Metropolitan News-Enterprise


Monday, June 19, 2006


Page 1


Court Upholds Most of Santa Monica’s Public Use Permit Scheme


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals rejected several constitutional challenges to the City of  Santa Monica’s public use permit requirements Friday, but struck down a provision requiring a permit for any widely advertised event.

U.S. District Judge Manuel L. Real of the Central District of California had granted summary judgment to the city on all claims. The Ninth Circuit vacated Real’s judgment in part, and affirmed and remanded in part. 

The court found that the challenged provisions were content-neutral time, place, and manner regulations subject to intermediate scrutiny. 

Food Not Bombs

The group Santa Monica Food Not Bombs, and other plaintiffs, challenged several provisions, including one that limited the “spontaneous events” exception to the city’s public use permit requirements, to events occurring within 48 hours after a news story becomes public, and required that such events take place on the City Hall lawn.

The plaintiffs argued that the 48-hour limitation was unconstitutionally burdensome of speech.  Judge Marsha S. Berzon, writing most of the majority opinion, disagreed.

 “Were we to decide that the ‘spontaneous’ event could be based on older news, . . . the exception would swallow the rule, and event organizers could simply avoid applying for a permit,” she reasoned. “The whole purpose of the spontaneous expression exemption is to accommodate speech when groups would otherwise be unable timely to seek a permit. Santa Monica’s exemption serves precisely this purpose.”

Ample Alternatives

Plaintiffs argued that groups who wished to associate their message with a locale other than city hall would be unable to use the spontaneous events exception. The panel upheld the provision, saying that there were ample alternative means of expressing location-dependent views.

The court upheld a provision requiring  permits for events occurring on city-owned land other than sidewalks, streets or other public ways, and which include 150 or more people. 

“Groups 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 Santa Monica’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,” the judge said.

However, the court struck down a provision  mandating that any event which the applicant intended to advertise in advance via radio, television and/or widely-distributed print media “shall be deemed” to be an event of 150 or more people, and thus require a permit, saying:

“[T]he language creates a per se rule, rendering any advertised event a qualifying one whether or not 150 or more people actually attend. As written, the [requirement] detaches the [provision] from the asserted interest of the City in allocating use of public open space by large groups,” and “is not a narrowly tailored time, place, and manner restriction and cannot be enforced,” Berzon wrote.

Berzon also wrote that permit requirements for a march, procession, walk or run  that “may” affect the free flow of traffic on public streets, sidewalks and other public ways would have been invalid by itself.  However, she concluded that the requirements were valid when coupled with city manager instructions, binding on city employees, that a permit would only be required if the walk, run or procession was “likely” to affect traffic.

The judge also said that a plaintiff did not have to have applied for a permit in Santa Monica, or been turned away, in order to have standing to challenge the permit regulations.  Allegations that it would have planned an event in Santa Monica, but didn’t because of the onerous permit requirements, was sufficient.

The court also upheld requirements that holders of expressive events indemnify the city for any claims resulting from the event, and that holders of non-expressive events indemnify the city and insure against possible losses. Berzon dissented from that portion of the decision, as to which Judges Andrew Kleinfeld and Kim Wardlaw formed the majority.

Kleinfeld dissented from the portion of the decision striking down the rule with regard to widely advertised events.

Carol A. Sobel represented Food Not Bombs Barry A. Rosenbaum argued for Santa Moncia.

The case is Santa Monica Food Not Bombs v. City of Santa Monica, No. 03-56621.


Copyright 2006, Metropolitan News Company