Gaudiya Vaishnava Soc. v. City and County of San Francisco, 88-1904

• Decision Date: 26 December 1991
• Docket Number: No. 88-1904,88-1904
• Citation: 952 F.2d 1059
• Parties: GAUDIYA VAISHNAVA SOCIETY, a California religious non-profit corporation, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1059

952 F.2d 1059

GAUDIYA VAISHNAVA SOCIETY, a California religious non-profit corporation, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellant.

No. 88-1904.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 16, 1989.

Decided April 10, 1990.

As Amended on Denial of Rehearing and Rehearing En Banc Dec.

26, 1991.

Burk E. Delventhal, Deputy City Atty., San Francisco, Cal., for defendant-appellant.

Robert C. Moest, Fleishman, Fisher & Moest, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before BRUNETTI and NOONAN, Circuit Judges, and HUPP, ^* District Judge.

ORDER AND AMENDED OPINION

BRUNETTI, Circuit Judge:

This action challenges the constitutionality of an ordinance which regulates the sale of merchandise on public sidewalks by nonprofit groups. The district court concluded that the ordinance violated the nonprofits' First Amendment rights and enjoined its enforcement insofar as it prohibits the sale by nonprofit organizations of merchandise constituting or making a statement carrying a political, religious, philosophical or ideological message. We affirm.

BACKGROUND

The appellees are five nonprofit organizations engaged in a variety of charitable, religious and political activities in the San Francisco area. All five of the nonprofit groups have over the past several years sold various message-bearing ("expressive") merchandise such as T-shirts, books, buttons, stuffed animals, jewelry and bumper stickers. The district court in its findings described each organization: Gaudiya Vaishnava Society, a religious organization, performs sankirtan, a public ritual intended to disseminate the teachings of and win coverts to Gaudiya Vaishnavism. In the course of sankirtan, members collect alms and offer clothing for sale, some of which bear messages related to the organization's religious beliefs. Greenpeace Pacific-Southwest, Inc., is a nonprofit political group which advocates numerous environmental causes. As part of its activities, Greenpeace sets up tables in the City of San Francisco to bring its message to the general public and solicit financial contributions and membership. At these tables Greenpeace sells a wide variety of merchandise, including message-bearing T-shirts. All of its merchandise is intended to transmit messages, verbally or symbolically, about the causes Greenpeace espouses. San Francisco Nuclear Weapons Freeze Campaign is an unincorporated political organization that advocates "freezing" and reversing the production of nuclear arms. The organization is engaged in a campaign to inform the public about its beliefs. The group communicates its message and solicits money by setting up tables in San Francisco to distribute literature, solicit signatures on petitions, and sell buttons, postcards, bumper stickers and T-shirts. San Francisco CISPES is the San Francisco chapter of the Committee in Solidarity with the People of El Salvador. The Organization is opposed to the United States foreign policy regarding El Salvador and other Central American countries. To raise funds and disseminate its message, CISPES operates street corner tables, soliciting donations and offering for sale flyers, buttons, message-bearing T-shirts and literature. San Francisco Lesbian-Gay Freedom Day Parade and Celebration Committee, Inc. is a nonprofit educational organization which organizes civil rights events. The organization raises its operating budget by selling message-bearing buttons and T-shirts.

The nonprofits challenged San Francisco Police Code § 660.2(i) which prohibited nonprofit organizations from selling in the Fisherman's Wharf or Union Square areas of San Francisco without a commercial peddler's permit, any merchandise other than books, pamphlets, buttons, bumperstickers, posters, or items that have no intrinsic value other than to communicate a message. ¹ As originally enacted, the ordinance required nonprofits to register with the police department and make certain disclosures to the public regarding their purposes.

After the adoption of the ordinance, tourists, merchants and other citizens complained about the inadequate regulation of sales by charitable organizations. ² The ordinance was amended to require all individuals, including those hired by charitable organizations, to obtain a peddling permit before selling merchandise on public streets. The penalty for violation of the ordinance is a fine of fifty to five hundred dollars or imprisonment for repeated violations. San Francisco Police Code, § 869.1.

On 22 July 1986, one of the nonprofits, appellee Gaudiya Vaishnava Society ("GVS") instituted an action for injunctive and declaratory relief, and applied for a temporary restraining order. The other four named plaintiffs joined suit on 4 August 1986 when GVS filed an amended complaint.

The district court awarded the plaintiffs a preliminary injunction on 15 August 1986. The court informed the parties that it intended to issue an order enjoining § 660.2(i) only as it applied to the sale of "merchandise constituting or making a statement carrying a religious, political, philosophical or ideological message relevant to the purpose of the organization." The City objected as it did not want its police officers to have to determine which merchandise met this test. The court therefore enjoined the City from enforcing the entire ordinance.

Two months later, at the motion of the City, the court modified the injunction to reflect the initial proposed order. ³

Before the permanent injunction proceedings came before the district court, the City recodified § 660.2(i) as § 660.2(j) and amended it to its present form, excluding from the peddler permit requirement, the sale of merchandise which had no intrinsic purpose or value other than to communicate a message. ⁴ The parties agreed that the original preliminary injunction would apply to § 660.2(j). This amendment narrowed the issue before the district court to whether the City could regulate the sale of merchandise, such as T-shirts, stuffed animals or jewelry, constituting or making a statement carrying a message expressing the beliefs of a nonprofit organization.

On 21 March 1988 the district court issued its Findings of Fact and Conclusions of Law and its judgment granting plaintiffs a permanent injunction. The district court found that the sale of expressive items was protected by the First Amendment, and held that the City's commercial peddler's permit system was unconstitutional as it made issuance and revocation of permits discretionary, denied permits to charitable organizations, imposed an excessive application fee and annual tax, and made few if any permits available to anyone. This appeal by the City followed.

ANALYSIS

I

The district court's jurisdiction over the underlying litigation of this appeal is based on 28 U.S.C. §§ 1331 and 1343(a)(3). We have jurisdiction over an appeal from an order issuing a permanent injunction under 28 U.S.C. § 1291.

Our review of an order granting a motion for a permanent injunction is limited to determining whether the district court abused its discretion in issuing the order, based on erroneous legal standards, or clearly erroneous findings of fact. S.E.C. v. Goldfield Deep Mines Co. of Nevada, 758 F.2d 459, 465 (9th Cir.1985). However, we also review the permanent injunction for constitutional infirmity. Because this involves the application of undisputed facts to constitutional law, this review is done de novo. Portland Feminist Women's Health Center v. Advocates for Life, Inc., 859 F.2d 681, 684 (9th Cir.1988), citing Jews for Jesus, Inc. v. Board of Airport Commissioners of City of Los Angeles, 785 F.2d 791, 792 (9th Cir.1986), aff'd by 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). We conduct an independent review of the record to be sure that "the speech in question actually falls within the protected category", and to determine whether the constitutional factors have properly been applied. Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527 (9th Cir.1984), rev'd on other grounds, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).

Because this case involves a licensing ordinance which allegedly vests unbridled discretion in a government official over whether to deny or permit expressive activity, the nonprofits may challenge it facially without the necessity of first applying for, and being denied, a permit. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988).

Under Lakewood, "a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.... The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks." 486 U.S. at 759, 108 S.Ct. at 2145.

Here, the unguided discretion provided by the peddling-permit scheme grants the police chief complete power to allow or prohibit charitable sales solicitation for any reason, including the message conveyed by the sales pitch or by the goods themselves. Since the solicitations at issue here are protected expression, see infra, the scheme grants power to the chief of police to discriminate based on the content of protected expression.

The regulation also has a close enough nexus to expression to pose a real threat of censorship. Section 660.2(j) regulates conduct which is itself protected speech--charitable sales solicitation. The chief of police can use discretion to shut off plaintiffs' speech. This situation is different from one in which a law with no close connection to expression provides an official with discretion that might be used to reward or punish speech. See Lakewood,...