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.