One World One Family Now v. City and County of Honolulu, s. 94-16373

• Decision Date: 13 February 1996
• Docket Number: 94-16511,Nos. 94-16373,s. 94-16373
• Citation: 76 F.3d 1009
• Parties: , 24 Media L. Rep. 1434, 96 Cal. Daily Op. Serv. 981, 96 Daily Journal D.A.R. 1623 ONE WORLD ONE FAMILY NOW, a Hawaii non-profit corporation; James McDonough; Bhaktivedanta Mission, Ltd., a Hawaii non-profit corporation; Anton Voight, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU; Frank F. Fasi, individually and in his capacity as Mayor of the City and County of Honolulu; Michael Nakamura, Chief of Police; Donna Woo, individually and in her capacity as Special Deputy Attorney General of the State of Hawaii; and John Does 1-10, Defendants-Appellees. ONE WORLD ONE FAMILY NOW; James McDonough, an individual; Bhaktivedanta Mission, Ltd., a Hawaii non-profit corporation; Anton Voight, Plaintiffs-Appellees, v. CITY AND COUNTY OF HONOLULU; Frank F. Fasi, individually and in his capacity as Mayor of the City and County of Honolulu; Michael Nakamura, Chief of Police, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1009

76 F.3d 1009

64 USLW 2531, 24 Media L. Rep. 1434,

96 Cal. Daily Op. Serv. 981,

96 Daily Journal D.A.R. 1623

ONE WORLD ONE FAMILY NOW, a Hawaii non-profit corporation;

James McDonough; Bhaktivedanta Mission, Ltd., a

Hawaii non-profit corporation; Anton

Voight, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU; Frank F. Fasi, individually

and in his capacity as Mayor of the City and County of

Honolulu; Michael Nakamura, Chief of Police; Donna Woo,

individually and in her capacity as Special Deputy Attorney

General of the State of Hawaii; and John Does 1-10,

Defendants-Appellees.

ONE WORLD ONE FAMILY NOW; James McDonough, an individual;

Bhaktivedanta Mission, Ltd., a Hawaii non-profit

corporation; Anton Voight, Plaintiffs-Appellees, v. CITY AND COUNTY OF HONOLULU; Frank F. Fasi, individually and in his capacity as Mayor of the City and County of Honolulu; Michael Nakamura, Chief of Police, Defendants-Appellants.

Nos. 94-16373, 94-16511.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1995.

Decided Feb. 13, 1996.

Keith M. Kiuchi, Kiuchi, Nakamoto & Ahu, Honolulu, Hawaii, for plaintiffs-appellants One World One Family Now and James McDonough.

Daniel R. Foley, Partington & Foley, Honolulu, Hawaii, for plaintiffs-appellants Bhaktivedanta Mission, Ltd. and Anton Voight.

Kathleen M. Sullivan, Stanford, California, Darolyn H. Lendio, Donna M. Woo, Hazel G. Beh, Honolulu, Hawaii, and Jon M. Van Dyke, Honolulu, Hawaii, for defendants-appellees.

Stephen V. Bomse, Terri A. Little, Heller, Ehrman, White & McAuliffe, San Francisco, California, and James A. Stubenberg, Fredrick W. Rohlfing III, Stubenberg & Durrett, Honolulu, Hawaii, for amici curiae DFS Group L.P. and Kinkai Properties Ltd. Partnership.

Appeals from the United States District Court for the District of Hawaii; Harold M. Fong, Chief Judge, Presiding.

Before PREGERSON, KOZINSKI and HAWKINS, Circuit Judges.

KOZINSKI, Circuit Judge.

OPINION

An ordinance prohibits the sale of merchandise on city streets. We must determine whether it may be constitutionally applied to bar non-profit organizations from selling message-bearing T-shirts.

I

Plaintiffs One World One Family Now and Bhaktivedanta Mission are non-profit corporations operating in Hawaii. Both organizations sell T-shirts imprinted with various philosophical and inspirational messages, such as "Protect and Preserve the Truth, the Beauty & Harmony of our Native Cultures," Ex. 3, "TAKE IT EASY MEDITATE HANG LOOSE HAWAII," Ex. 4, and "WAIKIKI HAWAII HARINAM," Ex. 6. ¹ Many of the T-shirts feature colorful depictions of Hawaii's scenic natural beauty, not unlike shirts sold in retail stores catering to tourists. Plaintiffs believe that selling T-shirts is a particularly effective way to communicate because those who buy and wear the T-shirts help spread the message.

Aiming for a wide audience, plaintiffs, along with a number of commercial T-shirt vendors, set up several display tables on the sidewalks of Kalakaua Avenue, one of the busiest commercial streets in Waikiki. ² The City and County of Honolulu soon began to hear from visitors and local residents who complained that the T-shirt tables were an obstruction and an eyesore. Merchants with stores near the T-shirt tables also complained, citing a drop in their own sales of tourist-oriented merchandise, which they attributed to unfair competition from the sidewalk vendors.

The city notified the sidewalk vendors (including plaintiffs) that they were violating Honolulu, Haw., Rev.Ordinances § 29-6.2(b)(7), which bans the sale of all "goods, wares, merchandise, foodstuffs, refreshments or other kinds of property or services ... upon the public streets, alleys, sidewalks, malls, parks, beaches and other public places in Waikiki." After police threatened them with citations for failure to comply, plaintiffs sued for declaratory and injunctive relief under 42 U.S.C. § 1983, claiming that section 29-6.2 violated their First Amendment rights, and moved for a preliminary injunction.

The district court held an evidentiary hearing. Finding that the city was regulating the time, place and manner of speech pursuant to legitimate and significant interests, it refused to enjoin enforcement of the ordinance as to Kalakaua and Kuhio Avenues--the heart of Waikiki's commercial area and the focus of the city's evidence. The district court granted a preliminary injunction against enforcement of the ordinance in the rest of Waikiki, holding that the city hadn't shown a sufficient interest in keeping plaintiffs from selling there, or that doing so would leave adequate alternative means of communication. Both sides appeal.

II

Because the focus of the litigation has been on Kalakaua and Kuhio Avenues, we deal first with the district court's decision not to enjoin enforcement of the ordinance there.

A

Before we decide which standard to use in evaluating the ordinance, we dispose of a preliminary matter: the application here of our decision in Gaudiya Vaishnava Soc'y v. City and County of San Francisco, 952 F.2d 1059 (9th Cir.1990), cert. denied, 504 U.S. 914, 112 S.Ct. 1951, 118 L.Ed.2d 555 (1992). Plaintiffs argue that, under Gaudiya, their selling is constitutionally protected expression. The city claims plaintiffs' activities aren't constitutionally protected at all.

In Gaudiya, we addressed two questions, one of first impression, the other not. The novel question was whether an ordinance prohibiting charitable organizations from selling message-bearing merchandise implicated the First Amendment. Rejecting San Francisco's contention that selling goods was unprotected conduct, we held that, when the sale of merchandise bearing political, religious, philosophical or ideological messages is "inextricably intertwined" with other forms of protected expression (like distributing literature and proselytizing), the First Amendment applies. Id. at 1064. The mundane question followed: Whether San Francisco's ordinance facially violated the First Amendment by giving the police chief unbridled discretion to grant or deny peddling permits for an activity protected by the First Amendment. Following a well-worn path, see City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 756-57, 108 S.Ct. 2138, 2143-44, 100 L.Ed.2d 771 (1988) (collecting cases), we held the ordinance facially invalid. 952 F.2d at 1065-66.

Plaintiffs' activities closely resemble those in Gaudiya and the First Amendment therefore protects them. But there ends the similarity. In Gaudiya, the ordinance granted the police chief unbridled discretion to grant peddling permits and the plaintiffs there brought a facial challenge to this discretion. By contrast, Honolulu's ordinance is a flat ban; there are some exceptions, but no discretion to be exercised. Accordingly, on appeal, plaintiffs challenge section 29-6.2 only as applied to their activities. ³

B

Having determined that plaintiffs' T-shirt sales fall within the ambit of the First Amendment, we must decide whether Honolulu's ordinance is valid as applied to them. We use the standard governing time, place and manner restrictions. ⁴ Such restrictions are valid if they (1) are content-neutral; (2) are narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989).

1. A speech restriction is content-neutral if it is "justified without reference to the content of the regulated speech." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984). "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791, 109 S.Ct. at 2753. The test is whether the government has adopted the restriction "because of disagreement with the message it conveys." Id.

The district court found that the ordinance furthers three legitimate governmental interests: (1) "maintaining the aesthetic attractiveness of Waikiki," (2) "promoting public safety and the orderly movement of pedestrians," and (3) "protecting the local merchant economy." E.R. at 31. None of these interests concerns the content of speech, and there's no evidence that "the ordinance was designed to suppress certain ideas that the City finds distasteful or that it has been applied to [the plaintiffs] because of the views that they express." Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984). The ordinance imposes a flat ban, one that is applied without regard to content. Accordingly, it is content-neutral. ⁵

2. Cities have a substantial interest in protecting the aesthetic appearance of their communities by "avoiding visual clutter." Id. at 806-07, 104 S.Ct. at 2129-30. As the district court found, Honolulu's interest in eliminating the visual blight caused by unsightly vendor stands easily qualifies under this standard. Likewise, cities have a substantial interest in assuring safe and convenient circulation on their streets. See Cox v. Louisiana, 379 U.S. 536, 554-55, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965). The district court found that Waikiki is the center of the state's tourism industry, receives as many as 60,000 visitors a day, and consequently has "a large concentration of vehicles and pedestrians which causes unique traffic problems." E.R. at 11. Judged in light of "the characteristic nature and function of the particular forum involved," Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 651, 101 S.Ct. 2559, 2565, 69 L.Ed.2d 298 (1981), the city's interest in maintaining the orderly movement of pedestrians on Waikiki's crowded sidewalks is also substantial. See Appendix.

Finally, Honolulu has demonstrated a...