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Ninth Circuit:
Law Against Watching Event Likely Violates Reporter’s Rights
Opinion Says Judge Erred in Denying Journalist’s Request, Based on First Amendment Principles, for Preliminary Injunction Enjoining Enforcement of Ordinance Criminalizing Watching Street Races
By Kimber Cooley, associate editor
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JOSE GARCIA reporter |
The Ninth U.S. Circuit Court of Appeals held yesterday that a journalist is likely to succeed on his claim asserting that an Alameda County ordinance criminalizing being a spectator at “sideshows”—defined as street races or reckless driving exhibitions that block or impede traffic on a street or highway—violates his First Amendment right to report on the events.
Finding that the journalist’s observation of the sideshows is inextricably intertwined with his constitutional right to report on those events, the court declared that all of the factors governing preliminary relief—likelihood of success on the merits, irreparable harm, and the balance of equities as well as the public interest—weigh in his favor.
As such, the court declared that District Court Chief Judge Richard Seeborg of the Northern District of California erred in denying the plaintiff’s request to preliminarily enjoin enforcement of the section.
Appealing the denial was plaintiff Jose Garcia, a reporter for the non-profit publication The Oaklandside who writes using the surname “Fermoso.” He filed a complaint against the county in 2024, asserting First Amendment claims under 42 U.S.C. §1983 and seeking to block enforcement of the section as well as a declaratory judgment that the ordinance is unconstitutional.
Circuit Judge Holly A. Thomas authored yesterday’s opinion, saying:
“The First Amendment protects Garcia’s newsgathering and reporting activities. And the County’s prohibition on knowingly spectating a sideshow is content based and fails strict scrutiny. Garcia has clearly demonstrated that he is likely to succeed on the merits of his as-applied challenge, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that the issuance of an injunction is in the public interest. We therefore reverse the district court’s denial of a preliminary injunction on Garcia’s as applied challenge, and remand with instructions to enter a preliminary injunction in favor of Garcia.”
Circuit Judges John B. Owens and Mark J. Bennett joined in the opinion.
At issue is Alameda County Code §10.40.030, adopted in 2023, which makes it a misdemeanor for “any person to knowingly be a spectator” within 200 feet of “a sideshow event conducted on a public street or highway” or for “any person to knowingly be a spectator at the location of preparations for a sideshow event on a public street or highway.”
Plans Cancelled
Garcia, who covers road safety and transportation issues, alleged that he had planned to attend sideshows in Oakland in order to report on the events. He said that he cancelled those plans after the passage of §10.40.030, claiming that he feared “citation, arrest, and criminal prosecution.”
In the complaint, he alleged that the ordinance “criminalizes journalism by making it illegal” to report on or record such exhibitions and wrote:
“While the government may have compelling interests in preventing or responding to unlawful and dangerous conduct of drivers who participate in sideshows or others who engage in…vandalism or violence, it may not punish the protected speech of reporters or community members who observe, record, or report on such events.”
After Garcia moved for a preliminary injunction seeking to prohibit the county from enforcing the ordinance against him, Seeborg denied the request, reasoning that the ordinance did not target expressive conduct because it targeted “locational activity” rather than “speech production.” He opined:
“Even if it did implicate freedom of speech or of the press, the ordinance is content-neutral and withstands intermediate scrutiny. Because of these conclusions, [Garcia] is unlikely to succeed on the merits of his claim. The motion for a preliminary injunction is denied.”
Self-Censorship Is Sufficient
Addressing standing, Thomas said that Garcia’s “self-censorship” is “sufficient to satisfy the injury-in-fact requirement. Turning to the merits of this claim, she noted that the likelihood of success on the merits is the most important factor “in determining whether a preliminary injunction is warranted.”
For as-applied challenges like the one raised by Garcia in his preliminary injunction request, she said courts must engage in a three-part analysis asking whether the relevant speech is protected by the First Amendment, analyzing the nature of the forum, and weighing the justifications given by the state for the restriction.
She pointed to U.S. Supreme Court cases recognizing constitutional protections for reporting activities and wrote:
“These holdings compel the conclusion that Garcia’s newsgathering activities—the ‘quintessential function of a reporter’—are protected by the First Amendment.”
The judge added:
“Even if observation of a sideshow on its own terms is non-expressive conduct, because Garcia must observe sideshows in order to record them, the Ordinance ‘burdens [his] First Amendment rights directly, not incidentally.’ ”
Rejecting the defendant’s assertion that the court’s ruling could lead to dangerous results because “a reporter could seek First Amendment review of speeding regulations preventing her from better filming car chases,” the jurist remarked:
“ ‘[W]e need not precisely delineate the extent and contours of First Amendment protection for each constituent act that comprises speech creation’ to determine that Garcia’s conduct here—recording sideshows as a journalist for the purpose of reporting on them—falls under the ambit of the First Amendment.”
Content-Based Laws
Saying that “[t]he parties do not dispute that public streets are traditional public forums,” she turned to the final factor, explaining that “reasonable restrictions on the time, place, or manner” of protected speech are treated differently from “content-based” laws, which are subject to strict scrutiny.
Concluding that “[t]he Ordinance is content based,” she said that “[i]t targets only one topic, sideshows, making it a misdemeanor for any person to be present within 200 feet of a sideshow for the purpose of spectating the event.”
She continued: “The County argues that ‘the Ordinance regulates presence in a particular location[,]…not speech.’ But this is incorrect….As the County has conceded, the Ordinance would not apply to Girl Scout troops who, innocent to a sideshow’s occurrence, set up a table to sell cookies within 200 feet of a sideshow event. The Ordinance instead applies only to people present within that range who are knowing spectators of the sideshow.”
Under these circumstances, she reasoned that the section “does not qualify as a valid time, place, and manner restriction” and is “presumptively unconstitutional.”
County’s Interest
Addressing the county’s interests in enacting the ordinance, she remarked that “the County cites important concerns about reckless driving, gun violence, illegal drug use, looting,…noise and air pollution, garbage, and traffic disruptions resulting from or accompanying sideshow events.”
However, she said the government has other methods available to address these concerns, including existing laws that target the problematic behavior.
As such, she declared that “[t]he Ordinance…fails strict scrutiny, and Garcia has made a clear showing that he is likely to succeed on the merits of his as-applied First Amendment claim.”
The case is Garcia v. County of Alameda, 24-6814.
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