Argued and Submitted June 1, 2006 — San Francisco, California.
Opinion by Judge Paez.
PAEZ, Circuit Judge:
We must decide whether city ordinances prohibiting solicitation and the erection of tables in a five-block tract of downtown Las Vegas unconstitutionally restrict free speech. We hold that they do.
This case returns to our court for a third time. In 1997, nonprofit organizations the American Civil Liberties Union of Nevada, the Unitarian Universalist Social Justice Committee, the Shundahai Network, and three of their members (collectively "Plaintiffs") filed a complaint in federal district court for declaratory and injunctive relief.
As we explained in ACLU v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003) ("ACLU I"), cert. denied, 540 U.S. 1110 (2004), the ordinances that are the focus of Plaintiffs' complaint were adopted as part of the City's effort to revitalize the downtown area of Las Vegas:
Id. at 1094-95. Certain speech-related activities, in the eyes of Defendants, are not compatible with the new Fremont Street Experience. See id. at 1095. As the district court explained in its most recent order:
To address these concerns, the City adopted ordinances restricting activities in the Fremont Street Experience. One of those ordinances, LVMC § 10.44.030, prohibits solicitation at multiple Las Vegas locations including the Fremont Street Experience. See id. § 10.44.030(F). Soliciting in the Fremont Street Experience constitutes a misdemeanor. Id. § 10.44.030.
Solicitation is broadly defined as "to ask, beg, solicit or plead, whether orally, or in a written or printed manner, for the purpose of obtaining money, charity, business or patronage, or gifts or items of value for oneself or another person or organization." Id. § 10.44.010(A). The expansive reach of the solicitation ordinance is confirmed by Defendants' interpretation of it as prohibiting distribution of a handbill by the Shundahai Network stating "WE NEED HELP — ANYTHING — FOOD — DONATIONS — PEOPLE — CARS — LOVE — KITCHEN SUPPLIES" and providing contact information. According to the City's counsel, distribution of this handbill violated the ordinance because "[t]he solicitation ordinance expressly prohibits any requests whether written or oral for charity, business or patronage." The district court confirmed this interpretation of the ordinance in its 2001 order, finding that LVMC § 10.44.010(A) "bar[s] the distribution of message bearing leaflets that solicit money or donations . . . through in hand leafleting, regardless of whether their request is for an immediate or future donation." ACLU v. City of Las Vegas, No. 97-1419, at 14-15 (D. Nev. Apr. 4, 2001) (unpublished order) ("2001 Order").
In their 1997 complaint, Plaintiffs challenged the solicitation ordinance as invalid both on its face and as applied to them. According to Plaintiffs, the ordinance unconstitutionally restricts their and others' First and Fourteenth Amendment rights to free speech.
A second ordinance prohibits a variety of activities solely in the Fremont Street Experience. See LVMC § 11.68.100. Violation of this ordinance also constitutes a misdemeanor. Id. § 11.68.130. In their 1997 complaint, Plaintiffs challenged three subsections of LVMC § 11.68.100
Of relevance to Plaintiffs' claim regarding LVMC § 11.68.100(H) are the facts of the following incident, which occurred on October 24, 2000. Three ACLU members set up a table in the Fremont Street Experience, from which they hung an ACLU banner. They placed petitions on the table and handed out flyers. After security officers confronted the members and showed them the ordinance prohibiting tabling, they were required to remove the table.
Initially, the district court ruled that the Fremont Street Experience is a nonpublic forum and analyzed Plaintiffs' challenges in light of that determination. ACLU v. City of Las Vegas, 13 F.Supp.2d 1064, 1073-83 (D. Nev. 1998). The district court granted summary judgment to Defendants regarding the solicitation and tabling ordinances, but issued preliminary injunctions enjoining Defendants from enforcing the leafleting and vending ordinances. Id. at 1084-85. We dismissed cross-appeals from the district court's order in an unpublished disposition. ACLU v. City of Las Vegas, 168 F.3d 497 (9th Cir. 1999) (mem.).
In 2001, the district court entered a final, unpublished order granting summary judgment to Defendants on the solicitation and tabling claims and granting summary judgment to Plaintiffs on their leafleting and vending claims. The court permanently enjoined Defendants from enforcing the latter two ordinances. 2001 Order at 18. The court reiterated its conclusion that the Fremont Street Experience is a nonpublic forum. Id. at 10.
Once again the parties cross-appealed. In a published opinion, we held that the district court erred in concluding that the Fremont Street Experience is a nonpublic forum. "[T]he Fremont Street Experience unmistakably possesses the characteristics of a traditional public forum" where restrictions on protected First Amendment activity "must be scrutinized under a strict standard of review." ACLU I, 333 F.3d at 1094. Although the City urged us to hold that its "expensive makeover" transformed the Fremont Street Experience into a nonpublic forum, we rejected the City's attempt to recharacterize its downtown streets and sidewalks as anything other than a traditional public forum. Id. at 1102; see also id. at 1105 ("The principal uses of Fremont Street, both before and after its transformation, are as a commercial district and public thoroughfare. The grime of Fremont Street has been scrubbed away and it has been dramatically redesigned, but its character as a central commercial street remains."). Because the district court correctly concluded that the leafleting and vending ordinances were invalid even under the laxer standard applicable to a nonpublic forum, we affirmed the court's holdings that those ordinances were unconstitutional. Id. at 1106-09. We remanded to the district court for reconsideration of the solicitation and tabling ordinances in light of our holding that the Fremont Street Experience is a traditional public forum. Id. at 1108-09.
On remand, Plaintiffs amended their complaint to clarify their claims.
On cross-motions for summary judgment, the district court reanalyzed the solicitation and tabling ordinances in light of our conclusion that the Fremont Street Experience is a traditional public forum. In an unpublished order, the district court held that the solicitation ban is content-neutral and a valid time, place, and manner restriction on First Amendment activity. 2005 Order at 5-8. The court granted Defendants' motion for summary judgment on the solicitation ordinance. Id. at 8. The court further held that the ordinance prohibiting the erection of tables in the Fremont Street Experience violates Plaintiffs' equal protection rights. Id. at 9-10. The court granted summary judgment to Plaintiffs on their as-applied claim, but declined to hold that the tabling statute is facially invalid. Id. at 10. The parties timely cross-appealed.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand to the district court with instructions to enter judgment enjoining Defendants from enforcing the solicitation ordinance in the Fremont Street Experience and enjoining Defendants from enforcing the tabling ordinance against Plaintiffs when Plaintiffs seek to erect tables to facilitate the dissemination of protected speech.
We review de novo the district court's grants of summary judgment and may affirm on any ground that is supported by the record. ACLU I, 333 F.3d at 1096-97. The question is whether, when the evidence is viewed in the light most favorable to the nonmoving party, genuine issues of material fact exist. Id. at 1097. Here, cross-motions for summary judgment are at issue. We "evaluate each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences." Id.
"The government's right to limit expressive activity in a public forum `is "sharply" circumscribed.'" S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir.) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)), amended by 160 F.3d 541 (9th Cir. 1998). "Thus, governmental regulation of speech in a traditional public forum `is subject to the highest scrutiny.'" Id. (quoting Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) ("ISKCON")). The government bears "an extraordinarily heavy burden" when it seeks to regulate free speech in a traditional public forum. ACLU I, 333 F.3d at 1098 (internal quotation marks omitted).
We reiterate our concern, expressed in our prior published opinion on Las Vegas's restrictions on free speech in the Fremont Street Experience, that "as society becomes more insular in character, it becomes essential to protect public places where traditional modes of speech and forms of expression can take place. `We think this is particularly true with respect to downtown public spaces conducive to expressive activities.'" Id. at 1097 (quoting First Unitarian Church v. Salt Lake City Corp., 308 F.3d 1114, 1131 (10th Cir. 2002)) (alteration, citation, and internal quotation marks omitted).
Las Vegas is not alone in its effort to reinvent an historically public space and its subsequent attempt to limit free speech where First Amendment activities formerly proceeded unhindered. There is a growing "`nationwide trend toward the privatization of public property.'" Id. (quoting Chicago Acorn v. Metro. Pier & Exposition Auth., 150 F.3d 695, 704 (7th Cir. 1998)). In recent years, cities such as Salt Lake City, Utah, see First Unitarian Church, 308 F.3d 1114, Boston, Massachusetts, see Citizens to End Animal Suffering & Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F.Supp. 65 (D. Mass. 1990), Portland, Oregon, see Lloyd Corp. v. Whiffen, 849 P.2d 446 (Or. 1993), and Jamestown, North Dakota, see City of Jamestown v. Beneda, 477 N.W.2d 830 (N.D. 1991), to name just a handful, have sold or leased traditional public fora to private entities. See also Marsh v. Alabama, 326 U.S. 501 (1946) (prohibiting the private owner of a company town from eliminating First Amendment activities from its streets and sidewalks); Venetian Casino Resort, LLC v. Local Joint Exec. Bd., 257 F.3d 937 (9th Cir. 2001) (considering restrictions on expressive activity on a formerly public sidewalk, now privately owned, adjacent to Las Vegas Boulevard). If this trend of privatization continues—and we have no reason to doubt that it will—citizens will find it increasingly difficult to exercise their First Amendment rights to free speech, as the fora where expressive activities are protected dwindle. "Awareness of contemporary threats to speech must inform our jurisprudence regarding public forums." ACLU I, 333 F.3d at 1097.
It is with these principles in mind that we turn to the merits of this case.
Plaintiffs contend that the City's solicitation ordinance unconstitutionally restricts their First and Fourteenth Amendment rights to free speech in the Fremont Street Experience. The district court disagreed. We review de novo the district court's ruling because First Amendment questions are mixed questions of law and fact, Gerritsen v. City of Los Angeles, 994 F.2d 570, 575 (9th Cir. 1993), and because we review de novo the constitutionality of local ordinances, G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1070 (9th Cir. 2006). We reverse and remand to the district court with instructions to enjoin Defendants from enforcing LVMC § 10.44.030 in the Fremont Street Experience.
Thus, the initial question this case poses is whether the solicitation ordinance is content-based or content-neutral. See Frisby v. Schultz, 487 U.S. 474, 481 (1988) ("[T]he appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content."). If the ordinance is content-neutral, we must determine whether it is narrowly tailored, serves a significant government interest, and leaves open ample alternative channels of expression. If the ordinance is content-based, it is presumptively invalid and we will uphold its constitutionality only if the City can demonstrate that it is the least restrictive means of furthering a compelling government interest.
"Solicitation" is defined broadly by the Las Vegas Municipal Code to include "ask[ing], beg[ging], solicit[ing] or plead[ing], whether orally, or in a written or printed manner, for the purpose of obtaining money, charity, business or patronage, or gifts of items of value for oneself or another person or organization." LVMC § 10.44.010(A). Counsel for the City has indicated that the ban on solicitation covers more than requests for in-hand monetary donations, and the district court confirmed this interpretation of the ordinance. Whereas handbills that simply offer information, or offer information and a contact number, are permitted, handbills requesting that the recipient "join us" or soliciting future donations are prohibited.
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark, 468 U.S. at 293). That said, we are not required to find a content-based purpose in order to hold that a regulation is content-based. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994). "[T]he mere assertion of a content-neutral purpose [is not] enough to save a law which, on its face, discriminates based on content." Id. at 642-43. Rather, "[a]s a general rule, laws that by their terms distinguish favored speech on the basis of the ideas or views expressed are content based." Id. at 643. Thus we will hold that the solicitation ordinance is content-based if either the main purpose in enacting it was to suppress or exalt speech of a certain content, or it differentiates based on the content of speech on its face. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429-30 (1993).
The district court concluded from the uncontroverted evidence that the City had the following intent in passing the solicitation ban: "(1) [to] protect potential visitors from solicitors in an environment where the freedom of movement is restricted; (2) [to] accommodate and encourage the safe, efficient, and orderly movement of pedestrians; and (3) [to] protect the local merchant economy." 2005 Order at 6. According to the district court, "[n]one of these interests concerns the content of speech, and there is no evidence in the record that the ordinance was designed to suppress certain ideas that the City finds distasteful." Id. Of course, there exists the possibility that solicitation was targeted because, as the record indicates, in downtown Las Vegas it generally concerns requests for money by the homeless or vagrants and requests for patronage of sex-based businesses. However, Plaintiffs have not presented evidence to raise a genuine issue of material fact regarding the City's motivation for enacting the solicitation ordinance, and the uncontroverted evidence supports that the ordinance was enacted with the purpose of controlling the secondary effects of solicitation, rather than the content of the soliciting requests themselves. We "will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383 (1968).
Although courts have held that bans on the act of solicitation are content-neutral, we have not found any case holding that a regulation that separates out words of solicitation for differential treatment is content-neutral. See, e.g., United States v. Kokinda, 497 U.S. 720, 736 (1990) (plurality opinion) (holding that a ban on in-hand solicitation of money is content-neutral based on "the inherent nature of solicitation itself"); id. at 738-39 (Kennedy, J., concurring) (emphasizing that the regulation permits the distribution of literature soliciting support); ACORN v. City of Phoenix, 798 F.2d 1260, 1267-68, 1271 (9th Cir. 1986) (holding that a ban on in-hand solicitation from automobiles, that does not cover distribution of literature requesting contributions, is content neutral).
By contrast, the cases most directly on point support Plaintiffs' contention that Las Vegas's solicitation ordinance is content-based. In ISKCON, the Supreme Court upheld a ban on solicitation in an airport terminal. According to the Court, the terminal was a nonpublic forum; the majority therefore did not consider whether the regulation was content-based. See ISKCON, 505 U.S. at 679, 683. Concurring, Justice Kennedy addressed head on the issue in the present case. Justice Kennedy applied public forum analysis and found the regulation content-neutral because it prohibited only requests for inhand donations. See id. at 693, 704-09 (Kennedy, J., concurring). It was "directed only at the physical exchange of money, which is an element of conduct interwoven with otherwise expressive solicitation." Id. at 705. Justice Kennedy was clear, however, that if the "solicitation regulation prohibited all speech that requested contribution of funds, [he] would conclude that it was a direct, content-based restriction of speech in clear violation of the First Amendment." Id. at 704. Because the regulation permitted "the distribution of preaddressed envelopes along with a plea to contribute money," it limited only the "manner" of expression, not the content. Id. at 704-05.
In S.O.C., our court considered a ban on "off-premises canvassing" on the Las Vegas Strip. The ban applied to the distribution of literature that advertised or promoted services or goods or otherwise proposed a commercial transaction. S.O.C., 152 F.3d at 1140 n. 3. As we explained,
Id. at 1145. We held that the "off-premises canvassing" ordinance was content-based. Id.
S.O.C. is analogous to the present case. It is the practice of City officials to examine the content of handbills in the Fremont Street Experience before deciding whether they permissibly may be distributed. An ordinance is content-based if "a law enforcement officer must read a [printed communication's] message to determine if the [printed communication] is exempted from the ordinance." Foti, 146 F.3d at 636.
Plaintiffs claim that Las Vegas's prohibition on erecting tables in the Fremont Street Experience unconstitutionally violates their Fourteenth Amendment rights to equal protection of the laws because labor-related activities are exempted from the ordinance's reach. See LVMC § 11.68.100. Plaintiffs bring both facial and as-applied challenges. On remand to the district court in ACLU I, we noted that Plaintiffs would have to demonstrate that the erection of tables constitutes protected First Amendment activity in order to prevail on their equal protection claim. ACLU I, 333 F.3d at 1108. The district court, however, did not address the First Amendment question and proceeded directly to the equal protection analysis. This was error because the level of scrutiny that we apply to an equal protection claim varies depending on the nature of the right at issue.
In a case analogous to the one at bar, a district judge in our circuit came to the same conclusion. One World One Family Now, Inc. v. Nevada, 860 F.Supp. 1457 (D. Nev. 1994). Plaintiffs in One World, nonprofit organizations, were prohibited from placing tables, chairs, umbrellas, boxes, and signs on public sidewalks adjacent to Las Vegas Boulevard. Id. at 1460. They wished to use these items to sell T-shirts with political, religious, philosophical, and ideological messages. Id. In a thoughtful opinion, the district court granted plaintiffs' motion for a preliminary injunction against the ban on tabling, analogizing plaintiffs' use of tables to the use of newsracks by newspaper publishers to disseminate protected speech. Id. at 1462-63. The district court held "that use of portable tables as a means of disseminating message-bearing T-shirts is entitled to First Amendment protection." Id. at 1462. The court also found that the plaintiffs' use of signs facilitated their message and was protected by the First Amendment. Id. at 1463.
Id. (citation omitted).
There is no genuine issue of material fact as to whether Plaintiffs sought to erect a table in the Fremont Street Experience to facilitate protected First Amendment activity. In October, 2000, ACLU members set up a table in the Fremont Street Experience, on which they placed petitions and from which they hung a banner with the ACLU logo. Plaintiffs were not selling ice cream from the table; rather they were attempting to use the table to facilitate their expressive activities. Security officers forced the members to remove the table.
In prohibiting these members from using their table, Defendants were regulating protected speech. However, not all limitations on free speech are impermissible. Plaintiffs argue that the tabling ordinance is unconstitutional because it regulates their expressive conduct in violation of the Equal Protection Clause of the Fourteenth Amendment. We consider that claim in light of our conclusion that the ordinance applies to expressive activity.
Similarly, in Carey the Court considered an Illinois statute that banned the picketing of residences, but contained an exception for labor-related picketing. The Court found that the statute "discriminates between lawful and unlawful conduct based upon the content of the demonstrator's communication. On its face, the Act accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted." Carey, 447 U.S. at 460-61 (footnote omitted). The Court held that the statute ran afoul of the Fourteenth Amendment's guarantee of equal protection of the laws for the same reasons it articulated in Mosley. Id. at 461.
We hold that Las Vegas's solicitation ordinance is facially unconstitutional. The ordinance regulates protected speech based on its content but is not the least restrictive means of furthering a compelling government interest. It therefore is an impermissible restriction on First Amendment activity. We also hold that the City's tabling ordinance is unconstitutional as applied to Plaintiffs, to the extent that it regulates the use of tables to facilitate the dissemination of protected speech. The ordinance contains an exception for labor-related tabling in violation of the Equal Protection Clause of the Fourteenth Amendment. We remand to the district court with instructions to issue the appropriate injunctions.
In appeal No. 05-15667, we
LVMC § 11.68.100.
Although we applied the "officer must read it" test in S.O.C. and Foti, in G.K. Ltd., we recognized a limitation to it. The G.K. Ltd. court analyzed two provisions of a sign-regulating law and determined that they were content-neutral in part because "neither requires law enforcement officers to `read a sign's message to determine if the sign is exempted from the ordinance.'" G.K. Ltd., 436 F.3d at 1078 (quoting Foti, 146 F.3d at 636). Thus we applied the "officer must read it" test. Regarding a third "grandfather clause" provision, however, plaintiffs argued that officers would have to examine the content of a sign to see if it had changed and was subject to new regulations. Id. We refused "to broaden Foti to stand for the proposition that any time an ordinance requires a law enforcement officer to read a sign, the ordinance must be content based." Id. Rather, we held that officers having to read a sign is persuasive but not dispositive evidence of a content-based purpose. Id. We explained that Lake Oswego officers "have to read signs only to determine whether the text of the sign or a logo on the sign has changed" and noted that "even those who speak no English could perform this superficial review function by placing the former sign next to the new sign." Id. at 1078-79. We distinguished Foti as requiring an officer to "evaluate the substantive message" of a communication. Id. at 1079.
The exceptions to the "officer must read it" test identified in Hill and G.K. Ltd. do not apply in the present case, where officers must evaluate the substantive content of a message to know whether the solicitation ordinance applies.
First Unitarian Church, 308 F.3d at 1132.