Court Upholds LAX Solicitation Ban, Ducks "Public Forum" Issue

In ISKCON v. City of Los Angeles (here), the California Supreme Court held that a ban on "Immediate solicitation" (i.e., soliciting an immediate contribution) in the public areas of Los Angeles Airport was a reasonable time, place and manner restriction, regardless of whether these areas constituted a "public forum" under the "liberty of speech" clause of the California Constitution (art. I, sec. 2(a)). The Court's earlier decision in Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352 (2000), had held that a ban on solicitation was not content-based. As a result, the solicitation ban at issue in ISKCON only had to satisfy the less exacting standards applicable to content-neutral time, place and manner restrictions--i.e., that they be narrowly tailored, serve a significant governmental interest and leave open ample alternative means of communication.

The Court first held that the narrow tailoring requirement does not incorporate a "less drastic alternative" standard--i.e., the government need not prove that no less speech-restricting alternative would further the same interest. Instead, it requires only that the challenged law promote a substantial governmental interest that would be achieved less effectively absent the regulation. The solicitation ban met this requirement (it's hard to imagine an ordinance that wouldn't) in light of the special intrusiveness of requests for an immediate donation of funds and the "often crowded and hectic environment of a large international airport." Moreover, solicitation of funds creates problems of duress and fraud that other speech does not. The Court rejected the district court's finding that these interests could only justify a ban on solicitation during peak hours or in busy locations, because these times and locations vary. Finally, the court held that the ban left open ample alternative means of communication; the plaintiff could solicit funds elsewhere and could even solicit in the airport as long as they did not ask for an immediate donation of money.

Justice Kennard concurred. She dissented in Los Angeles Alliance for Survival v. City of Los Angeles, and continued to believe that a solicitation ban was content-based. But, given that decision, she concurred that the solicitation ban met the time, place and manner standard. Indeed, she said so forcefully, stating that "[s]peech activities at airports that interfere with the legitimate interests of the airport management, arriving or departing passengers, or airline or airport employees need not be tolerated." She also indicated, somewhat contradictorily, that she viewed the public areas of LAX as a public forum. So, despite her strong language, it's not clear how she would have voted had she not been compelled to follow Los Angeles Alliance for Survival.

Justices Chin, Baxter and Corrigan also concurred, taking the opposite tack from Justice Kennard. They would have held that the common areas of LAX are not a public forum. Accordingly, they had no problem upholding the no-solicitation ban.

This opinion conforms California law to federal law in analyzing time, place and manner restrictions. Accordingly, it may have a broad impact outside the somewhat special context of airport speech.

Filing Foreign Lawsuit Not Protected By Anti-SLAPP Statute

In Geussous v. Chrome Hearts (here), the court held that filing a lawsuit in a foreign country does not constitute protected conduct under the anti-SLAPP statute, Code of Civil Procedure Section 425.16. The constitution protects the right to petition one's own government, said the court, not a foreign government.

California Constitution Does Not Offer Broader Protection For Public Employee Speech

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employee speech made pursuant to an employee's official duties enjoys no First Amendment protection. In Kaye v. Board of Trustees (here), the Court of Appeal has held that public employee speech enjoys no broader protection under the Free Speech Clauses of the California Constitution. The court held that neither the language nor the history of the California Constitution supports a broader interpretation, nor did the U.S. Supreme Court's decision in Garcetti diminish previously-granted rights or engender a firestorm of judicial and academic criticism. Moreover, the California courts have routinely followed federal decisions when it comes to public employee speech rights.

This decision raises an important issue that the California Supreme Court might well review. However, one issue is that Kaye is representing himself, which could make the Court reluctant to intervene. And it doesn't look like there were any amici in the Court of Appeal. Where are the ACLU and the public employee unions?

No Right Of Access To School Teacher Mailboxes

In San Leandro Teachers' Ass'n v. Governing Board (here), the California Supreme Court unanimously held that a school district may constitutionally exclude from the district's internal mailbox system communications from a teachers union supporting specific candidates in a school board election. The union acknowledged that it had no right of access to the mailboxes under the First Amendment, in light of Perry Education Association v. Perry Local Educators Association, 460 U.S. 37 (1983), one of the United States Supreme Court's earliest "nonpublic forum" cases. However. it urged that a different result should follow under the California Constitution's free speech clause, Article I, Section 2.

The Court disagreed. The Court did not make clear whether the three-tiered approach to public forum cases adopted by the United States Supreme Court is part of California law. Nor did it expressly disavow the "basic incompatibility" test adopted in U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory, 154 Cal.App.3d 1157 (1984). Instead, it simply held that "this prohibition on the use of government resources for political campaigning is a means of promoting an important government interest, i.e., maintaining the integrity of the electoral process by neutralizing any advantage that those with special access to government resources might possess."

As this quotation illustrates, the Court was obviously influenced by its prior decisions in Stanson v. Mott, 17 Cal.3d 206 (1976), and Vargas v. City of Salinas, 46 Cal.4th 1 (2009), which at least in part preclude the use of public resources to influence political campaigns. Yet the court also held that the school district's regulation was not statutorily compelled. It will be interesting to see what happens if a school district permits such communications and the union's disfavored candidate goes to court. The Vargas decision is discussed here.)

Court of Appeal Upholds Mobile Advertising Ban

in a 2-1 decision, the Court of Appeal, Second Appellate District, has upheld the City of West Hollywood's ban on "mobile commercial advertising." Showing Animals Respect and Kindness v. City of West Hollywood, available here. The challenged ordinance defined "mobile commercial advertising" as "any vehicle, or wheeled conveyance which carries, conveys, pulls or transports any sign or billboard for the primary purpose of advertising." However, the ordinance exempted buses, taxicabs, and any vehicle which displayed advertising or business identification of the owner, as long as the vehicle was engaged in the owner's normal business.

In an opinion by Justice Rothschild, the majority held that the ordinance applied to both commercial and non-commercial speech, that it was content-neutral, that it served significant governmental interests in promoting traffic safety, reducing air pollution and improving the city's aesthetic appearance of the city, and that it left the plaintiff--an animal rights group--ample alternative means of communication. In contrast, Justice Mallano's dissent argued that the ordinance should be interpreted as applying only to commercial speech, which would have rendered it inapplicable to plaintiff. He asserted, unlike the majority, that "the First Amendment protects the right of a vehicle owner to drive on public streets for the primary purpose of conveying a noncommercial message that appears on the vehicle."

Although the plaintiff contended that the ordinance violated both the federal and the state constitution, both the majority opinion and the dissent focused exclusively on the federal constitution. Neither addresses whether the state constitution might provide greater protection in this context than its federal counterpart.

Although there are lots of cases addressing the First Amendment implications of billboard advertising, this may be the first case involving an almost total ban on advertising placed on vehicles. None of the cases cited by either the majority or the dissent involves a local ordinance similar to the West Hollywood one. That may make the case review-worthy, particularly if the plaintiff can show that other cities have similar laws.