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May Government Ban Advocacy Near Movie Theaters, Outdoor Restaurants, and the Like?

The reasoning of a Ninth Circuit panel decision last year seemed to suggest the answer was yes, on the grounds that the government may protect "captive audiences" near those places from potentially offensive speech. The decision was focused on the Seattle Center, a large park in Seattle, but the rationale would have equally applied to picketing on the streets, and a wide range of other speech.

The court just reversed that decision en banc. The opinions are long, and there are several dissents, including by my former boss Chief Judge Alex Kozinski, whose work I much admire (and usually, though not always) agree with. Unfortunately, I'm on a trip, and not sure whether I'll be able to discuss the arguments in more detail; but I thought I'd note this. I am, however, pleased that the captive audience argument, which is what troubled me most about the panel decision, has seemingly been rejected by the decision.

Thanks to Kent Scheidegger (Crime & Consequences), who seems to side with the dissent, for the pointer.

ruuffles (mail) (www):

The opinions are long, and there are several dissents

From the entire circuit, 11 are selected for en banc, though only 2 are Republican appointees (plus the Chief). If Nordyke is granted en banc, then the make up of the randomly selected en banc panel would be critical, no?
6.24.2009 2:10pm
levisbaby:
So if you have just sat down for a meal at a sidewalk cafe and a group of people show up with graphic pictures of aborted fetuses and proceed to demonstrated 18 inches away from your table, you would think that's okay?
6.24.2009 2:42pm
gallileo:
Levisbaby,

The beauty of a sidewalk cafe is that you get to see what is happening on the street. If "what is happening on the street" is a demonstration, you really can't complain. If just you want to eat your meal in peace, then you should choose somewhere that isn't public. Ignoring demonstrations, a sidewalk cafe can include horns honking, cabbies yelling, kids crying, and salesmen hawking goods. With all that going on there is no reason to prohibit people making political statements.

I'm somewhat sympathetic to the pictures of aborted fetuses problem, but I don't know how you regulate that without creating more problems than you solve.

In any event, the question in the case is what constitutes a captive audience. I'm pretty sympathetic to prohibiting demonstrations in places one is legally required to be. But if you aren't legally required to be there, then really, why should the government protect you from certain kinds of speech?

G
6.24.2009 2:53pm
Phatty:
levisbaby,

So if you have just sat down for a meal at a sidewalk cafe and I walk down the sidewalk and pass you while wearing a "Vote for Phatty" button, you would think that's okay that I get arrested and fined?
6.24.2009 2:55pm
interruptus:
levisbaby's comment gets at the troubles with expressive non-speech conduct that have plagued courts for a while, I think. In addition to graphic fetus photos, what about, say, sexually explicit performance art, if not "obscene" by the existing precedents? It's typically banned under current law by standard public indecency statutes, which appear to override free speech, if applied neutrally. Wouldn't a prohibition on getting up in people's faces with graphic photographs be a similar content-neutral restriction?
6.24.2009 3:11pm
Gonzer Maven (mail):
I find interesting the majority's agument that the ordinance would not achieve its stated purposes. Hmmm. I seem to recall that in Hawaii Housing Authority v. Midkiff, the Bishop Estate made the same argument, but the Supreme Court rejected it, saying that whether or not the law there in question would prove effective in achieving its stated objectives, is of no concern of the court.
6.24.2009 3:15pm
interruptus:
@Gonzer Maven: Based on previous caselaw, these areas operate under different standards of review. Restrictions on speech need to be narrowly tailored to achieve a substantial government interest, which requires the court to look into whether they would be effective in achieving that interest, and whether there are narrower alternative schemes. Exercise of eminent domain, meanwhile, need only be "rationally related to a conceivable public purpose", so the court only needs to look into whether the legislature had a rational reason for concocting its scheme.
6.24.2009 3:21pm
[insert here] delenda est:
I am not even American and I have never heard of that case but I will bet immediately that Hawaii Housing Authority is not a free speech case.

And I would also bet that your Supreme Court's free speech jurisprudence frequently considers actual (proven?) impact of a law as well as its formal scope. A law that only happens to infringe free speech would not be constitutional just because it wasn't meant to infringe free speech.

Am I right? If so, is Gonzer's comment of any relevance whatsoever???
6.24.2009 3:23pm
Quixotic (mail):
One mark of a good legal writer - and an intellectual confident writer - is the absence of legal jargon, except when necessary. That, plus Judge Kozinsky's sense of humor (e.g., the "Festival of Noses,") makes his opinions a pleasure to read.

Legal analysis aside, this is an unfortunate decision. All Seattle wanted to do was stop abusive jerks such as the plaintiff from abusing the public, and it was prevented from doing so.
6.24.2009 3:52pm
Oren:

So if you have just sat down for a meal at a sidewalk cafe and I walk down the sidewalk and pass you while wearing a "Vote for Phatty" button, you would think that's okay that I get arrested and fined? [emph added]

I think this is the key element here. What LB was talking about was someone standing in the same place pestering you while you eat/wait for tickets.

There are content-neutral restrictions on harassment/loitering that could work here.
6.24.2009 3:53pm
Oren:
Although, reading the restrictions that were put in place, those were not what I was thinking of when I said "could work here".
6.24.2009 3:58pm
sk (mail):
"So if you have just sat down for a meal at a sidewalk cafe..

The beauty of a sidewalk cafe is that you get to see what is happening on the street. If "what is happening on the street" is a demonstration, you really can't complain..."

That is why sidewalk cafe's tend to be at pretty places rather than ugly places.

Taken logically, the effect of this result will be the closing of businesses. Noone wants to eat a meal at a sidewalk cafe while being shouted at. So they won't-they'll eat in an enclosed restaurant-or one with an enclosed courtyard. Noone wants to go to a movie where obnoxious people are bothering them-so they won't-they'll stay home and watch it on the big screen.

Our public space will get uglier, business will suffer, particular (i.e. public) businesses will suffer. People will avoid those ugly public spaces, and become more isolated from each other. Somehow, this is a good thing.......

Sk
6.24.2009 4:08pm
BRM:
Seattle's argument was that the permitting system resolves turf battles that previously had to be resolved by asking the competing musicians to be adults. Thanks, big brother. Telling the musicians to work out their differences like adults rather than having the government tell them where and when they can perform is exactly what is supposed to happen! Thankfully an en banc majority agreed.
6.24.2009 4:20pm
The Unbeliever:
Sk, if you're going to impose some limit in an attempt to save the beseiged sidewalk cafes and movie theatres, where do you draw the line? Can those demonstrators be on the other side of the street, or does the business situated there get to raise a similar complaint? Do we kick the demonstrators out of public parks, since people go there with an expectaton of peace and quiet? What about demonstrators ruining the day for people who line up to see a Presidential motorcade go by (or is that a thing of the past now that Teh Evil Bush has been replaced by Rockstar Obama in the limo)?

When you took the scenario to an extreme, it caused another Depression as protestors on every street corner killed all public businesses. If we take your argument seriously and swing to the other extreme, do we ban all protesting within city limits?
6.24.2009 4:23pm
J. Aldridge:
"Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition."

Judges should be required to study early American History.
6.24.2009 4:38pm
Oren:

What about demonstrators ruining the day for people who line up to see a Presidential motorcade go by (or is that a thing of the past now that Teh Evil Bush has been replaced by Rockstar Obama in the limo)?

I'm quite sure we still have plenty of protesters.
6.24.2009 4:50pm
Anderson (mail):
Taken logically, the effect of this result will be the closing of businesses.

I think that's a perfectly legitimate state concern, and it should be possible to forbid demonstrations outside particular locations more than, say, once a month, as well as requiring that protesters keep a reasonable distance (not 2 feet from my table, say).

If the Ninth held that's not constitutional, then look for the Ninth to be reversed.
6.24.2009 4:51pm
Oren:

Sk, if you're going to impose some limit in an attempt to save the beseiged sidewalk cafes and movie theatres, where do you draw the line? Can those demonstrators be on the other side of the street, or does the business situated there get to raise a similar complaint?

Demonstrators can walk down the street like everyone else.


Do we kick the demonstrators out of public parks, since people go there with an expectaton of peace and quiet?

No, but it would be nice if they published it in advance so we can make alternate plans.
6.24.2009 4:51pm
t. simenon (mail):
If we really want to clean up the streets to facilitate cafe dining we should ban ugly people, not ugly ideas!
6.24.2009 4:54pm
Randy R. (mail):
My experience is that eating at outdoor cafes in the continental manner (Some call it the homosexual lifestyle, 'cause most of my gay friends like to eat outside too), is that you rarely get bothered by anyone. Sometimes a homeless person might come up and ask for change, or someone's dog will try to sniff you, but that's about it. I can live with those sorts of disturbances. (Especially if the dog is walking a particularly cute guy).

As for demonstrators, I really can't think of any time I saw one. Perhaps one passed by while I was sipping my latte, but that's hardly an inconvenience.

Chalk this one up to a big deal made out of something rather minor.
6.24.2009 4:56pm
Randy R. (mail):
The city has always been filled with excitement, and what excites one disturbs another. It's part of life, and it's part of learning how to live with people who have very different lifestyles and mores. I'm pretty much pro-choice, but I certainly don't get bent out of shape seeing a pro-life demonstration. If they pass by with posters of dead fetuses, then that's why God invented newspapers and books, to bury your head into and distract your attention. (Newspapers are particularly good devices if you see someone coming that you don't want to talk to. Just hold it up high!)

If you want bland living, with nothing to disturb your precious sensibilities, then live in the suburbs.
6.24.2009 5:01pm
Anderson (mail):
that's why God invented newspapers and books, to bury your head into and distract your attention

Newspapers, books, and Argentine mistresses.
6.24.2009 5:11pm
Phatty:
Oren,

You missed the point of my post, which was that completely harmless and unobjectionable conduct is also forbidden by the regulations at issue. If a city wants to limit speech, they should make sure that the regulation is very narrowly confined to the objectionable conduct only, and even then, the regulation may still be unconstitutional. When you live in a free society there is bound to be some inconvenience that you incur.

I'm amazed at the number of people here that are eager to throw away one of the most basic and fundamental rights in order to be less inconvenienced.
6.24.2009 5:50pm
Anderson (mail):
I'm amazed at the number of people here that are eager to throw away one of the most basic and fundamental rights in order to be less inconvenienced.

Uh huh. That's what we said, THROW AWAY the rights to assembly and free speech.

Time, place, and manner. Not "throwing away." That's the issue here.
6.24.2009 5:55pm
interruptus:

You missed the point of my post, which was that completely harmless and unobjectionable conduct is also forbidden by the regulations at issue.

I think the discussion's morphed into arguing over what, if any, possible public-nuisance restrictions on public speech would be acceptable. Going back and reading the circumstances of this particular case, I can't imagine very many Volokh readers seriously arguing that these restrictions in particular are acceptable. Surely if there's an edge case that justifies some restrictions, a single individual in a clown suit, not apparently harassing anyone, is not it.
6.24.2009 6:15pm
glangston (mail):
Randy R. (mail):
The city has always been filled with excitement, and what excites one disturbs another. It's part of life, and it's part of learning how to live with people who have very different lifestyles and mores. I'm pretty much pro-choice, but I certainly don't get bent out of shape seeing a pro-life demonstration. If they pass by with posters of dead fetuses, then that's why God invented newspapers and books, to bury your head into and distract your attention. (Newspapers are particularly good devices if you see someone coming that you don't want to talk to. Just hold it up high!)

If you want bland living, with nothing to disturb your precious sensibilities, then live in the suburbs.


Or live in
Cleveland
6.24.2009 6:40pm
Soronel Haetir (mail):
The real problem I see is that I would think the Seattle Center encompasses both traditional public fora, limited public fora and private space. These resctrictions might well be legitimate in some areas while not at all in others. Even being in line or eating doesn't really demarcate the boundary very well in this particular instance as some of the vending establishments and attractions directly abut the most public fora areas of the complex.

Given the remand on that particular prtion of the case I think the majority did a credibly job of addressing the actual issues presented.
6.24.2009 7:40pm
Randy R. (mail):
glangston: Pretty funny video on Cleveland! I doubt there are very many outdoor cafes under such gloomy weather....
6.24.2009 8:11pm
Dave N (mail):
Ruufles wrote (in the very first comment):
From the entire circuit, 11 are selected for en banc, though only 2 are Republican appointees (plus the Chief).
Two quick responses:

1) The Ninth Circuit's en banc rules are certainly unique, since less than half of the active judges actually sit on an en banc panel. Until a few years ago, 15 judges sat, but that evidently was too cumbersome. The Chief Judge (in this case Kozinski) sits on all en banc panels unless otherwise disqualified. The other 10 members are chosen at random. Circuit Rule 35-3. There used to be a caveat that a judge not selected random a certain number of times would automatically be placed on the next en banc panel, but that rule was apparently abrogated when the en banc court went from 15 to 11 members.

2) While Judge Tallman was nominated by President Clinton, he is a relatively conservative Republican placed on the 9th Circuit as part of a "deal." So while Ruufle's comment is technically true, it is misleading (sort of like Judge Sotomayor first being appointed to the federal bench by President GHW Bush. His appointment doesn't make her a Republican).
6.24.2009 8:41pm
Bystander:
J. Aldridge, let me fix that for you:


Judges should be required to study my peculiar version of early American History.
6.24.2009 9:18pm
Tom Tildrum:
So would this decision prohibit the Quiet Car on Amtrak's Acela?
6.24.2009 11:24pm
Oren:

So would this decision prohibit the Quiet Car on Amtrak's Acela?

Of course, since the first sentence (and I'm sure you at least read that far) states the Seattle Center is an public park railway car.



You missed the point of my post, which was that completely harmless and unobjectionable conduct is also forbidden by the regulations at issue. If a city wants to limit speech, they should make sure that the regulation is very narrowly confined to the objectionable conduct only, and even then, the regulation may still be unconstitutional.

How is it preferable to have some official definition of "objectionable", the determination of which is to be made on-the-spot by the constitutional scholars that are the Seattle PD? [This is even assuming you can get such content-based nonsense passed the courts.]

Better one set of rules (time, place, manner) for all speech, "objectionable" and otherwise so there is a simple level playing field with a transparent permitting/appeals procedure. I have no problem with letting the Phelps inbreds protest on the same terms as NARAL (or NRL, for that matter) and I have no problem with letting country music stars (eeeeewww) perform in the park under the same terms as the Jonas Brother (less eeewww, more blech).
6.25.2009 2:57am
ShelbyC:
Wow, you folks are right. We need a sidewalk cafe exception to the first amendment. Good thing we all have our priorities straight.
6.25.2009 7:54am
byomtov (mail):
Our public space will get uglier, business will suffer, particular (i.e. public) businesses will suffer. People will avoid those ugly public spaces, and become more isolated from each other. Somehow, this is a good thing.......

One problem with this argument is that it's not true. Sanitized public areas don't really work that well. You need a mix of uses, people, activity, etc. That leads to much more vitality - foot traffic, usage throughout the day and evening, etc.

Jane Jacobs' classic "The Death and Life of Great American Cities" explains all this very well.
6.25.2009 9:22am
BZ:

The original post said the "court just reversed that decision en banc." The opinion said:


"The City now asks us to reverse, asserting that all the regulations impose valid "time, place, or manner" restrictions on the actions of street performers and other park-goers. For the reasons discussed below, we decline to do so. The government bears the burden of justifying the regulation of expressive activity in a public forum such as the Seattle Center. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). The City of Seattle has failed to meet this burden with respect to any of the rules challenged by Berger. We therefore affirm the district court's grant of summary judgment to Berger, except that we remand for further factual development concerning the validity of the locational regulation.
6.25.2009 9:47am
Brian S:
I have to second what byomtov is saying.

Generally speaking, essentially throughout history all the way back to the Greek agora, cities have thrived when public places are very lightly regulated and stagnated and died when "improved" by broad restrictions on public activity.

I'm not acknowledging that this is the proper way to analyze the question, since I would hold that liberty trumps utility here in any event - but I think we should be plain what we're talking about.

Arguing that the presence of public demonstrators, or performers, or people on soap boxes, or what have you, somehow kills off public spaces is a very Yogi-Berraish type argument: "No one goes to the public square any more, it's too crowded and noisy." ?!?!?!?
6.25.2009 9:48am
ASlyJD (mail):
The economy as whole doesn't suffer when people avoid those ugly public spaces. The spending public just move from large public spaces (city squares) to large private spaces (malls) in which the demonstrators/panhandlers/mentally ill can be removed.

The free market even deals with obnoxious free speech, amazing!
6.25.2009 9:49am
Anonfun:
I was shocked to read this paragraph in Kozinski's dissent:


Social conventions often create very strong obligations—
such as when one leaves a sizable tip after receiving lousy table service to avoid an unpleasant reaction from the waiter —and people standing in line who have had the "benefit" of a street performance that they did not seek out or enjoy may feel pressured to cast down a dollar or two, just so others won't consider them to be moochers. The patrons may nevertheless feel put upon, and their Center experience may be tainted by having been buffaloed into this transaction.



Boo-frickin-hoo. Thanks to the majority for not turning Seattle Center into wuss-haven.
6.26.2009 9:02am

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