Cogswell v. City of Seattle, 01-36162.

• Citation: 347 F.3d 809
• Decision Date: 27 October 2003
• Docket Number: No. 01-36162.,01-36162.
• Parties: Grant T. COGSWELL, Plaintiff-Appellee, v. CITY OF SEATTLE; City of Seattle Ethics and Elections Commission, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

347 F.3d 809

Grant T. COGSWELL, Plaintiff-Appellee, v. CITY OF SEATTLE; City of Seattle Ethics and Elections Commission, Defendants-Appellants.

No. 01-36162.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2003 — Seattle, Washington.

Filed October 27, 2003.

COPYRIGHT MATERIAL OMITTED

Sandra L. Cohen, Deputy City Attorney, Seattle, Washington, for the defendants-appellants.

William C. Rava, Perkins Coie, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV 01-1209 RSL.

Before: Thomas M. Reavley,^* A. Wallace Tashima, and Richard A. Paez, Circuit Judges.

TASHIMA, Circuit Judge.

The City of Seattle and the City of Seattle Ethics and Elections Commission (together, "Seattle") appeal the district court's grant of summary judgment in favor of plaintiff Grant T. Cogswell ("Cogswell"). Evaluating Seattle Municipal Code 2.14.060(C), which prohibits references to political opponents in candidate statements included in Seattle voters' pamphlets, under the reasonableness standard applied to limited public fora, the district court held that the restriction, although reasonable, was unconstitutionally viewpoint discriminatory. We have jurisdiction over Seattle's timely appeal under 28 U.S.C. § 1291, and we reverse.

BACKGROUND

I. The Restriction

The Revised Code of Washington § 29.81A.010 authorizes the publication of a voters' pamphlet in local elections as a "voter education resource." In order to offer a voters' pamphlet, a city must adopt an ordinance governing the publication of the voters' pamphlet, as well as the administrative rules necessary to carry out the ordinance.¹ Section 29.81A.030(3) provides that "[a]ny statements by a candidate shall be limited to those about the candidate himself or herself."

Pursuant to state law, the Seattle City Council enacted Seattle Municipal Code ("SMC") 2.14.060 to govern candidates' statements in Seattle voters' pamphlets.² Seattle also adopted the Seattle Ethics and Election Commission Voters' Pamphlet Rules to govern the publication of the voters' pamphlet (and a similar Video Voter' Guide). In compliance with Washington law, the ordinance and its accompanying rules provide that "[a] candidate's campaign statement shall not discuss the opponent." SMC 2.14.060(C).

II. Factual Background

Cogswell has been involved in local and regional transportation issues for many years, and has authored numerous initiatives to improve public transportation in the Seattle area. Largely as a result of his participation and experience in transportation issues and his desire to effectuate positive change in this area, Cogswell registered as a candidate for the Seattle City Council in the 2001 primary elections. Cogswell registered for the seat occupied by Richard McIver, chair of the Council's Transportation Committee, and ran to challenge McIver's record on transportation. McIver ran for reelection based on his record as a City Council member.

On July 30, 2001, Cogswell submitted a candidate statement for inclusion in the voters' pamphlet. Citing the restriction prohibiting candidates from referring to their opponents in statements to be included in the voters' pamphlet and video voters' guide, Seattle rejected Cogswell's candidate statement because it discussed his opponent. The portion of Cogswell's statement discussing his opponent reads:

Sound Transit refuses to consider Monorail even though Seattle voted for it twice. The incumbent, Council member McIver, was originally appointed — not elected — to his seat on the city council in 1996. Since taking office, McIver has served as a key board member and lobbied against grants for Monorail from that agency; voted for legislation that repealed the first Monorail Initiative hesitated to stand against the forces on regional committees who want more lanes on SR 520, and is failing to pursue sensible public transportation solutions for the city and the region.

Seattle allowed Cogswell to publish a revised statement in the voters' pamphlet that did not contain discussion of his opponent. Under protest, Cogswell also taped a revised version of his video statement to be included in the video voters' guide.

Cogswell filed this action in the district court on August 7, 2001, seeking a preliminary and permanent injunction allowing publication of his candidate statement containing references to his opponent in the voters' pamphlet for the 2001 Seattle local elections. The Seattle local election occurred in November of 2001.³

III. Procedural Background

Cogswell brought suit under 42 U.S.C. § 1983 alleging that Wash. Rev.Code §§ 29.81A.010 and 29.81A.030(3), and SMC 2.14.060(C) unconstitutionally deprived him of his free speech rights under both the First Amendment of the United States Constitution and Article I, section 5, of the Washington Constitution. The action was brought as a facial challenge to Seattle's restriction as a viewpoint biased and unreasonable limitation on Cogswell's free speech rights in a limited public forum.

The district court denied Cogswell's motion for preliminary injunction to compel publication of an uncensored version of his candidate statement, filed with his complaint on August 7, 2001. At oral argument, Cogswell withdrew his challenge to the constitutionality of Wash. Rev.Code §§ 29.81A.010 and 29.81A.030(3), leaving only his challenge to the constitutionality of SMC 2.14.060(C).

On September 19, 2001, the district court granted Cogswell's motion for summary judgement, holding SMC 2.14.060(C) unconstitutional. The district court recognized the reasonableness of the restriction, but nevertheless found SMC 2.14.060(C) viewpoint discriminatory, as it limited the speech of candidates based on their viewpoints as opponents. Seattle timely appealed.

STANDARD OF REVIEW

"A district court's determinations on questions of law and on mixed questions of law and fact that implicate constitutional rights are [ ] reviewed de novo." Dittman v. Cal., 191 F.3d 1020, 1025 (9th Cir.1999). A district court decision granting summary judgment is also reviewed de novo. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc). We must determine, viewing the evidence in the light most favorable to the nonmoving party, "whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002).

"In order to prevail on this facial challenge to the [restriction], [Cogswell] must meet a high burden of proof; [he] must `establish that no set of circumstances exists under which the [restriction] would be valid. The fact that the [restriction] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.'" S.D. Myers, Inc. v. City & County of San Francisco, 253 F.3d 461, 467 (9th Cir.2001) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).

ANALYSIS

I. LAW APPLICABLE TO A LIMITED PUBLIC FORUM

The parties agree that the voters' guide constitutes a limited public forum and we accept the parties' classification of the type of forum involved. See Kaplan v. County of Los Angeles, 894 F.2d 1076, 1080 (9th Cir.1990) (holding that California voters' pamphlet constitutes a limited public forum because "California created the pamphlets for the specific purpose of allowing a limited class of speakers, the candidates, to address a particular class of topics, statements concerning the personal background and qualifications of each candidate"). "[A] limited public forum is a sub-category of a designated public forum that `refer[s] to a type of nonpublic forum that the government has intentionally opened to certain groups or to certain topics.'" Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir.2001) (quoting DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir.1999)) (alteration in original).

In limited public fora, a lenient reasonableness standard applies to determine the validity of governmental regulations. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Hopper, 241 F.3d at 1074. Under this reasonableness test, the State can restrict access to a limited public forum as long as (1) the restriction does not discriminate according to the viewpoint of the speaker, and (2) the restriction is reasonable. Perry, 460 U.S. at 46, 103 S.Ct. 948. See also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Cornelius, 473 U.S. at 806, 105 S.Ct. 3439.

II. THE RESTRICTION IS NOT VIEWPOINT DISCRIMINATORY

"It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger, 515 U.S. at 828, 115 S.Ct. 2510 (citing Police Dep't v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). "The principle that has emerged from [Supreme Court] cases `is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.'" Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).

Thus, "[d]iscrimination against speech because of its message is presumed to be unconstitutional." Rosenberger, 515 U.S. at 828, 115 S.Ct. 2510. "When the government targets not subject matter, but particular views taken by speakers on a...