Appellants S.O.C., Inc. ("S.O.C."), Richard Soranno ("Soranno"),
We conclude that the ACLUN has demonstrated probable success on the merits on its claim that Clark County Ordinance Section 16.12 is overbroad because it is likely to restrict not only purely commercial speech, but also fully protected noncommercial speech inextricably intertwined with commercial speech. The Ordinance, as written, is content-based. On the record before us, we also find that Clark County has not met its burden of showing that the Ordinance is the least restrictive means to further a compelling governmental interest. Further, even assuming that the Ordinance's restrictions are content-neutral, the available record indicates that the Ordinance is not narrowly tailored to further Clark County's interests in improving the pedestrian environment, maintaining accessible sidewalks, preventing harassment of pedestrians, and reducing litter in the Las Vegas Resort District. At this early stage in the litigation, the time, place, and manner restrictions imposed by the Clark County Ordinance on fully protected speech conducted in a public forum-the sidewalks of Las Vegas-have not been shown to be reasonable. Therefore, we find that the ACLUN has demonstrated probable success on the merits of its claim that Clark County Ordinance Section 16.12 is overbroad and thus unconstitutional on its face. The ACLUN has also demonstrated the possibility of irreparable harm if Clark County Ordinance Section 16.12 is not preliminarily enjoined. Accordingly, we reverse and remand.
S.O.C. and Hillsboro are corporations that provide referrals for erotic dance entertainment. Before the Clark County Ordinance was enacted, S.O.C. and Hillsboro regularly hired canvassers to distribute handbills, leaflets, and newspapers advertising erotic dance entertainment services to tourists and others walking along the Las Vegas Strip.
On January 21, 1997, following a public hearing, the Clark County Commission adopted Ordinance Section 16.12, which makes it a misdemeanor to engage in "off-premises canvassing"
On January 31, 1997, S.O.C. and Soranno filed suit in the United States District Court for the District of Nevada to enjoin enforcement of the Clark County Ordinance. S.O.C. and Soranno assert that the Ordinance's prohibition of "off-premises canvassing" in the public streets and sidewalks within the Las Vegas Resort District violates the First and Fourteenth Amendments. Clark County and the Las Vegas Metropolitan Police Department are named defendants. The Nevada Resort Association, Flamingo Hilton, Mirage Casino-Hotel, and Circus Circus Enterprises intervened as defendants (collectively referred to as "Casino Intervenors").
On February 3, 1997, Hillsboro filed a separate suit also seeking to enjoin enforcement of the Clark County Ordinance. Hillsboro named Clark County and several Clark County Commissioners as defendants. On February 4, 1997, the Las Vegas Convention and Visitors Authority moved to intervene as a defendant in the S.O.C./Soranno suit. On February 13, 1997, the ACLUN moved to intervene as a plaintiff in the S.O.C./Soranno action. That same day, February 13, 1997, the district court conducted a hearing on both preliminary injunction motions. On March 4, 1997, the court entered a single order (with both docket numbers and both case captions). The March 4, 1997 Order granted the motions for intervention and denied both preliminary injunction motions.
On March 14, 1997, S.O.C. and Soranno filed a notice appealing the March 4, 1997 order denying their motion for preliminary injunction. Neither Hillsboro nor the ACLUN joined in this motion. On March 17, 1997, Hillsboro filed a motion for reconsideration under Rules 52(b), 59(e), and 60(b) of the Federal Rules of Civil Procedure. The ACLUN joined in this motion. The district court denied the motion for reconsideration on May 9, 1997. On May 14, 1997, S.O.C., Hillsboro, and the ACLUN filed a timely notice appealing: (1) the district court's May 9, 1997 Order denying the motion for reconsideration; and (2) the underlying March 4, 1997 Order denying the motions for preliminary injunction.
The district court's jurisdiction over the underlying litigation is based on 28 U.S.C. § 1331, federal question jurisdiction. There is no dispute that Hillsboro and the ACLUN filed timely appeals from the May 9, 1997 Order denying the motion for reconsideration. Accordingly, we have jurisdiction under 28 U.S.C. § 1292(a)(1) to review the district court's May 9, 1997 order denying the motion for reconsideration and the underlying March 4, 1997 Order denying a preliminary injunction.
B. Standard of Review
To succeed on this appeal from the district court's denial of preliminary injunctive relief, Appellants "must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in their favor." Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.1991). We review a district court's decision to deny a motion for a preliminary injunction for an abuse of discretion. See San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233 (9th Cir.1997), reh'g and suggestion for reh'g and reh'g en banc denied, 137 F.3d 1090 (1998). But we review the legal issues underlying the district court's decision de novo. See Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1249, 137 L.Ed.2d 330 (1997).
In denying preliminary injunctive relief and the motion for reconsideration, the district court concluded that Clark County Ordinance Section 16.12 imposed permissible restrictions on purely commercial speech. Commercial and noncommercial speech are protected under the First Amendment. See Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 633 n. 7, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). The Constitution, however, accords less protection to commercial speech than to other constitutionally safeguarded forms of expression. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). On appeal, Appellants and the ACLUN contend that the district court erred in reviewing the constitutionality of Clark County Ordinance Section 16.12 as a commercial speech regulation.
An ordinance may be facially unconstitutional if "it is unconstitutional in every conceivable application, or ... seeks to prohibit such a broad range of protected conduct that it is unconstitutionally `overbroad.'" See Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). At issue in this appeal is the second type of facial challenge-over-breadth. As a general rule, a litigant has standing only to vindicate his own constitutional rights. See id. The Supreme Court, however, has recognized "an exception to this general rule for laws that are written so broadly that they may inhibit the constitutionally protected speech of third parties." Id. at 798, 104 S.Ct. 2118. In the First Amendment context, the general rule is disregarded "because of the possibility that protected speech or associative activities may be inhibited by the overly broad reach of [a
Appellants and the ACLUN contend that Clark County Ordinance Section 16.12 is overbroad because it prohibits not only commercial speech but also fully protected speech that is "inextricably intertwined" with commercial speech.
Neither does it provide exceptions for materials that include both fully protected and commercial forms of expression. See, e.g., Perry, 121 F.3d at 1368 (wherein the governmental restriction banning sales and solicitations of donations contained an exception for charitable corporations). Moreover, the phrase contained in the Ordinance "or otherwise propose one or more commercial transactions" is insufficient to limit its application to those materials that do "no more" than propose a commercial transaction. Again, the explicit terms of the Clark County Ordinance do not limit its restrictions to purely commercial speech. Absent such a limitation, there is a substantial likelihood that the Clark County Ordinance could inhibit the expression of fully protected speech intertwined with commercial speech.
Although we consider Clark County's limiting construction of the Ordinance, "we are not required to insert missing terms into the [Ordinance] or adopt an interpretation precluded by the plain language of the Ordinance." See Foti v. City of Menlo Park, 146 F.3d 629, 639-40 (9th Cir.1998). Thus, we agree with the ACLUN that the term "off-premises canvassing" includes fully protected expression that contains some form of advertising. For example, as written, the Clark County Ordinance may prohibit the distribution of newspapers, pamphlets, magazines, and other publications that contain some form of commercial advertising, even if the noncommercial content is unrelated to the advertising copy. See, e.g., Perry, 121 F.3d at 1368 (holding that "music, buttons, and bumper stickers bearing political, religious, and ideological messages" are "expressive items ... [that] ... do not lose their constitutional protection simply because they are sold rather than given away"); see also, Hays County Guardian v. Supple, 969 F.2d 111, 120 (5th Cir.1992) (holding that university regulation prohibiting on-campus solicitation unconstitutionally restricted the distribution of newspapers containing advertisements). The Clark County Ordinance may also prohibit the distribution of a newspaper that stresses social, political, and environmental issues if the paper's production costs were covered by revenue generated from advertisements, see, e.g., Hays, 969 F.2d at 114 (holding that a newspaper distributed free of charge that dealt with "environmental, peace, and social justice issues" engaged in constitutionally protected speech even though its publication expenses were covered, in part, by revenue derived from advertisers) (internal quotation omitted), or a religious organization's newsletter that contained advertisements for its members' businesses. In short, on the record before us, we find that the ACLUN is likely to succeed on the merits of its claim that Clark County Ordinance Section 16.12 infringes on First Amendment protections accorded a party seeking to distribute noncommercial expressive material containing some form of commercial advertising. See Perry, 121 F.3d. at 1368 (holding that "where the commercial and expressive parts of speech are `inextricably intertwined,' a court [may] not parcel out the protected and unprotected parts of the speech") (citing Riley, 487 U.S. at 796, 108 S.Ct. 2667). Thus, the ACLUN has demonstrated probable success on the merits of its claim that the Ordinance is overbroad.
Given that the First Amendment fully protects the expressive activities regulated by the Clark County Ordinance, we now turn to whether the County has placed legitimate time, place, and manner restrictions on these activities. In a public forum, a government may impose reasonable time, place, and manner restrictions on protected speech. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
2. Public Forum
There is no dispute that the Ordinance regulates activities occurring in a public forum-"a place that has immemorially been held in trust for the use of the public ... for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Perry, 121 F.3d at 1368. The Clark County Ordinance prohibits "off-premises canvassing" along the public streets and sidewalks located within the Las Vegas Resort District. See Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (holding that public streets and sidewalks are the "archetype of a traditional
3. Time, Place, and Manner Restrictions
Under the time, place, and manner standard, government-imposed restrictions on protected speech are "valid if they (1) are content-neutral; (2) are narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels of communication." One World One Family Now v. City and County of Honolulu, 76 F.3d 1009, 1012 (9th Cir.1996) (citing Rock Against Racism, 491 U.S. at 790, cert. denied, ___ U.S. ___, 117 S.Ct. 554, 136 L.Ed.2d 403 (1996)).
A speech restriction is content-neutral if it is "justified without reference to the content of the regulated speech." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Here, the Clark County Ordinance refers to the content of speech; it regulates handbills that "propose one or more commercial transactions." The Ordinance targets and restricts the distribution of material containing some commercial information. The Ordinance's ban against "off-premises canvassing" in the Las Vegas Resort District does not prohibit the distribution of handbills that contain no commercial advertising. As a result, an officer who seeks to enforce the Clark County Ordinance would need to examine the contents of the handbill to determine whether its distribution was prohibited. See Foti, 146 F.3d 629, 635-36 (finding that "Menlo Park's exemptions for open house signs and safety, traffic, and public informational signs are content-based because a law enforcement officer must read a sign's message to determine if the sign is exempted from the ordinance"); see also Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir. 1996) (concluding that "[b]ecause the exemptions require City officials to examine the content of noncommercial off-site structures and signs to determine whether the exemption applies, the City's regulation of noncommercial speech is content-based"). Clark County's justifications for the regulation provide further evidence that the regulation is content-based:
This statement indicates that Clark County adopted the Ordinance because it disapproved of canvassers handing out commercial handbills to pedestrians within the Las Vegas Resort District. Cf. Perry, 121 F.3d at 1369 (holding that ordinance banning sales of music, buttons, and bumper stickers was content-neutral but not narrowly tailored to serve governmental interests of protecting local merchants and aiding free traffic flow, in violation of the First Amendment). By distinguishing between commercial and noncommercial forms of expression, the Clark County Ordinance is content-based. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648-49, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (finding that regulation was content-neutral because it extended to persons or organizations whether commercial or charitable).
Content-based regulations are presumptively unconstitutional. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Content-based regulations pass constitutional muster only if they are the least restrictive means to further a compelling interest. See Sable Communs. of Cal. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Clark County's asserted interests and goals
Cities and counties "have a substantial interest in protecting the aesthetic appearance of their communities by avoiding visual clutter ... [and] in assuring safe and convenient circulation on their streets." One World One Family Now, 76 F.3d at 1013 (internal quotation and citation omitted). The County also may have a substantial interest in preventing solicitors from harassing pedestrians on public streets and sidewalks. See Edenfield v. Fane, 507 U.S. 761, 774, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (noting that while courts have recognized the "generic hazards of personal solicitation," a rule banning solicitation is justified in situations "inherently conducive to overreaching and other forms of misconduct") (internal quotation omitted). These substantial interests, however, may not be compelling. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 521, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality opinion); National Advertising Co. v. City of Orange, 861 F.2d 246, 249 (9th Cir.1988); Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 162, 60 S.Ct. 146, 84 L.Ed. 155 (1939) (stating that the "purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it"). Because Clark County assumed throughout these proceedings that Ordinance Section 16.12 is content-neutral, it has not offered any reason why its interests in aesthetics and traffic safety are compelling. Given that the Ordinance is content-based, at this early stage in the litigation Clark County has not met its burden of showing that the Ordinance is the least restrictive means to further a compelling interest. As such, we find that on the record before us the ACLUN is likely to succeed on the merits of its overbreadth claim.
A content-based regulation that restricts expressive activity in a public forum may be unconstitutional if less restrictive alternatives are available. See Schaumburg, 444 U.S. at 637, 100 S.Ct. 826. In contrast, a content-neutral regulation does not have to employ the least restrictive means. See Rock Against Racism, 491 U.S. at 798, 109 S.Ct. 2746. The Clark County Ordinance is not narrowly tailored to satisfy either the content-based or content-neutral standard.
First, a substantial amount of speech unrelated to Clark County's asserted interests is regulated, i.e., noncommercial speech intertwined with commercial speech. As discussed above, no evidence exists in the present record (which involves an appeal from a denial of preliminary injunctive relief) to support an assumption that "commercial" handbillers are the inherent cause of Clark County's pedestrian flow problems. Ordinance Section 16.12 may further Clark County's objective of reducing the number of canvassers positioned along the Las Vegas Resort District. But the Ordinance is not narrowly tailored to serve the County's asserted interests because the record now before us indicates that all canvassers, whether distributing commercial or non-commercial handbills, contribute to the problems of sidewalk congestion, harassment of pedestrians, and littering. See, e.g., Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (invalidating an ordinance that prohibited picketing in residential areas, except picketing regarding labor issues, because there was "nothing inherent in the nature of
Second, on the record now before us we also find that the geographic scope of Ordinance Section 16.12 is not narrowly tailored to serve Clark County's stated interests. Ordinance Section 16.12 does not identify specific problem locations. Instead, it categorically bans "off-premises canvassing" along the entire Las Vegas Resort District regardless of whether the traffic, safety, and litter problems identified by Clark County exist at a given location.
Third, there is no evidence in the record that only commercial canvassers harass pedestrians. Affidavits were submitted to the district court indicating that "handbillers occasionally turn violent, and that fights have broken out on the sidewalks among handbillers." The district court, however, did not indicate whether such violent outbreaks typified "commercial" handbillers or were simply by-products of persons attempting to canvass a mobile group of pedestrians along narrow passageways.
The existence of less-burdensome alternatives to the restriction on speech further indicates that the "fit" between Clark County's stated ends and the means to achieve those ends set forth in the Ordinance is unreasonable. See Discovery Network, 507 U.S. at 417, 113 S.Ct. 1505. Here, there is no evidence that an outright ban on commercial canvassing is necessary to meet the asserted interests of the County. The district court concluded that the problems attendant to the canvassing resulted from "a dozen handbillers" congregating at one time at a single point on the sidewalk. A regulation limiting the number of canvassers on a given street corner or block at any given time could address the County's concerns by reducing congestion and diffusing tension among canvassers. Alternatively, the County could issue canvassing permits. A permit system could help regulate congestion and build in accountability should problems arise. Other alternatives to reduce congestion include removing permanent obstacles from the sidewalk (such as benches and temporary signs); designating spots for pedestrians to call for taxicabs or wait for public buses; and requiring resorts with outdoor entertainment displays to ensure that event viewers do not block the flow of traffic. The County could also designate specific sidewalk locations within the Las Vegas Resort District where canvassing would be allowed.
Even assuming that the Ordinance's restrictions on speech are content-neutral, at this stage in the litigation Clark County has not demonstrated that the Ordinance is narrowly tailored to further its asserted interests. See Rock Against Racism, 491 U.S. at 800, 109 S.Ct. 2746 (holding that the means chosen to enforce a content-neutral regulation must not be "substantially broader than
D. Probable Success on the Merits
The ACLUN has demonstrated probable success on the merits of its claim that the Clark County Ordinance is overbroad and that it imposes unreasonable time, place, and manner restrictions on protected speech. The ACLUN has also demonstrated the possibility of irreparable harm. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); see also Jacobsen v. United States Postal Serv., 812 F.2d 1151, 1154 (9th Cir.1987). Therefore, the district court erred in denying the motions for preliminary injunction.
E. Attorney's Fees
The ACLUN is to recover costs. The question of attorney's fees is reserved until the conclusion of the case on the merits.
For the foregoing reasons, we conclude that the ACLUN is likely to succeed on its claim that Clark County Ordinance Section 16.12 is overbroad because it restricts not only purely commercial speech, but also fully protected speech inextricably intertwined with commercial speech. The ACLUN has also shown probability of success on the merits that the Ordinance, as written, is a content-based regulation. On the record before us, Clark County has not met its burden of showing that the Ordinance is the least restrictive means to further a compelling interest. Moreover, even assuming that the Ordinance's restrictions are content-neutral, the evidence now before us indicates that the Ordinance is not narrowly tailored to advance the County's asserted interests. At this early stage in the litigation, the record also indicates that the time, place, and manner restrictions imposed by the Ordinance on fully protected speech inextricably intertwined with commercial speech are unreasonable. In sum, the ACLUN has demonstrated probable success on the merits of its claim that Clark County Ordinance Section 16.12 is constitutionally deficient on its face.
REVERSED AND REMANDED.