Roulette v. City of Seattle

• Decision Date: 17 September 1996
• Docket Number: No. 94-35354,94-35354
• Citation: 97 F.3d 300
• Parties: 96 Cal. Daily Op. Serv. 7291 Megan S. ROULETTE, Plaintiff-Appellant, v. CITY OF SEATTLE, a Washington municipal corporation; Norman Rice, Mayor of the City of Seattle; Patrick S. Fitzsimmons, Chief of the City of Seattle Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 300

97 F.3d 300

96 Cal. Daily Op. Serv. 7291

Megan S. ROULETTE, Plaintiff-Appellant, v. CITY OF SEATTLE, a Washington municipal corporation; Norman Rice, Mayor of the City of Seattle; Patrick S Fitzsimmons, Chief of the City of Seattle Police Department Defendants-Appellees.

No. 94-35354.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 8, 1995.

Decided March 18, 1996.

As Amended on Denial of Rehearing

and Rehearing En Banc

Sept. 17, 1996.

David Girard and Peter Greenfield, Evergreen Legal Services, Seattle, Washington, Beth M. Andrus, and David Zuckerman, ACLU-WASHINGTON, Seattle, Washington, for the appellants.

Mark H. Sidran, Seattle City Attorney, Sandra L. Cohen and Gary E. Keese, Assistant City Attorneys, Seattle, Washington, for the appellees.

Daniel E. Loeb, Bruce J. Casino, Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C.; Maria Foscarinis, National Law Center on Homelessness & Poverty, Washington, D.C., for amici National Law Center on Homelessness & Poverty, et al., on behalf of the appellants.

Gary Born, Robert Hoyt, Thomas Clark, Wilmer, Cutler & Pickering, Washington, D.C.; Michael Gallagher, Perkins Coie, Seattle, Washington; Robert Teir, American Alliance for Rights and Responsibilities, for amicus American Alliance for Rights and Responsibilities, on behalf of the appellees.

Donald A. Lachman, Senior Achievement Non-Profit Housing Association, Seattle, Washington; Camille Monzon, Seattle Indian Center, Seattle, Washington, for amici Senior Achievement Non-Profit Housing Association and Seattle Indian Center, on behalf of the appellees.

Appeal from the United States District Court for the Western District of Washington, Barbara J. Rothstein, District Judge, presiding.

Before: PREGERSON, KOZINSKI and LEAVY, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge.

The first step to wisdom is calling a thing by its right name. Whoever named "parkways" and "driveways" never got to step two; whoever named "sidewalks" did.

Seeing the wisdom of preserving the sidewalk as an area for walking along the side of the road, the City of Seattle passed an ordinance generally prohibiting people from sitting or lying on public sidewalks in certain commercial areas between seven in the morning and nine in the evening. SMC §§ 15.48.040. ¹ The ordinance doesn't restrict sitting or lying in public parks, private or public plazas, or alleys, nor sitting on the sidewalk in noncommercial areas of the city. It also permits sitting on the sidewalks in the commercial areas at night. No one may be cited, moreover, unless first notified by a police officer that he's sitting or lying where he shouldn't.

Plaintiffs come from many walks: homeless people and their advocates, social service providers, a deputy registrar of voters, a street musician, and various organizations like the Freedom Socialist Party and the Seattle chapter of the National Organization for Women. What brings them together, and what defines the class they represent, is that they all sometimes sit or lie on the sidewalk. Plaintiffs claim it is unconstitutional for the city to curtail their use of the sidewalk as a sideseat or a sidebed.

They filed suit under 42 U.S.C. § 1983, claiming that the sidewalk ordinance violates their rights to procedural and substantive due process, equal protection, travel and free speech. ² Plaintiffs moved for summary judgment, asking the district court to declare the ordinance unconstitutional on its face. The district court denied the motion and, instead, granted the city's cross-motion for summary judgment, holding that the ordinance is facially constitutional. Plaintiffs appeal only on First Amendment and substantive due process grounds. ³ We review de novo.

I. FREE SPEECH

The First Amendment protects not only the expression of ideas through printed or spoken words, but also symbolic speech-- nonverbal "activity ... sufficiently imbued with elements of communication." Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974). Spence is a typical symbolic speech case. Appellant there had been prosecuted for displaying an American flag on which he had formed a peace sign with plastic tape. ⁴ He did so in order to protest American bombing in Cambodia and the National Guard's killing of anti-war demonstrators at Kent State. The context in which he acted made it highly likely that his message would be understood, whereas at another time it "might be interpreted as nothing more than bizarre behavior." Id. at 410, 94 S.Ct. at 2730. His conduct thus amounted to expression, because "[a]n intent to convey a particularized message was present, and ... the likelihood was great that the message would be understood by those who viewed it." Id. at 410-11, 94 S.Ct. at 2730. The Court held the statute unconstitutional "as applied to appellant's activity." Id. at 406, 94 S.Ct. at 2728; see also Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539-40, 105 L.Ed.2d 342 (1989) (burning an American flag as part of a political demonstration was symbolic speech under Spence ).

Plaintiffs' claim presents a rarely attempted, and still more rarely successful, twist on the Spence analysis: They argue not that the Seattle ordinance is invalid as applied to a particular instance of sitting on the sidewalk for an expressive purpose, but that the ordinance on its face violates the First Amendment.

Plaintiffs observe that posture can sometimes communicate a message: Standing when someone enters a room shows respect; remaining seated can show disrespect. Standing while clapping says the performance was fabulous; remaining seated shows a more restrained enthusiasm. Sitting on the sidewalk might also be expressive, plaintiffs argue, such as when a homeless person assumes a sitting posture to convey a message of passivity toward solicitees.

The fact that sitting can possibly be expressive, however, isn't enough to sustain plaintiffs' facial challenge to the Seattle ordinance. It's true that our ordinary reluctance to entertain facial challenges is somewhat diminished in the First Amendment context. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 581, 109 S.Ct. 2633, 2637, 105 L.Ed.2d 493 (1989). However, this is because of our concern that "those who desire to engage in legally protected expression ... may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801-02, 86 L.Ed.2d 394 (1985). ⁵ Consistent with this speech-protective purpose, the Supreme Court has entertained facial freedom-of-expression challenges only against statutes that, "by their terms," sought to regulate "spoken words," or patently "expressive or communicative conduct" such as picketing or handbilling. See Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830. ⁶ Seattle's ordinance does neither. By its terms, it prohibits only sitting or lying on the sidewalk, neither of which is integral to, or commonly associated with, expression. ⁷ Subject to other valid legislation, homeless people remain free to beg on Seattle's sidewalks, passively or not. Voter registrars may solicit applications for the franchise. Members of the Freedom Socialist Party may doggedly pursue petition signatures and donations, or distribute educational materials. And the National Organization for Women may hold rallies or demonstrations. Cf. Schneider v. New Jersey, 308 U.S. 147, 160-61, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939) (state may prohibit speaker from "taking his stand in the middle of a crowded street, contrary to traffic regulations ... since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion."). ⁸

Plaintiffs and the dissent point to Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), where Justice Fortas, writing for himself and two others, found a breach-of-the-peace statute unconstitutional as applied to a peaceful "sit-in" demonstration. See id. at 138-43, 86 S.Ct. at 722-25 (opinion of Fortas, J., joined by Warren, C.J., and Douglas, J.). ⁹ To the extent Justice Fortas's opinion in Brown has any bearing in the context of this facial challenge, it supports the city's position. Justice Fortas termed the protest there a "sit-in," but only one of the five defendants actually sat--the other four stood. See id. at 136, 86 S.Ct. at 721 ("Brown sat down and the others stood near him."), 139, 86 S.Ct. at 722 ("They sat and stood in the room, quietly, as monuments of protest...."). The conduct three members of the Court found expressive in Brown thus wasn't the defendants' postures; it was their "silent and reproachful presence," id. at 142, 86 S.Ct. at 724 (emphasis added). ¹⁰

In Broadrick, the Supreme Court expressly disavowed its prior cases to the extent they purported to sustain facial freedom of speech attacks on laws like the Seattle ordinance that, by their terms, prohibit only conduct. 413 U.S. at 613-15 & n. 13, 93 S.Ct. at 2916-18 & n. 13. The Court explained:

[F]acial overbreadth adjudication is an exception to our traditional rules of practice and ... its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure' speech toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect--at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to...