Krishna Lunch of So. Calif. v. Monroe Gordon, Jr. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISHNA LUNCH OF SOUTHERN No. 18-55316
CALIFORNIA, INC., a California nonprofit
religious corporation; et al., D.C. No.
2:16-cv-08422-DSF-PLA
Plaintiffs-Appellants,
v. MEMORANDUM*
MONROE GORDON, Jr., Interim Vice
Chancellor of Student Affairs, UCLA, in his
official capacity,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted December 11, 2019
Pasadena, California
Before: O'SCANNLAIN and PAEZ, Circuit Judges, and SIMON,** District Judge.
Krishna Lunch, a nonprofit organization located in southern California,
appeals the district court’s dismissal of its free speech, exercise, and association
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
claims under the First Amendment of the United States Constitution.1 For the
reasons that follow, we vacate and remand Krishna Lunch’s free speech and free
association claims and affirm the district court’s dismissal of the free exercise
claim.
I.
The First Amendment, applicable to the states through the Fourteenth
Amendment, prohibits government actors from “abridging the freedom of speech.”
U.S. Const. amend. I. The First Amendment’s free speech protections extend
beyond written or spoken words. See Hurley v. Irish-American Gay, Lesbian, and
Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995). Conduct “sufficiently imbued
with elements of communication” is entitled to constitutional protection. Spence v.
Washington, 418 U.S. 405, 409 (1974) (per curiam). To determine whether an
individual’s conduct is sufficiently communicative, we consider both the intent of
the speaker and the perception of the audience. See Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 293 (1984). The speaker must demonstrate an “intent
to convey a particularized message,” and, “in the surrounding circumstances[,] the
likelihood [must be] great that the message would be understood by those who
viewed it.” Spence, 418 U.S. at 410–11.
1
We have jurisdiction under 28 U.S.C. § 1291. Our review is de novo. Gompper
v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002).
2
The viewer need not understand the speaker’s “particularized message.”
Hurley, 515 U.S. at 569 (noting that, if the Constitution required a “narrow,
succinctly articulable message” or a “particularized message,” its protections
“would never reach the unquestionably shielded painting of Jackson Pollock,
music of Arnold Shöenberg, or Jabberwocky verse of Lewis Carroll.”); see also
Masterpiece Cakeshop, Ltd. v. Col. Civil Rights Comm’n, 138 S. Ct. 1719, 1742
(2018) (accord). The message need only be “delivered by conduct that is intended
to be communicative” and, in context, “be understood by the viewer to be
communicative.” Clark, 468 U.S. at 294.
Krishna Lunch has plausibly pleaded that its distribution of sanctified vegan
and vegetarian food (“prasada”) is, in context, expressive conduct for purposes of
First Amendment protection. While distributing prasada, the organization plans on
chanting the names of God and other devotional hymns and songs, speaking with
interested students and others of the University of California, Los Angeles
(“UCLA”) community, distributing religious literature, and displaying signs
depicting reincarnation, animal protectionism, and other topics related to its
followers’ beliefs. Drawing all reasonable inferences in favor of Krishna Lunch,
we can infer that in these circumstances an onlooker would understand the
distribution of food “to be communicative.” Clark, 468 U.S. at 294; see also Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (a complaint is properly pleaded when it contains sufficient
information to allow a court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged”). The juxtaposition of Krishna Lunch’s signage
and discussions with the unexpressive food programs of other vendors plausibly
highlights Krishna Lunch’s comparatively expressive intent. And the context of
Krishna Lunch’s program is not limited to its accompanying, protected speech, see
Rumsfeld v. Forum for Acad. and Inst. Rights, Inc. (FAIR), 547 U.S. 47, 65–66
(2006); the organization’s actions are also communicative because of the identity
of the organization. The nature of Krishna Lunch’s animal-protectionism beliefs
sufficiently imbues its prasada distribution with elements of communication. See
Spence, 418 U.S. at 409.
Because Krishna Lunch has plausibly pleaded that its food distribution is
expressive conduct, we do not address whether UCLA’s restriction passes
constitutional muster under United States v. O’Brien, 391 U.S. 367 (1968). We
leave this issue for the district court to address in the first instance. Accordingly,
we vacate the court’s dismissal of this claim and remand for further proceedings
consistent with this disposition.
II.
While the First Amendment’s Free Exercise Clause prohibits government
action “prohibiting the free exercise” of religion, see U.S. Const. amend. I, it does
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not ordinarily exempt individuals from complying with neutral and generally
applicable laws. See Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872,
878–79 (1990). If a law is neutral and applies generally, we uphold it if it is
rationally related to a legitimate state purpose. See Miller v. Reed, 176 F.3d 1202,
1207 (9th Cir. 1999). Krishna Lunch has the burden to negate “every conceivable
basis which might support” the policy. F.C.C. v. Beach Commc’ns, Inc., 508 U.S.
307, 315 (1993).
UCLA’s policy is neutral and generally applicable. It does not by its terms
discriminate against a particular religion or favor the exercise (or non-exercise) of
religion. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 531–33 (1993). And there is no evidence to suggest the policy was motivated
by masked, discriminatory intent. See id. at 534. The four-times-per-year policy
also does not burden only religious conduct; it instead chiefly burdens the non-
religious, uncommunicative conduct of other off-campus and student organizations
serving prepared food on campus.
Krishna Lunch has not negated every conceivable basis that might support
the policy. Although UCLA has not yet stated its justification for the policy,
Krishna Lunch must negate every rational basis supporting the policy, “whether or
not the basis has a foundation in the record.” Heller v. Doe by Doe, 509 U.S. 312,
5
320–21 (1993). We therefore affirm the district court’s dismissal of Krishna
Lunch’s free exercise claim.
III.
Finally, for Krishna Lunch to demonstrate that UCLA’s policy violates its
First Amendment associational freedom, it must plausibly plead that (1) it engages
in protected, expressive conduct; (2) UCLA’s policy hinders its ability to express
its viewpoints, and (3) Krishna Lunch’s interest in expressive association
outweighs UCLA’s interest in maintaining its policy. See Boy Scouts of America v.
Dale, 530 U.S. 640, 648–59 (2000). The district court dismissed Krishna Lunch’s
associational claim because it concluded that the organization’s prasada
distribution was not expressive conduct. Because we hold that Krishna Lunch has
plausibly pleaded that its lunch program is expressive conduct, we vacate and
remand the court’s dismissal of Krishna Lunch’s free association claim.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED and REMANDED in part.
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FILED
Krishna Lunch of S. Cal. v. Gordon, No. 18-55316 JAN 13 2020
MOLLY C. DWYER, CLERK
O’SCANNLAIN, J., concurring in part and dissenting in part: U.S. COURT OF APPEALS
While I concur in Part 2 of the Court’s disposition, I respectfully dissent
from Parts 1 and 3, which reverse the dismissal of Krishna Lunch’s free speech and
free association claims. In my view, Krishna Lunch has failed to state a cognizable
free speech, free exercise, or free association claim, and I would affirm the
judgment of the district court in its entirety.
I
In order to survive a motion to dismiss the free speech claim, Krishna Lunch
must show that the distribution of its sanctified vegan food (prasada) is conduct
“sufficiently imbued with elements of communication” worthy of First
Amendment protection. Spence v. State of Washington, 418 U.S. 405, 409 (1974).
To that end, Krishna Lunch must demonstrate 1) an “intent to convey a
particularized message” and 2) that, “in the surrounding circumstances the
likelihood was great that the message would be understood by those who viewed
it.” Id. at 410–11. “[A] narrow, succinctly articulable message is not a condition
of constitutional protection,” Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557, 569 (1995), but the message must be “delivered by
conduct that is intended to be communicative and that, in context, would
reasonably be understood by the viewer to be communicative.” Clark v. Cmty. for
1
Creative Non-Violence, 468 U.S. 288, 294 (1984). I am not persuaded that there is
a great likelihood that the food distribution here would be understood by viewers
on UCLA’s campus to be communicative. I agree with the district court that such
conduct is not expressive and, therefore, undeserving of constitutional protection.
A
Krishna Lunch asserts that the viewer is likely to understand the distribution
of prasada communicates a message about the harmfulness of meat consumption
for humans, animals, and the environment. However, on a college campus, such as
UCLA, food is distributed fairly often and for a variety of reasons generally
without the intent to convey a message. Krishna Lunch notes that the “Assigned
Area” where UCLA permitted them to distribute food four times per year is often
used by other groups to distribute food. This fact, though, makes it more likely
that viewers will simply regard Krishna Lunch’s food distribution as non-
communicative like that of other groups. For example, many organizations
provide food for students in order to entice them to attend an event and not to
communicate any message. Food can also be distributed as part of a fundraiser
where the intent is simply to raise money. The fact that the Assigned Area and
other areas of the campus are used for food distribution in these ways would make
Krishna Lunch’s conduct appear to students to be similar to other non-
communicative distributions of food.
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B
The majority accepts Krishna Lunch’s claim that the context would allow
the viewer to understand the message. This “context,” though, is speech itself.
Specifically, Krishna Lunch argues that the accompanying singing, chanting,
banners, signage, literature, and discussions make the food distribution itself
expressive conduct. Yet, “[t]he fact that such explanatory speech is necessary is
strong evidence that the conduct at issue here is not so inherently expressive that it
warrants protection.” Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 547 U.S. 47, 66 (2006), (“FAIR”).
Without the explanation provided by actual speech, viewers are not likely to
understand Krishna Lunch’s conduct to be communicative. As in FAIR, here, the
only way viewers might understand the distribution of the food to communicate a
message is by hearing Krishna Lunch’s articulated message. Even then, the viewer
still may think that the food was a way to lure him or her to the table to hear
Krishna Lunch’s message, or simply a friendly offering that accompanied the
group’s message, and may not view the food distribution itself as communicative.
Thus, Krishna Lunch’s conduct fails the second part of the Spence test.
C
The majority concludes, without citing any authority, that the “context” here
is not simply the accompanying pure speech but also the identity of the
3
organization. I fear that the implications of such holding would greatly expand the
dimensions of protected free speech. In essence, then, the conduct of any
organization whose identity stands for some idea or purpose could be considered
expressive under the First Amendment.
For example, if a Christian religious organization handed out fried fish on
UCLA’s campus, such distribution would not be communicating the truths of the
Gospel simply because the organization itself stands for such message. Although
fish might be symbolic in certain contexts, viewers likely would not understand
such conduct as communicative simply because the identity of the organization is
associated with a certain mission.
Neither the Supreme Court nor this Court has ever adopted such a broad
view of the First Amendment. I decline to accept such an expansion here. I would
affirm the district court’s dismissal of Krishna Lunch’s free speech claim.
II
In order to survive a motion to dismiss the free association claim, Krishna
Lunch must demonstrate, as an initial matter, some underlying First Amendment
conduct. Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). The right to free
association is a derivative right that assures First Amendment rights can be
exercised. Id. at 618. In other words, expressive association is “the right to
4
associate with others in activities otherwise protected by the First Amendment.”
Dible v. City of Chandler, 515 F.3d 918, 929 (9th Cir. 2008) (emphasis added).
Since I conclude that Krishna Lunch’s distribution of prasada is not
expressive conduct warranting First Amendment protection (and I agree with the
majority that UCLA’s neutral policy of general applicability does not violate
Krishna Lunch’s right to free exercise of religion), it follows that Krishna Lunch
has failed to state a free association claim because there is no underlying First
Amendment activity. Therefore, I would affirm the district court’s dismissal of
Krishna Lunch’s free association claim as well.
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