One World One Family Now v. City & County of Honolulu

76 F.3d 1009, 1996 WL 56288

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 1996
• Docket: Nos. 94-16373, 94-16511
• Status: Published

Opinions

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 substantial interest in protecting local merchants from unfair competition. See Turner Broadcasting Sys., Inc. v. F.C.C., — U.S. -,-, 114 S.Ct. 2445, 2469-70, 129 L.Ed.2d 497 (1994). One legitimate preoccupation of local government is to attract and preserve business. Cities rely on a prosperous, stable merchant community for their tax base, as well as for the comfort and welfare of their citizens. Here, the district court found that “the tax-free and rent-free activities of the plaintiffs ... have had a significant affect [sic] on the economy of the abutting shop owners on Kalakaua and Kuhio Avenues whose taxes and rent contribute to the welfare and economy of this state.” E.R. at 35. This kind of unfair competition threatens to erode tax revenues and undermine the strength of its commercial life.⁶ As amici remind us, plaintiffs can offer “remarkably low prices” in part because they pay no rent and aren’t subject to various municipal regulations. Given the district court’s findings, we must take seriously the concern that “[n]o ordinary merchant, forced to pay rent in Waikiki and comply with other applicable laws, possibly could compete with those prices for any significant period of time.” Br. Amici Curiae at 20.

Given the evidence before it and the deference due the city council’s determinations of necessity, see Turner Broadcasting, — U.S. at -, 114 S.Ct. at 2470-71 (plurality opinion),⁷ the district court didn’t err in concluding that the city had actual, significant interests. See id. at -, 114 S.Ct. at 2470 (plurality opinion) (requiring finding that “recited harms are real, not merely conjectural” to establish significant government interest); cf. id. at -, 114 S.Ct. at 2472-73 (Blackmun, J., concurring). Id. at - -, 114 S.Ct. at 2473-75 (Stevens, J., concurring).⁸

Honolulu’s peddling ordinance is narrowly tailored to serve these interests because they “would be achieved less effectively absent the regulation.” Ward, 491 U.S. at , 109 S.Ct. at 2758 (internal quotation marks omitted). Without the ordinance, sidewalk vendors (commercial and charitable alike) would be free to peddle their wares on Kalakaua and Kuhio Avenues, undermining the city’s efforts to provide a pleasant strolling and shopping area. See Appendix. A proliferation of sidewalk vendors could also aggravate the congestion on already crowded sidewalks and siphon off sales from local merchants. Because the peddling ordinance addresses these problems “without ... significantly restricting a substantial quantity of speech that does not create the same evils,” Ward, 491 U.S. at 799 n. 7, 109 S.Ct. at 2758 n. 7, section 29 — 6.2(b)(7) is narrowly tailored.⁹

Plaintiffs suggest less restrictive alternatives Honolulu could adopt to advance its interests, such as limiting the number of vendors, their hours of operation or the size and location of their stands. A reasonable time, place and manner regulation, however, need not be the “least restrictive or least intrusive” alternative. Id. at 798, 109 S.Ct. at 2757. “So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, ... the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” Id. at 800, 109 S.Ct. at 2758.

Honolulu’s peddling ordinance isn’t “substantially broader than necessary” to achieve its interests. The ordinance targets precisely the activity — sidewalk vending — causing the problems the city legitimately seeks to ameliorate, and it doesn’t sweep in expressive activity that doesn’t contribute to those problems. As in Vincent, the city “did no more than eliminate the exact source of the evil it sought to remedy.” 466 U.S. at 808, 104 S.Ct. at 2130.

3. Honolulu’s peddling ordinance also leaves open ample alternative channels of communication. The ordinance forecloses one narrow form of expression — sidewalk sales of message-bearing merchandise — and leaves the plaintiffs free to disseminate and seek financial support for their views through “myriad and diverse” alternative channels, such as handing out literature, proselytizing or soliciting donations. See ACORN v. City of Phoenix, 798 F.2d 1260, 1271 (9th Cir.1986) (ordinance prohibiting charitable solicitation from people in cars leaves open ample alternative channels of communication). In addition, plaintiffs’ volunteers may hand out free T-shirts to passers-by, see note 9 supra, or mingle with Waikiki’s tourist throngs wearing T-shirts (thereby acting as human billboards). Plaintiffs may also sell T-shirts through local retail outlets or by opening their own stores, so long as they comply with the regulations generally applicable to merchants.

Plaintiffs argue we must nevertheless invalidate the peddling ordinance because it prevents them from reaching their intended audience. They rely heavily on Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir.1990), where we invalidated the Coast Guard’s 75-yard security zone around the Aquatic Park Pier during annual Fleet Week activities on San Francisco Bay. We noted that the security zone effectively prevented the plaintiff from reaching its intended audience (military officers, local government officials and other dignitaries) because its protest messages couldn’t reach observers on the pier over 75 yards away. Id. at 1229-30. We emphasized that other channels of communication — passing out pamphlets or holding demonstrations on land — were “not viable alternatives because the invited visitors, who are the Peace Navy’s intended audience, are not accessible from those positions.” Id. at 1229 (internal quotation marks omitted).

Bay Area Peace Navy is inapposite. Nothing prevents plaintiffs here from reaching their intended audience — the tourists congregating in Waikiki. As noted, they have a number of alternative means of disseminating their message, each of which allows them to communicate effectively with people on the sidewalks.

Finally, plaintiffs claim that the Supreme Court’s recent decision in City of Ladue v. Gilleo, — U.S. -, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994), easts doubt on the validity of the ordinance. In Ladue, the Court struck down a broad ban on the display of signs on private residential property. The opinion rested heavily on the view that the city’s ordinance closed off a “unique and important” mode of expression for which there is “no practical substitute.” Id. at - -, 114 S.Ct. at 2045-46. The Court explained that “[displaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means.” Id. at -, 114 S.Ct. at 2046.

Plaintiffs argue that selling message-bearing T-shirts is a unique mode of expression akin to displaying a sign in front of one’s home. We are not persuaded. While wearing a message-bearing T-shirt might be a uniquely valuable mode of communication whose total ban could raise serious constitutional questions, cf. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), the same can’t be said for selling such a T-shirt on the sidewalk. A message on one’s person or home has a unique effect because it “provide[s] information about the identity of the ‘speaker’ [which is] an important component of many attempts to persuade.” Ladue, — U.S. at -, 114 S.Ct. at 2046. While selling T-shirts is a unique form of expression in the sense that serving message-bearing raviolis or preaching on street corners in a Donald Duck voice would be unique, it does nothing to make the message uniquely significant or effective. Various other traditional means of dissemination would get across exactly the same idea. Thus, we do not believe the sale of message-bearing T-shirts is so “uniquely valuable or important [a] mode of communication” as to be without effective substitute. Vincent, 466 U.S. at 812, 104 S.Ct. at 2132.

Ill

Although the district court refused to enjoin enforcement of the ordinance on Kalakaua and Kuhio Avenues, it granted a preliminary injunction for the rest of Waikiki, finding that the city had proved its interest only as to these two streets. E.R. at 31-35. Neither party asked for this Solomonic solution and, on appeal, both correctly argue that the district court erred in differentiating between Waikiki’s main and side streets. Cities need not prove up their interests on a block-by-bloek basis, particularly where the interests asserted are as basic and traditional as Honolulu’s. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981). The evidence before the district court focused on Kalakaua Avenue because that’s where most of the sidewalk vendors were operating. See Deposition of James McDonough at 37-38; Deposition of Anton Voight at 61-62. There was ample evidence, though, that the city’s interests in open and attractive sidewalks and fair competition extended throughout Waikiki. See, e.g., E.R. at 11-12 (district court’s findings indicating Waikiki’s history of special treatment in city ordinances); Defendant’s Ex. 8 at 43-55 (1992 Waikiki Master Plan indicating plans to improve and beautify streets throughout Waikiki); R.T. at 168-69 (testimony that landowners wouldn’t make crucial concessions to allow further implementation of Master Plan if widened and beautified sidewalks would be inhabited by sidewalk vendors). Indeed, these types of interests can be presumed to operate throughout a city, absent a strong showing to the contrary.

The district court also found that a ban throughout Waikiki didn’t leave ample alternative channels for plaintiffs to communicate their messages. Citing Clark and Gaudiya, it reasoned that a “total ban on selling expressive T-shirts in a heavily trafficked section of town” was impermissible. E.R. at 32-33. Neither we nor the Supreme Court have said any such thing. Rather, we have held broad and narrow bans in even the most desirable locations to the same standard. The broader the ban, of course, the more difficult it is to prove that the remaining means of communication are adequate. Difficult, however, doesn’t mean impossible. As discussed above, this ordinance meets the test.

Accordingly, plaintiffs showed no likelihood of success on the merits and the district court erred in granting their motion for a preliminary injunction, even in part. See Senate of California v. Mosbacher, 968 F.2d 974, 977-78 (9th Cir.1992).

X X *

Honolulu’s peddling ordinance is content-neutral, narrowly tailored to serve substantial interests throughout Waikiki, and leaves ample alternative channels of communication. We therefore AFFIRM the partial denial of plaintiffs motion for a preliminary injunction on its enforcement on Kalakaua and Kuhio Avenues and VACATE the preliminary injunction on its enforcement in other areas of Waikiki.

AFFIRMED IN PART; REVERSED IN PART.

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1 . "Harinam" apparently means “chant the name of god" in Sanskrit. Appellee’s Br. at 5.

2 . Waikiki is a relatively small, self-contained district within the city of Honolulu, comprising approximately 500 acres. Within it one can find, on any given day, the highest concentration of tourists in the city. It also has a large residential population.

3 . Below, plaintiffs purported to bring a facial challenge, as well. We assume they don’t appeal the district court's rejection of their facial challenge as they make no arguments to support such a challenge.

4 . The city doesn’t dispute that the sidewalks of Waikiki are a public forum, nor could it. See, e.g., United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983).

5 .Plaintiffs argue that the ordinance provides several exemptions that have the effect of discriminating on the basis of content. Its provisions do not apply to the “sale ... of newspapers of general circulation and to duly authorized concessions in public places." Honolulu, Haw., Rev.Ordinances § 29-6.2(b). The provision also exempts buttons and souvenir items sold in conjunction with a parade. Id. § 29-6.2(c). Because these exemptions don't enable the city to discriminate against ideas it disfavors, they don't render the ordinance content-based. See Leathers v. Medlock, 499 U.S. 439, 450, 111 S.Ct. 1438, 1445, 113 L.Ed.2d 494 (1991).

6 . Plaintiffs contend that the city failed to offer any concrete evidence demonstrating that their T-shirt sales actually harmed local merchants. But "the validity of [a time, place or manner] regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case.” Ward, 491 U.S. at 801, 109 S.Ct. at 2759.

7 . Although this portion of Justice Kennedy's opinion had only four votes, under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977), it's the holding of the case, since it was the "position taken by those members who concurred in the judgment! ] on the narrowest grounds.” See Turner Broadcasting, - U.S. at --, 114 S.Ct. at 2473-75 (Stevens, J., concurring) (advocating greater deference).

8 .The district court didn’t clearly err in finding that the city showed insufficient evidence that sidewalk vending was actually "causing a proliferation of fraud and duress among tourists and residents.” E.R. at 31. In any case, an ordinance that bans all sidewalk vending isn't narrowly tailored to eliminate fraud. Cf. Martin v. City of Struthers, 319 U.S. 141, 144-49, 63 S.Ct. 862, 863-66, 87 L.Ed. 1313 (1943) (ban on door-to-door handbilling not narrowly tailored to prevent crime and fraud).

9 . The ordinance doesn’t stop anyone from handing out T-shirts free of charge. This, plaintiffs argue, makes the ordinance invalid because handing out T-shirts causes the same harm to the city’s interests as selling them. The city, however, was entitled to conclude that fewer sidewalk vendors would come to hand out merchandise for free. The ordinance is therefore a "valuable, but perhaps imperfect” means of addressing the targeted problem. Clark, 468 U.S. at 297, 104 S.Ct. at 3071; cf. Vincent, 466 U.S. at 811, 104 S.Ct. at 2132 ("Even if some visual blight remains, a partial, content-neutral ban may nevertheless enhance the City's appearance.”).