Seattle Affiliate v. City of Seattle ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEATTLE AFFILIATE OF THE OCTOBER 
22ND COALITION TO STOP POLICE
BRUTALITY, REPRESSION AND THE
CRIMINALIZATION OF A GENERATION,
an unincorporated association,
Plaintiff-Appellant,
v. No. 06-35597
CITY OF SEATTLE; R. GIL  D.C. No.
CV-04-00860-RSL
KERLIKOWSKE, Chief of Seattle
Police Department; SERGEANT DOE, OPINION
a Seattle Police Sergeant;
LIEUTENANT DOE, a Seattle Police
Lieutenant; OFFICER DOE, a Seattle
Police Officer; ERIC SANO; STEVEN
PAULSEN,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
February 5, 2008—Seattle, Washington
Filed December 12, 2008
Before: Raymond C. Fisher, Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge Ikuta
16369
SEATTLE AFFILIATE v. CITY OF SEATTLE 16373
COUNSEL
Michael K. Ryan (argued), Ryan Drew Redekopp and Alex
Wagner, Preston Gates & Ellis LLP, Seattle, Washington, and
Aaron H. Caplan, American Civil Liberties Union of Wash-
ington, Seattle, Washington, for the plaintiff-appellant.
Carlton W. M. Seu (argued), Assistant City Attorney, and
Thomas A. Carr, City Attorney, Seattle, Washington, for the
defendants-appellees.
OPINION
FISHER, Circuit Judge:
We are presented with a conflict between those who wish
to conduct a parade on Seattle’s city streets — a forum histor-
ically preferred by people who want to demonstrate their mes-
sages of honor, celebration or, as in this case, protest — and
the city’s interests in traffic safety. The City of Seattle by
ordinance gives its police chief, when issuing a parade permit,
the discretion to require marchers to use the sidewalks instead
of the city streets. The issue is whether the ordinance violates
the free speech guarantees of the First Amendment because
on its face it impermissibly grants “the licensing official . . .
unduly broad discretion.” Thomas v. Chi. Park Dist., 534 U.S.
316, 323 (2002). We conclude that the ordinance by its terms
gives the Chief of Police unbridled discretion to force march-
ers off the streets and onto the sidewalks, unchecked by any
requirement to explain the reasons for doing so or to provide
some forum for appealing the chief’s decision. We therefore
hold that the parade ordinance is facially unconstitutional.
I. Factual and Procedural Background
The Seattle affiliate of the October 22nd Coalition to Stop
Police Brutality, Repression and the Criminalization of a Gen-
16374 SEATTLE AFFILIATE v. CITY OF SEATTLE
eration (“Coalition”) is an unincorporated association dedi-
cated to raising awareness of the problem of police brutality.
It is part of a national coalition with 40 affiliates in cities
throughout the United States; the focus of these affiliates’
efforts is holding a coordinated annual day of protest on Octo-
ber 22. Every year since 1996, the Coalition’s Seattle mem-
bers have held parades, rallies and speeches on this day in
order to publicly commemorate their “National Day of Protest
to Stop Police Brutality.” The Coalition intends to continue
holding these events annually in the future.
The City of Seattle requires anyone wishing to conduct a
parade in Seattle to first obtain a permit from the Seattle Chief
of Police. The relevant ordinance states:
No person shall conduct or participate in a parade
upon any street or alley in the City without first sub-
mitting a written notification to the Chief of Police
and obtaining a permit from the Chief of Police to do
so. Upon written notification to the Chief of Police,
the Chief of Police shall grant a permit. So that prep-
arations for traffic regulation can be made, the writ-
ten notification for permit shall state the place and
hour of formation, the proposed line of movement or
march, the scheduled starting time, and the names of
the persons having charge or control . . . . The Chief
of Police may modify the place and hour of forma-
tion, the proposed line of movement or march, and
the scheduled starting time in the interest of vehicu-
lar or pedestrian traffic safety.
Seattle Mun. Code Ord. 11.25.020 (hereinafter “Parade Ordi-
nance”).1 Another Seattle ordinance defines a “parade” as
“any organized movement or march of persons and/or things
which requires the closure of streets to prevent a conflict with
the regular flow of vehicular traffic.” SMC 11.14.410. A
1
Hereinafter, all citations to “SMC” refer to the Seattle Municipal Code.
SEATTLE AFFILIATE v. CITY OF SEATTLE 16375
group wishing to hold a parade must apply for a permit at
least 48 hours in advance. See SMC 11.25.020.
The Coalition has applied for and received a parade permit
from the Seattle Chief of Police every year since 2001. Over
the course of several years, however, these permits have been
subjected to conditions that the Coalition found objectionable.
In both 2002 and 2004, the Seattle Chief of Police issued
parade permits requiring the Coalition’s marchers to “use the
sidewalk and obey traffic control signals” if there were fewer
than 200 marchers present.2 The Coalition’s 2003 parade per-
mit did not contain any minimum numbers requirement, but
on the day of the march, Seattle police officers instructed the
Coalition to use the sidewalks. Coalition members protested
that the permit gave them the right to march on the streets, but
one of the police officers present told group members that the
parade permit had been “rescinded” and that the decision to
rescind was “based on the number” of marchers, which was
estimated to be between 80 and 100. Under protest, the Coali-
tion’s 2003 parade proceeded on the sidewalk along the desig-
nated route, with police escorting the marchers on foot and
bicycle.
Seattle does not include a minimum numbers requirement
in all — or even most — parade permits as a condition of
allowing marchers to utilize the streets, nor does it set the
minimum requirement at a consistent number when it does
impose one. Seattle issued 279 parade permits between Janu-
ary 1999 and July 2005, of which 25, or approximately nine
percent, imposed some form of a minimum numbers require-
ment as a prerequisite to marching in the street. Twenty-one
of these permits required a minimum of 200 participants,
while the remaining set limits that varied between 50 and 500
participants. The Coalition maintains that Seattle’s permitting
practices reveal that political or protest marches were more
2
Seattle ultimately agreed to reduce this minimum numbers requirement
in the 2004 permit to 100, after negotiations with the Coalition’s attorney.
16376 SEATTLE AFFILIATE v. CITY OF SEATTLE
likely than other parades to have their permission to use the
streets conditioned on gathering a minimum number of
marchers. The district court agreed, noting that “a review of
defendants’ permitting decisions over the last few years
shows that applications for political and/or protest marches
are more likely to garner a minimum participant requirement
than are community or sports-related events.” This conclusion
is borne out by the record, which shows that while not all
expressly political or protest marches received such condi-
tional permits, a minimum numbers requirement was dispro-
portionately likely to be imposed on political, as opposed to
community or religious, events.
The Coalition brought this action in federal district court,
contending that the conduct of Seattle’s police officers at the
Coalition’s 2003 parade violated their free speech and due
process rights and that Seattle’s Parade Ordinance on its face
violates the First Amendment to the U.S. constitution, as well
as provisions of the Washington state constitution. On cross-
motions for summary judgment, the district court held that the
Parade Ordinance does not violate the First Amendment on its
face. The parties agreed to settle the Coalition’s free speech
claim as applied to the officers’ conduct during the 2003
parade, and so all that remains before us on appeal is the
facial challenge. We review the district court’s decision on
cross-motions for summary judgment de novo. Arakakai v.
Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002). We reverse.
II. Seattle’s Parade Ordinance
Before we consider the Coalition’s First Amendment chal-
lenge to the Parade Ordinance, we address the extent of the
authority the Ordinance confers. The Parade Ordinance is
fairly terse, but the scope of the Chief of Police’s authority is
clear. First, the Chief of Police has no authority to deny a
parade permit. See SMC 11.25.020 (“Upon written notifica-
tion . . . the Chief of Police shall grant a permit.” (emphasis
added)). Second, the permitting requirement applies to any
SEATTLE AFFILIATE v. CITY OF SEATTLE 16377
“parade upon any street or alley.” Id. Elsewhere, Seattle
defines a “parade” to include “any organized movement or
march of persons and/or things which requires the closure of
streets to prevent a conflict with the regular flow of vehicular
traffic.” SMC 11.14.410. Third, the Parade Ordinance gives
the Chief of Police the discretion to modify the parade in vari-
ous ways, including by changing the “proposed line of move-
ment or march.” SMC 11.25.020. Although Washington
courts have not provided any authoritative interpretation of
the Parade Ordinance, the Seattle Chief of Police has inter-
preted his authority to alter the “proposed line of movement
or march” to include the authority to require marchers to use
the sidewalks in lieu of the streets and to require marchers to
obey traffic signals.
The Coalition suggests that we may avoid the constitutional
question if we conclude that placing marchers on the side-
walks, whether the marchers are required to obey traffic sig-
nals or not, amounts to a constructive and impermissible
denial of a parade permit because a “parade” under Seattle
law occurs only when there is a “closure of the streets.”
Because Seattle law requires parade permits to be conferred
as of right, the Coalition contends, the Chief of Police has no
authority to place parades onto sidewalks. Seattle responds
that sidewalk marches can also be parades under Seattle law
because they may require some closure of the streets, such as
when police provide traffic control at intersections or close a
lane of traffic so that they can safely escort marchers. Thus,
Seattle argues, sidewalk marches are merely rerouted parades,
not complete denials of parades. The Coalition conceded that
during the Coalition’s 2003 march, when the marchers were
compelled to remain on the sidewalk, police officers occupied
a lane of traffic throughout the march and marchers were
required to obey some traffic signals, but not others.
We agree with the Coalition that a constructive denial of a
permit could occur if police officials confined marchers to the
sidewalk without providing a street escort or other police ser-
16378 SEATTLE AFFILIATE v. CITY OF SEATTLE
vices, and that such a denial would be open to challenge on
an as-applied basis. We agree with Seattle, however, that the
Parade Ordinance on its face does not limit the Chief of
Police’s authority to “modify . . . the proposed line of move-
ment” of the march by placing marchers on sidewalks. If
police close a lane of traffic for safety reasons or otherwise
provide traffic control during the march, then marchers
receive a privilege not accorded to non-marching pedestrians.
Therefore, the Chief of Police has authority under the Parade
Ordinance to alter the parade route by requiring marchers to
use sidewalks instead of streets.
III. Facial Challenge Under the First Amendment
To determine whether the Parade Ordinance complies with
the requirements of the First Amendment, we must first
decide whether the Coalition may properly bring a facial chal-
lenge to the Ordinance. We conclude that it may.
The Coalition does not question Seattle’s authority to
require parade organizers to obtain a permit in advance of
holding a street parade, and the constitutionality of such per-
mitting schemes is well established. See Forsyth County v.
Nationalist Movement, 505 U.S. 123, 130 (1992) (“[The] gov-
ernment, in order to regulate competing uses of public
forums, may impose a permit requirement on those wishing
to hold a march, parade, or rally.” (citations omitted)). The
Coalition also does not dispute that Seattle may issue such
permits subject to reasonable time, place and manner restric-
tions, including restrictions on the start time or route of the
march. Rather, the Coalition principally argues that the Parade
Ordinance violates the First Amendment because it fails to
provide sufficient guidance to the police as to when they may
require marchers to use the sidewalks and deny them access
to the streets. This lack of guidance, in the Coalition’s view,
is compounded by the absence of any requirement that the
police officials articulate their reasons and the absence of any
administrative or judicial review mechanism. This, the Coali-
SEATTLE AFFILIATE v. CITY OF SEATTLE 16379
tion contends, creates an unacceptable risk that officers will
arbitrarily modify certain groups’ permits by prohibiting them
from marching in the streets based on the content of their
speech.
[1] Facial challenges are generally disfavored, both because
they may require us to pass judgment on a statute that has not
been implemented and because a ruling of unconstitutionality
undermines the democratically expressed will of the people.
See Wash. State Grange v. Wash. State Republican Party, 128
S. Ct. 1184, 1191 (2008). The Supreme Court, however, has
“long held that when a licensing statute allegedly vests unbri-
dled discretion in a government official over whether to per-
mit or deny expressive activity, one who is subject to the law
may challenge it facially,” even when that person has neither
applied for nor been denied a license. City of Lakewood v.
Plain Dealer Publ’g Co., 486 U.S. 750, 755-56 (1988). This
is so for two reasons. First, the Court has recognized that,
even as to permitting schemes that are content neutral on their
face, “the mere existence of the licensor’s unfettered discre-
tion” may intimidate parties into self-censoring their speech,
and such self-censoring effects are incapable of redress
through an as-applied challenge. Id. at 757-58. Second, and
particularly relevant here, “the absence of express standards
makes it difficult to distinguish, ‘as applied,’ between a licen-
sor’s legitimate denial of a permit and its illegitimate abuse of
censorial power.” Id. at 758.
[2] The Parade Ordinance is susceptible to the Coalition’s
facial challenge because the Ordinance would be similarly
subject to abuse and the attendant dangers of self-censorship
if it confers unfettered discretion on the Seattle Chief of
Police or his subordinates. The exclusive purpose of the Ordi-
nance is to regulate constitutionally protected expressive
activity, thereby creating a greater danger of both censorship
and self-censorship than laws of general applicability that
may incidentally be misused to burden expression. See id. at
760-61. The danger of abuse is acutely presented in this case,
16380 SEATTLE AFFILIATE v. CITY OF SEATTLE
where the speech the Coalition seeks to engage in — protest-
ing police brutality — is directly critical of the governmental
body that administers Seattle’s permit scheme. Recognizing
such kinds of risks, both the Supreme Court and we have
repeatedly allowed plaintiffs to bring facial challenges to per-
mitting schemes that regulate expressive activity. See, e.g.,
Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002)
(park permit scheme); Forsyth County, 505 U.S. at 131(assembly and parade fee scheme); Plain Dealer, 486 U.S. at
755 (newspaper rack permit scheme); Long Beach Area Peace
Network v. City of Long Beach, 522 F.3d 1010, 1019 (9th Cir.
2008) (event permit scheme); Santa Monica Food Not Bombs
v. City of Santa Monica, 450 F.3d 1022, 1025 (9th Cir. 2006)
(community event permit scheme); G.K. Ltd. Travel v. City of
Lake Oswego, 436 F.3d 1064, 1068-70 (9th Cir. 2006) (sign
permit scheme).
[3] That the Ordinance authorizes only a “modification” of
a parade permit by rerouting marchers from the streets to the
sidewalk, not an outright denial of a permit, does not preclude
a facial challenge. We must look to the implementation of the
Ordinance to ascertain whether the City has in practice nar-
rowed the Ordinance in a way that remedies any potential
overbreadth and precludes constitutional challenge. See For-
syth County, 505 U.S. at 131; Ward v. Rock Against Racism,
491 U.S. 781, 795-96 (1989); Foti v. City of Menlo Park, 146
F.3d 629, 639 (9th Cir. 1998). Upon examination, not only
has the City failed to narrow the Ordinance’s scope in prac-
tice, but it has implemented the Ordinance at times in a way
that expands it even beyond what the City now claims its
scope to be. Significantly, the Seattle police have been enforc-
ing the Ordinance as though it authorized denying permits
(relegating marchers to the sidewalks as normal pedestrians),
although the City has repeatedly claimed that all permits must
be granted. For example, the police department has issued
permits with the following kinds of restrictions: “If there are
less than 200 participants, the participants will use sidewalks
and obey traffic control signals.” “Permit on condition of
SEATTLE AFFILIATE v. CITY OF SEATTLE 16381
500+ participants.” “If event organizers are unable to have
200+ participants, the Field Incident Commander has the abil-
ity to re[s]cind this permit and have the group utilize the side-
walk.”(emphasis added). By their own description, therefore,
the Seattle police have rescinded permits if minimum num-
bers determined by the police — not conditions in the Ordi-
nance itself — are not met. When such permits are
“rescinded,” the marchers are required to proceed on the side-
walk rather than the street and to follow all traffic signals, just
like regular pedestrians, an activity the City has conceded
does not require a permit. The effect of such a rescission,
therefore, is tantamount to a constructive denial of a parade
permit.3
[4] The implementation of the Ordinance by the Seattle
police thus demonstrates the appropriateness of a facial chal-
lenge in two ways: First, as applied the Ordinance seems to
be more akin to a permit scheme that allows the deciding offi-
cial to grant or deny a permit for speech than to a system
allowing mere modifications to the conditions under which
speech is allowed. Second, taking the City at its word that the
intention of the Ordinance was to guarantee “parade” permits
to all applicants, the fact that the police believed themselves
authorized to transform a parade into a group walk on the
sidewalks illustrates that the Ordinance contains no readily
apparent guidelines.
[5] Furthermore, by routing marchers onto sidewalks, Seat-
tle undoubtedly “den[ies] use of a forum in advance of actual
expression,” namely, the streets. See Ward, 491 U.S. at 795
n.5 (quoting Se. Promotions, Ltd. v. Conrad, 420 U.S. 546,
553 (1975)); see also Long Beach Area Peace Network, 522
F.3d at 1027 (considering facial challenge to ordinance that
allowed officials to “restrict[ ] events to city sidewalks, por-
3
The Dissent, at footnote 3, misses the point of our citation of these
examples, which simply demonstrate that the City does in fact construc-
tively deny parade permits.
16382 SEATTLE AFFILIATE v. CITY OF SEATTLE
tions of a city street, or other public right-of-way” (internal
quotation marks omitted)). The public streets are “the quintes-
sential traditional public fora,” as the Supreme Court has long
recognized. Int’l Soc’y for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672, 676 (1992); see also Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, 515
U.S. 557, 579 (1995) (“Having availed itself of the public
thoroughfares for purposes of assembly [and] communicating
thoughts between citizens, the [petitioner] is engaged in a use
of the streets that has from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.” (inter-
nal quotation marks omitted) (first alteration in original)). We
have accordingly held that streets and sidewalks are distinct
forums for speech. See ACORN v. City of Phoenix, 798 F.2d
1260, 1266 (9th Cir. 1986) (noting that the Supreme Court has
“listed ‘sidewalks’ separately as an additional example of tra-
ditional public fora, rather than as wrapped up in a broad defi-
nition of the word ‘streets’ ”). Therefore, even if the
Ordinance does not give the Chief of Police the discretion to
permit or deny a permit, it clearly does give the Chief of
Police the discretion to “permit or deny expressive activity,”
namely, a street march. Plain Dealer, 486 U.S. at 755(emphasis added).
We therefore disagree with the dissent’s suggestion that the
Coalition should not be permitted to bring a facial challenge
because Seattle’s permit scheme requires officials to make
available another public forum — the sidewalks — at the
same time they deny access to the streets. This would ignore
that both the message and the ability to reach an audience are
sensitive to the place and method of communication. See, e.g.,
City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (noting that
“[d]isplaying a sign from one’s own residence often carries a
message quite distinct from placing the sign somewhere else,
or conveying the same text or picture by other means”); Santa
Monica Food Not Bombs, 450 F.3d at 1047 (“The ability to
communicate a particular message in a particular location can
significantly contribute to the effectiveness of that communi-
SEATTLE AFFILIATE v. CITY OF SEATTLE 16383
cation.”). Street parades afford greater visibility to the march-
ers than parading down the sidewalk, and may also allow
marchers to proceed abreast, march behind a horizontal ban-
ner and more easily distribute materials to pedestrians on both
sides of the street. A group such as the Coalition that wishes
to claim for itself the unique message of a street march, and
that believes a sidewalk parade minimizes its ability to com-
municate with its audience, therefore might easily be intimi-
dated into censoring its message so as to avoid being rerouted
to the sidewalk — for example, by toning down its critique of
police brutality so as to avoid unfavorable treatment by the
police officials who administer the permits.4
If all speech permit schemes were immune from facial
challenge simply because they required officials to permit
access to some forum for speech, legislatures would simply be
encouraged to draft their regulations more broadly, sweeping
up a broad class of speech and then leaving administrators a
free hand to make extensive “modifications” within that class.5
This would lead to the anomalous result that a statute confer-
4
Further, the Supreme Court has allowed facial challenges to statutes
that did not themselves actually give officials discretion to deny a permit,
but rather allowed officials the discretion to burden a group’s speech dif-
ferently depending on its message. See, e.g., Forsyth County, 505 U.S. at
133 (striking down a statute on a facial challenge where “nothing in the
law or its application prevents the official from encouraging some views
and discouraging others through arbitrary application of fees” (emphasis
added)). Thus the complete and explicit denial of any right to speak is not,
as the dissent suggests, the sine qua non of the right to bring a facial chal-
lenge.
5
For example, if we adhered to the dissent’s proposed distinction, then
an ordinance requiring a permit for “a billboard” would be subject to facial
challenge, whereas an ordinance requiring officials to issue a permit for
“any sign,” but allowed officials to “modify” a request for a billboard by
approving a two-foot lawn sign instead, would not. Subjecting these two
statutes to two different constitutional tests, on the theory that one denies
speech whereas the other allows only “modifications” to speech, would
hang too much on an inconsequential distinction. In both cases, the indi-
vidual has been denied permission to put up a billboard.
16384 SEATTLE AFFILIATE v. CITY OF SEATTLE
ring more discretion on administrators would be less suscepti-
ble to facial challenge. The danger, moreover, of such a free
hand to modify the conditions under which speech is allowed
has been demonstrated here: even though the City believes
that every permit must be granted, the Chief of Police has
interpreted his authority to modify to do so in such a way that
it is no longer a parade at all. Without adequate standards to
guide official discretion in applying the Ordinance, the risk of
such censorship — and self-censorship — is real. Accord-
ingly, we hold that the Coalition may bring a facial challenge
to the Parade Ordinance.
IV. The First Amendment
Having concluded that the Coalition may bring a facial
challenge to the Parade Ordinance under the First Amend-
ment, we turn to whether the way in which the Ordinance reg-
ulates marchers’ access to the streets satisfies the
requirements of the First Amendment. We hold that it does
not.
A. Legal Framework
The Supreme Court has emphasized in a long line of cases
that robust political discourse within a traditional public
forum is the lifeblood of a democracy. See, e.g., Garrison v.
Louisiana, 379 U.S. 64, 74-75 (1964) (“[S]peech concerning
public affairs is more than self-expression; it is the essence of
self-government.”). The First Amendment “applies with par-
ticular force” to a “march and other protest activities,” such
as the Coalition seeks to engage in here. United States v.
Baugh, 187 F.3d 1037, 1042 (9th Cir. 1999). This is particu-
larly true where the march takes place in the streets, which
“have immemorially been held in trust for the use of the pub-
lic and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and dis-
cussing public questions.” Hague v. Comm. for Indus. Org.,
307 U.S. 496, 515 (1939); see also Frisby v. Schultz, 487 U.S.
SEATTLE AFFILIATE v. CITY OF SEATTLE 16385
474, 481 (1988) (“[A]ll public streets are held in the public
trust and are properly considered traditional public fora.”).
When the government seeks to regulate access to the streets,
“First Amendment protections are at their strongest and regu-
lation is most suspect.” Long Beach Area Peace Network, 522
F.3d at 1021. Because of the special status of traditional pub-
lic fora in our First Amendment tradition, “the government
must bear an extraordinarily heavy burden to regulate speech
in such locales.” NAACP, Western Region v. City of Rich-
mond, 743 F.2d 1346, 1355 (9th Cir. 1984).
The Supreme Court has traditionally referred to any permit-
ting scheme as a “prior restraint on speech” that faces a
“heavy presumption against validity.” See Forsyth County,
505 U.S. at 130 (internal quotation marks omitted). The
Court, however, has more recently distinguished between
schemes that “authorize a licensor to pass judgment on the
content of speech” and those whose purpose “is not to exclude
communication of a particular content, but to coordinate mul-
tiple uses of limited space” on a content-neutral basis.
Thomas, 534 U.S. at 322. A permit scheme that regulates
competing uses of space on a content-neutral basis “differs
toto coelo” from a traditional censorship regime. Id. at 322-23(internal quotation marks omitted). It therefore “bear[s] a
somewhat lighter burden,” including that it is not required to
meet the extraordinary procedural requirements governing tra-
ditional prior restraints. Santa Monica Food Not Bombs, 450
F.3d at 1036; see also G.K. Ltd. Travel, 436 F.3d at 1082.
Licensing regimes whose sole purpose is to regulate compet-
ing uses of public space are evaluated “as a content-neutral
time, place, and manner permitting scheme.” Santa Monica
Food Not Bombs, 450 F.3d at 1036-37.
The Coalition does not seriously dispute that the Parade
Ordinance is a content-neutral time, place and manner regula-
tion, and in fact concedes that the Ordinance is content neutral
on its face. Although the Coalition argues that the Ordinance
has been used by officials to discriminate on the basis of con-
16386 SEATTLE AFFILIATE v. CITY OF SEATTLE
tent in the past, the reasons for the differential treatment are
not sufficiently developed in the record for us to infer they
were content based. Further, the Ordinance itself does not
instruct the Chief of Police to differentiate speech on the basis
of content, and so any content-based discrimination, if it
occurred, happened because the Ordinance failed to prevent it,
not because the Ordinance required it. We shall therefore take
the Ordinance at face value for purposes of our analysis. See
G.K. Ltd. Travel, 436 F.3d at 1071 (“[W]hether a statute is
content neutral or content based is something that can be
determined on the face of it; if the statute describes speech by
content then it is content based.” (internal quotation marks
omitted)).
[6] The only question before us, therefore, is whether the
Ordinance satisfies the requirements of a valid time, place and
manner restriction on speech. To be valid under the First
Amendment, “[s]uch 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 tai-
lored to serve a significant governmental interest; and (4)
must leave open ample alternatives for communication.”
Santa Monica Food Not Bombs, 450 F.3d at 1037; see also
Long Beach Area Peace Network, 522 F.3d at 1022. We have
already accepted the Ordinance as being content neutral, so
we focus on the first component: overbroad discretion. If the
Ordinance delegates overly broad discretion to police offi-
cials, we need not determine whether it satisfies the remaining
components of the test. See Thomas, 534 U.S. at 323 n.3.
B. Overly Broad Discretion
[7] To determine whether the Ordinance impermissibly
grants “the licensing official . . . unduly broad discretion,” we
consider whether the language of the Ordinance “contain[s]
adequate standards to guide the official’s decision and render
it subject to effective judicial review.” Thomas, 534 U.S. at
323; see also G.K. Ltd. Travel, 436 F.3d at 1082. Such guide-
SEATTLE AFFILIATE v. CITY OF SEATTLE 16387
lines mitigate the “risk that [the licensor] will favor or disfa-
vor speech based on its content.” Thomas, 534 U.S. at 323.
Among the factors we consider is whether the Ordinance con-
tains “narrowly drawn, reasonable and definite standards” that
guide the hand of the administrator. Forsyth County, 505 U.S.
at 133 (internal quotation marks omitted). The Supreme Court
has expressed particular concern about statutes that do not
require the licensor to “provide any explanation for his deci-
sion, and [where] that decision is unreviewable.” Id.; see also
Thomas, 534 U.S. at 324 (holding that ordinance did not con-
fer excess discretion where the licensor “must clearly explain
its reasons for any denial,” and where the statute’s standards
are “enforceable on review” by appeal to an administrative
board and then to the state courts). None of these factors is
itself necessarily determinative of whether a statute confers
excess discretion. Instead, we look to the totality of the factors
to assess whether this Ordinance contains adequate safeguards
to protect against official abuse.
[8] Starting with the language of the Parade Ordinance
itself, the Chief of Police may modify parade permits for only
one reason: “in the interest of vehicular or pedestrian traffic
safety.” SMC 11.25.020. Seattle’s Chief of Police and the
police lieutenant in charge of administering parade permits
testified to a variety of circumstances that officials might con-
sider when deciding to place a parade on the sidewalk, includ-
ing the lighting and weather conditions at the time of the
march, the proposed route, any construction or roadway prob-
lems along the route, emergency vehicle access, sidewalk
widths, the size of the proposed march and whether the march
would include vehicles or floats. The articulated list of rele-
vant factors both changed and grew during the course of liti-
gation in the district court, however; at various points, the list
ranged from whether “normal citizens [are] trying to spend
money and have a meal” on the sidewalk to the dangers a
street march would pose to marchers and drivers. Moreover,
Seattle never claimed that these factors were enumerated in
any official policy; in fact, the police officer responsible for
16388 SEATTLE AFFILIATE v. CITY OF SEATTLE
issuing parade permits said that to his knowledge, these fac-
tors were “not spelled out anywhere, [or] written down.”
[9] In evaluating the facial challenge to the Parade Ordi-
nance, we consider “the [City’s] authoritative constructions of
the ordinance, including its own implementation and interpre-
tation of it.” Forsyth County, 505 U.S. at 131. The various
factors listed by Seattle’s police officials do not restrict their
discretion, however, unless “the limits the city claims are
implicit in its law [are] made explicit by textual incorporation,
binding judicial or administrative construction, or well-
established practice.” Plain Dealer, 486 U.S. at 770. We
decline to elevate any of the various decisional principles
offered by Seattle’s officials to the realm of “well-established
practice,” when no consistent set of factors was ever articu-
lated. Further, some of these principles actually appear to
broaden official discretion rather than restrain it, such as one
officer’s understanding that he could place marchers on
streets or sidewalks depending on the extent to which their
presence would inconvenience customers of sidewalk cafes.
These factors, therefore, appear simply to follow from police
officials’ general belief that they should exercise their duties
in a “reasonable” and “good faith” manner. Because Seattle
has neither a binding interpretation of the Parade Ordinance
nor any well-established practices governing the exercise of
official discretion, the only question before us is whether the
Ordinance, on its face, provides sufficient guidance to these
officials.
Seattle argues that the language of the Ordinance — which
states that the Chief of Police may move marchers onto side-
walks only “in the interest of vehicular or pedestrian safety”
— provides an adequate standard to guide official discretion.
Seattle asserts that this standard confers no more discretion on
its face than the standards the Supreme Court approved in
Thomas and Cox v. New Hampshire, 312 U.S. 569 (1941),
and that it is narrower than the standard the Supreme Court
criticized in Shuttlesworth v. City of Birmingham, 394 U.S.
SEATTLE AFFILIATE v. CITY OF SEATTLE 16389
147 (1969). The Coalition argues that this language in fact
confers wide discretion, because it allows Seattle to deny a
group access to the streets whenever police officials deter-
mine it is in the “interest of vehicular or pedestrian safety.”
SMC 11.25.020 (emphasis added). Because nearly every
street parade creates potential safety concerns for participants,
pedestrians and vehicular traffic, the Coalition contends that
virtually any denial of a street parade could be said to be in
the “interest of” safety.
[10] We agree with the Coalition that the Parade Ordi-
nance’s language provides less guidance to officials than the
standards considered in Cox and Thomas. In Thomas, the
ordinance allowed the city to deny a permit to use the park if,
among other reasons, the activity “would present an unrea-
sonable danger to the health or safety” of the public or park
employees. 534 U.S. at 319 n.1 (emphasis added). The statute
in Cox, as interpreted by the state’s supreme court, instructed
the municipality to license a march, provided “the conve-
nience of the public in the use of the streets would not thereby
be unduly disturbed.” 312 U.S. at 576 (emphasis added). The
Parade Ordinance, however, allows officials to restrict march-
ers’ access to the streets whenever such a restriction is in the
undefined “interest of” traffic and pedestrian safety. This lan-
guage gives officials less guidance and more leeway than
those standards the Supreme Court and we have previously
approved. See Long Beach Area Peace Network, 522 F.3d at
1027 (approving statute giving officials the discretion to “re-
strict[ ] events to city sidewalks, portions of a city street, or
other public right-of-way,” but only when such restrictions
are “necessary to . . . protect the safety of persons and prop-
erty and to control vehicular and pedestrian traffic” (internal
quotation marks omitted) (emphasis altered)); City of Rich-
mond, 743 F.2d at 1349 n.1 (approving statute that required
approval of parade permits unless they would place an “undue
burden upon the movement of vehicular traffic” (emphasis
added)); see also Field Day, LLC v. County of Suffolk, 463
F.3d 167, 180 (2d Cir. 2006) (approving statute that, as con-
16390 SEATTLE AFFILIATE v. CITY OF SEATTLE
strued, “allows the official only to consider whether a pro-
posed mass gathering presents unreasonable risks to life or
health”); cf. Shuttlesworth, 394 U.S. at 149-50 (holding that
statute granted excessive discretion in allowing the city to
deny a parade permit if “in its judgment the public welfare,
peace, safety, health, decency, good order, morals or conve-
nience require that it be refused”).
[11] The breadth of the Ordinance becomes particularly
troublesome when we consider its failure to require officials
to articulate their reasons for denying permission to march in
the streets and the absence of any mechanism for direct
administrative or judicial review.6 The Supreme Court’s deci-
sion in Thomas is instructive in this regard. The Court made
it quite plain that its acceptance of the standard governing the
Chicago Park District’s discretion — that the activity “would
present an unreasonable danger to the health or safety” of the
public or park employees, a standard itself more limiting than
Seattle’s — rested on two important procedural checks on that
discretion missing here: (1) the officials had to state their spe-
cific reasons for concluding that there was an unreasonable
danger, and (2) their decision was subject to both administra-
tive and judicial review. See Thomas, 534 U.S. at 323 (“We
have thus required that a time, place, and manner regulation
contain adequate standards to guide the official’s decision and
6
Seattle suggested for the first time on appeal that parade permits could
be reviewed on appeal through a separate permitting system that exists for
“special events.” See SMC 15.52.060(D). Special events are events
involving more than 50 people that are likely to have a substantial impact
on the public place where they are held and require the provision of sub-
stantial public services. SMC 15.52.005(A). Special events permits, unlike
parade permits, must be sought three months in advance. SMC
11.15.060(A). There is no basis for concluding that parades and special
events are synonymous under Seattle law, and Seattle presented no evi-
dence that the terms of parade permits could be appealed under the Special
Events Ordinance.
SEATTLE AFFILIATE v. CITY OF SEATTLE 16391
render it subject to effective judicial review.” (emphasis
added)).7
Both the Supreme Court and this court have repeatedly rec-
ognized that requiring officials to state the reasons for a
license denial provides an important check on official discre-
tion by “facilitat[ing] effective review of the official’s deter-
mination” and “ensur[ing] that the . . . determination is
properly limited in scope.” G.K. Ltd. Travel, 436 F.3d at 1083
(citing Thomas, 534 U.S. at 324). We have consistently
emphasized the importance of these two checks together,
which ensure that officials do not abuse the authority con-
ferred on them by statute. See, e.g., Thomas, 534 U.S. at 324;
Forsyth County, 505 U.S. at 133 (holding parade fee ordi-
nance unconstitutional where the administrator “need not pro-
vide any explanation for his decision, and [where] that
decision is unreviewable”); Plain Dealer, 486 U.S. at 769(holding a news-rack permitting ordinance unconstitutional in
part because “nothing in the law as written requires the mayor
to do more than make the statement ‘it is not in the public
interest’ when denying a permit application”); cf. Long Beach
Area Peace Network, 522 F.3d at 1027 (permitting scheme
not unconstitutional where officials must “provide . . . a writ-
ten explanation for a decision that imposes conditions on the
permit” and where that decision can be appealed to the city
council or state court).
[12] Requiring officials to state their reasons for restricting
speech is particularly important because without a written
explanation it is “difficult to distinguish, ‘as applied,’ between
7
The procedural checks of Thomas are quite different from the proce-
dural requirements rejected in Southern Oregon Barter Fair v. Jackson
County, 372 F.3d 1128 (9th Cir. 2004). See Dissent at 16400. In Southern
Oregon, we held that the three specific procedural safeguards placed upon
content-based “explicit censorship schemes,” established in Freedman v.
Maryland, 380 U.S. 51 (1965), are not required of content-neutral licens-
ing schemes, but we did not exonerate all such schemes from any proce-
dural checks. See Southern Oregon, 372 F.3d at 1137.
16392 SEATTLE AFFILIATE v. CITY OF SEATTLE
a licensor’s legitimate denial of a permit and its illegitimate
abuse of censorial power.” See Plain Dealer, 486 U.S. at 758.
The Parade Ordinance allows the officials who administer
Seattle’s permit scheme to deny marchers access to the streets
without even the barest expression as to why their march
needed to be placed on the sidewalk in the interest of pedes-
trian and traffic safety. The dissent emphasizes that some of
these decisions are made by police on the ground during the
parade and suggests it would be impracticable to ask officials
to provide a written decision and an appeal right. See Dissent
at 16399. However, police officers routinely explain discre-
tionary decisions after they occur, and even a requirement of
after-action justification would provide an important check on
police abuse. Further, and more importantly, the Parade Ordi-
nance also gives this same unfettered discretion to the permit-
ting officials who review and grant applications well in
advance of parade day. Permitting officials who review, grant
and restrict permits could easily produce a written record to
enable judicial (and administrative) review and provide dis-
gruntled applicants with the right to appeal.8 This lack of a
written record is a critical defect, because without any record
of the rationale for the decision, “post hoc rationalizations by
the licensing official and the use of shifting or illegitimate
criteria are far too easy, making it difficult for courts to deter-
mine in any particular case whether the licensor is permitting
8
We agree with the dissent that wider discretion may be more appropri-
ate for the police on the scene than the officials who grant permits,
because officers on the ground may be confronted with unexpected condi-
tions at the time of the parade and be required to make instantaneous deci-
sions. The officials who grant permits in advance, however, do not face
these exigencies. The dissent does not contend that the Ordinance can or
should be construed to apply only to the police on the ground, and the
Ordinance cannot be saved from facial invalidity when it confers excess
discretion on administrators who face no obstacles to providing a written
explanation with an appeal right. We express no opinion as to whether a
revised ordinance conferring discretion solely on the police officers escort-
ing the parade would need to meet the same requirements as those govern-
ing the initial permitting decision in order to satisfy the First Amendment.
SEATTLE AFFILIATE v. CITY OF SEATTLE 16393
favorable, and suppressing unfavorable, expression.” Plain
Dealer, 486 U.S. at 758. It is therefore no answer to say that
any abuse of the police officials’ authority can be remedied on
a case-by-case, as-applied basis, when the Ordinance itself
makes such after-the-fact review ineffectual if not impossible.9
[13] This problem is highlighted here, where the Coalition
presented evidence that political and protest marches dispro-
portionately received parade permits that conditioned their
use of the streets on the appearance of a certain number of
marchers. See Long Beach Area Peace Network, 522 F.3d at
1043 (noting that evidence suggesting favoritism is “a mani-
festation of the very dangers inherent in unbridled discre-
tion”). We need not decide whether any of these decisions to
place marchers on the sidewalk was an abuse of the police
chief’s discretion. See Forsyth County, 505 U.S. at 133 n.10
(“Facial attacks on discretion granted a decisionmaker are not
dependent on the facts surrounding any particular permit deci-
sion . . . . [T]he success of a facial challenge on the grounds
that an ordinance delegates overly broad discretion to the
decisionmaker rests not on whether the administrator has
exercised his discretion in a content-based manner, but
whether there is anything in the ordinance preventing him
from doing so.” (emphasis added)). It is entirely possible that
each of these decisions was dictated by an articulable interest
of traffic and pedestrian safety, and that there exists a neutral
and non-content-based explanation for this pattern of permit-
ting decisions. However, the very absence of clear standards
in the Parade Ordinance, the lack of any decision-making trail
for us to review and the absence of any administrative appeals
9
The dissent argues that the Coalition’s now-settled as-applied chal-
lenge that Seattle modified parade permits for parades with a political
message demonstrates that as-applied challenges are enough to remedy
any potential violations of discretion. We believe the lawsuit demonstrates
the precise opposite, that only a systemic pattern of discrimination against
political groups, shown by cataloguing hundreds of marches to uncover a
recognizable pattern, can weigh against so vague a standard as “in the
interest of vehicular and pedestrian safety.”
16394 SEATTLE AFFILIATE v. CITY OF SEATTLE
process underscore the obvious risk that officials could
engage in content-based discrimination that would be effec-
tively immune from judicial scrutiny. It is this very risk of
abuse that is intolerable under the First Amendment.
CONCLUSION
[14] The Parade Ordinance’s open-ended standard, com-
bined with the absence of a requirement that officials articu-
late their reasons or an administrative-judicial review process,
vests the Seattle Chief of Police with sweeping authority to
determine whether or not a parade may utilize the forum of
the streets to broadcast its message. The First Amendment
prohibits placing such unfettered discretion in the hands of
licensing officials and renders the Parade Ordinance constitu-
tionally defective on its face. See, e.g., Thomas, 534 U.S. at
324. We therefore need not resolve the other questions pres-
ented by the Coalition, such as whether the Ordinance other-
wise satisfies the requirements of a valid time, place and
manner restriction and whether it is also invalid under the
Washington state constitution. We reverse the grant of sum-
mary judgment to Seattle.
REVERSED.
IKUTA, Circuit Judge, dissenting:
Seattle requires the Chief of Police to grant a parade permit
to anyone who applies for one. SMC 11.25.020.1 The Chief of
1
The ordinance states:
No person shall conduct or participate in a parade upon any street
or alley in the City without first submitting a written notification
to the Chief of Police and obtaining a permit from the Chief of
Police to do so. Upon written notification to the Chief of Police,
the Chief of Police shall grant a permit. So that preparations for
SEATTLE AFFILIATE v. CITY OF SEATTLE 16395
Police has authority only to modify the parade’s place, time,
and proposed line of movement or march “in the interest of
vehicular or pedestrian traffic safety.” Id. Because Seattle
defines “parade” as always involving some “closure of streets
to prevent a conflict with the regular flow of vehicular traf-
fic,” SMC 11.14.410, anyone with a parade permit is entitled
to some use of the city streets. Seattle’s routine effort to coor-
dinate parade activities with public safety concerns is a
garden-variety content-neutral time, place and manner restric-
tion. And yet the majority holds that the routine authority to
reroute a march for vehicular and pedestrian safety is actually
a grant of standardless discretion to deny First Amendment
rights which must be struck down as facially unconstitutional.2
traffic regulation can be made, the written notification for permit
shall state the place and hour of formation, the proposed line of
movement or march, the scheduled starting time, and the names
of the persons having charge or control of the parade, and the
name of the sponsoring agency, if any. Such written notification
shall be delivered to the Chief of Police at least forty-eight (48)
hours before the parade is scheduled to begin: Provided, that the
forty-eight (48) hour time limit for written notification may be
waived by the Chief of Police if, at the time the written notice is
submitted, the Chief of Police anticipates being able to make rea-
sonable preparations for the parade within less time than forty-
eight (48) hours. The Chief of Police may modify the place and
hour of formation, the proposed line of movement or march, and
the scheduled starting time in the interest of vehicular or pedes-
trian traffic safety.
2
As a threshold matter, I doubt the Coalition may properly bring a facial
challenge against the ordinance. Because the ordinance does not give the
Chief of Police the discretion to permit or deny parade licenses, it does not
grant the type of unbridled discretion that has previously caused the
Supreme Court to make an exception to its general disapproval of facial
challenges. See City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750,
757 (1988). Rather, the Seattle ordinance grants the Chief of Police lim-
ited discretion which “is of an entirely different, and lesser, order of mag-
nitude,” Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989), and
which does not give rise to the twin evils of self-censorship and inade-
quate judicial review that are at the center of the Court’s rationale for
allowing facial challenges on an unbridled discretion theory. See Plain
Dealer, 486 U.S. at 757. However, even assuming the majority is correct
in allowing a facial challenge to go forward, I would hold that the Coali-
tion’s challenge fails on the merits. See Ward, 491 U.S. at 794.
16396 SEATTLE AFFILIATE v. CITY OF SEATTLE
Maj. Op. at 16392-94. Because this conclusion is not sup-
ported by Supreme Court precedent or our case law, I must
respectfully dissent.
A
“[I]n order to regulate competing uses of public forums,
[local governments] may impose a permit requirement on
those wishing to hold a march, parade, or rally.” Forsyth
County v. Nationalist Movement, 505 U.S. 123, 130 (1992);
see also Santa Monica Food Not Bombs v. Santa Monica, 450
F.3d 1022, 1036 (9th Cir. 2006).
[E]ven in a public forum the government may
impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions
are justified without reference to the content of the
regulated speech, that they are narrowly tailored to
serve a significant governmental interest, and that
they leave open ample alternative channels for com-
munication of the information.
Ward 491 U.S. at 791 (internal quotation marks omitted). In
addition, a licensing scheme “must not delegate overly broad
discretion to a government official.” Santa Monica Food Not
Bombs, 450 F.3d at 1036. A licensing scheme does not vest
unbridled discretion in government officials when it is guided
by “narrowly drawn, reasonable and definite standards,” For-
syth County, 505 U.S. at 133 (internal quotation marks omit-
ted), that render an official’s decision “subject to effective
judicial review.” Thomas v. Chicago Park Dist., 534 U.S.
316, 323 (2002).
The Coalition contends the Seattle ordinance is facially
unconstitutional because it grants the city “unbridled discre-
tion” to deny expressive activity. On its face, the Seattle ordi-
nance gives the Chief of Police no discretion to deny, or even
to condition, a permit. Rather, the ordinance requires the
SEATTLE AFFILIATE v. CITY OF SEATTLE 16397
Chief of Police to grant every permit request. The Coalition
bases its claim that the ordinance is facially invalid on the
seemingly modest amount of discretion granted to the Chief
of Police: the authority to modify only “the place and hour of
formation, the proposed line of movement or march, and the
scheduled starting time” and only “in the interest of vehicular
or pedestrian traffic safety.” SMC 11.25.020.3 According to
the Coalition, the ordinance’s traffic safety standard does not
meet the Supreme Court’s requirements that a licensing
scheme contain adequate standards to constrain an official’s
discretion.
In my view, the Seattle ordinance is far removed from a
grant of unbridled discretion. As noted above, the Chief of
Police must grant all parade permits and may modify the
direction of a parade only on the ground of traffic safety. This
ground is “reasonably specific and objective, and do[es] not
leave the decision to the whim of the administrator.” Thomas,
534 U.S. at 324 (internal quotation marks omitted). A court
or jury is capable of evaluating whether police officers based
traffic safety decisions on objective factors such as the offi-
cer’s prior experience with such situations or on-the-ground
observations of emergent conditions, or were swayed by their
3
The majority has extracted from the record several examples of occa-
sions when the Seattle police rerouted marches to the sidewalk based on
the size of the march. There has been no finding that such incidents are
representative of Seattle’s implementation of the ordinance. Nevertheless,
even assuming it is proper to consider such isolated examples in a facial
challenge, these incidents support Seattle’s position that its ordinance does
not grant police unbridled discretion to deny expressive activity for illegit-
imate reasons. Regardless of the terminology the police informally used
in describing their decision to reroute certain marches, the evidence identi-
fied by the majority demonstrates that the police allowed each of the pro-
posed marches at issue to go forward. Moreover, the police rerouted
marchers to the sidewalk based on the size of the march, a content-neutral
criterion that is reasonably related to vehicular and pedestrian safety con-
cerns (i.e., a police officer could reasonably determine that a small number
of marchers is less visible to oncoming traffic) and which would be readily
subject to review and challenge in court.
16398 SEATTLE AFFILIATE v. CITY OF SEATTLE
personal feelings or prejudices. In an as-applied challenge to
discriminatory enforcement of the Seattle ordinance, a plain-
tiff may introduce evidence and testimony as to the absence
of objectively based traffic safety concerns and raise the infer-
ence that the officials modified a parade permit for illegiti-
mate discriminatory reasons. Indeed, this point is illustrated
by the history of this litigation. The Coalition brought an as-
applied challenge to the Seattle ordinance in district court,
arguing that Seattle was making modifications to the permit
based on the messages of the marchers, rather than “in the
interest of vehicular or pedestrian traffic.” SMC 11.25.020.
Although the parties ultimately settled the as-applied chal-
lenge, the record provides no indication that the Coalition was
hampered in making its case by a lack of objective and
defined standards against which to test the constitutionality of
the city’s conduct. Given that the traffic safety standard in the
Seattle ordinance is sufficiently objective and defined to ren-
der city officials’ decisions “subject to effective judicial
review,” Thomas, 534 U.S. at 323, the ordinance does not vest
unbridled discretion in the Chief of Police.
The majority’s conclusion to the contrary is not supported
by the Supreme Court decisions that have invalidated permit
schemes on a facial unbridled discretion theory. In Forsyth
County, for instance, the Supreme Court invalidated an ordi-
nance requiring a parade permit applicant to pay a fee for cer-
tain costs prior to the issuance of a permit, where “[t]he
decision how much to charge for police protection or adminis-
trative time—or even whether to charge at all—[was] left to
the whim of the administrator.” 505 U.S. at 133. Similarly, in
Plain Dealer, the Court struck down a city ordinance that
allowed the mayor to condition the grant of a permit on,
among other things, “any other terms and conditions deemed
necessary and reasonable by the Mayor.” 486 U.S. at 753-54(internal quotation marks omitted). Finally, in Shuttlesworth
v. City of Birmingham, the Supreme Court determined that an
ordinance was unconstitutional as written because it lacked
any measurable, objective standard to guide official discre-
SEATTLE AFFILIATE v. CITY OF SEATTLE 16399
tion. 394 U.S. 147, 150-51 (1969). Members of the governing
body “were to be guided only by their own ideas of ‘public
welfare, peace, safety, health, decency, good order, morals or
convenience.’ ” Id. at 150. All of these cases involved broad
and subjective standards that made officials’ decisions essen-
tially unchallengeable. By contrast, the standard in the Seattle
ordinance, “vehicular or pedestrian traffic safety,” is consider-
ably more objective and defined. Indeed, it more closely
resembles the ordinance upheld in Thomas, which granted
park officials authority to deny access to the park only for a
limited number of reasons, including that the use “would pre-
sent an unreasonable danger to the health or safety of the
applicant, or other users of the park, of Park District Employ-
ees or of the public.” 534 U.S. at 319 n.1.
The majority asserts that the Seattle ordinance vests too
much discretion in government officials because the ordi-
nance lacks two procedural safeguards: First, the ordinance
does not require administering officials to state their reasons
for undertaking a modification; and second, the ordinance
does not provide an administrative review process to chal-
lenge modifications on a case-by-case basis. Maj. Op. at
16390-91. While these procedures were included in ordi-
nances the Supreme Court upheld against unbridled discretion
challenges, see Thomas, 534 U.S. at 324, the Court has never
suggested that such requirements are necessary components
of a licensing scheme. In Southern Oregon Barter Fair v.
Jackson County, we explicitly rejected the argument that spe-
cific procedural safeguards, such as provisions for prompt
judicial review of permit denials, were required in order for
a licensing scheme to withstand a facial challenge. 372 F.3d
1128, 1136-38 (9th Cir. 2004).
Nor would a requirement that a content-neutral time, place
and manner restriction contain specific procedural safeguards
be reasonable, because such procedures may not make sense
in every context. Here, for example, decisions regarding per-
mit modifications often occur on the ground, where police are
16400 SEATTLE AFFILIATE v. CITY OF SEATTLE
forced to rapidly respond to emergent and unpredictable con-
ditions such as traffic and weather. Officers at the scene of a
parade cannot do their jobs properly and at the same time be
obliged to provide an explanation for every tactical decision
or an opportunity for administrative appeal.
Indeed, Thomas itself does not place any special weight on
the procedures included in the ordinance at issue in that case,
but rather focuses on whether the standards guiding govern-
ment officials’ exercise of discretion are sufficiently narrow.
In analyzing the provisions of the specific ordinance at issue,
Thomas mentions the procedures relied upon by the majority,
but focuses on the grounds on which officials could deny a
permit, concluding that the standards “are reasonably specific
and objective, and do not leave the decision to the whim of
the administrator.” 534 U.S. at 324; see also Ward, 491 U.S.
at 794 (upholding an ordinance that allowed technicians at a
concert to adjust the volume of the amplification without
requiring a post hoc justification, despite the Court’s recogni-
tion that the “officials implementing [the ordinance] will exer-
cise considerable discretion”); S. Or. Barter Fair, 372 F.3d at
1138-39 (holding that an ordinance requiring permits for cer-
tain mass gatherings was facially valid even without a provi-
sion for prompt judicial review of permit denials or other
procedural safeguards, because the ordinance contained ade-
quate standards to render the administrators’ decisions subject
to effective judicial review).
In sum, neither Supreme Court precedent nor our own case
law supports the majority’s elevation of procedural safeguards
to central importance in determining whether an ordinance
grants officials unfettered discretion. In striking down the
Seattle ordinance for failing to incorporate procedural mea-
sures, the majority has lost sight of the Court’s ultimate ques-
tion: whether the Seattle ordinance “contain[s] adequate
standards to guide the official’s decision and render it subject
to effective judicial review.” Thomas, 534 U.S. at 323.
Because the traffic safety standard in the Seattle ordinance is
SEATTLE AFFILIATE v. CITY OF SEATTLE 16401
sufficiently defined and objective—certainly as objective as
the “unreasonable danger to health or safety” standard upheld
in Thomas—the ordinance does not vest unbridled discretion
in the Chief of Police. The presence or absence of additional
procedural safeguards cannot change this conclusion.
B
The Seattle ordinance not only adequately constrains the
Chief of Police’s discretion, but easily meets the other
requirements for a valid time, place, and manner restriction.
First, the Coalition does not dispute that the Seattle ordi-
nance is content-neutral. See Maj. Op. at 16385. Second, the
ordinance is “narrowly tailored to serve the government’s
legitimate content-neutral interests,” Ward, 491 U.S. at 798,
namely traffic safety. To be narrowly tailored, the regulation
“need not be the least restrictive or least intrusive means” of
serving the government interest. Id. Instead, it must “pro-
mote[ ] a substantial government interest that would be
achieved less effectively absent the regulation.” Id. at 799(internal quotation marks omitted). There is no doubt that the
government has a significant interest in promoting vehicular
and pedestrian safety. See Heffron v. Int’l Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640, 650 (1981) (“[I]t is clear
that a State’s interest in protecting the safety and convenience
of persons using a public forum is a valid governmental
objective.” (internal quotation marks omitted)); ACORN v.
City of Phoenix, 798 F.2d 1260, 1267 (9th Cir. 1986)
(“[M]ore so than with sidewalks or parks, courts have recog-
nized a greater governmental interest in regulating the use of
city streets.” (internal quotation marks omitted)). Seattle’s
ordinance requires officials to issue permits to all applicants
subject to modifications necessary to protect this substantial
interest in pedestrian and vehicular safety. Because the ordi-
nance addresses traffic safety issues “without . . . significantly
restricting a substantial quantity of speech,” One World, One
Family Now v. Honolulu, 76 F.3d 1009, 1014 (9th Cir. 1996)
16402 SEATTLE AFFILIATE v. CITY OF SEATTLE
(alteration in original) (internal quotation marks omitted), that
does not implicate traffic safety issues, it meets the narrow
tailoring requirement.
Finally, the ordinance “leaves open ample alternatives for
communication.” Santa Monica Food Not Bombs, 450 F.3d at
1037. The Coalition asserts that by allowing police to reroute
parades from the street to the sidewalk, Seattle does not leave
open ample alternatives for communication. The majority
similarly asserts that the Chief of Police’s authority to change
the direction of a parade or march gives the Chief of Police
“the discretion to ‘permit or deny expressive activity,’namely,
a street march.” Maj. Op. at 16382 (quoting Plain Dealer, 486
U.S. at 755). I disagree. In my view, the ordinance leaves
open ample alternatives for communication even though the
Chief of Police may require the parade to march partially on
the sidewalk. “[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.” Menotti v. City of Seattle,
409 F.3d 1113, 1138 (9th Cir. 2005) (internal quotation marks
omitted). Instead, “[t]he First Amendment requires only that
the government refrain from denying a reasonable opportunity
for communication.” Id. (internal quotation marks omitted).
Here, the Seattle ordinance allows marchers to “reach[ ] their
intended audience,” One World One Family Now, 76 F.3d at
1014, because, whether they are on streets or on the side-
walks, marchers are still visible from the streets. Although the
marchers may prefer complete access to the streets because it
makes their message more visible, the constitution does not
require that speakers have access to the most effective mode
of expression. Id.; see also Menotti, 409 F.3d at 1138 (holding
that an ordinance prohibiting protests against the World Trade
Organization in an area with greatest access to conference
delegates left open ample alternative channels of communica-
tion because the protestors could make their protests “visible
and audible to delegates, even if not as proximate as the prote-
stors might have liked”).
SEATTLE AFFILIATE v. CITY OF SEATTLE 16403
This conclusion is consistent with the rulings of two of our
sister circuits, which have held that sidewalks can be a rea-
sonable alternative to the streets. In Stonewall Union v. City
of Columbus, the Sixth Circuit upheld the constitutionality of
a Columbus parade ordinance that imposed a fee on appli-
cants for a parade permit. 931 F.2d 1130, 1137 (6th Cir.
1991). In rejecting the claim that the ordinance violated the
constitutional rights of protesters who could not afford the
fee, the court held that “the availability of the sidewalks and
parks provides a constitutionally acceptable alternative for
indigent paraders.” Id.; see also Sullivan v. City of Augusta,
511 F.3d 16, 43-45 (1st Cir. 2007) (upholding an Augusta
licensing scheme that imposed a fee for parades because
although a sidewalk march might “seem less appealing to
some protestors than a street march, it nonetheless provides a
prominent route along major thoroughfares for dissemination
of a message”).
C
In sum, the Seattle ordinance requires the Chief of Police
to grant a permit, subject only to modifications based on “ob-
jective,” “narrowly drawn, reasonable and definite standards,”
Forsyth, 505 U.S. at 133 (internal quotation marks omitted).
Because Seattle’s parade-friendly ordinance is an ordinary
content-neutral time, place, and manner restriction that does
not vest unbridled discretion in the Chief of Police, I respect-
fully dissent from the majority’s determination that it is
facially invalid under the First Amendment.