Regulating public food lines and demonstrations not unconstitutional
CITYWIDE — The Ninth Circuit Court of Appeals, long labeled the most progressive judicial body in the country, found free speech to be alive and well in Santa Monica as it has upheld a local law regulating public food lines and spontaneous demonstrations.
The law, officially known as the city’s Community Events and Food Distribution Ordinance, was passed in 2002 and requires groups of 150 people or more that gather in public places, including parks, streets and sidewalks, to obtain an event permit from City Hall, and if food is served, a permit from Los Angeles County health officials.
Those who choose to hold a spontaneous rally and therefore cannot apply for a permit in time for the event are allowed to gather, but must do so only on the lawn in front of City Hall.
Organizers who apply for permits also are required sign an agreement that protects City Hall against any lawsuits, liabilities or losses resulting from the event. If the group applying for a permit has a history of personal injury or property damage claims against them, they are required to purchase liability insurance.
The local law was challenged by civil rights activists, anti-war groups and organizations that provide food for the homeless at Palisades Park, City Hall and other locations throughout the city.
Carol Sobel, an attorney for Food Not Bombs, an anti-war group that provides food to the homeless, argued the law was too restrictive and inhibited free speech by requiring groups to apply for a permit at least 48 hours before an event, something which could be denied or delayed by City Hall. Sobel also argued portions of the law were too vague and that restricting spontaneous speech only at City Hall prevented groups from fully communicating their message because it separates them from the event they are protesting, whether that be a controversial figure speaking at a local college or a presidential candidate attending a fundraiser at a nearby hotel.
Obtaining insurance also was seen as a burden for many groups.
Sobel could not be reached for comment regarding the court’s opinion.
A panel of three judges interpreted the law differently, stating in their 66-page ruling which was issued on June 16, that the law “is a content-neutral time, place and manner restriction that does not violate the First Amendment.”
Essentially, City Hall has regulated free speech,but not to the point where it is prohibited— a delicate balance but one the justices found was reached in the local ordinance.
The court, which addressed 14 challenges to the law, did rule that two minor provisions were not constitutionally sound and, therefore, could not be enforced. That will have no dramatic effect on the law, said Barry Rosenbaum, City Hall’s senior land use attorney. The provisions had to do with the ordinance’s use of the word “may,” as well as the argument that if an event was advertised in local media, it is not assumed more people would attend.
The ruling was seen as a major victory for municipalities, which have long struggled with how to better regulate and protect the public during demonstrations, or in Santa Monica’s case, the public food lines for the homeless. City officials were worried that public safety could be threatened during some events and that some groups were dominating certain public spaces. There also has been some concern from city officials that public health standards are not being enforced during the feedings, and that the law could be a way to force food providers indoors.
There have been mixed results, as many food providers still hold public feedings or “family picnics,” but limit themselves to 149 people so as not to trigger the permit requirement.
City Councilman Richard Bloom said that despite those groups have learned how to tip-toe around the permit process, the law has worked. Through discussions with City Manager Lamont Ewell and former county Supervisor Ed Edelman, Santa Monica’s homeless czar, some food providers are giving up the picnics and are serving food at local social service agencies, thereby linking the homeless to more than just hot meals.
“Through the really terrific resources we have in the City Attorney’s Office, we were able to craft an ordinance that was sure to pass the muster of probably the most progressive appellate court that one would assume would be the most skeptical when it comes to abridging civil rights,” Bloom said. “This ruling is very important and allows us to be fair in the regulation of our public spaces.”
Paul Grymkowski, whose organization Helping Other People Eat (HOPE) serves about 100 to 150 people each Wednesday and Thursday at Palisades Park, said he had no comment on the ruling and how it would effect future food lines. However, he did say he has developed a stronger relationship with City Hall and is in talks with Ewell and Edelman to possibly move the feedings indoors.
“I don’t think the Ninth Circuit ruling will have any impact on the positive relationship we’re creating with the city,” Grymkowski said.
While the ruling may not have major implications for people like Grymkowski, Rosenbaum said it will certainly be helpful for other cities who have tried to regulate the use of open space, but have so far had their laws rejected by the courts, particularly when it comes to the indemnity clause and the advance-notification requirement, which is two days under the Santa Monica law.
Groups that have challenged the law have the option of requesting another hearing by an expanded panel of judges or appeal to the U.S. Supreme Court. Rosenbaum said he did not know if Sobel would file another appeal.
Rosenbaum said the total cost of defending the law over the last three years is unknown, but “we did spend a tremendous amount of man hours preparing for the arguments and in litigation.”
Originally published in the Santa Monica Daily Press print edition on June 21, 2006. Read the original PDF.