One World One Family Now v. City & County of Honolulu

PREGERSON, Circuit Judge,

dissenting:

Because I believe the First Amendment protects the right to speak freely in a public *1020forum, I dissent. Two aspects of the majority opinion are troublesome. First, the majority opinion diminishes the free speech right at stake here by narrowing the scope of our decision in Gaudiya Vaishnava Society v. City of San Francisco, 952 F.2d 1059 (9th Cir.1990), cert. denied, 504 U.S. 914, 112 S.Ct. 1951, 118 L.Ed.2d 555 (1992). Second, the majority’s time, place, and manner analysis rubber-stamps Honolulu’s ordinance restricting speech even though (a) the ordinance is not narrowly tailored to achieve Honolulu’s civic goals, and (b) no equally effective alternative forum for the restricted speech exists. I address each concern in turn.

I

The majority recognizes that the plaintiffs’ T-shirt sales fall within the protective ambit of the First Amendment. Nevertheless, the majority’s analysis gives short shrift to our important discussion in Gaudiya concerning the substance of the right to speak in a public forum, which includes the right to sell message-bearing T-shirts.

In Gaudiya, we held that merchandise with messages affixed to the product, “when sold in conjunction with other activities in order to disseminate [an] organizations’ message ... is fully protected speech.” 952 F.2d at 1064-65. There, various nonprofit organizations challenged a San Francisco ordinance that prohibited selling, without a permit, T-shirts and other message-bearing merchandise at Fisherman’s Wharf and Union Square. Id. at 1060-61. The messages conveyed — verbally or symbolically — the nonprofits’ philosophies. Id. at 1060. The sale of message-bearing merchandise at high foot-traffic locations helped the nonprofits solicit donations, distribute literature, and educate the public about their causes. Id.

As in Gaudiya, the T-shirts at issue here bear messages that convey the religious and political philosophies of the plaintiff organizations. Some of the T-shirts read: “Meditate,” “Clean and Safe Oceans for All,” and “Protect and Preserve the Truth, the Beauty & Harmony of our Native Cultures.” Just because the messages are printed along with pictures of flowers or fish does not diminish the religious or political quality of the speech. The messages on the merchandise in Gaudi-ya were also intermingled with aesthetic design, but we nevertheless found that the sale of the merchandise was “inextricably intertwined” with fully protected speech. Gaudiya, 952 F.2d at 1064 n. 5.

Also, as was true of the San Francisco nonprofits, the plaintiffs here distribute information about their philosophies in conjunction with selling message-bearing T-shirts. The ultimate purpose of these T-shirt transactions is the dissemination of passionately-held viewpoints. The people manning the T-shirt stands discuss their religious beliefs and philosophies with anyone who stops by.1

Contrary to the majority’s view, Gaudiya controls the disposition of the case at hand. It is true that Gaudiya struck down San Francisco’s permit requirement because of its lack of “rules that give guidance to the chief of police.” Gaudiya, 952 F.2d at 1065. But we didn’t strike down the permit requirement merely because it was police-administered. We were concerned with San Francisco’s unbridled restriction of free speech in the absence of a rational set of operating procedures; and, we looked to whether the city had given its chief of police guiding rules for restricting speech. Id. at 1065-66.

Applying Gaudiya to this case is not difficult. Under Gaudiya, Honolulu could have easily avoided running afoul of the First Amendment by instituting guiding rules under which nonprofits could sell their message-bearing T-shirts. But Honolulu imposed a blanket ban on such sales. This ban amounts to an unlimited governmental restriction of speech in a public forum — in substance, the same kind of governmental action condemned in Gaudiya. As in Gaudiya, there is no need here for Honolulu’s unbridled ban on First Amendment activities. See *1021Gaudiya, 952 F.2d at 1065. Yet the majority minimizes any substantive similarity between Honolulu’s blanket ban and San Francisco’s unchecked permit scheme.

The majority opinion does not explain adequately its departure from Gaudiya. On the one hand, the majority acknowledges that plaintiff organizations have a “fully protected” speech right. But on the other hand, the majority fails to recognize Honolulu’s duty to respect and preserve that right for it to be effective. In so doing, the majority’s position only gives lip service not only to Gaudiya, but also to the Supreme Court’s strong admonitions that message-bearing merchandise, when sold in conjunction with other First Amendment activities, is fully protected speech. See Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981). See also Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 385, 93 S.Ct. 2553, 2558, 37 L.Ed.2d 669 (1973) (stating that newspaper’s profit motive should not be the basis for regulation of First Amendment rights); Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73 (1980) (holding that charitable appeals for funds in conjunction with other First Amendment activities are protected).

Underlying the majority opinion may be the notion that the nonprofits are using the First Amendment to protect a niche in the Waikiki T-shirt market. If this is so, then the matter should be remanded for further findings of fact. Without a more complete record, an unsupported suspicion that the T-shirt stands are a sham should not be the basis for circumventing the First Amendment.

II

The majority opinion’s time, place, and manner discussion is thin. The majority summarily concludes that Honolulu’s ordinance is content-neutral, is narrowly tailored to serve a significant governmental interest, and leaves ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). The last two conclusions are questionable.

A

To satisfy the narrowly tailored requirement, a regulation need not be the “least restrictive” means of serving the relevant government interest, but “if there are numerous and obvious less-burdensome alternatives to the restriction on ... speech, that is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 413 n. 13, 113 S.Ct. 1505, 1510 n. 13, 123 L.Ed.2d 99 (1993). Indeed, as we concluded in Project 80’s, Inc. v. City of Pocatello, 942 F.2d 635, 638 (9th Cir.1991), “restrictions which disregard far less restrictive and more precise means are not narrowly tailored.”

Honolulu claims that it enacted the peddling ordinance to maintain the aesthetic attractiveness of Waikiki, promote public safety and orderly movement of pedestrians, protect the local merchant economy, and prevent the nonprofit vendors from pressuring or defrauding potential buyers. These are laudable civic goals. But obvious, less restrictive means for achieving these same aims are readily available, and the majority simply chooses to ignore them.

To control congestion and visual blight, Honolulu can easily prohibit the nonprofits from setting up their stands in the most congested areas, such as areas near street intersections. Honolulu can also limit the size or number of stands that nonprofits may operate on each block, or restrict sales during certain times of the day, such as during the morning and afternoon rush hours. To protect the local merchant economy, Honolulu can require the nonprofits to display prominent signs on each stand, which is what some nonprofits already do.2 Signs would clearly identify each organization as a nonprofit. This would make it obvious to tourists and other passersby that they are not dealing with the traditional souvenir shop.

*1022Finally, to prevent fraud and duress, Honolulu can employ traditional legal methods, such as prosecuting those who actually commit such crimes. See Martin v. Struthers, 319 U.S. 141, 148, 63 S.Ct. 862, 865, 87 L.Ed. 1313 (1943) (invalidating ordinance which prohibited the distribution of handbills to residences because city can punish those who harass or defraud occupants); cf. Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939) (invalidating ordinance which prohibited passing out leaflets on city streets because obvious alternative methods such as punishing those who litter would effectively solve the littering problem).

In sum, a cursory glance at the available options reveals numerous less-restrictive alternatives to an outright ban on the sale of message-bearing T-shirts by nonprofits on Waikiki. Because Honolulu disregards obvious, far less restrictive, and more precise methods of achieving the same ends, Honolulu’s ordinance is not narrowly tailored. See Discovery Network, 507 U.S. at 417 n. 13, 113 S.Ct. at 1510 n. 13; Project 80’s, 942 F.2d at 638.

B

The majority also claims that plaintiff organizations remain free to spread their message through other media or in other places. Yet such alternative modes of communication may nevertheless be constitutionally inadequate if the speaker’s “ability to communicate effectively is threatened.” Bay Area Peace Navy, 914 F.2d at 1229 (citations omitted). The Supreme Court has given us guidance on this point in City of Ladue v. Gilleo, — U.S.-, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).

In Ladue, private property owners challenged an ordinance that prohibited display of any signs on their property other than “For Sale” or “For Rent.” The Court struck down the ordinance because the City of La-due foreclosed a “unique” and “important” medium of expression — the display of a sign on one’s property to express a point of view. Id. at -, 114 S.Ct. at 2045. The Court rejected the city’s argument that the regulation left open ample alternative channels of communication because it found that hand-held signs and other media were not an adequate substitute for posted signs:

Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute.

Id. at -, 114 S.Ct. at 2046.

Similarly, the T-shirt sales in this case constitute an effective and inexpensive medium of expression. When combined with oral proselytizing and literature distribution, selling message-bearing T-shirts is a particularly effective form of charitable solicitation. Indeed, a listener is more likely to expend funds to support a particular cause if he receives, in return, a T-shirt that communicates a message to him and that allows him to express his support for the cause by wearing it.

For the plaintiff organizations, Waikiki is a location uniquely suited to their mission. Waikiki is the social and economic center of not just the City of Honolulu, but also of the State of Hawaii. The nonprofits offered evidence that they selected Waikiki to sell their T-shirts because the area would allow them to share their philosophies with a large number of people who visit Hawaii from all over the world. Depriving plaintiffs of access to Waikiki separates them from a large and diverse audience.

The majority assumes the existence of other forums for plaintiffs’ First Amendment activities. But we have held that an alternative is not adequate if the speaker is not permitted to reach the “intended audience.” Bay Area Peace Navy, 914 F.2d at 1229. In Bay Area Peace Navy, we invalidated a Coast Guard regulation that prohibited protesters from demonstrating within a 75-yard radius of the pier during the annual “Fleet Week” celebration. We found that the 75-yard zone completely insulated the audience from the anti-war and anti-militarization views of the demonstrators. 914 F.2d at 1230. See also Ladue, — U.S. at -, 114 S.Ct. at 2046 (alternatives to posting signs on residential property such as posting signs on commercial property are inadequate because residents may wish to reach neighbors); Students Against Apartheid Coalition v. O’Neil, *1023660 F.Supp. 333, 339-40 (W.D.Va.1987) (university regulation prohibiting shanties on lawn of building where Board of Visitors meets, impermissibly insulates the Board, the intended audience, from the protest), aff'd, 838 F.2d 735 (4th Cir.1988).

Here, the majority allows the City of Honolulu to exile plaintiff organizations from WaildM. In so doing, it allows their removal from Waikiki’s large and diverse audience and prevents them from spreading their message in an efficient and effective manner. Under Bay Area Peace Navy, Honolulu must afford plaintiffs an opportunity to reach their intended audience. This is especially true when, as discussed above in part A, there are reasonable alternative means to achieve legitimate government interests.

Accordingly, I dissent.

. The plainclothes officer who investigated the T-shirt stands testified that he had a "good” conversation with an "active” member of the Bhakti-vedanta Mission, who shared his religious beliefs with the officer and read aloud parts of a handout on these beliefs. The officer also testified that three organizations, including One World One Family Now, distributed literature to him.

. For example, One World One Family Now’s T-shirt stands display a sign that reads “One World Family.”