in par-
ticular, the sidewalks within Waterfront Park, the traffic
island on Naito Parkway and the sidewalks around Pioneer
Courthouse Square. The City contends there is conflicting
evidence as to whether Gathright was prevented from being
in close proximity to an event based on things he said outside
the precise confines of the permit area, and that it was error
to grant Gathright summary judgment on this issue.
[6] Irrespective of whether Gathright had in fact been
excluded from events based on his speech outside the venues’
GATHRIGHT v. CITY OF PORTLAND 1989
bounds, the district court saw fit to specify that Gathright
could not be so excluded in the future. In light of the district
court’s correct First Amendment analysis, it did not abuse its
discretion. Moreover, any lack of certainty about Gathright’s
conduct outside of events was immaterial to the district
court’s correct finding that the City’s ordinance was not a
valid time, place or manner regulation. Consequently, the dis-
trict court did not err in granting summary judgment on that
issue since there was no dispute as to a material fact. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
2. Enjoining Enforcement of PCC 20.08.060
PCC 20.08.060 is entitled “Unlawful Interference.” As pre-
viously noted, it provides that “[i]t is unlawful for any person
unreasonably to interfere with a permittee’s use of a park.” In
City of Portland v. Lee, No. 9907-46965 (Nov. 22, 1999), the
Multnomah County Circuit Court found PCC 20.08.060
unconstitutional under Ward’s narrow-tailoring prong because
the ordinance was broad and vague as to what an “unreason-
able” interference might be: “the ordinance’s use of the
phrase ‘unreasonably to interfere’ is far too broad to not
sweep into its reach any protected speech which any permit-
tee, user, guard or police officer concludes might be unrea-
sonable.” The City did not appeal that determination.
Notwithstanding the judgments of the state court and dis-
trict court that PCC 20.08.060 is invalid, the City argues that
the district court abused its discretion in enjoining the City
from enforcing the ordinance. It asserts that Gathright failed
to adduce evidence proving that the City had enforced, or was
likely to enforce, the provision against him, and that Gathright
therefore lacked standing to assert the unconstitutionality of
the provision. The City further contends that it is not pre-
cluded from arguing in this action that the ordinance is consti-
tutional, regardless of the state court’s determination.
These arguments are without merit. First, in addition to the
citations for trespass and other violations, the record contains
1990 GATHRIGHT v. CITY OF PORTLAND
a “Notice of Exclusion” and “Trespass Warning” that cites
Gathright for “Interference with Permitted Events.” The lan-
guage in this exclusion, completed by a Portland police ser-
geant, refers to PCC 20.08.060. Such evidence belies the
City’s assertion that Gathright lacks standing.
[7] Second, the City is in any case estopped from relitigat-
ing the constitutionality of PCC 20.08.060. 28 U.S.C. § 1738
requires a federal court to “give the same preclusive effect to
a state-court judgment as another court of that State would
give.” Parsons Steel, Inc. v. First Alabama Bank, 474 U.S.
518, 523 (1986). The Oregon state court’s judgment, which
the City did not appeal, precludes the City from arguing now
that the ordinance’s restriction against unreasonable interfer-
ence is not unconstitutionally overbroad. See Allen v.
McCurry, 449 U.S. 90, 94 (1980) (“Under collateral estoppel,
once a court has decided an issue of fact or law necessary to
its judgment, that decision may preclude relitigation of the
issue in a suit on a different cause of action involving a party
to the first case.”). Nor is there an exceptional circumstance
here that warrants relitigating this issue. See Restatement
(Second) of Judgments § 29 (1982); see also Drews v. EBI
Cos., 795 P.2d 531 (Or. 1990) (Supreme Court of Oregon
applying Restatement (Second) of Judgments as Oregon law
on issue preclusion). Because the City was a party to the pro-
ceedings in state court and had “a full and fair opportunity to
litigate” the ordinance’s constitutionality in that forum, Mon-
tana v. United States, 440 U.S. 147, 153 (1979), it cannot do
so again here, and the district court did not err in barring the
City from enforcing the ordinance.4
4
Because the City is collaterally estopped from litigating this issue, we
do not reach whether it is alternatively barred from doing so under the
Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280 (2005) (clarifying Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983)).
GATHRIGHT v. CITY OF PORTLAND 1991
3. The Modifications to the Injunction
The City has separately appealed the modifications that the
district court made to its permanent injunction. The City
argues that the district court abused its discretion, because the
more recent permitted events that led to the modifications
were “gated and fenced, and the permittees controlled entry
into those events.” The City asserts that these events were
outside the scope of the original complaint, which only con-
cerned events free and open to the public, and that the modi-
fied injunction is thus invalid. Gathright argues in response
that the more recent events were open to the public. Notwith-
standing the parties’ contrary views, the district court’s modi-
fications did not expand the prior injunction’s scope to “gated
and fenced” events. We therefore see no reason to hold the
injunction invalid on that basis and decline to determine, on
the limited record before us, whether the injunction would be
invalid if it did apply to such events.
We do consider whether the district court otherwise abused
its discretion in making the modifications. The injunction as
modified now requires the City to “delete from its event per-
mits the ‘Rules of Conduct’ section.” Read in the context of
this case, the instruction means that the City must delete the
rule that bestows the right on permittees to exclude people
arbitrarily. However, the City is correct that a literal reading
of the injunction could lead one to conclude that the City must
not have any rules of conduct printed on its permits. Because
this would be an abuse of discretion and cannot have been the
district court’s intent, we construe the modification so as to
avoid the absurd result contemplated by the City. In this light,
we hold that the district court did not abuse its discretion.
The modified injunction also states that:
[T]he City and all permit holders are ordered to not
place unreasonable time, place, and manner restric-
tions on plaintiff’s speech, or that of others similarly
1992 GATHRIGHT v. CITY OF PORTLAND
situated to plaintiff. For example, neither the City
nor any permit holder shall remove or exclude plain-
tiff or others similarly situated from an area within
a permitted event unless plaintiff or others are caus-
ing an insurmountable impediment to pedestrian or
vehicular traffic, such that a serious traffic safety
concern is present.
The injunction then mandates that “[n]either the City nor any
permit holder shall prevent plaintiff or others similarly situ-
ated from wearing signs or passing out pamphlets.” These
provisions, like the one discussed in the preceding paragraph,
could be read to occasion absurd consequences contrary to the
district court’s intent and irrelevant to the constitutional con-
cerns in this dispute. For instance, the court’s reference to an
“impediment to pedestrian or vehicular traffic” could be liter-
ally interpreted so that it prevents the City from evicting an
attendee at an event who violates a legitimate statute, but who
does so without causing a sufficiently “insurmountable”
impediment to traffic. Similarly, the modified injunction
could be construed to enjoin the City from preventing “plain-
tiff or others similarly situated from wearing signs or passing
out pamphlets,” notwithstanding that we have upheld
instances in which a state has validly prohibited the use of
certain kinds of signs. See, e.g., Vlasak v. Superior Court of
California, 329 F.3d 683 (9th Cir. 2003) (upholding Los
Angeles ordinance prohibiting the possession, during demon-
strations, of wooden objects exceeding certain thickness).
[8] The district court enjoys ample latitude to fashion an
injunction appropriate to the facts before it. In this case, the
court appears to have determined that more forceful language
was necessary to ensure the City’s compliance with the
court’s constitutional analysis. We do not read the district
court’s injunction in such a way as to bind the City in ways
unwarranted by the constitutional issues underlying this dis-
pute. Accordingly, the modifications do not require us to
vacate the injunction in whole or part. However, because the
GATHRIGHT v. CITY OF PORTLAND 1993
Portland City Council repealed and replaced PCC 20.08.060
by Ordinance No. 179337, effective June 15, 2005, we
remand to the district court to reconsider the appropriateness
of its injunction — particularly those parts of it that concern
former PCC 20.08.060 — in light of recent developments. At
that time, the district court may take into consideration the
potential ambiguities in its injunction as currently written.
Therefore, we AFFIRM the district court’s judgment, but
VACATE and REMAND its modified permanent injunction
for further proceedings in light of our opinion. The parties
shall bear their own costs.