Appeals Court Upholds Events Ordinance

By Jorge Casuso

June 20 -- A Federal appeals court last week upheld most of the provisions in a Santa Monica law that requires City approval for parades, street demonstrations and gatherings in public parks of groups larger than 150.

Rejecting several constitutional challenges by Santa Monica Food Not Bombs and other plaintiffs, the Ninth U.S. Circuit Court of Appeals on Friday ruled 2 to 1 that the local regulation is not a form of illegal government censorship.

“Groups of 150 or more, whether demonstrating or playing soccer, are by any measure sufficiently large enough to affect or ‘have an impact on’ the use of Santa Monica’s public spaces by other citizens and therefore to implicate the City’s interest in maintaining the safe and compatible use of limited public open space,” the court wrote in a 70-page decision.

The plaintiffs challenged several provisions, including one that only grants permit exemptions to organizers of “spontaneous events” that take place within 48 hours after a news story becomes public and limits the demonstrations to the City Hall lawn.

The court disagreed with the plaintiffs’ argument that the 48-hour limitation was an unconstitutional burden on free speech.

“Were we to decide that the ‘spontaneous’ event could be based on older news,” the court wrote, “the exception would swallow the rule, and event organizers could simply avoid applying for a permit.

“The whole purpose of the spontaneous expression exemption is to accommodate speech when groups would otherwise be unable timely to seek a permit,” the court concluded. “Santa Monica’s exemption serves precisely this purpose.”

The court also ruled that the City can require permit holders to obtain insurance or hold the City harmless for damage resulting from their demonstrations.

In addition, the court ruled that the City can require organizers of parades and political demonstrations to pay the costs of lawsuits filed against the City by anyone who claims their property was damaged.

Those requirements are "neutral, common-sense protections against municipal liability'' that do not interfere with freedom of expression, Judge Andrew Kleinfeld wrote for the majority.

The court, however, ruled against the City on two of the 14 claims filed by the plaintiffs.

One of the sections of the law overturned by the court required organizers to obtain a permit for marches or events on a street that "may impede, obstruct, impair or interfere'' with traffic, regardless of the number of participants.

The court also struck down a provision that deemed any event advertised in advance on radio, television or distributed widely in print to draw at least 150 people, therefore requiring a permit.

“The language creates a per se rule, rendering any advertised event a qualifying one whether or not 150 or more people actually attend,” wrote dissenting judge Judge Marsha Berzon.

“As written, the (requirement) detaches the (provision) from the asserted interest of the City in allocating use of public open space by large groups” and “is not a narrowly tailored time, place, and manner restriction and cannot be enforced,” Berzon wrote.

Neither adverse ruling will significantly affect the City’s ability to maintain its permitting system, City officials said.

Lawyers for Food Not Bombs and other groups and individuals who challenged the ordinance, said the lawsuit, which they filed in 2003, had already forced the City to substantially ease its requirements and strike a key provision requiring a permit for distributing food on public property.

City officials applauded Friday’s ruling, which vacated a summary judgement to the City by U.S. District Judge Manuel L. Real of the Central District of California.

“This ruling will protect the City’s ability to assure shared and safe use of the City’s parks and streets, preserve public spaces for all City residents and visitors and ensure accountability for damage caused by events,” said Deputy City Attorney Barry Rosenbaum, who argued the case for the City.