Hunt v. City of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL HUNT and MATTHEW 

DOWD, Nos. 09-55750

Plaintiffs-Appellees, 09-55765

Cross-Appellants,

v.  D.C. No.

2:-06-cv-04691-

CITY OF LOS ANGELES, DDP-SS

Defendant-Appellant- OPINION

Cross-Appellee.



Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

November 5, 2010—Pasadena, California

Filed March 22, 2011

Before: Alfred T. Goodwin and Johnnie B. Rawlinson,

Circuit Judges, and J. Michael Seabright,* District Judge.

Opinion by Judge Seabright

*The Honorable J. Michael Seabright, United States District Judge for

the District of Hawaii, sitting by designation.

3815

3820 HUNT v. LOS ANGELES

COUNSEL

Stephen F. Rohde, Rohde & Victoroff, Los Angeles, Califor-

nia, for the plaintiffs-appellees-cross-appellants.

Garmen A. Trutanich, Laurie Rittenberg, and Todd T. Leung,

Office of the City Attorney, Los Angeles, California, for the

defendant-appellant-cross-appellee.

OPINION

SEABRIGHT, District Judge:

The Venice Beach Boardwalk (the “Boardwalk”), located

on the west side of Los Angeles, is world-famous for its free

performances and public expression activities. Due to over-

crowding, safety concerns, and to promote local businesses in

the area, the City of Los Angeles (the “City”) has imple-

mented a number of ordinances aimed at preventing vending

on the Boardwalk, including Los Angeles Municipal Code

(“LAMC”) § 42.15 (2004), LAMC § 42.15 (2006), and

LAMC § 63.44. Although none of these ordinances is still in

effect, Michael Hunt (“Hunt”) and Matthew Dowd (“Dowd”)

(collectively, “Plaintiffs”), who sell items on the Boardwalk,

have brought claims for damages pursuant to 42 U.S.C.

§ 1983, arguing a panoply of reasons why these ordinances

are unconstitutional.

The City appeals the district court’s grant of summary

judgment in favor of Hunt as to LAMC § 42.15 (2004) and

the subsequent damages and attorneys’ fee awards, while

Plaintiffs cross-appeal the district court’s grant of summary

judgment to the City as to LAMC § 42.15 (2006) and failure

to consider the constitutionality of LAMC § 63.44. Based on

the following, we AFFIRM the district court’s findings as to

both versions of LAMC § 42.15, and REMAND for the dis-

trict court to address LAMC § 63.44 in the first instance.

HUNT v. LOS ANGELES 3821

I. BACKGROUND

A. The Ordinances at Issue

1. LAMC § 42.15 (2004)

In October 2004, the City amended LAMC § 42.15 “to

require that the public expression activities allowed by that

section be exercised in designated spaces on the Venice

Beach Boardwalk, and the use of those designated spaces be

regulated by a permit process.” The City Council explained

that the number of persons wishing to exercise their right of

public expression had increased, “creating problems in noise,

crowd control, and competition for space,” and that this provi-

sion would help, among other things, to alleviate noise, con-

trol crowds, provide emergency access for health, safety and

law enforcement purposes, and allocate the available space on

the Boardwalk in an equitable manner.

LAMC § 42.15 (2004) required that individuals who seek

payments and/or donations from their activities on the Board-

walk hold a “Public Expression Participant Permit.” In turn,

these permit holders were allotted individual spaces on the

Boardwalk to conduct their activities. Although LAMC

§ 42.15(A) (2004) provided that “[n]o person shall hawk, ped-

dle, vend or sell, or request or solicit donations for, any

goods, wares, merchandise, foodstuffs or refreshments upon

[the Boardwalk],” it in turn allowed permit holders to sell

“merchandise constituting, carrying or making a religious,

political, philosophical or ideological message or statement

which is inextricably intertwined with the merchandise.”

LAMC § 42.15(C) (2004). A permit holder who violated

LAMC § 42.15 (2004) was subject to losing the permit, and

to criminal penalties.

2. LAMC § 42.15 (2006)

After facing litigation over LAMC § 42.15 (2004), the City

suspended the ordinance in August 2005 and passed a new

3822 HUNT v. LOS ANGELES

version in February 2006. The 2006 version required that any

person engaging in allowable activities on the Boardwalk

obtain a “Public Expression Participant Permit,” and spaces

on the Boardwalk were assigned pursuant to a weekly lottery

system.

Regardless of whether an individual had a permit, LAMC

§ 42.15 (2006) contained a broad vending ban.1 This prohibi-

tion on vending was inapplicable, however, to:

(1) Any individual or organization vending newspa-

pers, leaflets, pamphlets, bumper stickers or buttons;

(2) Any individual or organization that vends the fol-

lowing items, which have been created, written or

composed by the vendor: books, cassette tapes, com-

pact discs, digital video discs, paintings, photo-

graphs, sculptures or any other item that is inherently

communicative and has nominal utility apart from its

communication;

Although an item may have some expressive pur-

pose, it will be deemed to have more than nominal

utility apart from its communication if it has a com-

mon and dominant non-expressive purpose. Exam-

ples of items that have more than nominal utility

apart from their communication and thus may not be

vended under the provisions of this section, include,

but are not limited to, the following: housewares,

appliances, articles of clothing, sunglasses, auto

parts, oils, incense, perfume, lotions, candles, jew-

elry, toys, and stuffed animals;

1

Section 42.15(b)(3) (2006) defined “vending” as “[t]o sell, offer for

sale, expose for sale, solicit offers to purchase, or . . . to require someone

to pay a fee or to set, negotiate, or establish a fee before providing goods

or services. Requests for donations in exchange for food, goods, merchan-

dise or services also constitute vending.”

HUNT v. LOS ANGELES 3823

(3) Performances by performing artists and musi-

cians.

A permit holder who violated LAMC § 42.15 (2006) was sub-

ject to losing the permit and criminal penalties.

LAMC § 42.15 (2006) was ultimately amended by Ordi-

nance number 179,807, which took effect May 19, 2008.

3. LAMC § 63.44

Plaintiffs also challenge several provisions of LAMC

§ 63.44, which prohibited various activities “within the limits

of any park or other City-owned Harbor Department desig-

nated and controlled property within the city of Los Angeles.”

The challenged provisions were suspended by Ordinance

number 176,929, effective October 1, 2005.

B. Plaintiffs’ Activities

1. Hunt

Hunt sells shea butter on the Boardwalk. Hunt sets up three

different tables with his shea butter, decorated with table-

cloths and roses. According to Hunt, his area is “the Garden

of Eve and [I] really just make it look nice and smell good,

as if I was in heaven.” As people pass his stand, Hunt pro-

vides a standard sales pitch — “Here’s what you better ask

yourself: Have you been buttered up, or have you been but-

tered down? Have you seen that doggone butter man, because

that butter man’s back in town. Get buttered up, and get but-

tered down. Come get your free sample, ‘cause that butter

man’s back in town.” For those who stop and obtain a free

sample, Hunt “give[s] them a full therapeutic hand massage

and anoint[s] them,” and asks whether they can feel the “heal-

ing power” of the shea butter. Hunt further tells them that

“[s]hea butter is an African nut that aged over 365 years that

protects your skin from stretch marks, scars, and blemishes,

3824 HUNT v. LOS ANGELES

heals eczema . . . and it’s anointing, and it has a very, very

good vitamin A, E, and F, contact-neutral base to it.”

Hunt has been issued an Expression Permit, but has been

arrested for violation of each of the ordinances at issue in this

action.

2. Dowd

Dowd, since 2005, has sold his original design incense fla-

vor called “Pacific Breeze,” along with incense holders and

oil burners with engraved symbols. As people pass by his

stand on the Boardwalk, Dowd says, “Hey. Come over and

check out my original incense flavor. Smell this. Tell me if

you like it. It’s my own design of coconut, mango, and straw-

berry.” If the prospective customer appears interested, Dowd

explains how his product “differs from commercial brands of

incense, how they’re soaked in [his] original oil, they don’t

smell of smoke or wood, they last a lot longer, and they keep

fresh inside the sealed plastic bag which [he] provide[s].”

Dowd’s incense holders and oil burners display the follow-

ing five symbols: (1) yin-yang, (2) elephant, (3) dragon, (4)

sun, and (5) stars and moon. Dowd has a sign that explains the

religious and/or mythological significance of each of these

symbols, and he also distributes flyers explaining these sym-

bols and how to use his coffin-box incense holder. His flyers

explain his belief that “the burning of incense symbolizes the

breakdown of a being from an organic state into a molecular

state, and the release of energy back into the biosphere.” His

coffin-box holders symbolize “the funeral casket, and the

resultant ashes are the by-product of the energy transfer by

combustion of the organic material.” The primary message

that Dowd attempts to convey, however, is that he has “cre-

ated and designed [his] own original flavor which [he]

believe[s] is better than a lot of the other commercially avail-

able incense that are out there.”

HUNT v. LOS ANGELES 3825

Dowd has been issued an Expression Permit, but was

arrested on two occasions for illegal vending in violation of

LAMC § 42.15 (2006). Dowd conceded that he was never

arrested for violation of LAMC § 42.15 (2004), and the record

is unclear whether LAMC § 63.44 was enforced against him.

C. Determinations Below

On July 27, 2006, Plaintiffs filed this action facially chal-

lenging LAMC §§ 42.15 (2004), 42.15 (2006), and 63.44. On

cross-motions for summary judgment, the district court found

that Hunt had standing to challenge § 42.15 (2004) and that

it was unconstitutionally vague. As to § 42.15 (2006), the

court found that the vagueness challenge failed because Plain-

tiffs’ conduct was clearly proscribed by the ordinance, the

improper time, place, or manner challenge failed because

Plaintiffs were not engaged in protected speech, and Plain-

tiffs’ commercial speech argument failed because the ordi-

nance was not more extensive than necessary to serve the

City’s interests. The court did not expressly address Plaintiffs’

prior restraint argument. Further, based on Plaintiffs’ asser-

tion during the hearing that they were primarily challenging

the two versions of § 42.15, the court did not address Plain-

tiffs’ arguments as to LAMC § 63.44. See Hunt v. City of Los

Angeles, 601 F. Supp. 2d 1158, 1161 n.1 (C.D. Cal. 2009).

On February 3, 2009, a jury trial on damages commenced,

and on February 6, 2009, the jury returned a verdict in favor

of Hunt for $264,286. Judgment was entered on April 23,

2009. On May 14, 2009, the City appealed the judgment, and

Plaintiffs cross-appealed on May 19, 2009. In the meantime,

on May 6, 2009, Hunt filed his motion for attorneys’ fees and

costs. On July 10, 2009, the district court granted Hunt’s

motion for $207,285 in attorneys’ fees and $1,368.07 in costs.

On September 9, 2009, Hunt filed an amended notice of

appeal as to the attorneys’ fee order, which was subsequently

withdrawn as untimely. The City, however, did not file a sep-

arate notice of appeal as to the attorneys’ fee order.

3826 HUNT v. LOS ANGELES

II. STANDARD OF REVIEW

The district court’s grant of summary judgment in favor of

Hunt as to the 2004 ordinance and in favor of the City on the

2006 ordinance is reviewed de novo, under the same stan-

dards applied by the district court. See Travelers Prop. Cas.

Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1145 (9th

Cir. 2008); Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.

2002). The panel “must determine whether, viewing the evi-

dence in the light most favorable to the non-moving party,

any genuine issues of material fact exist, and whether the dis-

trict court correctly applied the relevant substantive law.”

Fazio v. City & Cnty. of San Francisco, 125 F.3d 1328, 1331

(9th Cir. 1997).

III. ANALYSIS

As to each of the ordinances at issue, Plaintiffs assert that

the ordinance is invalid as (1) vague, (2) an invalid time,

place and manner restriction, (3) an improper limit on com-

mercial speech, and (4) a prior restraint. We first outline gen-

eral standing principles, and then address the specific

ordinances at issue.

A. General Standing Principles

To maintain their challenge to the ordinances at issue in

this action, Plaintiffs “must establish constitutional standing

with regard to the provisions challenged.” Santa Monica Food

Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th

Cir. 2006). “Standing, in the constitutional sense, requires that

plaintiffs establish (1) a ‘distinct and palpable’ injury in fact

(2) that is ‘fairly traceable’ to the challenged provision and (3)

that would ‘likely . . . be redressed’ by a favorable decision

for the plaintiff.” Long Beach Area Peace Network v. City of

Long Beach, 574 F.3d 1011, 1019 (2009) (quoting Allen v.

Wright, 468 U.S. 737, 750-51 (1984)).

HUNT v. LOS ANGELES 3827

Beyond these general standing requirements, constitutional

claims also trigger special standing principles. “First, a plain-

tiff seeking to vindicate his own constitutional rights may

argue that an ordinance ‘is unconstitutionally vague or . . .

impermissibly restricts a protected activity.’ ” Santa Monica

Food Not Bombs, 450 F.3d at 1033 (quoting Foti v. City of

Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998)). In making

a vagueness challenge, a plaintiff actually raises a due pro-

cess, as opposed to First Amendment, claim. See Holder v.

Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010);

United States v. Williams, 553 U.S. 285, 304 (2008)

(“Vagueness doctrine is an outgrowth not of the First Amend-

ment, but of the Due Process Clause of the Fifth Amend-

ment.”). In making such claim, “[a] plaintiff who engages in

some conduct that is clearly proscribed cannot complain of

the vagueness of the law as applied to the conduct of others.”

Humanitarian Law Project, 130 S. Ct. at 2719 (quoting Hoff-

man Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

495 (1982)). In other words, to raise a vagueness argument,

Plaintiffs’ conduct must not be “clearly” prohibited by the

ordinances at issue.

“Second, ‘an individual whose own speech or expressive

conduct may validly be prohibited or sanctioned is permitted

to challenge a statute on its face because it also threatens oth-

ers not before the court.’ ” Santa Monica Food Not Bombs,

450 F.3d at 1033 (quoting Brockett v. Spokane Arcades, Inc.,

472 U.S. 491, 503 (1985)). Where a plaintiff challenges an

ordinance based on the violation of third parties’ rights, how-

ever, § 1983 damages are not available because there has been

no violation of the plaintiff’s own constitutional rights. See

Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895,

907 (9th Cir. 2007) (citing Advantage Media, L.L.C. v. City

of Eden Prairie, 456 F.3d 793, 801 (8th Cir. 2006)). A plain-

tiff may nonetheless seek damages by raising an as-applied

challenge, asserting “that the law is unconstitutional as

applied to his own speech or expressive conduct.” Santa Mon-

ica Food Not Bombs, 450 F.3d at 1034; see also Nunez by

3828 HUNT v. LOS ANGELES

Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir. 1997)

(recognizing that while “[t]echnically, the overbreadth doc-

trine does not apply if the parties challenging the statute

engage in the allegedly protected expression . . . . Plaintiffs

may seek directly on their own behalf the facial invalidation

of overly broad statutes that ‘create an unacceptable risk of

the suppression of ideas.’ ” (quoting Sec’y of State of Mary-

land v. Joseph H. Munson Co., 467 U.S. 947, 965 n.13 (1984)).2

Thus, Plaintiffs must base their claims on a restriction of

their own constitutionally protected conduct.

B. Plaintiffs’ Claims on the Ordinances at Issue

1. LAMC § 42.15 (2004)

The district court found that Hunt had standing to raise a

vagueness claim and that LAMC § 42.15 (2004) was void for

vagueness.3 We agree — Hunt meets the standing require-

ments because the ordinance was enforced against him and

his conduct was not clearly proscribed by LAMC § 42.15

(2004), and the ordinance is impermissibly vague.

[1] As to the first inquiry, the vaguer an ordinance is, the

less likely it will be found to “clearly proscribe” conduct. Sec-

tion 42.15(C) (2004), which allows individuals with permits

to sell “merchandise constituting, carrying or making a reli-

gious, political, philosophical or ideological message or state-

2

While some courts have discussed arguments regarding prior restraints

and improper time, place, or manner restrictions as being overbreadth

claims, see, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973),

other courts have discussed them as distinct doctrines. See, e.g., Mal-

donado v. Morales, 556 F.3d 1037, 1046-48 (9th Cir. 2009). In this case,

because Plaintiffs seek damages, they must prove a violation of their own

rights, regardless of the precise characterization of their claims.

3

The district court also found that Dowd did not have standing to chal-

lenge LAMC § 42.15 (2004) because it was never enforced against him.

Plaintiffs do not appeal this determination.

HUNT v. LOS ANGELES 3829

ment which is inextricably intertwined with the merchandise,”

provides a prime example of an ordinance with contours so

undefined that even Hunt’s sale of shea butter is not clearly

proscribed.

[2] Section 42.15 (2004) is ambiguous in at least two

respects. First, it fails to define or provide any examples of

when merchandise carries a “religious, political, philosophical

or ideological” message, and these terms have such amor-

phous meanings that it makes it difficult, if not impossible, for

an individual to determine whether his conduct is proscribed

by the ordinance. For example, one modern source defines

“ideology” as, among other things, “the body of doctrine,

myth, belief, etc., that guides an individual, social movement,

institution, class, or large group,” “the study of the nature and

origin of ideas,” or “theorizing of a visionary or impractical

nature.” Dictionary.com, http://dictionary.reference.com/

browse/ideology (defining “ideology”) (last accessed March

15, 2011). “Philosophy” is defined as, among other things,

“the rational investigation of the truths and principles of

being, knowledge, or conduct,” “a system of principles for

guidance in practical affairs,” or “a philosophical attitude, as

one of composure and calm in the presence of troubles or

annoyances.” Dictionary.com, http://dictionary.reference

.com/browse/philosophy (defining “philosophy”) (last

accessed March 15, 2011). Finally, “religious” means, among

other things, “imbued with or exhibiting religion; pious;

devout; godly,” “scrupulously faithful; conscientious,” or “ap-

propriate to religion or to sacred rites or observances.” See

Dictionary.com, http://dictionary.reference.com/browse/

religious (defining “religious”) (last accessed March 15,

2011). These broad definitions cast correspondingly broad

nets of what conduct is permissible and § 42.15 (2004) pro-

vides no limiting examples to illustrate when an individual’s

sale of merchandise falls within these definitions. Cf. Human-

itarian Law Project, 130 S. Ct. at 2728 (stating that Congress

“added clarity” to a statute by providing narrowing definitions

3830 HUNT v. LOS ANGELES

of certain terms and explaining when a violation of the statute

occurs).

[3] Second, § 42.15 (2004) fails to explain when merchan-

dise has a message that is “inextricably intertwined” with it,

leaving unanswered whether the product itself must carry and

display the message, or whether it is sufficient for the vendor

to explain the product’s message. If it is the former, then

§ 42.15 (2004) would permit the sale of very few items except

those with wording or explicit religious, political, ideological,

or philosophical messages. If it is the latter, then almost any

product could be sold so long as the vendor attributes a reli-

gious, political, ideological, or philosophical message to the

product. Again, § 42.15 (2004) provides no examples or

explanations as to which interpretation applies.

[4] Hunt’s speech and sale of shea butter — in the context

of an ordinance with few meaningful contours — include

some elements that may be considered religious, philosophi-

cal, or ideological. Specifically, Hunt welcomes potential cus-

tomers to the “Garden of Eve,” “anoints” customers with free

samples, and asks them whether they can feel “the healing

power” of the shea butter. Each of these aspects of Hunt’s

speech is tied directly to his shea butter, raising the open

question of whether his shea butter is inextricably intertwined

with these arguably religious, ideological, and/or philosophi-

cal messages. Given the vagaries of the ordinance, we cannot

conclude that § 42.15 (2004) clearly proscribes his conduct.

Hunt therefore has standing to challenge LAMC § 42.15

(2004) as vague. See Humanitarian Law Project, 130 S. Ct.

at 2719.

[5] As to the merits of Hunt’s vagueness claim, “[i]t is a

basic principle of due process that an enactment is void for

vagueness if its prohibitions are not clearly defined.” Grayned

v. City of Rockford, 408 U.S. 104, 108 (1972). An ordinance

may be void for vagueness because either it (1) fails to give

a “person of ordinary intelligence a reasonable opportunity to

HUNT v. LOS ANGELES 3831

know what is prohibited;” (2) “impermissibly delegates basic

policy matters to policemen, judges, and juries for resolution

on an ad hoc and subjective basis, with the attendant dangers

of arbitrary and discriminatory application;” or (3) “abut(s)

upon sensitive areas of basic First Amendment freedoms, [ ]

operat[ing] to inhibit the exercise of (those) freedoms.” Id.

Further, where criminal sanctions are involved and/or the law

implicates First Amendment rights such as here, a “more

demanding” standard of scrutiny applies. See Humanitarian

Law Project, 130 S. Ct. at 2724 (stating that where a regula-

tion is related to expression, the court “must apply a more

demanding standard” (quotation and citation signals omit-

ted)); Maldonado, 556 F.3d at 1045 (concluding that where

criminal sanctions are involved, “[t]he standards of certainty

in statutes punishing for offenses is higher than in those

depending primarily on civil sanction for enforcement”).

[6] First, § 42.15 (2004) clearly fails to give a person of

ordinary intelligence a reasonable opportunity to know what

is prohibited. Second, given that the line between allowable

and prohibited sales of merchandise is so murky, enforcement

of the ordinance poses a danger of arbitrary and discrimina-

tory application. Indeed, as the City admitted, a police officer

would have to engage in a “highly fact-specific analysis” to

determine whether a person selling merchandise is relaying a

message, whether that message qualifies as being religious,

political, philosophical, or ideological, and whether that mes-

sage is inextricably intertwined with the products being sold.

Without any clear guidance from § 42.15 (2004) on these

issues, such determinations would necessarily be left to the

subjective judgment of the officer.4 Finally, this lack of clarity

4

See City of Chicago v. Morales, 527 U.S. 41, 56, 62 (1999) (holding

a provision criminalizing loitering, which is defined as “to remain in any

one place with no apparent purpose,” void for vagueness where the provi-

sion was “inherently subjective because its application depends on

whether some purpose is ‘apparent’ to the officer on the scene”); Tucson

Woman’s Clinic v. Eden, 379 F.3d 531, 554-55 (9th Cir. 2004) (invalidat-

3832 HUNT v. LOS ANGELES

may operate to inhibit the exercise of freedom of expression

because individuals will not know whether the ordinance

allows their conduct, and may choose not to exercise their

rights for fear of being criminally punished.

That the City based § 42.15 (2004) on the standard devel-

oped in Gaudiya Vaishnava Society v. City & County of San

Francisco, 952 F.2d 1059 (9th Cir. 1990), does not change the

analysis. In Gaudiya, nonprofit organizations challenged an

ordinance that prohibited nonprofit organizations from selling

merchandise in the Fisherman’s Wharf or Union Square areas

of San Francisco without a peddler’s permit. Id. at 1060-61.

These organizations argued that their conduct of informing

individuals of their causes and at the same time selling mer-

chandise affixed with their messages was speech fully pro-

tected by the First Amendment. Id. at 1063. Gaudiya

determined that full First Amendment protection applies to

the sale of merchandise so long as the “sale of merchandise

[ ] is inextricably intertwined with a statement carrying a reli-

gious, political, philosophical or ideological message,” and

that the non-profit organizations’ activities fell within this

definition. Id. at 1064-66; see also Perry v. L.A. Police Dep’t,

121 F.3d 1365, 1368 (9th Cir. 1997) (holding that the sale of

“music, buttons, and bumper stickers bearing political, reli-

gious, and ideological messages” was fully protected by the

First Amendment); One World One Family Now v. City &

Cnty. of Honolulu, 76 F.3d 1009, 1012 (9th Cir. 1996)

ing a statute requiring physicians to treat patients “with consideration,

respect, and full recognition of the patient’s dignity and individuality” as

void for vagueness because it “subjected physicians to sanctions based not

on their own objective behavior, but on the subjective viewpoint of oth-

ers”) (internal quotation and citation omitted); Free Speech Coal. v. Reno,

198 F.3d 1083, 1095 (9th Cir. 1999) (holding a provision that criminalized

sexually explicit images that “appear[ ] to be a minor” or “convey the

impression” that a minor is depicted unconstitutionally vague because it

was unclear “whose perspective defines the appearance of a minor, or

whose impression that a minor is involved leads to criminal prosecution”).

HUNT v. LOS ANGELES 3833

(explaining that non-profit corporations who sell merchandise

with philosophical and inspirational messages to help spread

their messages were engaged in protected activity).

By incorporating the standard developed in Gaudiya, the

City attempted to exempt fully protected speech from § 42.15

(2004)’s prohibition on vending. But simply reciting this legal

standard fails to provide guidance regarding when a message

is “inextricably intertwined” with the merchandise, and what

types of messages qualify as religious, philosophical, politi-

cal, or ideological. That § 42.15 (2004) was to be enforced by

a police officer having to make a split-second decision on the

Boardwalk and not a court carefully weighing all of the facts

and legal precedent highlights the lack of clarity and potential

for arbitrary application and enforcement. In short, copying

Gaudiya’s legal standard and pasting it into § 42.15 (2004)

does not offer the City a per se safe harbor from a vagueness

challenge.

[7] Thus, we conclude that Hunt has standing to raise a

vagueness challenge, and that LAMC § 42.15 (2004) is

unconstitutionally vague.5

2. LAMC 42.15 (2006)

Plaintiffs argue that LAMC § 42.15 (2006) is (1) vague, (2)

an invalid time, place and manner restriction, (3) an improper

limit on commercial speech, and (4) a prior restraint. We

address these arguments in turn.

5

Given this conclusion, we decline to address Hunt’s additional argu-

ments seeking to invalidate LAMC § 42.15 (2004).

The City also argues that should the court conclude that LAMC § 42.15

(2004) is void for vagueness, the district court erred in invalidating all of

the ordinance as opposed to just § 42.15(C) (2004), which included the

various exceptions to the prohibition on vending. Because LAMC § 42.15

(2004) is no longer in effect, and because the City did not raise the sever-

ability issue before the district court, we decline to address that argument.

3834 HUNT v. LOS ANGELES

a. Vagueness

[8] Plaintiffs’ vagueness challenge fails because their con-

duct is clearly proscribed by § 42.15 (2006). Unlike its 2004

predecessor, LAMC § 42.15 (2006) provides clear definitions

regarding what merchandise an individual may or may not

sell on the Boardwalk. Permit holders may sell any item

“which ha[s] been created, written or composed by the ven-

dor,” “is inherently communicative,” and “has nominal utility

apart from its communication,” such as “books, cassette tapes,

compact discs, digital video discs, paintings, photographs,

[and] sculptures.” LAMC § 42.15(c)(2) (2006). On the other

hand, permit holders may not sell items that have a “common

and dominant non-expressive purpose,” such as “housewares,

appliances, articles of clothing, sunglasses, auto parts, oils,

incense, perfume, lotions, candles, jewelry, toys, and stuffed

animals.” Id.

Based on these guidelines, a vendor can simply ask — is

the merchandise I wish to sell inherently communicative with

nominal utility, or does the merchandise have a common and

dominant non-expressive purpose? And answering this ques-

tion, the vendor need only compare his merchandise with the

examples provided in § 42.15 (2006) to determine whether he

can sell this merchandise.

In opposition, Plaintiffs argue that § 42.15 (2006) leaves

unanswered when an item is “inherently communicative,”

and/or has “nominal utility apart from its communication,”

and what the differences are between “some expressive pur-

pose,” “common” non-expressive purpose, and “dominant”

non-expressive purpose. To the extent these terms are unclear

when read in isolation, they find clarity when read in context

with the entire provision — the ordinance provides clear lim-

iting examples illustrating the meaning of these terms. See,

e.g., Alaska Right to Life Comm. v. Miles, 441 F.3d 773, 783

(9th Cir. 2006) (concluding there was no vagueness where

“ ‘[i]ndirectly’ is an easily understood word in common

HUNT v. LOS ANGELES 3835

English usage. In the context in which it is used, it is neither

vague nor difficult to understand”); Hotel & Motel Ass’n of

Oakland v. City of Oakland, 344 F.3d 959, 972-73 (9th Cir.

2003) (upholding ordinance “that prohibits hotel operators

from contributing to nuisance activities on or in ‘close prox-

imity to’ the property” as not vague because when read in

context with the examples provided in the ordinance, it gave

sufficient notice of the conduct proscribed).

[9] Comparing Plaintiffs’ sales of shea butter and incense

to the conduct described in § 42.15 (2006), we readily con-

clude that their conduct falls well within the bounds of pro-

hibited vending. Their products are not at all similar to

vendor-created books, music, and artwork that may be sold —

shea butter and incense are not inherently communicative and

have more than nominal utility apart from any communication

related to them. Further, Plaintiffs’ products certainly have

common and non-expressive purposes and fall squarely

within the examples of prohibited items (and indeed, incense

is even specifically listed as a prohibited item). Accordingly,

Plaintiffs’ conduct is clearly proscribed by 42.15 (2006) such

that they cannot assert a vagueness challenge. See Humanitar-

ian Law Project, 130 S. Ct. at 2719.

b. Time, place, or manner restriction

[10] The time, place, or manner standard applies to fully

protected speech in a public forum. See S.O.C., Inc. v. Cnty.

of Clark, 152 F.3d 1136, 1144 (9th Cir. 1998) (determining

first that the First Amendment fully protects the expressive

activities regulated by the ordinance at issue, and therefore

proceeding to determine whether the County has placed legiti-

mate time, place, and manner restrictions on these activities);

Perry, 121 F.3d at 1368 (same); see also Riley v. Nat’l Fed’n

of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988) (applying

test for fully protected expression where commercial speech

was inextricably intertwined with fully protected speech). But

where only commercial speech is at issue, the time, place, or

3836 HUNT v. LOS ANGELES

manner framework does not apply and courts apply the frame-

work articulated in Central Hudson Gas & Electric Corp. v.

Public Service Commission of N.Y., 447 U.S. 557 (1980). See

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001).

[11] Commercial speech is “defined as speech that does no

more than propose a commercial transaction.” United States

v. United Foods, Inc., 533 U.S. 405, 409 (2001); see also Bd.

of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 473-74

(1989) (stating that the proposal of a commercial transaction

test is “the test for identifying commercial speech”).6 Where

the facts present a close question, “strong support” that the

speech should be characterized as commercial speech is found

where the speech is an advertisement, the speech refers to a

particular product, and the speaker has an economic motiva-

tion. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,

66-67 (1983); see also Am. Acad. of Pain Mgmt. v. Joseph,

353 F.3d 1099, 1106 (9th Cir. 2004) (applying Bolger fac-

tors).

[12] Commercial speech does not retain its commercial

character “when it is inextricably intertwined with otherwise

fully protected speech.” Riley, 487 U.S. at 796; see also

Gaudiya, 952 F.2d at 1066 (explaining that First Amendment

protection applies to the sale of merchandise so long as the

“sale of merchandise [ ] is inextricably intertwined with a

statement carrying a religious, political, philosophical or ideo-

logical message”). Implicit in this standard, however, is that

where the two components of speech can be easily separated,

6

Although the Supreme Court has also defined commercial speech as

“expression related solely to the economic interests of the speaker and its

audience,” Central Hudson, 447 U.S. at 561, cases decided after Central

Hudson have relied on the “proposal of a commercial transaction” test. See

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 422 (1993)

(recognizing this definition in Central Hudson, but acknowledging that

neither Bolger nor Fox used this definition); see also Coyote Publ’n, Inc.

v. Miller, 598 F.3d 592, 598 (9th Cir. 2010); White v. City of Sparks, 500

F.3d 953, 957 (9th Cir. 2007).

HUNT v. LOS ANGELES 3837

they are not “inextricably intertwined.” For example, Fox held

that “tupperware parties” propose a commercial transaction

even though the participants discuss subjects such as financial

responsibility. 492 U.S. at 473-74. Fox explained that the

commercial speech of selling tupperware is not “inextricably

intertwined” with the fully protected speech because nothing

“prevents the speaker from conveying, or the audience from

hearing, . . . noncommercial messages, and nothing in the

nature of things requires them to be combined with commer-

cial messages.” Id. Fox further reasoned: “[C]ommunications

can “constitute commercial speech notwithstanding the fact

that they contain discussions of important public issues. . . .

We have made clear that advertising which ‘links a product

to a current debate’ is not thereby entitled to the constitutional

protection afforded noncommercial speech.” Id. at 475 (quot-

ing Bolger, 463 U.S. at 67-68).

[13] We conclude that Plaintiffs are engaged in commer-

cial speech. Unlike the nonprofit groups in Gaudiya who “in-

form individuals of their causes through distributing their

literature, engag[e] in persuasive speech, and sell[ ] merchan-

dise with messages affixed to the product,” 952 F.2d at 1064,

Plaintiffs clearly propose a commercial transaction. Indeed,

the core of Plaintiffs’ speech is directed to their products and

why a consumer should buy them.

[14] Further, any noncommercial aspect of Plaintiffs’

speech is not inextricably intertwined with commercial

speech. Hunt and Dowd could easily sell their wares without

reference to any religious, philosophical, and/or ideological

element, and they could also express any noncommercial

message without selling these wares. Considering all of the

evidence, there is simply no meaningful nexus between the

products sold (the commercial speech) and the information

provided (the noncommercial speech) that would support a

determination that the two are inextricably intertwined. Just as

Fox concluded that “[n]o law of man or of nature makes it

impossible to sell housewares without teaching home eco-

3838 HUNT v. LOS ANGELES

nomics, 492 U.S. at 474, Hunt could easily sell shea butter,

and Dowd could easily sell incense, incense holders, and oil

burners, without reference to any noncommercial message.

Nothing in the nature of Plaintiffs’ products requires their

sales to be combined with a noncommercial message.

Plaintiffs’ reliance on Mastrovincenzo v. City of New York,

313 F. Supp. 2d 280 (S.D.N.Y. 2004), and Al-Amin v. City of

New York, 979 F. Supp. 168 (E.D.N.Y. 1997), is unavailing.

Mastrovincenzo found that street vendors’ sale of “graffiti”

style clothing was sufficiently expressive to receive First

Amendment protection, 313 F. Supp. at 282, 293, and the

Second Circuit agreed in large part, concluding that these

graffiti goods “serve a predominantly expressive purpose”

because the artwork raised the price of the goods significantly

and the vendor/artists were expressing themselves through

this medium of art. Mastrovincenzo v. City of New York, 435

F.3d 78, 97 (2d Cir. 2006). Unlike Mastrovincenzo, Plaintiffs

are selling items that have a predominantly utilitarian, not an

expressive, purpose and do not incorporate artwork created by

Plaintiffs. Plaintiffs’ communication neither adds to the price

of their products nor becomes the dominant reason individuals

purchase their products.

Al-Amin addressed whether individuals who propagated

information regarding the Muslim religion and who sought

donations in exchange for books, pamphlets, oils, and incense

were engaged in protected speech. 979 F. Supp. at 169.

Applying Gaudiya, Al-Amin found that the sale of these items

“is not an expressive activity that is ‘inextricably intertwined’

with conveying a message about Islam . . . because the goods

themselves do not bear a message, nor does their sale convey

a particularized message that would likely be understood by

the purchasers.” Id. at 173. Al-Amin reasoned that “[t]he act

of selling oils and incense simply is not sufficiently inter-

twined with the expression that plaintiffs are free to engage

in, such as discussing the role of these products in Islam and

HUNT v. LOS ANGELES 3839

instructing passers-by in their use.” Id. Such reasoning applies

with equal force to Plaintiffs’ conduct.

In sum, Plaintiffs are simply explaining the use and mean-

ing of their products in an attempt to convince passers-by to

purchase them. Plaintiffs’ products on their own do not have

any inherently communicative elements that make their sale

constitute expressive activity, and nothing prevents Plaintiffs

from espousing their beliefs without selling these products.

To accept that Plaintiffs’ incorporation of spiritual elements

into their sales pitch and products transforms their proposal of

a commercial transaction into fully protected speech would

recast a broad range of vendors’ sales pitches as protected

speech. Viewing their conduct as a whole, however, confirms

that the focus of Plaintiffs’ speech is to sell their products as

opposed to communicate a particular message to the public.

[15] We therefore hold that Plaintiffs’ time, place, or man-

ner restriction claim fails because they did not engage in con-

duct that is fully protected speech.

c. Commercial speech

[16] We have recently explained the Central Hudson anal-

ysis for commercial speech as follows:

In Central Hudson, the Supreme Court announced a

four-part test for assessing the constitutionality of a

restriction on commercial speech: (1) if ‘the commu-

nication is neither misleading nor related to unlawful

activity,’ then it merits First Amendment scrutiny as

a threshold matter; in order for the restriction to

withstand such scrutiny, (2) ‘[t]he State must assert

a substantial interest to be achieved by restrictions

on commercial speech;’ (3) ‘the restriction must

directly advance the state interest involved;’ and (4)

it must not be ‘more extensive than is necessary to

serve that interest.’ ”

3840 HUNT v. LOS ANGELES

Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898,

903 (9th Cir. 2009) (quoting Cent. Hudson, 447 U.S. at 564-

66).

“The last two steps of the Central Hudson analysis basi-

cally involve a consideration of the ‘fit’ between the legisla-

ture’s ends and the means chosen to accomplish those ends.”

Rubin v. Coors Brewing Co., 514 U.S. 476, 486 (1995) (inter-

nal quotation marks omitted); see also World Wide Rush, LLC

v. City of Los Angeles, 606 F.3d 676, 684 (9th Cir. 2010). The

Supreme Court has explained that this “fit” requirement

“is not necessarily perfect, but reasonable; that repre-

sents not necessarily the single best disposition but

one whose scope is in proportion to the interest

served; that employs not necessarily the least restric-

tive means but, as we have put it in the other con-

texts . . . , a means narrowly tailored to achieve the

desired objective.” (internal quotation marks and

citations omitted.)

United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 218

(2003) (quoting Fox, 492 U.S. at 480). In general, “almost all

of the restrictions disallowed under Central Hudson’s fourth

prong have been substantially excessive, disregarding far less

restrictive and more precise means.” Fox, 492 U.S. at 479.

[17] Plaintiffs take issue with the last Central Hudson

inquiry only — i.e., whether § 42.15 (2006) is more extensive

than is necessary to serve the City’s objectives in passing the

ordinance. As § 42.15 (2006) recited, its purpose was to pre-

vent unregulated vending, which, among other things,

impedes orderly movement on the Boardwalk, adversely

affects the historic character of the Boardwalk, undermines

Boardwalk commercial life, causes visual blight, impedes

emergency and public safety vehicles, and has led to alterca-

tions regarding the locations and amount of space individuals

could occupy. See LAMC § 42.15(a) (2006). Section 42.15

HUNT v. LOS ANGELES 3841

(2006), by limiting the number of individuals that may set up

booths and assigning individuals to particular spaces, is

directed to addressing these concerns and is a reasonable fit

with these purposes — limiting the number of individuals that

may set up booths and assigning individuals to particular

spaces ensures that pathways and spaces will be open for both

pedestrians and emergency personnel and prevents unregu-

lated vending.

We therefore reject Plaintiffs’ claim that § 42.15 (2006) is

an improper restriction on commercial speech.

d. Prior restraint

[18] A “prior restraint” refers to an ordinance that either

“vests unbridled discretion in the licensor,” or “does not

impose adequate time limits on the relevant public officials.”

Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 894

(9th Cir. 2007) (citation signals omitted). For a prior restraint

claim, the necessary injury in fact is the threat of the prior

restraint — a party may challenge the ordinance even if he

has not applied for a license. Get Outdoors II, LLC, 506 F.3d

at 895. The converse of this statement, however, is that a

party who has been granted a permit has not suffered any

injury. See IDK, Inc. v. Clark Cnty., 836 F.2d 1185, 1197 (9th

Cir. 1988) (“We note that the county granted these plaintiffs

licenses and therefore they may lack standing to challenge the

licensing requirements as it applies to them. In any event, the

fact that they have licenses militates against facial invalida-

tion of the regulation.”); see also CAMP Legal Defense Fund,

Inc. v. City of Atlanta, 451 F.3d 1257, 1276 (11th Cir. 2006)

(recognizing that organization lacked standing to challenge

provision where it “failed to present evidence that it has, or

imminently will be denied a permit”); cf. Get Outdoors II,

LLC, 506 F.3d at 894-95 (holding that plaintiff did not have

standing to challenge the permit process where it could not

“show that it would ever be genuinely threatened by an

unconstitutional prior restraint in this case”).

3842 HUNT v. LOS ANGELES

[19] Plaintiffs were granted Expression Permits and there-

fore were not injured by § 42.15 (2006)’s alleged failures to

contain adequate standards and procedural safeguards in the

permitting process. We therefore reject Plaintiffs’ prior

restraint challenge to § 42.15 (2006).7

3. LAMC § 63.44

The district court did not address LAMC § 63.44 due to

Plaintiffs’ assertion at the summary judgment hearing that

“their suit centers on the two versions of § 42.15” and/or they

“are primarily challenging the two versions of § 42.15.” Hunt,

601 F. Supp. 2d at 1161 n.1. The record presented, however,

does not establish an abandonment of these claims — accord-

ing to the district court, Plaintiffs asserted only that they were

primarily challenging the other two ordinances, not that they

were dropping their claims regarding § 63.44. The district

court should have therefore substantively addressed Plaintiffs’

claims as to § 63.44. We therefore remand to the district court

to address § 63.44 in the first instance.8

C. Damages and Attorneys’ Fees

The City appeals the damages and attorneys’ fees awards

to Hunt, but has failed to preserve these issues on appeal.

7

It is an open question whether the prior restraint doctrine even applies

to commercial speech. See Central Hudson, 447 U.S. at 571 n.13 (“We

have observed that commercial speech is such a sturdy brand of expres-

sion that traditional prior restraint doctrine may not apply to it.”); Sears,

Roebuck & Co. v. FTC, 676 F.2d 385, 399 n.31 (9th Cir. 1982) (“The doc-

trinal question whether prior restraint analysis, e.g., New York Times Co.

v. United States, 403 U.S. 713 (1971), is properly applicable to any com-

mercial speech question remains open.” (citing Friedman v. Rogers, 440

U.S. 1, 10 & n.9 (1979); Jay Norris, Inc. v. FTC, 598 F.2d 1244 1252 (9th

Cir. 1979)). We need not reach this issue, however, because Plaintiffs’

claim fails for other reasons described above.

8

The record does not make clear whether Dowd has standing to assert

a claim pursuant to LAMC § 63.44, and the district court may address this

issue in the first instance.

HUNT v. LOS ANGELES 3843

[20] As to the damages award, the City failed to bring a

post-verdict motion pursuant to Federal Rule of Civil Proce-

dure 50(b). See Nitco Holding Corp. v. Boujikian, 491 F.3d

1086, 1089 (9th Cir. 2007) (stating that “failure to comply

with [Rule 50(b)] precludes a later challenge to the suffi-

ciency of the evidence on appeal”). Without a Rule 50(b)

motion, the City cannot now make a sufficiency claim as to

the jury’s damages award.

[21] As to the City’s arguments on the attorneys’ fee

award, an order on attorneys’ fees is collateral to, and sepa-

rately appealable from, the judgment. See, e.g., Culinary &

Serv. Emps. Union, AFL-CIO Local 555 v. Haw. Emp. Ben.

Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982); see also

Kennedy v. Applause, Inc., 90 F.3d 1477, 1483 (9th Cir. 1996)

(holding that an attorneys’ fees award is not appealable until

the amount of the award is set). “Compliance with these time

limitations is both mandatory and jurisdictional.” Cel-A-Pak

v. Cal. Agr. Labor Relations Bd., 680 F.2d 664, 666 (9th Cir.

1982); see also Bowles v. Russell, 551 U.S. 205, 214 (2007)

(“[T]he timely filing of a notice of appeal in a civil case is a

jurisdictional requirement.”). The City did not file a notice of

appeal as to this issue — although the City filed a notice of

appeal of the underlying judgment on May 14, 2009, the dis-

trict court did not order the award of attorneys’ fees until July

10, 2009, and the City failed to file any timely supplemental

notice of appeal on the attorneys’ fee issue. Accordingly, we

do not have jurisdiction to review the attorneys’ fee award.

See E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250

(10th Cir. 1999) (holding the court lacked jurisdiction where

the defendant failed to file a notice of appeal on the attorneys’

fee issue because “a supplemental notice of appeal is required

for us to have jurisdiction over an attorneys’ fees issue that

becomes final subsequent to the initial notice of appeal”); see

also Doughtery v. Lehman, 711 F.2d 555, 558-59 (3d Cir.

1983). We therefore affirm the damages and attorneys’ fee

awards to Hunt.

3844 HUNT v. LOS ANGELES

IV. CONCLUSION

We affirm the district court’s judgment as to LAMC

§§ 42.15 (2004 and 2006) in all respects. We remand, how-

ever, for the district court to address LAMC § 63.44 in the

first instance.

AFFIRMED in Part; REMANDED in Part. Each party

shall bear its own costs on appeal.