Foti v. City of Menlo Park

• Decision Date: 29 July 1998
• Docket Number: No. 97-16061,97-16061
• Citation: 146 F.3d 629
• Parties: 98 Cal. Daily Op. Serv. 3243, 98 Cal. Daily Op. Serv. 5847, 98 Daily Journal D.A.R. 4520, 98 Daily Journal D.A.R. 8129 Rossi FOTI and David Larsen, Plaintiffs-Appellants, v. CITY OF MENLO PARK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 629

146 F.3d 629

98 Cal. Daily Op. Serv. 3243, 98 Cal. Daily

Op. Serv. 5847,

98 Daily Journal D.A.R. 4520,

98 Daily Journal D.A.R. 8129

Rossi FOTI and David Larsen, Plaintiffs-Appellants, v. CITY OF MENLO PARK, Defendant-Appellee.

No. 97-16061.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 1997.

Decided May 1, 1998.

As Amended on Denial of Rehearing

and Suggestion for Rehearing En Banc

July 29, 1998.

Michael Millen, San Jose, California, Catherine W. Short, Life Legal Defense Foundation, Napa, California, for plaintiffs-appellants.

Kathleen M. Sullivan, John L. Flegel, Jorgenson, Siegel, McClure & Flegel, Menlo Park, California, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California; Marilyn H. Patel, District Judge, Presiding. D.C. No. CV-96-03488-MHP.

Before: BROWNING, PREGERSON, and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

Rossi Foti ("Foti") and David Larsen ("Larsen") regularly picket and leaflet on a public sidewalk in the City of Menlo Park ("City") in front of a Planned Parenthood facility. They challenge the constitutionality of Menlo Park Ordinance No. 877, which regulates picketing, leafletting, and posting or displaying signs on public property. The district court denied their motion for a preliminary injunction, and this appeal followed. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we reverse in part and affirm in part.

BACKGROUND

Foti and Larsen carry out their picketing on a public sidewalk in Menlo Park several times a week. The sidewalk borders a four-lane arterial roadway that accommodates approximately 23,000 cars per day. When Foti and Larsen first began their protest, they carried signs as large as three feet by five feet. Some of these signs bore pictures of aborted fetuses; others displayed anti-abortion messages. In addition to carrying these signs, Foti and Larsen also placed numerous signs around a public bus stop bench and attached as many as fourteen signs on Foti's car, which was legally parked in the street. Foti and Larsen's other activities included leafletting and discussing abortion issues with passersby.

In response to numerous citizen complaints about these protests, the City adopted Emergency Ordinance No. 876 and its successor Ordinance No. 877. ¹ The ordinance Foti and Larsen have continued their protests, mostly in compliance with the ordinance. They have also added crosses, American flags, and plastic babies to their demonstrations--props which the City concedes do not violate the ordinance. Foti was cited under the emergency ordinance for carrying a sign larger than three square feet, and his sign was confiscated. Foti also alleges that a police officer threatened to confiscate Foti's car if he placed any signs on it at the protest site.

                bans the posting of signs on public property or the displaying of signs in the public right-of-way. 2  The ordinance contains several exemptions. 3  There are exemptions for temporary "open house" real estate signs, signs placed by government entities, and safety, traffic, and public informational signs.  Other provisions exempt signs on vehicles that are not parked to attract attention and picket signs.  The exemption for picketing imposes further requirements:  each picketer is limited to carrying a single sign no larger than three square feet, and the picketer must actually move while carrying the sign
                

Foti and Larsen filed this civil rights action, seeking declaratory and injunctive relief and alleging that the ordinance violated their free speech rights "on-its-face" and "as-applied." ⁴ The district court denied their application for a temporary restraining order. Foti and Larsen then moved for a preliminary injunction, which was denied. The district court found that the ordinance, although presenting serious constitutional questions, was facially constitutional. The district court also ruled that the plaintiffs had presented inadequate evidence of discriminatory enforcement of the ordinance to establish the unconstitutionality of the ordinance as applied.

ANALYSIS

To succeed on this interlocutory appeal, Foti and Larsen must show a likelihood of success on the merits and the possibility of irreparable injury if denied the injunction or the existence of serious questions going to the merits and the balance of hardships tipping in their favor. See Gilder v. PGA Tour, 936 F.2d 417, 422 (9th Cir.1991). Although we review a district court's decision to deny a motion for a preliminary injunction for an abuse of discretion, see San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233 (9th Cir.1997)

, we review the legal issues underlying the district court's decision de novo, see Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir.1996).

A

At the outset, we address some apparent confusion regarding the meaning of a "facial" and an "as-applied" constitutional challenge. An ordinance may be facially unconstitutional in one of two ways: "either [ ] it is unconstitutional in every conceivable application, or [ ] it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad." See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 2124, 80 L.Ed.2d 772 (1984). In the first type of facial challenge, the plaintiff argues that the ordinance could never be applied in a valid manner because it is unconstitutionally vague or it impermissibly restricts a protected activity. See N.A.A.C.P. v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir.1984). In such a case, the litigant has standing to vindicate his own constitutional rights. See Vincent, 466 U.S. at 796, 104 S.Ct. at 2124. The second type of facial challenge is an exception to our general standing requirements: the plaintiff argues that the statute is written so broadly that it may inhibit the constitutionally protected speech of third parties, even if his own speech may be prohibited. See id. at 797, 104 S.Ct. at 2124-25. A successful challenge to the facial constitutionality of a law invalidates the law itself.

An as-applied challenge contends that the law is unconstitutional as applied to the litigant's particular speech activity, even though the law may be capable of valid application to others. See id. at 803 & n. 22, 104 S.Ct. at 2127-28 & n. 22. An as-applied challenge does not implicate the enforcement of the law against third parties. Rather, a litigant may separately argue that discriminatory enforcement of a speech restriction amounts to viewpoint discrimination in violation of the First Amendment. See I.N.S. v. Federal Labor Relations Auth., 855 F.2d 1454, 1467 (9th Cir.1988). As-applied challenges are the most common type of challenges to restrictions on speech activity and may be coupled with facial challenges. See, e.g., City of Richmond, 743 F.2d at 1352. A successful as-applied challenge does not render the law itself invalid but only the particular application of the law.

Here, Foti and Larsen bring the first type of facial challenge--any enforcement of the ordinance creates an unacceptable risk of the suppression of ideas--and an as-applied challenge to Ordinance No. 877. Inadequate evidence of the City's alleged discriminatory enforcement of the ordinance does not defeat their as-applied challenge. Thus, we consider both the facial constitutionality of the ordinance as well as its constitutionality as applied to their activities.

B

Public streets and sidewalks are "the archetype of a traditional public forum." Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988). ⁵ Regulation of speech in a traditional public forum "is subject to the highest scrutiny." International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 2705 (1992). The appropriate level of scrutiny is tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content. See Frisby, 487 U.S. at 481, 108 S.Ct. at 2500-01.

For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983) (citation omitted). Also, a content-based regulation of constitutionally protected speech must use the least restrictive means to further the articulated interest. See Sable Communs. of California v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989).

It is undisputed that Foti and Larsen's speech activity is constitutionally protected. See Frisby, 487 U.S. at 479, 108 S.Ct. at 2499-2500 (public issue picketing); Vincent, 466 U.S. at 803, 104 S.Ct. at 2127-28 (signs); Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939) (leafletting). ⁶ Thus, our principal inquiry is whether the government has adopted a regulation of speech "without reference to the content of the regulated speech." Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763, 114 S.Ct. 2516, 2523, 129 L.Ed.2d 593 (1994) (internal quotations omitted).

"As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 643, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994). At first blush, Menlo Park's ordinance appears to be content-neutral; after all, it bans all signs on all public property. But when "exceptions to the restriction on noncommercial speech are based on content, the restriction...