Burbridge v. Sampson

• Citation: 74 F.Supp.2d 940
• Decision Date: 29 September 1999
• Docket Number: No. CV 99-9482 ABC(MCx).,CV 99-9482 ABC(MCx).
• Parties: Diep BURBRIDGE, et al., Plaintiffs, v. Cedric SAMPSON, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California

74 F.Supp.2d 940

Diep BURBRIDGE, et al., Plaintiffs, v. Cedric SAMPSON, et al., Defendants.

No. CV 99-9482 ABC(MCx).

United States District Court, C.D. California.

September 29, 1999.

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Carol Sobel, Santa Monica, CA, Dilan Esper, Los Angeles, CA, for plaintiffs.

Allan E. Wilion, Wilion, Kirkwood & Kessler, Beverly Hills, CA, for defendants.

ORDER RE: PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION

COLLINS, District Judge.

Plaintiffs' application for a preliminary injunction came on regularly for hearing before this Court on September 27, 1999. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that Plaintiffs' application is GRANTED with MODIFICATIONS.

I. Background

In the spring of this year, defendant South Orange County Community College District Board of Trustees (the "Board") enacted Board Policy 5406 ("BP 5406" or the "Policy"), regulating the time, manner and place of speech and advocacy on campus by students and members of the public.¹ Among other things, BP 5406 sets forth a reservation system for "preferred areas," defined as "[s]pecific areas and properties available for public meetings with expected gatherings of 20 or more persons, and where amplification is permitted." BP 5406 IV.B. The preferred areas identified in BP 5406 do not include the area in front of the Student Services Center ("SSC"), a popular and strategically located area for speech and advocacy activities which students and members of the public, including the plaintiffs in this case, previously utilized. See Compl. ¶¶ 12-14.

On August 31, 1999, around the beginning of the fall semester, Plaintiffs Diep Burbridge, Scott Stephansky and Dorothy Caruso, students at Irvine Valley College (the "College"), one of the community colleges within the South Orange County Community College District (the "District"), filed a complaint seeking declaratory and injunctive relief. Plaintiffs allege that BP 5406 is facially unconstitutional under both California and federal laws.² Plaintiffs seek a declaratory judgment that (1) "the college's policy of restricting student speech and advocacy is an impermissible prior restraint on protected expression";³ (2) BP 5406 "is a content-based set of regulations, causing it to fail to satisfy the stringent test for a reasonable time, place and manner regulation"; and (3) BP 5406 "suffers constitutional infirmity on the grounds that it is both vague and overbroad."⁴ Compl. ¶ 4.

On August 31, 1999, Plaintiffs also filed a motion for a temporary restraining order ("TRO") and an order to show ("OSC") cause why a preliminary injunction should not issue. Plaintiffs argue that Defendants should be enjoined from enforcing BP 5406. On September 2, 1999, the Court denied the request for a TRO but issued the OSC.⁵ On September 13, 1999, Defendants filed their response to the OSC (the "Opposition"). On September 16, 1999, Plaintiffs filed their reply (the "Reply").

II. Discussion

A. Standing

As a threshold matter, the Court must examine whether Plaintiffs having standing to raise their facial challenges. Article III standing contains three elements: (1) "an injury in fact"; (2) "a causal connection between the injury and the conduct complained of"; and (3) likelihood that the injury will be "`redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The first element of the standing inquiry — the injury in fact — is "an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) `actual or imminent, not conjectural' or `hypothetical.'" Id. at 560, 112 S.Ct. 2130 (citations omitted). A plaintiff must show that "`he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.'" 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1111-12 (9th Cir. 1999) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). "Thus, a `plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'" Id. at 1112 (quoting Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) ("Munson")).

When a case concerns a challenge that a statute or ordinance is, on its face, unconstitutional, particularly in the First Amendment context, the type of facial challenge at issue affects the standing analysis.⁶ While the plaintiff must still demonstrate an injury in fact, plaintiff may assert not just his own constitutional rights, he may also assert the constitutional rights of others. Id.

A statute may be facially unconstitutional if (1) "`it is unconstitutional in every conceivable application'" or (2) "`it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad.'" Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998) (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).⁷ The first type of facial challenge involves a plaintiff who argues that the statute "could never be applied in a valid manner because it is unconstitutionally vague or it impermissibly restricts a protected activity." Id. In such a case, courts apply the general rule that a plaintiff has standing only to vindicate his own constitutional rights rights that have been, or are in imminent danger of, being invaded by the government's implementation or enforcement of that statute. See id.; cf. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 220-21, 237, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) ("There can be little question that the motel owners have `a live controversy' against enforcement of [a] statute" that regulates adult motels and other "sexually oriented businesses").

However, an exception to the traditional standing rule applies in the First Amendment context when a plaintiff raises the second type of facial challenge. Foti, 146 F.3d at 635. In this type of challenge, "the plaintiff argues that the statute is written so broadly that it may inhibit the constitutionally protected speech of third parties." Id.; accord Munson, 467 U.S. at 956-57, 104 S.Ct. 2839. In such a case, the general limitation on standing is relaxed because there exists "a danger of chilling free speech" in society as a whole. Munson, 467 U.S. at 956-57, 104 S.Ct. 2839. Thus, so long as the plaintiff himself satisfies the injury in fact requirement, he has standing to argue that a law is facially overbroad as it relates to the expressive activities of others, whether or not he also challenges the law's overbreadth as it relates to his own expressive activities. See id. (a for-profit professional fund raiser who contracts with charitable organizations has standing to challenge a statute that prohibits charitable organizations from paying or agreeing to pay as expenses more than 25 percent of the amount raised in connection with any fund-raising activity); see also S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1142-43, amended on other grounds, 160 F.3d 541 (9th Cir.1998) (plaintiff, whose First Amendment activities are directly impacted by the new ordinance, has standing to challenge the impact of the overbroad ordinance on behalf of itself and others not before the court). The "prior restraint" cases, where one who is subject to the law alleges that a licensing statute vests unbridled discretion in the decision-maker over whether to permit or deny the expressive activity, fall into this category. See Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (discussing cases where a plaintiff has standing to bring facial overbreadth challenges, including prior restraint and unreasonable time, place and manner claims, "not because his own rights have been violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression"); see also Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) ("In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license"); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (same).

Here, as set forth above, both types of facial challenges are at issue. Also, it is undisputed that BP 5406 regulates the on-campus speech and expressive activities of students and non-district members. Before Plaintiffs can post or distribute written materials, or engage in speech and advocacy on school grounds, Plaintiffs must comply with the requirements and restrictions of BP 5406. BP 5406, as written, could possibly prevent Plaintiffs from engaging in certain constitutionally protected activities or restrict their manner of expression. A favorable decision by this Court, enjoining the enforcement of BP 5406, will likely redress Plaintiffs' injuries. Under the facts as alleged,⁸ Plaintiffs have demonstrated that they are immediately in danger of sustaining some direct injury as a result of the implementation of the provisions at issue in this case, with the exception of BP 5406 IV.D ("Use by Non-District Persons").⁹ Accordingly, the Court is satisfied that Plaintiffs have standing.¹⁰ The Court, therefore, has jurisdiction to address the merits of Plaintiffs' application for a preliminary injunction.¹¹

B. Standard for Preliminary Injunction

In the Ninth Circuit, preliminary injunctive relief is appropriate...