Last month Judge Dean Pregerson heard oral arguments on the City’s motion to dismiss this suit, filed by the Venice Justice Committee against the City of Los Angeles in opposition to its ham-fisted attempts to regulate speech on the Venice Boardwalk. Today he filed his order denying the motion to dismiss in part and granting it in part as well. Pregerson’s a lively writer, and the order makes interesting reading. There are three main issues addressed in the order.

First up, the City regulates vending on the Boardwalk in various ways, but contains an exception for soliciting donations and other activities protected by the First Amendment. Plaintiff Peggy Lee Kennedy was evidently told on a couple of occasions by LAPD officers that asking for donations was vending and that she had to stop or face arrest. Everyone agrees that these cops were in the wrong, but the question before the Court seems to have been whether the law “as applied” was unconstitutional. Pregerson found that it was not, and accordingly dismissed the parts of the complaint that had to do with that claim.

Second,¹ the Plaintiffs made claims under the Bane Act, which allows people to sue if their constitutional rights were violated maliciously. Pregerson found that even assuming that the Plaintiffs’ constitutional rights were violated, they weren’t violated maliciously. I’m skipping some details, but that’s essentially why he also dismissed this cause of action.

Finally, and most interestingly, we come to the Plaintiffs’ claim that the City’s so-called Sunset Provisions are unconstitutional. This claim has to do with LAMC 42.15, which regulates vending and other activities at Venice Beach. In particular it states that “[n]o person shall set up or set down items in, take down items from or block, or attempt to reserve a Designated Space² between Sunset and 9:00 am.”

The Plaintiffs make a so-called facial challenge to this, i.e. they argue that it’s always unconstitutional, no matter how it’s applied.³ The City said that this was wrong because of a different case that Pregerson dealt with, called Dowd. I grabbed a copy of this if you want to follow along, but I’m not going into details here, because⁴ Pregerson said that in this case the City’s arguments about Dowd were all wrong and he wasn’t even going to talk about them.⁵

“Turning to the question at hand,” as Pregerson says after finishing off the Dowd issue, the City has the right under the First Amendment, to establish time, place, and manner restrictions on speech if:

the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.

Thus the City has to argue successfully here that all three of these criteria are met by the Sunset Provisions. No one disputes the content-neutrality of the law, so that’s one down. For the next two, narrow tailoring and alternative channels, I’m going to let Pregerson speak for himself. I’m editing out citations to other cases,⁶ and some footnotes but you can find those in the order itself if you need them. Keep an eye out for Pregerson’s citation to the Farmer’s Almanac to support one of his arguments about the variability of the time of sunset. He talked about this a lot at the hearing, and seemed and seems quite proud of himself. I suppose he’s earned the right to be!

“A narrowly tailored time, place, or manner restriction on speech is one that does not ‘burden substantially more speech than is necessary’ to achieve a substantial government interest.” While the chosen restriction “need not be the least restrictive or least intrusive means” of achieving the governmental interest, “the existence of obvious, less burdensome alternatives is ‘a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.” In order to satisfy its burden, “the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.”

With regard to narrow tailoring, Defendant primarily focuses on the significant government interests served by the Sunset Provision. One such interest posited by Defendant is “ensur[ing] the Boardwalk is clean and safe for the crowds of people that will visit the following day.” Defendant also notes that the Ordinance itself lays out other governmental interests served by the Sunset provision. See LAMC § 42.15(B)(4). These interests include preventing the harassment of tourists, preventing altercations over limited spaces, facilitating foot traffic, reducing clutter, ensuring access to ingress and egress routes, protecting against the sale of harmful merchandise, reducing visual clutter, and reducing noise. Defendant further argues that Sunset Provision limits only one particular manner of engaging in speech–via tabling–and reiterates that the Boardwalk remains open to Plaintiffs “in all places and at all times” to engage in their advocacy provided they are not setting up a table.

Plaintiffs question the validity of Defendant’s assertions that the Sunset Provision actually furthers any of the claimed governmental interests. With regard to cleaning, Plaintiffs note that there are areas where tables can be put down at any time, thereby casting doubt on the City’s contention that Designated Spaces must be cleared after sunset for cleaning purposes.⁷ Plaintiffs also argue that alternative regulations such as limiting the size of tables used after sunset or limiting the amount of material on the ground could minimize the impact on any cleaning needs while imposing less of a burden on speech activities. Further, Plaintiffs note that engaging in alternative means of advocacy, such walking up and down the pier with materials instead of manning a table, might hinder rather than advance a number of the other stated governmental interests such as facilitating foot traffic, reducing harassment of tourists, and limiting visual clutter. As Plaintiffs note, the Ninth Circuit had reached a similar conclusion when addressing the constitutionality of a provision that required picketers carrying signs on a sidewalk to move continuously. (“Requiring picketers to shuffle back and forth does not contribute to safe and convenient circulation on sidewalks; presumably, pedestrians could better negotiate around a stationary picketer than one who is walking back and forth.”).

Ultimately, Defendant has not met its burden of demonstrating that the Sunset Provision is narrowly tailored to achieve substantial government interest. The City has laid out a case for why the interests it seeks to promote with the Sunset Provision are substantial. The goal of ensuring that the Boardwalk is clean and accessible and of ensuring more equitable access to Designated Spaces might be compelling. (“Cities do ‘have a substantial interest in protecting the aesthetic appearance of their communities by avoiding visual clutter . . . [and] in assuring safe and convenient circulation on their streets.’”) But “‘[i]f the First Amendment means anything, it means that regulating speech must be a last—not first—resort.’” The Ninth Circuit has previously held that “the erection of tables in a public forum is expressive activity protected by our Constitution to the extent that the tables facilitate the dissemination of First Amendment speech.” Plaintiffs have adequately alleged that they seek to use tables on the Boardwalk after sunset for precisely this purpose and that the City’s interference with this First Amendment right is not narrowly tailored. Thus, the court finds that Defendant has not met its burden on the narrow tailoring prong at the Motion to Dismiss stage.

And I thought I was going to cover the third part of this test, that there are adequate alternative channels of expression. But Pregerson says himself that it’s not necessary given his holding regarding narrow tailoring, and that he’s just considering it in case something’s wrong with his reasoning. It’s well worth reading, and you should read it, but I’m not going to write about it. And so the case goes on! Stay tuned for timely and comprehensive, albeit amateurish and possibly quite misleading, updates.

Image of clown on Boardwalk is released by its creator, Jonas Seaman, under the CC BY-NC-ND 2.0 and is available via Flickr.

1. Handled third in the order, but I’m dealing with it second for reasons of narrative structure.
2. “Designated Space” is a term of art in Venice Beach regulation. The meaning isn’t that important here, except keep in mind that Peggy Lee Kennedy had set up a table in one when the cops told her to scram.
3. Unconstitional “on its face” seems to be the source of the idiom.
4. I mean because this reason and also because I can barely follow the issue, which seems to be quite technical.
5. Except to explain at some length how they were wrong.
6. Not the quotes, just the citations.
7. [This is Pregerson’s footnote] The court further takes judicial notice of the fact that the sun sets in the Venice Beach area as early as 4:44 PM in December and as late as 8:09 PM in June, raising a question about why the city has elected a variable rather than fixed time for clearing the Boardwalk of tables. See The Old Farmer’s Almanac, almanac.com (2016), http://www.almanac.com/astronomy/rise/CA/Los Angeles/ (last visited August 30, 2016); see also Fed. R. Evid. 201.