Long Beach Area Peace Network v. City of Long Beach ( 2008 )


Menu:
  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LONG BEACH AREA PEACE                 
    NETWORK; DIANA MANN,
    No. 05-55083
    Plaintiffs-Appellees,
    v.                           D.C. No.
    CV-04-08510-SJO
    CITY OF LONG BEACH, a municipal
    OPINION
    corporation,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Central District of California
    S. James Otero, District Judge, Presiding
    Argued and Submitted
    February 16, 2007—Pasadena, California
    Filed April 15, 2008
    Before: Harry Pregerson, William A. Fletcher, and
    Marsha S. Berzon, Circuit Judges.
    Opinion by Judge William A. Fletcher;
    Concurrence by Judge Berzon
    3911
    3916   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    COUNSEL
    Randall C. Fudge, Long Beach City Attorney’s Office, Long
    Beach, California, for the appellant.
    Carol A. Sobel, Santa Monica, California, for the appellees.
    OPINION
    W. FLETCHER, Circuit Judge:
    We review the constitutionality of § 5.60 of the City of
    Long Beach Municipal Code (“LBMC” or “Ordinance”).
    Appellees Long Beach Area Peace Network and Diana Mann
    (collectively “the Peace Network”) challenged § 5.60 under
    the First Amendment after the City of Long Beach (“the
    City”) sought payment of administrative fees associated with
    a march and rally held by the Peace Network on March 22,
    2003. The district court held that § 5.60 in its entirety uncon-
    stitutionally restricts the right to free speech and permanently
    enjoined the City from enforcing it. We affirm in part and
    reverse in part.
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH         3917
    We hold that five challenged features of § 5.60 are consti-
    tutional: (1) the provisions distinguishing between expressive
    activity and other activity; (2) the provision allowing the City
    Manager to impose conditions to meet stated purposes; (3) the
    provision authorizing the City Manager to obtain proof of
    indigent status; (4) the provision authorizing the City Man-
    ager to require a permittee to obtain insurance; and (5) the
    provision authorizing criminal penalties for violations of the
    Ordinance. However, we hold that four other features are
    unconstitutional: (1) part of the provision defining “special
    events”; (2) the provision applicable to “spontaneous” events;
    (3) the hold-harmless and indemnification provision; and (4)
    the provisions authorizing waiver of permit fees and depart-
    mental services charges.
    We remand to allow the district court to determine whether
    the unconstitutional provisions are severable from the remain-
    der of § 5.60.
    I.   Background
    As described by the district court, the Long Beach Area
    Peace Network is “an unincorporated, loosely organized
    group of peace activists without an office, organizational
    phone, organizational email or insurance.” On February 15,
    2003, before the beginning of the Iraq War, the Peace Net-
    work sponsored a protest march and rally in the City of Long
    Beach, California. In preparation for the event, Dr. Eugene
    Ruyle (“Ruyle”), a retired professor and Peace Network mem-
    ber, submitted an application for a “special event” permit, as
    required by § 5.60.020(A). Long Beach Municipal Code
    (“LBMC”) § 5.60.020(A) (1999). After negotiating the march
    route with Ruyle, the City approved the permit.
    The march was conducted on public streets along the route
    suggested by the City. The event concluded with a rally in
    Bixby Park, a public park in the City. Several elected offi-
    cials, including a City Council member and a State Assembly
    3918   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    member, participated in the rally. According to some esti-
    mates, between 1,000 and 1,500 people attended the event.
    The permit application, signed by Ruyle in February 2003,
    provided that the Peace Network would “hold the City harm-
    less from any liability caused by the conduct of the event”;
    that the “City will not be liable for any mishaps or injuries
    associated with the event”; and that “[f]ull responsibility for
    activities at the event will be assumed by [the Peace Net-
    work].” The application also provided that the Peace Network
    would “be responsible for all costs incurred by City depart-
    ments for use of City personnel and/or equipment.” After sub-
    mitting the application, Ruyle wrote a letter to the City
    requesting a waiver of the permit application fee and the
    departmental services charges imposed under § 5.60. The City
    did not assess any fee or charges for the February event.
    On March 20, 2003, approximately one month later, the
    United States launched an aerial assault on Baghdad. In antic-
    ipation of the assault, the Peace Network had already orga-
    nized another march and rally, to be held on March 22. Ruyle
    had submitted a letter to the City on or about March 18
    describing the anticipated “spontaneous” event. Section 5.60
    defines a “spontaneous” event as one “occasioned by news or
    affairs coming into public knowledge within five (5) days” of
    the event. See LBMC § 5.60.030(A)(5). A “spontaneous”
    event does not require a formal permit, but it does require
    twenty-four hours advance notice to the City. The City Man-
    ager may refuse permission to hold such an event, and may
    impose “reasonable time, place and manner restrictions.” See
    LBMC § 5.60.030(B). An initial email from Ruyle to the
    City, sent two weeks earlier, had indicated that the Peace Net-
    work planned to ask for the closure of at least one lane of traf-
    fic for the march and to reserve a bandshell in Bixby Park for
    the rally. In his email, Ruyle estimated that the March event
    would be “at least twice as big” as the February march and
    rally.
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH          3919
    In a letter addressed to Ruyle dated March 21, the City
    granted permission to conduct a march and rally on March 22.
    In the letter, the City imposed a number of conditions, includ-
    ing the route of the march and the location of the rally. The
    letter contained a summary of estimated departmental services
    charges for “Police,” “Public Works,” “Park, Recreation &
    Marine (Park Staff),” “Parks, Recreation & Marine Mainte-
    nance,” “Space Permit Fee,” and “Junipero Parking Lot.” The
    total estimated charges were $7,041. The letter set forth a
    schedule of payment in four equal installments during the
    next year. Ruyle and other members of the Peace Network
    signed the last page of the letter under a heading reading
    “Conditions Accepted.” As signed, this page contained a
    handwritten notation at the top, stating that the “signers reser-
    ve[d] the right to challenge the total,” but that they would pay
    the first of the four installments on March 22. Ruyle paid the
    first installment on March 22, in accordance with the hand-
    written notation.
    The march on March 22 took slightly more than one hour,
    and the event concluded with an anti-war rally at Bixby Park.
    The district court found that approximately 1,000 people par-
    ticipated in the March event. According to Ruyle’s declara-
    tion, in contrast to the pre-war rally at the park in February,
    no elected officials participated in the March anti-war rally.
    As part of the March event, members of the Surfrider Foun-
    dation placed surfboards on the beach in the shape of a peace
    symbol. The display was visible to participants of the march
    as they walked near the beach. The display took place entirely
    on the beach, did not interfere with any vehicular or pedes-
    trian traffic, and did not result in any damage to the beach.
    Following the event, the surfboards were removed from the
    beach.
    In his initial email, Ruyle had stated that Peace Network
    planned to request a waiver of insurance and departmental
    services charges. In its March 21 letter granting the permit,
    3920   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    the City waived the insurance requirement but did not waive
    event-related charges. As he had done after the February
    march and rally, Ruyle wrote a letter to the City after the
    March event asking for a waiver of charges. Ruyle states in
    his declaration that a city official gave “no other guidelines
    than simply to write the letter” to ask for a waiver. The only
    material differences between Ruyle’s requests for waivers of
    charges for the February and March events were descriptions
    of event-specific matters such as the march routes.
    The City did not waive the departmental services charges
    for the March event. In April 2003, the City sent a letter to the
    Peace Network members whose signatures (or, in the case of
    Diana Mann, whose name had been signed by someone else)
    appeared at the bottom of the March 21 letter. The letter
    requested payment of $7,041, in the installments specified in
    the March letter. The total amount was exactly the same as the
    estimate contained in that letter. Part of the total included a
    charge of $1,500 for the use of the beach for the surfboard
    display. The City’s April letter noted that the first check,
    which Ruyle had given to the City on March 22, had been
    misplaced. The letter asked that payment on that check be
    stopped and that a new check be written for that amount.
    Peace Network members did not write a new check or make
    any of the requested payments.
    The City filed an action in state Superior Court against
    Diana Mann and the Peace Network members who had signed
    the agreement. The court granted judgment of $5,901 for the
    City. That amount excluded the $1,500 charge for the use of
    the beach for the surfboard display because, according to the
    Superior Court, that charge was “not sufficiently justified as
    to actual costs” and was “an improper restraint of expression.”
    The Peace Network then filed a “facial challenge” to § 5.60
    in federal district court, seeking declaratory and injunctive
    relief, compensatory damages, and attorney’s fees and costs.
    The complaint alleged that the City’s “past, present and
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH           3921
    threatened future actions” violate the First Amendment. The
    district court concluded that the entirety of § 5.60 constitutes
    an unconstitutional restraint on speech and assembly and
    entered a permanent injunction prohibiting its enforcement.
    The City timely appealed.
    After the district court’s decision and after initial briefing
    was completed on appeal, we decided Santa Monica Food Not
    Bombs v. City of Santa Monica (“Food Not Bombs”), 
    450 F.3d 1022
    (9th Cir. 2006), assessing the constitutionality of a
    similar ordinance in Santa Monica, California. We asked the
    parties to file supplemental briefs addressing our decision in
    Food Not Bombs.
    II.    Standard of Review
    We review de novo the district court’s holding of unconsti-
    tutionality. Berry v. Dep’t of Soc. Servs., 
    447 F.3d 642
    , 648
    (9th Cir. 2006). We also review de novo the district court’s
    determinations on mixed questions of law and fact that impli-
    cate the question of constitutionality. Rosenbaum v. City &
    County of San Francisco, 
    484 F.3d 1142
    , 1152 (9th Cir.
    2007). We generally review for clear error the district court’s
    findings of fact. Gaudiya Vaishnava Soc’y v. City & County
    of San Francisco, 
    952 F.2d 1059
    , 1062 (9th Cir. 1991) (as
    amended). However, we conduct an independent review of
    the facts for the “issues arising under the First Amendment.”
    
    Rosenbaum, 484 F.3d at 1152
    .
    III.     Nature of the Challenge
    [1] The Peace Network’s complaint asserts a facial chal-
    lenge to § 5.60. As an initial matter, we conclude that the
    Peace Network has Article III standing to bring this challenge.
    Standing, in the constitutional sense, requires that plaintiffs
    establish (1) a “distinct and palpable” injury in fact (2) that is
    “fairly traceable” to the challenged provision and (3) that
    would “likely . . . be redressed” by a favorable decision for
    3922   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    the plaintiff. Allen v. Wright, 
    468 U.S. 737
    , 750-51 (1984)
    (internal quotation marks omitted); see Food Not 
    Bombs, 450 F.3d at 1033
    . Plaintiffs mounting a facial challenge to an ordi-
    nance may establish standing by alleging that they have
    “modified [their] behavior” as a result of the ordinance, such
    as “by choosing locations other than [the areas subject to the
    ordinance].” 
    Id. at 1034.
    A plaintiff “need not apply for a ben-
    efit conditioned by a facially unconstitutional law,” United
    States v. Baugh, 
    187 F.3d 1037
    , 1041 (9th Cir. 1999), but
    must demonstrate a “serious[ ] interest[ ] in subjecting [it]self
    to” the challenged measure, and must demonstrate that “the
    defendant [is] seriously intent on enforcing[ ] the challenged
    measure,” NAACP v. City of Richmond, 
    743 F.2d 1346
    , 1351
    (9th Cir. 1984).
    [2] The Peace Network organized two separate events cov-
    ered by § 5.60. The City assessed departmental services
    charges against the Peace Network for the second event and
    brought suit in state court to obtain payment. The Peace Net-
    work has provided evidence that it has modified its behavior
    as a result of § 5.60 by declining to hold such events in Long
    Beach in the future because of the City’s enforcement of the
    Ordinance. See Food Not 
    Bombs, 450 F.3d at 1034
    . The Peace
    Network states that if the permanent injunction against the
    enforcement of § 5.60 is upheld, it will hold expressive events
    in Long Beach. The Peace Network has thus established
    injury in fact that is fairly traceable to § 5.60 and that is likely
    to be redressed if its First Amendment suit is successful.
    The Peace Network claims that several provisions of the
    LBMC “allegedly vest[ ] unbridled discretion in a government
    official over whether to permit or deny expressive activity.”
    City of Lakewood v. Plain Dealer Publ’g Co., 
    486 U.S. 750
    ,
    755-56 (1998). There are two primary rationales for allowing
    this type of facial challenge.
    First, the mere existence of the licensor’s unfettered
    discretion, coupled with the power of prior restraint,
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH             3923
    intimidates parties into censoring their own speech,
    even if the discretion and power are never actually
    abused. . . . Second, the absence of express standards
    makes it difficult to distinguish, “as applied,”
    between a licensor’s legitimate denial of a permit
    and its illegitimate abuse of censorial power.
    
    Id. at 757-58;
    see also S. Or. Barter Fair v. Jackson County,
    
    372 F.3d 1128
    , 1134-35 (9th Cir. 2004). Hence, “[f]acial
    attacks on the discretion granted a decisionmaker are not
    dependent on the facts surrounding any particular permit deci-
    sion.” Forsyth County v. Nationalist Movement, 
    505 U.S. 123
    ,
    133 n.10 (1992). The Court wrote in Thornhill v. Alabama,
    
    310 U.S. 88
    , 97-98 (1940) (citations omitted):
    [T]he rule is not based upon any assumption that
    application for the license would be refused or would
    result in the imposition of other unlawful regula-
    tions. Rather it derives from an appreciation of the
    character of the evil inherent in a licensing system.
    The power of the licensor . . . is pernicious not
    merely by reason of the censure of particular com-
    ments but by reason of the threat to censure com-
    ments on matters of public concern. It is . . . the
    pervasive threat inherent in its very existence that
    constitutes the danger to freedom of discussion. . . .
    Where regulations of the liberty of free discussion
    are concerned, there are special reasons for observ-
    ing the rule that it is the statute, and not the accusa-
    tion or the evidence under it, which prescribes the
    limits of permissible conduct and warns against
    transgression.
    To assert this type of facial challenge, a plaintiff must meet
    two requirements. First, a plaintiff must satisfy the standing
    requirements of Article III by showing that the challenged
    provision or provisions apply to its conduct. Members of City
    Council of L.A. v. Taxpayers for Vincent, 
    466 U.S. 789
    , 798
    3924   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    (1984) (“Such holdings invalidated entire statutes, but did not
    create any exception from the general rule that constitutional
    adjudication requires a review of the application of a statute
    to the conduct of the party before the Court.”). As noted
    above, the Peace Network has Article III standing.
    Second, the challenged ordinance “must have a close
    enough nexus to expression, or to conduct commonly associ-
    ated with expression, to pose a real and substantial threat of
    the identified censorship risks.” City of 
    Lakewood, 486 U.S. at 759
    . We conclude that § 5.60 has a sufficient nexus to
    expression to satisfy the second requirement. Section 5.60
    governs use of the traditional public fora of public streets,
    sidewalks, and parks. Indeed, some of the provisions specifi-
    cally apply to persons engaged in “expressive activity.” See,
    e.g., LBMC § 5.60.040(B) (“[Special event permit] applica-
    tions for expressive activities [involving the use of city
    streets, sidewalks, or parks] shall be filed in accordance with
    subsection D of this section.”). The Peace Network has
    engaged in, and seeks to engage in, public marches and rallies
    on the streets, sidewalks, and parks of Long Beach. “[M]ass
    gatherings [to show support for a cause] bear a sufficient
    nexus to conduct commonly associated with expression.” S.
    Or. Barter 
    Fair, 372 F.3d at 1136
    . Section 5.60 regulates
    those mass gatherings and therefore has a “close connection
    to expression” because it “regulates conduct which is itself
    protected speech.” See Gaudiya Vaishnava 
    Soc’y, 952 F.2d at 1062-63
    .
    [3] We therefore conclude that the Peace Network has sat-
    isfied the additional requirements to raise a facial challenge
    on unbridled discretion grounds.
    IV.   General Considerations
    The First Amendment prohibits Congress from enacting
    laws “abridging the freedom of speech, . . . or the right of the
    people peaceably to assemble.” U.S. Const. amend. I. The
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH          3925
    Supreme Court has extended the protection of the First
    Amendment to the states. Edwards v. South Carolina, 
    372 U.S. 229
    , 235 (1963); 
    Thornhill, 310 U.S. at 95
    ; Hague v.
    C.I.O., 
    307 U.S. 496
    , 512 (1939). Three types of speech regu-
    lation are presumptively invalid: regulations on speech pro-
    testing government action, regulations affecting speech in a
    traditional public forum, and prior restraints. By meeting cer-
    tain criteria, content-neutral time, place and manner restric-
    tions may overcome the presumption of invalidity.
    A.   Presumptively Invalid Regulations
    1.   Regulation of Speech Protesting Government Action
    We have recognized that certain types of speech enjoy spe-
    cial status. See, e.g., Nat’l Adver. Co. v. City of Orange, 
    861 F.2d 246
    , 248 (9th Cir. 1988) (“The first amendment affords
    greater protection to noncommercial than to commercial
    expression.”). Political speech is core First Amendment
    speech, critical to the functioning of our democratic system.
    The Peace Network’s protest of the United States military
    action in Iraq is the type of speech that “rest[s] on the highest
    rung of the hierarchy of First Amendment values.” See Carey
    v. Brown, 
    447 U.S. 455
    , 467 (1980); see also 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.”); 
    Thornhill, 310 U.S. at 95
    (“Those who
    won our independence had confidence in the power of free
    and fearless reasoning and communication of ideas to dis-
    cover and spread political and economic truth. Noxious doc-
    trines in those fields may be refuted and their evil averted by
    the courageous exercise of the right of free discussion.”).
    The Supreme Court has recognized that “the practice of
    persons sharing common views banding together to achieve a
    common end is deeply embedded in the American political
    process.” NAACP v. Claiborne Hardware Co., 
    458 U.S. 886
    ,
    907 (1982) (quoting Citizens Against Rent Control / Coal. for
    3926     LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    Fair Hous. v. City of Berkeley, 
    454 U.S. 290
    , 294 (1981)); see
    also 
    Edwards, 372 U.S. at 235
    (stating that peaceable assem-
    bly at the site of the state government to protest government
    action is the “most pristine and classic form” of exercising
    First Amendment rights). In United States v. Baugh, we wrote
    that the First Amendment “applie[d] with particular force” to
    a “march and other protest 
    activities.” 187 F.3d at 1042
    ; see
    also Am.-Arab Anti-Discrimination Comm. v. City of Dear-
    born, 
    418 F.3d 600
    , 611 (6th Cir. 2005) (“[P]arades and pro-
    cessions are a unique and cherished form of political
    expression, serving as a symbol of our democratic tradition.
    There is scarcely a more powerful form of expression than the
    political march.”). We have also noted the importance of
    timely opportunity to express political views by staging a
    political march. City of 
    Richmond, 743 F.2d at 1356
    (“[T]iming is of the essence in politics . . . . [W]hen an event
    occurs, it is often necessary to have one’s voice heard
    promptly, if it is to be considered at all. A delay of even a day
    or two may be intolerable when applied to political speech in
    which the element of timeliness may be important.” (internal
    quotation marks and citation omitted; alterations in City of
    Richmond)).
    2.    Regulation of Speech in Traditional Public Fora
    The Supreme Court has established different levels of scru-
    tiny for analyzing alleged First Amendment violations,
    depending on where the speech takes place. Perry Educ.
    Ass’n v. Perry Local Educators’ Ass’n, 
    460 U.S. 37
    , 45-46
    (1983). In traditional public fora, “the government’s ability to
    permissibly restrict expressive conduct is very limited.”
    United States v. Grace, 
    461 U.S. 171
    , 177 (1983). In such
    locations, First Amendment protections are strongest and reg-
    ulation is most suspect. Grossman v. City of Portland, 
    33 F.3d 1200
    , 1204 (9th Cir. 1994). “Public fora have achieved a spe-
    cial status in our law; the government must bear an extraordi-
    narily heavy burden to regulate speech in such locales.” City
    of 
    Richmond, 743 F.2d at 1355
    .
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH            3927
    “Public open spaces” such as parks are distinguished from
    streets because their use for expressive activities rarely impli-
    cates other important governmental interests. Food Not
    
    Bombs, 450 F.3d at 1042
    . Public parks and sidewalks “are
    uniquely suitable for public gatherings and the expression of
    political or social opinion.” ACORN v. City of Phoenix, 
    798 F.2d 1260
    , 1267 n.5 (9th Cir. 1986). Courts have recognized
    a somewhat greater governmental interest in regulating
    expressive activity on city streets because of the public safety
    concerns raised by vehicular traffic. 
    Id. at 1267.
    Nonetheless,
    we have rejected the proposition that “the Supreme Court’s
    designation of streets as public fora” is limited to “sidewalks
    and other locales traditionally reserved for public communica-
    tion.” 
    Id. at 1266.
    The Supreme Court has recognized that
    “[n]o particularized inquiry into the precise nature of a spe-
    cific street is necessary; all public streets are held in the pub-
    lic trust and are properly considered traditional public fora.”
    Frisby v. Schultz, 
    487 U.S. 474
    , 481 (1988).
    Traditional public fora gain even more importance when
    they are host to core First Amendment speech. See, e.g.,
    
    Hague, 307 U.S. at 515-16
    . In Grossman v. City of Portland,
    we explained that the “venerable tradition of the park as a
    public forum has — as suggested by the attendant image of
    the speaker on a soapbox — a very practical side to it as well:
    parks provide a free forum for those who cannot afford news-
    paper advertisements, television infomercials, or 
    billboards.” 33 F.3d at 1205
    . Government restrictions on the use of public
    places such as streets, sidewalks, and parks risk placing
    speech on topics of public importance within the purview of
    only the wealthy or those who enjoy the support of local
    authorities. See 
    id. at 1205
    n.8; City of 
    Richmond, 743 F.2d at 1356
    (calling for careful examination of restrictions “when
    their effects fall unevenly on different . . . groups in society”).
    Section 5.60 requires a permit for “special events” on all
    public property within the City of Long Beach, including
    streets, sidewalks, and public parks. See LBMC
    3928   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    § 5.60.020(A). “Special events” include parades, demonstra-
    tions, and assemblies of any size on public streets and side-
    walks if they do not comply with applicable traffic
    regulations; organized assemblages of seventy-five or more
    people in public places; and other organized activities involv-
    ing seventy-five or more persons involving the use of, or hav-
    ing an impact on, public property or facilities. LBMC
    § 5.60.010(I)(1)-(3); Long Beach Administrative Regulation
    (“AR”) 8-28(IV)(A)(2) (2007). To the extent that the Ordi-
    nance regulates the use of public parks, sidewalks, and streets
    we analyze its provisions under the standard for traditional
    public fora.
    3.   Regulation by Prior Restraint
    Prior restraints on speech are disfavored and carry a “heavy
    presumption” of invalidity. Forsyth 
    County, 505 U.S. at 130
    .
    “This heavy presumption is justified by the fact that ‘prior
    restraints on speech . . . are the most serious and the least tol-
    erable infringement on First Amendment rights.’ ” 
    Grossman, 33 F.3d at 1204
    (alteration in Grossman) (quoting Neb. Press
    Ass’n v. Stuart, 
    427 U.S. 539
    , 559 (1975)); accord Rosen v.
    Port of Portland, 
    641 F.2d 1243
    , 1246-47 (9th Cir. 1981).
    The Supreme Court explained in Ward v. Rock Against Rac-
    ism, “[T]he regulations we have found invalid as prior
    restraints have ‘had this in common: they gave public officials
    the power to deny use of a forum in advance of actual expres-
    sion.’ ” 
    491 U.S. 781
    , 795 n.5 (1989) (quoting Se. Promotions
    Ltd. v. Conrad, 
    420 U.S. 546
    , 553 (1975)). A prior restraint
    need not actually result in suppression of speech in order to
    be constitutionally invalid. “The relevant question [in deter-
    mining whether something is a prior restraint] is whether the
    challenged regulation authorizes suppression of speech in
    advance of its expression . . . .” 
    Id. In Grossman,
    we noted that a permitting ordinance that
    required a written application before users could hold an orga-
    nized demonstration in a public park did not fit entirely within
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH          3929
    “classic prior restraint 
    cases.” 33 F.3d at 1205
    n.9 (internal
    quotation marks and citation omitted). But we held neverthe-
    less that the permitting system still bore “a heavy presumption
    against its constitutional validity.” 
    Id. at 1204
    (internal quota-
    tion marks omitted); see also Forsyth 
    County, 505 U.S. at 130
    (applying a “ ‘heavy presumption’ ” against validity of a regu-
    lation imposing advance fees on parades and assemblies held
    on public property because it was a “prior restraint” on
    speech). Section 5.60 is similar to the permitting system in
    Grossman, though it reaches a broader range of conduct. Sec-
    tion 5.60 regulates not only expressive activity in parks
    located in Long Beach, but also any activity on public streets,
    sidewalks, and right-of-ways. See LBMC § 5.60.010(I)(1).
    Section 5.60 even regulates events that “involve[ ] the use of,
    or ha[ve] an impact on, public property or facilities” if such
    activities are “likely to require the provision of [enumerated]
    city services.” 
    Id. § 5.60.010(I)(3);
    AR 8-28(IV)(A).
    B.    Reasonable Time, Place and Manner Restrictions
    “[R]easonable time, place, [and] manner restrictions” on
    speech are permissible. Clark v. Cmty. for Creative Non-
    Violence, 
    468 U.S. 288
    , 293 (1984). Such restrictions can
    include permitting requirements for core First Amendment
    speech in traditional public fora, 
    id., and they
    are permissible
    if they satisfy four criteria. As the Supreme Court wrote in
    Clark, “We have often noted that restrictions of this kind are
    valid provided [1] that they are justified without reference to
    the content of the regulated speech, [2] that they are narrowly
    tailored to serve a significant governmental interest, and [3]
    that they leave open ample alternative channels for communi-
    cation of the information.” 
    Id. (bracketed numbers
    added). In
    Forsyth County v. Nationalist Movement, 
    505 U.S. 123
    , 130
    (1992), the Court recognized a fourth criterion: a permitting
    scheme “may not delegate overly broad licensing discretion to
    a government official.”
    The first criterion is that the restriction be content-neutral.
    That is, the restriction must be based on something other than
    3930   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    the content of the speech. 
    Grace, 461 U.S. at 177
    . A law is
    content-based rather than content-neutral if “the main purpose
    in enacting it was to suppress or exalt speech of a certain con-
    tent, or it differentiates based on the content of speech on its
    face.” ACLU of Nevada v. City of Las Vegas, 
    466 F.3d 784
    ,
    793 (9th Cir. 2006). Though “an improper censorial motive”
    is sufficient, such a motive is not necessary to render a regula-
    tion content-based. Simon & Schuster, Inc. v. N.Y. State
    Crime Victims Bd., 
    502 U.S. 105
    , 117 (1991). If a regulation
    “distinguish[es] favored speech from disfavored speech on the
    basis of the ideas or views expressed,” it is content-based.
    Foti v. City of Menlo Park, 
    146 F.3d 629
    , 636 (9th Cir. 1998)
    (internal quotation marks omitted).
    A content-based regulation is generally subject to strict
    scrutiny. The government therefore “must show that its regu-
    lation is necessary to serve a compelling state interest,” Perry
    Educ. 
    Ass’n, 460 U.S. at 45
    , and that the regulation uses “the
    least restrictive means to further the articulated interest,” 
    Foti, 146 F.3d at 636
    . “[A] content-based restriction on political
    speech in a public forum . . . must be subjected to the most
    exacting scrutiny.” Boos v. Barry, 
    485 U.S. 312
    , 321 (1988).
    Under the second criterion, the government must show: (1)
    that the governmental interest is substantial and “unrelated to
    suppression of expression,” Baldwin v. Redwood City, 
    540 F.2d 1360
    , 1365 (9th Cir. 1976); and (2) that the regulation
    is narrowly tailored to meet that interest, 
    Ward, 491 U.S. at 797
    .
    The first aspect is substantial governmental interest. The
    Supreme Court has recognized substantial governmental inter-
    ests in regulating competing uses of public fora, Forsyth
    
    County, 505 U.S. at 130
    , in maintaining parks in an “attractive
    and intact condition,” 
    Clark, 468 U.S. at 296
    , in regulating
    “streets to protect and insure the safety, comfort, or conve-
    nience of the public,” Murdoch v. Pennsylvania, 
    319 U.S. 105
    , 116 (1943), and in collecting nominal fees to “defray the
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH           3931
    expenses of policing” the regulated activity, 
    id. at 113-14.
    We
    have also recognized as a substantial governmental interest
    the need to “provide notice to the municipality of the need for
    additional public safety and other services.” Food Not 
    Bombs, 450 F.3d at 1042
    . Although the public safety interests in regu-
    lating street use are substantial, “those interests must give way
    on occasion to the temporary dedication of the streets to pick-
    eting and parading.” 
    ACORN, 798 F.2d at 1267
    n.5.
    Three questions guide courts in analyzing narrow tailoring,
    the second aspect. First, does the regulation achieve its ends
    without restricting substantially more speech than necessary?
    This “requirement . . . is satisfied ‘so long as the . . . regula-
    tion promotes a substantial government interest that would be
    achieved less effectively absent the regulation.’ ” 
    Ward, 491 U.S. at 799
    (quoting United States v. Albertini, 
    472 U.S. 675
    ,
    689 (1985)) (second alteration in Ward). Expansive language
    can signal the absence of “a close fit with the governmental
    interests underlying the permitting requirement.” Food Not
    
    Bombs, 450 F.3d at 1040-42
    (comparing a restriction that
    applies if an activity “may” implicate a governmental interest
    with a restriction that applies if the activity is “likely” to
    affect the interest). Second, are there obvious alternatives that
    would achieve the same objectives with less restriction of
    speech? A city is not required to select the least restrictive
    alternative, but “an assessment of alternatives can still bear on
    the reasonableness of the tailoring.” Menotti v. City of Seattle,
    
    409 F.3d 1113
    , 1131 n.31 (9th Cir. 2005); see also City of
    Cincinnati v. Discovery Network, Inc., 
    507 U.S. 410
    , 417 n.13
    (1993). Third, is a generic regulation needed “as applied to
    other speakers,” even if it is not needed in the case at hand?
    Galvin v. Hay, 
    374 F.3d 739
    , 753 (9th Cir. 2004). This ques-
    tion addresses “[t]he multiplied effect of” a particular expres-
    sive activity “if many other organizations likewise decided to
    engage in this activity on a pervasive or regular basis.”
    
    ACORN, 798 F.2d at 1270
    ; see also 
    Clark, 468 U.S. at 296
    -
    97.
    3932   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    The third criterion applicable to time, place and manner
    restrictions is that regulations “must leave open ample alterna-
    tives for communication.” Forsyth 
    County, 505 U.S. at 130
    .
    Several considerations are relevant to this analysis. First,
    “[a]n alternative is not ample if the speaker is not permitted
    to reach the intended audience.” Bay Area Peace Navy v.
    United States, 
    914 F.2d 1224
    , 1229 (9th Cir. 1990) (internal
    quotation marks omitted); see also 
    Menotti, 409 F.3d at 1138
    .
    Second, if the location of the expressive activity is part of the
    expressive message, alternative locations may not be ade-
    quate. 
    Galvin, 374 F.3d at 756
    ; 
    ACORN, 798 F.2d at 1267
    n.5.
    Third, we consider the opportunity for spontaneity in deter-
    mining whether alternatives are ample, particularly for politi-
    cal speech. City of 
    Richmond, 743 F.2d at 1356
    . Fourth, we
    consider the cost and convenience of alternatives. City of
    Ladue v. Gilleo, 
    512 U.S. 43
    , 57 (1994).
    Finally, the fourth criterion is the prohibition on regulations
    that confer unbridled discretion on a permitting or licensing
    official. Shuttlesworth v. City of Birmingham, 
    394 U.S. 147
    ,
    150-51 (1969). Regulations must contain “narrow, objective,
    and definite standards to guide the licensing authority,” 
    id., and must
    require the official to “provide [an] explanation for
    his decision,” Forsyth 
    County, 505 U.S. at 133
    . The standards
    must be sufficient to “render [the official’s decision] subject
    to effective judicial review.” Thomas v. Chi. Park Dist., 
    534 U.S. 316
    , 323 (2002). This requirement applies to an official’s
    “authority to condition the permit on any additional terms”
    not stated in the ordinance. City of 
    Lakewood, 486 U.S. at 772
    .
    V.   Analysis of § 5.60
    A.   Description of the Ordinance
    [4] Section 5.60 requires groups to obtain city-issued per-
    mits in order to hold “special events” as defined in the Ordi-
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH                   3933
    nance.1 LBMC § 5.60.020(A). Permits for special events not
    involving expressive activity require at least sixty days
    advance notice to the City. By contrast, permits for special
    events involving expressive activity require between three and
    ten days advance notice, depending on the location of the
    planned event. 
    Id. § 5.60.040.
    Certain events are exempt from
    the special event permit requirement. Those events include
    funeral processions; activities conducted by governmental
    agencies; filming activities governed by another provision of
    the municipal code; and “spontaneous parades, assemblies or
    demonstrations involving expressive activity” occasioned by
    events coming into public knowledge within five days of the
    event. 
    Id. § 5.60.030(A).
    The City Manager “shall” grant a permit for a special event
    if certain criteria are satisfied. 
    Id. § 5.60.040(J)(1)-(13).
    The
    City Manager “may” deny or revoke a permit if certain other
    criteria are satisfied. 
    Id. § 5.60.070(A)(1)-(15),
    (B). A permit-
    tee must agree to hold harmless and indemnify the City and
    its officers and employees against a broad range of claims and
    harms, and must, under certain circumstances, obtain insur-
    ance. 
    Id. § 5.60.080.
    A permittee must pay both a permit fee
    and “departmental services charges” to the City unless they
    are funded or waived by the City Council. 
    Id. §§ 5.60.050,
    5.60.090.
    1
    The City has asked us to take judicial notice of the Santa Monica ordi-
    nance and the City’s recent amendment to § 5.60 concerning the definition
    of special events. We agree to take judicial notice of the Santa Monica
    ordinance. See Food Not 
    Bombs, 450 F.3d at 1025
    n.2 (citing Newcomb
    v. Brennan, 
    558 F.2d 825
    , 829 (7th Cir. 1977)). We also agree to take judi-
    cial notice of the new definition of special events contained in subsection
    .010, as interpreted by Long Beach Administrative Regulation AR 8-28,
    promulgated on February 7, 2007. 
    Id. at 1031-32;
    see also City of Lake-
    
    wood, 486 U.S. at 770
    (describing the requirements for an administrative
    regulation to affect constitutional analysis). As we stated in Food Not
    Bombs, “[w]e review only the present version of the ordinance and imple-
    menting 
    regulations.” 450 F.3d at 1025
    . We also note that in an order filed
    on January 23, 2007, this court granted the City’s motion to take judicial
    notice of Chapter VII of the Chicago Park District Code.
    3934   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    Departmental services charges are “the actual costs which
    a department of the city incurs in connection with activities
    for which a permit is required,” including
    costs associated with fire safety, traffic and/or pedes-
    trian control, water safety, the closure of streets or
    intersections, the diverting of traffic, the salaries of
    city personnel involved in administration or coordi-
    nation of city services for the event, the cost to the
    city to provide support personnel, equipment, materi-
    als and supplies, and related city costs such as fringe
    benefits or employee overtime.
    
    Id. § 5.60.010(C).
    Departmental services charges do not
    include “costs incurred by the city to provide police protec-
    tion to those engaged in ‘expressive activity.’ ” 
    Id. However, other
    costs associated with expressive activities — beyond
    those associated with “police protection” — are included in
    departmental services charges.
    “Spontaneous” events are exempt from the permitting
    requirement applicable to special events. An organizer of a
    spontaneous event must provide at least twenty-four-hour
    advance notice to the City. 
    Id. § 5.60.030(A)(5).
    The City
    Manager may impose “reasonable time, place and manner
    restrictions” on a spontaneous event. 
    Id. § 5.60.030(B).
    Fur-
    ther, the City Manager may deny permission to hold a sponta-
    neous event, based on the same criteria applicable to permits
    for special events. 
    Id. §§ 5.60.030(C),
    5.60.070. An organiza-
    tion holding a spontaneous event is not required to pay the
    permit application fee applicable to special events. 
    Id. §§ 5.60.040(F),
    5.60.030(A)(5). However, that organization
    may be required to pay departmental services charges unless
    those charges are funded or waived by the City Council.
    The Peace Network challenges nine features of § 5.60,
    appearing in a number of subsections of the Ordinance. We
    first address five features that we hold are constitutional. We
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH         3935
    then address four features that we hold are unconstitutional in
    whole or in part.
    B.   Constitutional Features of § 5.60
    1.   Expressive Activity Distinctions
    The Peace Network argues that certain provisions distin-
    guishing between “expressive activity” and other activity are
    impermissibly content-based because they provide for differ-
    ential treatment of activities based on the messages those
    activities seek to convey.
    [5] “ ‘Expressive Activity’ means conduct, the sole or prin-
    cipal object of which is the expression, dissemination or com-
    munication by verbal, visual, literary or auditory means of
    opinion, views or ideas. Expressive activity includes, but is
    not limited to, public oratory and the distribution of litera-
    ture.” 
    Id. § 5.60.010(D).
    It is true that some provisions of
    § 5.60 distinguish between expressive and non-expressive
    activity. E.g., 
    id. § 5.60.010(C)
    (prohibiting the City Manager
    from imposing departmental services charges for costs
    incurred by the City to provide police protection to people
    engaged in expressive activity); 
    id. § 5.60.020(D)
    (prohibiting
    the City Manager from imposing conditions on permits “in a
    manner that will unreasonably restrict expressive or other
    activity protected by the California or United States constitu-
    tions”); 
    id. § 5.60.040(G)
    (requiring the City Manager to act
    on completed applications for permits involving expressive
    activities within two business days, to provide the applicant
    with written notice explaining the reasons for any denial or
    conditional approval, and to consult with the city attorney
    before denying or conditionally approving a permit involving
    expressive activity).
    [6] However, we conclude that these distinctions between
    expressive activities and non-expressive activities are permis-
    sible. These subsections of § 5.60 are “justified without refer-
    3936   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    ence to the content of the regulated speech.” See 
    Clark, 468 U.S. at 293
    . These subsections do not show that the City has
    “adopted [the] regulation of speech because of disagreement
    with the message it conveys.” See 
    Ward, 491 U.S. at 791
    .
    Here, the opposite is true, for “the permissive nature of the
    [exceptions favoring expressive activity] furthers, rather than
    constricts, free speech.” See 
    Thomas, 534 U.S. at 325
    . All of
    the provisions “treat[ ] expressive events more favorably than
    others.” Food Not 
    Bombs, 450 F.3d at 1037
    ; cf. Burk v.
    Augusta-Richmond County, 
    365 F.3d 1247
    , 1254-55 (11th
    Cir. 2004) (finding an ordinance restricting public gatherings
    to be unlawfully content-based because it was “directed only
    to communicative activity, rather than to all activity, and its
    applicability turn[ed] solely on the subject matter of what a
    speaker might say”).
    Further, the Ordinance does not “single[ ] out certain
    speech for differential treatment based on the idea expressed,”
    see ACLU of 
    Nevada, 466 F.3d at 794
    (internal quotation
    marks omitted), and it does “not distinguish among the
    expressive events based on their content,” see Food Not
    
    Bombs, 450 F.3d at 1037
    . Identifying “expressive activity”
    protected by the First Amendment can sometimes be difficult.
    See, e.g., Texas v. Johnson, 
    491 U.S. 397
    , 399 (1989) (hold-
    ing, in a 5-4 decision, that flag burning is protected activity
    under the First Amendment). But such difficulty arises from
    the nature of the constitutionally protected speech and the
    heightened protection provided by the First Amendment. See,
    e.g., 
    Murdoch, 319 U.S. at 115
    (“A license tax certainly does
    not acquire constitutional validity because it classifies the
    privileges protected by the First Amendment along with the
    . . . merchandise of . . . peddlers and treats them all alike.
    Such equality in treatment does not save the ordinance. Free-
    dom of . . . speech . . . [is] in a preferred position.”). It does
    not follow that those subsections of § 5.60 that treat expres-
    sive activity more favorably than non-expressive activity are
    impermissibly content-based. Indeed, we recently held in
    Food Not Bombs that comparable provisions of Santa Moni-
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH            3937
    ca’s ordinance, distinguishing between “expressive” and
    “non-expressive” events, were 
    permissible. 450 F.3d at 1037
    .
    Following Food Not Bombs, we so hold for these subsections
    of 5.60 as well.
    2.   Conditions on Permits for Special Events
    [7] The Peace Network argues that § 5.60.020(D) gives the
    City Manager unbridled discretion to impose conditions on
    permits to hold special events. We disagree. This subsection
    allows the City Manager to impose conditions on permits only
    to achieve specified purposes. It provides:
    The city manager may condition any permit . . . with
    reasonable requirements concerning the time, place
    or manner of holding such event as is necessary to
    coordinate multiple uses of public property, assure
    preservation of public property and public places,
    prevent dangerous, unlawful or impermissible uses,
    protect the safety of persons and property and to
    control vehicular and pedestrian traffic in and
    around the venue, provided that such requirements
    shall not be imposed in a manner that will unreason-
    ably restrict expressive or other activity protected by
    the California or United States constitutions.
    LBMC § 5.60.020(D) (emphasis added). The subsection then
    goes on to provide a non-exhaustive list of conditions that the
    City Manager may impose to achieve these specified pur-
    poses. These conditions include “accommodation of an
    event’s pedestrian and vehicular traffic, including restricting
    events to city sidewalks, portions of a city street, or other
    public right-of-way,” “provision of a waste management
    plan, and the clean up and restoration of the site of the
    event,” and “reasonable designation of alternate sites, times,
    dates, or modes for exercising expressive activity.” 
    Id. § 5.60.020(D)(2),
    (9), (13).
    3938   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    [8] The purposes specified in § 5.60.020(D) for imposing
    conditions on permits are objective and relatively precise, and
    have no discernable connection to the content of any particu-
    lar message. Compare City of 
    Lakewood, 486 U.S. at 753-54
    ,
    770 (striking down as allowing unbridled discretion a city
    ordinance allowing the mayor to impose “any other terms and
    conditions deemed necessary and reasonable” (internal quota-
    tion marks omitted)), with United States v. Linick, 
    195 F.3d 538
    , 541 (9th Cir. 1999) (upholding a law allowing imposi-
    tion of “terms and conditions as the authorized officer deems
    necessary to . . . otherwise protect the public interest” (alter-
    ation in original; internal quotation marks omitted)). Further,
    the subsection authorizes only “reasonable requirements” that
    are “necessary” to serve the specified purposes, and provides
    that any such requirements must not “unreasonably restrict”
    expressive activity. See 
    Menotti, 409 F.3d at 1145
    n.63; S. Or.
    Barter 
    Fair, 372 F.3d at 1139-41
    . We also note that
    § 5.60.040(G) requires the City Manager to consult with the
    City Attorney and to provide to an applicant a written expla-
    nation for a decision that imposes conditions on the permit.
    See LBMC § 5.60.040(G). Finally, we note that
    §§ 5.60.130(A) and .040(E) allow, in the alternative, a direct
    appeal of a permitting decision to either the City Council or
    state court.
    [9] We therefore conclude that § 5.60.020(D) does not con-
    fer “unbridled discretion” on the permitting authority to
    impose conditions in violation of the First Amendment.
    Although the provision has survived this facial challenge, it
    might nonetheless be vulnerable to an as-applied challenge if,
    in its implementation, there emerged “a pattern of unlawful
    favoritism,” see 
    Thomas, 534 U.S. at 324-25
    ; see, e.g., Shut-
    
    tlesworth, 394 U.S. at 156-59
    ; Cox v. New Hampshire, 
    312 U.S. 569
    , 575-77 (1941), or if it resulted in an impermissibly
    burdensome time, place or manner restriction, see, e.g.,
    
    Galvin, 374 F.3d at 747
    n.5, 752-56; One World One Family
    Now v. City & County of Honolulu, 
    76 F.3d 1009
    , 1012 (9th
    Cir. 1996).
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH                    3939
    3.   Proof of Indigent Status
    The Peace Network also challenges as allowing unbridled
    discretion § 5.60.050(B), which allows the City Manager to
    require “relevant information and documentation as may, in
    the opinion of the city manager or his/her designee, be reason-
    ably necessary to verify” the indigent status of a person.2 The
    validity of § 5.60.090(E), which imposes departmental ser-
    vices charges on a permittee unless he or she qualifies as an
    “indigent natural person,” depends in part on the constitution-
    ality of subsection .050(B). LBMC §§ 5.60.050(B), .090(E).
    [10] Section 5.60.050(B) defines an “indigent natural per-
    son” to include any person who is “eligible for county relief
    and support” under the California Welfare and Institutions
    Code, but the definition “is not limited to” such persons. 
    Id. § 5.60.050(B).
    An indigent natural person who desires to
    engage in expressive activity may request a waiver of the per-
    mit application fee imposed by subsection .050.3 
    Id. We con-
    clude that the eligibility provision does not confer unbridled
    discretion on the City Manager.
    [11] First, the definition of indigency based on the Califor-
    nia Welfare and Institutions Code is content-neutral and
    objective. Section 5.60.050(B) allows the City Manager to
    determine which “relevant information and documentation” is
    2
    The Peace Network’s other challenge to § 5.60.050 addresses the pro-
    vision that a permit applicant must pay a fee that is established by the City
    Council through a resolution unless the City Council waives the fee. We
    address the waiver provision in Part V.C.4, infra, regarding fees and
    departmental services charges.
    3
    The term “indigent natural person” is used in the same fashion in
    LBMC § 5.60.090(E). That section imposes departmental services charges
    on permittees unless they qualify as an “indigent natural person.” See
    LBMC § 5.60.090(E). We reach the same conclusion under that provision
    as we do here: The City Manager’s ability to request “relevant information
    and documentation” to prove indigent status does not give the public offi-
    cial unbridled discretion.
    3940   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    “reasonably necessary to verify [indigency] status.” 
    Id. § 5.60.050(B).
    But the documentation requirements do not
    affect the definition of indigency. Rather, they merely give
    flexibility to the City Manager in determining whether a par-
    ticular applicant has satisfied the criteria of the definition. We
    do not regard this flexibility as providing the sort of unbridled
    discretion that would invalidate the section. A person’s indi-
    gent status is not always readily ascertainable. Proof of such
    status may come in many forms, depending on the circum-
    stances of the applicant. Coupled with this array of potential
    forms of proof is the City’s interest in verifying that an appli-
    cant requesting a fee waiver is indeed indigent. The Ordi-
    nance, which limits the City to “relevant information” that is
    “reasonably necessary,” adequately ensures that the choice of
    means of proof is not left to the “whim” of the City Manager.
    
    Id. § 5.60.050(B);
    cf. S. Or. Barter 
    Fair, 372 F.3d at 1139
    .
    Requiring additional limitations governing the type of doc-
    umentation the City Manager may request as proof of indi-
    gency would be, in the words of Justice Scalia, “insisting
    upon a degree of rigidity that is found in few legal arrange-
    ments.” See 
    Thomas, 534 U.S. at 325
    . Moreover, the indi-
    gency provisions are designed to “further[ ], rather than
    constrict[ ], free speech,” see 
    id., and therefore
    should be
    construed favorably in the absence of evidence of a pattern of
    abuse.
    [12] The Peace Network makes a related challenge to the
    indigency exception, contending that the definition of indigent
    natural person, which “is not limited to” a person eligible for
    county relief, vests the City Manager with unbridled discre-
    tion to decide who else may qualify for the exemption. We
    disagree. Indigency is a common term with a well understood
    definition. One may disagree, within certain limits, about the
    level of income or assets needed to qualify as an indigent
    under the Ordinance, but the disagreement will be in a fairly
    narrow range. Further, the Ordinance has given a baseline in
    specifying that persons “eligible for county relief” qualify as
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH            3941
    indigent. We therefore conclude that the definition of indigent
    natural person does not confer unbridled discretion. Like the
    documentary provisions, the expansive definition is designed
    to further, rather than to restrict, free speech and therefore
    should be construed favorably.
    We also note that if the application is denied, the City Man-
    ager must provide the applicant with a statement explaining
    the reasons for denial. LBMC § 5.60.070(C). The applicant
    has the opportunity to appeal the denial to the City Council,
    
    id. § 5.60.130(A),
    or, if the applicant has applied for a special
    event permit fewer than thirty days before the event, directly
    to state court, 
    id. § 5.60.040(E).
    For these reasons, the proof
    of indigency provision does not give the City Manager unbri-
    dled discretion in violation of the First Amendment.
    4.   Insurance Requirement
    Section 5.60.080(B) provides that permittees must “procure
    and maintain [an insurance policy] in full force and effect dur-
    ing the term of the permit.” The Peace Network argues that
    this provision is content-based and allows public officials to
    exercise unbridled discretion. We disagree.
    Section 5.60.080(C) authorizes the City Manager to waive
    the insurance requirement if he determines that the planned
    event does not present a “substantial or significant public lia-
    bility or property damage exposure for the city or its offi-
    cers[.]” Further, § 5.60.080(D) provides an exception to the
    insurance requirement, stating that it “shall not be construed
    to apply to parades or special events . . . involving expressive
    activity which enjoy protection under the United States or
    California constitutions[.]” To qualify for this exception, such
    parades or special events shall be required to either:
    (1) agree to indemnify, protect, defend and hold
    harmless the city, its officers and employees against
    all claims, damages, expenses, loss or liability of any
    3942    LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    kind or nature whatsoever arising out of, or resulting
    from, the alleged acts or omissions of permittee, its
    officers, agents or employees in connection with the
    permitted parade, event or activity; or (2) agree to
    redesign or reschedule the permitted event to
    respond to specific risks, hazards and dangers to the
    public health and safety identified by the city man-
    ager as being reasonably foreseeable consequences
    of the permitted parade or special event[.]
    
    Id. In Food
    Not Bombs, we examined Santa Monica’s similar
    insurance 
    requirement. 450 F.3d at 1056-57
    (Kleinfeld, J.,
    writing for the majority); 
    id. at 1049-52
    (Berzon, J., dissent-
    ing in part). The Santa Monica ordinance required permittees
    to obtain insurance “that the Risk Manager determines to be
    necessary and adequate under the circumstances” for demon-
    strations and parades. 
    Id. at 1028
    (Berzon, J., maj. op.) (inter-
    nal quotation marks omitted). The ordinance exempted
    expressive events from the insurance requirement, so long as
    the organizers indemnified the city, “unless there is a specific,
    demonstrable history of personal injury or property damage
    claims being awarded against the applicant attributable to the
    applicant’s conduct of previous events in the City that are
    similar in nature to the proposed event.” 
    Id. (internal quota-
    tion marks omitted).
    The majority of the panel upheld the insurance require-
    ment, concluding that it was content-neutral. 
    Id. at 1057
    (Kleinfeld, J., writing for the majority). Judge Berzon, writing
    for herself, would have struck down the requirement as
    content-based. 
    Id. at 1051-52
    (Berzon, J., dissenting in part).
    The majority observed that
    [p]olitical demonstration organizers can . . . avoid
    . . . the insurance provision if they cooperate with the
    City Manager to design the event “to respond to spe-
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH          3943
    cific risks, hazards and dangers to the public health
    and safety identified by the City Manager . . . as
    being reasonably foreseeable consequences of the
    permitted event.” Thus, most demonstration organiz-
    ers will not have to provide insurance and even those
    with a destructive history can avoid the insurance
    requirement if they choose to work with the City
    Manager to avoid repetition of past injuries or prop-
    erty damage.
    
    Id. at 1057
    (footnote and citation omitted).
    [13] The Peace Network argues that by authorizing the
    Long Beach City Manager to determine whether insurance is
    required, the Ordinance requires the City Manager to evaluate
    the content of the message that is conveyed. While we con-
    clude below that the indemnification provision in
    § 5.60.080(A), which applies to “[e]ach permit,” is invalid in
    the sense that the City may not require a permit applicant to
    provide indemnification, we conclude that a city may autho-
    rize a permit applicant to provide, at the applicant’s option,
    indemnification as an alternative to insurance. Moreover,
    Long Beach leaves permit applicants with another alternative
    if they wish to hold their planned event — they may redesign
    the event. We see nothing to distinguish the LBMC insurance
    requirement from the insurance requirement we upheld as
    content-neutral in Food Not Bombs. The redesign language in
    § 5.60.080(D) is nearly identical to the language of the alter-
    native evaluated in Food Not Bombs. Therefore, because a
    “valid . . . alternative” exists, “the insurance provision . . .
    present[s] no constitutional problem.” Food Not 
    Bombs, 450 F.3d at 1049-50
    ; cf. 
    id. at 1049-50
    (Berzon, J., dissenting in
    part) (stating that with a valid indemnification alternative the
    insurance provision at issue “would present no constitutional
    problem”).
    The Peace Network also argues that § 5.60.080(D) gives
    the City Manager unbridled discretion to impose or waive
    3944   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    insurance requirements. However, the subsection states that
    the insurance provision “shall not be construed to apply” to
    expressive activities that qualify for the exemption. The
    words “shall not” do not connote discretion to require insur-
    ance for parades and special events involving expressive
    activities. If the availability of the exemption is triggered
    because the event involves expressive activity, there are three
    alternatives: indemnification (which we hold invalid), rede-
    sign of the event, or insurance. The Ordinance does not spec-
    ify who selects between these available options. See LBMC
    § 5.60.080(D). The commonsense reading of this subsection
    is that the applicant seeking to hold a parade or special event
    that involves expressive activity may select between the alter-
    natives.
    Section 5.60.080(C) is a logical extension of the second
    alternative in subsection (D). If there is no need to redesign
    or reschedule an expressive event because it poses no substan-
    tial risk of public liability or property damage, then the City
    Manager can waive the insurance requirement altogether. We
    read the mandatory language of subsection (D) in conjunction
    with the permissive language of subsection (C) to require the
    City Manager to waive the insurance requirement if the event
    does not present a substantial risk of public liability or prop-
    erty damage, thereby obviating any need to redesign or res-
    chedule the event. It would be absurd to require the City
    Manager to propose that the event be redesigned or res-
    cheduled in situations where the change is not necessary
    because the event poses minimal risks of public liability in the
    first place. Based on this commonsensical reading of the stat-
    ute, we conclude that the insurance waiver provision provides
    the City Manager with content-neutral, objective factors
    which control and direct the City Manager’s decision whether
    to grant a waiver.
    [14] We recognize that the Ordinance does not, in terms,
    require the City Manager to provide an explanation for the
    decision not to waive the insurance requirement. See Forsyth
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH       3945
    
    County, 505 U.S. at 133
    . However, it does require the City
    Manager to identify the “specific risks, hazards and dangers
    to the public health and safety” and to propose that the orga-
    nizers “redesign or reschedule” the event in response to those
    risks. LBMC § 5.60.080(D). This communication constitutes
    a sufficient explanation of the City Manager’s decision. We
    also recognize that the Ordinance allows “any person
    aggrieved by the issuance, denial, or revocation of a permit”
    to appeal the decision to the City Council to obtain a final
    determination, which may then be appealed in state court. 
    Id. § 5.60.080(A);
    see 
    id. § 5.60.040(E).
    The Ordinance does not
    prohibit event organizers from using these methods of review
    to challenge conditions imposed on permits. See 
    id. § 5.60.080(A);
    see also City of 
    Lakewood, 486 U.S. at 772
    (applying the unbridled discretion requirements to an offi-
    cial’s “authority to condition the permit on any additional
    terms”). For these reasons, the Ordinance does not afford the
    City Manager unbridled discretion to exempt an applicant
    from the insurance requirement.
    5.   Criminal Liability for Violation of the Ordinance
    [15] The Peace Network contends that the Ordinance is
    unconstitutional because it authorizes criminal liability for
    unknowing violations of its provisions. According to the
    Peace Network, the Ordinance “imposes strict liability on
    anyone who participates or engages in, or permits another to
    conduct a special event.” The Peace Network has misread the
    Ordinance. Section 5.60.120 authorizes a misdemeanor pen-
    alty, but does so only for a “person who intentionally violates
    any of the provisions of” § 5.60. LBMC § 5.60.120. To the
    degree that the Ordinance is otherwise constitutional, a misde-
    meanor penalty for intentional violation of its provisions does
    not violate the First Amendment.
    3946   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    C.   Unconstitutional Features of § 5.60
    1.   “Special” Events
    [16] A “special event,” as defined by the Ordinance,
    requires a permit issued by the City Manager. There are three
    categories of special events under the Ordinance. The Peace
    Network argues that requiring a permit for the second and
    third categories is unconstitutional. We disagree with its argu-
    ments as to the second category, but agree with its argument
    as to the third category.
    A special event requires a permit if it is conducted “in, on
    or upon any city street, sidewalk, alley, park, way, pier, public
    place, public property or public right-of-way which is owned
    or controlled by the city.” 
    Id. at §
    5.60.020(A). The Ordinance
    defines “special event” as:
    1. Any organized formation, parade, procession,
    demonstration or assembly which may include per-
    sons, animals, vehicles, or any combination thereof,
    which is to assemble or travel in unison on any
    street, sidewalk or other public right-of-way owned
    or controlled by the city which does not comply with
    applicable traffic regulations, laws or controls; or
    2. Any organized assemblage of seventy five (75)
    or more persons at any public place, property or
    facility which is to gather for a common purpose
    under the direction or control of a person; or
    3. Any other organized activity involving seventy
    five (75) or more persons conducted by a person for
    a common or collective use, purpose, or benefit
    which involves the use of, or has an impact on, pub-
    lic property or facilities and which may require the
    provision of city public services in response thereto.
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH           3947
    
    Id. § 5.60.010(I)(1)-(3).
    The City recently promulgated a reg-
    ulation limiting the third category to activities that are “likely
    to require the provision of city services” for six specified pur-
    poses: “street blockage,” “erecting barriers,” “construction,”
    “traffic control,” “crowd control,” or “litter abatement (for
    amounts in excess of that normally expected for the public
    property or facilities involved).” AR 8-28(IV)(A)(1)-(2).
    The Peace Network first argues that because the term
    “common purpose” in the second category of special event is
    not defined, “[t]he determination of whether a group is assem-
    bled for a ‘common purpose’ is, necessarily, a content-based
    judgment.” We disagree.
    The “common purpose” language in the second category
    can be “justified without reference to the content of the regu-
    lated speech,” 
    Clark, 468 U.S. at 293
    , because the provision
    applies regardless of whether the people are engaged in an
    expressive activity and because it furthers the City’s interest
    in receiving advance notice when large groups are planning to
    assemble so that it may regulate competing uses — a justifica-
    tion unrelated to the content of speech. See Food Not 
    Bombs, 450 F.3d at 1042
    . The language of the category applies when
    the “organized assemblage” is planning “to gather for a com-
    mon purpose under the direction or control of a person.”
    LBMC § 5.60.010(I)(2) (emphasis added). Without the com-
    mon purpose limitation, seventy-five people who happened to
    be in a park at the same time and who assembled in an orga-
    nized manner in response to police instructions to move to a
    different part of the park would require a permit to do so.
    The Peace Network next argues that because the second
    special event category requires a permit for any “organized
    assemblage” of seventy-five or more people at any public
    place, without specifying any adverse impact on any substan-
    tial governmental interest, it fails the narrow tailoring require-
    ment. See LBMC § 5.60.010(I)(1)-(3). We disagree.
    3948   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    The second category encompasses only events that take
    place “at any public place, property or facility.” 
    Id. § 5.60.010(I)(2).
    Such public places include public open
    spaces, where we have held that the substantial governmental
    interests are “only to regulate competing uses and provide
    notice to the municipality of the need for additional public
    safety and other services.” Food Not 
    Bombs, 450 F.3d at 1042
    . We recognized in Food Not Bombs that those govern-
    mental interests are significant, holding that “[g]roups of 150
    or more, whether demonstrating or playing soccer, are by any
    measure sufficiently large enough to affect or have an impact
    on the use of [the City’s] public spaces by other citizens and
    therefore to implicate the City’s interest in maintaining the
    safe and compatible use of limited public open space.” 
    Id. at 1043
    (internal quotation marks omitted). We cautioned, how-
    ever, that “a substantially lower number may well not com-
    port comfortably with the limited governmental interests at
    play in public parks and open spaces.” 
    Id. at 1043
    n.17.
    [17] The second category of special event applies to groups
    of seventy-five or more people conducting activities “at any
    public place, property or facility,” exactly half the number we
    upheld in Food Not Bombs. LBMC § 5.60.010(I)(2); 
    see 450 F.3d at 1042-43
    . The Supreme Court has recognized a gov-
    ernment’s significant interest in managing competing uses
    when large groups of people intend to use public property.
    See 
    Thomas, 534 U.S. at 322
    . Although it is a close question,
    we hold that a group of seventy-five people using a public
    open space in Long Beach is large enough to warrant an
    advance notice and permitting requirement. See 
    Grossman, 33 F.3d at 1206
    . Advance notice and permitting requirements
    applicable to smaller groups would likely be unconstitutional,
    unless such uses implicated other significant governmental
    interests, or where the public space in question was so small
    that even a relatively small number of people could pose a
    problem of regulating competing uses. Similarly, advance
    notice and permitting requirements for the use of much larger
    open spaces than those regulated by the LBMC might be
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH           3949
    unconstitutional even for groups of seventy-five. Because we
    hold that the second category is narrowly tailored in public
    open spaces, it is necessarily narrowly tailored in other public
    spaces such as sidewalks and streets, where the governmental
    interests are stronger. See Food Not 
    Bombs, 450 F.3d at 1039
    (“[T]he significant governmental interest justifying the
    unusual step of requiring citizens to inform the government in
    advance of expressive activity has always been understood to
    arise only when large groups of people travel together on
    streets and sidewalks.”). Compare LBMC § 5.60.010(I)(1)
    (requiring a permit for groups of any size using sidewalks and
    streets when the use “does not comply with applicable traffic
    regulations”), with 
    id. § 5.60.010(I)(2)
    (requiring a permit for
    groups of seventy-five or more persons “at any public place,
    property, or facility”).
    Finally, the Peace Network argues that the third category of
    special event is not narrowly tailored to serve a substantial
    governmental interest. We agree.
    The distinction between the second category of “special
    event,” defined as “[a]ny organized assemblage of seventy
    five (75) or more persons at any public place” and the third
    category of “special event,” defined as “[a]ny other organized
    activity involving seventy five (75) or more persons” in a
    public place is discernible, but only with some effort. As we
    construe the Ordinance, an “organized activity” in a public
    place is not necessarily an “organized assemblage.” For
    example, a group might organize a “5K Fun Run” in which
    fifty people race. Course monitors, first aid personnel, and
    spectators might be stationed along the course. This “orga-
    nized activity” could easily “involv[e] seventy five (75) or
    more persons” and would be “conducted . . . for a common
    or collective . . . purpose.” LBMC § 5.60.010(I)(3). Yet if the
    runners, spectators, course monitors, and first aid personnel
    never gather together in one place, it is possible that this event
    might never amount to an “organized assemblage of seventy
    five (75) or more persons.” 
    Id. § 5.60.010(I)(2).
    3950   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    It is unclear to us whether the third category is confined to
    events in public places. If it is not so confined, an advance
    permitting requirement cannot be justified, as it can be for the
    second category, on the ground of regulating competing uses
    in such places. But even if the third category is confined to
    events in public places, it is still not narrowly tailored.
    [18] The critical qualifying criterion for inclusion in the
    third category is that the event “may require the provision of
    city public services in response thereto.” LBMC
    § 5.60.010(I)(3). If we look only to the text of the Ordinance,
    the possibility of requiring the provision of any city public
    service — no matter how trivial the service — is enough to
    qualify the event for inclusion in the third category. As indi-
    cated above, the City has recently promulgated a regulation in
    an attempt to narrow the definition of city public services
    under the third category. The six services listed in the new
    regulation — any one of which would qualify the event as a
    special event requiring an advance permit — are “street
    blockage,” “erecting barriers,” “construction,” “traffic con-
    trol,” “crowd control,” or “litter abatement.” We hold that this
    regulation has not sufficiently narrowed the definition of city
    public services that may be required by an expressive event
    to satisfy the narrow tailoring requirement.
    In Food Not Bombs, we upheld an ordinance that required
    a permit for any “march, procession, walk, run or assembly on
    public sidewalks or City park paths” that was “likely to [ ]
    interfere with the free use of any public way . . . or not com-
    ply with traffic 
    regulations.” 450 F.3d at 1038-39
    (internal
    quotation marks omitted; second alteration in Food Not
    Bombs; emphasis removed). That is, we held that the permit-
    ting requirement was valid to the extent that the event was
    likely to interfere with the use of public ways or to violate
    traffic regulations. We think it is also safe to say that a per-
    mitting requirement would be valid to the extent that the event
    was likely to pose a threat to public safety.
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH           3951
    But the third category, described in § 5.60.010(I)(3), even
    as modified by the recent regulation, includes events that may
    require nothing more than city public services to deal with lit-
    ter. The City has offered no argument that litter abatement is
    a substantial governmental interest. In Schneider v. New Jer-
    sey, the Supreme Court held that legislation enacted to further
    the governmental interest in
    keep[ing] the streets clean and of good appearance is
    insufficient to justify an ordinance which prohibits a
    person rightfully on a public street from handing lit-
    erature to one willing to receive it. Any burden
    imposed upon the city authorities in cleaning and
    caring for the streets as an indirect consequence of
    such distribution results from the constitutional pro-
    tection of the freedom of speech[.]
    
    308 U.S. 147
    , 162 (1939). Unlike the government’s interest in
    regulating competing uses of park space, preserving free use
    of public ways, enforcing traffic rules or ensuring public
    safety, the government’s interest in litter abatement is not suf-
    ficient to justify a prior restraint on an expressive activity
    through a permitting requirement.
    Three of the other specified city public services are clearly
    related to free use of public ways, traffic violations or public
    safety, and would thus be permissible bases for requiring
    advance permits: “street blockage,” “erecting barriers,” and
    “traffic control.” The two remaining city public services are
    less clearly related to substantial governmental interests —
    “construction” and “crowd control.” These two services could
    be sufficiently related, depending on the type and purpose of
    the construction and crowd control, but a more precise defini-
    tion would be needed before we could conclude that they
    were.
    The government has the burden of showing that a restric-
    tion is narrowly tailored. Bay Area Peace 
    Navy, 914 F.2d at 3952
      LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    1227. We conclude that the City has failed to carry its burden
    to show that the definition of the third category of special
    event, described in § 5.60.010(I)(3) and the accompanying
    administrative regulation, is narrowly tailored to serve a sig-
    nificant governmental interest.
    2.   “Spontaneous” Events
    “Spontaneous” events are defined as “parades, assemblies
    or demonstrations involving expressive activity and which are
    occasioned by news or affairs coming into public knowledge
    within five (5) days of such parade, assembly or demonstra-
    tion.” LBMC § 5.60.030(A)(5). The Peace Network argues
    that the provisions governing “spontaneous” events are not
    narrowly tailored and do not provide sufficient alternative
    means of communication.4 We agree.
    Spontaneous events are not subject to the permitting
    requirements applicable to “special” events. 
    Id. However, organizers
    who wish to hold spontaneous events are required
    to “give written notice to the city manager at least twenty four
    (24) hours prior to such parade or assembly.” 
    Id. The twenty-
    four-hour advance notice requirement for spontaneous events
    is less demanding than the three-, five- or ten-day notice
    requirements for “special” events involving expressive activ-
    ity. LBMC § 5.60.040(D) (requiring three-day advance notice
    for events held on “sidewalks,” “parks,” or “waterways and
    piers,” five-day notice for “alleys and other rights-of-way
    other than sidewalks,” and ten-day notice for “streets, high-
    ways and thoroughfares”).
    The City Manager may impose “reasonable time, place and
    manner restrictions” on a spontaneous event. 
    Id. § 5.60.030(B).
    Further, the City Manager may deny permis-
    sion to hold a spontaneous event based on the same criteria
    4
    The Peace Network does not challenge the notice requirements for
    non-spontaneous events. Cf. Food Not 
    Bombs, 450 F.3d at 1043-45
    .
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH           3953
    applicable to a special event. 
    Id. § 5.60.030(C).
    Such criteria
    include, inter alia, unreasonable disruption of traffic, unrea-
    sonable interference with access to police or fire stations, and
    undue hardship to adjacent businesses or residents. 
    Id. § 5.60.070(A).
    Courts have considered several factors in determining the
    validity of requirements applicable to expressive activity in
    response to late-breaking news or to issues of immediate or
    urgent concern. These factors include the ability of individu-
    als to respond quickly to events or issues of concern, the
    scope of the regulation, and available alternative means of
    expression. See Food Not 
    Bombs, 450 F.3d at 1046-47
    . We
    consider these factors in turn.
    First, as just noted, the Ordinance requires groups to give
    the City at least twenty-four-hours advance notice before
    holding a “spontaneous” event. The Supreme Court has
    observed that “timing is of the essence in politics . . . . [W]hen
    an event occurs, it is often necessary to have one’s voice
    heard promptly, if it is to be considered at all.” 
    Shuttlesworth, 394 U.S. at 163
    . “[T]he change in timing [imposed by an
    advance notice requirement] will alter the potential impact of
    [the participants’] speech. For speech that is truly time sensi-
    tive, the precise spontaneous moment will be lost.” Food Not
    
    Bombs, 450 F.3d at 1046
    . “By requiring advance notice, the
    government outlaws spontaneous expression. Immediate
    speech can no longer respond to immediate issues.” City of
    
    Richmond, 743 F.2d at 1355
    ; cf. Ariz. Right to Life Political
    Action Comm. v. Bayless, 
    320 F.3d 1002
    , 1008 (9th Cir. 2003)
    (“To suggest that the [twenty-four-hour] waiting period is
    minimal ignores the reality of breakneck political campaign-
    ing and the importance of getting the message out in a timely,
    or, in some cases, even instantaneous fashion.”). A twenty-
    four-hour advance notice requirement for a spontaneous event
    is not categorically unconstitutional. But it may be so,
    depending on factors such as the definition of a spontaneous
    event and the availability of alternative means of expression.
    3954    LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    Second, a spontaneous event includes all “[s]pontaneous
    parades, assemblies, or demonstrations involving expressive
    activity” occasioned by “news or affairs coming into public
    knowledge withing five (5) days of such parade, assembly or
    demonstration[.]” LBMC § 5.60.030(A)(5). That is, a sponta-
    neous event would be a “special event” requiring a formal
    permit were it not for the time-sensitivity of the event. A
    “demonstration” is separately defined in the Ordinance as
    “any formation, procession or assembly of persons for the
    purpose of expressive activity, who intend to or do assemble
    or travel in unison on any street, sidewalk or other public
    right-of-way owned or controlled by the city in a manner that
    does not comply with normal or usual traffic regulations, laws
    or controls.” 
    Id. § 5.60.010(B).
    However, “parade” and “as-
    sembly” are not separately defined. We may reasonably
    assume, even without a separate definition, that a “parade” is
    a procession that takes place on a public street or other public
    right-of-way.
    But the definition of an “assembly” that constitutes a spon-
    taneous event is not so obvious. The definition of a “special
    event” requiring a permit includes “[a]ny organized assem-
    blage of seventy five (75) or more persons in any public
    place, property or facility which is to gather for a common
    purpose under the direction or control of a person.”5 Because
    a spontaneous event is the same thing as a special event but
    for its time sensitivity, we take the definition of “assembly”
    to be at least as broad as “organized assemblage.” The defini-
    tion of “assembly” may well be broader, but for present pur-
    5
    The definition of a special event also includes “[a]ny other organized
    activity involving seventy five (75) or more persons conducted by a per-
    son for a common or collective use, purpose or benefit which involves the
    use of, or has an impact on, public property or facilities and which may
    require the provision of city or public services in response thereto.” We
    hold that this definition of special event is unconstitutional because it is
    not narrowly tailored. 
    See supra
    Part IV.C.1. We do not rely on this defi-
    nition for purposes of determining the definition of “assembly,” as that
    term is used in defining a spontaneous event.
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH         3955
    poses that does not matter, for the definition of organized
    assemblage includes assemblies that take place on the lawn in
    front of a city hall, in a public park, on a publicly owned soc-
    cer field, or possibly even on a privately owned but publicly
    accessible open space. Thus, the spontaneous event regulation
    — and the twenty-four-hour advance notice requirement —
    apply to assemblies in places where there is no threat of dis-
    ruption of the flow of pedestrian or vehicular traffic.
    Third, alternative means of expression are limited for peo-
    ple who cannot comply, or who could comply only with diffi-
    culty, with the twenty-four-hour advance notice requirement.
    We wrote in Food Not Bombs, “[T]o comport with the First
    Amendment, a permitting ordinance must provide some alter-
    native for expression concerning fast-breaking 
    events.” 450 F.3d at 1047
    . Therefore, we “consider . . . whether the
    [LBMC] advance notice requirement, including the spontane-
    ous expression exception, overall provides adequate alterna-
    tives for expression, both planned and spontaneous.” 
    Id. at 1046;
    see also Ctr. for Fair Pub. Policy v. Maricopa County,
    
    336 F.3d 1153
    , 1170 (9th Cir. 2003) (“The Supreme Court
    generally will not strike down a governmental action for fail-
    ure to leave open ample alternative channels of communica-
    tion unless the government enactment will foreclose an entire
    medium of public expression across the landscape of a partic-
    ular community or setting.” (citation and internal quotation
    marks omitted).
    [19] We conclude that the regulation of “spontaneous”
    events under the Ordinance is not narrowly tailored to regu-
    late only events in which there is a substantial governmental
    interest in requiring such advance notice. The regulation
    requires twenty-four-hour advance notice irrespective of
    whether there is any possibility that the event will interfere
    with traffic flow. Further, the regulation fails to provide
    ample alternative means of communication for people wish-
    ing to participate in spontaneous expressive events.
    3956   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    The regulation of spontaneous events under the Ordinance
    stands in stark contrast to the Santa Monica spontaneous
    event regulation that we recently upheld in Food Not Bombs.
    There, “with respect to time-sensitive speech,” large groups
    had three alternatives to providing notice before such an
    event. First, the City Hall lawn was open to any group wish-
    ing to engage in speech. Food Not 
    Bombs, 450 F.3d at 1048
    .
    Second, a “safe harbor provision” described formations for
    sidewalk marches that would not require a permit and that
    would be available for “groups as large as 1,999.” 
    Id. Third, the
    ordinance explicitly exempted “unorganized” gatherings
    from the provisions. 
    Id. at 1049;
    see City of 
    Richmond, 743 F.2d at 1355-56
    (“[T]he delay inherent in advance notice
    requirements inhibits speech. By requiring advance notice, the
    government outlaws spontaneous expression. Immediate
    speech can no longer respond to immediate issues. The quan-
    tity of effective speech is limited.”).
    3.   Hold-harmless and Indemnification Clauses
    The Ordinance contains a broadly worded clause under
    which a permittee is required to agree to hold harmless and
    indemnify the City for harm arising out of the permitted activ-
    ity. LBMC § 5.60.080(A). The permit application form con-
    tains an even more broadly worded clause. These
    requirements apply to “[e]ach permit” and differ from the
    indemnification alternative to insurance set forth in
    § 5.60.080(D). The Peace Network argues that these clauses
    are unconstitutional because they are not narrowly tailored to
    serve a significant governmental interest. We agree.
    The hold-harmless and indemnity clause of the Ordinance
    provides, in relevant part:
    Each permit shall expressly provide that the permit-
    tee agrees to defend, protect, indemnify and hold the
    city, its officers, employees and agents free and
    harmless from and against any and all claims, dam-
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH            3957
    ages, expenses, loss or liability of any kind or nature
    whatsoever arising out of, or resulting from, the
    alleged acts or omissions of permittee, its officers,
    agents or employees in connection with the permit-
    ted event or activity[.]
    LBMC § 5.60.080(A). The permit application form requires
    not only that permittees agree to hold harmless and indemnify
    the City for expenses resulting from “acts or omissions” of the
    “permittee, its officers, agents or employees.” It also requires
    that permittees agree that their “organization will hold the
    City harmless from any liability caused by the conduct of the
    event.” (Emphasis added.) It states that “[t]he City will not be
    liable for any mishaps or injuries associated with the event,”
    and goes on to provide that “[f]ull responsibility for activities
    at the event will be assumed by the organization.”
    We evaluate not only the text of the Ordinance, but also the
    manner in which it has been implemented by governing
    authority. See 
    Ward, 491 U.S. at 795-96
    (including the admin-
    istrative implementation of a challenged provision in the
    Court’s constitutional analysis); cf. Forsyth 
    County, 505 U.S. at 131
    n.9 (examining the language of a permit application
    form to determine how the local government interpreted an
    ordinance provision). The terms “hold-harmless clause” and
    “indemnity clause” often refer to the same thing — an agree-
    ment under which “one party agrees to answer for any . . . lia-
    bility or harm that the other party might incur.” Black’s Law
    Dictionary 784 (8th ed. 2004) (defining “indemnity clause,”
    noting that the clause is “[a]lso termed hold-harmless clause;
    save-harmless clause” (emphasis in original)).
    Another provision of the Ordinance provides that “depart-
    mental services charges” may be assessed against a permittee,
    except that such charges may not include a charge for police
    protection of the permittees. LBMC § 5.60.010(C); see For-
    
    syth, 505 U.S. at 133-36
    ; Food Not 
    Bombs, 450 F.3d at 1049
    .
    The Peace Network has not challenged the assessment of
    3958   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    departmental services charges except (as we discuss in the
    next section) to the extent that the City Manager has unbridled
    discretion to decide whether such charges will be assessed in
    a particular case. For purposes of our analysis of the hold-
    harmless and indemnity clauses, we assume that the assess-
    ment of departmental services charges, as those charges are
    defined in the Ordinance, is permissible. The question before
    us, therefore, is whether the City may require the permittees
    to hold harmless and indemnify the City for the remaining
    costs specified in the clauses.
    The clauses, taken together, require permittees (1) to agree
    to compensate the City for any “damages, expenses, loss or
    liability . . . arising out of or resulting from the alleged actions
    or omissions” of permittees; (2) to agree to hold the City
    harmless for “any liability caused by the conduct of the event”
    to permittees; and (3) to agree to reimburse the City for “any
    liability caused by the conduct of the event” to third parties.
    The phrase “any liability caused by the conduct of the event”
    is susceptible to a broad reading, encompassing liability
    caused by the acts or omissions of any person or entity
    involved in the event, including acts and omissions not only
    of the permittees but also of the City and third parties.
    [20] We conclude that the clauses are not narrowly tailored
    to serve a substantial governmental interest. In performing our
    narrow tailoring analysis, we ask whether the clauses serve a
    substantial governmental interest without restricting substan-
    tially more speech than necessary, and whether there are obvi-
    ous alternatives that would achieve the same objectives while
    restricting less speech. We hold that the clauses are not nar-
    rowly tailored in three respects.
    [21] First, the clauses require that the permittees compen-
    sate the City for any “damages, expenses, loss or liability . . .
    arising out of . . . the alleged acts or omissions of permittee.”
    LBMC § 5.60.080(A). The permit application further requires
    permittees to indemnify the City for any “mishaps or inju-
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH          3959
    ries,” intentional or otherwise, that are “associated with the
    event.” It is well established that governments may not “re-
    coup costs that are related to listeners’ reaction” to speech.
    Forsyth 
    County, 505 U.S. at 135
    n.12. The Supreme Court
    explained in Forsyth County that recouping such costs is
    unconstitutional because “[s]peech cannot be financially bur-
    dened, any more than it can be punished or banned, simply
    because it might offend a hostile mob.” 
    Id. at 134-35.
    The
    Ordinance specifically provides that the cost of providing
    police protection is excluded from “departmental services
    charges,” see LBMC § 5.60.010(C), but the clauses would
    require permittees to compensate the City for more than just
    “departmental services charges.” The indemnification and
    hold-harmless clauses contain no exclusion for losses to the
    City occasioned by the reaction to the permittees’ expressive
    activity. The clauses thus allow the City impermissibly to
    shift some of the costs related to listeners’ reactions to speech
    from the City to the permittees.
    [22] Second, the clause contained in the permit application
    requires that permittees hold the City harmless for “any liabil-
    ity caused by the conduct of the event” — including, under a
    broad reading of this language, liability of the City to the per-
    mittees. That is, the clause requires that the permittees agree,
    as a condition of obtaining a permit to engage in expressive
    speech, to forgo recovery on any cause of action they might
    otherwise have against the City. The clause encompasses not
    only liability for physical harm to the permittees, but also for
    deprivation of permittees’ constitutional rights. Compare gen-
    erally Orin v. Barclay, 
    272 F.3d 1207
    , 1216 (9th Cir. 2001)
    (holding in a § 1983 action that state officials were not enti-
    tled to qualified immunity for limiting the message of a
    speaker who was protected by First Amendment). We think
    it obvious that permittees cannot be required to waive their
    right to hold the City liable for its otherwise actionable con-
    duct as a condition of exercising their right to free speech.
    [23] Third, the clause in the permit application requires that
    permittees hold the City harmless for “any liability caused by
    3960   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    the conduct of the event” to third parties. The permit applica-
    tion requires permittees to take “[f]ull responsibility for activ-
    ities at the event.” The provision requires permittees to
    assume legal and financial responsibility even for those “ac-
    tivities at the event” that are outside the control of the permit-
    tee, indeed including activities of the City. In NAACP v.
    Claiborne Hardware Co., the Supreme Court reviewed the
    damages awards from a civil rights boycott in Mississippi and
    explained that liability for costs arising out of protected
    expressive activity is limited by the amount of control the
    speaker exerts over the actors and the message of the 
    speech. 458 U.S. at 916-20
    . The Court held that “the presence of
    activity protected by the First Amendment imposes restraints
    on the grounds that may give rise to damages liability and on
    the persons who may be held accountable for those damages,”
    
    id. at 916-17,
    and declined to impose liability “merely
    because an individual belonged to a group, some members of
    which committed acts of violence.” 
    Id. at 920.
    The Court
    wrote that “[f]or liability to be imposed by reason of associa-
    tion alone, it is necessary to establish that the group itself pos-
    sessed unlawful goals and that the individual held a specific
    intent to further those illegal aims” because “ ‘[i]n this sensi-
    tive field, the State may not employ “means that broadly stifle
    fundamental personal liberties when the end can be more nar-
    rowly achieved.” ’ ” 
    Id. (quoting Carroll
    v. Princess Anne,
    
    393 U.S. 175
    , 183-84 (1968)). Requiring permittees to com-
    pensate third parties for harm caused by hecklers, counter-
    protesters, or other persons not part of permittees’ organiza-
    tion restricts substantially more speech than the liability found
    unconstitutional in Claiborne Hardware. 
    See 458 U.S. at 916
    -
    17, 918-19. Similarly, requiring permittees to compensate
    third parties for harm caused by acts and omissions of the
    City impermissibly restricts speech.
    The City argues that the clauses should be upheld because
    we did not strike down similar provisions in Food Not Bombs.
    For two reasons, we disagree. First, the clauses in this case are
    broader than the provisions upheld in Food Not Bombs. See
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH         
    3961 450 F.3d at 1056
    (Kleinfeld, J., writing for the majority). In
    that case, Santa Monica had imposed a hold-harmless provi-
    sion that was limited to “all claims, damages, expenses, [and]
    loss or liability” resulting from “alleged willful or negligent
    acts or omissions of permittee, its officers, agents, or employ-
    ees in connection with the permitted event or activity.” 
    Id. at 1056
    n.10 (internal quotation marks omitted).
    Second, although we did not address the issue of narrow
    tailoring in Food Not Bombs because plaintiffs had challenged
    the provision only on the ground that it was content-based, 
    id. at 1058
    (Wardlaw, J., concurring), our conclusion in this case
    is supported by the comments of two of the judges on the
    Food Not Bombs 
    panel. 450 F.3d at 1052
    (Berzon, J., dissent-
    ing in part); 
    id. at 1058
    (Wardlaw, J., concurring). Judge Ber-
    zon wrote that the indemnification provision in that case was
    “not narrowly tailored to the governmental interest in protect-
    ing the City from bearing costs arising from injuries or other
    liabilities due to the permittees’ wrongful conduct of the event
    or conditions at the site.” 
    Id. at 1052
    (Berzon, J., dissenting
    in part). Judge Wardlaw acknowledged that the contention
    that the provision was not narrowly tailored “might have been
    the better argument,” but in her view, the argument had been
    waived because the plaintiff had failed to raise it. 
    Id. at 1058
    (Wardlaw, J., concurring).
    4.     Funding and Waiver of Permit Fee
    and Departmental Services Charges
    The Ordinance authorizes the imposition of a fee for a per-
    mit to hold a “special event,” as well as the imposition of “de-
    partmental services charges” for costs incurred by the City as
    a result of either “special” or “spontaneous” events. The Ordi-
    nance allows the City, in its discretion, to fund or waive the
    permit fee and the departmental services charges. The Peace
    Network argues that the funding and waiver provision allows
    the exercise of unbridled discretion and is therefore unconsti-
    tutional. We agree.
    3962   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    The Ordinance provides that “a permit fee” “shall be estab-
    lished by the city council by resolution,” but that the fee may
    be “funded or waived by council resolution or ordinance.”
    LBMC § 5.60.050(A). The Ordinance further provides that
    “departmental services charges” shall be assessed against a
    “permittee.” 
    Id. §§ 5.60.090(a),
    5.60.010(C). In this context,
    the term “permittee” appears to include both someone who
    has been granted a permit to hold a “special event,” as well
    as someone who is exempt from the formal permit process but
    has been given permission to hold a “spontaneous” event. The
    Ordinance provides that departmental services charges may
    be “funded, partially funded or waived by action of the city
    council.” 
    Id. § 5.60.090(A).
    The Ordinance does not specify
    criteria for determining whether those fees and charges will
    be funded or waived by the City Council.
    We note at the outset that the unbridled discretion argument
    is somewhat unusual in this case. Here, the discretion to fund
    or waive the fees and charges rests in the hands of the City
    Council — the elected, legislative body of the City. Unbridled
    discretion challenges typically arise when discretion is dele-
    gated to an administrator, police officer, or other executive
    official. See, e.g., 
    Thomas, 534 U.S. at 318
    (Chicago Park
    District); Forsyth 
    County, 505 U.S. at 132
    (county administra-
    tor); 
    Cox, 312 U.S. at 576
    (licensing board); 
    Menotti, 409 F.3d at 1144
    (police officers); S. Or. Barter 
    Fair, 372 F.3d at 1137
    (Department of Human Services); 
    Linick, 195 F.3d at 542
    (Forest Service). But see City of 
    Richmond, 743 F.2d at 1357
    (City Council). Delegation in the administrative law
    context refers to delegation of legislative authority to the
    executive branch. See, e.g., United States v. Mead Corp., 
    533 U.S. 218
    , 226-27 (2001). In the First Amendment context,
    some of the delegation of authority concerns are the same,
    such as lack of accountability and inability to obtain effective
    judicial review. See Freedman v. Maryland, 
    380 U.S. 56
    , 57
    (1965). Two other concerns, largely unrelated to delegation,
    are relevant to our First Amendment analysis: the need for
    narrow tailoring, Gaudiya Vaishnava 
    Soc’y, 952 F.2d at 1065
    ,
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH         3963
    and the desire to eliminate the opportunity for officials to
    engage in content-based discrimination through the exercise
    of discretion, Forsyth 
    County, 505 U.S. at 133
    . Those con-
    cerns are relevant to a First Amendment analysis even if the
    discretion remains with a legislative body and has not been
    delegated to an administrative official.
    [24] The permitting scheme of the Ordinance requires orga-
    nizers to come to the City for permission to hold an expres-
    sive event. If a legislative body retains discretion to make an
    important decision as part of that permitting scheme — here,
    whether to fund an event or to waive fees and charges — that
    discretion is distinct from the general discretion a legislative
    body has to enact (or not enact) laws. Absent a preexisting
    permitting scheme, a city council could not in advance impose
    service charges or other fees on a group seeking to hold a
    demonstration in a public forum. Cf. Simon & Schuster, 
    Inc., 502 U.S. at 115-16
    ; Rust v. Sullivan, 
    500 U.S. 173
    , 194-95,
    199-200 (1991). The Long Beach City Council’s reserved
    authority to waive or fund charges is thus unlike its usual leg-
    islative authority. We conclude that in the First Amendment
    context, where a legislative body has enacted a permitting
    scheme for expressive conduct but has reserved some deci-
    sionmaking authority for itself under that scheme, that
    reserved authority is vulnerable to challenge on grounds of
    unbridled discretion.
    Our conclusion is supported by Shuttlesworth v. City of Bir-
    mingham, in which the Supreme Court evaluated an ordinance
    requiring participants in parades and other public demonstra-
    tions to obtain a permit from the “City 
    Commission,” 394 U.S. at 148
    , which was “the governing body of the City of
    Birmingham,” Shuttlesworth v. City of Birmingham, 
    281 Ala. 542
    , 544 (1967). The Court concluded that because the city’s
    “ordinance . . . conferred upon the City Commission virtually
    unbridled and absolute power to prohibit” parades and dem-
    onstrations, 
    Shuttlesworth, 394 U.S. at 150
    , it was facially
    unconstitutional. See 
    id. at 151.
    The Tenth Circuit reached a
    3964   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    similar conclusion in Association of Community Organiza-
    tions for Reform Now (ACORN) v. Municipality of Golden,
    
    744 F.2d 739
    , 747 (10th Cir. 1984). The court held that the
    exercise of unbridled discretion by a city council in a permit-
    ting scheme was unconstitutional. It wrote:
    We fail to see how it matters for First Amendment
    purposes whether unguided discretion is vested in
    the police or the city council. Vesting either author-
    ity with this discretion permits the government to
    control the viewpoints that will be expressed.
    Whether the city council or the police exercise this
    power, we believe that it runs afoul of the basic prin-
    ciple that “forbids the government from regulating
    speech in ways that favor some viewpoints or ideas
    at the expense of others.”
    
    Id. at 747
    (quoting Taxpayers for 
    Vincent, 466 U.S. at 804
    ).
    We disagree with the apparently contrary conclusion of the
    California Court of Appeal in Long Beach Lesbian & Gay
    Pride, Inc. v. City of Long Beach, 
    14 Cal. App. 4th 312
    , 344
    (1993) (“It is not a delegation of power to an official but a
    recognition of the innate authority of the City’s legislative
    body. The city council has the power to grant special permits,
    and to amend Chapter 5.60; the mere existence of that poten-
    tial does not present a case of unguided discretion.”).
    [25] The City has pointed to no provision of the Ordinance,
    or to any implementing regulation, that guides the City Coun-
    cil’s decision whether to fund or waive fees and charges. The
    lack of specific articulated bases for making this decision
    compels the conclusion that the City Council has unconstitu-
    tional unbridled discretion. See City of 
    Richmond, 743 F.2d at 1357
    (“The dangers of discretion are particularly evident in
    parade permit schemes, where waivers will often be sought
    for politically controversial causes. It is precisely when politi-
    cal and social pressures are most likely to affect decisionmak-
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH         3965
    ing that objective standards to govern discretion are most
    essential.” (internal quotation marks omitted)).
    The City argues, based on Thomas, that because the waiver
    provision is permissive it cannot be an unconstitutional
    infringement on speech. In Thomas, the Supreme Court held
    that the “permissive nature” of a provision that allowed city
    officials to grant a permit for an expressive event despite an
    application’s “fail[ure] to meet . . . technical requirements,”
    so long as a waiver did not harm the “policies furthered by the
    application requirements,” was not 
    unconstitutional. 534 U.S. at 325
    . The Court wrote that the provision “furthers, rather
    than constricts, free speech.” 
    Id. The Court
    added, “Granting
    waivers to favored speakers (or, more precisely, denying them
    to disfavored speakers) would of course be unconstitutional,
    but we think that this abuse must be dealt with if and when
    a pattern of unlawful favoritism appears, rather than by insist-
    ing upon a degree of rigidity that is found in few legal
    arrangements.” 
    Id. The challenged
    provision in Thomas is
    strikingly dissimilar to the provision in our case. In Thomas,
    the provision operated only in the narrow circumstance where
    the permit application was technically deficient. The provi-
    sion then provided a generous criterion for forgiving the tech-
    nical defect and allowing the event to go forward despite the
    defect. By contrast, this Ordinance authorizes the City Coun-
    cil to decide whether to fund or waive fees and charges for all
    permissive events subject to the Ordinance, not limited to
    events for which a permit application was technically defi-
    cient, and authorizes the City Council to make that decision
    with no governing criteria whatsoever.
    The City argues that the City Council has not, in fact, used
    its authority to fund or waive fees and charges based on the
    content of the expressive activity. Even if this were so, it
    would be irrelevant. The question is not whether a city has
    unlawfully favored certain messages or certain kinds of
    speech. The question is whether the ordinance in question
    allows the City to do so. A presumption that a city official
    3966   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    “will act in good faith and adhere to standards absent from the
    ordinance’s face . . . is the very presumption that the doctrine
    forbidding unbridled discretion disallows.” City of Lake
    wood, 486 U.S. at 770
    .
    Although we need not do so for the disposition of this case,
    we note that, contrary to the City’s argument, the record con-
    tains evidence of content-based favoritism. The Peace Net-
    work held two similar events, separated by less than two
    months, both with at least 1,000 attendees. For the February
    event, held before the United States initiated hostilities in Iraq
    and attended by government officials, the City assessed no fee
    or charges. For the March event, held after the commence-
    ment of hostilities in Iraq and not attended by government
    officials, the City assessed charges of $7,041. This favoritism
    is a manifestation of the very dangers inherent in unbridled
    discretion.
    The Peace Network does not argue that, in the absence of
    unbridled discretion, the provisions allowing the assessment
    of fees and charges are unconstitutional. We therefore do not
    address the issue whether, absent the authority to exercise
    unbridled discretion to fund or waive the fees and charges, the
    provisions allowing their assessment are narrowly tailored
    and allow ample alternatives for speech.
    VI.   Severability
    [26] The district court found that Section 5.60 was a
    content-based restriction on free speech and issued a perma-
    nent injunction against enforcement of the Ordinance in its
    entirety. We conclude that some features are constitutional
    and that others are unconstitutional. The parties did not brief
    the issue of severability before the district court or this court.
    Severability of a local ordinance is a question of state law.
    City of 
    Lakewood, 486 U.S. at 772
    ; Tucson Woman’s Clinic
    v. Eden, 
    379 F.3d 531
    , 556-57 (9th Cir. 2004) (as amended).
    We remand so that the district court may conduct the sever-
    LONG BEACH AREA PEACE NETWORK v. LONG BEACH            3967
    ability analysis in the first instance after briefing from the par-
    ties.
    VII.   Conclusion
    For the foregoing reasons, we hold that some features of
    LBMC § 5.60 are constitutional and that others are unconsti-
    tutional. We remand to the district court for further proceed-
    ings consistent with this opinion.
    AFFIRMED in part; REVERSED in part; REMANDED.
    BERZON, Circuit Judge, concurring:
    I concur fully in Judge Fletcher’s opinion.
    I continue to believe that an insurance requirement of the
    kind imposed by Long Beach is potentially content-based, and
    therefore invalid. The Long Beach ordinance does not limit
    the requirement to insurance policies priced solely on the size
    and location of the special event. See Thomas v. Chicago Park
    Dist., 
    227 F.3d 921
    , 925 (7th Cir. 2000) (upholding an insur-
    ance requirement where “[t]he required amount and the cost
    of the insurance depend only on the size of the event and the
    nature of the facilities involved in it (a bandstand, stage, tents,
    and so forth)”), aff’d on other grounds, 
    534 U.S. 316
    (2002).
    Instead, the ordinance requires the purchase of insurance even
    if, as could well be the case, the insurance premium reflects
    the insurer’s assessment of the connection between the risk of
    loss and the content of the insured’s expressive activity. For
    that reason, were I free to do so, I would follow the substan-
    tial case law holding such an insurance requirement unconsti-
    tutional as a violation of the First Amendment. See Santa
    Monica Food Not Bombs v. City of Santa Monica (“Food Not
    Bombs”), 
    450 F.3d 1022
    , 1049-52 (9th Cir. 2006) (Berzon, J.,
    3968   LONG BEACH AREA PEACE NETWORK v. LONG BEACH
    dissenting in part); 
    id. (citing cases
    invalidating insurance
    requirements for public forum permits as content-based).
    I fully expressed this view, however, in Food Not Bombs,
    but did not prevail. The Food Not Bombs majority did not
    acknowledge the substantial case law supporting my conclu-
    sion, and did not consider the likelihood that insurance premi-
    ums would, like the fees set in Forsyth County v. Nationalist
    Movement, 
    505 U.S. 123
    , 134 (1992), reflect the content of
    the permittee’s expression and the likely reaction of bystand-
    ers to that content. Still, I am bound by Food Not Bombs as
    precedent, and so concur.
    I note that the discussion in this opinion of the indemnifica-
    tion provision supports my view that setting an unrestricted
    insurance requirement as a condition for issuing a permit for
    expressive activity is unconstitutional. We explain today why
    the indemnity provision is not narrowly tailored. Insurance
    companies typically set premiums by first determining the
    risk of loss. Nothing in the Long Beach ordinance would pre-
    vent any issuer from taking into account, in assessing the risk
    of loss and then setting the premium for event insurance
    accordingly, the very considerations we conclude make the
    indemnity provision insufficiently narrowly tailored.
    Morever, an insurance requirement demands up front payment
    even if the insured risk never eventuates, making it even less
    narrowly tailored, and more likely to discourage communica-
    tive activities in public fora than an indemnity requirement.
    I nonetheless concur, as I agree with Judges Fletcher and
    Pregerson that there is no difference of principle between the
    insurance requirement in this case and the one in Food Not
    Bombs.
    

Document Info

Docket Number: 05-55083

Filed Date: 4/15/2008

Precedential Status: Precedential

Modified Date: 2/19/2016

Authorities (57)

association-of-community-organizations-for-reform-now-acorn-kurt , 744 F.2d 739 ( 1984 )

Martha Burk v. Augusta-Richmond County , 365 F.3d 1247 ( 2004 )

Arizona Right to Life Political Action Committee v. Betsy ... , 320 F.3d 1002 ( 2003 )

James Newcomb v. James Brennan and Henry Reuss , 558 F.2d 825 ( 1977 )

American-Arab Anti-Discrimination Committee, a Non-Profit ... , 418 F.3d 600 ( 2005 )

Caren Cronk Thomas and Windy City Hemp Development Board v. ... , 227 F.3d 921 ( 2000 )

Moishe Meyer Rosen v. The Port of Portland James Hawley and ... , 641 F.2d 1243 ( 1981 )

Alan L. Baldwin and George Q. Cannon, Jr. v. Redwood City, ... , 540 F.2d 1360 ( 1976 )

bernie-galvin-sister-ken-butigan-jeff-johnson-rev-karen-oliveto-rev , 374 F.3d 739 ( 2004 )

Daniel M. Berry v. Department of Social Services, Tehama ... , 447 F.3d 642 ( 2006 )

lawrence-rosenbaum-eric-livingston-v-city-and-county-of-san-francisco-fred , 484 F.3d 1142 ( 2007 )

united-states-v-pamela-baugh-benijamin-bear-alan-beim-lou-bordisso-maria , 187 F.3d 1037 ( 1999 )

tucson-womans-clinic-on-behalf-of-themselves-and-their-patients-seeking , 379 F.3d 531 ( 2004 )

center-for-fair-public-policy-an-arizona-non-profit-corporation-dream , 336 F.3d 1153 ( 2003 )

benjamin-k-orin-v-richard-barclay-and-his-marital-community-in-his , 272 F.3d 1207 ( 2001 )

santa-monica-food-not-bombs-an-unincorporated-association-international , 450 F.3d 1022 ( 2006 )

naacp-western-region-and-berkeley-albany-richmond-kensington-chapter , 743 F.2d 1346 ( 1984 )

southern-oregon-barter-fair-v-jackson-county-oregon-jackson-county-board , 372 F.3d 1128 ( 2004 )

one-world-one-family-now-a-hawaii-non-profit-corporation-james-mcdonough , 76 F.3d 1009 ( 1996 )

98-cal-daily-op-serv-3243-98-cal-daily-op-serv-5847-98-daily , 146 F.3d 629 ( 1998 )

View All Authorities »