Klein v. San Diego County , 463 F.3d 1029 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE KLEIN; AARON BAGLEY; 
ROXANN BAGLEY; LINDA BEBEE;
MICHAEL BEBEE; CHRIS BELL; GARY
CASS; ISAAC CASS; JOSHUA CASS;
FRANK DAWSON; RUSS DEARBORN;
DAVID KIDDER; LORRAINE KLEIN;
PHIL MAGNAN; CINDY MOLES; JACK
OBEN; SANDRA OLAFSON; JUDITH
OLAFSON; MARIN OLAFSON, a minor
No. 04-55819
through her guardian ad litem,
Judith Olafson; TARYN OLAFSON, a
minor through her guardian ad
 D.C. No.
CV-03-01896-RMB
litem, Judith Olafson; TED OPINION
SKELTON; ALLYSON SMITH;
ANTHONY SOTILLE; DANIEL
STEPHENS, aka Daniel Stevens;
RALPH THOMPSON,
Plaintiffs-Appellants,
v.
SAN DIEGO COUNTY; DOES 1-100,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Rudi M. Brewster, District Judge, Presiding
Argued and Submitted
December 6, 2005—Pasadena, California
Filed September 18, 2006
11457
11458 KLEIN v. SAN DIEGO COUNTY
Before: Harry Pregerson, Robert E. Cowen,* and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Pregerson
*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
KLEIN v. SAN DIEGO COUNTY 11461
COUNSEL
Michael J. Kumeta, La Mesa, California, for the plain-
tiffs-appellants.
William A. Johnson, Jr., Senior Deputy County Counsel’s
Office, San Diego, California, for the defendant-appellee.
OPINION
PREGERSON, Circuit Judge:
Plaintiffs challenge the constitutionality of a residential
picketing ordinance enacted by the Defendant San Diego
County (“the County”). Because we conclude that the ordi-
nance is not unconstitutional in every conceivable application
and is not unconstitutionally vague, we affirm the district
court’s order dismissing Plaintiffs’ constitutional claims.
I. Factual Background
In 2002, the County passed an ordinance to regulate the
conduct of people wanting to picket in residential neighbor-
11462 KLEIN v. SAN DIEGO COUNTY
hoods. The ordinance reads: “No person shall engage in pick-
eting activity that is targeted at and is within three hundred
(300) feet of a residential dwelling in the unincorporated areas
of the County of San Diego.” San Diego County Code
§ 311.103. Violation of the ordinance is punishable as a mis-
demeanor. Id. § 311.104.
On September 13, 2003, Plaintiffs went to a residential
neighborhood in an unincorporated area of San Diego County,
a neighborhood that included the home of August Caires,
General Manager of the Padre Dam Municipal Water District.
During a water district board meeting, Deborah Baczynski, a
water district employee, had ridiculed Joel Anderson, a mem-
ber of the water district board who suffers from Bells-Palsy,
by pulling down one side of her face with her hands and
speaking in slurred speech, mimicking the effects of Bells-
Palsy on Anderson. Plaintiffs were upset that Caires did not
reprimand Baczynski. They decided to picket outside Caires’s
home with three goals: (1) to convince Caires to set up a
third-party investigation of abuses against disabled persons,
(2) to ensure that such conduct did not occur in the future, and
(3) to educate neighbors and the public at large about the
water district’s discrimination against the disabled.
Appellants held signs and walked a circuitous route the
length of the block that included Caires’s home. After a short
period, two deputy sheriffs from the County ordered Plaintiffs
to move at least 300 feet away from Caires’s property line and
threatened to arrest Plaintiffs if they did not move.1 Plaintiffs
ended their demonstration and left.
All parties agree that the officers misinterpreted the Coun-
ty’s picketing ordinance. The ordinance requires that picketers
remain at least 300 feet from the targeted dwelling, not 300
feet from the property line of the targeted residence. It was
later shown that Caires’s dwelling is set back more than 300
1
The record shows that Plaintiffs called the police themselves.
KLEIN v. SAN DIEGO COUNTY 11463
feet from the property line. As such, Plaintiffs’ actions on
September 13, 2003 did not violate the ordinance.
Plaintiffs filed a complaint that raised both facial and as
applied challenges to the ordinance. Plaintiffs asked for a
declaratory judgment that the ordinance violated their free
speech and due process rights under the United States and
California Constitutions. They also requested injunctive relief
and monetary damages. On November 19, 2003, the district
court granted a preliminary injunction that temporarily pro-
hibited the County from enforcing the ordinance.
The district court held a hearing on the constitutionality of
the ordinance on December 9, 2003. On December 29, 2003,
the district court made a fact-finding “field trip” to four resi-
dences in the County and to a football field. At the various
locations, the court had court personnel stand at the 300-foot
boundary, hold signs, and make noise so that it could deter-
mine the impact of the ordinance.
Based on its trip, the court made several factual determina-
tions. First, it found that at each of the four homes, occupants
of the house could not see picketers or signs at 300 feet away
because there was no line-of-sight between the homes and the
picketers.2 At the football field, the court found that a person
could see the signs 300 feet away, but could not read them
with the naked eye. The court also found that, on an empty
football field, a person could only hear “a little underground
sound” if the “picketers” spoke at a conversational tone at a
distance of 300 feet. If they “raised their voice a little bit” the
2
The parties submitted maps for the record showing the impact of the
ordinance at various residential sites. At one site, a house located on a cul-
de-sac, picketers could not be on the cul-de-sac where the house was
located or on the road that accessed the cul-de-sac, but could picket
around the corner from the house. At a second site, picketers could protest
on the same street six lots away from the targeted residence or on a con-
necting road, three lots away. As already mentioned, at Caires’s home,
picketers could be directly in front of the targeted residence.
11464 KLEIN v. SAN DIEGO COUNTY
court could tell “that there was activity there.” And, when the
picketers were yelling, the court could hear and understand
their message.
On March 30, 2004, the court issued its decision. The court
found that Plaintiffs had standing to bring their facial chal-
lenges to the ordinance, but not an as applied challenge. It
then denied their facial challenge on the merits. First, the
court rejected the Plaintiffs’ argument that the ordinance was
impermissibly vague. It found that a person of ordinary intel-
ligence would understand how the 300-foot distance was mea-
sured. In response to Plaintiffs’ argument that the statute is
vague because no public record indicated how far dwellings
are set back from the property line, the court found that: (a)
if there were no “no trespassing” sign, a picketer could walk
up to the house and measure the distance; (b) a would-be
picketer could use a hand-held rangefinder, topographical
map, or public record to measure 300 feet from the residence;
or (c) a would-be picketer could measure the distance in an
adjacent area and then “estimate very ably” the 300-foot dis-
tance.
Second, the court held that the ordinance was a reasonable
time, place, and manner restriction, because the 300-foot ordi-
nance was narrowly tailored to a significant government inter-
est, namely, preventing “intrusion upon the right to privacy in
the home.” The court stated that “so long as the targeted pick-
eting interferes with an individual’s residential privacy rights,
the government has a significant interest in regulating the
speech.” The court further noted that “[t]he Constitution does
not . . . require the occupants to come in from their porches
or decks, shut their windows and doors, and draw their shades
in an effort to avoid targeted picketing activity.” Rather, “oc-
cupants are entitled to unencumbered enjoyment of the tran-
quility and privacy of their homes without being subjected to
unwelcome speech, and the First Amendment may not tram-
ple those rights.” Because the ordinance “does not completely
shield a resident from awareness of undesired targeted picket-
KLEIN v. SAN DIEGO COUNTY 11465
ing,” the court concluded that the ordinance was a reasonable
time, place, and manner restriction on speech. The district
court dismissed Plaintiffs’ constitutional claims and dissolved
the temporary injunction. Plaintiffs filed a timely appeal to
this court.
II. Analysis
This case presents a facial challenge to the County’s ordi-
nance on First Amendment grounds. Accordingly, we review
the district court’s decision de novo. See United States v.
Wunsch, 84 F.3d 1110, 1114 (9th Cir. 1996).
[1] An ordinance is facially unconstitutional only if “it is
unconstitutional in every conceivable application, or . . . seeks
to prohibit such a broad range of protected conduct that it is
unconstitutionally ‘overbroad.’ ” Members of City Council v.
Taxpayers for Vincent, 466 U.S. 789, 796 (1984). Plaintiffs
raise three challenges to the County’s ordinance: (a) that the
ordinance is not a valid time, place, and manner restriction;
(b) that the ordinance is overbroad; and (c) that the ordinance
is unconstitutionally vague.3
A. Invalid Time, Place, and Manner Restriction
Challenge
[2] To determine the proper analysis for Plaintiffs’ claims,
the threshold question is the nature of the forum in which the
ordinance limits speech. The level of restriction that can be
placed on speech depends on whether the forum is a tradi-
tional public forum, a limited public forum, or a nonpublic
3
The district court found, and neither party disputes on appeal, that
Plaintiffs have standing to bring a facial challenge to the statute. Because
“the plaintiff[s] ha[ve] alleged an intention to engage in a course of con-
duct arguably affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution thereunder,” we
agree with the district court that they have standing to bring their claims.
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
11466 KLEIN v. SAN DIEGO COUNTY
forum. See Cornelius v. NAACP Legal Def. and Educ. Fund,
Inc., 473 U.S. 788, 802 (1985).
[3] The Supreme Court noted in Frisby v. Schultz, 487 U.S.
474 (1988), that public streets are “the archetype of a tradi-
tional public forum.” Id. at 480. “ ‘Time out of mind’ public
streets and sidewalks have been used for public assembly and
debate, the hallmark of a traditional public forum.” Id. (quot-
ing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460
U.S. 37, 45 (1983)). Moreover, Frisby held that a street does
not lose its status as a public forum “simply because it runs
through a residential neighborhood.” Id. It is well-settled,
then, that the residential streets and sidewalks covered by the
County’s ordinance are public fora.
[4] The proper analysis for a challenge to an ordinance that
restricts speech in a public forum is whether the restriction is
a valid time, place, and manner restriction on speech. Perry,
460 U.S. at 45. A time, place, and manner restriction on
speech is valid if it: (a) is content neutral, (b) is narrowly tai-
lored to serve a significant government interest, and (c) leaves
open ample alternative channels for communication. Id.
Again, because Plaintiffs raise a facial challenge, we cannot
strike down the ordinance unless it is “unconstitutional in
every conceivable application.” See Taxpayers for Vincent,
466 U.S. at 796.
1. Content Neutral
[5] Plaintiffs concede, as they must, that the ordinance is
content neutral on its face; the ordinance prohibits residential
picketing within a certain zone no matter what the topic of the
protest or the viewpoint of the protester. As such, this first
prong is not disputed.
2. Narrowly Tailored to Serve a Significant Government
Interest
KLEIN v. SAN DIEGO COUNTY 11467
[6] It is not disputed that the government has an interest in
protecting residential tranquility. In Frisby, the Supreme
Court considered a Brookfield, Wisconsin residential picket-
ing ordinance that prohibited picketing directly in front of a
targeted residence. See 487 U.S. at 483. The Court discussed
the nature of the right to residential privacy in broad terms:
The State’s interest in protecting the well-being,
tranquility, and privacy of the home is certainly of
the highest order in a free and civilized society. Our
prior decisions have often remarked on the unique
nature of the home, the last citadel of the tired, the
weary, and the sick, and have recognized that pre-
serving the sanctity of the home, the one retreat to
which men and women can repair to escape from the
tribulations of their daily pursuits, is surely an
important value.
Id. at 484 (internal quotation marks and citations omitted).
At the same time, the Court recognized the “careful scruti-
ny” given to restrictions on public issue picketing, given the
importance of “uninhibited, robust, and wide-open debate on
public issues.” Id. at 479 (quoting N.Y. Times Co. v. Sullivan,
376 U.S. 254, 270 (1964)). Accordingly, it defined more spe-
cifically the “evil” to be prevented by residential picketing
ordinances: that such picketing might render the targeted resi-
dent a captive audience to unwanted speech. See id. at 484-85,
487 (“[I]ndividuals are not required to welcome unwanted
speech into their own homes and . . . the government may
protect this freedom.”). Having defined the right this way, the
Court upheld a facial challenge to the Brookfield ordinance,
because picketing directly in front of the home would make
the targeted resident captive in the residence. See id. at 487
(“The target of the focused picketing banned by the Brook-
field ordinance is just such a ‘captive.’ The resident is figura-
tively, and perhaps literally, trapped within the home, and
11468 KLEIN v. SAN DIEGO COUNTY
because of the unique and subtle impact of such picketing is
left with no ready means of avoiding the unwanted speech.”).
This narrowed definition of the right to residential privacy
was reiterated in Madsen v. Women’s Health Center, Inc., 512
U.S. 753 (1994). In Madsen, the Court considered an injunc-
tion that prohibited picketing within 300 feet of the residence
of abortion clinic employees. See id. at 774. The Court noted,
again, that the house is the “last citadel of the tired, the weary,
and the sick.” Id. at 775 (quoting Frisby, 487 U.S. at 484). It
found, however, that the 300-foot prohibition was “much larg-
er” than the zone of protection provided in Frisby. It held that
the ordinance burdened more speech than necessary to protect
the government’s interest because “limitation[s] on the time,
duration of picketing, and number of pickets outside a smaller
zone could have accomplished the desired result.” Id. Such
measures would both protect residents from being a captive
audience in the home and protect picketers’ First Amendment
rights.4 Thus, the Court found this provision of the injunction
to be unconstitutional.
The combined teaching of Frisby and Madsen is that the
government’s interest in residential privacy does not trump all
other rights. The government certainly has a significant inter-
est in preventing picketing that renders the targeted resident
a captive audience to the picketers’ message. But the right to
residential privacy does not encompass a right to remain bliss-
fully unaware of the presence of picketers. See Murray v.
Lawson, 649 A.2d 1253, 1267 (N.J. 1994) (“[K]eeping [pick-
4
Madsen does not necessarily foreclose the County’s argument that its
300-foot zone is proper. In Madsen, the Court was reviewing the constitu-
tionality of an injunction, which must be “no more burdensome . . . than
necessary” to protect the government interest. Id. at 765. In contrast, a
generally applicable ordinance must be “narrowly tailored” to the govern-
ment’s interest. Id. at 764. The standard governing ordinances is less strin-
gent than the standard governing injunctions, see id., although neither the
Supreme Court nor this court has articulated a practical distinction
between the two standards.
KLEIN v. SAN DIEGO COUNTY 11469
eters] at such a great distance, thereby rending [the resident’s]
awareness of the picketing most unlikely as a practical matter,
is unnecessary to protect [the resident’s] residential-privacy
interest”).
[7] Thus the district court erred when it stated that residen-
tial occupants are entitled to “an unencumbered enjoyment of
the tranquility and privacy of their homes.” Instead, residen-
tial picketing ordinances must carefully balance two valid and
competing interests: the right of residents not to be captive
audiences to unwanted speech and the right of picketers to
convey their message. See Frisby, 487 U.S. at 487. Residen-
tial picketing ordinances require a more nuanced approach
than the one implied by the district court’s formulation of the
right to residential privacy.
Even though we disagree with the district court on this
point, we nonetheless affirm its conclusion that Plaintiffs can-
not state a valid facial challenge to the County’s ordinance.
The ordinance is problematic in several aspects: The 300-foot
ban imposed by the County will, in many cases, put picketers
farther away from the targeted residence than they would be
under those ordinances that have been deemed constitutional
by other courts. See Thorburn v. Austin, 231 F.3d 1114, 1120
(8th Cir. 2000) (upholding an ordinance that prohibited pick-
eting within fifty feet of the targeted resident’s property line,
but that allowed picketing on the sidewalk across the street
from the targeted residence); Douglas v. Brownell, 88 F.3d
1511, 1520-21 (8th Cir. 1996) (upholding an ordinance that
banned picketing in front of the targeted house and one house
on either side, but that permitted picketing on the sidewalk
across the street from the targeted residence); see also
Kirkeby v. Furness, 92 F.3d 655, 660 (8th Cir. 1996) (striking
down an ordinance that banned picketing within 200 feet of
a targeted residence); Murray, 649 A.2d at 1267-68 (striking
down an injunction that banned picketing within 300 feet of
the targeted residence).5 In addition, the ordinance imposes a
5
In defending its ordinance, the County points to the California Court
of Appeal’s decision in City of San Jose v. Superior Court, 38 Cal. Rptr.
11470 KLEIN v. SAN DIEGO COUNTY
one-size-fits-all approach to residential picketing, which in
some cases will allow picketing directly in front of the tar-
geted home if the home is situated on a large lot, but will put
the picketers several lots away from the targeted audience if
the residence is situated on a small lot. Moreover, as in
Madsen, the ordinance does not consider more limited restric-
tions, such as limitations on the number of picketers, the time
of day, or the duration of picketing.
[8] Despite the problematic aspects of the ordinance, we
cannot say that the ordinance is unconstitutional in every
application, primarily because the ordinance did not have an
unconstitutional effect in the test case that led to the instant
suit. A correct interpretation of the ordinance would have
allowed Plaintiffs to picket on the sidewalk or street directly
in front of Caires’s home, or anywhere else in the neighbor-
hood, because Caires’s home was set back more than 300 feet
from the street. Thus, for all practical purposes, had the offi-
cers correctly interpreted the ordinance, the ordinance would
have had no impact on the Plaintiffs’ right to picket at
Caires’s residence. Had a Frisby ordinance been in place in
the County, Plaintiffs would have been pushed farther away
2d 205 (Ct. App. 1995), which upheld an ordinance banning picketing
within 300 feet of a targeted residence. We believe City of San Jose
wrongly characterized the right at issue — it concluded that residential
picketing is “highly offensive conduct,” a “disfavored activity not entitled
to a high level of First Amendment protection.” Id. at 209, 210. Contrary
to the California court’s characterization, the United States Supreme Court
has called public issue picketing on streets and sidewalks “an exercise of
. . . basic constitutional rights in their most pristine and classic form.”
Carey v. Brown, 447 U.S. 455, 466-67 (1980) (alteration in original)
(quoting Edwards v. South Carolina, 372 U.S. 229, 235 (1963)). More-
over, Frisby and Madsen make clear that residential picketing enjoys First
Amendment protection. While Frisby noted that targeted picketing is
inherently intrusive on residential privacy, it did not suggest that, where
the two clash, the right to residential privacy necessarily trumps the rights
of picketers. See Frisby, 487 U.S. at 486. That is to say, residential picket-
ing is not the black sheep of the First Amendment family.
KLEIN v. SAN DIEGO COUNTY 11471
from the residence than they were under the County’s ordi-
nance. Courts have accepted ordinances that prohibit picket-
ing directly in front of the targeted resident’s home. See, e.g.,
Frisby, 487 U.S. at 483 (“[O]nly focused picketing taking
place solely in front of a particular residence is prohibited.”);
Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1105 (6th
Cir. 1995) (noting that “any linear extension beyond the area
‘solely in front of a particular residence’ is at best suspect, if
not prohibited outright”). Because the ordinance functions as
a more narrow prohibition than the one at issue in Frisby in
some circumstances, we cannot say that the ordinance is
unconstitutional in every application. Plaintiffs’ claim is
therefore not appropriate for a facial challenge.6
3. Leaves Open Ample Alternatives for
Communication
In the alternative, Plaintiffs claim that the ordinance is
unconstitutional because it does not leave open adequate alter-
natives to communicate to the targeted resident and to the res-
ident’s neighbors. The County contends that the ordinance
leaves open the opportunity for general dissemination of the
picketer’s message, including picketing in other neighbor-
hoods, direct mail and telephone contact with those in the
neighborhood, and, of course, picketing more than 300 feet
from the targeted residence.
[9] A valid time, place, and manner restriction must leave
open alternative methods of communication. An alternative
method of communication is “constitutionally inadequate if
6
Plaintiffs urge us to ignore their technical failure to violate the ordi-
nance in their test case, because the district court created a thorough
record regarding the effect of the residential picketing ordinance. We
appreciate the district court’s extensive efforts to study the effect of the
ordinance. Its careful study gave us a fuller picture of the ordinance’s
impact. But we cannot ignore the circumstances giving rise to this suit
because they clearly show that the ordinance is not unconstitutional in
every application.
11472 KLEIN v. SAN DIEGO COUNTY
the speaker’s ability to communicate effectively is threat-
ened.” Bay Area Peace Navy v. United States, 914 F.2d 1224,
1229 (9th Cir. 1990) (internal citations and quotations omit-
ted). While a picketer has no right to force speech on those
who do not want to hear it, see Frisby, 487 U.S. at 487, “the
First Amendment protects the right of every citizen to reach
the minds of willing listeners and to do so there must be
opportunity to win their attention.” Heffron v. Int’l Soc’y for
Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981)
(emphasis added, internal citations and quotations omitted).
An alternative is inadequate if it precludes the speaker from
getting the attention of willing listeners in a specific intended
audience. Bay Area Peace Navy, 914 F.2d at 1229.
[10] While we admit that Plaintiffs may, in some cases,
have a special interest in reaching willing listeners in the tar-
get resident’s neighborhood, we must deny Plaintiffs’ claim
for the same reason that we deny their narrowly tailored chal-
lenge. That is, Plaintiffs have not shown that the ordinance
impacts their ability to communicate with willing listeners in
every case. In some cases, as was the case in Caires’s neigh-
borhood, the ordinance would have no impact on Plaintiffs’
ability to communicate their message to Caires or Caires’s
neighbors. Without violating the ordinance, Plaintiffs could
demonstrate directly in front of Caires’s home or could picket
throughout the neighborhood to educate Caires’s neighbors
about the actions of the water district. Because the ordinance
leaves ample alternatives for communication in at least some
cases, including the test case before us, we cannot say that the
ordinance is unconstitutional in every application. Accord-
ingly, Plaintiffs’ facial challenge fails.
B. Overbreadth Challenge
[11] Plaintiffs also argue that the County’s ordinance is
unconstitutionally overbroad. While a facial challenge on
time, place, and manner grounds asserts that the statute is
unconstitutional in every conceivable application, an over-
KLEIN v. SAN DIEGO COUNTY 11473
breadth challenge asserts that the restriction’s scope includes
a substantial amount of protected conduct. A law is overbroad
if it “does not aim specifically at evils within the allowable
area of State control but, on the contrary, sweeps within its
ambit other activities that in ordinary circumstances constitute
an exercise of freedom of speech . . . .” Thornhill v. Alabama,
310 U.S. 88, 97 (1940); see also Clark v. City of Los Angeles,
650 F.2d 1033, 1039 (9th Cir. 1981). Because a facial over-
breadth challenge is a strong remedy, the “mere fact that one
can conceive of some impermissible applications of a statute
is not sufficient to render it susceptible to an overbreadth
challenge.” Taxpayers for Vincent, 466 U.S. at 800. Rather,
the Supreme Court has required that the overbreadth “not only
be real, but substantial as well, judged in relation to the stat-
ute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413
U.S. 601, 615 (1973) (emphasis added).
Plaintiffs’ overbreadth challenge rests on the contention
that the County’s ordinance bans messages that the targeted
resident wants to receive. Plaintiffs offer several examples.
First, Plaintiffs argue that the ordinance would prohibit a little
league team holding a “Get Well Soon Tommy” sign in front
of their teammate’s house. See Frisby, 487 U.S. at 496-97
(Stevens, J., dissenting) (noting that a child carrying a sign
reading “ ‘Get Well Charlie — Our Team Needs You’ ” was
unlawful conduct under the majority’s interpretation of the
residential picketing ordinance). Second, Plaintiffs claim that
the ordinance would prevent a child from protesting on the
sidewalk in front of her parent’s house, even if her parents
encouraged such a demonstration as training in social activ-
ism. And, finally, Plaintiffs allege that the ordinance would
cover a picketer who wished to “target” a neighborhood to
warn them about some danger in a neighborhood, for exam-
ple, that a sex offender had moved in nearby.
[12] We believe the strong remedy of striking this ordi-
nance down on overbreadth grounds is not called for here.
First, we note that the ordinance prohibits only picketing tar-
11474 KLEIN v. SAN DIEGO COUNTY
geted at a single residential dwelling. See San Diego County
Code § 311.102 (defining targeted picketing as picketing “tar-
geted at a particular residential dwelling”). The “Purposes and
Intents” section of the ordinance confirms this interpretation:
“This ordinance is not intended to preclude the right to picket
in a residential area generally and in such a manner that does
not target or focus upon a particular residence or household.”
Id. § 311.101(f). Thus, if the goal of the picketing is to reach
an entire neighborhood with a message, the ordinance would
not apply.
[13] Second, the ordinance is unlikely to have any substan-
tial effect on truly welcome picketing. If the message is
desired by the targeted resident, it is unlikely that the police
would be called to enforce the ordinance. And even if police
threatened to enforce the ordinance, the resident who wished
to hear the speech could simply invite the picketers onto their
private property. See Thorburn v. Roper, 39 F. Supp. 2d 1199,
1214 (D. Neb. 1999). Because there is no “realistic danger
that the statute itself will significantly compromise recognized
First Amendment protection,” Taxpayers for Vincent, 466
U.S. at 801, the Plaintiffs’ facial overbreadth challenge is
denied.
C. Vagueness Challenge
[14] An ordinance is unconstitutionally vague “if it fails to
provide people of ordinary intelligence a reasonable opportu-
nity to understand what conduct it prohibits.” Hill v. Colo-
rado, 530 U.S. 703, 732 (2000). Where a case involves the
First Amendment, a greater degree of specificity and clarity
is required. See Cal. Teachers Ass’n v. State Bd. of Educ., 271
F.3d 1141, 1150 (9th Cir. 2001). At the same time, “perfect
clarity and precise guidance have never been required even of
regulations that restrict expressive activity.” Ward v. Rock
Against Racism, 491 U.S. 781, 794 (1989).
Plaintiffs allege that the County’s ordinance is unconstitu-
tionally vague in that it is impossible to determine, from pub-
KLEIN v. SAN DIEGO COUNTY 11475
lic records or by any other means, where the boundary of the
300-foot zone lies. They argue that picketers are forced to
guess whether they are obeying the ordinance. They also point
out that the statute contains no scienter element that might
protect protesters from an honest mistake as to whether they
were violating the ordinance.
[15] As the district court noted, the language of the statute
itself is not ambiguous. Thus, this is not the typical vagueness
challenge where ambiguous text makes it difficult to deter-
mine what conduct is proscribed. But the ordinance might
nonetheless be unconstitutionally vague if it were impossible
for the picketers to determine the 300-foot boundary with any
precision and if the lack of a scienter element left picketers
strictly liable for any violation. A law that requires a person
to “steer far wider of the unlawful zone” because of doubt
about the boundary cannot stand. Grayned v. City of Rock-
ford, 408 U.S. 104, 108-09 (1972) (citations omitted).
In this case, the district court found that picketers could
walk up to the house and measure out the 300 feet, as long as
there was no “No Trespassing” sign at the targeted residence.
The court also suggested that picketers could use “an inexpen-
sive hand-held rangefinder, topographical maps, or publicly
available land records” to measure the 300 feet. And, failing
all other options, would-be picketers could measure the dis-
tance elsewhere and then “estimate very ably” the distance to
the house.
The district court overstated the options. We disagree that
picketers, already unwelcome guests, should be forced to
march across the targeted resident’s lawn to measure the dis-
tance, even if they might do so without violating trespassing
laws. Such a “solution” promises to escalate tension at the
picket site. Furthermore, while a rangefinder would help a
would-be picketer determine the distance with precision, the
Court has been cautious of options that would require money
as an entrée to speech. See, e.g., Murdock v. Pennsylvania,
11476 KLEIN v. SAN DIEGO COUNTY
319 U.S. 105, 113 (1943) (striking down a $1.50 licensing fee
because it served as a “flat tax” levied on “the enjoyment of
a right granted by the federal constitution”); Fernandes v.
Limmer, 663 F.2d 619, 632 (5th Cir. 1981) (“Were states per-
mitted to tax First Amendment activities, the eventual result
might be the total suppression of all those voices whose pock-
ets are not so deep.”).
[16] Plaintiffs presented uncontroverted evidence that no
public record contained a setback distance so that would-be
picketers could measure precisely the 300-foot boundary. But
assessor’s maps available from the County Tax Assessor’s
office do show lot sizes. While the maps do not indicate
exactly where the residence sits on the lot, a would-be pick-
eter, with the lot map in hand, should be able to estimate the
boundary with some level of precision. A statute is not uncon-
stitutionally vague unless it requires would-be speakers to
“steer far wide” of the boundary — a result we believe is
unlikely here. Accordingly, we will not strike down the ordi-
nance on vagueness grounds.
D. California Constitutional Claims
[17] Plaintiffs argue that they should be granted relief
under the California Constitution as well. The California
courts have noted that protection of expressive activity under
the California Constitution is in some respects broader than
the protection provided by the First Amendment of the United
States Constitution. See Kasky v. Nike, Inc., 45 P.3d 243, 255
(Cal. 2002). Plaintiffs have not, however, pointed to any spe-
cific protection provided by the California Constitution or the
California courts that affects our analysis. Accordingly, we
decline to grant Plaintiffs’ claims on state law grounds.
III. Conclusion
For the foregoing reasons, the district court’s decision is
AFFIRMED.