Metropolitan News-Enterprise


Wednesday, December 11, 2019


Page 1


Ninth Circuit:

Requiring Permit to Use Bullhorn Constitutes Prior Restraint

Order Denying Preliminary Injunction to Bar Enforcement of Ordinance Is Reversed


By a MetNews Staff Writer


An ordinance requiring that a police permit be obtained before using an electronic bullhorn in public creates a prior restraint, the  Ninth U.S. Circuit Court of Appeals held yesterday in reversing the denial of a preliminary injunction against enforcement of the law.

Circuit Judge Richard A. Paez wrote for himself and Circuit Judge Marsha S. Berzon. District Court Judge Gary Feinerman of the Northern District of Illinois, sitting by designation, dissented. Feinerman said plaintiff Joseph Patrick Cuviello’s 17-month delay from the time he received an admonishment by an officer that his bullhorn would be confiscated if he didn’t cease using it to the point where he sought a preliminary injunction evidences a lack of irreparable harm in the absence of immediately blocking enforcement.

The admonishment to Cuviello by Officer M. Cutnick occurred Oct. 31, 2015, at a rally outside the Six Flags Discovery Kingdom in Vallejo, located in Solano County. Demonstrators were protesting the treatment of animals at the park.

Vallejo’s Municipal Code §8.56.030 renders it unlawful “to operate or cause to be operated any sound amplifying or loudspeaking device...upon any public street, parkway, thoroughfare, or on privately or publicly owned property” without a permit.

‘Special Injury’

“We are acutely aware of the special injury caused by permit systems as a form of prior restraint,” Paez wrote. “Permit systems represent a departure from our tradition of public discourse by requiring a citizen to seek approval from the government to engage in speech.”

The judge went on to say:

“On its face, Section 8.56.030 contains many of the features we have identified as burdening more speech than necessary. Although the City of Vallejo argues that Section 8.56.030 furthers its interests in preventing noise that disturbs the peace and creates traffic dangers, Section 8.56.030 requires a permit for any use of a sound-amplifying device at any volume by any person at any location—without any specifications or limitations that may tailor the permit requirement to situations involving the most serious risk to public peace or traffic safety….Hence, Section 8.56.030 applies with the same force to an individual and to a rally of one-hundred people; to the use of a device in an empty parking lot and at the busiest intersection; to the use of a device at a child’s weekend birthday party in an already noisy park and to the use of a device by demonstrators next to a hospital at 2 a.m.; and so on. Without any limitations that tailor the permit requirement to circumstances where public peace and traffic safety are actually at risk, Section 8.56.030 covers substantially more speech than necessary to achieve its ends.”

Noisy Area

He added:

“Section 8.56.030’s broad sweep is more apparent when applied to the facts of this case. Cuviello wishes to use a bullhorn in demonstrations on the public sidewalk next to Six Flags. This is not an area of the city where people come to seek peace and quietude or to avoid distraction. Rather, this is already a noisy area, where patrons flock in droves and scream on various thrill rides. Amidst all the noise, the sound of one bullhorn likely would not cause an additional disturbance to traffic safety or public peace. It is difficult to see how requiring prior notice of Cuviello’s bullhorn use in this area would advance the City’s expressed interests in promoting public peace or traffic safety. The City has offered no evidence to the contrary.”

Paez said Cuviello’s delay in seeking relief is not a determinative factor in deciding if relief was wrongfully denied, he did continue to protest after the officer’s admonishment, a strong showing of irreparable harm need not be shown in the face of constitutional violations, and the fact that Cuviello was acting in pro per must be taken into account.

Feinerman’s Dissent

In dissenting, Feinerman said:

“Joseph Cuviello filed this suit one year after he had last been threatened with enforcement of the challenged ordinance, and he then waited five months after filing suit to move for a preliminary injunction. In my view, this lengthy and unjustified delay shows that Cuviello did not suffer irreparable harm and therefore disentitles him to preliminary injunctive relief.”

The jurist commented:

“The majority excuses Cuviello’s delay on the ground that he brought his case pro se. But Cuviello was no ordinary pro se litigant, as his efforts in the district court and on appeal showed him to be a skilled and formidable advocate. In any event, as we often recognize, pro se litigants are not exempt from the ordinary rules governing the conduct of litigation.”

Feinerman went on to say:

“The record is clear: Cuviello’s seventeen-month delay from when he received first-hand the officer’s warning that his bullhorn would be confiscated as evidence of a crime to his moving for a preliminary injunction cannot be chalked up to a reasonable delay by a pro se litigant taking care to build his case. The only plausible explanation, rather, is that Cuviello did not see ‘an urgent need for speedy action to protect [his] rights.’…Cuviello’s lack of urgency was eminently reasonable, as he and his fellow demonstrators were still able to convey their message to prospective Six Flags patrons from the sidewalk adjoining the park with signs and video footage of animal mistreatment displayed on the large screen television. (It bears mention parenthetically that there is even less of an urgent need for preliminary injunctive relief now, as the California Court of Appeal ruled in June 2019, in a case in which Cuviello is a party, that the California Constitution protects his right to demonstrate in the exterior, unticketed areas of the Six Flags park, which consist of the ticket windows, a parking lot, and the walkways that connect them, and where he would have even less of a need for a bullhorn to reach his intended audience….Because Cuviello did not act with the urgency the law expects of those seeking preliminary injunctive relief, we should not set aside as an abuse of discretion the district court’s denial of such relief.”

The case is Cuviello v. City of Vallejo, 17-16948.

The California Court of Appeal case to which Feinerman referred is Park Management Corp. v. In Defense of Animals. It was rendered by Div. Two of the First District Court of Appeal.

Justice Therese M. Stewart declared:

“Balancing society’s interest in free expression here against Park Management’s interests as a private property owner, we conclude the unticketed, exterior portions of Six Flags Discovery Kingdom are a public forum.”


Copyright 2019, Metropolitan News Company