Roulette v. City of Seattle

78 F.3d 1425, 1996 WL 115937

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 1996
• Docket: No. 94-35354
• Status: Published

Opinions

OPINION

KOZINSKI, Circuit Judge.

The first step to wisdom is calling a thing by its right name. Whoever named “parkways” and “driveways” never got to step two; whoever named “sidewalks” did.

Seeing the wisdom of preserving the sidewalk as an area for walking along the side of the road, the City of Seattle passed an ordinance generally prohibiting people from sitting or lying on public sidewalks in certain commercial areas between seven in the morning and nine in the evening. SMC §§ 15.48.040.¹ The ordinance doesn’t restrict sitting or lying in public parks, private or public plazas, or alleys, nor sitting on the sidewalk in noncommercial areas of the city. It also permits sitting on the sidewalks in the commercial areas at night. No one may be cited, moreover, unless first notified by a police officer that he’s sitting or lying where he shouldn’t.

Plaintiffs come from many walks: homeless people and their advocates, social service providers, a deputy registrar of voters, a street musician, and various organizations like the Freedom Socialist Party and the Seattle chapter of the National Organization for Women. What brings them together, and what defines the class they represent, is that they all sometimes sit or lie on the sidewalk. Plaintiffs claim it is unconstitutional for the city to curtail their use of the sidewalk as a sideseat or a sidebed.

They filed suit under 42 U.S.C. § 1983, claiming that the sidewalk ordinance violates their rights to procedural and substantive due process, equal protection, travel and free speech.² Plaintiffs moved for summary judgment, asking the district court to declare the ordinance unconstitutional on its face. The district court denied the motion and, instead, granted the city’s cross-motion for summary judgment, holding that the ordinance is facially constitutional. Plaintiffs appeal only on First Amendment and substantive due process grounds.³ We review de novo.

I. FREE SPEECH

The First Amendment protects not only the expression of ideas through printed or spoken words, but also symbolic speech— nonverbal “activity ... sufficiently imbued with elements of communication.” Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974). Spence is a typical symbolic speech case. Appellant there had been prosecuted for displaying an American flag on which he had formed a peace sign with plastic tape.⁴ He did so in order to protest American bombing in Cambodia and the National Guard’s killing of anti-war demonstrators at Kent State. The context in which he acted made it highly likely that his message would be understood, whereas at another time it “might be interpreted as nothing more than bizarre behavior.” Id. at 410, 94 S.Ct. at 2730. His conduct thus amounted to expression, because “[a]n intent to convey a particularized message was present, and ... the likelihood was great that the message would be understood by those who viewed it.” Id. at 410-11, 94 S.Ct. at 2730. The Court held the statute unconstitutional “as applied to appellant’s activity.” Id. at 406, 94 S.Ct. at 2728; see also Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539-40, 105 L.Ed.2d 342 (1989) (burning an American flag as part of a political demonstration was symbolic speech under Spence).

Plaintiffs’ claim presents a rarely attempted, and still more rarely successful, twist on the Spence analysis: They argue not that the Seattle ordinance is invalid as applied to a particular instance of sitting on the sidewalk for an expressive purpose, but that the ordinance on its face violates the First Amendment.

Plaintiffs observe that posture can sometimes communicate a message: Standing when someone enters a room shows respect; remaining seated can show disrespect. Standing while clapping says the performance was fabulous; remaining seated shows a more restrained enthusiasm. Sitting on the sidewalk might also be expressive, plaintiffs argue, such as when a homeless person assumes a sitting posture to convey a message of passivity toward solieitees.

The fact that sitting can possibly be expressive, however, isn’t enough to sustain plaintiffs’ facial challenge to the Seattle ordinance. It’s true that our ordinary reluctance to entertain facial challenges is somewhat diminished in the First Amendment context. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 581, 109 S.Ct. 2633, 2637, 105 L.Ed.2d 493 (1989). However, this is because of our concern that “those who desire to engage in legally protected expression ... may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801-02, 86 L.Ed.2d 394 (1985).⁵ Consistent with this speech-protective purpose, the Supreme Court has entertained facial freedom-of-expression challenges only against statutes that, “by their terms,” sought to regulate “spoken words,” or patently “expressive or communicative conduct” such as picketing or handbilling. See Broad rick v. Oklahoma, 413 U.S. 601, 612-13, 93 5.Ct. 2908, 2916, 37 L.Ed.2d 830.⁶ Seattle’s ordinance does neither. By its terms, it prohibits only sitting or lying on the sidewalk, neither of which is integral to, or commonly associated with, expression.⁷ Subject to other valid legislation, homeless people remain free to beg on Seattle’s sidewalks, passively or not. Voter registrars may solicit applications for the franchise. Members of the Freedom Socialist Party may doggedly pursue petition signatures and donations, or distribute educational materials. And the National Organization for Women may hold rallies or demonstrations. Cf. Schneider v. New Jersey, 308 U.S. 147, 160-61, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939) (state may prohibit speaker from “taking his stand in the middle of a crowded street, contrary to traffic regulations ... since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.”).⁸

Plaintiffs and the dissent point to Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), where Justice Fortas, writing for himself and two others, found a breach-of-the-peace statute unconstitutional as applied to a peaceful “sit-in” demonstration. See id. at 138-43, 86 S.Ct. at 722-25 (opinion of Fortas, J., joined by Warren, C.J., and Douglas, J.).⁹ To the extent Justice Fortas’s opinion in Brown has any bearing in the context of this facial challenge, it supports the city’s position. Justice Fortas termed the protest there a “sit-in,” but only one of the five defendants actually sat — the other four stood. See id. at 136, 86 S.Ct. at 721 (“Brown sat down and the others stood near him.”), 139, 86 S.Ct. at 722 (“They sat and stood in the room, quietly, as monuments of protest____”). The conduct three members of the Court found expressive in Brown thus wasn’t the defendants’ postures; it was their “silent and reproachful presence,” id. at 142, 86 S.Ct. at 724 (emphasis added).¹⁰

In Broadrick, the Supreme Court expressly disavowed its prior cases to the extent they purported to sustain facial freedom of speech attacks on laws like the Seattle ordinance that, by their terms, prohibit only conduct. 413 U.S. at 613-15 & n. 13, 93 S.Ct. at 2916-18 & n. 13. The Court explained:

[F]aeial overbreadth adjudication is an exception to our traditional rules of practice and ... its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure’ speech toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.

Id. at 615, 93 S.Ct. at 2917-18 (citations omitted).

This reasoning is eminently sensible. One might murder certain physicians to show disapproval of abortion; spike trees in a logging forest to demonstrate support for stricter environmental laws; steal from the rich to protest perceived inequities in the distribution of wealth; or bomb military research centers in a call for peace. Fringe acts like these, however, provide no basis upon which to ground facial freedom-of-speech attacks on our laws against murder, vandalism, theft or destruction of property. Sec Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462 (1984); see also Henry P. Monaghan, “Overbreadth,” 1981 Sup.Ct. Rev. 1, 28 (“[T]he core point [of Broadrick is that] the Court will be hostile to facial condemnation of statutes whose central focus is prohibition of tangible harms unrelated to the content of the expression generated by the production of those harms.”).

The lesson we take from Broadrick and its progeny is that a facial freedom of speech attack must fail unless, at a minimum, the challenged statute “is directed narrowly and specifically at expression or conduct commonly associated with expression.” City of Lakewood, 486 U.S. at 760, 108 S.Ct. at 2145; compare Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07, 106 S.Ct. 3172, 3177, 92 L.Ed.2d 568 (1986) (“where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity,” the statute may be subject to First Amendment scrutiny) with City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) (“It is possible to find some kernel of expression in almost every activity a person undertakes— for example, walking down the street or meeting one’s friends at a shopping mall— but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”).¹¹ By its terms, the ordinance here prohibits only sitting or lying on the sidewalk. As we explained above, these are not forms of conduct integral to, or commonly associated with, expression. We therefore reject plaintiffs’ facial attack on the ordinance.

II. SUBSTANTIVE DUE PROCESS

Plaintiffs also argue that Seattle’s ordinance is facially unconstitutional under the Fourteenth Amendment’s Due Process Clause; in plaintiffs’ view, the ordinance is nothing more than a thinly veiled attempt to drive unsightly homeless people from Seattle’s commercial areas. The city counters that the ordinance is a legitimate response to substantial public concerns. As amicus American Alliance for Rights and Responsibilities explains on the city’s behalf, “[a] downtown area becomes dangerous to pedestrian safety and economic vitality when individuals block the public sidewalks, thereby causing a steady cycle of decline as residents and tourists go elsewhere to meet, shop and dine.” Brief of Amicus Curiae [American Alliance for Rights and Responsibilities] at 9. We need not reach the merits of these contentions, given the posture of this case: Plaintiffs’ substantive due process claim, like their First Amendment claim, challenges the statute on its face, not as applied. A facial attack on other than First Amendment grounds will fail unless the challenger shows that “no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). Plaintiffs have conceded that “the city may prevent individuals or groups of people from sitting or lying across a sidewalk in such a way as to prevent others from passing.” Reply Brief of Appellants at 6. The Seattle ordinance plainly may be applied to such cases, and plaintiffs’ facial substantive due process challenge therefore fails.

AFFIRMED.

1 .The ordinance reads as follows:

A. Prohibition. No person shall sit or lie down upon a public sidewalk, or upon a blanket, stool, or any other object placed upon a public sidewalk, during the hours between 7:00 a.m. and 9:00 p.m. in the following zones:

1. The Downtown Zone ...

2. Neighborhood Commercial Zones ...

B. Exceptions. The prohibition in Subsection A shall not apply to any person:

1. sitting or lying down on a public sidewalk due to a medical emergency;

2. who, as the result of a disability, utilizes a wheelchair, walker, or similar device to move about the public sidewalk;

3. operating or patronizing a commercial establishment conducted on the public sidewalk pursuant to a street use permit; or a person participating in or attending a parade, festival, performance, rally, demonstration, meeting or similar event conducted on the public sidewalk pursuant to a street use or other applicable permit;

4. sitting on a chair or bench located on the public sidewalk which is supplied by a public agency or by the abutting private property owner; or

5. sitting on a public sidewalk within a bus stop zone while waiting for public or private transportation____

2 . Plaintiffs also challenged SMC §§ 12A.12.015, which prohibits aggressive begging. The district court narrowly construed, limited and upheld that ordinance. No one appeals that ruling.

3 . Amici National Law Center on Homelessness & Poverty, et al., also raise right to travel and equal protection arguments in their brief. Because plaintiffs chose not to reassert these arguments, we decline to address them. See Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 862 (1982).

4 . For those too young to remember them, peace signs closely resemble the hood ornament on Mercedes-Benz automobiles.

5 . When we allow such challenges, we mostly say we’re protecting the free speech interests of "parties not before the Court.” See, e.g., Board of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569, 574, 107 S.Ct. 2568, 2572; 96 L.Ed.2d 500 (1987) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984)). Plaintiffs here are the class of all individuals who have sat or laid down, or will sit or lie down, on public sidewalks in the relevant portions of Seattle. In a sense, then, all the relevant parties are already "before the Court” — and there might therefore be no basis for entertaining a facial challenge at all.

6 . We know of no case decided after Broadrick in the Supreme Court or our court that is inconsistent with this principle. For example, the “disorderly conduct” statute struck down on its face in R.A.V. v. City of St. Paul, 505 U.S. 377, 380, 112 S.Ct. 2538, 2541, 120 L.Ed.2d 305 (1992), by its terms, prohibited placing on public or private property " ‘a symbol, object, appellation, characterization or graffiti, including ... a burning cross or Nazi swastika.’" See also Houston v. Hill, 482 U.S. 451, 460-61, 107 S.Ct. 2502, 2508-09, 96 L.Ed.2d 398 (1987) (verbally interrupting a police officer); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 959, 104 S.Ct. 2839, 2848, 81 L.Ed.2d 786 (1984) (soliciting); Buckley v. Valeo, 424 U.S. 1, 6-7, 16, 58-59, 96 S.Ct. 612, 628-29, 46 L.Ed.2d 659 (1976) (making political contributions and expenditures).

Similarly, we have held invalid on its face a statute that, by its terms, prohibited barroom topless dancing, BSA, Inc. v. King County, 804 F.2d 1104, 1106, 1109-10 (1986), a form of conduct we held to be expressive for First Amendment purposes, id. at 1107 (citing Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981)); see also Chase v. Davelaar, 645 F.2d 735 (1981) (sustaining facial freedom of speech attack on prohibition against topless entertainment in non-theatrical establishments, because “[ujnlike [the statute against draft card destruction upheld in [United State v.] O'Brien, [391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)] the law at issue here] is not attacked for implicating conduct, generally considered non-expressive, which the actor asserts to be communicative”).

7 . Plaintiff Johnny Hahn makes his living as a street musician; he claims it would be impossible for him to play his keyboard instrument without sitting. The district court believed Hahn might have a claim that the ordinance is unconstitutional as applied to him because the ordinance might make it impossible for him to communicate his message. The district court nevertheless correctly held that Hahn’s unusual predicament was an insufficient basis for striking down the ordinance on its face.

8 . Plaintiffs also offer evidence that certain of their number would find it difficult to participate in a rally or demonstration unless they could occasionally sit on the sidewalk to rest. The ordinance, however, doesn’t apply to people involved in a rally, demonstration or similar event conducted on the public sidewalk pursuant to a street use or other permit, SMC § 15.48.040.B.3, and plaintiffs haven't challenged the permitting procedure.

9 . Justice Brennan concurred only in the judgment; he would have held the statute unconstitutional on its face, without reaching the question of whether the protestors’ conduct was protected. Id. at 149-50, 86 S.Ct. at 728-29. Justice White also concurred only in the judgment, on equal protection grounds. Id. at 151-52, 86 S.Ct. at 729-30.

10 . The dissent also cites Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961), for proposition that sitting can be expressive. Diss. at 1431. It stands for nothing of the kind. The Court there reversed several breach of the peace convictions, not because they violated the First Amendment, but because they were “so totally devoid of evidentiary support as to render them unconstitutional under the Due Process Clause of the Fourteenth Amendment.” Id. at 163, 82 S.Ct. at 251. The dissent also holds out Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), as “suggest[ing] that a ban on sitting or lying in a public forum merits at least some First Amendment consideration.” Diss. at 1431. True enough. But Clark involved an as-applied challenge, not a facial attack. Id. at 289, 104 S.Ct. at 3066-67. The Court assumed without deciding that the camping in a public park there was expressive, and rejected the as-applied challenge on other grounds. Id. at 293-94, 104 S.Ct. at 3068-69. Nothing in Clark even remotely suggests that camping — or sitting or lying on the sidewalk — is so "commonly associated with expression” as to make a ban on that conduct subject to facial First Amendment scrutiny. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 2145-46, 100 L.Ed.2d 771 (1988). Of course, nothing we say today forecloses the possibility of mounting a successful as applied challenge to the Seattle ordinance. See, e.g., n. 7 supra.

11 . Loper v. New York City Police Dept., 999 F.2d 699 (2d Cir.1993), is consistent with this analysis: The statute there prohibited " ‘H]oiter[ing], remaining], or wander[ing] about in a public place for the purpose of begging’ ” id. at 701 (emphasis added), and, in the Second Circuit’s view, begging is an activity entitled to some First Amendment protection, id. at 704.