Federal Judge Order in Santa Monica Nativity Scene Case

Case 2:12-cv-08657-ABC-E Document 39 Filed 11/29/12 Page 1 of 25 Page ID #:1235
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11
SANTA MONICA NATIVITY SCENES ) CASE NO.: CV 12-8657 ABC (Ex)
12 COMMITTEE, )
)
13 Plaintiff, ) ORDER GRANTING CITY’S MOTION TO
) DISMISS
14 v. )
)
15 CITY OF SANTA MONICA, et al., )
)
16 Defendants. )
_______________________________ )
17
18 Pending before the Court is Defendant City of Santa Monica’s (the
19 “City’s”) Motion to Dismiss, filed on October 31, 2012. (Docket No.
20 21.)1 Plaintiff Santa Monica Nativity Scenes Committee opposed on
21 November 12, 2012, and the City replied on November 19, 2012. The
22 Court finds this matter appropriate for resolution without oral
23 argument and VACATES the December 3, 2012 hearing date. Fed. R. Civ.
24 P. 78; Local Rule 7-15. For the reasons below, the motion is GRANTED
25 and this case is DISMISSED WITH PREJUDICE.
26
1
Plaintiff has dismissed the individually named City Council
27 Defendants with prejudice, leaving the City as the only remaining
Defendant. (Docket No. 33.) Therefore, the Court need not address
28 the portion of the motion directed at those Defendants.
1 BACKGROUND2
2 In this case, Plaintiff mounts a constitutional challenge to a
3 decision by the City of Santa Monica to repeal an exception to its
4 general ban on private “unattended displays” that operated to permit
5 certain unattended “Winter Displays” in the City’s Palisades Park
6 every December. On November 19, 2012, the Court denied Plaintiff’s
7 application for a preliminary injunction on the ground that Plaintiff
8 failed to raise serious questions that the City’s ban violated the
9 Free Speech and Establishment Clauses of the First Amendment or the
10 Equal Protection Clause of the Fourteenth Amendment. (Docket No. 38.)
11 The City has now moved to dismiss Plaintiff’s claims on the same
12 grounds, and for the same reasons, the Court concludes that
13 Plaintiff’s complaint must be dismissed with prejudice.3
14 As part of the limited and heavily used public space in the City,
15 Palisades Park is a narrow strip of park land bordering downtown Santa
16 Monica and overlooking the Pacific Ocean. (City’s Request for
17 Judicial Notice (“RJN”), Ex. L at 145.) The City’s Landmarks
18 Commission has designated it as a landmark and the City’s Local
19 Coastal Program Land Use Plan requires that its views be protected.
20 (Id. at 193—94.)
21 For decades during December a series of life-size displays
22 depicting the Christmas Nativity scene was erected in Palisades Park.
23 (Compl. ¶ 14.) From 1955 to 2010, this tableau was comprised of 14
24 separate 18-foot-long display booths, each of which “offered passersby
25 a three-dimensional glimpse” into the Nativity story. (Id. ¶¶ 14,
26
2
The City’s unopposed requests for judicial notice are GRANTED.
27
3
Plaintiff has since dismissed its equal protection claim with
28 prejudice. (Docket No. 33.)
2
1 20.)
2 These displays were allowed each year, despite several relevant
3 enactments of regulations by the City dealing with private unattended
4 structures on public park land. For example, in 1994 the City adopted
5 Ordinance No. 1749, which governed the utilization and maintenance of
6 City parks and effectively banned all unattended displays in City
7 parks. (RJN, Ex. B at 18—28.) Likewise, in 2001, the City adopted
8 Ordinance No. 2008, the City’s Community Events Ordinance, which
9 governs displays and installations in the context of a community
10 event, although those events are generally defined as limited-duration
11 gatherings of no more than 150 people and do not include unattended
12 displays erected for longer than one day. (Id., Ex. C at 36—37.)
13 In 2003, concerns arose about the lack of standards for private
14 unattended displays in Palisades Park, in part due to three groups
15 installing displays during the prior holiday season. (Compl., Ex. 2
16 at 2—3.) As the City staff noted, those displays were permitted as
17 community events, but the Community Events Ordinance neither
18 authorized nor prohibited them. (Id.) As a consequence, on September
19 9, 2003, the City adopted Ordinance No. 2095, which specifically
20 prohibited unattended displays, with exceptions for City-owned
21 installations and structures, installations authorized by a Community
22 Events Permit, and unattended displays or installations in Palisades
23 Park during the month of December (called “Winter Displays”). (Id. ¶¶
24 27—29, Ex. 3; RJN, Ex. F.) Under the Winter Displays exemption,
25 should the number of requested displays exceed the available space in
26 Palisades Park, space would be allocated on a first-come, first-served
27 basis regardless of the content of any displays or the applicant’s
28 identity. (RJN, Ex. F at 80.)
3
1 The City Council believed that this system permissibly regulated
2 private unattended displays within constitutional bounds consistent
3 with American Jewish Congress v. City of Beverly Hills, 90 F.3d 379
4 (9th Cir. 1996) (en banc). (Compl., Ex. 2 at 2.) On October 14,
5 2003, the City adopted Resolution No. 9898(CCS), which authorized the
6 installation of Winter Displays at (1) Palisades Park between Santa
7 Monica Boulevard and Arizona Avenue on the grassy area adjacent to
8 Ocean Avenue and (2) Palisades Park between Arizona Avenue and
9 Wilshire Boulevard on the grassy area adjacent to Ocean Avenue. (Id.
10 ¶ 30; City’s RJN, Ex. G.)
11 In August 2010, the City revised its guidelines for unattended
12 displays to establish a lottery in addition to the first-come, first-
13 served process in the event there were multiple requests submitted on
14 the same day for the same spots. (Compl. ¶ 36.) Staff divided the
15 area for displays in Palisades Park into 21 distinct “spots,” and
16 applicants could request up to nine spots in an application. (Id. ¶
17 38; RJN, Ex. H at 89.)
18 In 2010, one of the applicants for displays was Damon Vix, an
19 outspoken critic of the Nativity Scenes erected in Palisades Park.
20 (Compl. ¶ 37.) He obtained space for 14 booths, but only erected one
21 display (which he had also erected in 2009), which contained a chain-
22 link fence and a structure displaying a quote from Thomas Jefferson
23 that “Religions are all alike — founded upon fables and mythologies.”
24 (Id. ¶¶ 35, 37.)
25 Plaintiff alleges that in 2011 Vix “recruited” other secular
26 groups to apply for the maximum number of spots to increase their
27 chances in the lottery. (Id. ¶ 38.) As a result, Staff received a
28 total of 13 applications on the first day of the filing period in
4
1 2011, and they conducted a lottery to establish a priority list.
2 (RJN, Ex. H at 89.) The lottery resulted in only four applications
3 receiving spots: two applicants each received all nine spots
4 requested; one applicant received the one spot requested; and one
5 applicant requested nine spots but received only the remaining two.
6 (Id.; Compl. ¶ 40.) “Secular” groups obtained 18 of the 21 available
7 spots, which they used for “anti-religious” messages and signs.
8 (Compl. ¶ 38.) Plaintiff received two spots and Chabad of Santa
9 Monica received one space for a menorah. (Id.) Given the number of
10 spaces that went to displays advocating atheism, the City received a
11 large number of complaints, “ranging from complaints about having any
12 displays at all to complaints that only religious displays should be
13 allowed.” (Id. ¶ 42.)
14 As a result of the City’s experience in 2010 and 2011, the City
15 Attorney recommended in February 28, 2012 that the Winter Displays
16 exemption be eliminated. (Id. ¶ 42, Ex. 8.) The recommendation was
17 justified by (1) citizen complaints about preserving the aesthetic
18 qualities of Palisades Park rather than continuing the displays; (2)
19 the time-consuming and costly lottery system, which would likely
20 become only more burdensome because applicants indicated they would
21 “flood” the lottery process in the future; and (3) the option for
22 applicants to erect displays on private property. (Id. ¶ 43.) The
23 City Attorney also expressed the view that the City could not “pick
24 and choose which displays to allow based on the displays’ message,
25 content or identity of speaker”; “favor one religious message over
26 another religious (or anti-religious) message”; or “favor a particular
27 religious display because it has become a tradition or because the
28 organizers are based in Santa Monica.” (Id. ¶ 43.) The City Attorney
5
1 also recommended “against attempting to select park displays based on
2 religious or other content or based on ‘tradition’ because doing so is
3 legally indefensible.” (Id., Ex. 8 at 2.)
4 The City Attorney issued another report on June 12, 2012, noting
5 that, “in order to resolve controversy and conserve City resources,”
6 City staff proposed repealing the exception for Winter Displays,
7 explaining that some individuals wanted to preserve the “traditional”
8 Nativity scenes, others favored the City’s lottery system but with a
9 requirement that displays have aesthetic merit, and yet others felt
10 that “the juxtaposition of religious and anti-religious displays was a
11 distressing symbol of conflict inconsistent with values of peace and
12 harmony that many associate with the holiday season.” (Id., Ex. 11 at
13 1—2.) The report outlined reasons for eliminating the exemption,
14 including to “(1) [r]esolve the controversy; (2) [e]liminate legal
15 risks; (3) [c]onserve staff time and resources ‘necessary to operate a
16 constitutionally valid regulatory system’; (4) [c]onform usage of
17 Palisades Park to a ‘long-standing, City-wide standard’ prohibiting
18 unattended displays in parks; and (5) [p]rotect the views of the park
19 and the ocean from Ocean Avenue without precluding the installation of
20 displays on other non-governmental property.” (Id. ¶ 46.)
21 The City Council held a hearing in June 2012 on repealing the
22 exception. (Id. ¶ 48, Ex. 12.) At the hearing, City Council Members
23 expressed concerns about the dispute among applicants wanting to erect
24 religious displays like Plaintiff’s and applicants who wished to erect
25 non-religious (and potentially anti-religious) displays. For example,
26 Council Member McKeown was “troubl[ed]” by the “hostility” and
27 “intolerance . . . heard from both sides” (Id. ¶ 50, Ex. 12 at 25);
28 Council Member Holbrook noted that some displays were “controversial”
6
1 and staff had received threats from unidentified individuals (id. at
2 27, 31); and Council Member O’Day noted that there had been conflict
3 on both sides of the issue and that some of the non-religious displays
4 might be offensive (id. at 15—16).
5 However, the City Council also articulated concerns for the
6 displays’ aesthetic impacts on the park, the reduction in available
7 park space for other recreational uses, the use of City resources for
8 the application process, and for the legal implications of altering
9 the first-come, first-served application process short of banning all
10 unattended displays. (Id. at 3—12.) The City Council members also
11 noted the availability of alternative avenues for speech, including
12 leafletting or talking to others in Palisades Park, erecting displays
13 pursuant to a Community Event Permit, erecting displays that are
14 attended, or erecting displays on private property. (Id. at 8.)
15 Eventually on June 26, 2012, the City adopted Ordinance No. 2401,
16 which amended the Municipal Code to eliminate the exception for Winter
17 Displays and banned all unattended private displays in Palisades Park.
18 (RJN, Ex. K.) The preamble to the ordinance explained in detail the
19 justifications for its passage, including: (1) the rise in
20 applications in 2011, requiring the lottery and utilization of all
21 allocated space; (2) the complaints the City received about the
22 blockage of ocean views; (3) the inability of the City to select among
23 speakers and content of displays; (4) the administrative resources
24 required to administer the permit system, which had become “extremely
25 time consuming”; (5) the expectation that even more applications would
26 be filed in 2012; (6) the ability to erect holiday displays on non-
27 governmental property; (7) conforming Palisades Park to the long-
28 standing City-wide standard prohibiting all unattended displays in
7
1 parks; (8) conserving City resources; and (9) protecting the views
2 from Palisades Park. (Compl. ¶ 50 at 29—30; RJN, Ex. K.)
3 Plaintiff filed suit on October 9, 2012, alleging violations of
4 the First Amendment Free Speech and Establishment Clauses and the
5 Fourteenth Amendment Equal Protection Clause. Plaintiff immediately
6 moved for a preliminary injunction, which the Court denied on the
7 ground that Plaintiff failed to raise serious questions on the merits
8 of its claims. Importantly, the Court also found that even if
9 Plaintiff could establish constitutional violations, the injunctive
10 relief it was seeking was unavailable. Although Plaintiff’s Complaint
11 seeks generally to enjoin the City’s ban of private unattended
12 displays, Plaintiff did not want the City simply to revert to the
13 combined first-come, first-served and lottery system that existed
14 before 2012; instead, Plaintiff sought to force the City to “restrict
15 [Winter Display] permit applications to applicants desirous of
16 celebrating the seasonal holidays and to deny applications that
17 violate such an objective.” (Docket No. 5 at 25; see also Docket No.
18 26-3 (Proposed Injunction) ¶¶ 4, 5.)
19 LEGAL STANDARD
20 A complaint survives a motion to dismiss under Rule 12(b)(6) if
21 it contains a “short and plain statement of the claim showing that the
22 pleader is entitled to relief,” which does not require “detailed
23 factual allegations,” but it “demands more than an unadorned, the-
24 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
25 U.S. 662, 677—78 (2009). A claim must be “plausible on its face,”
26 which means that the Court can “draw the reasonable inference that the
27 defendant is liable for the misconduct alleged.” Id.; see Bell Atl.
28 Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, “a
8
1 plaintiff’s obligation to provide the grounds of his entitlement to
2 relief requires more than labels and conclusions, and a formulaic
3 recitation of the elements of a cause of action will not do.”
4 Twombly, 550 U.S. at 555 (internal quotations and alterations
5 omitted). Allegations of fact are taken as true and construed in the
6 light most favorable to the nonmoving party. See Newdow v. Lefevre,
7 598 F.3d 638, 642 (9th Cir. 2010), cert. denied, 131 S. Ct. 1612
8 (2011).
9 In analyzing the sufficiency of the complaint, the Court must
10 first look at the requirements of the causes of action alleged. See
11 Iqbal, 556 U.S. at 675. The Court may then identify and disregard any
12 legal conclusions, which are not subject to the requirement that the
13 Court must accept as true all of the allegations contained in the
14 complaint. Id. at 678. The Court must then decide whether well-
15 pleaded factual allegations, when assumed true, “plausibly give rise
16 to an entitlement to relief.” Id. at 679. In doing so, the Court may
17 not consider material beyond the pleadings, but may consider
18 judicially noticeable documents, documents attached to the complaint,
19 or documents to which the complaint refers extensively or which form
20 the basis of the plaintiff’s claims in the complaint. See United
21 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
22 DISCUSSION
23 Plaintiff asserts that the City’s ordinance banning all
24 unattended displays in Palisades Park violates both the Free Speech
25 and Establishment Clauses of the First Amendment. For the same
26 reasons outlined in the Court’s Order denying Plaintiff’s request for
27 a preliminary injunction, these claims are legally deficient and must
28 be dismissed with prejudice.
9
1 A. Free Speech Claim
2 In order to determine whether the City’s ban on unattended
3 displays violates the First Amendment, the Court must determine (1)
4 whether the speech at issue is protected; (2) the nature of the forum;
5 and (3) whether the restriction on the speech satisfies the requisite
6 standard. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473
7 U.S. 788, 797 (1985). Here, the City does not dispute that
8 Plaintiff’s Nativity display constitutes protected speech and that
9 Palisades Park is a quintessential traditional public forum, so the
10 Court’s analysis focuses on the third requirement — whether the City’s
11 ban satisfies the requisite level of scrutiny.4
12 1. Content-Based or Content-Neutral Regulation
13 At the outset, Plaintiff claims that the City’s ban is an invalid
14 content-based regulation, whereas the City claims that the ban is a
15 valid content-neutral time, place, and manner restriction. In a
16 traditional public forum, a content-based regulation is subject to
17 exacting scrutiny — the government must have a compelling interest and
18 the restriction must be narrowly tailored to achieve that interest.
19 Kreisner v. City of San Diego, 1 F.3d 775, 783 (9th Cir. 1993). In
20 contrast, a content-neutral regulation is subject to valid time,
21 place, and manner regulation, which must be narrowly tailored to serve
22 a significant government interest and leave open ample alternative
23 channels of communication. One World One Family Now v. City & Cnty.
24 of Honolulu, 76 F.3d 1009, 1012 (9th Cir. 1996).
25 “In determining whether an ordinance is content-neutral, our
26
4
Plaintiff has not clarified whether its challenge to the City’s
27 ban is facial or as-applied. In this circumstance, the distinction
does not matter because the ban is valid both on its face and as
28 applied to Plaintiff.
10
1 principal inquiry is ‘whether the government has adopted a regulation
2 of speech because of disagreement with the message it conveys.’”
3 Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir. 1998).
4 Content neutrality exists if the ordinance is “aimed to control the
5 secondary effects resulting from the protected expression, rather than
6 at inhibiting the protected expression itself.” Id. (internal
7 quotation marks omitted). “A regulation is content-neutral if it is
8 ‘justified without reference to the content of the regulated speech,’”
9 and “[a] finding that the restriction of First Amendment speech is a
10 ‘motivating factor’ in enacting an ordinance is not of itself
11 sufficient to hold the regulation presumptively invalid.” Id.
12 If a regulation is content-neutral on its face, the Court may
13 inquire into the “full record” to determine “whether evidence
14 indicates that the purpose of the ordinance is to suppress speech or
15 ameliorate secondary effects.” Id. at 552. “In so doing, [the Court]
16 will rely on all ‘objective indicators of intent,’ including the face
17 of the statute, the effect of the statute, comparison to prior law,
18 facts surrounding enactment, the stated purpose, and the record of
19 proceedings.’” Id. However, “an otherwise constitutional statute
20 will not be invalidated on the basis of an ‘alleged illicit
21 legislative motive,’” and the Court will not inquire into whether an
22 illicit motive exists. City of Las Vegas v. Foley, 747 F.2d 1294,
23 1297 (9th Cir. 1984).
24 The City’s ban on all unattended displays is unquestionably
25 facially neutral — it applies to all unattended displays regardless of
26 content or identity of speaker. See Knights of Columbus, Council No.
27 94 v. Town of Lexington, 272 F.3d 25, 31 (1st Cir. 2001) (finding
28 complete ban on private unattended displays in city park was facially
11
1 neutral). So Plaintiff focuses on the purpose behind the ban, which
2 it claims was the City’s acquiescence to a “heckler’s veto.” “A
3 ‘heckler’s veto’ is an impermissible content-based speech restriction
4 where the speaker is silenced due to an anticipated disorderly or
5 violent reaction of the audience.” Rosenbaum v. City & Cnty. of San
6 Francisco, 484 F.3d 1142, 1158 (9th Cir. 2007); see also Ctr. for Bio-
7 Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dept., 533 F.3d 780,
8 787 (9th Cir. 2008) (“If the statute . . . would allow or disallow
9 speech depending on the reaction of the audience, then the ordinance
10 would run afoul of an independent species of prohibitions on content-
11 restrictive regulations, often described as a First Amendment-based
12 ban on the ‘heckler’s veto.’”).
13 To support its claim that the City’s ban was in reaction to a
14 “heckler’s veto,” Plaintiff points to the comments by some City
15 Council members expressing concerns about the dispute among applicants
16 wanting to erect religious displays like Plaintiff’s and applicants
17 who wished to erect non-religious (and frequently anti-religious)
18 displays. But this record does not demonstrate that a “heckler’s
19 veto” transformed the City’s facially neutral ban into a content-based
20 regulation.
21 First, this case does not fit within the concept of a “heckler’s
22 veto” because it involves competing speech rights, not suppression of
23 a message because of the audience’s reaction to it. Those who opposed
24 Plaintiff’s displays — the claimed “hecklers” — also applied for
25 spaces to erect Winter Displays and the City was constitutionally
26 obligated to treat those applications equally to Plaintiff’s, even if
27 they resulted in opposition messages. Am. Jewish Cong. v. City of
28 Beverly Hills, 90 F.3d 379, 385 (9th Cir. 1996) (en banc) (finding
12
1 rejection of application for unattended displays impermissible when it
2 was in protest of the plaintiff’s display because “[p]rotest speech is
3 fully protected by the First Amendment.”). That put the City on the
4 “horns of a dilemma: it could not constitutionally pick and choose
5 among competing applications, but granting them all likely would
6 compromise the aesthetic and historic elements of [Palisades Park].”
7 Knights of Columbus, 272 F.3d at 29—30. The City opted to ban all
8 private unattended displays, which is a content-neutral, permissible
9 solution to the problem the City faced, as discussed more fully below.
10 Am. Jewish Cong., 90 F.3d at 385 (“The City constitutionally could ban
11 unattended private displays in its parks.”).
12 Further, a content-neutral law does not become a content-based
13 law simply because it was motivated by those on one side of the
14 debate. See Vlasak v. Super. Court of Cal. ex rel. Cnty. of Los
15 Angeles, 329 F.3d 683, 689 (9th Cir. 2003) (“‘[T]he contention that a
16 statute is ‘viewpoint based’ simply because its enactment was
17 motivated by the conduct of the partisans on one side of a debate is
18 without support.’”). Thus, even if the City Council was motivated by
19 a desire to resolve the dispute created by the conflicting
20 applications for Winter Displays, it did so without singling out
21 Plaintiff’s speech for regulation, while allowing others to erect
22 displays with other messages.
23 Even if the “heckler’s veto” theory could apply here, Plaintiff’s
24 allegations do not demonstrate that the City Council was motivated to
25 ban all unattended displays because of the reaction by those opposed
26 to Plaintiff’s message. The legislative record reflects some
27 disappointment, uncertainty, and frustration by City Council Members
28 about the dispute over unattended displays in Palisades Park. But
13
1 those subjective beliefs alone are insufficient to demonstrate that
2 the ban on unattended displays was content-based. See Foley, 747 F.2d
3 at 1297. The City Council’s frustration with the dispute was far from
4 conclusive that the City wanted to ban Plaintiff’s displays because of
5 any reaction to their message. To the contrary, much of the City
6 Council’s frustration appears to have been directed to both sides of
7 the debate, such as Council Member McKeown’s comment that he was
8 “troubl[ed]” by the “hostility” and “intolerance . . . heard from both
9 sides.” Those comments were consistent with the City Council’s
10 decision to adopt a blanket ban that prohibited the erection of all
11 unattended displays, regardless of the messages conveyed. In
12 addition, these views were accompanied by expression of several other
13 valid concerns about aesthetic impacts and administrative burdens
14 created by the unprecedented demand for Winter Displays in 2010 and
15 2011. See Colacurcio, 163 F.3d at 551—52. There is nothing in the
16 record to suggest that the City was giving effect to audience reaction
17 to Plaintiff’s displays in order to ban them because of their content.
18 The conclusion that this is not a “heckler’s veto” case largely
19 resolves the other factors outlined in Colacurcio that might suggest
20 that the ban on unattended displays was content-based. Id. at 552
21 (looking to the “‘face of the statute, the effect of the statute,
22 comparison to prior law, facts surrounding enactment, the stated
23 purpose, and the record of proceedings.’”). As explained, the statute
24 is neutral on its face and in its effect because it bans all
25 unattended displays, regardless of content or identity of applicant.
26 A comparison to the prior law yields no suggestion that the blanket
27 ban is content-based: from 2003 to 2011, the ban on unattended
28 displays in Palisades Park exempted Winter Displays, which were
14
1 allowed based on a content-neutral first-come, first-served rule. The
2 record reflects that this system had become unsustainable given the
3 increased demand for space in 2010 and 2011, requiring the City to
4 eliminate the Winter Displays exception entirely.
5 The Court has already reviewed the stated purpose of and facts
6 surrounding the elimination of the Winter Displays exemption, and
7 nothing suggests that the City eliminated the exception due to the
8 content of Plaintiff’s displays. Plaintiff claims that the aesthetic
9 interests and administrative burdens identified by the City were only
10 post-hoc rationalizations because the Nativity scenes had been
11 displayed for decades without the impacts that the City now claims
12 exist. But until 2011, the full space for Winter Displays had not
13 been requested or used. After experiencing the total impact of a
14 competitive application process and the result of fully utilized space
15 in Palisades Park, the City could readily conclude after the 2011
16 holiday season that those negative impacts outweighed the benefit of
17 maintaining the Winter Displays exception.
18 As the First Circuit explained in finding a total ban on
19 unattended displays in a public forum under similar facts was content-
20 neutral:
21 In the instant case, there is nothing in the

record that evinces a content-based animus against
22 the creche. On the contrary, the [town] proposed
the new regulation [banning all unattended
23 displays] only after requests for permits for
alternative religious displays began to sprout.
24 Mindful of the strictures of the Establishment
Clause, the [town] reasonably assumed that it must
25 treat all applications for religious displays
alike, regardless of the message conveyed.
26 Fearing a flood of applications and a
corresponding cluttering of the [park], the [town]
27 devised a regulation prohibiting all unattended
structures. This is a far cry from an invidious
28 singling-out of the creche.
15
1 Knights of Columbus, 272 F.3d at 32 (emphasis in original). In fact,
2 the City’s long history of allowing Plaintiff’s Nativity scene
3 undermines the suggestion that the City was hostile to Plaintiff’s
4 message. Id. at 32 n.3 (noting that the town’s allowance of the
5 creche showed receptivity to the display, although it did not create
6 entitlement to future preferential treatment).
7 In sum, Plaintiff’s allegations do not demonstrate that the City
8 eliminated the Winter Displays exemption “because of disagreement with
9 the message [Plaintiff’s display] conveys.” Colacurcio, 163 F.3d at
10 551. The City’s elimination of the Winter Displays exception and
11 enforcement of a complete ban on unattended displays is therefore
12 content-neutral.
13 2. Content-Neutral Time, Place, or Manner Regulation
14 Because the City’s ban on unattended displays in Palisades Park
15 is content-neutral, it is permissible if it is “narrowly tailored to
16 serve a significant governmental interest” and “leave[s] open ample
17 alternative channels of communication.” One World, 76 F.3d at 1012.
18 Before turning to these requirements, it is important to note that
19 this case does not blaze a trail through uncharted territory. The
20 Supreme Court, this Circuit sitting en banc, and several other
21 Circuits have expressed approval of complete bans on all private
22 unattended displays in public fora as valid time, place, and manner
23 restrictions. See Capitol Square Review & Advisory Bd. v. Pinette,
24 515 U.S. 753, 761 (1995)5; Am. Jewish Cong., 90 F.3d at 384; see also
25
5
26 In the plurality decision in Pinette, eight justices expressed
opinions that the government could ban all unattended displays in
27 traditional public fora. Pinette, 515 U.S. at 761 (Scalia, J., in
which Rehnquist, C.J., Kennedy, J., and Thomas, J., joined); id. at
28 (continued...)
16
1 Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363
2 F.3d 427, 434 (6th Cir. 2004); Knights of Columbus, 272 F.3d at 33;
3 Wells v. City & Cnty. of Denver, 257 F.3d 1132, 1147—50 (10th Cir.
4 2001); Americans United for Separation of Church & State v. City of
5 Grand Rapids, 980 F.2d 1538, 1554 (6th Cir. 1992) (en banc); Lubavitch
6 Chabad House, Inc. v. City of Chicago, 917 F.2d 341, 347 (7th Cir.
7 1990).
8 In fact, the court in Knights of Columbus approved of a complete
9 ban on private unattended displays in a nearly identical factual
10 situation as the case at bar. There, for decades a fraternal
11 organization had set up a creche in a public park during the months of
12 November and December. 272 F.3d at 29. The town then began receiving
13 requests for a “wide range” of other religious structures, requests to
14 place a sign objecting to the creche, and requests to erect displays
15 related to other holidays during other parts of the year. Id. The
16 town correctly believed that if it allowed the creche, it would have
17 to grant competing applications, putting it on the “horns of a
18 dilemma: it could not constitutionally pick and choose among competing
19 applications, but granting them all likely would compromise the
20 aesthetic and historic elements of [the park].” Id. at 29—30. In
21 response to these issues, the town limited eligibility for public
22
23 5
(...continued)
24 784 (Souter, J., concurring in part and concurring in the judgment,
with whom O’Connor, J., and Breyer, J., joined); id. at 803—04
25 (Stevens, J., dissenting). In both Pinette and American Jewish
Congress, the discussion of bans on all private unattended displays
26 was dicta, so this Court is technically not bound by that point.
Nevertheless, the views of the en banc panel in American Jewish
27 Congress and of eight justices in Pinette provide strong evidence that
the Ninth Circuit would adopt this view as a holding if given the
28 opportunity to do so.
17
1 expression in the park to active events less than eight hours in
2 duration, limited displays to those connected to those events, and
3 banned the placement of all unattended structures. Id. at 30. When
4 the fraternal organization applied to erect the creche as an
5 unattended display, a permit was denied, and the group sued. Id.
6 After noting that there was no dispute that the park was a public
7 forum and the creche was protected speech, the Court concluded that
8 the town’s ban on unattended structures was a valid content-neutral
9 time, place, or manner restriction. The town’s interest in aesthetic
10 preservation justified the ban, which was narrowly tailored to serve
11 that interest, even though it was not the least restrictive means
12 available. Id. at 32—33. The court cited Pinette, American Jewish
13 Congress, and other cases for the proposition that a total ban on
14 unattended structures was valid. Id. at 33. And the ban left open
15 alternative channels of speech, including by allowing the display of
16 the creche during permitted events or at any time on nearby private
17 property. Id. at 34.
18 a. Significant Government Interest
19 In this case, Plaintiff’s complaint and the attached exhibits, as
20 well as judicially noticeable documents, reflect several significant
21 interests supporting the ban on all unattended structures in Palisades
22 Park. Given the limited park space and uniqueness of Palisades Park,
23 the proliferation of applications for Winter Displays reduced the
24 public’s ability to use Palisades Park during the month of December.
25 See Long Beach Area Peace Network v. City of Long Beach, 574 F.3d
26 1011, 1024 (9th Cir. 2008) (recognizing a substantial interest in
27 “regulating competing uses of public fora”); see also Ward v. Rock
28 Against Racism, 491 U.S. 781, 797 (1989) (“The city enjoys a
18
1 substantial interest in ensuring the ability of its citizens to enjoy
2 whatever benefits the city parks have to offer, from amplified music
3 to silent meditation.”). It increased the impacts on the park’s
4 aesthetics, views, and clutter. See Knights of Columbus, 272 F.3d at
5 32 (finding preservation of aesthetics a significant interest); Long
6 Beach Area Peace Network, 574 F.3d at 1024 (recognizing a substantial
7 interest in “maintaining parks in an ‘attractive and intact
8 condition’”); One World, 76 F.3d at 1013 (finding elimination of
9 “visual clutter” to be a significant interest). And it increased the
10 resources the City needed to manage the increased demands on the
11 first-come, first-served application process and the ensuing lottery
12 for awarding spaces.
13 Apart from these interests, City Council members also expressed
14 their desire to resolve the controversy that had arisen over the
15 competing applications for spaces for Winter Displays in Palisades
16 Park. Plaintiff argues that the “the avoidance of controversy is not
17 a valid ground for restricting speech in a public forum.” Cornelius,
18 473 U.S. at 811. While true, that argument is misplaced — the City
19 did not isolate and ban Plaintiff’s speech because its content might
20 invite controversy. See Texas v. Johnson, 491 U.S. 397, 414 (“If
21 there is a bedrock principle of the First Amendment, it is that the
22 government may not prohibit the expression of an idea simply because
23 society finds the idea itself offensive or disagreeable.”). While the
24 City Council recognized that a dispute existed between Plaintiffs and
25 other applicants who wanted to erect non-religious displays, both had
26 equal rights to erect displays in Palisades Park. The City Council’s
27 response was to implement a content-neutral ban on all unattended
28 displays, which was permissible according to Pinette, American Jewish
19
1 Congress, and Knights of Columbus.
2 b. Narrow Tailoring
3 As the court in Knights of Columbus recognized, “[t]he narrow
4 tailoring requirement ‘does not mandate a least restrictive means
5 analysis,’” 272 F.3d at 33, although a regulation may not “burden
6 substantially more speech than necessary to achieve a scheme’s
7 important goals,” Santa Monica Food Not Bombs v. City of Santa Monica,
8 450 F.3d 1022, 1038 (9th Cir. 2006). The narrow-tailoring requirement
9 is met “so long as the . . . regulation promotes a substantial
10 government interest that would be achieved less effectively absent the
11 regulation.” Id. (internal quotation marks omitted; brackets in
12 original). “So long as the means chosen are not substantially broader
13 than necessary to achieve the government’s interest . . . the
14 regulation will not be invalid simply because a court concludes that
15 the government’s interest could be adequately served by some less-
16 speech-restrictive alternative.” Ward, 491 U.S. at 800.
17 Here, the City’s total ban on unattended displays targeted the
18 precise problems that the Winter Displays exemption created — the
19 increased impacts on park use and aesthetics, as well as the increased
20 administrative burdens of accommodating all applicants without regard
21 to the content of the proposed displays, which the City was
22 constitutionally required to do. See Am. Jewish Cong., 90 F.3d at
23 384. Plaintiff argues that the total ban was not narrowly tailored by
24 arguing that the City could have limited holiday displays to those
25 “celebrating traditional holidays and spreading goodwill,” citing
26 Freedom from Religion Foundation, Inc. v. City of Warren, __ F. Supp.
27 2d __, __, 2012 WL 1964113, at *8 (E.D. Mich. May 31, 2012). But that
28 case involved a limited public forum, which enabled the city to
20
1 exclude messages that did not “celebrate the traditional holiday
2 season and promote goodwill” from a holiday display. Id. Here, by
3 contrast, the City was constitutionally prohibited from selecting
4 displays based on content, so the exemption for Winter Displays could
5 not have been narrowed this way.6
6 In any case, the City was not required to adopt the least
7 restrictive means to serve its identified interests, and those
8 interests would certainly be less effectively achieved absent a total
9 ban on unattended displays. See Knights of Columbus, 272 F.3d at
10 32—33 (rejecting argument that the town was obligated to adopt less
11 than a total ban on unattended structures); Wells, 257 F.3d at 1148
12 (finding ban on unattended displays narrowly tailored because, without
13 it, the city’s “asserted interests would certainly be ‘achieved less
14 effectively’”).7
15 c. Ample Alternative Channels for Speech
16 “‘[T]he First Amendment does not guarantee the right to
17
18
6
Plaintiff suggests that the City could have adopted location and
19 height restrictions or limited the time the displays could be erected
as less restrictive regulations. But those regulations would not have
20 adequately addressed all of the City’s concerns. For example, height,
size, location, and duration restrictions might have addressed some of
21 the aesthetic impacts of displays, but they probably would have
increased the administrative burdens of tracking and ensuring
22
compliance with a host of new regulations.
23 7
Plaintiff relies on United States v. Grace, 461 U.S. 171, 175—76
24 (1983), in which the Court struck down a ban on the display of a
“flag, banner, or device designed or adapted to bring into public
25 notice any party, organization, or movement” on sidewalks surrounding
the U.S. Supreme Court building. The Court concluded that the ban was
26 overbroad because it did not serve the purposes of protecting persons
and property and avoiding the appearance of outside influences on the
27 Supreme Court’s decisions. Id. at 182—84. Unlike in Grace, the City
here has demonstrated that the total ban on unattended displays serves
28 the City’s asserted interests, while lesser restrictions would not.
21
1 communicate one’s views at all times and places or in any manner that
2 may be desired.’” Bay Area Peace Navy v. United States, 914 F.2d
3 1224, 1229 (9th Cir. 1990). But a content-neutral regulation must
4 leave open ample alternative channels for speech. See Long Beach Area
5 Peace Network, 574 F.3d at 1025. Alternatives are not ample “‘if the
6 speaker is not permitted to reach the intended audience,’” “if the
7 location of the expressive activity is part of the expressive
8 message,’” if there is no “opportunity for spontaneity,” or if the
9 alternatives are overly costly or inconvenient. Id.
10 Here, the blanket ban has left open many alternative avenues for
11 Plaintiff to convey its religious message. For instance, Plaintiff
12 could erect displays in some public parks around the City (excluding
13 Palisades Park) as part of a one-day Community Events permit, or
14 Plaintiff could erect attended displays in all of the City’s public
15 parks — including in the very same locations as the prior Nativity
16 scenes erected in Palisades Park — at any time the parks are open and
17 so long as the displays are removed at night. (Compl. ¶ 51, Ex. 13.)
18 And the ban on unattended displays in Palisades Park has no effect on
19 Plaintiff’s ability to erect displays on private property or to
20 disseminate its message in public parks in a multitude of ways, such
21 as handing out literature, discussing religious messages, holding
22 religious symbols or signs, or even caroling or performing. (Id.)
23 See Wells, 257 F.3d at 1149 (finding ample alternatives for speech
24 existed despite ban on all unattended displays because speakers could
25 still leaflet, demonstrate, picket, and engage in all other speech
26 when the speaker is present).
27 Plaintiff raises several arguments to suggest that these
28 alternatives are not adequate, but none is persuasive. First,
22
1 Plaintiff claims that the blanket ban on unattended displays prevents
2 it from reaching its intended audience — the pedestrians and motorists
3 who pass by Palisades Park. See Bay Area Peace Navy, 914 F.2d at
4 1229. But that is inaccurate — the ban does not foreclose Plaintiff
5 from conveying its message to anyone in or around Palisades Park; it
6 only eliminates one way in which Plaintiff conveys it. Id. (noting
7 that regulations have been upheld when they do not “affect any
8 individual’s freedom to exercise the right to speak and to distribute
9 literature in the same place” where other methods of speech are
10 prohibited and when they do not deny access within the forum (emphasis
11 removed)).
12 Nor is Plaintiff’s “ability to communicate effectively . . .
13 threatened” by the ban, as Plaintiff claims. See id. (noting that
14 alternatives may be inadequate “if the speaker’s ‘ability to
15 communicate effectively is threatened”). Plaintiff claims that
16 something less than the erection of unattended Nativity scenes in
17 Palisades Park would not “effectively communicate the Nativity story,”
18 although Plaintiff does not explain why. (Opp. 22.) Plaintiff
19 suggests that its Nativity displays require substantial effort to
20 erect and dismantle, so it may be impractical to erect and take down
21 the displays daily, but Plaintiff does not have a right to erect the
22 Nativity displays in precisely the same way as it has in the past in
23 order to convey its message when smaller attended displays or other
24 modes of communication are available to convey its message. Santa
25 Monica Food Not Bombs, 450 F.3d at 1048.8
26
27 8
Plaintiff suggests that attended displays may create the same
impacts as unattended displays, potentially undermining the City’s
28 (continued...)
23
1 In the end, a blanket ban on all private unattended structures in
2 public fora “merely prohibits one manner of expression (unattended
3 structures) in a particular place (the [park]) at certain times (when
4 unconnected with an event).” Knights of Columbus, 272 F.3d at 31; see
5 also id. at 34 (finding ample alternatives for speech because the
6 plaintiff could display the creche in the course of an event lasting
7 up to eight hours in the park or at any time on nearby private
8 property). As in Knights of Columbus, the City’s ban on unattended
9 displays has left Plaintiff with ample alternative opportunities to
10 convey its religious message.
11 3. Conclusion
12 Because the City’s ban on all unattended displays in Palisades
13 Park is a valid content-neutral time, place, or manner restriction,
14 Plaintiff has failed to allege a violation of its free speech rights.
15 B. Establishment Clause Claim
16 Plaintiff also claims that the City’s blanket ban on unattended
17 displays in Palisades Park violates the Establishment Clause of the
18 First Amendment. The City’s ban is permissible under the
19 Establishment Clause if it has a secular purpose; it neither advances
20 nor inhibits religion in its principal or primary effect; and it does
21 not foster excessive entanglement with religion. Kreisner, 1 F.3d at
22 781. A statute that regulates unattended private displays in public
23 fora, including private religious displays, is permissible under the
24
25
8
(...continued)
26 interests in banning unattended displays. While it might come to pass
that attended displays pose the same problems as unattended displays,
27 at this time they remain an alternative avenue for speech. If
problems arise, the City might appropriately respond to them. But
28 that scenario is not before the Court.
24
1 Establishment Clause so long as it is a valid content-neutral time,
2 place, or manner regulation. See Am. Jewish Cong., 90 F.3d at 384.
3 The Court has already concluded that the City’s blanket ban on
4 all private unattended displays is a valid content-neutral time,
5 place, or manner restriction. Thus, it has a secular purpose of
6 serving the City’s interests in preserving aesthetics, reducing
7 administrative burdens, and managing competing uses of Palisades Park;
8 it applies to all unattended displays, so it neither advances nor
9 inhibits religious in its effect; and it does not entangle the City in
10 religion because it applies equally to all unattended displays. See
11 Wells, 257 F.3d at 1153 (finding that unattended display ban that was
12 a valid content-neutral regulation of speech also passed muster under
13 the Establishment Clause). Thus, Plaintiff has failed to allege a
14 violation of the Establishment Clause.
15 CONCLUSION
16 The City’s blanket ban on all private unattended displays in
17 Palisades Park did not violate Plaintiff’s constitutional rights.
18 Because Plaintiff’s complaint is legally deficient, any amendment
19 would be futile. The City’s motion to dismiss is GRANTED and
20 Plaintiff’s Complaint is DISMISSED WITH PREJUDICE. The City is
21 ORDERED to lodged a proposed judgment within 10 days of the date of
22 this Order.
23
24 DATED: November 29, 2012 ________________________________

AUDREY B. COLLINS
25 UNITED STATES DISTRICT JUDGE
26
27
28
25

Federal Judge Order in Santa Monica Nativity Scene Case

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Federal Judge Order in Santa Monica Nativity Scene Case

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Case 2:12-cv-08657-ABC-E Document 39 Filed 11/29/12 Page 1 of 25 Page ID #:1235

9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA

18 Pending before the Court is Defendant City of Santa Monica’s (the

19 “City’s”) Motion to Dismiss, filed on October 31, 2012. (Docket No.

20 21.)1 Plaintiff Santa Monica Nativity Scenes Committee opposed on

22 Court finds this matter appropriate for resolution without oral

25 and this case is DISMISSED WITH PREJUDICE.

2 In this case, Plaintiff mounts a constitutional challenge to a

3 decision by the City of Santa Monica to repeal an exception to its

4 general ban on private “unattended displays” that operated to permit

5 certain unattended “Winter Displays” in the City’s Palisades Park

6 every December. On November 19, 2012, the Court denied Plaintiff’s

7 application for a preliminary injunction on the ground that Plaintiff

9 Free Speech and Establishment Clauses of the First Amendment or the

10 Equal Protection Clause of the Fourteenth Amendment. (Docket No. 38.)

13 Plaintiff’s complaint must be dismissed with prejudice.3

15 Palisades Park is a narrow strip of park land bordering downtown Santa

16 Monica and overlooking the Pacific Ocean. (City’s Request for

17 Judicial Notice (“RJN”), Ex. L at 145.) The City’s Landmarks

18 Commission has designated it as a landmark and the City’s Local

21 For decades during December a series of life-size displays

22 depicting the Christmas Nativity scene was erected in Palisades Park.

23 (Compl. ¶ 14.) From 1955 to 2010, this tableau was comprised of 14

24 separate 18-foot-long display booths, each of which “offered passersby

25 a three-dimensional glimpse” into the Nativity story. (Id. ¶¶ 14,

2 These displays were allowed each year, despite several relevant

3 enactments of regulations by the City dealing with private unattended

5 Ordinance No. 1749, which governed the utilization and maintenance of

6 City parks and effectively banned all unattended displays in City

7 parks. (RJN, Ex. B at 18—28.) Likewise, in 2001, the City adopted

8 Ordinance No. 2008, the City’s Community Events Ordinance, which

9 governs displays and installations in the context of a community

10 event, although those events are generally defined as limited-duration

11 gatherings of no more than 150 people and do not include unattended

13 In 2003, concerns arose about the lack of standards for private

14 unattended displays in Palisades Park, in part due to three groups

15 installing displays during the prior holiday season. (Compl., Ex. 2

16 at 2—3.) As the City staff noted, those displays were permitted as

17 community events, but the Community Events Ordinance neither

18 authorized nor prohibited them. (Id.) As a consequence, on September

19 9, 2003, the City adopted Ordinance No. 2095, which specifically

20 prohibited unattended displays, with exceptions for City-owned

21 installations and structures, installations authorized by a Community

22 Events Permit, and unattended displays or installations in Palisades

23 Park during the month of December (called “Winter Displays”). (Id. ¶¶

25 should the number of requested displays exceed the available space in

26 Palisades Park, space would be allocated on a first-come, first-served

27 basis regardless of the content of any displays or the applicant’s

28 identity. (RJN, Ex. F at 80.)

1 The City Council believed that this system permissibly regulated

2 private unattended displays within constitutional bounds consistent

3 with American Jewish Congress v. City of Beverly Hills, 90 F.3d 379

6 installation of Winter Displays at (1) Palisades Park between Santa

7 Monica Boulevard and Arizona Avenue on the grassy area adjacent to

9 Wilshire Boulevard on the grassy area adjacent to Ocean Avenue. (Id.

10 ¶ 30; City’s RJN, Ex. G.)

11 In August 2010, the City revised its guidelines for unattended

12 displays to establish a lottery in addition to the first-come, first-

13 served process in the event there were multiple requests submitted on

15 area for displays in Palisades Park into 21 distinct “spots,” and

16 applicants could request up to nine spots in an application. (Id. ¶

17 38; RJN, Ex. H at 89.)

18 In 2010, one of the applicants for displays was Damon Vix, an