California County's Restriction on Being a Spectator at a Car "Sideshow" Violates First Amendment as Applied to Reporter

From today’s Ninth Circuit decision in Garcia v. County of Alameda, by Judge Holly Thomas, joined by Judges John Owens and Mark Bennett; Alameda County contains Berkeley and Oakland:

Driven by concerns over unmanageable crowds, property damage, noise pollution, garbage, firearms use, and reckless driving under the influence of drugs and alcohol, … the County of Alameda … adopted an ordinance prohibiting any person from knowingly spectating a sideshow event conducted on a public street or highway from within 200 feet of that event. Possible penalties include both imprisonment and a monetary fine.

In this pre-enforcement suit, Jose Antonio Garcia, a reporter who writes about sideshows for The Oaklandside under the pen name Jose Fermoso, raises a First Amendment challenge to the County’s prohibition as applied to his reporting activities….

The First Amendment protects Garcia’s newsgathering and reporting activities. And the County’s prohibition on knowingly spectating a sideshow is content based and fails strict scrutiny. Garcia has clearly demonstrated that he is likely to succeed on the merits of his as-applied challenge, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that the issuance of an injunction is in the public interest….

“The Supreme Court has recognized that newsgathering is an activity protected by the First Amendment.” And we have determined both that the First Amendment protects recording and photographing “matters of public interest,” and that an organization’s “recording of conversations in connection with its newsgathering activities is protected speech within the meaning of the First Amendment.” These holdings compel the conclusion that Garcia’s newsgathering activities—the “quintessential function of a reporter”—are protected by the First Amendment.

The County argues that Garcia’s “mere observation” of sideshows “is not expressive.” But “[n]either the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded.” In other words, “[w]hether government regulation applies to creating, distributing, or consuming speech makes no difference” for purposes of our First Amendment analysis…. “[T]he creation and dissemination of information are speech within the meaning of the First Amendment.” …

Here, Garcia’s observation of sideshows is a predicate for, and thus inextricably intertwined with, his recording of those events. If the County were permitted to carve out Garcia’s observation of sideshows from his recording of those events, it could “effectively control or suppress speech by the simple expedient of restricting” a predicate for “the speech process rather than the end result.”

Citing the Supreme Court’s decision in Arcara v. Cloud Books, Inc. (1986), the County argues that … the County’s restriction on the observation of sideshows “involves only incidental restriction of … speech.” In Arcara, the Court upheld against a First Amendment challenge a nuisance statute used to authorize the closure of an adult bookstore on the grounds that the store was the site of ongoing illicit sexual activities. The Court held that “the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.” The Court noted that its decision would be different if “the ‘nonspeech’ which drew sanction was intimately related to expressive conduct protected under the First Amendment.”. But because operating an establishment where prostitution is ongoing “bears absolutely no connection to any expressive activity,” the Court upheld the closure order.

Arcara is irrelevant to this case. Although the Ordinance “may be described as directed at conduct,” as applied to Garcia, “the conduct triggering coverage under the [Ordinance] consists of communicating a message.” Holder v. Humanitarian L. Project (2010). Even if observation of a sideshow on its own terms is non-expressive conduct, because Garcia must observe sideshows in order to record them, the Ordinance “burdens [his] First Amendment rights directly, not incidentally.”

The County further argues that if the panel agrees with Garcia, “a reporter could seek First Amendment review of speeding regulations preventing her from better filming car chases.” But … it is not the case that “any conduct related in some way to speech creation, however attenuated, is necessarily entitled to First Amendment protection.” “[W]e need not precisely delineate the extent and contours of First Amendment protection for each constituent act that comprises speech creation” to determine that Garcia’s conduct here—recording sideshows as a journalist for the purpose of reporting on them—falls under the ambit of the First Amendment….

“[C]ontent-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” … The Ordinance is content based. It targets only one topic, sideshows, making it a misdemeanor for any person to be present within 200 feet of a sideshow for the purpose of spectating the event. The County does not dispute that a person can observe or record any other topic within that same 200-foot radius as long as they are not “knowingly present to watch the sideshow.” A law that “require[s] ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred” in the manner required by the Ordinance here is content based. McCullen v. Coakley (2014).

The County argues that “the Ordinance regulates presence in a particular location[,] … not speech.” But this is incorrect. As discussed, the Ordinance does not apply to every person present within 200 feet of a sideshow. As the County has conceded, the Ordinance would not apply to Girl Scout troops who, innocent to a sideshow’s occurrence, set up a table to sell cookies within 200 feet of a sideshow event. The Ordinance instead applies only to people present within that range who are knowing spectators of the sideshow. Because the Ordinance does not “require[] an examination of speech only in service of drawing neutral, location-based lines,” it is not “agnostic as to content.” City of Austin v. Reagan Nat’l Advert. of Austin, LLC (2022)….

Because the Ordinance is content based, it … is presumptively unconstitutional. We will uphold it only if the County meets its burden of showing that the Ordinance “furthers a compelling interest and is narrowly tailored to achieve that interest.” …

The Ordinance fails this analysis. Public safety is certainly a compelling interest, and the County cites important concerns about reckless driving, gun violence, illegal drug use, looting, destruction of public property, noise and air pollution, garbage, and traffic disruptions resulting from or accompanying sideshow events. But where a government “‘has various other laws at its disposal that would allow it to achieve its stated interests while burdening little or no speech,’ it fails to show that the law is the least restrictive means to protect its compelling interest.” And, here, there are existing laws that address the County’s stated concerns. See, e.g., Cal. Penal Code  §§ 187–89,  192  (murder  or  manslaughter);  id. §§ 191.5, 192(c), 192.5 (vehicular manslaughter with or without intoxication); id. §§ 242–43, 245 (assault with a deadly weapon and battery); id. § 246.3 (discharge of firearms); id. § 374 (littering); id. § 415(2) (noise pollution); id. § 451 (arson); id. § 594 (vandalism and destroying infrastructure or other property); Cal. Veh. Code §§ 20001–02 (hit and run); id. § 22500 (blocking intersections); id. § 23103(a) (reckless driving in willful or wanton disregard for the safety of persons or property); id. § 23104 (reckless driving that proximately causes bodily injury or great bodily injury to a person other than the driver); id. § 23105 (reckless driving that injures a person other than the driver); id. §§ 23109, 23109.1, 23109.2 (speed contests with or without resulting injuries); id. § 23152 (driving under the influence

of drugs or alcohol); Cal. Penal Code § 182 (conspiracy to commit any of the foregoing offenses).

The Ordinance also “fail[s] as hopelessly underinclusive.” The County argues that “the Ordinance tries to stop people from placing themselves in the path of speeding cars, not to suppress speech about sideshows.” Yet the County also acknowledges that, so long as they are not there to spectate, people can “ask for handouts,” “advocate for fewer restrictions on sideshows,” “stump for a candidate,” or, yes, “sell girl scout cookies”—all within 200 feet of a sideshow. Indeed, the County concedes that even Garcia himself “may venture inside a 200-foot radius of a sideshow to interview residents, passersby, spectators, or even drivers, and to record these interviews.”

The County contends that “spectators are at greater risk than those present for other reasons” because, “having sought out the sideshow, they are more likely to remain at the scene despite the dangers.” But the County cites nothing in support of this argument, and there is no indication in the record that this is true. In particular, the County does not explain why people who might advocate for restrictions on sideshows or come to a sideshow to interview drivers would be any less likely to remain at the site of a sideshow than those there to participate in or observe the event. The lack of such evidence makes clear that the burden on speech imposed by the Ordinance is not “actually necessary to” solve the public safety problems associated with sideshows. The Ordinance thus fails strict scrutiny, and Garcia has made a clear showing that he is likely to succeed on the merits of his as-applied First Amendment claim….

David Loy and Ann Cappetta (First Amendment Coalition) represent plaintiff.

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