# Blythe v. City of San Diego

> District Court, S.D. California · January 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10781426

## Case

- **Court:** District Court, S.D. California
- **Decided:** January 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10781426

## How later opinions describe it (automated extraction)

- finding municipal code to be content based because it defined 19 “Temporary Directional Signs,” “Political Signs,” and “Ideological Signs” differently and 20 then subjected each of the categories to different restrictions
- finding that driveway buffer zone at health care facilities 7 “permits ample alternative avenues of communication[] by placing no limit on speech or 8 expressive activity outside a narrow zone”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 DON BLYTHE, an individual, Case No.: 24-cv-02211-GPC-DDL

12 Plaintiff,
ORDER DENYING PLAINTIFF’S
13 v. MOTION FOR PRELIMINARY
INJUNCTION
14 CITY OF SAN DIEGO,

15 Defendant. [ECF No. 9]
16
17 INTRODUCTION
18 This case involves a challenge to City of San Diego Ordinance O-21822 (“the
19 Ordinance”), which restricts First Amendment activity within 100 feet of health care
20 facilities, places of worship, and school grounds (“Covered Facilities”). ECF No. 1
21 (“Compl.”) ¶¶ 7-9; ECF No. 11-1 at 9-10. Within this radius, the Ordinance prohibits
22 individuals from “knowingly and willfully approach[ing] within eight feet of a person in
23 the public right-of-way or sidewalk area seeking to enter or exit a health care facility,
24 place of worship, or school grounds” to pass leaflets, display signs, or engage in oral
25 protest, education, or counseling, unless the individual first obtains consent. Compl. ¶ 9.
26 The Ordinance is a carbon copy of the ordinance the Supreme Court upheld in Hill v.
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1 Colorado, 530 U.S. 703 (2000), except that the Ordinance includes places of worship and
2 school grounds, while the ordinance in Hill applied only to health care facilities, id. at
3 707. Plaintiff essentially argues that the addition of places of worship and school
4 grounds to the list of Covered Facilities places this Ordinance outside of what is
5 constitutionally permissible.
6 On November 25, 2024, Plaintiff Don Blythe sued the City of San Diego, claiming
7 that the Ordinance violates his free speech rights under the First Amendment of the
8 United States Constitution, on its face and as applied. Compl. ¶¶ 13-21. Currently before
9 the Court is Plaintiff’s motion for a preliminary injunction, which he filed on December
10 13, 2024. ECF No. 9. Defendant opposed the motion, ECF No. 11, and Plaintiff replied,
11 ECF No. 12. On January 6, 2025, the Court held a hearing and considered the parties’
12 oral arguments on the motion. ECF No. 16. For the reasons below, the Court DENIES
13 Plaintiff’s motion for a preliminary injunction.
14 BACKGROUND
15 On November 25, 2024, Plaintiff filed a Complaint against the City of San Diego,
16 arguing that City of San Diego Ordinance O-21822 (“the Ordinance”) is unconstitutional.
17 See Compl. The Ordinance, which the City enacted on June 11, 2024, id. ¶ 6, reads in
18 relevant part:
19 (c) Consent Required. Within a radius of 100 feet of a
health care facility, place of worship, or school grounds,
20
unless the person or motor vehicle occupant consents, no
21 person shall:
(1) knowingly and willfully approach within eight feet
22
of a person in the public right-of-way or sidewalk
23 area who is seeking to enter or exit a health care
facility, place of worship, or school grounds, to:
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(i) pass a leaflet or handbill to that person;
25 (ii) display a sign to that person;
(iii) engage in oral protest, education, or
26
counseling.
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1 Id. ¶ 9; ECF No. 9-3 at 5; ECF No. 11-1 at 9-10.1 Plaintiff claims that the
2 Ordinance “prohibits constitutionally protected speech and assembly on public streets and
3 sidewalks.” Compl. ¶ 2. More specifically, Plaintiff argues that the Ordinance, on its
4 face and as applied to him, violates the First and Fourteenth Amendments to the United
5 States Constitution. Id. ¶¶ 12-21.
6 Plaintiff, “[m]otivated by his moral, religious, and political beliefs, . . . regularly
7 engages in pro-life, anti-abortion speech activities in California.” Id. ¶ 4. Specifically,
8 he “seeks to display and distribute written information and engage in thoughtful
9 discussions with college and high school students” dozens of times each year. Id.
10 Relevant here, Plaintiff intends to engage in such activities near high schools in the City
11 of San Diego. Id. ¶¶ 10-11. Plaintiff alleges that he, alongside others, intends to come
12 within eight feet of students as they leave school grounds to pass leaflets. Id. ¶ 11.
13 Plaintiff believes that “[o]btaining consent is an unrealistic requirement for distributing
14 literature to multiple people arriving in waves,” id. ¶ 12, and he is therefore concerned
15 that he will be arrested for failing to abide by the Ordinance if he carries on with his
16 intended activities, id.
17 As a result, Plaintiff brought the instant lawsuit against the City of San Diego. See
18 generally id. On December 13, 2024, Plaintiff filed a motion for a preliminary
19 injunction, seeking to enjoin enforcement of the Ordinance. ECF No. 9-1 at 1-2.
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1 Both Plaintiff and Defendant request that the Court take judicial notice of their respective copies of the
22 Ordinance. ECF No. 9-3; ECF No. 11-1. Neither party opposes the other party’s request for judicial
notice. Under Federal Rule of Evidence 201, a Court may take judicial notice of facts that are not
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subject to reasonable dispute because they “can be accurately and readily determined from sources
24 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). “Municipal ordinance are
proper subjects for judicial notice.” Tollis, Inc. v. County of San Diego, 505 F.3d 935, 938 n.1 (9th Cir.
25 2007); see also Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1025 n.1 (9th
Cir. 2009) (taking judicial notice of a city ordinance); Santa Monica Food Not Bombs v. City of Santa
26 Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (same). The Court thus GRANTS the requests for
judicial notice.
27
1 LEGAL STANDARD
2 A preliminary injunction is “an extraordinary remedy” that may only be granted if
3 Plaintiff demonstrates: (1) a likelihood of success on the merits, (2) a likelihood of
4 irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips
5 in his favor, and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def.
6 Council, Inc., 555 U.S. 7, 20 (2008).
7 DISCUSSION
8 I. Likelihood of Success on the Merits
9 a. The Ordinance is Content Neutral
10 Content based laws “are presumptively unconstitutional and may be justified only
11 if the government proves that they are narrowly tailored to serve compelling state
12 interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). “Government regulation
13 of speech is content based if a law applies to particular speech because of the topic
14 discussed or the idea or message expressed.” Id. For instance, laws are content based if
15 they “target speech based on its communicative content,” id., or “single[] out particular
16 content for differential treatment,” Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th
17 Cir. 2009) (en banc).
18 Plaintiff argues that the Ordinance is content based and thus subject to strict
19 scrutiny. ECF No. 9-1 at 4. Specifically, Plaintiff contends that “the Ordinance bans
20 certain unconsented speech topics,” while leaving open other topics of casual
21 conversation, such as requests for directions or discussion of school assignments. Id.
22 Defendant responds that the Ordinance applies equally to all individuals regardless of the
23 content of their message or the viewpoint being communicated and is thus content
24 neutral. ECF No. 11 at 9.
25 The Ordinance does not facially distinguish between different topics of speech,
26 ideas, or messages. It applies to leafletting; displaying signs; and oral protest, education,
27
1 or counseling. See Compl. ¶ 9; ECF No. 11-1 at 9-10. Without any mention of
2 viewpoints or the subject matter of the communications, the Ordinance cannot be said to
3 “draw[] distinctions based on the message a speaker conveys.” Reed, 576 U.S. at 163.
4 The Ordinance applies equally to those handing out pamphlets about climate change,
5 those displaying signage about their religion, and those seeking to orally educate students
6 about gun control legislation. As such, the Ordinance is not regulating speech because of
7 the topics or ideas being discussed.
8 Several of the Supreme Court’s First Amendment cases are instructive here. In
9 Hill v. Colorado, 530 U.S. 703 (2000), the Court considered an ordinance with language
10 identical to the Ordinance at issue here. The ordinance made it unlawful within 100 feet
11 of the entrance to a health care facility to “‘knowingly approach’ within eight feet of
12 another person, without that person’s consent, ‘for the purpose of passing a leaflet or
13 handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with
14 such other person[.]” Id. at 707. When assessing whether the ordinance was content
15 neutral, the Court reasoned that it “places no restrictions on—and clearly does not
16 prohibit—either a particular viewpoint or any subject matter that may be discussed by a
17 speaker. Rather, it simply establishes a minor place restriction on an extremely broad
18 category of communications with unwilling listeners.” Id. at 723. The same reasoning
19 applies here, given the identical language of the ordinances. The Court has also found
20 similar restrictions on broad categories of communications to be content neutral because
21 they applied evenly to everyone, regardless of viewpoint or subject matter. See Heffron
22 v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 643-44, 648-49 (1981)
23 (finding rule that required all who desired to distribute materials at a state fair to do so
24 only from designated booths because “the Rule applies evenhandedly to all who wish to
25 distribute and sell written materials or to solicit funds”); Frisby v. Schultz, 487 U.S. 474,
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1 477 (1988) (accepting lower courts’ conclusion that ordinance prohibiting all picketing in
2 residential areas, regardless of the underlying subject matter, was content neutral).
3 The Court is not convinced by Plaintiff’s attempt to create a content based
4 distinction in the Ordinance by distinguishing between the core First Amendment
5 activities restricted in the Ordinance and everyday conversation. The Ordinance restricts
6 broad categories of communications: leafletting, displaying of signs, and oral protests,
7 education, or counseling. That the Ordinance does not prohibit friendly conversation
8 about school assignments or weekend plans does not make it content based. This is a
9 distinction between different broad categories of communication, between protesting and
10 friendly conversation, between educating a stranger and catching up with a friend. The
11 Ninth Circuit recently found a regulation requiring a similar distinction between classes
12 of speech to be content neutral. See Project Veritas v. Schmidt, --- F.4th ----, 2025 WL
13 37879, at *4 (9th Cir. Jan. 7, 2025) (“[a] regulation may remain content neutral despite
14 touching on content to distinguish between classes or types of speech—such as speech
15 that constitutes solicitation . . . so long as it does not discriminate on the basis of
16 viewpoint or restrict discussion of an entire topic”). Further, this distinction does not
17 approach the type of content based distinctions that the Constitution admonishes. See,
18 e.g., Reed, 576 U.S. at 165 (finding municipal code to be content based because it defined
19 “Temporary Directional Signs,” “Political Signs,” and “Ideological Signs” differently and
20 then subjected each of the categories to different restrictions).
21 Moreover, the “knowing and willful” language in the Ordinance defeats Plaintiff’s
22 argument. An individual such as the Plaintiff, who seeks to engage in “hand-to-hand
23 leafletting, education about abortion, and holding signs with a pro-life, anti-abortion
24 message” in the vicinity of high schools, see Compl. ¶¶ 4, 10, is knowingly and willfully
25 engaging in the speech which the Ordinance restricts. On the other hand, a high school
26 student discussing a math assignment with a friend on their way into school is not
27
1 knowingly and willfully engaging in such First Amendment activities in the same way.
2 Such conduct cannot reasonably come within the reach of the Ordinance. See Hill, 530
3 U.S. at 722 (“[t]he regulation of such expressive activities, by definition, does not cover
4 social, random, or other everyday communications”). As a result, the Ordinance cannot
5 be said to distinguish between these two broad types of communication. For this
6 additional reason, Plaintiff’s argument fails.
7 Accordingly, the Court finds that the Ordinance is content neutral.
8 b. The Ordinance is a Valid Time, Place, and Manner Regulation
9 Plaintiff then argues that, even if the Ordinance is content neutral, it is still an
10 unconstitutional time, place, and manner regulation under intermediate scrutiny. ECF
11 No. 9-1 at 4-7. When the government imposes content neutral restrictions on speech in a
12 public forum, the restrictions must be “narrowly tailored to serve a significant
13 governmental interest” and “leave open ample alternative channels for communication of
14 the information.” McCullen v. Coakley, 573 U.S. 464, 477 (2014) (quoting Ward v. Rock
15 Against Racism, 491 U.S. 781, 791 (1989)).
16 i. Narrow Tailoring
17 “For a content-neutral time, place, or manner restriction to be narrowly tailored, it
18 must not ‘burden substantially more speech than is necessary to further the government’s
19 legitimate interests.’” Id. at 486 (quoting Ward, 491 U.S. at 799). The regulation need
20 not be the least restrictive means of serving the government’s interests, but the
21 government “may not regulate expression in such a manner that a substantial portion of
22 the burden on speech does not serve to advance its goals. Id. (quoting Ward, 491 U.S. at
23 798-99).
24 Plaintiff argues that the Ordinance is not narrowly tailored to further the
25 government’s interest in protecting vulnerable students at schools. ECF No. 9-1 at 5-7.
26 Plaintiff first tries to distinguish the instant case from Hill, a case which warrants more
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1 discussion here. In Hill, the Court considered an ordinance with identical language, but
2 which only applied within 100 feet of health care facilities, and not places of worship or
3 schools.2 530 U.S. at 707. The Court found that the ordinance was narrowly tailored to
4 serve the governmental interest of protecting individuals seeking health care. See Hill,
5 530 U.S. at 729. The Court first noted that “[s]tates and municipalities plainly have a
6 substantial interest in controlling the activity around certain public and private places,”
7 including “schools, courthouses, polling places, and private homes.” Id. at 728-29. The
8 Court further “noted the unique concerns that surround health care facilities,” id. at 728,
9 as individuals entering and leaving these facilities “are often in particularly vulnerable
10 physical and emotional conditions,” id. at 729.
11 The Court found that the ordinance was “an exceedingly modest restriction on”
12 speech which was appropriately tailored to protect the vulnerable individuals entering
13 and exiting health care facilities. Id. The eight-foot zone does not negatively impact
14 demonstrators with signs, nor does it impact oral communicators, as eight feet still allows
15 a “normal conversational distance.” Id. at 726-27. Demonstrators can also remain in
16 place and allow willing pedestrians to pass within eight feet and accept any handbills. Id.
17 at 727. The Court reasoned that because the restriction “leaves ample room to
18 communicate a message through speech” and occurs “where the restriction is most
19 needed,” it is reasonable and narrowly tailored. Id. at 730.
20 Plaintiff argues that “those entering or leaving [these facilities] do not have a
21 presumptive need for this sort of physical or emotional buffer” and that thus “[n]o
22 authority supports such an expansion” of Hill. ECF No. 9-1 at 5-6. But, as Defendant
23

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25 2 The ordinance in Hill “makes it unlawful within the regulated areas for any person to ‘knowingly
approach’ within eight feet of another person, without that person's consent, ‘for the purpose of passing
26 a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with
such other person[.]’” Hill, 530 U.S. at 707.
27
1 points out in its opposition, see ECF No. 11 at 12-12, the Supreme Court has emphasized
2 the importance of protecting schools and students. In Hill, the Court noted that it has
3 “recognized the special governmental interests surrounding schools[.]” Hill, 530 U.S. at
4 728 (citing Grayned v. City of Rockford, 408 U.S. 104, 119 (1972)). In Grayned, the
5 Court reasoned that expressive activity can be restricted at schools if, for example, the
6 activity “materially disrupts classwork or involves substantial disorder or invasion of the
7 rights of others.” Id. at 118 (quoting Tinker v. Des Moines Independent Community Sch.
8 Dist., 393 U.S. 503, 513 (1969)). This is because “public schools in a community are
9 important institutions” which “could hardly tolerate boisterous demonstrators who . . .
10 block entrances[.]” Id. at 118-19. The city thus had a “compelling interest in having an
11 undisrupted school session conducive to the students’ learning[.]” Id. at 119. This is
12 precisely the compelling interest the City of San Diego has here. It hopes to “prohibit
13 unwanted approaches within eight feet to ensure students can attend school free from
14 harassment, obstruction, or intimidation.” ECF No. 11 at 13. The more important
15 question is whether the City has narrowly tailored the Ordinance to serve this interest.
16 Plaintiff attacks the Ordinance’s tailoring by arguing that “the legislative history of
17 the Ordinance contains no evidence of threats to ‘access [to] educational services,’ much
18 less that existing or alternative laws not restricting speech were insufficient to protect
19 access to such services.” ECF No. 9-1 at 6. But the Ordinance does state that
20 “demonstration activities around Covered Facilities have subjected students, teachers,
21 [and] parents . . . to harassment and abuse from people who attempt to block entrances
22 and exits to Covered Facilities and parking lots used to access these locations.” ECF No.
23 11-1 at 5. Further, the legislature noted that “aggressive demonstration activities pose
24 significant public safety threats” and that “places of worship and schools are increasingly
25 exposed to demonstration activities.” Id.
26
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1 At the hearing on the motion, Plaintiff’s counsel further argued that there was a
2 lack of staff reports or other findings to justify the extension of Hill to schools. However,
3 the City Attorney’s staff report on the Ordinance provides support for the City’s interests
4 in extending Hill to schools.3 Ex. 1 at 2-3. The report notes that “schools have become
5 assembly places” and that “further demonstration activity is anticipated.” Id. at 3. The
6 report cited several school demonstrations in California that occurred in 2023, including a
7 Poway protest which led the school district’s board of directors to adjourn a public
8 meeting. Id. Further, a San Diego school board member testified to the City Council’s
9 Public Safety Committee that there have been “multiple instances of anti-vaccine
10 protestors blocking school operations during the pandemic.” Id. In all, the City
11 considered various sources in deciding that these restrictions are necessary near its
12 schools. The Court “generally defer[s] to the legislative body passing the law in
13 determining whether the government’s ends are advanced by a regulation.” G.K. Ltd.
14 Travel v. City of Lake Oswego, 436 F.3d 1064, 1073 (9th Cir. 2006). Accordingly, the
15
16
17
3 The staff report can be found as a “supporting document” to Item 52 (the Ordinance) on the San Diego
18 City Council’s May 21, 2024 agenda. See City of San Diego Council Agenda, City of San Diego (May
21, 2024),
19 https://sandiego.hylandcloud.com/211agendaonlinecouncil/Meetings/ViewMeeting?id=6048&doctype=
2&site=council#_Toc167976932. A link to download the staff report is available at
20 https://sandiego.hylandcloud.com/211agendaonlinecouncil/Documents/DownloadFile/Staff%20Report%
20for%20-
21
%20%20().pdf?documentType=1&meetingId=6048&itemId=233704&publishId=913312&isSection=Fa
22 lse&isAttachment=True.
Federal Rule of Evidence 201(c)(1) permits the court to take judicial notice sua sponte. Bryan v. City of
23
Carlsbad, 297 F. Supp. 3d 1107, 1115 (S.D. Cal. 2018). The staff report is publicly available on the
24 City of San Diego’s website. Courts regularly find that such legislative reports may be judicially
noticed. See San Diego Cnty. Lodging Association v. City of San Diego, 561 F. Supp. 3d 960, 964 n.3
25 (S.D. Cal. 2021) (taking judicial notice of staff report to San Diego City Council); Comm. to Protect our
Agric. Water v. Occidental Oil & Gas Corp., 235 F. Supp. 3d 1132, 1152 (E.D. Cal. 2017) (taking
26 judicial notice of staff report on revisions to a county ordinance). Accordingly, the Court will take
judicial notice of the staff report sua sponte and consider it in this Order.
27
1 Court will not question the City’s findings that this restriction tends to further its stated
2 goals.4
3 The Ordinance does not burden more speech than necessary to serve its goals. The
4 Supreme Court’s reasoning in Hill is on point here. The Court there found that eight feet
5 of separation will not impact readers’ ability to read signs; if anything, it will aid their
6 ability to read signs “by preventing others from surrounding them and impeding their
7 view.” 530 U.S. at 726. While oral communication might be more difficult for
8 demonstrators, the Ordinance “places no limitation on the numbers of speakers or the
9 noise level, including the use of amplification equipment,” id. and the eight-foot zone
10 “allows the speaker to communicate at a ‘normal communication distance,’” id. at 726-27
11 (quoting Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 377 (1997)). While
12 “the burden on the ability to distribute handbill is more serious,” the Ordinance does not
13 “prevent a leafletter from simply standing near the path of oncoming pedestrians and
14 proffering his or her material, which the pedestrians can easily accept.” Id. at 727. And,
15 at that point, pedestrians are “free to decline the tender.” Id.; see also Heffron, 452 U.S.
16 at 655 (noting that the First Amendment only protects the right to “reach the minds of
17 willing listeners”) (internal quotation marks and citation omitted). Demonstrators with
18 leaflets can thus peacefully pass out leaflets to willing listeners without physically
19 approaching unwilling listeners. Hill, 530 U.S. at 729-30.
20 The City has opted to protect those entering and exiting the Covered Facilities
21 “from unwanted encounters, confrontations, and even assaults by enacting an exceedingly
22 modest restriction on the speakers’ ability to approach.” Id. at 729. It does not outright
23

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25 4 Plaintiff attempts to distinguish from G.K Ltd. Travel by pointing out that the legislature there
deliberated heavily, received suggestions from the city’s residents, and referred to other city’s findings,
26 436 F.3d at 1073, while the process here does not appear to have been as thorough. But Plaintiff does
not cite any authority to support the assertion that similarly extensive processes are required.
27
1 ban any form of protected speech. Demonstrators will be able to communicate their
2 messages and otherwise engage in protected speech, they will merely be unable to
3 lengthen interactions with unwilling listeners by remaining within eight feet of them
4 without their consent as they enter and exit school. Allowing such harassment of
5 uninterested students, for instance, could result in the disruption of school activities
6 which the Supreme Court was concerned about in Grayned, 408 U.S. at 118, and Tinker,
7 393 U.S. at 513, and which the City of San Diego is concerned about here. While
8 Plaintiff argues that the restriction is not the least intrusive method of preventing such
9 harassment, ECF No. 12 at 5, this contention is irrelevant because such a content neutral
10 restriction “need not be the least restrictive or least intrusive means of serving the
11 government’s interests.” McCullen, 573 U.S. at 486 (internal quotation marks and
12 citation omitted).
13 At the hearing on the motion, Plaintiff’s counsel suggested that Hill may not apply
14 to the instant case, which involves both a facial and as-applied challenge to an Ordinance.
15 In Hill, the Court decided a facial challenge and noted that “[s]pecial problems that may
16 arise where clinics have particularly wide entrances or are situated within multipurpose
17 office buildings may be worked out as the statute is applied.” 530 U.S. at 730. Based on
18 this dicta, Plaintiff’s counsel suggested that Hill would not extend to as-applied
19 challenges. But “the label is not what matters. Instead, the important point for
20 identifying the nature of a challenge is whether a plaintiff’s claim and the relief that
21 would follow reach beyond the particular circumstances of that plaintiff.” Project
22 Veritas, --- F.4th ----, 2025 WL 37879, at *4 (citing Doe v. Reed, 561 U.S. 186, 194
23 (2010)) (cleaned up). Plaintiff presently seeks a preliminary injunction to prevent
24 enforcement of the Ordinance pending the outcome of the litigation. This relief would
25 “reach beyond the particular circumstances of” Plaintiff and impact all prospective
26 demonstrators at Covered Facilities. Id.; cf. Reed, 561 U.S. at 194 (construing a request
27
1 for a preliminary injunction barring the secretary of state from complying with state
2 public records act as a facial challenge). To the extent special issues with the application
3 of the Ordinance arise at future points in this litigation, the Court will address them when
4 appropriate.
5 Accordingly, the Ordinance is narrowly tailored to serve the government’s interest
6 in protecting those entering and exiting health care facilities, places of worship, and
7 schools.
8 ii. Alternative Channels of Communication
9 Plaintiff briefly argues that the Ordinance does not leave open ample alternative
10 channels of communication. ECF No. 9-1 at 7. Specifically, Plaintiff argues that there is
11 no equivalent to distributing literature, and that the Ordinance severely obstructs this
12 channel of communication because there is “no substitute for being able to approach an
13 individual in order to hand out a leaflet without the encumbrance of seeking consent
14 first.” Id.
15 But as the Court in Hill pointed out, there are ample alternative channels of
16 communication here. As described above, Section I.B.i supra, the Ordinance hardly
17 impedes the reading of signs, allows for conversation at a reasonable distance, and gives
18 leafletters the option of either staying in place in pedestrians’ paths or obtaining consent
19 to approach pedestrians. See Hill, 530 U.S. at 726-28. While the Supreme Court has
20 noted that obtaining consent is a hindrance to leafletters’ ability to deliver handbills to
21 unwilling recipients, this simple fact did not change the result, as pedestrians are always
22 free to decline such offers anyways. Id. at 727-28.
23 At bottom, the Ordinance only restricts certain types of speech in “the place[s]
24 where the restriction is most needed.” Id. at 730. Demonstrators may still engage in First
25 Amendment activities at reasonable distances from students, and they are free from
26 restrictions as to willing listeners who provide consent. While Plaintiff complains that
27
1 handing out leaflets will be “simply impossible” at times when many students are coming
2 and going from school, the Court is not convinced that obtaining consent is so
3 insurmountable a task. And, even if it was, there are still ample alternatives for Plaintiff
4 to engage in expressive activity without disrupting the vulnerable individuals coming and
5 going from the Covered Facilities. See, e.g., Edwards v. City of Santa Barbara, 150 F.3d
6 1213, 1217 (9th Cir. 1998) (finding that driveway buffer zone at health care facilities
7 “permits ample alternative avenues of communication[] by placing no limit on speech or
8 expressive activity outside a narrow zone”).
9 Accordingly, the Court finds that the Ordinance is content neutral, narrowly
10 tailored to serve a significant government interest, and provides ample alternative
11 channels of communication. The Ordinance is thus a reasonable time, place, and manner
12 restriction.
13 c. The Ordinance is Not Overbroad
14 Plaintiff briefly argues that the Ordinance violates due process because it is
15 overbroad. ECF No. 9-1 at 7-8. A law is unconstitutionally overbroad “if it prohibits a
16 substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292
17 (2008); see also Klein v. San Diego County, 463 F.3d 1029, 1037-38 (“[a] law is
18 overbroad if it . . . sweeps within its ambit other activities that in ordinary circumstances
19 constitute an exercise of freedom of speech”) (internal quotation marks and citations
20 omitted). The mere fact that some conceivable impermissible applications of a statute
21 exist is insufficient. Klein, 463 F.3d at 1038 (citing Members of City Council of City of
22 L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). Rather, the overbreadth must
23 be both real and substantial “in relation to the statute’s plainly legitimate sweep.” Id.
24 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1974)).
25 Plaintiff argues that the Ordinance does not even have a “plainly legitimate sweep”
26 because it “lumps together various different types of facilities, of which there are
27
1 hundreds in the City, and impose[s] restrictions on the speech of anyone seeking to
2 communicate with those entering or leaving them.” ECF No. 9-1 at 8. To this end,
3 Plaintiff relies on Houston v. Hill, 482 U.S. 451, 466-67 (1987), where the Supreme
4 Court invalidated an ordinance that “criminalize[d] a substantial amount of
5 constitutionally protected speech” and accorded the police excessive and unguided
6 discretion in deciding which violators to arrest. But the Ordinance at issue is different
7 from the ordinance in Houston in various respects. This Ordinance is likely not violated
8 nearly as often as the ordinance in Houston, which allowed officers to arrest anyone who
9 “in any manner . . . interrupt[s] any policeman in the execution of his duty.” Id. at 455.
10 And this Ordinance sweeps a much narrower scope of conduct within its reach. The
11 Ordinance targets only signage, leafletting, and oral protesting, as opposed to the
12 ordinance in Houston, which covered any speech that was broadly seen to abuse or
13 interrupt police offers.
14 In any event, Plaintiff’s argument that the Ordinance does not have a “plainly
15 legitimate sweep” falls short. To be sure, Plaintiff correctly points out that there are
16 many locations covered by the Ordinance. But the Supreme Court rejected a similar
17 argument in Hill v. Colorado. See Hill, 530 U.S. at 730 (“Petitioners argue . . . that the
18 statute is too broad because it protects too many people in too many places, rather than
19 just the patients at the facilities where confrontational speech had occurred”). The Court
20 reasoned that “[t]he fact that the coverage of a statute is broader than the specific concern
21 that led to its enactment is of no constitutional significance” because all persons entering
22 or leaving the facilities “share the interests served by the statute.” Id. at 730-31. And the
23 Court similarly distinguished from Houston v. Hill, where the ordinance attempted to
24 regulate nonprotected activity but covered protected speech as well. Id. at 731.
25 Plaintiff misunderstands the overbreadth doctrine in arguing that the Ordinance
26 does not have a “plainly legitimate sweep.” The Ordinance is a valid time, place, and
27
1 ||manner restriction on protected speech. By restricting protected speech in a
2 || constitutionally reasonable fashion, the Ordinance cannot be said to be overbroad. The
3 || Ordinance applies to all speakers other than Plaintiff in a similarly reasonable manner.
4 || Justice Jackson observed, “there is no more effective practical guaranty against
5 || arbitrary and unreasonable government than to require that the principles of law which
6 || officials would impose upon a minority must be imposed generally.’ Ry. Express
7 || Agency, Inc. v. New York, 336 U.S. 106, 112... (1949) (concurring opinion).” Hill, 530
8 ||U.S. at 731. Here, because the Ordinance applies generally to all individuals, it is not
9 || constitutionally overbroad.
10 CONCLUSION
1] The Court finds that Plaintiff has not shown a likelihood of success on the merits.
12 || As such, the Court need not address the other required showings for preliminary
13 |/injunctive relief. Accordingly, Plaintiff's motion for a preliminary injunction is
14 || DENIED.
15 IT IS SO ORDERED.
16
17 ||Dated: January 14, 2025 2 st
18 Hon. athe Coke
19 United States District Judge
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28 24-ev-02211-GPC-DDL

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10781426. Public record. Not legal advice.