# Opposition Brief — Los Angeles Police Department v. Perry

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2119%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1047

## Text

Supreme Court, U.S

No. 97-1228

In The

Supreme Court of the Hnited States

———
October Term, 1997

LOS ANGELES POLICE DEPARTMENT, CITY OF LOS
ANGELES, OFFICER JANE DOE RODRIGUEZ,
SERGEANT JOHN DOE MONTELONGO and CHIEF
WILLIE WILLIAMS,

Petitioners,

VS.
HARRY NMI PERRY and ROBERT “JINGLES” NEWMAN,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JAMES H. FOSBINDER
Counsel of Record
RHONDA M. FOSBINDER
FOSBINDER & FOSBINDER
Attorneys for Respondents
723 Ocean Front Walk
Venice, California 90291
(310) 396-1071
(310) 285-3019

(800) 274-3321 * (800) 359-6859 uz
A DIVISION OF COUNSEL PRESS

i
QUESTIONS PRESENTED FOR REVIEW

Whether the Equal Protection Clause prohibits the City of
Los Angeles from requiring membership in a city licensed
“charitable” or “non-profit” organization in order for an
individual to be allowed to fully exercise one’s First Amendment
rights under the United States Constitution (hereinafter “First
Amendment’) in a traditional public forum.

Whether city licensed non-profit organizations have
“greater” First Amendment protection than individuals when
engaging in protected expressive activities.

il

TABLE OF CONTENTS

Page
Questions Presented for Review ................... i
Bas CS COMES .. ccccccsitexcesesiapianeneneee il
BRED GS CRIEOED 0 0 00 0ss0cssesseenssenee lil
Summmasy 5 AGE «oo cccvtscsvsendeneenenens l
SOMERSET PGS oc cccccucsteccsentaemenue l
Reasons for Denying the Writ .................... +

I. The Decision By The Ninth Circuit Properly

States And Applies The Applicable Rules Of Law

Set Forth By This Court And By Prior Ninth
COUNTER. sccccsestsctdcadansmann +

A. The Decision Below Is Consistent With This
Camt) GHEE. oc cccctcunsasenebiens +

B. The Decision Below Does Not Conflict With

The Ninth Circuit’s Earlier Holdings In

Gaudiya And One World One Family Now.
o00ccccctbeeesessensannne 8

II. AnAdvisory Opinion To The City Of Los Angeles

On How To Draft Its Ordinances Is Unnecessary
AGE DACIGEE, . «0c cisavivecéonieaneeneiin 12

CORGRIIOR oc cundecccsassneusnneneee 15

Contents
Page
TABLE OF CITATIONS
Cases Cited:
Board of Trustees of the State University of New York v.
Fox, 492 U.S. 469, 109 S. Ct. 3028, 106 L. Ed. 2d
CEE eee ee eee ee Tee ee ee 4, 6,7
Burton v. United States, 196 U.S. 283, 49 L. Ed. 482,
RR OT Te eT eee TT Te Tee eee 13, 14
Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900,
rr vd ch ah w eee snes eee’ oe os 11
Carey v. Brown, 447 U.S. 455, 100 S. Ct. 2286, 65 L.
i ak tee ie den ethane en ssede wen 5
City of Lakewood v. Plain Dealer Publishing Co., 486
U.S. 750, 108 S. Ct. 2138, 100 L. Ed. 2d 771
ed CRORE CLG SKN EeA ahd Cee baenndns 11
City of Cincinnati v. Discovery Network, 507 U.S. 410,
113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993) ........ 6
Clinton v. Jones, 117 S. Ct. 1636, 131 L. Ed. 2d 945
ESSE er ee eee ee eee 13

Gaudiya Vaishnaya Society v. San Francsico, 900 F.2d
1369 (9th Cir. 1990), amended, 952 F.2d 1059 (9th
Tt Cia kehac he cee ke se Ke shee ans 4,8

iv

Contents
Page
Hudson v. United States, 118 S. Ct. 488, 139 L. Ed. 2d
CREE Ce ceca outlet ass pene besateaeee 13, 14
Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870,
ge Se ee nee 15

One World One Family Now v. City and County of
Honolulu, 76 F.3d 1009 (9th Cir. 1996) ..... 3, 4, 8, 9, 10

Perry v. Los Angeles Police Department, 121 F.3d 1365
oo ED, rey errr Eran 3, 5, 8, 11, 12

Raines v. Byrd, 117 S. Ct. 2312, 138 L. Ed. 2d 849
1997 U.S. LEXIS 4040 *14 (1997) ............. 13

Riley v. National Federation of the Blind, 487 U.S. 781,
108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988) ...... 4,6,7

Shuttlesworth v. City of Birmingham, 194 U.S. 147, 89
>. Ct. 935, 22 L. BS. 26 IGS CIPS) ow ccc ccnccs 11

United States Nat’l Bank of Oregon v. Independent
Insurance Agents of America, Inc., 508 U.S. 439, 113
S. Ct. 2173, 124 L. Ed. 2d 402 (1993) .......... 13

Village of Shaumberg v. Citizens for a Better Environment,
444 U.S. 620, 100 S. Ct. 826, 63 L. Ed. 2d 73 (1980)

Contents
Page
Statute Cited:
Los Angeles Municipal Code Section a eee re 1,2
United States Constitution Cited:
First Amendment ..........--+ee cece eer eeeeeeeee passim

Rule Cited:

Fed. R. Civ. Proc. § 50 ...... cee eee ee eee cerns 3

l
SUMMARY OF ARGUMENT

Respondents Harry Perry and Robert Jingles Newman
respectfully request this Court to deny the Petition for Writ of
Certiorari seeking review of the opinion of the Ninth Circuit
Court of Appeal.

The writ should be denied because (1) there is no conflict
of law amongst the appellate courts, or between the Ninth Circuit
and this or any other court, or amongst the Ninth Circuit
decisions themselves, on the issues presented by this matter;
(2) the Ninth Circuit properly states and applies the relevant
rules of law; and (3) the petitioners are improperly seeking as,
advisory opinion from this Court on how to draft its ordinances,
which is not a matter within the jurisdiction of this Court.

STATEMENT OF THE CASE

The issue in this case centers on the constitutionality of an
ordinance enacted by the City of Los Angeles which bans the
sale of merchandise and the solicitation of donations on public
beachfront land, but exempts the solicitation of donations and
the sale of merchandise “constituting, carrying, or making a
religious, political, philosophical or ideological message or
Statement relevant to the purpose of said non-profit
organization” by city licensed non-profit organizations. Los
Angeles Municipal Code § 42.15 (1991) [Petition, pp. 4-5,
31g]. In striking the ordinance, the Ninth Circuit held that the
ordinance was facially unconstitutional and overbroad because
there was no basis for allowing the exercise of First Amendment
protected rights by licensed non-profit organizations, while
prohibiting the exercise of those rights by individuals not
belonging to non-profit organizations.

In the period preceding the filing of the action in the district
court, individuals engaging in religious, political, and artistic

2

activities, including Respondents, were ticketed and threatened
with arrest and jail if they accepted donations or if they took
money in exchange for protected articles bearing such
individual’s message, if the person could not demonstrate to
the City that they belonged to a licensed non-profit organization.
Under the ordinance, for example, if an individual wants to test
the waters for a run for Congress by going down to the Venice
Boardwalk to campaign, he or she will be arrested for violating
the City’s ordinance if the person raises even a small amount of
money by asking for campaign contributions, or for selling
CD-ROMs giving his or her life history and detailed proposals,
unless they first created a non-profit organization.

After the district court issued its initial Temporary
Restraining Order on May 8, 1995, a preliminary injunction
was entered on July 3, 1995, which was and has been the basis
for successful management of the ocean side of the Venice
Boardwalk ever since’.

In modifying the Temporary Restraining Order to create
the terms of the preliminary injunction, the City of Los Angeles
was specifically not enjoined from “enforcing, Los Angeles
Municipal Code Section 42.15 against individuals or nonprofit
organizations selling commercial items such as, but not limited
to, foodstuffs, including but not limited to ice cream, hot dogs,
churros, pastries, fruit or soda... or any other consumer good
which does not have a constitutionally protected message

1. Notably, neither the district court’s Memorandum of
Decision, entered on July 3, 1995, granting a preliminary injunction
on behalf of the plaintiffs, nor the preliminary injunction itself, is
mentioned in the City’s Petition, nor included in the Appendix
thereto. Because it reaches essentially the same conclusions as the
opinion rendered by the Ninth Circuit, however, it is not necessary
to an understanding of the judgment sought to be reviewed and the
decision is therefore not reproduced herein.

3

inextricably intertwined with the product”, to aid the City in
distinguishing protected from non-protected activities.

The status quo with respect to allowing non-commercial
vendors engaged in expressive activities on the Venice
Boardwalk to occupy the western, ocean side of the walkway,
while prohibiting commercial vending, was thus successfully
preserved all summer long, as it is to this date.

On February 20, 1996, however, after presentation of
plaintiffs’ evidence at a bench trial in this action, the City of
Los Angeles moved for a judgment dismissing the action on
partial findings pursuant to Fed. R. Civ. Proc. § 50. The court
below granted the request, basing its decision solely on the
Ninth Circuit’s ruling in One World One Family Now v. City
and County of Honolulu, 76 F.3d 1009 (9th Cir. 1996), in
which an “as applied” challenge to a ban on the sale of message
bearing T-Shirts by non-profit organizations on a main city street
in Waikiki was rejected.

The Ninth Circuit Court of Appeals reversed, holding that
unlike the ordinance in One World, the Los Angeles ordinance
was not narrowly tailored because it discriminated against a
substantial quantity of speech based solely on the identity of
the speaker, i.e. protected, expressive speech by individuals not
affiliated with any non-profit organization, a distinction which
was unwarranted to protect the government's interests and to
remedy the evil the City was seeking to protect against, rampant
commercial activity on the Boardwalk. Thus, the ordinance is
overbroad “because it prohibits not only purely commercial
activities, but also protected expressive activities, like those of
plaintiffs here.” Perry v. Los Angeles Police Department, 121
F.3d 1365, 1371 (9th Cir. 1997).

4

REASONS FOR DENYING THE WRIT
L.

THE DECISION BY THE NINTH CIRCUIT
PROPERLY STATES AND APPLIES THE APPLICABLE
RULES OF LAW SET FORTH BY THIS COURT AND
BY PRIOR NINTH CIRCUIT DECISIONS.

A. The Decision Below Is Consistent With This Court’s
Rulings.

In its Petition for Writ of Certiorari, the City of Los Angeles,
et al. (hereinafter, “the City”) argues that the decision here sought
to be reviewed conflicts with the Ninth Circuit’s earlier decisions
in One World One Family Now v. City and County of Honolulu,
76 F.2d 1009 (9th Cir. 1996) and Gaudiya Vaishnaya Society
v. San Francsico, 900 F.2d 1369 (9th Cir. 1990), amended,
952 F.2d 1059 (9th Cir. 1991), and with this Court’s decisions
in Board of Trustees of the State University of New York v. Fox,
492 U.S. 469, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989) and
Riley v. National Federation of the Blind, 487 U.S. 781, 108
S. Ct. 2667, 101 L. Ed. 2d 669 (1988). Nothing could be
further from the truth. In fact, the Ninth Circuit’s decision in
the instant matter is not only consistent with all of these
decisions, as well as with other decisions rendered by this Court,
but is supported by them as well.

The “problem” that the City complains of arises not from
any conflict of law, but from the City’s misunderstanding of
the law, as evidenced by the following “conclusion” set forth
by the City: “Thus, speech by non-profit organizations is
differentiated and given higher constitutional freedom of speech
treatment than other types of speech.” (Petition, p. 14 (emphasis
added)]. This statement, which summarizes the City’s entire

5

argument, is fallacious, and the Equal Protection Clause
mandates that the discrimination between the exercise of First
Amendment rights by non-profit organizations and individuals
is patently unconstitutional. As correctly observed by the Ninth
Circuit:

This type of speaker-based discrimination is
unacceptable. In Schaumberg, the [Supreme] Court
found that the solicitation of charitable donations
could not be regulated by a distinction based on
who was doing the soliciting. The [Supreme] Court
has also noted that “government regulation may not
favor one speaker over another.” Rosenberger v.
Rector and Visitors of the University of Virginia, 115
S. Ct. 2510, 2516 (1995). The government's
argument that prohibition of expressive speech can
turn on a person’s membership in a non-profit
organization fails.

There is simply no authority limiting the right to
seek charitable donations or to sell expressive items
to those with memberships in non-profit
organizations. No other First Amendment rights are
restricted in such a manner. Once it is decided that
the activity here is expressive activity, fully protected
by the First Amendment, the fact that plaintiffs are
not nonprofit organizations does not affect the level
of protection accorded to their speech.

Perry v. Los Angeles Police Department, 121 F.3d 1365, 1371
(9th Cir. 1997) [Petition, p. 15a]; see also, Carey v. Brown,
447 U.S. 455, 100 S. Ct. 2286, 65 L. Ed. 2d 263 (1980)
(ordinance discriminating amongst types of picketers not

6

narrowly tailored); City of Cincinnati v. Discovery Network,
507 U.S. 410, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993)
(ordinance discriminating between newsracks for newspapers
and newsracks for commercial handbills not narrowly tailored);
Village of Shaumberg v. Citizens for a Better Environment, 444
U.S. 620, 100 S. Ct. 826, 63 L. Ed. 2d 73 (1980) (ordinance
discriminating between charitable organizations based on the
amount of their receipts used for charitable purposes not
narrowly tailored to serve governmental interest in limiting total
number of door to door solicitations).

The City’s sole support for its conclusion that it may
discriminate in favor of non-profit organizations, offered without
explanation, is this Court’s decisions in Board of Trustees of
the State Univ. of New York v. Fox, supra, and Riley v. National
Federation of the Blind, supra. (Petition, p. 16]. However,
neither of those decisions supports the idea that protected speech
by non-profits may be differentiated from and offered greater
protection than protected speech by individuals without running
afoul of the Equal Protection Clause.

In Riley, in response to a challenge by a “coalition of
professional fund-raisers, charitable organizations, and potential
charitable donors”, Fox, supra, 487 U.S. at 787, this Court
held that various provisions contained in North Carolina’s
Charitable Solicitations Act licensing fund-raisers were
unconstitutional and not narrowly tailored to the state’s interest
in preventing fraud.

In so holding, the Court ruled that contrary to the state's
position that it had an overriding governmental interest in
regulating the charitable solicitations of non-profit organizations,
charitable fund-raising constituted equally protected First
Amendment speech. In ruling that non-profit charitable
solicitations may not be more burdened than other types of

7

protected speech, and is thus equally protected speech, this
Court certainly did not suggest that such speech by non-profits
was more protected than any other type of speech. Id.

In Fox, unlike in Riley, the issue before the Court was the
prohibition by the State University of New York (SUNY) of
the operation of private commercial enterprises in SUNY
facilities. Because the factual situation was vastly different than
in the instant case, the Fox decision is only tangentially related
to the instant action. In Fox, a group of students alleged that in
prohibiting “tupperware parties” in their dormitories, SUNY
was infringing upon their First Amendment rights.

In ruling that the housewares parties sought to be held by
the students constituted unprotected commercial speech, the
Court discussed its holding in Riley concluding that fund-raising
by charitable organizations is fully protected speech because
the commercial aspects of the speech are inextricably intertwined
with the non-commercial aspects of the speech. With respect to
the housewares parties, that Court stated, “there is nothing
‘inextricable’ about the noncommercial aspects of these
presentations.” Board of Trustees v. Fox, 492 U.S. at 474.

The Court went on to discuss the allowable scope of
government restrictions upon this commercial speech,
discussions which have no relevance to the instant action, in
which it is undisputed that all of the speech at issue is protected
First Amendment activity. Once again, there is simply nothing
in Fox to support the City’s contention that speech by non-
profit organizations is to be afforded any greater protection than
any other non-commercial speech, regardless of the speaker.

B. The Decision Below Does Not Conflict With The Ninth
Circuit’s Earlier Holdings In Gaudiya And One World One
Family Now.

The decision below is not only consistent with the Ninth
Circuit’s own decisions, but it is also entirely supported by the
earlier decisions rather than contradicted by them.

In Gaudiya, for example, the Ninth Circuit recognized that
the sale of merchandise by the plaintiff non-profit organizations
constituted protected First Amendment activity, even though
the merchandise being sold existed in the gray area between
purely commercial speech and speech having no intrinsic
purpose or value other than to communicate a message, because
the merchandise and the message were inextricably intertwined.
Gaudiya Vaishnava Society v. San Francisco, 952 F.2d 1059
(9th Cir. 1991). As pointed out by the Ninth Circuit in the
instant decision, none of the reasoning in Gaudiya even
revolved around the incidental fact that the plaintiffs were non-
profit organizations rather than individuals. /d.; see also Perry
v. Los Angeles Police Department, 121 F.3d at 1370 [Petition,
p. 15a].

While it is true that in reaching its decision in Gaudiya the
Ninth Circuit necessarily “relied on case law that accords First
Amendment protection to fund-raising for charitable
organizations”, (Petition, p. 13], that decision simply does not
say that non-profit organizations are to receive greater
constitutional protection than others engaging in the same types
of expressive activities. To the contrary, in fact, the need for the
court to establish the basis for the First Amendment protection
of the non-profits’ activities at all suggests that there was some
issue as to whether or not that type of speech was even protected,
not that it was to receive greater protection. Thus, the Gaudiya
decision is in no manner inconsistent with the instant decision.

9

In One World One Family Now, non-profit T-Shirt vendors
who were attempting to sell articles of clothing bearing slogans
and messages on a busy city street in the heart of Waikiki raised
a very narrow “as applied” challenge to an ordinance which
banned the sale of any types of merchandise except newspapers,
but did allow handing out literature, proselytizing, or soliciting
donations, amongst other things. One World One Family Now
v. City and County, of Honolulu, 76 F.3d 1009, 1014 (9th Cir.
1996). The Ninth Circuit upheld the Honolulu ordinance in a
2-1 decision, holding that it was content-neutral and narrowly
tailored as applied to those particular plaintiffs.

In so holding, the Ninth Circuit found that while the
message bearing T-Shirts were undoubtedly First Amendment
protected items’, the Honolulu ordinance was valid because in
instituting a flat ban on all sales, it did not require any exercise
of discretion by government officials, was inherently content-
neutral, and was narrowly tailored since it banned both

2. Plaintiffs point out that T-Shirts themselves fall into a special
category of expressive item in which the monetary value of the
printed material is primarily in the medium (the article of clothing),
and only incidentally in the message, unlike other items in which
the article itself without the message has very little intrinsic value.
An interpretation of the First Amendment saying that anything could
be sold in a public forum as long as it had a message printed on it
would undoubtedly result in the sale in public parks of “Save the
Whales” refrigerators or “Newt Gingrich for President” bicycles.
Respondents respectfully suggest that for items where the message
is being conveyed on a medium that costs vastly more than its
intrinsic value only because of the message being conveyed should
be treated differently than items the value of which lies only
incidentally in the message. Thus, such items as newspapers, bumper
stickers, buttons, books and CD-ROMs, for example, have virtually
no value without the speech contained in them, and are clearly
purchased for the message they contain and not for the underlying
medium.

10

commercial and non-commercial sales alike, and left open ample
alternative channels of communication because it foreclosed one
narrow form of expression — sidewalk sales of message bearing
merchandise — but left the plaintiffs free to disseminate and
seek support for their views by handing out literature,
proselytizing or soliciting donations, for example. One World
One Family Now, 79 F.3d at 1014.

Unlike the Honolulu ordinance, the Los Angeles ordinance
is not a narrowly tailored ban, because it bans both the
solicitations of donations and the sales of First Amendment
protected materials by individuals, but not by registered non-
profit organizations, and therefore discriminates against
categories of speakers. It furthermore does vest discretion in
government officials, because they can require, grant or deny
non-profit licenses as a prior restraint on speech by individuals.

The Ninth Circuit states the distinction between the cases
succinctly:

[I}n One World, the restriction did not discriminate
against certain types of speech depending on the
speaker. In fact, in One World, when the court
analyzed whether the ordinance was narrowly
tailored, it reasoned that the ordinance was narrowly
tailored because it addressed the government interests
“without ... significantly restricting a substantial
quantity of speech that does not create the same
evils.” 76 F.3d at 1014 (citing Ward, 491 U.S. at
799 n.7). Here, defendants claim to be prohibiting
the evil of commercial activity by prohibiting all
soliciting of donations and sales by anyone not
affiliated with a nonprofit. However, the nonprofit
distinction significantly restricts a substantial

quantity of speech — namely expressive speech by

11

people who are not nonprofit members — that does
not create the same evils as purely commercial
activity on the boardwalk — which is what the
government admittedly wants to restrict. Thus,
applying the reasoning of One World, rather than
merely looking to its result, one can see that the
ordinance at issue here is not narrowly tailored to
serve government interests.

Perry v. Los Angeles Police Department, 121 F.3d at 1371
[Petition, pp. 15a-16a].

Governmental authorities have often attempted to require
potential solicitors to register with civic or law enforcement
authorities before beginning their campaigns. Where registration
processes appeared to be actually licensing programs giving
undue discretion to the licensing officer(s), however, such
registration processes have generally been declared
unconstitutional. Cantwell v. Connecticut, 310 U.S. 296, 60
S. Ct. 900, 84 L. Ed. 1213 (1940); City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 757, 108 S. Ct. 2138,
100 L. Ed. 2d 771 (1988); Shuttlesworth v. City of Birmingham,
194 U.S. 147, 149, 150-151, 89 S. Ct. 935, 938-39, 22 L. Ed.
2d 162 (1969).

In essence, the ordinance struck down by the Ninth Circuit
as overbroad impermissibly sought to license any and all First
Amendment activity by requiring that the individual activist
either “shut up” or become a member of a non-profit organization
licensed by the City itself. This is necessary, the City argued, in
order for it to be able to distinguish between “commercial” and
“non-commercial” activities.

The City also argued to the Ninth Circuit that the non-
profit license was so easy to obtain that even plaintiffs could do

12

it, but, as noted by the court, this argument contradicts the City’s
position that the licensing, and hence the distinction between
non-profit organizations and individuals, is necessary to protect
the governments’ alleged interest in protecting against rampant
commercial activities if absolutely anyone can obtain it.*. Perry
v. L.A.P.D., 121 P.3d at 1370, n.1. “A lack of non-profit status
cannot reasonably be a predictor of purely commercial activity.”
Id.

Thus, the Ninth Circuit has properly stated and applied the
relevant rules of law set forth by this Court, in a manner
consistent with this Court’s and the Ninth Circuit’s other
decisions in this area, and there is no reason for review on those
grounds.

Il.

AN ADVISORY OPINION TO THE CITY OF LOS
ANGELES ON HOW TO DRAFT ITS ORDINANCES IS
UNNECESSARY AND IMPROPER.

Finally, the City seeks to know “what law, if any . . . a city
may establish in order to comply with constitutional freedom
of speech requirements . . .” [Petition, p. 8], and “exactly what
may and may not be banned and what must be allowed”.
[Petition, p. i]. This is a request for an advisory opinion. The
actual case or controversy comprising the instant action is the
constitutionality of the City’s ordinance as it currently exists,
not the constitutionality of all of the theoretical possibilities the
City could or could not allow in its future anti-vending
ordinances.

3. Actually, the ordinance is vague as to what is required to be
deemed a “non-profit organization”, since an entity can be
considered non-profit for federal tax purposes without being licensed
by the City of Los Angeles, for example.

13

“*The existence of judicial power under Art. III of the
Constitution depends on the existence of a case or controversy,’
and ‘a federal court lacks the power to render advisory opinions.’
(citations omitted)” United States Nat’l Bank of Oregon v.
Independent Insurance Agents of America, Inc., 508 U.S. 439,
446, 113 S. Ct. 2173, 2178, 124 L. Ed. 2d 402 (1993). Thus,
the prohibition against advisory opinions is based in the
Constitution, and this Court has always been loathe to render
such advisory opinions, especially where, as here, to do so
would blur the lines between the executive, legislative and
judicial branches. See Clinton v. Jones, 117 S. Ct. 1636, 131
L. Ed. 2d 945 (1997) (“These restrictions on judicial activities
‘help ensure the independence of the Judicial Branch and to
prevent the Judiciary from encroaching into areas reserved for
other branches.’ (citations omitted)”); See also Hudson v. United
States, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997). As this
Court has stated:

“No principle is more fundamental to the judiciary’s
proper role in our system of government than the
constitutional limitation of federal court jurisdiction
to actual cases or controversies.” (citations omitted)

Raines v. Byrd, 117 S. Ct. 2312, 138 L. Ed. 2d 849 1997 U.S.
LEXIS 4040 *14 (1997).

Furthermore, to ask this Court to iterate “what law, if any
... a City may establish in order to comply with constitutional
freedom of speech requirements . . .” [Petition, p. 8] and “exactly
what may and may not be banned and what must be allowed”
[Petition, p. i] is to improperly ask this Court to decide additional
constitutional questions not absolutely necessary to the decision
in this case: “It is not the habit of the Court to decide questions
of a constitutional nature unless absolutely necessary to a
decision of the case.” Burton v. United States, 196 U.S. 283,

14

295, 49 L. Ed. 482, 25 S. Ct. 243 (1905), quoted in Hudson v.
United States, 118 S. Ct. 488, 139 L. Ed. 2d 450, 1997 U.S.
LEXIS 7497 *34 (1997).

This Court is not a legislature, and is not in the position to
unnecessarily advise the City in how to draft its ordinances to
comply with established laws. What the City seeks in its request
for review by this Court is an encyclopedic explanation of what
it can and cannot allow in a public forum, i.e. an “owner’s
manual” or “laundry list” for drafting anti-peddling ordinances.
The City’s fundamental misconceptions about even the most
basic First Amendment principles is evident throughout its
petition, and drafting laws which withstand constitutional muster
is surely never an easy task; however, the City’s ignorance or
inability to comprehend fundamental First Amendment
principles is hardly cause for review on certiorari of a properly
reasoned appellate court decision.

Indeed, instead of looking to this Could for advice on how
to draft its ordinance, perhaps the City should look to the
language of the preliminary injunction entered by the district
court, which has been the basis for successful management of
the Venice Boardwalk for nearly three years now. Incidentally,
it should be noted that contrary to the City’s representation in
their Petition that without this Court’s advisory opinion they
will be forced to “go back to a total ban of sales and solicitations
on the Boardwalk”, [Petition, p. 15] such a “total ban” was
never enforced against First Amendment activists, performers,
artists, etc. on the Venice Boardwalk, but rather was only ever
enforced against purely commercial activities such as the sale
of soft drinks or shoes. After the current ordinance was enacted,
however, even purely commercial activities such as the selling
of hot dogs and Snapple brand drinks was allowed by the City,
as long as it was being done by a non-profit organization.

-

15

The City of Los Angeles has simply failed to recognize,
and continues to fail to recognize, that the distinction lies not
in whether or not the “sale of wares” is “charitable”, id., but in
whether the item being sold or given away is a protected,
expressive item whose value is in the message, regardless of
who is engaging in the protected speech.

It should be remembered that the pamphlets of
Thomas Paine were not distributed free of charge.
... Freedom of speech, freedom of the press,
freedom of religion are available to all, not merely
to those who can pay their own way.

Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S. Ct. 870,
87 L. Ed. 1292 (1943) (Emphasis added). And, it should be
noted, not merely to those who belong to non-profit
organizations.

CONCLUSION

For all of the foregoing reasons, the Petition for Writ of
Certiorari should be denied.

Respectfully submitted,

JAMES H. FOSBINDER
Counsel of Record

RHONDA M. FOSBINDER
FOSBINDER & FOSBINDER
Attorneys for Respondents

723 Ocean Front Walk

Venice, California 90291
(310) 396-1071

(310) 285-3019

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2119%3A2. Public record. Not legal advice.