Blythe v. City of San Diego

• Court: District Court, S.D. California
• Decided: January 14, 2025
• Docket: 3:24-cv-02211
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DON BLYTHE, an individual, Case No.: 24-cv-02211-GPC-DDL

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR PRELIMINARY INJUNCTION 14 CITY OF SAN DIEGO,

15 Defendant. [ECF No. 9] 16 17 INTRODUCTION 18 This case involves a challenge to City of San Diego Ordinance O-21822 (“the 19 Ordinance”), which restricts First Amendment activity within 100 feet of health care 20 facilities, places of worship, and school grounds (“Covered Facilities”). ECF No. 1 21 (“Compl.”) ¶¶ 7-9; ECF No. 11-1 at 9-10. Within this radius, the Ordinance prohibits 22 individuals from “knowingly and willfully approach[ing] within eight feet of a person in 23 the public right-of-way or sidewalk area seeking to enter or exit a health care facility, 24 place of worship, or school grounds” to pass leaflets, display signs, or engage in oral 25 protest, education, or counseling, unless the individual first obtains consent. Compl. ¶ 9. 26 The Ordinance is a carbon copy of the ordinance the Supreme Court upheld in Hill v. 27 1 Colorado, 530 U.S. 703 (2000), except that the Ordinance includes places of worship and 2 school grounds, while the ordinance in Hill applied only to health care facilities, id. at 3 707. Plaintiff essentially argues that the addition of places of worship and school 4 grounds to the list of Covered Facilities places this Ordinance outside of what is 5 constitutionally permissible. 6 On November 25, 2024, Plaintiff Don Blythe sued the City of San Diego, claiming 7 that the Ordinance violates his free speech rights under the First Amendment of the 8 United States Constitution, on its face and as applied. Compl. ¶¶ 13-21. Currently before 9 the Court is Plaintiff’s motion for a preliminary injunction, which he filed on December 10 13, 2024. ECF No. 9. Defendant opposed the motion, ECF No. 11, and Plaintiff replied, 11 ECF No. 12. On January 6, 2025, the Court held a hearing and considered the parties’ 12 oral arguments on the motion. ECF No. 16. For the reasons below, the Court DENIES 13 Plaintiff’s motion for a preliminary injunction. 14 BACKGROUND 15 On November 25, 2024, Plaintiff filed a Complaint against the City of San Diego, 16 arguing that City of San Diego Ordinance O-21822 (“the Ordinance”) is unconstitutional. 17 See Compl. The Ordinance, which the City enacted on June 11, 2024, id. ¶ 6, reads in 18 relevant part: 19 (c) Consent Required. Within a radius of 100 feet of a health care facility, place of worship, or school grounds, 20 unless the person or motor vehicle occupant consents, no 21 person shall: (1) knowingly and willfully approach within eight feet 22 of a person in the public right-of-way or sidewalk 23 area who is seeking to enter or exit a health care facility, place of worship, or school grounds, to: 24 (i) pass a leaflet or handbill to that person; 25 (ii) display a sign to that person; (iii) engage in oral protest, education, or 26 counseling. 27 1 Id. ¶ 9; ECF No. 9-3 at 5; ECF No. 11-1 at 9-10.1 Plaintiff claims that the 2 Ordinance “prohibits constitutionally protected speech and assembly on public streets and 3 sidewalks.” Compl. ¶ 2. More specifically, Plaintiff argues that the Ordinance, on its 4 face and as applied to him, violates the First and Fourteenth Amendments to the United 5 States Constitution. Id. ¶¶ 12-21. 6 Plaintiff, “[m]otivated by his moral, religious, and political beliefs, . . . regularly 7 engages in pro-life, anti-abortion speech activities in California.” Id. ¶ 4. Specifically, 8 he “seeks to display and distribute written information and engage in thoughtful 9 discussions with college and high school students” dozens of times each year. Id. 10 Relevant here, Plaintiff intends to engage in such activities near high schools in the City 11 of San Diego. Id. ¶¶ 10-11. Plaintiff alleges that he, alongside others, intends to come 12 within eight feet of students as they leave school grounds to pass leaflets. Id. ¶ 11. 13 Plaintiff believes that “[o]btaining consent is an unrealistic requirement for distributing 14 literature to multiple people arriving in waves,” id. ¶ 12, and he is therefore concerned 15 that he will be arrested for failing to abide by the Ordinance if he carries on with his 16 intended activities, id. 17 As a result, Plaintiff brought the instant lawsuit against the City of San Diego. See 18 generally id. On December 13, 2024, Plaintiff filed a motion for a preliminary 19 injunction, seeking to enjoin enforcement of the Ordinance. ECF No. 9-1 at 1-2. 20 21 1 Both Plaintiff and Defendant request that the Court take judicial notice of their respective copies of the 22 Ordinance. ECF No. 9-3; ECF No. 11-1. Neither party opposes the other party’s request for judicial notice. Under Federal Rule of Evidence 201, a Court may take judicial notice of facts that are not 23 subject to reasonable dispute because they “can be accurately and readily determined from sources 24 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). “Municipal ordinance are proper subjects for judicial notice.” Tollis, Inc. v. County of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 25 2007); see also Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1025 n.1 (9th Cir. 2009) (taking judicial notice of a city ordinance); Santa Monica Food Not Bombs v. City of Santa 26 Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (same). The Court thus GRANTS the requests for judicial notice. 27 1 LEGAL STANDARD 2 A preliminary injunction is “an extraordinary remedy” that may only be granted if 3 Plaintiff demonstrates: (1) a likelihood of success on the merits, (2) a likelihood of 4 irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips 5 in his favor, and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. 6 Council, Inc., 555 U.S. 7, 20 (2008). 7 DISCUSSION 8 I. Likelihood of Success on the Merits 9 a. The Ordinance is Content Neutral 10 Content based laws “are presumptively unconstitutional and may be justified only 11 if the government proves that they are narrowly tailored to serve compelling state 12 interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). “Government regulation 13 of speech is content based if a law applies to particular speech because of the topic 14 discussed or the idea or message expressed.” Id. For instance, laws are content based if 15 they “target speech based on its communicative content,” id., or “single[] out particular 16 content for differential treatment,” Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th 17 Cir. 2009) (en banc). 18 Plaintiff argues that the Ordinance is content based and thus subject to strict 19 scrutiny. ECF No. 9-1 at 4. Specifically, Plaintiff contends that “the Ordinance bans 20 certain unconsented speech topics,” while leaving open other topics of casual 21 conversation, such as requests for directions or discussion of school assignments. Id. 22 Defendant responds that the Ordinance applies equally to all individuals regardless of the 23 content of their message or the viewpoint being communicated and is thus content 24 neutral. ECF No. 11 at 9. 25 The Ordinance does not facially distinguish between different topics of speech, 26 ideas, or messages. It applies to leafletting; displaying signs; and oral protest, education, 27 1 or counseling. See Compl. ¶ 9; ECF No. 11-1 at 9-10. Without any mention of 2 viewpoints or the subject matter of the communications, the Ordinance cannot be said to 3 “draw[] distinctions based on the message a speaker conveys.” Reed, 576 U.S. at 163. 4 The Ordinance applies equally to those handing out pamphlets about climate change, 5 those displaying signage about their religion, and those seeking to orally educate students 6 about gun control legislation. As such, the Ordinance is not regulating speech because of 7 the topics or ideas being discussed. 8 Several of the Supreme Court’s First Amendment cases are instructive here. In 9 Hill v. Colorado, 530 U.S. 703 (2000), the Court considered an ordinance with language 10 identical to the Ordinance at issue here. The ordinance made it unlawful within 100 feet 11 of the entrance to a health care facility to “‘knowingly approach’ within eight feet of 12 another person, without that person’s consent, ‘for the purpose of passing a leaflet or 13 handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with 14 such other person[.]” Id. at 707. When assessing whether the ordinance was content 15 neutral, the Court reasoned that it “places no restrictions on—and clearly does not 16 prohibit—either a particular viewpoint or any subject matter that may be discussed by a 17 speaker. Rather, it simply establishes a minor place restriction on an extremely broad 18 category of communications with unwilling listeners.” Id. at 723. The same reasoning 19 applies here, given the identical language of the ordinances. The Court has also found 20 similar restrictions on broad categories of communications to be content neutral because 21 they applied evenly to everyone, regardless of viewpoint or subject matter. See Heffron 22 v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 643-44, 648-49 (1981) 23 (finding rule that required all who desired to distribute materials at a state fair to do so 24 only from designated booths because “the Rule applies evenhandedly to all who wish to 25 distribute and sell written materials or to solicit funds”); Frisby v. Schultz, 487 U.S. 474, 26 27 1 477 (1988) (accepting lower courts’ conclusion that ordinance prohibiting all picketing in 2 residential areas, regardless of the underlying subject matter, was content neutral). 3 The Court is not convinced by Plaintiff’s attempt to create a content based 4 distinction in the Ordinance by distinguishing between the core First Amendment 5 activities restricted in the Ordinance and everyday conversation. The Ordinance restricts 6 broad categories of communications: leafletting, displaying of signs, and oral protests, 7 education, or counseling. That the Ordinance does not prohibit friendly conversation 8 about school assignments or weekend plans does not make it content based. This is a 9 distinction between different broad categories of communication, between protesting and 10 friendly conversation, between educating a stranger and catching up with a friend. The 11 Ninth Circuit recently found a regulation requiring a similar distinction between classes 12 of speech to be content neutral. See Project Veritas v. Schmidt, --- F.4th ----, 2025 WL 13 37879, at *4 (9th Cir. Jan. 7, 2025) (“[a] regulation may remain content neutral despite 14 touching on content to distinguish between classes or types of speech—such as speech 15 that constitutes solicitation . . . so long as it does not discriminate on the basis of 16 viewpoint or restrict discussion of an entire topic”). Further, this distinction does not 17 approach the type of content based distinctions that the Constitution admonishes. See, 18 e.g., Reed, 576 U.S. at 165 (finding municipal code to be content based because it defined 19 “Temporary Directional Signs,” “Political Signs,” and “Ideological Signs” differently and 20 then subjected each of the categories to different restrictions). 21 Moreover, the “knowing and willful” language in the Ordinance defeats Plaintiff’s 22 argument. An individual such as the Plaintiff, who seeks to engage in “hand-to-hand 23 leafletting, education about abortion, and holding signs with a pro-life, anti-abortion 24 message” in the vicinity of high schools, see Compl. ¶¶ 4, 10, is knowingly and willfully 25 engaging in the speech which the Ordinance restricts. On the other hand, a high school 26 student discussing a math assignment with a friend on their way into school is not 27 1 knowingly and willfully engaging in such First Amendment activities in the same way. 2 Such conduct cannot reasonably come within the reach of the Ordinance. See Hill, 530 3 U.S. at 722 (“[t]he regulation of such expressive activities, by definition, does not cover 4 social, random, or other everyday communications”). As a result, the Ordinance cannot 5 be said to distinguish between these two broad types of communication. For this 6 additional reason, Plaintiff’s argument fails. 7 Accordingly, the Court finds that the Ordinance is content neutral. 8 b. The Ordinance is a Valid Time, Place, and Manner Regulation 9 Plaintiff then argues that, even if the Ordinance is content neutral, it is still an 10 unconstitutional time, place, and manner regulation under intermediate scrutiny. ECF 11 No. 9-1 at 4-7. When the government imposes content neutral restrictions on speech in a 12 public forum, the restrictions must be “narrowly tailored to serve a significant 13 governmental interest” and “leave open ample alternative channels for communication of 14 the information.” McCullen v. Coakley, 573 U.S. 464, 477 (2014) (quoting Ward v. Rock 15 Against Racism, 491 U.S. 781, 791 (1989)). 16 i. Narrow Tailoring 17 “For a content-neutral time, place, or manner restriction to be narrowly tailored, it 18 must not ‘burden substantially more speech than is necessary to further the government’s 19 legitimate interests.’” Id. at 486 (quoting Ward, 491 U.S. at 799). The regulation need 20 not be the least restrictive means of serving the government’s interests, but the 21 government “may not regulate expression in such a manner that a substantial portion of 22 the burden on speech does not serve to advance its goals. Id. (quoting Ward, 491 U.S. at 23 798-99). 24 Plaintiff argues that the Ordinance is not narrowly tailored to further the 25 government’s interest in protecting vulnerable students at schools. ECF No. 9-1 at 5-7. 26 Plaintiff first tries to distinguish the instant case from Hill, a case which warrants more 27 1 discussion here. In Hill, the Court considered an ordinance with identical language, but 2 which only applied within 100 feet of health care facilities, and not places of worship or 3 schools.2 530 U.S. at 707. The Court found that the ordinance was narrowly tailored to 4 serve the governmental interest of protecting individuals seeking health care. See Hill, 5 530 U.S. at 729. The Court first noted that “[s]tates and municipalities plainly have a 6 substantial interest in controlling the activity around certain public and private places,” 7 including “schools, courthouses, polling places, and private homes.” Id. at 728-29. The 8 Court further “noted the unique concerns that surround health care facilities,” id. at 728, 9 as individuals entering and leaving these facilities “are often in particularly vulnerable 10 physical and emotional conditions,” id. at 729. 11 The Court found that the ordinance was “an exceedingly modest restriction on” 12 speech which was appropriately tailored to protect the vulnerable individuals entering 13 and exiting health care facilities. Id. The eight-foot zone does not negatively impact 14 demonstrators with signs, nor does it impact oral communicators, as eight feet still allows 15 a “normal conversational distance.” Id. at 726-27. Demonstrators can also remain in 16 place and allow willing pedestrians to pass within eight feet and accept any handbills. Id. 17 at 727. The Court reasoned that because the restriction “leaves ample room to 18 communicate a message through speech” and occurs “where the restriction is most 19 needed,” it is reasonable and narrowly tailored. Id. at 730. 20 Plaintiff argues that “those entering or leaving [these facilities] do not have a 21 presumptive need for this sort of physical or emotional buffer” and that thus “[n]o 22 authority supports such an expansion” of Hill. ECF No. 9-1 at 5-6. But, as Defendant 23

24 25 2 The ordinance in Hill “makes it unlawful within the regulated areas for any person to ‘knowingly approach’ within eight feet of another person, without that person's consent, ‘for the purpose of passing 26 a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person[.]’” Hill, 530 U.S. at 707. 27 1 points out in its opposition, see ECF No. 11 at 12-12, the Supreme Court has emphasized 2 the importance of protecting schools and students. In Hill, the Court noted that it has 3 “recognized the special governmental interests surrounding schools[.]” Hill, 530 U.S. at 4 728 (citing Grayned v. City of Rockford, 408 U.S. 104, 119 (1972)). In Grayned, the 5 Court reasoned that expressive activity can be restricted at schools if, for example, the 6 activity “materially disrupts classwork or involves substantial disorder or invasion of the 7 rights of others.” Id. at 118 (quoting Tinker v. Des Moines Independent Community Sch. 8 Dist., 393 U.S. 503, 513 (1969)). This is because “public schools in a community are 9 important institutions” which “could hardly tolerate boisterous demonstrators who . . . 10 block entrances[.]” Id. at 118-19. The city thus had a “compelling interest in having an 11 undisrupted school session conducive to the students’ learning[.]” Id. at 119. This is 12 precisely the compelling interest the City of San Diego has here. It hopes to “prohibit 13 unwanted approaches within eight feet to ensure students can attend school free from 14 harassment, obstruction, or intimidation.” ECF No. 11 at 13. The more important 15 question is whether the City has narrowly tailored the Ordinance to serve this interest. 16 Plaintiff attacks the Ordinance’s tailoring by arguing that “the legislative history of 17 the Ordinance contains no evidence of threats to ‘access [to] educational services,’ much 18 less that existing or alternative laws not restricting speech were insufficient to protect 19 access to such services.” ECF No. 9-1 at 6. But the Ordinance does state that 20 “demonstration activities around Covered Facilities have subjected students, teachers, 21 [and] parents . . . to harassment and abuse from people who attempt to block entrances 22 and exits to Covered Facilities and parking lots used to access these locations.” ECF No. 23 11-1 at 5. Further, the legislature noted that “aggressive demonstration activities pose 24 significant public safety threats” and that “places of worship and schools are increasingly 25 exposed to demonstration activities.” Id. 26 27 1 At the hearing on the motion, Plaintiff’s counsel further argued that there was a 2 lack of staff reports or other findings to justify the extension of Hill to schools. However, 3 the City Attorney’s staff report on the Ordinance provides support for the City’s interests 4 in extending Hill to schools.3 Ex. 1 at 2-3. The report notes that “schools have become 5 assembly places” and that “further demonstration activity is anticipated.” Id. at 3. The 6 report cited several school demonstrations in California that occurred in 2023, including a 7 Poway protest which led the school district’s board of directors to adjourn a public 8 meeting. Id. Further, a San Diego school board member testified to the City Council’s 9 Public Safety Committee that there have been “multiple instances of anti-vaccine 10 protestors blocking school operations during the pandemic.” Id. In all, the City 11 considered various sources in deciding that these restrictions are necessary near its 12 schools. The Court “generally defer[s] to the legislative body passing the law in 13 determining whether the government’s ends are advanced by a regulation.” G.K. Ltd. 14 Travel v. City of Lake Oswego, 436 F.3d 1064, 1073 (9th Cir. 2006). Accordingly, the 15 16 17 3 The staff report can be found as a “supporting document” to Item 52 (the Ordinance) on the San Diego 18 City Council’s May 21, 2024 agenda. See City of San Diego Council Agenda, City of San Diego (May 21, 2024), 19 https://sandiego.hylandcloud.com/211agendaonlinecouncil/Meetings/ViewMeeting?id=6048&doctype= 2&site=council#_Toc167976932. A link to download the staff report is available at 20 https://sandiego.hylandcloud.com/211agendaonlinecouncil/Documents/DownloadFile/Staff%20Report% 20for%20- 21 %20%20().pdf?documentType=1&meetingId=6048&itemId=233704&publishId=913312&isSection=Fa 22 lse&isAttachment=True. Federal Rule of Evidence 201(c)(1) permits the court to take judicial notice sua sponte. Bryan v. City of 23 Carlsbad, 297 F. Supp. 3d 1107, 1115 (S.D. Cal. 2018). The staff report is publicly available on the 24 City of San Diego’s website. Courts regularly find that such legislative reports may be judicially noticed. See San Diego Cnty. Lodging Association v. City of San Diego, 561 F. Supp. 3d 960, 964 n.3 25 (S.D. Cal. 2021) (taking judicial notice of staff report to San Diego City Council); Comm. to Protect our Agric. Water v. Occidental Oil & Gas Corp., 235 F. Supp. 3d 1132, 1152 (E.D. Cal. 2017) (taking 26 judicial notice of staff report on revisions to a county ordinance). Accordingly, the Court will take judicial notice of the staff report sua sponte and consider it in this Order. 27 1 Court will not question the City’s findings that this restriction tends to further its stated 2 goals.4 3 The Ordinance does not burden more speech than necessary to serve its goals. The 4 Supreme Court’s reasoning in Hill is on point here. The Court there found that eight feet 5 of separation will not impact readers’ ability to read signs; if anything, it will aid their 6 ability to read signs “by preventing others from surrounding them and impeding their 7 view.” 530 U.S. at 726. While oral communication might be more difficult for 8 demonstrators, the Ordinance “places no limitation on the numbers of speakers or the 9 noise level, including the use of amplification equipment,” id. and the eight-foot zone 10 “allows the speaker to communicate at a ‘normal communication distance,’” id. at 726-27 11 (quoting Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 377 (1997)). While 12 “the burden on the ability to distribute handbill is more serious,” the Ordinance does not 13 “prevent a leafletter from simply standing near the path of oncoming pedestrians and 14 proffering his or her material, which the pedestrians can easily accept.” Id. at 727. And, 15 at that point, pedestrians are “free to decline the tender.” Id.; see also Heffron, 452 U.S. 16 at 655 (noting that the First Amendment only protects the right to “reach the minds of 17 willing listeners”) (internal quotation marks and citation omitted). Demonstrators with 18 leaflets can thus peacefully pass out leaflets to willing listeners without physically 19 approaching unwilling listeners. Hill, 530 U.S. at 729-30. 20 The City has opted to protect those entering and exiting the Covered Facilities 21 “from unwanted encounters, confrontations, and even assaults by enacting an exceedingly 22 modest restriction on the speakers’ ability to approach.” Id. at 729. It does not outright 23

24 25 4 Plaintiff attempts to distinguish from G.K Ltd. Travel by pointing out that the legislature there deliberated heavily, received suggestions from the city’s residents, and referred to other city’s findings, 26 436 F.3d at 1073, while the process here does not appear to have been as thorough. But Plaintiff does not cite any authority to support the assertion that similarly extensive processes are required. 27 1 ban any form of protected speech. Demonstrators will be able to communicate their 2 messages and otherwise engage in protected speech, they will merely be unable to 3 lengthen interactions with unwilling listeners by remaining within eight feet of them 4 without their consent as they enter and exit school. Allowing such harassment of 5 uninterested students, for instance, could result in the disruption of school activities 6 which the Supreme Court was concerned about in Grayned, 408 U.S. at 118, and Tinker, 7 393 U.S. at 513, and which the City of San Diego is concerned about here. While 8 Plaintiff argues that the restriction is not the least intrusive method of preventing such 9 harassment, ECF No. 12 at 5, this contention is irrelevant because such a content neutral 10 restriction “need not be the least restrictive or least intrusive means of serving the 11 government’s interests.” McCullen, 573 U.S. at 486 (internal quotation marks and 12 citation omitted). 13 At the hearing on the motion, Plaintiff’s counsel suggested that Hill may not apply 14 to the instant case, which involves both a facial and as-applied challenge to an Ordinance. 15 In Hill, the Court decided a facial challenge and noted that “[s]pecial problems that may 16 arise where clinics have particularly wide entrances or are situated within multipurpose 17 office buildings may be worked out as the statute is applied.” 530 U.S. at 730. Based on 18 this dicta, Plaintiff’s counsel suggested that Hill would not extend to as-applied 19 challenges. But “the label is not what matters. Instead, the important point for 20 identifying the nature of a challenge is whether a plaintiff’s claim and the relief that 21 would follow reach beyond the particular circumstances of that plaintiff.” Project 22 Veritas, --- F.4th ----, 2025 WL 37879, at *4 (citing Doe v. Reed, 561 U.S. 186, 194 23 (2010)) (cleaned up). Plaintiff presently seeks a preliminary injunction to prevent 24 enforcement of the Ordinance pending the outcome of the litigation. This relief would 25 “reach beyond the particular circumstances of” Plaintiff and impact all prospective 26 demonstrators at Covered Facilities. Id.; cf. Reed, 561 U.S. at 194 (construing a request 27 1 for a preliminary injunction barring the secretary of state from complying with state 2 public records act as a facial challenge). To the extent special issues with the application 3 of the Ordinance arise at future points in this litigation, the Court will address them when 4 appropriate. 5 Accordingly, the Ordinance is narrowly tailored to serve the government’s interest 6 in protecting those entering and exiting health care facilities, places of worship, and 7 schools. 8 ii. Alternative Channels of Communication 9 Plaintiff briefly argues that the Ordinance does not leave open ample alternative 10 channels of communication. ECF No. 9-1 at 7. Specifically, Plaintiff argues that there is 11 no equivalent to distributing literature, and that the Ordinance severely obstructs this 12 channel of communication because there is “no substitute for being able to approach an 13 individual in order to hand out a leaflet without the encumbrance of seeking consent 14 first.” Id. 15 But as the Court in Hill pointed out, there are ample alternative channels of 16 communication here. As described above, Section I.B.i supra, the Ordinance hardly 17 impedes the reading of signs, allows for conversation at a reasonable distance, and gives 18 leafletters the option of either staying in place in pedestrians’ paths or obtaining consent 19 to approach pedestrians. See Hill, 530 U.S. at 726-28. While the Supreme Court has 20 noted that obtaining consent is a hindrance to leafletters’ ability to deliver handbills to 21 unwilling recipients, this simple fact did not change the result, as pedestrians are always 22 free to decline such offers anyways. Id. at 727-28. 23 At bottom, the Ordinance only restricts certain types of speech in “the place[s] 24 where the restriction is most needed.” Id. at 730. Demonstrators may still engage in First 25 Amendment activities at reasonable distances from students, and they are free from 26 restrictions as to willing listeners who provide consent. While Plaintiff complains that 27 1 handing out leaflets will be “simply impossible” at times when many students are coming 2 and going from school, the Court is not convinced that obtaining consent is so 3 insurmountable a task. And, even if it was, there are still ample alternatives for Plaintiff 4 to engage in expressive activity without disrupting the vulnerable individuals coming and 5 going from the Covered Facilities. See, e.g., Edwards v. City of Santa Barbara, 150 F.3d 6 1213, 1217 (9th Cir. 1998) (finding that driveway buffer zone at health care facilities 7 “permits ample alternative avenues of communication[] by placing no limit on speech or 8 expressive activity outside a narrow zone”). 9 Accordingly, the Court finds that the Ordinance is content neutral, narrowly 10 tailored to serve a significant government interest, and provides ample alternative 11 channels of communication. The Ordinance is thus a reasonable time, place, and manner 12 restriction. 13 c. The Ordinance is Not Overbroad 14 Plaintiff briefly argues that the Ordinance violates due process because it is 15 overbroad. ECF No. 9-1 at 7-8. A law is unconstitutionally overbroad “if it prohibits a 16 substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 17 (2008); see also Klein v. San Diego County, 463 F.3d 1029, 1037-38 (“[a] law is 18 overbroad if it . . . sweeps within its ambit other activities that in ordinary circumstances 19 constitute an exercise of freedom of speech”) (internal quotation marks and citations 20 omitted). The mere fact that some conceivable impermissible applications of a statute 21 exist is insufficient. Klein, 463 F.3d at 1038 (citing Members of City Council of City of 22 L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). Rather, the overbreadth must 23 be both real and substantial “in relation to the statute’s plainly legitimate sweep.” Id. 24 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1974)). 25 Plaintiff argues that the Ordinance does not even have a “plainly legitimate sweep” 26 because it “lumps together various different types of facilities, of which there are 27 1 hundreds in the City, and impose[s] restrictions on the speech of anyone seeking to 2 communicate with those entering or leaving them.” ECF No. 9-1 at 8. To this end, 3 Plaintiff relies on Houston v. Hill, 482 U.S. 451, 466-67 (1987), where the Supreme 4 Court invalidated an ordinance that “criminalize[d] a substantial amount of 5 constitutionally protected speech” and accorded the police excessive and unguided 6 discretion in deciding which violators to arrest. But the Ordinance at issue is different 7 from the ordinance in Houston in various respects. This Ordinance is likely not violated 8 nearly as often as the ordinance in Houston, which allowed officers to arrest anyone who 9 “in any manner . . . interrupt[s] any policeman in the execution of his duty.” Id. at 455. 10 And this Ordinance sweeps a much narrower scope of conduct within its reach. The 11 Ordinance targets only signage, leafletting, and oral protesting, as opposed to the 12 ordinance in Houston, which covered any speech that was broadly seen to abuse or 13 interrupt police offers. 14 In any event, Plaintiff’s argument that the Ordinance does not have a “plainly 15 legitimate sweep” falls short. To be sure, Plaintiff correctly points out that there are 16 many locations covered by the Ordinance. But the Supreme Court rejected a similar 17 argument in Hill v. Colorado. See Hill, 530 U.S. at 730 (“Petitioners argue . . . that the 18 statute is too broad because it protects too many people in too many places, rather than 19 just the patients at the facilities where confrontational speech had occurred”). The Court 20 reasoned that “[t]he fact that the coverage of a statute is broader than the specific concern 21 that led to its enactment is of no constitutional significance” because all persons entering 22 or leaving the facilities “share the interests served by the statute.” Id. at 730-31. And the 23 Court similarly distinguished from Houston v. Hill, where the ordinance attempted to 24 regulate nonprotected activity but covered protected speech as well. Id. at 731. 25 Plaintiff misunderstands the overbreadth doctrine in arguing that the Ordinance 26 does not have a “plainly legitimate sweep.” The Ordinance is a valid time, place, and 27 1 ||manner restriction on protected speech. By restricting protected speech in a 2 || constitutionally reasonable fashion, the Ordinance cannot be said to be overbroad. The 3 || Ordinance applies to all speakers other than Plaintiff in a similarly reasonable manner. 4 || Justice Jackson observed, “there is no more effective practical guaranty against 5 || arbitrary and unreasonable government than to require that the principles of law which 6 || officials would impose upon a minority must be imposed generally.’ Ry. Express 7 || Agency, Inc. v. New York, 336 U.S. 106, 112... (1949) (concurring opinion).” Hill, 530 8 ||U.S. at 731. Here, because the Ordinance applies generally to all individuals, it is not 9 || constitutionally overbroad. 10 CONCLUSION 1] The Court finds that Plaintiff has not shown a likelihood of success on the merits. 12 || As such, the Court need not address the other required showings for preliminary 13 |/injunctive relief. Accordingly, Plaintiff's motion for a preliminary injunction is 14 || DENIED. 15 IT IS SO ORDERED. 16 17 ||Dated: January 14, 2025 2 st 18 Hon. athe Coke 19 United States District Judge 20 21 22 23 24 25 26 27 16 28 24-ev-02211-GPC-DDL