“The first amendment affords greater protection to noncommercial than to commercial expression.”
How later courts described this case
- “The first amendment affords greater protection to noncommercial than to commercial expression.”
- internal quotation marks omitted; second alteration in Food Not Bombs; emphasis removed
- holding in a § 1983 action that state officials were not enti- tled to qualified immunity for limiting the message of a speaker who was protected by First Amendment
- “To suggest that the [twenty-four-hour] waiting period is minimal ignores the reality of breakneck political campaign- ing and the importance of getting the message out in a timely, or, in some cases, even instantaneous fashion.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONG BEACH AREA PEACE
NETWORK; DIANA MANN,
No. 05-55083
Plaintiffs-Appellees,
v. D.C. No.
CV-04-08510-SJO
CITY OF LONG BEACH, a municipal
OPINION
corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
February 16, 2007—Pasadena, California
Filed April 15, 2008
Before: Harry Pregerson, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge William A. Fletcher;
Concurrence by Judge Berzon
3911
3916 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
COUNSEL
Randall C. Fudge, Long Beach City Attorney’s Office, Long
Beach, California, for the appellant.
Carol A. Sobel, Santa Monica, California, for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
We review the constitutionality of § 5.60 of the City of
Long Beach Municipal Code (“LBMC” or “Ordinance”).
Appellees Long Beach Area Peace Network and Diana Mann
(collectively “the Peace Network”) challenged § 5.60 under
the First Amendment after the City of Long Beach (“the
City”) sought payment of administrative fees associated with
a march and rally held by the Peace Network on March 22,
2003. The district court held that § 5.60 in its entirety uncon-
stitutionally restricts the right to free speech and permanently
enjoined the City from enforcing it. We affirm in part and
reverse in part.
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3917
We hold that five challenged features of § 5.60 are consti-
tutional: (1) the provisions distinguishing between expressive
activity and other activity; (2) the provision allowing the City
Manager to impose conditions to meet stated purposes; (3) the
provision authorizing the City Manager to obtain proof of
indigent status; (4) the provision authorizing the City Man-
ager to require a permittee to obtain insurance; and (5) the
provision authorizing criminal penalties for violations of the
Ordinance. However, we hold that four other features are
unconstitutional: (1) part of the provision defining “special
events”; (2) the provision applicable to “spontaneous” events;
(3) the hold-harmless and indemnification provision; and (4)
the provisions authorizing waiver of permit fees and depart-
mental services charges.
We remand to allow the district court to determine whether
the unconstitutional provisions are severable from the remain-
der of § 5.60.
I. Background
As described by the district court, the Long Beach Area
Peace Network is “an unincorporated, loosely organized
group of peace activists without an office, organizational
phone, organizational email or insurance.” On February 15,
2003, before the beginning of the Iraq War, the Peace Net-
work sponsored a protest march and rally in the City of Long
Beach, California. In preparation for the event, Dr. Eugene
Ruyle (“Ruyle”), a retired professor and Peace Network mem-
ber, submitted an application for a “special event” permit, as
required by § 5.60.020(A). Long Beach Municipal Code
(“LBMC”) § 5.60.020(A) (1999). After negotiating the march
route with Ruyle, the City approved the permit.
The march was conducted on public streets along the route
suggested by the City. The event concluded with a rally in
Bixby Park, a public park in the City. Several elected offi-
cials, including a City Council member and a State Assembly
3918 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
member, participated in the rally. According to some esti-
mates, between 1,000 and 1,500 people attended the event.
The permit application, signed by Ruyle in February 2003,
provided that the Peace Network would “hold the City harm-
less from any liability caused by the conduct of the event”;
that the “City will not be liable for any mishaps or injuries
associated with the event”; and that “[f]ull responsibility for
activities at the event will be assumed by [the Peace Net-
work].” The application also provided that the Peace Network
would “be responsible for all costs incurred by City depart-
ments for use of City personnel and/or equipment.” After sub-
mitting the application, Ruyle wrote a letter to the City
requesting a waiver of the permit application fee and the
departmental services charges imposed under § 5.60. The City
did not assess any fee or charges for the February event.
On March 20, 2003, approximately one month later, the
United States launched an aerial assault on Baghdad. In antic-
ipation of the assault, the Peace Network had already orga-
nized another march and rally, to be held on March 22. Ruyle
had submitted a letter to the City on or about March 18
describing the anticipated “spontaneous” event. Section 5.60
defines a “spontaneous” event as one “occasioned by news or
affairs coming into public knowledge within five (5) days” of
the event. See LBMC § 5.60.030(A)(5). A “spontaneous”
event does not require a formal permit, but it does require
twenty-four hours advance notice to the City. The City Man-
ager may refuse permission to hold such an event, and may
impose “reasonable time, place and manner restrictions.” See
LBMC § 5.60.030(B). An initial email from Ruyle to the
City, sent two weeks earlier, had indicated that the Peace Net-
work planned to ask for the closure of at least one lane of traf-
fic for the march and to reserve a bandshell in Bixby Park for
the rally. In his email, Ruyle estimated that the March event
would be “at least twice as big” as the February march and
rally.
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3919
In a letter addressed to Ruyle dated March 21, the City
granted permission to conduct a march and rally on March 22.
In the letter, the City imposed a number of conditions, includ-
ing the route of the march and the location of the rally. The
letter contained a summary of estimated departmental services
charges for “Police,” “Public Works,” “Park, Recreation &
Marine (Park Staff),” “Parks, Recreation & Marine Mainte-
nance,” “Space Permit Fee,” and “Junipero Parking Lot.” The
total estimated charges were $7,041. The letter set forth a
schedule of payment in four equal installments during the
next year. Ruyle and other members of the Peace Network
signed the last page of the letter under a heading reading
“Conditions Accepted.” As signed, this page contained a
handwritten notation at the top, stating that the “signers reser-
ve[d] the right to challenge the total,” but that they would pay
the first of the four installments on March 22. Ruyle paid the
first installment on March 22, in accordance with the hand-
written notation.
The march on March 22 took slightly more than one hour,
and the event concluded with an anti-war rally at Bixby Park.
The district court found that approximately 1,000 people par-
ticipated in the March event. According to Ruyle’s declara-
tion, in contrast to the pre-war rally at the park in February,
no elected officials participated in the March anti-war rally.
As part of the March event, members of the Surfrider Foun-
dation placed surfboards on the beach in the shape of a peace
symbol. The display was visible to participants of the march
as they walked near the beach. The display took place entirely
on the beach, did not interfere with any vehicular or pedes-
trian traffic, and did not result in any damage to the beach.
Following the event, the surfboards were removed from the
beach.
In his initial email, Ruyle had stated that Peace Network
planned to request a waiver of insurance and departmental
services charges. In its March 21 letter granting the permit,
3920 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
the City waived the insurance requirement but did not waive
event-related charges. As he had done after the February
march and rally, Ruyle wrote a letter to the City after the
March event asking for a waiver of charges. Ruyle states in
his declaration that a city official gave “no other guidelines
than simply to write the letter” to ask for a waiver. The only
material differences between Ruyle’s requests for waivers of
charges for the February and March events were descriptions
of event-specific matters such as the march routes.
The City did not waive the departmental services charges
for the March event. In April 2003, the City sent a letter to the
Peace Network members whose signatures (or, in the case of
Diana Mann, whose name had been signed by someone else)
appeared at the bottom of the March 21 letter. The letter
requested payment of $7,041, in the installments specified in
the March letter. The total amount was exactly the same as the
estimate contained in that letter. Part of the total included a
charge of $1,500 for the use of the beach for the surfboard
display. The City’s April letter noted that the first check,
which Ruyle had given to the City on March 22, had been
misplaced. The letter asked that payment on that check be
stopped and that a new check be written for that amount.
Peace Network members did not write a new check or make
any of the requested payments.
The City filed an action in state Superior Court against
Diana Mann and the Peace Network members who had signed
the agreement. The court granted judgment of $5,901 for the
City. That amount excluded the $1,500 charge for the use of
the beach for the surfboard display because, according to the
Superior Court, that charge was “not sufficiently justified as
to actual costs” and was “an improper restraint of expression.”
The Peace Network then filed a “facial challenge” to § 5.60
in federal district court, seeking declaratory and injunctive
relief, compensatory damages, and attorney’s fees and costs.
The complaint alleged that the City’s “past, present and
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3921
threatened future actions” violate the First Amendment. The
district court concluded that the entirety of § 5.60 constitutes
an unconstitutional restraint on speech and assembly and
entered a permanent injunction prohibiting its enforcement.
The City timely appealed.
After the district court’s decision and after initial briefing
was completed on appeal, we decided Santa Monica Food Not
Bombs v. City of Santa Monica (“Food Not Bombs”), 450
F.3d 1022 (9th Cir. 2006), assessing the constitutionality of a
similar ordinance in Santa Monica, California. We asked the
parties to file supplemental briefs addressing our decision in
Food Not Bombs.
II. Standard of Review
We review de novo the district court’s holding of unconsti-
tutionality. Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 648
(9th Cir. 2006). We also review de novo the district court’s
determinations on mixed questions of law and fact that impli-
cate the question of constitutionality. Rosenbaum v. City &
County of San Francisco, 484 F.3d 1142, 1152 (9th Cir.
2007). We generally review for clear error the district court’s
findings of fact. Gaudiya Vaishnava Soc’y v. City & County
of San Francisco, 952 F.2d 1059, 1062 (9th Cir. 1991) (as
amended). However, we conduct an independent review of
the facts for the “issues arising under the First Amendment.”
Rosenbaum, 484 F.3d at 1152.
III. Nature of the Challenge
[1] The Peace Network’s complaint asserts a facial chal-
lenge to § 5.60. As an initial matter, we conclude that the
Peace Network has Article III standing to bring this challenge.
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
3922 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
the plaintiff. Allen v. Wright, 468 U.S. 737, 750-51 (1984)
(internal quotation marks omitted); see Food Not Bombs, 450
F.3d at 1033. Plaintiffs mounting a facial challenge to an ordi-
nance may establish standing by alleging that they have
“modified [their] behavior” as a result of the ordinance, such
as “by choosing locations other than [the areas subject to the
ordinance].” Id. at 1034. A plaintiff “need not apply for a ben-
efit conditioned by a facially unconstitutional law,” United
States v. Baugh, 187 F.3d 1037, 1041 (9th Cir. 1999), but
must demonstrate a “serious[ ] interest[ ] in subjecting [it]self
to” the challenged measure, and must demonstrate that “the
defendant [is] seriously intent on enforcing[ ] the challenged
measure,” NAACP v. City of Richmond, 743 F.2d 1346, 1351
(9th Cir. 1984).
[2] The Peace Network organized two separate events cov-
ered by § 5.60. The City assessed departmental services
charges against the Peace Network for the second event and
brought suit in state court to obtain payment. The Peace Net-
work has provided evidence that it has modified its behavior
as a result of § 5.60 by declining to hold such events in Long
Beach in the future because of the City’s enforcement of the
Ordinance. See Food Not Bombs, 450 F.3d at 1034. The Peace
Network states that if the permanent injunction against the
enforcement of § 5.60 is upheld, it will hold expressive events
in Long Beach. The Peace Network has thus established
injury in fact that is fairly traceable to § 5.60 and that is likely
to be redressed if its First Amendment suit is successful.
The Peace Network claims that several provisions of the
LBMC “allegedly vest[ ] unbridled discretion in a government
official over whether to permit or deny expressive activity.”
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,
755-56 (1998). There are two primary rationales for allowing
this type of facial challenge.
First, the mere existence of the licensor’s unfettered
discretion, coupled with the power of prior restraint,
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3923
intimidates parties into censoring their own speech,
even if the discretion and power are never actually
abused. . . . Second, the absence of express standards
makes it difficult to distinguish, “as applied,”
between a licensor’s legitimate denial of a permit
and its illegitimate abuse of censorial power.
Id. at 757-58; see also S. Or. Barter Fair v. Jackson County,
372 F.3d 1128, 1134-35 (9th Cir. 2004). Hence, “[f]acial
attacks on the discretion granted a decisionmaker are not
dependent on the facts surrounding any particular permit deci-
sion.” Forsyth County v. Nationalist Movement, 505 U.S. 123,
133 n.10 (1992). The Court wrote in Thornhill v. Alabama,
310 U.S. 88, 97-98 (1940) (citations omitted):
[T]he rule is not based upon any assumption that
application for the license would be refused or would
result in the imposition of other unlawful regula-
tions. Rather it derives from an appreciation of the
character of the evil inherent in a licensing system.
The power of the licensor . . . is pernicious not
merely by reason of the censure of particular com-
ments but by reason of the threat to censure com-
ments on matters of public concern. It is . . . the
pervasive threat inherent in its very existence that
constitutes the danger to freedom of discussion. . . .
Where regulations of the liberty of free discussion
are concerned, there are special reasons for observ-
ing the rule that it is the statute, and not the accusa-
tion or the evidence under it, which prescribes the
limits of permissible conduct and warns against
transgression.
To assert this type of facial challenge, a plaintiff must meet
two requirements. First, a plaintiff must satisfy the standing
requirements of Article III by showing that the challenged
provision or provisions apply to its conduct. Members of City
Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798
3924 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
(1984) (“Such holdings invalidated entire statutes, but did not
create any exception from the general rule that constitutional
adjudication requires a review of the application of a statute
to the conduct of the party before the Court.”). As noted
above, the Peace Network has Article III standing.
Second, the challenged ordinance “must have a close
enough nexus to expression, or to conduct commonly associ-
ated with expression, to pose a real and substantial threat of
the identified censorship risks.” City of Lakewood, 486 U.S.
at 759. We conclude that § 5.60 has a sufficient nexus to
expression to satisfy the second requirement. Section 5.60
governs use of the traditional public fora of public streets,
sidewalks, and parks. Indeed, some of the provisions specifi-
cally apply to persons engaged in “expressive activity.” See,
e.g., LBMC § 5.60.040(B) (“[Special event permit] applica-
tions for expressive activities [involving the use of city
streets, sidewalks, or parks] shall be filed in accordance with
subsection D of this section.”). The Peace Network has
engaged in, and seeks to engage in, public marches and rallies
on the streets, sidewalks, and parks of Long Beach. “[M]ass
gatherings [to show support for a cause] bear a sufficient
nexus to conduct commonly associated with expression.” S.
Or. Barter Fair, 372 F.3d at 1136. Section 5.60 regulates
those mass gatherings and therefore has a “close connection
to expression” because it “regulates conduct which is itself
protected speech.” See Gaudiya Vaishnava Soc’y, 952 F.2d at
1062-63.
[3] We therefore conclude that the Peace Network has sat-
isfied the additional requirements to raise a facial challenge
on unbridled discretion grounds.
IV. General Considerations
The First Amendment prohibits Congress from enacting
laws “abridging the freedom of speech, . . . or the right of the
people peaceably to assemble.” U.S. Const. amend. I. The
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3925
Supreme Court has extended the protection of the First
Amendment to the states. Edwards v. South Carolina, 372
U.S. 229, 235 (1963); Thornhill, 310 U.S. at 95; Hague v.
C.I.O., 307 U.S. 496, 512 (1939). Three types of speech regu-
lation are presumptively invalid: regulations on speech pro-
testing government action, regulations affecting speech in a
traditional public forum, and prior restraints. By meeting cer-
tain criteria, content-neutral time, place and manner restric-
tions may overcome the presumption of invalidity.
A. Presumptively Invalid Regulations
1. Regulation of Speech Protesting Government Action
We have recognized that certain types of speech enjoy spe-
cial status. See, e.g., Nat’l Adver. Co. v. City of Orange, 861
F.2d 246, 248 (9th Cir. 1988) (“The first amendment affords
greater protection to noncommercial than to commercial
expression.”). Political speech is core First Amendment
speech, critical to the functioning of our democratic system.
The Peace Network’s protest of the United States military
action in Iraq is the type of speech that “rest[s] on the highest
rung of the hierarchy of First Amendment values.” See Carey
v. Brown, 447 U.S. 455, 467 (1980); see also Garrison v.
Louisiana, 379 U.S. 64, 74-75 (1964) (“[S]peech concerning
public affairs is more than self-expression; it is the essence of
self-government.”); Thornhill, 310 U.S. at 95 (“Those who
won our independence had confidence in the power of free
and fearless reasoning and communication of ideas to dis-
cover and spread political and economic truth. Noxious doc-
trines in those fields may be refuted and their evil averted by
the courageous exercise of the right of free discussion.”).
The Supreme Court has recognized that “the practice of
persons sharing common views banding together to achieve a
common end is deeply embedded in the American political
process.” NAACP v. Claiborne Hardware Co., 458 U.S. 886,
907 (1982) (quoting Citizens Against Rent Control / Coal. for
3926 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
Fair Hous. v. City of Berkeley, 454 U.S. 290, 294 (1981)); see
also Edwards, 372 U.S. at 235 (stating that peaceable assem-
bly at the site of the state government to protest government
action is the “most pristine and classic form” of exercising
First Amendment rights). In United States v. Baugh, we wrote
that the First Amendment “applie[d] with particular force” to
a “march and other protest activities.” 187 F.3d at 1042; see
also Am.-Arab Anti-Discrimination Comm. v. City of Dear-
born, 418 F.3d 600, 611 (6th Cir. 2005) (“[P]arades and pro-
cessions are a unique and cherished form of political
expression, serving as a symbol of our democratic tradition.
There is scarcely a more powerful form of expression than the
political march.”). We have also noted the importance of
timely opportunity to express political views by staging a
political march. City of Richmond, 743 F.2d at 1356
(“[T]iming is of the essence in politics . . . . [W]hen an event
occurs, it is often necessary to have one’s voice heard
promptly, if it is to be considered at all. A delay of even a day
or two may be intolerable when applied to political speech in
which the element of timeliness may be important.” (internal
quotation marks and citation omitted; alterations in City of
Richmond)).
2. Regulation of Speech in Traditional Public Fora
The Supreme Court has established different levels of scru-
tiny for analyzing alleged First Amendment violations,
depending on where the speech takes place. Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46
(1983). In traditional public fora, “the government’s ability to
permissibly restrict expressive conduct is very limited.”
United States v. Grace, 461 U.S. 171, 177 (1983). In such
locations, First Amendment protections are strongest and reg-
ulation is most suspect. Grossman v. City of Portland, 33 F.3d
1200, 1204 (9th Cir. 1994). “Public fora have achieved a spe-
cial status in our law; the government must bear an extraordi-
narily heavy burden to regulate speech in such locales.” City
of Richmond, 743 F.2d at 1355.
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3927
“Public open spaces” such as parks are distinguished from
streets because their use for expressive activities rarely impli-
cates other important governmental interests. Food Not
Bombs, 450 F.3d at 1042. Public parks and sidewalks “are
uniquely suitable for public gatherings and the expression of
political or social opinion.” ACORN v. City of Phoenix, 798
F.2d 1260, 1267 n.5 (9th Cir. 1986). Courts have recognized
a somewhat greater governmental interest in regulating
expressive activity on city streets because of the public safety
concerns raised by vehicular traffic. Id. at 1267. Nonetheless,
we have rejected the proposition that “the Supreme Court’s
designation of streets as public fora” is limited to “sidewalks
and other locales traditionally reserved for public communica-
tion.” Id. at 1266. The Supreme Court has recognized that
“[n]o particularized inquiry into the precise nature of a spe-
cific street is necessary; all public streets are held in the pub-
lic trust and are properly considered traditional public fora.”
Frisby v. Schultz, 487 U.S. 474, 481 (1988).
Traditional public fora gain even more importance when
they are host to core First Amendment speech. See, e.g.,
Hague, 307 U.S. at 515-16. In Grossman v. City of Portland,
we explained that the “venerable tradition of the park as a
public forum has — as suggested by the attendant image of
the speaker on a soapbox — a very practical side to it as well:
parks provide a free forum for those who cannot afford news-
paper advertisements, television infomercials, or billboards.”
33 F.3d at 1205. Government restrictions on the use of public
places such as streets, sidewalks, and parks risk placing
speech on topics of public importance within the purview of
only the wealthy or those who enjoy the support of local
authorities. See id. at 1205 n.8; City of Richmond, 743 F.2d
at 1356 (calling for careful examination of restrictions “when
their effects fall unevenly on different . . . groups in society”).
Section 5.60 requires a permit for “special events” on all
public property within the City of Long Beach, including
streets, sidewalks, and public parks. See LBMC
3928 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
§ 5.60.020(A). “Special events” include parades, demonstra-
tions, and assemblies of any size on public streets and side-
walks if they do not comply with applicable traffic
regulations; organized assemblages of seventy-five or more
people in public places; and other organized activities involv-
ing seventy-five or more persons involving the use of, or hav-
ing an impact on, public property or facilities. LBMC
§ 5.60.010(I)(1)-(3); Long Beach Administrative Regulation
(“AR”) 8-28(IV)(A)(2) (2007). To the extent that the Ordi-
nance regulates the use of public parks, sidewalks, and streets
we analyze its provisions under the standard for traditional
public fora.
3. Regulation by Prior Restraint
Prior restraints on speech are disfavored and carry a “heavy
presumption” of invalidity. Forsyth County, 505 U.S. at 130.
“This heavy presumption is justified by the fact that ‘prior
restraints on speech . . . are the most serious and the least tol-
erable infringement on First Amendment rights.’ ” Grossman,
33 F.3d at 1204 (alteration in Grossman) (quoting Neb. Press
Ass’n v. Stuart, 427 U.S. 539, 559 (1975)); accord Rosen v.
Port of Portland, 641 F.2d 1243, 1246-47 (9th Cir. 1981).
The Supreme Court explained in Ward v. Rock Against Rac-
ism, “[T]he regulations we have found invalid as prior
restraints have ‘had this in common: they gave public officials
the power to deny use of a forum in advance of actual expres-
sion.’ ” 491 U.S. 781, 795 n.5 (1989) (quoting Se. Promotions
Ltd. v. Conrad, 420 U.S. 546, 553 (1975)). A prior restraint
need not actually result in suppression of speech in order to
be constitutionally invalid. “The relevant question [in deter-
mining whether something is a prior restraint] is whether the
challenged regulation authorizes suppression of speech in
advance of its expression . . . .” Id.
In Grossman, we noted that a permitting ordinance that
required a written application before users could hold an orga-
nized demonstration in a public park did not fit entirely within
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3929
“classic prior restraint cases.” 33 F.3d at 1205 n.9 (internal
quotation marks and citation omitted). But we held neverthe-
less that the permitting system still bore “a heavy presumption
against its constitutional validity.” Id. at 1204 (internal quota-
tion marks omitted); see also Forsyth County, 505 U.S. at 130
(applying a “ ‘heavy presumption’ ” against validity of a regu-
lation imposing advance fees on parades and assemblies held
on public property because it was a “prior restraint” on
speech). Section 5.60 is similar to the permitting system in
Grossman, though it reaches a broader range of conduct. Sec-
tion 5.60 regulates not only expressive activity in parks
located in Long Beach, but also any activity on public streets,
sidewalks, and right-of-ways. See LBMC § 5.60.010(I)(1).
Section 5.60 even regulates events that “involve[ ] the use of,
or ha[ve] an impact on, public property or facilities” if such
activities are “likely to require the provision of [enumerated]
city services.” Id. § 5.60.010(I)(3); AR 8-28(IV)(A).
B. Reasonable Time, Place and Manner Restrictions
“[R]easonable time, place, [and] manner restrictions” on
speech are permissible. Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984). Such restrictions can
include permitting requirements for core First Amendment
speech in traditional public fora, id., and they are permissible
if they satisfy four criteria. As the Supreme Court wrote in
Clark, “We have often noted that restrictions of this kind are
valid provided [1] that they are justified without reference to
the content of the regulated speech, [2] that they are narrowly
tailored to serve a significant governmental interest, and [3]
that they leave open ample alternative channels for communi-
cation of the information.” Id. (bracketed numbers added). In
Forsyth County v. Nationalist Movement, 505 U.S. 123, 130
(1992), the Court recognized a fourth criterion: a permitting
scheme “may not delegate overly broad licensing discretion to
a government official.”
The first criterion is that the restriction be content-neutral.
That is, the restriction must be based on something other than
3930 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
the content of the speech. Grace, 461 U.S. at 177. A law is
content-based rather than content-neutral if “the main purpose
in enacting it was to suppress or exalt speech of a certain con-
tent, or it differentiates based on the content of speech on its
face.” ACLU of Nevada v. City of Las Vegas, 466 F.3d 784,
793 (9th Cir. 2006). Though “an improper censorial motive”
is sufficient, such a motive is not necessary to render a regula-
tion content-based. Simon & Schuster, Inc. v. N.Y. State
Crime Victims Bd., 502 U.S. 105, 117 (1991). If a regulation
“distinguish[es] favored speech from disfavored speech on the
basis of the ideas or views expressed,” it is content-based.
Foti v. City of Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998)
(internal quotation marks omitted).
A content-based regulation is generally subject to strict
scrutiny. The government therefore “must show that its regu-
lation is necessary to serve a compelling state interest,” Perry
Educ. Ass’n, 460 U.S. at 45, and that the regulation uses “the
least restrictive means to further the articulated interest,” Foti,
146 F.3d at 636. “[A] content-based restriction on political
speech in a public forum . . . must be subjected to the most
exacting scrutiny.” Boos v. Barry, 485 U.S. 312, 321 (1988).
Under the second criterion, the government must show: (1)
that the governmental interest is substantial and “unrelated to
suppression of expression,” Baldwin v. Redwood City, 540
F.2d 1360, 1365 (9th Cir. 1976); and (2) that the regulation
is narrowly tailored to meet that interest, Ward, 491 U.S. at
797.
The first aspect is substantial governmental interest. The
Supreme Court has recognized substantial governmental inter-
ests in regulating competing uses of public fora, Forsyth
County, 505 U.S. at 130, in maintaining parks in an “attractive
and intact condition,” Clark, 468 U.S. at 296, in regulating
“streets to protect and insure the safety, comfort, or conve-
nience of the public,” Murdoch v. Pennsylvania, 319 U.S.
105, 116 (1943), and in collecting nominal fees to “defray the
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3931
expenses of policing” the regulated activity, id. at 113-14. We
have also recognized as a substantial governmental interest
the need to “provide notice to the municipality of the need for
additional public safety and other services.” Food Not Bombs,
450 F.3d at 1042. Although the public safety interests in regu-
lating street use are substantial, “those interests must give way
on occasion to the temporary dedication of the streets to pick-
eting and parading.” ACORN, 798 F.2d at 1267 n.5.
Three questions guide courts in analyzing narrow tailoring,
the second aspect. First, does the regulation achieve its ends
without restricting substantially more speech than necessary?
This “requirement . . . is satisfied ‘so long as the . . . regula-
tion promotes a substantial government interest that would be
achieved less effectively absent the regulation.’ ” Ward, 491
U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675,
689 (1985)) (second alteration in Ward). Expansive language
can signal the absence of “a close fit with the governmental
interests underlying the permitting requirement.” Food Not
Bombs, 450 F.3d at 1040-42 (comparing a restriction that
applies if an activity “may” implicate a governmental interest
with a restriction that applies if the activity is “likely” to
affect the interest). Second, are there obvious alternatives that
would achieve the same objectives with less restriction of
speech? A city is not required to select the least restrictive
alternative, but “an assessment of alternatives can still bear on
the reasonableness of the tailoring.” Menotti v. City of Seattle,
409 F.3d 1113, 1131 n.31 (9th Cir. 2005); see also City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13
(1993). Third, is a generic regulation needed “as applied to
other speakers,” even if it is not needed in the case at hand?
Galvin v. Hay, 374 F.3d 739, 753 (9th Cir. 2004). This ques-
tion addresses “[t]he multiplied effect of” a particular expres-
sive activity “if many other organizations likewise decided to
engage in this activity on a pervasive or regular basis.”
ACORN, 798 F.2d at 1270; see also Clark, 468 U.S. at 296-
97.
3932 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
The third criterion applicable to time, place and manner
restrictions is that regulations “must leave open ample alterna-
tives for communication.” Forsyth County, 505 U.S. at 130.
Several considerations are relevant to this analysis. First,
“[a]n alternative is not ample if the speaker is not permitted
to reach the intended audience.” Bay Area Peace Navy v.
United States, 914 F.2d 1224, 1229 (9th Cir. 1990) (internal
quotation marks omitted); see also Menotti, 409 F.3d at 1138.
Second, if the location of the expressive activity is part of the
expressive message, alternative locations may not be ade-
quate. Galvin, 374 F.3d at 756; ACORN, 798 F.2d at 1267 n.5.
Third, we consider the opportunity for spontaneity in deter-
mining whether alternatives are ample, particularly for politi-
cal speech. City of Richmond, 743 F.2d at 1356. Fourth, we
consider the cost and convenience of alternatives. City of
Ladue v. Gilleo, 512 U.S. 43, 57 (1994).
Finally, the fourth criterion is the prohibition on regulations
that confer unbridled discretion on a permitting or licensing
official. Shuttlesworth v. City of Birmingham, 394 U.S. 147,
150-51 (1969). Regulations must contain “narrow, objective,
and definite standards to guide the licensing authority,” id.,
and must require the official to “provide [an] explanation for
his decision,” Forsyth County, 505 U.S. at 133. The standards
must be sufficient to “render [the official’s decision] subject
to effective judicial review.” Thomas v. Chi. Park Dist., 534
U.S. 316, 323 (2002). This requirement applies to an official’s
“authority to condition the permit on any additional terms”
not stated in the ordinance. City of Lakewood, 486 U.S. at
772.
V. Analysis of § 5.60
A. Description of the Ordinance
[4] Section 5.60 requires groups to obtain city-issued per-
mits in order to hold “special events” as defined in the Ordi-
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3933
nance.1 LBMC § 5.60.020(A). Permits for special events not
involving expressive activity require at least sixty days
advance notice to the City. By contrast, permits for special
events involving expressive activity require between three and
ten days advance notice, depending on the location of the
planned event. Id. § 5.60.040. Certain events are exempt from
the special event permit requirement. Those events include
funeral processions; activities conducted by governmental
agencies; filming activities governed by another provision of
the municipal code; and “spontaneous parades, assemblies or
demonstrations involving expressive activity” occasioned by
events coming into public knowledge within five days of the
event. Id. § 5.60.030(A).
The City Manager “shall” grant a permit for a special event
if certain criteria are satisfied. Id. § 5.60.040(J)(1)-(13). The
City Manager “may” deny or revoke a permit if certain other
criteria are satisfied. Id. § 5.60.070(A)(1)-(15), (B). A permit-
tee must agree to hold harmless and indemnify the City and
its officers and employees against a broad range of claims and
harms, and must, under certain circumstances, obtain insur-
ance. Id. § 5.60.080. A permittee must pay both a permit fee
and “departmental services charges” to the City unless they
are funded or waived by the City Council. Id. §§ 5.60.050,
5.60.090.
1
The City has asked us to take judicial notice of the Santa Monica ordi-
nance and the City’s recent amendment to § 5.60 concerning the definition
of special events. We agree to take judicial notice of the Santa Monica
ordinance. See Food Not Bombs, 450 F.3d at 1025 n.2 (citing Newcomb
v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977)). We also agree to take judi-
cial notice of the new definition of special events contained in subsection
.010, as interpreted by Long Beach Administrative Regulation AR 8-28,
promulgated on February 7, 2007. Id. at 1031-32; see also City of Lake-
wood, 486 U.S. at 770 (describing the requirements for an administrative
regulation to affect constitutional analysis). As we stated in Food Not
Bombs, “[w]e review only the present version of the ordinance and imple-
menting regulations.” 450 F.3d at 1025. We also note that in an order filed
on January 23, 2007, this court granted the City’s motion to take judicial
notice of Chapter VII of the Chicago Park District Code.
3934 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
Departmental services charges are “the actual costs which
a department of the city incurs in connection with activities
for which a permit is required,” including
costs associated with fire safety, traffic and/or pedes-
trian control, water safety, the closure of streets or
intersections, the diverting of traffic, the salaries of
city personnel involved in administration or coordi-
nation of city services for the event, the cost to the
city to provide support personnel, equipment, materi-
als and supplies, and related city costs such as fringe
benefits or employee overtime.
Id. § 5.60.010(C). Departmental services charges do not
include “costs incurred by the city to provide police protec-
tion to those engaged in ‘expressive activity.’ ” Id. However,
other costs associated with expressive activities — beyond
those associated with “police protection” — are included in
departmental services charges.
“Spontaneous” events are exempt from the permitting
requirement applicable to special events. An organizer of a
spontaneous event must provide at least twenty-four-hour
advance notice to the City. Id. § 5.60.030(A)(5). The City
Manager may impose “reasonable time, place and manner
restrictions” on a spontaneous event. Id. § 5.60.030(B). Fur-
ther, the City Manager may deny permission to hold a sponta-
neous event, based on the same criteria applicable to permits
for special events. Id. §§ 5.60.030(C), 5.60.070. An organiza-
tion holding a spontaneous event is not required to pay the
permit application fee applicable to special events. Id.
§§ 5.60.040(F), 5.60.030(A)(5). However, that organization
may be required to pay departmental services charges unless
those charges are funded or waived by the City Council.
The Peace Network challenges nine features of § 5.60,
appearing in a number of subsections of the Ordinance. We
first address five features that we hold are constitutional. We
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3935
then address four features that we hold are unconstitutional in
whole or in part.
B. Constitutional Features of § 5.60
1. Expressive Activity Distinctions
The Peace Network argues that certain provisions distin-
guishing between “expressive activity” and other activity are
impermissibly content-based because they provide for differ-
ential treatment of activities based on the messages those
activities seek to convey.
[5] “ ‘Expressive Activity’ means conduct, the sole or prin-
cipal object of which is the expression, dissemination or com-
munication by verbal, visual, literary or auditory means of
opinion, views or ideas. Expressive activity includes, but is
not limited to, public oratory and the distribution of litera-
ture.” Id. § 5.60.010(D). It is true that some provisions of
§ 5.60 distinguish between expressive and non-expressive
activity. E.g., id. § 5.60.010(C) (prohibiting the City Manager
from imposing departmental services charges for costs
incurred by the City to provide police protection to people
engaged in expressive activity); id. § 5.60.020(D) (prohibiting
the City Manager from imposing conditions on permits “in a
manner that will unreasonably restrict expressive or other
activity protected by the California or United States constitu-
tions”); id. § 5.60.040(G) (requiring the City Manager to act
on completed applications for permits involving expressive
activities within two business days, to provide the applicant
with written notice explaining the reasons for any denial or
conditional approval, and to consult with the city attorney
before denying or conditionally approving a permit involving
expressive activity).
[6] However, we conclude that these distinctions between
expressive activities and non-expressive activities are permis-
sible. These subsections of § 5.60 are “justified without refer-
3936 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
ence to the content of the regulated speech.” See Clark, 468
U.S. at 293. These subsections do not show that the City has
“adopted [the] regulation of speech because of disagreement
with the message it conveys.” See Ward, 491 U.S. at 791.
Here, the opposite is true, for “the permissive nature of the
[exceptions favoring expressive activity] furthers, rather than
constricts, free speech.” See Thomas, 534 U.S. at 325. All of
the provisions “treat[ ] expressive events more favorably than
others.” Food Not Bombs, 450 F.3d at 1037; cf. Burk v.
Augusta-Richmond County, 365 F.3d 1247, 1254-55 (11th
Cir. 2004) (finding an ordinance restricting public gatherings
to be unlawfully content-based because it was “directed only
to communicative activity, rather than to all activity, and its
applicability turn[ed] solely on the subject matter of what a
speaker might say”).
Further, the Ordinance does not “single[ ] out certain
speech for differential treatment based on the idea expressed,”
see ACLU of Nevada, 466 F.3d at 794 (internal quotation
marks omitted), and it does “not distinguish among the
expressive events based on their content,” see Food Not
Bombs, 450 F.3d at 1037. Identifying “expressive activity”
protected by the First Amendment can sometimes be difficult.
See, e.g., Texas v. Johnson, 491 U.S. 397, 399 (1989) (hold-
ing, in a 5-4 decision, that flag burning is protected activity
under the First Amendment). But such difficulty arises from
the nature of the constitutionally protected speech and the
heightened protection provided by the First Amendment. See,
e.g., Murdoch, 319 U.S. at 115 (“A license tax certainly does
not acquire constitutional validity because it classifies the
privileges protected by the First Amendment along with the
. . . merchandise of . . . peddlers and treats them all alike.
Such equality in treatment does not save the ordinance. Free-
dom of . . . speech . . . [is] in a preferred position.”). It does
not follow that those subsections of § 5.60 that treat expres-
sive activity more favorably than non-expressive activity are
impermissibly content-based. Indeed, we recently held in
Food Not Bombs that comparable provisions of Santa Moni-
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3937
ca’s ordinance, distinguishing between “expressive” and
“non-expressive” events, were permissible. 450 F.3d at 1037.
Following Food Not Bombs, we so hold for these subsections
of 5.60 as well.
2. Conditions on Permits for Special Events
[7] The Peace Network argues that § 5.60.020(D) gives the
City Manager unbridled discretion to impose conditions on
permits to hold special events. We disagree. This subsection
allows the City Manager to impose conditions on permits only
to achieve specified purposes. It provides:
The city manager may condition any permit . . . with
reasonable requirements concerning the time, place
or manner of holding such event as is necessary to
coordinate multiple uses of public property, assure
preservation of public property and public places,
prevent dangerous, unlawful or impermissible uses,
protect the safety of persons and property and to
control vehicular and pedestrian traffic in and
around the venue, provided that such requirements
shall not be imposed in a manner that will unreason-
ably restrict expressive or other activity protected by
the California or United States constitutions.
LBMC § 5.60.020(D) (emphasis added). The subsection then
goes on to provide a non-exhaustive list of conditions that the
City Manager may impose to achieve these specified pur-
poses. These conditions include “accommodation of an
event’s pedestrian and vehicular traffic, including restricting
events to city sidewalks, portions of a city street, or other
public right-of-way,” “provision of a waste management
plan, and the clean up and restoration of the site of the
event,” and “reasonable designation of alternate sites, times,
dates, or modes for exercising expressive activity.” Id.
§ 5.60.020(D)(2), (9), (13).
3938 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
[8] The purposes specified in § 5.60.020(D) for imposing
conditions on permits are objective and relatively precise, and
have no discernable connection to the content of any particu-
lar message. Compare City of Lakewood, 486 U.S. at 753-54,
770 (striking down as allowing unbridled discretion a city
ordinance allowing the mayor to impose “any other terms and
conditions deemed necessary and reasonable” (internal quota-
tion marks omitted)), with United States v. Linick, 195 F.3d
538, 541 (9th Cir. 1999) (upholding a law allowing imposi-
tion of “terms and conditions as the authorized officer deems
necessary to . . . otherwise protect the public interest” (alter-
ation in original; internal quotation marks omitted)). Further,
the subsection authorizes only “reasonable requirements” that
are “necessary” to serve the specified purposes, and provides
that any such requirements must not “unreasonably restrict”
expressive activity. See Menotti, 409 F.3d at 1145 n.63; S. Or.
Barter Fair, 372 F.3d at 1139-41. We also note that
§ 5.60.040(G) requires the City Manager to consult with the
City Attorney and to provide to an applicant a written expla-
nation for a decision that imposes conditions on the permit.
See LBMC § 5.60.040(G). Finally, we note that
§§ 5.60.130(A) and .040(E) allow, in the alternative, a direct
appeal of a permitting decision to either the City Council or
state court.
[9] We therefore conclude that § 5.60.020(D) does not con-
fer “unbridled discretion” on the permitting authority to
impose conditions in violation of the First Amendment.
Although the provision has survived this facial challenge, it
might nonetheless be vulnerable to an as-applied challenge if,
in its implementation, there emerged “a pattern of unlawful
favoritism,” see Thomas, 534 U.S. at 324-25; see, e.g., Shut-
tlesworth, 394 U.S. at 156-59; Cox v. New Hampshire, 312
U.S. 569, 575-77 (1941), or if it resulted in an impermissibly
burdensome time, place or manner restriction, see, e.g.,
Galvin, 374 F.3d at 747 n.5, 752-56; One World One Family
Now v. City & County of Honolulu, 76 F.3d 1009, 1012 (9th
Cir. 1996).
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3939
3. Proof of Indigent Status
The Peace Network also challenges as allowing unbridled
discretion § 5.60.050(B), which allows the City Manager to
require “relevant information and documentation as may, in
the opinion of the city manager or his/her designee, be reason-
ably necessary to verify” the indigent status of a person.2 The
validity of § 5.60.090(E), which imposes departmental ser-
vices charges on a permittee unless he or she qualifies as an
“indigent natural person,” depends in part on the constitution-
ality of subsection .050(B). LBMC §§ 5.60.050(B), .090(E).
[10] Section 5.60.050(B) defines an “indigent natural per-
son” to include any person who is “eligible for county relief
and support” under the California Welfare and Institutions
Code, but the definition “is not limited to” such persons. Id.
§ 5.60.050(B). An indigent natural person who desires to
engage in expressive activity may request a waiver of the per-
mit application fee imposed by subsection .050.3 Id. We con-
clude that the eligibility provision does not confer unbridled
discretion on the City Manager.
[11] First, the definition of indigency based on the Califor-
nia Welfare and Institutions Code is content-neutral and
objective. Section 5.60.050(B) allows the City Manager to
determine which “relevant information and documentation” is
2
The Peace Network’s other challenge to § 5.60.050 addresses the pro-
vision that a permit applicant must pay a fee that is established by the City
Council through a resolution unless the City Council waives the fee. We
address the waiver provision in Part V.C.4, infra, regarding fees and
departmental services charges.
3
The term “indigent natural person” is used in the same fashion in
LBMC § 5.60.090(E). That section imposes departmental services charges
on permittees unless they qualify as an “indigent natural person.” See
LBMC § 5.60.090(E). We reach the same conclusion under that provision
as we do here: The City Manager’s ability to request “relevant information
and documentation” to prove indigent status does not give the public offi-
cial unbridled discretion.
3940 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
“reasonably necessary to verify [indigency] status.” Id.
§ 5.60.050(B). But the documentation requirements do not
affect the definition of indigency. Rather, they merely give
flexibility to the City Manager in determining whether a par-
ticular applicant has satisfied the criteria of the definition. We
do not regard this flexibility as providing the sort of unbridled
discretion that would invalidate the section. A person’s indi-
gent status is not always readily ascertainable. Proof of such
status may come in many forms, depending on the circum-
stances of the applicant. Coupled with this array of potential
forms of proof is the City’s interest in verifying that an appli-
cant requesting a fee waiver is indeed indigent. The Ordi-
nance, which limits the City to “relevant information” that is
“reasonably necessary,” adequately ensures that the choice of
means of proof is not left to the “whim” of the City Manager.
Id. § 5.60.050(B); cf. S. Or. Barter Fair, 372 F.3d at 1139.
Requiring additional limitations governing the type of doc-
umentation the City Manager may request as proof of indi-
gency would be, in the words of Justice Scalia, “insisting
upon a degree of rigidity that is found in few legal arrange-
ments.” See Thomas, 534 U.S. at 325. Moreover, the indi-
gency provisions are designed to “further[ ], rather than
constrict[ ], free speech,” see id., and therefore should be
construed favorably in the absence of evidence of a pattern of
abuse.
[12] The Peace Network makes a related challenge to the
indigency exception, contending that the definition of indigent
natural person, which “is not limited to” a person eligible for
county relief, vests the City Manager with unbridled discre-
tion to decide who else may qualify for the exemption. We
disagree. Indigency is a common term with a well understood
definition. One may disagree, within certain limits, about the
level of income or assets needed to qualify as an indigent
under the Ordinance, but the disagreement will be in a fairly
narrow range. Further, the Ordinance has given a baseline in
specifying that persons “eligible for county relief” qualify as
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3941
indigent. We therefore conclude that the definition of indigent
natural person does not confer unbridled discretion. Like the
documentary provisions, the expansive definition is designed
to further, rather than to restrict, free speech and therefore
should be construed favorably.
We also note that if the application is denied, the City Man-
ager must provide the applicant with a statement explaining
the reasons for denial. LBMC § 5.60.070(C). The applicant
has the opportunity to appeal the denial to the City Council,
id. § 5.60.130(A), or, if the applicant has applied for a special
event permit fewer than thirty days before the event, directly
to state court, id. § 5.60.040(E). For these reasons, the proof
of indigency provision does not give the City Manager unbri-
dled discretion in violation of the First Amendment.
4. Insurance Requirement
Section 5.60.080(B) provides that permittees must “procure
and maintain [an insurance policy] in full force and effect dur-
ing the term of the permit.” The Peace Network argues that
this provision is content-based and allows public officials to
exercise unbridled discretion. We disagree.
Section 5.60.080(C) authorizes the City Manager to waive
the insurance requirement if he determines that the planned
event does not present a “substantial or significant public lia-
bility or property damage exposure for the city or its offi-
cers[.]” Further, § 5.60.080(D) provides an exception to the
insurance requirement, stating that it “shall not be construed
to apply to parades or special events . . . involving expressive
activity which enjoy protection under the United States or
California constitutions[.]” To qualify for this exception, such
parades or special events shall be required to either:
(1) agree to indemnify, protect, defend and hold
harmless the city, its officers and employees against
all claims, damages, expenses, loss or liability of any
3942 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
kind or nature whatsoever arising out of, or resulting
from, the alleged acts or omissions of permittee, its
officers, agents or employees in connection with the
permitted parade, event or activity; or (2) agree to
redesign or reschedule the permitted event to
respond to specific risks, hazards and dangers to the
public health and safety identified by the city man-
ager as being reasonably foreseeable consequences
of the permitted parade or special event[.]
Id.
In Food Not Bombs, we examined Santa Monica’s similar
insurance requirement. 450 F.3d at 1056-57 (Kleinfeld, J.,
writing for the majority); id. at 1049-52 (Berzon, J., dissent-
ing in part). The Santa Monica ordinance required permittees
to obtain insurance “that the Risk Manager determines to be
necessary and adequate under the circumstances” for demon-
strations and parades. Id. at 1028 (Berzon, J., maj. op.) (inter-
nal quotation marks omitted). The ordinance exempted
expressive events from the insurance requirement, so long as
the organizers indemnified the city, “unless there is a specific,
demonstrable history of personal injury or property damage
claims being awarded against the applicant attributable to the
applicant’s conduct of previous events in the City that are
similar in nature to the proposed event.” Id. (internal quota-
tion marks omitted).
The majority of the panel upheld the insurance require-
ment, concluding that it was content-neutral. Id. at 1057
(Kleinfeld, J., writing for the majority). Judge Berzon, writing
for herself, would have struck down the requirement as
content-based. Id. at 1051-52 (Berzon, J., dissenting in part).
The majority observed that
[p]olitical demonstration organizers can . . . avoid
. . . the insurance provision if they cooperate with the
City Manager to design the event “to respond to spe-
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3943
cific risks, hazards and dangers to the public health
and safety identified by the City Manager . . . as
being reasonably foreseeable consequences of the
permitted event.” Thus, most demonstration organiz-
ers will not have to provide insurance and even those
with a destructive history can avoid the insurance
requirement if they choose to work with the City
Manager to avoid repetition of past injuries or prop-
erty damage.
Id. at 1057 (footnote and citation omitted).
[13] The Peace Network argues that by authorizing the
Long Beach City Manager to determine whether insurance is
required, the Ordinance requires the City Manager to evaluate
the content of the message that is conveyed. While we con-
clude below that the indemnification provision in
§ 5.60.080(A), which applies to “[e]ach permit,” is invalid in
the sense that the City may not require a permit applicant to
provide indemnification, we conclude that a city may autho-
rize a permit applicant to provide, at the applicant’s option,
indemnification as an alternative to insurance. Moreover,
Long Beach leaves permit applicants with another alternative
if they wish to hold their planned event — they may redesign
the event. We see nothing to distinguish the LBMC insurance
requirement from the insurance requirement we upheld as
content-neutral in Food Not Bombs. The redesign language in
§ 5.60.080(D) is nearly identical to the language of the alter-
native evaluated in Food Not Bombs. Therefore, because a
“valid . . . alternative” exists, “the insurance provision . . .
present[s] no constitutional problem.” Food Not Bombs, 450
F.3d at 1049-50; cf. id. at 1049-50 (Berzon, J., dissenting in
part) (stating that with a valid indemnification alternative the
insurance provision at issue “would present no constitutional
problem”).
The Peace Network also argues that § 5.60.080(D) gives
the City Manager unbridled discretion to impose or waive
3944 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
insurance requirements. However, the subsection states that
the insurance provision “shall not be construed to apply” to
expressive activities that qualify for the exemption. The
words “shall not” do not connote discretion to require insur-
ance for parades and special events involving expressive
activities. If the availability of the exemption is triggered
because the event involves expressive activity, there are three
alternatives: indemnification (which we hold invalid), rede-
sign of the event, or insurance. The Ordinance does not spec-
ify who selects between these available options. See LBMC
§ 5.60.080(D). The commonsense reading of this subsection
is that the applicant seeking to hold a parade or special event
that involves expressive activity may select between the alter-
natives.
Section 5.60.080(C) is a logical extension of the second
alternative in subsection (D). If there is no need to redesign
or reschedule an expressive event because it poses no substan-
tial risk of public liability or property damage, then the City
Manager can waive the insurance requirement altogether. We
read the mandatory language of subsection (D) in conjunction
with the permissive language of subsection (C) to require the
City Manager to waive the insurance requirement if the event
does not present a substantial risk of public liability or prop-
erty damage, thereby obviating any need to redesign or res-
chedule the event. It would be absurd to require the City
Manager to propose that the event be redesigned or res-
cheduled in situations where the change is not necessary
because the event poses minimal risks of public liability in the
first place. Based on this commonsensical reading of the stat-
ute, we conclude that the insurance waiver provision provides
the City Manager with content-neutral, objective factors
which control and direct the City Manager’s decision whether
to grant a waiver.
[14] We recognize that the Ordinance does not, in terms,
require the City Manager to provide an explanation for the
decision not to waive the insurance requirement. See Forsyth
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3945
County, 505 U.S. at 133. However, it does require the City
Manager to identify the “specific risks, hazards and dangers
to the public health and safety” and to propose that the orga-
nizers “redesign or reschedule” the event in response to those
risks. LBMC § 5.60.080(D). This communication constitutes
a sufficient explanation of the City Manager’s decision. We
also recognize that the Ordinance allows “any person
aggrieved by the issuance, denial, or revocation of a permit”
to appeal the decision to the City Council to obtain a final
determination, which may then be appealed in state court. Id.
§ 5.60.080(A); see id. § 5.60.040(E). The Ordinance does not
prohibit event organizers from using these methods of review
to challenge conditions imposed on permits. See id.
§ 5.60.080(A); see also City of Lakewood, 486 U.S. at 772
(applying the unbridled discretion requirements to an offi-
cial’s “authority to condition the permit on any additional
terms”). For these reasons, the Ordinance does not afford the
City Manager unbridled discretion to exempt an applicant
from the insurance requirement.
5. Criminal Liability for Violation of the Ordinance
[15] The Peace Network contends that the Ordinance is
unconstitutional because it authorizes criminal liability for
unknowing violations of its provisions. According to the
Peace Network, the Ordinance “imposes strict liability on
anyone who participates or engages in, or permits another to
conduct a special event.” The Peace Network has misread the
Ordinance. Section 5.60.120 authorizes a misdemeanor pen-
alty, but does so only for a “person who intentionally violates
any of the provisions of” § 5.60. LBMC § 5.60.120. To the
degree that the Ordinance is otherwise constitutional, a misde-
meanor penalty for intentional violation of its provisions does
not violate the First Amendment.
3946 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
C. Unconstitutional Features of § 5.60
1. “Special” Events
[16] A “special event,” as defined by the Ordinance,
requires a permit issued by the City Manager. There are three
categories of special events under the Ordinance. The Peace
Network argues that requiring a permit for the second and
third categories is unconstitutional. We disagree with its argu-
ments as to the second category, but agree with its argument
as to the third category.
A special event requires a permit if it is conducted “in, on
or upon any city street, sidewalk, alley, park, way, pier, public
place, public property or public right-of-way which is owned
or controlled by the city.” Id. at § 5.60.020(A). The Ordinance
defines “special event” as:
1. Any organized formation, parade, procession,
demonstration or assembly which may include per-
sons, animals, vehicles, or any combination thereof,
which is to assemble or travel in unison on any
street, sidewalk or other public right-of-way owned
or controlled by the city which does not comply with
applicable traffic regulations, laws or controls; or
2. Any organized assemblage of seventy five (75)
or more persons at any public place, property or
facility which is to gather for a common purpose
under the direction or control of a person; or
3. Any other organized activity involving seventy
five (75) or more persons conducted by a person for
a common or collective use, purpose, or benefit
which involves the use of, or has an impact on, pub-
lic property or facilities and which may require the
provision of city public services in response thereto.
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3947
Id. § 5.60.010(I)(1)-(3). The City recently promulgated a reg-
ulation limiting the third category to activities that are “likely
to require the provision of city services” for six specified pur-
poses: “street blockage,” “erecting barriers,” “construction,”
“traffic control,” “crowd control,” or “litter abatement (for
amounts in excess of that normally expected for the public
property or facilities involved).” AR 8-28(IV)(A)(1)-(2).
The Peace Network first argues that because the term
“common purpose” in the second category of special event is
not defined, “[t]he determination of whether a group is assem-
bled for a ‘common purpose’ is, necessarily, a content-based
judgment.” We disagree.
The “common purpose” language in the second category
can be “justified without reference to the content of the regu-
lated speech,” Clark, 468 U.S. at 293, because the provision
applies regardless of whether the people are engaged in an
expressive activity and because it furthers the City’s interest
in receiving advance notice when large groups are planning to
assemble so that it may regulate competing uses — a justifica-
tion unrelated to the content of speech. See Food Not Bombs,
450 F.3d at 1042. The language of the category applies when
the “organized assemblage” is planning “to gather for a com-
mon purpose under the direction or control of a person.”
LBMC § 5.60.010(I)(2) (emphasis added). Without the com-
mon purpose limitation, seventy-five people who happened to
be in a park at the same time and who assembled in an orga-
nized manner in response to police instructions to move to a
different part of the park would require a permit to do so.
The Peace Network next argues that because the second
special event category requires a permit for any “organized
assemblage” of seventy-five or more people at any public
place, without specifying any adverse impact on any substan-
tial governmental interest, it fails the narrow tailoring require-
ment. See LBMC § 5.60.010(I)(1)-(3). We disagree.
3948 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
The second category encompasses only events that take
place “at any public place, property or facility.” Id.
§ 5.60.010(I)(2). Such public places include public open
spaces, where we have held that the substantial governmental
interests are “only to regulate competing uses and provide
notice to the municipality of the need for additional public
safety and other services.” Food Not Bombs, 450 F.3d at
1042. We recognized in Food Not Bombs that those govern-
mental interests are significant, holding that “[g]roups of 150
or more, whether demonstrating or playing soccer, are by any
measure sufficiently large enough to affect or have an impact
on the use of [the City’s] public spaces by other citizens and
therefore to implicate the City’s interest in maintaining the
safe and compatible use of limited public open space.” Id. at
1043 (internal quotation marks omitted). We cautioned, how-
ever, that “a substantially lower number may well not com-
port comfortably with the limited governmental interests at
play in public parks and open spaces.” Id. at 1043 n.17.
[17] The second category of special event applies to groups
of seventy-five or more people conducting activities “at any
public place, property or facility,” exactly half the number we
upheld in Food Not Bombs. LBMC § 5.60.010(I)(2); see 450
F.3d at 1042-43. The Supreme Court has recognized a gov-
ernment’s significant interest in managing competing uses
when large groups of people intend to use public property.
See Thomas, 534 U.S. at 322. Although it is a close question,
we hold that a group of seventy-five people using a public
open space in Long Beach is large enough to warrant an
advance notice and permitting requirement. See Grossman, 33
F.3d at 1206. Advance notice and permitting requirements
applicable to smaller groups would likely be unconstitutional,
unless such uses implicated other significant governmental
interests, or where the public space in question was so small
that even a relatively small number of people could pose a
problem of regulating competing uses. Similarly, advance
notice and permitting requirements for the use of much larger
open spaces than those regulated by the LBMC might be
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3949
unconstitutional even for groups of seventy-five. Because we
hold that the second category is narrowly tailored in public
open spaces, it is necessarily narrowly tailored in other public
spaces such as sidewalks and streets, where the governmental
interests are stronger. See Food Not Bombs, 450 F.3d at 1039
(“[T]he significant governmental interest justifying the
unusual step of requiring citizens to inform the government in
advance of expressive activity has always been understood to
arise only when large groups of people travel together on
streets and sidewalks.”). Compare LBMC § 5.60.010(I)(1)
(requiring a permit for groups of any size using sidewalks and
streets when the use “does not comply with applicable traffic
regulations”), with id. § 5.60.010(I)(2) (requiring a permit for
groups of seventy-five or more persons “at any public place,
property, or facility”).
Finally, the Peace Network argues that the third category of
special event is not narrowly tailored to serve a substantial
governmental interest. We agree.
The distinction between the second category of “special
event,” defined as “[a]ny organized assemblage of seventy
five (75) or more persons at any public place” and the third
category of “special event,” defined as “[a]ny other organized
activity involving seventy five (75) or more persons” in a
public place is discernible, but only with some effort. As we
construe the Ordinance, an “organized activity” in a public
place is not necessarily an “organized assemblage.” For
example, a group might organize a “5K Fun Run” in which
fifty people race. Course monitors, first aid personnel, and
spectators might be stationed along the course. This “orga-
nized activity” could easily “involv[e] seventy five (75) or
more persons” and would be “conducted . . . for a common
or collective . . . purpose.” LBMC § 5.60.010(I)(3). Yet if the
runners, spectators, course monitors, and first aid personnel
never gather together in one place, it is possible that this event
might never amount to an “organized assemblage of seventy
five (75) or more persons.” Id. § 5.60.010(I)(2).
3950 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
It is unclear to us whether the third category is confined to
events in public places. If it is not so confined, an advance
permitting requirement cannot be justified, as it can be for the
second category, on the ground of regulating competing uses
in such places. But even if the third category is confined to
events in public places, it is still not narrowly tailored.
[18] The critical qualifying criterion for inclusion in the
third category is that the event “may require the provision of
city public services in response thereto.” LBMC
§ 5.60.010(I)(3). If we look only to the text of the Ordinance,
the possibility of requiring the provision of any city public
service — no matter how trivial the service — is enough to
qualify the event for inclusion in the third category. As indi-
cated above, the City has recently promulgated a regulation in
an attempt to narrow the definition of city public services
under the third category. The six services listed in the new
regulation — any one of which would qualify the event as a
special event requiring an advance permit — are “street
blockage,” “erecting barriers,” “construction,” “traffic con-
trol,” “crowd control,” or “litter abatement.” We hold that this
regulation has not sufficiently narrowed the definition of city
public services that may be required by an expressive event
to satisfy the narrow tailoring requirement.
In Food Not Bombs, we upheld an ordinance that required
a permit for any “march, procession, walk, run or assembly on
public sidewalks or City park paths” that was “likely to [ ]
interfere with the free use of any public way . . . or not com-
ply with traffic regulations.” 450 F.3d at 1038-39 (internal
quotation marks omitted; second alteration in Food Not
Bombs; emphasis removed). That is, we held that the permit-
ting requirement was valid to the extent that the event was
likely to interfere with the use of public ways or to violate
traffic regulations. We think it is also safe to say that a per-
mitting requirement would be valid to the extent that the event
was likely to pose a threat to public safety.
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3951
But the third category, described in § 5.60.010(I)(3), even
as modified by the recent regulation, includes events that may
require nothing more than city public services to deal with lit-
ter. The City has offered no argument that litter abatement is
a substantial governmental interest. In Schneider v. New Jer-
sey, the Supreme Court held that legislation enacted to further
the governmental interest in
keep[ing] the streets clean and of good appearance is
insufficient to justify an ordinance which prohibits a
person rightfully on a public street from handing lit-
erature to one willing to receive it. Any burden
imposed upon the city authorities in cleaning and
caring for the streets as an indirect consequence of
such distribution results from the constitutional pro-
tection of the freedom of speech[.]
308 U.S. 147, 162 (1939). Unlike the government’s interest in
regulating competing uses of park space, preserving free use
of public ways, enforcing traffic rules or ensuring public
safety, the government’s interest in litter abatement is not suf-
ficient to justify a prior restraint on an expressive activity
through a permitting requirement.
Three of the other specified city public services are clearly
related to free use of public ways, traffic violations or public
safety, and would thus be permissible bases for requiring
advance permits: “street blockage,” “erecting barriers,” and
“traffic control.” The two remaining city public services are
less clearly related to substantial governmental interests —
“construction” and “crowd control.” These two services could
be sufficiently related, depending on the type and purpose of
the construction and crowd control, but a more precise defini-
tion would be needed before we could conclude that they
were.
The government has the burden of showing that a restric-
tion is narrowly tailored. Bay Area Peace Navy, 914 F.2d at
3952 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
1227. We conclude that the City has failed to carry its burden
to show that the definition of the third category of special
event, described in § 5.60.010(I)(3) and the accompanying
administrative regulation, is narrowly tailored to serve a sig-
nificant governmental interest.
2. “Spontaneous” Events
“Spontaneous” events are defined as “parades, assemblies
or demonstrations involving expressive activity and which are
occasioned by news or affairs coming into public knowledge
within five (5) days of such parade, assembly or demonstra-
tion.” LBMC § 5.60.030(A)(5). The Peace Network argues
that the provisions governing “spontaneous” events are not
narrowly tailored and do not provide sufficient alternative
means of communication.4 We agree.
Spontaneous events are not subject to the permitting
requirements applicable to “special” events. Id. However,
organizers who wish to hold spontaneous events are required
to “give written notice to the city manager at least twenty four
(24) hours prior to such parade or assembly.” Id. The twenty-
four-hour advance notice requirement for spontaneous events
is less demanding than the three-, five- or ten-day notice
requirements for “special” events involving expressive activ-
ity. LBMC § 5.60.040(D) (requiring three-day advance notice
for events held on “sidewalks,” “parks,” or “waterways and
piers,” five-day notice for “alleys and other rights-of-way
other than sidewalks,” and ten-day notice for “streets, high-
ways and thoroughfares”).
The City Manager may impose “reasonable time, place and
manner restrictions” on a spontaneous event. Id.
§ 5.60.030(B). Further, the City Manager may deny permis-
sion to hold a spontaneous event based on the same criteria
4
The Peace Network does not challenge the notice requirements for
non-spontaneous events. Cf. Food Not Bombs, 450 F.3d at 1043-45.
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3953
applicable to a special event. Id. § 5.60.030(C). Such criteria
include, inter alia, unreasonable disruption of traffic, unrea-
sonable interference with access to police or fire stations, and
undue hardship to adjacent businesses or residents. Id.
§ 5.60.070(A).
Courts have considered several factors in determining the
validity of requirements applicable to expressive activity in
response to late-breaking news or to issues of immediate or
urgent concern. These factors include the ability of individu-
als to respond quickly to events or issues of concern, the
scope of the regulation, and available alternative means of
expression. See Food Not Bombs, 450 F.3d at 1046-47. We
consider these factors in turn.
First, as just noted, the Ordinance requires groups to give
the City at least twenty-four-hours advance notice before
holding a “spontaneous” event. The Supreme Court has
observed that “timing is of the essence in politics . . . . [W]hen
an event occurs, it is often necessary to have one’s voice
heard promptly, if it is to be considered at all.” Shuttlesworth,
394 U.S. at 163. “[T]he change in timing [imposed by an
advance notice requirement] will alter the potential impact of
[the participants’] speech. For speech that is truly time sensi-
tive, the precise spontaneous moment will be lost.” Food Not
Bombs, 450 F.3d at 1046. “By requiring advance notice, the
government outlaws spontaneous expression. Immediate
speech can no longer respond to immediate issues.” City of
Richmond, 743 F.2d at 1355; cf. Ariz. Right to Life Political
Action Comm. v. Bayless, 320 F.3d 1002, 1008 (9th Cir. 2003)
(“To suggest that the [twenty-four-hour] waiting period is
minimal ignores the reality of breakneck political campaign-
ing and the importance of getting the message out in a timely,
or, in some cases, even instantaneous fashion.”). A twenty-
four-hour advance notice requirement for a spontaneous event
is not categorically unconstitutional. But it may be so,
depending on factors such as the definition of a spontaneous
event and the availability of alternative means of expression.
3954 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
Second, a spontaneous event includes all “[s]pontaneous
parades, assemblies, or demonstrations involving expressive
activity” occasioned by “news or affairs coming into public
knowledge withing five (5) days of such parade, assembly or
demonstration[.]” LBMC § 5.60.030(A)(5). That is, a sponta-
neous event would be a “special event” requiring a formal
permit were it not for the time-sensitivity of the event. A
“demonstration” is separately defined in the Ordinance as
“any formation, procession or assembly of persons for the
purpose of expressive activity, who intend to or do assemble
or travel in unison on any street, sidewalk or other public
right-of-way owned or controlled by the city in a manner that
does not comply with normal or usual traffic regulations, laws
or controls.” Id. § 5.60.010(B). However, “parade” and “as-
sembly” are not separately defined. We may reasonably
assume, even without a separate definition, that a “parade” is
a procession that takes place on a public street or other public
right-of-way.
But the definition of an “assembly” that constitutes a spon-
taneous event is not so obvious. The definition of a “special
event” requiring a permit includes “[a]ny organized assem-
blage of seventy five (75) or more persons in any public
place, property or facility which is to gather for a common
purpose under the direction or control of a person.”5 Because
a spontaneous event is the same thing as a special event but
for its time sensitivity, we take the definition of “assembly”
to be at least as broad as “organized assemblage.” The defini-
tion of “assembly” may well be broader, but for present pur-
5
The definition of a special event also includes “[a]ny other organized
activity involving seventy five (75) or more persons conducted by a per-
son for a common or collective use, purpose or benefit which involves the
use of, or has an impact on, public property or facilities and which may
require the provision of city or public services in response thereto.” We
hold that this definition of special event is unconstitutional because it is
not narrowly tailored. See supra Part IV.C.1. We do not rely on this defi-
nition for purposes of determining the definition of “assembly,” as that
term is used in defining a spontaneous event.
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3955
poses that does not matter, for the definition of organized
assemblage includes assemblies that take place on the lawn in
front of a city hall, in a public park, on a publicly owned soc-
cer field, or possibly even on a privately owned but publicly
accessible open space. Thus, the spontaneous event regulation
— and the twenty-four-hour advance notice requirement —
apply to assemblies in places where there is no threat of dis-
ruption of the flow of pedestrian or vehicular traffic.
Third, alternative means of expression are limited for peo-
ple who cannot comply, or who could comply only with diffi-
culty, with the twenty-four-hour advance notice requirement.
We wrote in Food Not Bombs, “[T]o comport with the First
Amendment, a permitting ordinance must provide some alter-
native for expression concerning fast-breaking events.” 450
F.3d at 1047. Therefore, we “consider . . . whether the
[LBMC] advance notice requirement, including the spontane-
ous expression exception, overall provides adequate alterna-
tives for expression, both planned and spontaneous.” Id. at
1046; see also Ctr. for Fair Pub. Policy v. Maricopa County,
336 F.3d 1153, 1170 (9th Cir. 2003) (“The Supreme Court
generally will not strike down a governmental action for fail-
ure to leave open ample alternative channels of communica-
tion unless the government enactment will foreclose an entire
medium of public expression across the landscape of a partic-
ular community or setting.” (citation and internal quotation
marks omitted).
[19] We conclude that the regulation of “spontaneous”
events under the Ordinance is not narrowly tailored to regu-
late only events in which there is a substantial governmental
interest in requiring such advance notice. The regulation
requires twenty-four-hour advance notice irrespective of
whether there is any possibility that the event will interfere
with traffic flow. Further, the regulation fails to provide
ample alternative means of communication for people wish-
ing to participate in spontaneous expressive events.
3956 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
The regulation of spontaneous events under the Ordinance
stands in stark contrast to the Santa Monica spontaneous
event regulation that we recently upheld in Food Not Bombs.
There, “with respect to time-sensitive speech,” large groups
had three alternatives to providing notice before such an
event. First, the City Hall lawn was open to any group wish-
ing to engage in speech. Food Not Bombs, 450 F.3d at 1048.
Second, a “safe harbor provision” described formations for
sidewalk marches that would not require a permit and that
would be available for “groups as large as 1,999.” Id. Third,
the ordinance explicitly exempted “unorganized” gatherings
from the provisions. Id. at 1049; see City of Richmond, 743
F.2d. at 1355-56 (“[T]he delay inherent in advance notice
requirements inhibits speech. By requiring advance notice, the
government outlaws spontaneous expression. Immediate
speech can no longer respond to immediate issues. The quan-
tity of effective speech is limited.”).
3. Hold-harmless and Indemnification Clauses
The Ordinance contains a broadly worded clause under
which a permittee is required to agree to hold harmless and
indemnify the City for harm arising out of the permitted activ-
ity. LBMC § 5.60.080(A). The permit application form con-
tains an even more broadly worded clause. These
requirements apply to “[e]ach permit” and differ from the
indemnification alternative to insurance set forth in
§ 5.60.080(D). The Peace Network argues that these clauses
are unconstitutional because they are not narrowly tailored to
serve a significant governmental interest. We agree.
The hold-harmless and indemnity clause of the Ordinance
provides, in relevant part:
Each permit shall expressly provide that the permit-
tee agrees to defend, protect, indemnify and hold the
city, its officers, employees and agents free and
harmless from and against any and all claims, dam-
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3957
ages, expenses, loss or liability of any kind or nature
whatsoever arising out of, or resulting from, the
alleged acts or omissions of permittee, its officers,
agents or employees in connection with the permit-
ted event or activity[.]
LBMC § 5.60.080(A). The permit application form requires
not only that permittees agree to hold harmless and indemnify
the City for expenses resulting from “acts or omissions” of the
“permittee, its officers, agents or employees.” It also requires
that permittees agree that their “organization will hold the
City harmless from any liability caused by the conduct of the
event.” (Emphasis added.) It states that “[t]he City will not be
liable for any mishaps or injuries associated with the event,”
and goes on to provide that “[f]ull responsibility for activities
at the event will be assumed by the organization.”
We evaluate not only the text of the Ordinance, but also the
manner in which it has been implemented by governing
authority. See Ward, 491 U.S. at 795-96 (including the admin-
istrative implementation of a challenged provision in the
Court’s constitutional analysis); cf. Forsyth County, 505 U.S.
at 131 n.9 (examining the language of a permit application
form to determine how the local government interpreted an
ordinance provision). The terms “hold-harmless clause” and
“indemnity clause” often refer to the same thing — an agree-
ment under which “one party agrees to answer for any . . . lia-
bility or harm that the other party might incur.” Black’s Law
Dictionary 784 (8th ed. 2004) (defining “indemnity clause,”
noting that the clause is “[a]lso termed hold-harmless clause;
save-harmless clause” (emphasis in original)).
Another provision of the Ordinance provides that “depart-
mental services charges” may be assessed against a permittee,
except that such charges may not include a charge for police
protection of the permittees. LBMC § 5.60.010(C); see For-
syth, 505 U.S. at 133-36; Food Not Bombs, 450 F.3d at 1049.
The Peace Network has not challenged the assessment of
3958 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
departmental services charges except (as we discuss in the
next section) to the extent that the City Manager has unbridled
discretion to decide whether such charges will be assessed in
a particular case. For purposes of our analysis of the hold-
harmless and indemnity clauses, we assume that the assess-
ment of departmental services charges, as those charges are
defined in the Ordinance, is permissible. The question before
us, therefore, is whether the City may require the permittees
to hold harmless and indemnify the City for the remaining
costs specified in the clauses.
The clauses, taken together, require permittees (1) to agree
to compensate the City for any “damages, expenses, loss or
liability . . . arising out of or resulting from the alleged actions
or omissions” of permittees; (2) to agree to hold the City
harmless for “any liability caused by the conduct of the event”
to permittees; and (3) to agree to reimburse the City for “any
liability caused by the conduct of the event” to third parties.
The phrase “any liability caused by the conduct of the event”
is susceptible to a broad reading, encompassing liability
caused by the acts or omissions of any person or entity
involved in the event, including acts and omissions not only
of the permittees but also of the City and third parties.
[20] We conclude that the clauses are not narrowly tailored
to serve a substantial governmental interest. In performing our
narrow tailoring analysis, we ask whether the clauses serve a
substantial governmental interest without restricting substan-
tially more speech than necessary, and whether there are obvi-
ous alternatives that would achieve the same objectives while
restricting less speech. We hold that the clauses are not nar-
rowly tailored in three respects.
[21] First, the clauses require that the permittees compen-
sate the City for any “damages, expenses, loss or liability . . .
arising out of . . . the alleged acts or omissions of permittee.”
LBMC § 5.60.080(A). The permit application further requires
permittees to indemnify the City for any “mishaps or inju-
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3959
ries,” intentional or otherwise, that are “associated with the
event.” It is well established that governments may not “re-
coup costs that are related to listeners’ reaction” to speech.
Forsyth County, 505 U.S. at 135 n.12. The Supreme Court
explained in Forsyth County that recouping such costs is
unconstitutional because “[s]peech cannot be financially bur-
dened, any more than it can be punished or banned, simply
because it might offend a hostile mob.” Id. at 134-35. The
Ordinance specifically provides that the cost of providing
police protection is excluded from “departmental services
charges,” see LBMC § 5.60.010(C), but the clauses would
require permittees to compensate the City for more than just
“departmental services charges.” The indemnification and
hold-harmless clauses contain no exclusion for losses to the
City occasioned by the reaction to the permittees’ expressive
activity. The clauses thus allow the City impermissibly to
shift some of the costs related to listeners’ reactions to speech
from the City to the permittees.
[22] Second, the clause contained in the permit application
requires that permittees hold the City harmless for “any liabil-
ity caused by the conduct of the event” — including, under a
broad reading of this language, liability of the City to the per-
mittees. That is, the clause requires that the permittees agree,
as a condition of obtaining a permit to engage in expressive
speech, to forgo recovery on any cause of action they might
otherwise have against the City. The clause encompasses not
only liability for physical harm to the permittees, but also for
deprivation of permittees’ constitutional rights. Compare gen-
erally Orin v. Barclay, 272 F.3d 1207, 1216 (9th Cir. 2001)
(holding in a § 1983 action that state officials were not enti-
tled to qualified immunity for limiting the message of a
speaker who was protected by First Amendment). We think
it obvious that permittees cannot be required to waive their
right to hold the City liable for its otherwise actionable con-
duct as a condition of exercising their right to free speech.
[23] Third, the clause in the permit application requires that
permittees hold the City harmless for “any liability caused by
3960 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
the conduct of the event” to third parties. The permit applica-
tion requires permittees to take “[f]ull responsibility for activ-
ities at the event.” The provision requires permittees to
assume legal and financial responsibility even for those “ac-
tivities at the event” that are outside the control of the permit-
tee, indeed including activities of the City. In NAACP v.
Claiborne Hardware Co., the Supreme Court reviewed the
damages awards from a civil rights boycott in Mississippi and
explained that liability for costs arising out of protected
expressive activity is limited by the amount of control the
speaker exerts over the actors and the message of the speech.
458 U.S. at 916-20. The Court held that “the presence of
activity protected by the First Amendment imposes restraints
on the grounds that may give rise to damages liability and on
the persons who may be held accountable for those damages,”
id. at 916-17, and declined to impose liability “merely
because an individual belonged to a group, some members of
which committed acts of violence.” Id. at 920. The Court
wrote that “[f]or liability to be imposed by reason of associa-
tion alone, it is necessary to establish that the group itself pos-
sessed unlawful goals and that the individual held a specific
intent to further those illegal aims” because “ ‘[i]n this sensi-
tive field, the State may not employ “means that broadly stifle
fundamental personal liberties when the end can be more nar-
rowly achieved.” ’ ” Id. (quoting Carroll v. Princess Anne,
393 U.S. 175, 183-84 (1968)). Requiring permittees to com-
pensate third parties for harm caused by hecklers, counter-
protesters, or other persons not part of permittees’ organiza-
tion restricts substantially more speech than the liability found
unconstitutional in Claiborne Hardware. See 458 U.S. at 916-
17, 918-19. Similarly, requiring permittees to compensate
third parties for harm caused by acts and omissions of the
City impermissibly restricts speech.
The City argues that the clauses should be upheld because
we did not strike down similar provisions in Food Not Bombs.
For two reasons, we disagree. First, the clauses in this case are
broader than the provisions upheld in Food Not Bombs. See
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3961
450 F.3d at 1056 (Kleinfeld, J., writing for the majority). In
that case, Santa Monica had imposed a hold-harmless provi-
sion that was limited to “all claims, damages, expenses, [and]
loss or liability” resulting from “alleged willful or negligent
acts or omissions of permittee, its officers, agents, or employ-
ees in connection with the permitted event or activity.” Id. at
1056 n.10 (internal quotation marks omitted).
Second, although we did not address the issue of narrow
tailoring in Food Not Bombs because plaintiffs had challenged
the provision only on the ground that it was content-based, id.
at 1058 (Wardlaw, J., concurring), our conclusion in this case
is supported by the comments of two of the judges on the
Food Not Bombs panel. 450 F.3d at 1052 (Berzon, J., dissent-
ing in part); id. at 1058 (Wardlaw, J., concurring). Judge Ber-
zon wrote that the indemnification provision in that case was
“not narrowly tailored to the governmental interest in protect-
ing the City from bearing costs arising from injuries or other
liabilities due to the permittees’ wrongful conduct of the event
or conditions at the site.” Id. at 1052 (Berzon, J., dissenting
in part). Judge Wardlaw acknowledged that the contention
that the provision was not narrowly tailored “might have been
the better argument,” but in her view, the argument had been
waived because the plaintiff had failed to raise it. Id. at 1058
(Wardlaw, J., concurring).
4. Funding and Waiver of Permit Fee
and Departmental Services Charges
The Ordinance authorizes the imposition of a fee for a per-
mit to hold a “special event,” as well as the imposition of “de-
partmental services charges” for costs incurred by the City as
a result of either “special” or “spontaneous” events. The Ordi-
nance allows the City, in its discretion, to fund or waive the
permit fee and the departmental services charges. The Peace
Network argues that the funding and waiver provision allows
the exercise of unbridled discretion and is therefore unconsti-
tutional. We agree.
3962 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
The Ordinance provides that “a permit fee” “shall be estab-
lished by the city council by resolution,” but that the fee may
be “funded or waived by council resolution or ordinance.”
LBMC § 5.60.050(A). The Ordinance further provides that
“departmental services charges” shall be assessed against a
“permittee.” Id. §§ 5.60.090(a), 5.60.010(C). In this context,
the term “permittee” appears to include both someone who
has been granted a permit to hold a “special event,” as well
as someone who is exempt from the formal permit process but
has been given permission to hold a “spontaneous” event. The
Ordinance provides that departmental services charges may
be “funded, partially funded or waived by action of the city
council.” Id. § 5.60.090(A). The Ordinance does not specify
criteria for determining whether those fees and charges will
be funded or waived by the City Council.
We note at the outset that the unbridled discretion argument
is somewhat unusual in this case. Here, the discretion to fund
or waive the fees and charges rests in the hands of the City
Council — the elected, legislative body of the City. Unbridled
discretion challenges typically arise when discretion is dele-
gated to an administrator, police officer, or other executive
official. See, e.g., Thomas, 534 U.S. at 318 (Chicago Park
District); Forsyth County, 505 U.S. at 132 (county administra-
tor); Cox, 312 U.S. at 576 (licensing board); Menotti, 409
F.3d at 1144 (police officers); S. Or. Barter Fair, 372 F.3d at
1137 (Department of Human Services); Linick, 195 F.3d at
542 (Forest Service). But see City of Richmond, 743 F.2d at
1357 (City Council). Delegation in the administrative law
context refers to delegation of legislative authority to the
executive branch. See, e.g., United States v. Mead Corp., 533
U.S. 218, 226-27 (2001). In the First Amendment context,
some of the delegation of authority concerns are the same,
such as lack of accountability and inability to obtain effective
judicial review. See Freedman v. Maryland, 380 U.S. 56, 57
(1965). Two other concerns, largely unrelated to delegation,
are relevant to our First Amendment analysis: the need for
narrow tailoring, Gaudiya Vaishnava Soc’y, 952 F.2d at 1065,
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3963
and the desire to eliminate the opportunity for officials to
engage in content-based discrimination through the exercise
of discretion, Forsyth County, 505 U.S. at 133. Those con-
cerns are relevant to a First Amendment analysis even if the
discretion remains with a legislative body and has not been
delegated to an administrative official.
[24] The permitting scheme of the Ordinance requires orga-
nizers to come to the City for permission to hold an expres-
sive event. If a legislative body retains discretion to make an
important decision as part of that permitting scheme — here,
whether to fund an event or to waive fees and charges — that
discretion is distinct from the general discretion a legislative
body has to enact (or not enact) laws. Absent a preexisting
permitting scheme, a city council could not in advance impose
service charges or other fees on a group seeking to hold a
demonstration in a public forum. Cf. Simon & Schuster, Inc.,
502 U.S. at 115-16; Rust v. Sullivan, 500 U.S. 173, 194-95,
199-200 (1991). The Long Beach City Council’s reserved
authority to waive or fund charges is thus unlike its usual leg-
islative authority. We conclude that in the First Amendment
context, where a legislative body has enacted a permitting
scheme for expressive conduct but has reserved some deci-
sionmaking authority for itself under that scheme, that
reserved authority is vulnerable to challenge on grounds of
unbridled discretion.
Our conclusion is supported by Shuttlesworth v. City of Bir-
mingham, in which the Supreme Court evaluated an ordinance
requiring participants in parades and other public demonstra-
tions to obtain a permit from the “City Commission,” 394
U.S. at 148, which was “the governing body of the City of
Birmingham,” Shuttlesworth v. City of Birmingham, 281 Ala.
542, 544 (1967). The Court concluded that because the city’s
“ordinance . . . conferred upon the City Commission virtually
unbridled and absolute power to prohibit” parades and dem-
onstrations, Shuttlesworth, 394 U.S. at 150, it was facially
unconstitutional. See id. at 151. The Tenth Circuit reached a
3964 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
similar conclusion in Association of Community Organiza-
tions for Reform Now (ACORN) v. Municipality of Golden,
744 F.2d 739, 747 (10th Cir. 1984). The court held that the
exercise of unbridled discretion by a city council in a permit-
ting scheme was unconstitutional. It wrote:
We fail to see how it matters for First Amendment
purposes whether unguided discretion is vested in
the police or the city council. Vesting either author-
ity with this discretion permits the government to
control the viewpoints that will be expressed.
Whether the city council or the police exercise this
power, we believe that it runs afoul of the basic prin-
ciple that “forbids the government from regulating
speech in ways that favor some viewpoints or ideas
at the expense of others.”
Id. at 747 (quoting Taxpayers for Vincent, 466 U.S. at 804).
We disagree with the apparently contrary conclusion of the
California Court of Appeal in Long Beach Lesbian & Gay
Pride, Inc. v. City of Long Beach, 14 Cal. App. 4th 312, 344
(1993) (“It is not a delegation of power to an official but a
recognition of the innate authority of the City’s legislative
body. The city council has the power to grant special permits,
and to amend Chapter 5.60; the mere existence of that poten-
tial does not present a case of unguided discretion.”).
[25] The City has pointed to no provision of the Ordinance,
or to any implementing regulation, that guides the City Coun-
cil’s decision whether to fund or waive fees and charges. The
lack of specific articulated bases for making this decision
compels the conclusion that the City Council has unconstitu-
tional unbridled discretion. See City of Richmond, 743 F.2d at
1357 (“The dangers of discretion are particularly evident in
parade permit schemes, where waivers will often be sought
for politically controversial causes. It is precisely when politi-
cal and social pressures are most likely to affect decisionmak-
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3965
ing that objective standards to govern discretion are most
essential.” (internal quotation marks omitted)).
The City argues, based on Thomas, that because the waiver
provision is permissive it cannot be an unconstitutional
infringement on speech. In Thomas, the Supreme Court held
that the “permissive nature” of a provision that allowed city
officials to grant a permit for an expressive event despite an
application’s “fail[ure] to meet . . . technical requirements,”
so long as a waiver did not harm the “policies furthered by the
application requirements,” was not unconstitutional. 534 U.S.
at 325. The Court wrote that the provision “furthers, rather
than constricts, free speech.” Id. The Court added, “Granting
waivers to favored speakers (or, more precisely, denying them
to disfavored speakers) would of course be unconstitutional,
but we think that this abuse must be dealt with if and when
a pattern of unlawful favoritism appears, rather than by insist-
ing upon a degree of rigidity that is found in few legal
arrangements.” Id. The challenged provision in Thomas is
strikingly dissimilar to the provision in our case. In Thomas,
the provision operated only in the narrow circumstance where
the permit application was technically deficient. The provi-
sion then provided a generous criterion for forgiving the tech-
nical defect and allowing the event to go forward despite the
defect. By contrast, this Ordinance authorizes the City Coun-
cil to decide whether to fund or waive fees and charges for all
permissive events subject to the Ordinance, not limited to
events for which a permit application was technically defi-
cient, and authorizes the City Council to make that decision
with no governing criteria whatsoever.
The City argues that the City Council has not, in fact, used
its authority to fund or waive fees and charges based on the
content of the expressive activity. Even if this were so, it
would be irrelevant. The question is not whether a city has
unlawfully favored certain messages or certain kinds of
speech. The question is whether the ordinance in question
allows the City to do so. A presumption that a city official
3966 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
“will act in good faith and adhere to standards absent from the
ordinance’s face . . . is the very presumption that the doctrine
forbidding unbridled discretion disallows.” City of Lakewood,
486 U.S. at 770.
Although we need not do so for the disposition of this case,
we note that, contrary to the City’s argument, the record con-
tains evidence of content-based favoritism. The Peace Net-
work held two similar events, separated by less than two
months, both with at least 1,000 attendees. For the February
event, held before the United States initiated hostilities in Iraq
and attended by government officials, the City assessed no fee
or charges. For the March event, held after the commence-
ment of hostilities in Iraq and not attended by government
officials, the City assessed charges of $7,041. This favoritism
is a manifestation of the very dangers inherent in unbridled
discretion.
The Peace Network does not argue that, in the absence of
unbridled discretion, the provisions allowing the assessment
of fees and charges are unconstitutional. We therefore do not
address the issue whether, absent the authority to exercise
unbridled discretion to fund or waive the fees and charges, the
provisions allowing their assessment are narrowly tailored
and allow ample alternatives for speech.
VI. Severability
[26] The district court found that Section 5.60 was a
content-based restriction on free speech and issued a perma-
nent injunction against enforcement of the Ordinance in its
entirety. We conclude that some features are constitutional
and that others are unconstitutional. The parties did not brief
the issue of severability before the district court or this court.
Severability of a local ordinance is a question of state law.
City of Lakewood, 486 U.S. at 772; Tucson Woman’s Clinic
v. Eden, 379 F.3d 531, 556-57 (9th Cir. 2004) (as amended).
We remand so that the district court may conduct the sever-
LONG BEACH AREA PEACE NETWORK v. LONG BEACH 3967
ability analysis in the first instance after briefing from the par-
ties.
VII. Conclusion
For the foregoing reasons, we hold that some features of
LBMC § 5.60 are constitutional and that others are unconsti-
tutional. We remand to the district court for further proceed-
ings consistent with this opinion.
AFFIRMED in part; REVERSED in part; REMANDED.
BERZON, Circuit Judge, concurring:
I concur fully in Judge Fletcher’s opinion.
I continue to believe that an insurance requirement of the
kind imposed by Long Beach is potentially content-based, and
therefore invalid. The Long Beach ordinance does not limit
the requirement to insurance policies priced solely on the size
and location of the special event. See Thomas v. Chicago Park
Dist., 227 F.3d 921, 925 (7th Cir. 2000) (upholding an insur-
ance requirement where “[t]he required amount and the cost
of the insurance depend only on the size of the event and the
nature of the facilities involved in it (a bandstand, stage, tents,
and so forth)”), aff’d on other grounds, 534 U.S. 316 (2002).
Instead, the ordinance requires the purchase of insurance even
if, as could well be the case, the insurance premium reflects
the insurer’s assessment of the connection between the risk of
loss and the content of the insured’s expressive activity. For
that reason, were I free to do so, I would follow the substan-
tial case law holding such an insurance requirement unconsti-
tutional as a violation of the First Amendment. See Santa
Monica Food Not Bombs v. City of Santa Monica (“Food Not
Bombs”), 450 F.3d 1022, 1049-52 (9th Cir. 2006) (Berzon, J.,
3968 LONG BEACH AREA PEACE NETWORK v. LONG BEACH
dissenting in part); id. (citing cases invalidating insurance
requirements for public forum permits as content-based).
I fully expressed this view, however, in Food Not Bombs,
but did not prevail. The Food Not Bombs majority did not
acknowledge the substantial case law supporting my conclu-
sion, and did not consider the likelihood that insurance premi-
ums would, like the fees set in Forsyth County v. Nationalist
Movement, 505 U.S. 123, 134 (1992), reflect the content of
the permittee’s expression and the likely reaction of bystand-
ers to that content. Still, I am bound by Food Not Bombs as
precedent, and so concur.
I note that the discussion in this opinion of the indemnifica-
tion provision supports my view that setting an unrestricted
insurance requirement as a condition for issuing a permit for
expressive activity is unconstitutional. We explain today why
the indemnity provision is not narrowly tailored. Insurance
companies typically set premiums by first determining the
risk of loss. Nothing in the Long Beach ordinance would pre-
vent any issuer from taking into account, in assessing the risk
of loss and then setting the premium for event insurance
accordingly, the very considerations we conclude make the
indemnity provision insufficiently narrowly tailored.
Morever, an insurance requirement demands up front payment
even if the insured risk never eventuates, making it even less
narrowly tailored, and more likely to discourage communica-
tive activities in public fora than an indemnity requirement.
I nonetheless concur, as I agree with Judges Fletcher and
Pregerson that there is no difference of principle between the
insurance requirement in this case and the one in Food Not
Bombs.