Gathright v. City of Portland, or., 04-35402.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation439 F.3d 573
Docket NumberNo. 05-35506.,No. 04-35402.,04-35402.,05-35506.
PartiesEdward GATHRIGHT, Plaintiff-Appellee, v. CITY OF PORTLAND, OREGON, a municipal corporation; Pioneer Courthouse Square, Inc., an Oregon nonprofit corporation, Defendants-Appellants. Edward Gathright, Plaintiff-Appellee, v. City Of Portland, Oregon, a municipal corporation; Pioneer Courthouse Square, Inc., an Oregon nonprofit corporation, Defendants-Appellants.
Decision Date24 February 2006

Harry Auerbach, Office of City Attorney, Portland, OR, for the defendants-appellants.

Herbert G. Grey (argued) and Kelly E. Ford, Beaverton, OR, and John M. Lotz, Daehnke & Cruz, Irvine, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-03-00130-ALH.

Before: FISHER, GOULD and BEA, Circuit Judges.

FISHER, Circuit Judge:

This case concerns the intersection of two First Amendment rights: on the one hand, the classic right of an individual to speak in the town square; on the other hand, the interest organizations have in not being compelled to communicate messages not of their choosing. Plaintiff Edward Gathright is an evangelical Christian who preaches outdoors to the general public. In recent years, he has taken to doing so in various public locations in the City of Portland, including the Pioneer Courthouse Square and Waterfront Park, and often at privately sponsored, City-permitted events open to the public in those venues. Gathright himself has observed that it is "not unusual" for people hearing his jeremiads "to become upset" or "angry" when, for instance, he calls women "whores," "sluts," "Jezebels," "prostitutes" and "daughters of Babylon" or, at an event celebrating tolerance of homosexuality, he dons a t-shirt reading, "Got AIDS Yet?"

On at least six occasions, Portland's police officers forced Gathright to leave the open events he attended by threatening him with arrest for trespass. They did so not because Gathright violated a public nuisance law or like ordinance, but because Portland enforces the right of permit holders sponsoring an event to evict any member of the public who espouses a message contrary to what the permit holder wants as part of its event. Under Portland City Code ("PCC") 20.08.060, "[i]t is unlawful for any person unreasonably to interfere with a permittee's use of a Park." The criminal trespass statute under which Gathright was excluded defines trespass as remaining unlawfully on the premises of an event after failing to honor a permittee's lawful direction to leave the event. O.R.S. §§ 164.245, 164.205(3)(b). According to the City's policy, a permittee may order a person to leave an open event when that person "unreasonably" interferes with the permittee's use of the licensed space. The police will enforce that order and the attendee's failure to obey the permittee is a Class C misdemeanor under Oregon criminal law.

In January 2003, Gathright brought suit, alleging that his First Amendment rights had been violated by the City of Portland and Pioneer Courthouse Square of Portland, Inc., a private nonprofit corporation that manages the Square for the City. The district court applied the test for First Amendment claims relating to government property laid out in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The court concluded that the City's enforcement of its permittees' demands to eject Gathright infringed Gathright's First Amendment rights because the City's policy was not narrowly tailored to serve what the court acknowledged to be the City's legitimate interest in "protecting the free speech rights of permittees." The district court granted Gathright a preliminary injunction.1

After further proceedings, the district court in April 2004 entered a permanent injunction prohibiting the City from "removing plaintiff and others similarly situated from an area outside or inside of the boundaries under the control of an event permit unless there is probable cause to believe that they have violated a duly enacted statute or ordinance." The court also barred the City from enforcing PCC 20.08.060. The City timely appealed to this court.

Subsequently, the district court granted plaintiff's motion to modify the injunction. The modified permanent injunction requires the City to "delete from its event permits the `Rules of Conduct' section" that contained language authorizing "`Persons in Charge' to evict or exclude" people from events without probable cause; to notify all event permit holders of the injunction and its provisions; to add a section to event permits that "notifies future permit holders of the court's injunction"; to notify Portland's police officers of the same; and "not [to] place unreasonable time, place, and manner restrictions on plaintiff's speech, or that of others similarly situated to plaintiff." The City also appealed this modification, and we consolidated the two appeals.

Because the district court properly concluded that the City infringed Gathright's First Amendment rights, we affirm that part of its judgment. However, because the City of Portland has repealed and replaced the provision of the Portland City Code that was the basis of the district court's decision, we vacate the modified permanent injunction and remand to the district court to reconsider it in light of current circumstances.


"We review a district court's decision to issue a permanent injunction for abuse of discretion, but we review any determination underlying the court's decision by the standard that applies to that determination." United States v. Hovsepian, 359 F.3d 1144, 1156 (9th Cir.2004) (en banc). When, as here, the injunction turns on a question of law, "we review de novo the district court's injunction." Id.

A. The First Amendment

Gathright asserts his classic right to preach in the town square. See, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 579, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ("Our tradition of free speech commands that a speaker who takes to the street corner to express his views ... should be free from interference by the State based on the content of what he says."). The City in turn asserts its interest in protecting the right of organizations holding events not to be forced to include the words of a speaker "expressing a message not of the private organizers' own choosing." Id. at 566, 115 S.Ct. 2338. Gathright's right to speak must be weighed against the City's interest in protecting its permittees' speech from being diluted by what Gathright says.2

The City concedes that Gathright's preaching is a form of expression protected by the First Amendment. It argues, however, that its policy of allowing permittees to exclude people from events in public forums is a valid time, place or manner regulation of public property. In evaluating this proffered justification, we are guided by the Supreme Court's decisions in Ward and Hurley.

Hurley held that the State of Massachusetts could not require the organizers of an annual St. Patrick's Day parade to allow an organization in favor of gay rights to march in the parade. The Court explained that "[p]arades are ... a form of expression" entitled to First Amendment protection, 515 U.S. at 568, 115 S.Ct. 2338, and that those who organize parades "ha[ve] the autonomy to choose the content of [their] own message." Id. at 573, 115 S.Ct. 2338. The Court established that "when dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised." Id. at 576, 115 S.Ct. 2338. Under the circumstances in Hurley, the Court concluded that the organizers of the St. Patrick's Day parade had a First Amendment right not to be compelled to allow the gay-rights organization to march as part of the parade: to do so would have forced the parade's organizers to communicate a message they did not endorse.

The City argues that Hurley requires us to vacate the district court's injunction because the City's policy of evicting on request those who express messages the permittees disapprove of is a valid time, place or manner restriction. In support of its argument, the City marshals three points: first, its policy serves the legitimate, content-neutral interest it has in protecting permittees' right under Hurley to determine the contents of their own messages; second, the policy is narrowly tailored to that interest because it "limits only that speech which permittees have a right to exclude"; and third, Gathright has ample alternative channels of communication. See Ward, 491 U.S. at 791, 109 S.Ct. 2746.

We disagree with the City's reading of Hurley. Hurley involved the exclusion of those who wished to participate in the parade as marchers, not those who witnessed or opposed the procession. Cf. Mahoney v. Babbitt, 105 F.3d 1452, 1456 (D.C.Cir.1997) (refusing to extend Hurley to allow parade organizers to exclude people wishing to stand along parade route holding protest signs). As the district court has here observed, "[t]here is a distinction between participating in an event and being present at the same location. Merely being present at a public event does not make one part of the organizer's message for First Amendment purposes." Gathright v. City of Portland, 315 F.Supp.2d 1099, 1103 (D.Or.2004).

Applying Ward's criteria to the facts before us, we conclude that the City's policy is not a valid time, place or manner regulation of public space. See Ward, 491 U.S. at 791, 109 S.Ct. 2746. Solely for the purposes of the City's appeal, we accept its proposition that its policy is content neutral and that it has a significant interest in protecting the free speech rights of peo...

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