considering facial challenge to ordinance that allowed officials to “restrict[ ] events to city sidewalks, por- 3 The Dissent, at footnote 3, misses the point of our citation of these examples, which simply demonstrate that the City does in fact construc- tively deny parade permits. 16382 SEATTLE AFFILIATE v. CITY OF SEATTLE tions of a city street, or other public right-of-way” (internal quotation marks omitted)
How later courts described this case
- considering facial challenge to ordinance that allowed officials to “restrict[ ] events to city sidewalks, por- 3 The Dissent, at footnote 3, misses the point of our citation of these examples, which simply demonstrate that the City does in fact construc- tively deny parade permits. 16382 SEATTLE AFFILIATE v. CITY OF SEATTLE tions of a city street, or other public right-of-way” (internal quotation marks omitted)
- permitting scheme not unconstitutional where officials must “provide . . . a writ- ten explanation for a decision that imposes conditions on the permit” and where that decision can be appealed to the city council or state court
- approving statute giving officials the discretion to “re- strict[ ] events to city sidewalks, portions of a city street, or other public right-of-way,” but only when such restrictions are “necessary to . . . protect the safety of persons and prop- erty and to control vehicular and pedestrian traffic” (internal quotation marks omitted) (emphasis altered)
Written by the judges who cited it.
The opinion
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 insurance 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)”), ajfd on other grounds, 534 U.S. 316 , 122 S.Ct. 775 , 151 L.Ed.2d 783 (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 substantial case law holding such an insurance requirement unconstitutional 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., dissenting in part); id. (citing cases invalidating insurance requirements for public forum permits as content-based).
*1044 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 conclusion, and did not consider the likelihood that insurance premiums would, like the fees set in Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 , 112 S.Ct. 2395 , 120 L.Ed.2d 101 (1992), reflect the content of the permit-tee’s expression and the likely reaction of bystanders 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 indemnification 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 prevent 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. Moreover, 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 communicative 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.