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US Court of Appeals
U.S. Court of Appeals for the Ninth Circuit
PERRY V LAPD
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARRY NMI PERRY; ROBERT
NEWMAN, aka: "JINGLES",
LOS ANGELES POLICE DEPARTMENT;
CITY OF LOS ANGELES; JANE DOE
RODRIGUEZ, Police Officer; FRANK OPINION
MONTELONGO; WILLIE L. WILLIAMS,
Chief of Police,
Appeal from the United States District Court
for the Central District of California
Laughlin E. Waters, District Judge, Presiding
Argued and Submitted
August 4, 1997--Pasadena, California
Filed August 25, 1997
Before: Cynthia Holcomb Hall and Thomas G. Nelson,
Circuit Judges and B. Lynn Winmill, District Judge.*
Opinion by Judge Hall
*The Honorable B. Lynn Winmill, United States District Judge for the
District of Idaho, sitting by designation.
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1994 by Barclays Law Publishers.
Individual Rights/Freedom of Speech
The court of appeals reversed a judgment of the district
court. The court held that a municipal ordinance violates the
First Amendment by limiting a ban on sales and solicitations
in connection with protected expressive activity to persons
lacking nonprofit status.
In an effort to conform to a Supreme Court decision, appel-
lee City of Los Angeles passed an ordinance banning the sale
of goods or soliciting donations in an area adjoining the
Pacific Ocean, including the Venice Beach Boardwalk. There
were two exceptions to the prohibition: the sale of printed
matter usually sold by news vendors, and solicitation of dona-
tions and the sale of merchandise by a nonprofit organization
if it bore a religious, philosophical, or ideological message or
statement relevant to the purpose of the organization.
Appellant Harry Perry is a musician and performance artist
who solicits donations and sells recordings of his music. His
music has a religious content. Appellant Robert Newman
solicits donations and sells goods bearing messages and slo-
gans on behalf of an unincorporated animal-rights group.
Perry and Newman received citations from appellee Los
Angeles Police Department for violating the ordinance. Police
officers told them that they would have to provide documen-
tation of nonprofit status to continue their activities.
Perry and Newman brought a federal action against the
City and the Department, alleging that the ordinance infringed
their First Amendment rights in violation of the Equal Protec-
tion Clause. They challenged the ordinance as facially uncon-
stitutional, vague, and overbroad in that it prohibited political,
religious, and other expressive activities protected by the First
The district court issued a temporary restraining order pro-
hibiting enforcement of the ordinance against persons
engaged in expressive activity. Following a bench trial, the
court found that the plaintiffs sold wares that were inextrica-
bly intertwined with the messages they contained; the ordi-
nance prohibited the sale of the expressive matter; the City
had a substantial interest in protecting local merchants from
unfair competition from street vendors; and the City had a like
interest in limiting the number of sellers on the Boardwalk to
ensure the free flow of traffic.
The district court concluded that the wares were fully pro-
tected by the First Amendment; the ordinance was not
content-based; and the ordinance was a reasonable time,
place, and manner restriction. The court entered judgment for
the defendants. Perry and Newman appealed.
 In First Amendment overbreadth cases, courts allow lit-
igants to challenge a statute by showing that it substantially
abridges the First Amendment rights of parties not before the
court. Because the plaintiffs' claims were rooted in the First
Amendment, they could argue the impact of the ordinance on
their own expressive activities, as well as the expressive activ-
ities of others. The plaintiffs could bring a facial challenge to
 There was no dispute that the activities took place in a
public forum.  The items sold included music, buttons, and
bumper stickers bearing political, religious, and ideological
messages. They were expressive items, and did not lose their
constitutional protection simply because they were sold. 
When the commercial and expressive parts of speech are
inextricably intertwined, a court cannot parcel out the pro-
tected and unprotected parts.  The plaintiffs' expressive
activities were fully protected by the First Amendment.
 When a government allows some forms of protected
speech, the Equal Protection Clause is implicated, and the
government must show that the distinctions are finely tailored
to serve substantial state interests.  In a traditional public
forum, time, place, and manner restrictions on protected
speech are acceptable only if they are content-neutral, serve
a significant state interest in a narrowly tailored fashion, and
leave open ample alternative communication channels.
 A regulation is content-neutral if it is justified without
reference to the content of the regulated speech. The restric-
tion in this case referred to the content of speech; it permitted
nonprofit organizations to sell items "constituting, carrying,
or making a religious, political, philosophical, or ideological
message or statement relevant to the purposes of said non-
profit organization." A police officer enforcing the restriction
would have to look to the content of a nonprofit organiza-
tion's sales to determine whether it was relevant to the organi-
zation's purpose.  However, the actual ban on sales and
solicitations made no reference to content. There was no evi-
dence that the government adopted the restriction because of
disagreement with the message conveyed. It was possible to
proceed under the assumption made by the district court that
the ordinance was content-neutral.
 A government interest in protecting the safety and
convenience of persons using a public forum is a valid objec-
tive. Government interests in promoting public safety and the
orderly movement of pedestrians, and in protecting the local
merchant economy are also substantial. The interests articu-
lated by the City were significant state interests.
 Even when the government's interests are substantial,
the means chosen to effectuate them must be narrowly tai-
lored. In the area of free expression, broad prophylactic rules
are suspect. Precision of regulation must be the touchstone. A
government must serve its legitimate interests by narrowly
drawn regulations designed to serve them without unnecessar-
ily interfering with First Amendment freedoms.
 There was no justification for eliminating only individ-
uals with no nonprofit affiliation. There was no evidence that
those without nonprofit status were any more cumbersome on
fair competition or free traffic flow than those with it. There
was no justification for allowing those with membership in a
nonprofit organization to sell items and solicit donations,
while disallowing those with no nonprofit membership from
the same activities. The regulation was not narrowly tailored.
 The defendants' argument implied that the plaintiffs'
expressive activities should be accorded less protection than
they would if those same activities were conducted by non-
profit organizations. This type of speaker-based discrimina-
tion is unacceptable.  There is no authority limiting the
right to seek charitable donations or to sell expressive items
to those with membership in nonprofit organizations. Once it
was decided that the activity in this case was expressive and
fully protected by the First Amendment, the fact that the
plaintiffs were not nonprofit organizations did not affect the
level of protection accorded to their speech.
 The nonprofit distinction restricted a substantial quan-
tity of speech--expressive speech by people who are not non-
profit members--that does not create the same evils as purely
commercial activity on the Boardwalk, which is what the gov-
ernment admittedly wanted to restrict.  A reasonable time,
place, and manner restriction need not be the least restrictive
alternative available, as long as the means chosen are not sub-
stantially broader than necessary to achieve the government's
interest. As it stood, the ordinance was not sufficiently tai-
lored to the government interest it purported to advance. It
was therefore constitutionally deficient on its face.
James H. Fosbinder and Rhonda M. Fosbinder, Fosbinder &
Fosbinder, Venice, California, for the plaintiffs-appellants.
Vivienne A. Swanigan, Deputy City Attorney, Los Angeles,
California, for the defendants-appellees.
HALL, Circuit Judge:
Plaintiffs appeal from the district court's judgment for
defendants as a matter of law following the presentation of
plaintiffs' evidence in a bench trial. This court has jurisdiction
pursuant to 28 U.S.C. S 1291. We find Los Angeles Munici-
pal Code S 42.15 facially unconstitutional and REVERSE the
judgment of the district court.
Plaintiff Perry is a musician and performance artist who
solicits donations for his performances and sells recordings of
his music. He is a member of the Sikh religion, and his musi-
cal lyrics include excerpts from the Holy Book of his religion
and imply religious content.
Plaintiff Newman is an activist who, on behalf of the
"Animal Freedom Fighters," an unincorporated group of indi-
viduals, solicits donations and distributes messages regarding
animals' rights through the sale of literature, books, t-shirts,
bumper stickers, buttons, and other articles bearing political
slogans, such as "Meat is Murder."
Defendants are the Los Angeles Police Department
("LAPD"), the City of Los Angeles ("the City"), and officers
of the LAPD responsible for enforcing Los Angeles Munici-
pal Code S 42.15, which plaintiffs contend is unconstitutional.
Section 42.15 provides, "No person shall hawk, peddle or
vend any goods, wares or merchandise, or beg or solicit alms
or donations upon" any sidewalk, boardwalk, or public way
adjoining a specified length of the Pacific Ocean, includ
ing the area known as the Venice Beach Boardwalk
There are two exceptions to this prohibition. One is for the
sale of newspapers, magazines, periodicals "or other printed
matter commonly sold or disposed of by newsboys or news
vendors." The second is for "the solicitation of donations by
a non-profit organization [and] the sale of merchandise by a
non-profit organization constituting, carrying or making a
religious, philosophical or ideological message or statement
relevant to the purpose of said non-profit organization." The
exception for non-profit organizations was added in 1991 in
response to this circuit's decision in Gaudiya Vaishnava Soc.
v. City of San Francisco, 952 F.2d 1059 (9th Cir. 1990).
In 1995, both plaintiffs were told by members of the LAPD
that they must provide documentation of nonprofit status to
continue their activities. Each was given a citation for viola-
tion of S 42.15.
The plaintiffs claim that S 42.15 infringes on fundamental
First Amendment rights, in violation of the Equal Protection
Clause. They challenge section 42.15 as facially unconstitu-
tional, vague and overbroad in that it prohibits political, reli-
gious, and other expressive activities.
The district court granted a temporary restraining order on
May 8, 1995, enjoining enforcement of the ordinance against
individuals who were engaged in expressive activity, while
allowing enforcement of the ordinance against vendors
engaged in purely commercial sales, such as food.
At a bench trial, plaintiffs presented witnesses Perry and
Newman, who testified to the types of goods they sold and the
activities for which they solicited donations. At the close of
plaintiffs' case, the defendants moved for judgment on partial
findings pursuant to Fed.R.Civ.P. 52(c).
The district court granted defendants' motion, adopting the
findings of fact and conclusions of law prepared by defen-
dants. In doing so, the court found the following facts: plain-
tiffs sell wares that are inextricably intertwined with the
political, religious, sociological, and ideological messages
they contain; the ordinance prohibits the sales of plaintiffs'
expressive works; the City has a substantial interest in pro-
tecting local merchants from unfair competition and in attract-
ing and preserving business; the City also has a substantial
interest in limiting the number of sellers along the Boardwalk
to insure the free flow of traffic. The district court concluded
that, as a matter of law, the wares plaintiffs sell are fully pro-
tected by the First Amendment; section 42.15 is not content
based; and section 42.15 is a reasonable time, place and man-
ner restriction on the fully protected speech, citing One World
One Family v. City and County of Honolulu, 76 F.3d 1009
(9th Cir. 1996). Accordingly, it entered judgment for defen-
Plaintiffs objected to these findings of facts and law, and
the district court rejected those objections. Plaintiffs appeal.
II. Standard of Review
This court reviews a judgment as a matter of law de novo.
Pierce v. Multnomah County, 76 F.3d 1032, 1037 (9th Cir.
1996). Constitutional issues are reviewed de novo. United
States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir. 1996). A dis-
trict court's determinations on questions of law and on mixed
questions of law and fact that implicate constitutional rights
are reviewed de novo. Arab-American Anti-Discrimination
Comm. v. Reno, 70 F.3d 1045, 1066 (9th Cir. 1995).
A. Facial Challenge
 In First Amendment overbreadth cases, courts allow lit-
igants to "challenge a statute by showing that it substantially
abridges the First Amendment rights of other parties not
before the court." Village of Schaumberg v. Citizens for a Bet-
ter Environment, 444 U.S. 620, 634 (1980). This is because
of "the possibility that protected speech or associative activi-
ties may be inhibited by the overly broad reach of the statute."
Id. Because plaintiffs' claims are rooted in the First Amend-
ment, they may argue the impact of the ordinance on their
own expressive activities, as well as the expressive activities
of others. Schad v. City of Mount Ephraim, 452 U.S. 61, 66
(1981). Thus, plaintiffs may bring a facial challenge to this
B. Fully Protected Speech
We must first decide whether the activities involved here
are accorded full protection under the First Amendment.
 There is no dispute that these activities take place in a
public forum--a place that has "immemorially been held in
trust for the use of the public . . . for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions." Hague v. Committee for Indus. Org., 307
U.S. 496, 515 (1939). The Supreme Court has repeatedly rec-
ognized public streets as "the archetype of a public forum."
Frisby v. Schultz, 487 U.S. 474 (1988).
 The items sold here include music, buttons, and bumper
stickers bearing political, religious, and ideological messages.
These are expressive items, and they do not lose their consti-
tutional protection simply because they are sold rather than
given away. Heffron v. International Society for Krishna Con-
sciousness, 452 U.S. 640, 647 (1981); see also Schaumberg,
444 U.S. at 633; Gaudiya, 952 F.2d at 1064-65.
 In Riley v. National Federation of the Blind of North
Carolina, 487 U.S. 781 (1988), the Supreme Court found that
where the commercial and expressive parts of speech are
"inextricably intertwined," a court could not parcel out the
protected and unprotected parts of the speech. This court has
applied the "inextricably intertwined" standard to merchan-
dise like that at issue here; the Gaudiya court found that the
plaintiffs' street sale of merchandise with messages affixed to
the products was fully protected because the commercial and
noncommercial aspects of speech "inextricably intertwined."
Gaudiya, 952 F.2d at 1064-65; see also One World, 76 F.3d
at 1012 (finding sale of merchandise bearing political, reli-
gious, philosophical or ideological messages "inextricably
intertwined" with other forms of protected expression).
 Plaintiffs' expressive activities are of the same type
found to be fully protected in Gaudiya and in One World and
are fully protected by the First Amendment.
C. Government Restriction on Speech
 Because the First Amendment fully protects the activi-
ties at issue here, the question is whether the government has
placed a legitimate restriction on these activities. The govern-
ment restriction banning sales and solicitations of donations
contains an exception for non-profits. When a government
allows some forms of protected speech but prohibits other
forms of protected speech, the Equal Protection Clause is
implicated, and the government must show that the distinc-
tions are "finely tailored to serve substantial state interests."
Carey v. Brown, 447 U.S. 456, 461-62 (1980).
 In a traditional public forum, time, place, and manner
restrictions on protected speech are acceptable only if they are
content neutral, "serve a significant state interest in a nar-
rowly tailored fashion," and "leave open ample alternative
communication channels." Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1983); see also Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293
(1984). We examine each requirement in turn.
1. Content Neutral
 A regulation is content neutral if it is "justified without
reference to the content of the regulated speech. " Clark, 468
U.S. at 293. The restriction here does refer to the content of
speech; it permits non-profit organizations to sell items
"constituting, carrying or making a religious, political, philo-
sophical or ideological message or statement relevant to the
purpose of said non-profit organization." A police officer
enforcing this restriction would have to look to the content of
a non-profit organization's sales to determine whether it was
relevant to the organization's purpose. Appellants argue that
this part of the exception makes the ordinance content based.
 However, the actual ban on sales and solicitation of
donations makes no reference to content. The exception for
non-profits, which is arguably content-based, was added in
1991 in an effort to bring the statute in compliance with this
court's decision in Gaudiya. There is no evidence that the
government adopted the restriction "because of disagreement
with the message it conveys." Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). Thus, we will proceed under the
assumption made by the district court that the ordinance is
2. Significant State Interest
The government asserts a state interest in protecting local
merchants from unfair competition and in ensuring the free
flow of traffic along the Boardwalk.
 A government interest in protecting the safety and
convenience of persons using a public forum is a valid gov-
ernment objective. See Heffron, 452 U.S. at 650. Government
interests in promoting public safety and the orderly movement
of pedestrians, and in protecting the local merchant economy
are also substantial. One World, 76 F.3d at 1013. Thus, the
interests articulated by the City here are significant state inter-
3. Narrowly Tailored
Next, the court must examine whether the ordinance is nar-
rowly tailored to serve the interests of protecting local mer-
chants and aiding free traffic flow. This is where the
defendants' argument fails.
 Even when the government's interests are substantial,
the means chosen to effectuate them must be narrowly tai-
lored. In the area of free expression, "[b]road prophylactic
rules . . . are suspect. Precision of regulation must be the
touchstone . . ." Schaumberg, 444 U.S. at 637 (citations omit-
ted). A government may serve its legitimate interests, but "it
must do so by narrowly drawn regulations designed to serve
those interests without unnecessarily interfering with First
Amendment freedoms." Id. (citations omitted). The ordinance
here falls short of meeting this standard.
In Carey v. Brown, the Court invalidated an ordinance that
prohibited picketing in residential areas, where the ordinance
excepted picketing regarding labor issues. 447 U.S. 455
(1980). While the Court acknowledged the State's substantial
interest in protecting residential privacy, there was "nothing
inherent in the nature of peaceful labor picketing that would
make it any less disruptive of residential privacy than peace-
ful picketing on issues of broader social concern. " Id. at 466.
Even though the ordinance served the government interest by
reducing the total number of picketers, the distinction used to
effectuate the reduction was not narrowly tailored to the gov-
In City of Cincinnati v. Discovery Network, the Supreme
Court invalidated an ordinance that permitted newsracks on
public streets for newspapers, but did not permit them for
commercial handbills. 507 U.S. 410 (1993). The Court
accepted the government's legitimate interest in safety and
esthetics on city streets, and the proposition that less news-
racks would aid that interest. However, the Court found no
basis for distinguishing between the newsracks containing
newspapers and those containing commercial handbills. It
found that the newsracks containing commercial handbills
"are no more harmful than the permitted newsracks." Id. at
418. This was an "insufficient justification for the discrimina-
tion" against the commercial use of newsracks. Id. Because
each type of paper contributed equally to the safety and
esthetic concerns generated by newsracks on public streets,
the ordinance was not sufficiently tailored to the city's signifi-
In Schaumberg, the Supreme Court invalidated an ordi-
nance prohibiting door-to-door solicitations by charitable
organizations unless the organization used at least 75% of its
receipts for charitable purposes. The Court found that the jus-
tifications given by the government for limiting the total num-
ber of door-to-door solicitations were valid, but that the
distinction between the groups who could solicit and those
who could not solicit was not sufficiently tailored to serve
those purposes. The Court found that the ordinance advanced
the significant government purpose of protecting residential
privacy because it reduced the total number of door-to-door
solicitations. However, the means chosen to effectuate this
reduction were not narrowly tailored to the articulated inter-
est, absent a showing that groups giving less than 75% of their
money to charitable purposes were any more of an intrusion
than those giving more than 75% of their money. The Court
further noted that genuine concerns about preventing fraud
and harassment were already sufficiently covered by other
 Here, we are faced with the same issue as that in
Carey, Discovery Network, and Schaumberg--whether the
means the government uses to discriminate are narrowly tai-
lored to fit its interests. The City has a legitimate interest in
protecting merchants from unfair competition and in aiding
the free flow of traffic. A decrease in the total number of ven-
dors on the Boardwalk would aid that interest. However, there
is no justification for eliminating only those individuals with
no nonprofit affiliation. There is no evidence that those with-
out nonprofit status are any more cumbersome upon fair com-
petition or free traffic flow than those with nonprofit status.
There is no justification for allowing those with membership
in a nonprofit organization to sell items and solicit donations,
while disallowing those with no nonprofit membership from
the same activities. The regulation, like those in Schaumberg,
Carey, and Discovery Network, is not narrowly tailored
enough to pass muster.
Defendants attempt to explain their discrimination based on
nonprofit status. The non-profit requirement, they claim, pro-
vides a simple method of determining whether or not a person
is engaged in commercial activity, and of determining the
goals or message of the solicitor or seller. This argument fails
because plaintiffs' activities here are not purely commercial,
but rather "inextricably intertwined" with expressive activi-
ties; as such, they are fully protected First Amendment activi-
ties. Plaintiffs here do not have non-profit status; thus, a lack
of non-profit status cannot reasonably be a predictor of purely
Defendants also point to the fact that the Gaudiya plaintiffs
1 Defendants also argued to the district court that plaintiff Newman
could easily obtain nonprofit status and thus continue his activities along
the Boardwalk, again admitting that there is no substantive difference
between Newman's activities and those of non-profits. This argument con-
tradicts the argument they now make that there is a nexus between people
with no nonprofit affiliation and unprotected commercial activities.
were non-profit. However, Gaudiya stands for the proposition
that a government official cannot have unbridled discretion to
decide who may engage in protected activities in a public
forum. While the Gaudiya plaintiffs were non-profits, none of
the Gaudiya reasoning turned on this fact. While we are sym-
pathetic to defendants' attempt to alter its statute to comply
with Gaudiya, we cannot rely on their good intentions to
replace constitutional requirements.
 Defendants' argument implies that plaintiffs' expres-
sive activities should be accorded less protection than they
would if those same activities were conducted by non-profit
organizations. This type of speaker-based discrimination is
unacceptable. In Schaumberg, the Court found that the solici-
tation of charitable donations could not be regulated by a dis-
tinction based on who was doing the soliciting. The Court has
also noted that "government regulation may not favor one
speaker over another." Rosenberger v. Rector and Visitors of
the University of Virginia, 115 S.Ct. 2510, 2516 (1995). The
government's argument that prohibition of expressive speech
can turn on a person's membership in a non-profit organiza-
 There is simply no authority limiting the right to seek
charitable donations or to sell expressive items to those with
memberships in non-profit organizations. No other First
Amendment rights are restricted in such a manner. Once it is
decided that the activity here is expressive activity, fully pro-
tected by the First Amendment, the fact that plaintiffs are not
nonprofit organizations does not affect the level of protection
accorded to their speech.
 The district court relied on One World to find the ordi-
nance here a valid time, place or manner restriction. Accord-
ingly, appellees rely primarily on One World to support their
case. However, in One World, the restriction did not discrimi-
nate against certain types of speech depending on the speaker.
In fact, in One World, when the court analyzed whether the
ordinance was narrowly tailored, it reasoned that the ordi-
nance was narrowly tailored because it addressed the govern-
ment interests "without . . . significantly restricting a
substantial quantity of speech that does not create the same
evils." 76 F.3d at 1014 (citing Ward, 491 U.S. at 799 n.7).
Here, defendants claim to be prohibiting the evil of commer-
cial activity by prohibiting all soliciting of donations and sales
by anyone not affiliated with a nonprofit. However, the non-
profit distinction significantly restricts a substantial quantity
of speech--namely expressive speech by people who are not
nonprofit members--that does not create the same evils as
purely commercial activity on the Boardwalk--which is what
the government admittedly wants to restrict. Thus, applying
the reasoning of One World, rather than merely looking to its
result, one can see that the ordinance at issue here is not nar-
rowly tailored to serve government interests.
Appellees also point to City of New Orleans v. Dukes,
which upheld an ordinance distinguishing between food ven-
dors. However, this case is inapposite. 427 U.S. 297 (1976).
The Court applied the rational basis test, as there were no
First Amendment rights implicated in the selling of food. As
such, the distinction was upheld because it was not "wholly
arbitrary." Id. at 304. Here, the ordinance prohibits plaintiffs
from participating in constitutionally protected expressive
speech. Thus, the rational basis test applied in Dukes does not
 A reasonable time, place and manner restriction need
not be the least restrictive alternative available,"[s]o long as
the means chosen are not substantially broader than necessary
to achieve the government's interest." Ward, 491 U.S. at 800.
The ordinance, as it stands, is not sufficiently tailored to the
government interest it purports to advance. Therefore, it is
constitutionally deficient on its face.
The statute at issue here is overbroad. Given the significant
state interests of the City, the statute is overly inclusive
because it prohibits not only purely commercial activities, but
also protected expressive activities, like those of plaintiffs
here. Because the distinction between expressive activities by
members of nonprofit organizations and expressive activities
by others is not narrowly tailored to advance the govern-
ment's interests, the statute is unconstitutional on its face.
Because the distinctions made in the ordinance implicate
fundamental First Amendment rights, and they are not nar-
rowly tailored to the City's significant government interests,
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