9th Circuit upholds Calif. county’s residential-picketing ordinance

Monday, October 9, 2006

A federal appeals court has upheld the constitutionality of a California county’s residential-picketing ordinance, rejecting a bid by a group of protesters to topple the law.

Ruling in Klein v. San Diego County, a unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals on Sept. 18 affirmed a lower court decision dismissing the challenge. The protesters had claimed that the 2002 law, which bars “picketing activity that is targeted at and within three hundred (300) feet of a residential dwelling in the unincorporated areas” of the county, violated the First Amendment.

This case stems from a 2003 dispute. At a meeting of the Padre Dam Municipal Water District board, a water district employee, Deborah Baczynski, physically mimicked Joel Anderson, a member of the board with Bell’s palsy, a form of facial paralysis. Upset that August Caires, the general manager of the water district, did not reprimand Baczynski, a group of citizens on Sept. 13, 2003, went to Caires’ neighborhood to picket near his house. They had three goals: to jumpstart a third-party investigation into abuses against disabled persons, to ensure that a similar incident would not occur in the future and to educate the public about the water district’s discrimination against disabled persons.

Two deputy sheriffs arrived at the protest and ordered the picketers to leave because they were breaking the county residential-picketing ordinance, which the deputies said required picketers to remain 300 feet from the target’s property line. It was later discovered that the deputies had misunderstood the ordinance, which actually requires picketers to stay 300 feet from the residential dwelling of the target, a criterion that the picketers met.

Despite their not breaking the law, the picketers claimed the ordinance violated their rights of free speech and due process. They filed a lawsuit in U.S. District Court, seeking an injunction and monetary damages. On Nov. 19, 2003, a federal judge granted a temporary injunction against the ordinance.

The plaintiffs filed both a facial and an as-applied challenge to the ordinance. Regarding the First Amendment, a facial challenge asserts that a right is violated by the law on its face, or as it is written. An as-applied challenge alleges that a regulation violates the First Amendment in its application. The federal judge said that, since the picketers technically did not break the law, the case would be viewed solely as a facial challenge.

The judge upheld the ordinance and was affirmed last month by the 9th Circuit.

In his opinion for the court, Judge Harry Pregerson rejected the plaintiffs’ assertions that the ordinance was an invalid time, place and manner restriction and that it was facially unconstitutional, overbroad and vague. He also rejected their claim that the law violated the California Constitution.

Pregerson said that, according to the U.S. Supreme Court’s 1984 decision in City Council of Los Angeles v. Taxpayers for Vincent, “an ordinance is facially unconstitutional only if it is unconstitutional in every conceivable application.” The panel ruled that the time, place and manner restrictions in the ordinance were constitutional.

In Perry Educ. Ass'n. v. Perry Local Educators' Ass'n., the Supreme Court determined that a time, place and manner restriction is valid if it is content-neutral, serves a significant government interest, and allows for ample alternative methods of communication. The San Diego County ordinance meets all three prongs of this test, the panel found.

Regarding the first prong, the judges found that the ordinance applies regardless of the message of the picketers, making it content-neutral.

Concerning the second prong, Pregerson wrote, “The government certainly has a significant interest in preventing picketing that renders the target resident a captive audience to the picketers’ message. … [R]esidential picketing ordinances must carefully balance two valid and competing interests: the right of residents not to be captive to unwanted speech and the right of picketers to convey their message.”

The court also said that the plaintiffs had other options to disseminate their message.

In summation of this claim, Pregerson said, “We cannot say that the ordinance is unconstitutional in every application, primarily because the ordinance did not have an unconstitutional effect on the test case. … [H]ad the officers correctly interpreted the ordinance, the ordinance would have had no impact on the Plaintiffs’ right to picket at Caires’ residence.”

The plaintiffs also filed an overbreadth challenge, claiming that the ordinance would also ban messages that targets might want to receive, such as holding a “get well soon” sign outside someone’s window. The court denied this claim as well, saying that the ordinance would not affect welcome picketing because the police would not be called to enforce the ordinance in those circumstances.

The plaintiffs filed a vagueness challenge, which asserted that it would be impossible to determine where the 300-foot boundary would fall. The court said the language in the ordinance was not so ambiguous as to be called vague and that maps were available for the public that show lot sizes.

According to the court, the plaintiffs failed to show specific analysis of their final claim: that the ordinance was also unconstitutional according to the California Constitution.

Efforts to reach attorneys for either side were unsuccessful at the time of publication.

Melanie Bengtson is an intern at the First Amendment Center and a sophomore studying developmental politics at Belmont University.

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