Seattle Affiliate of October 22nd Coalition to Stop Police Brutality v. City of Seattle

Opinion by Judge FISHER; Dissent by Judge IKUTA.

We are presented with a conflict between those who wish to conduct a parade on Seattle’s city streets — a forum historically preferred by people who want to demonstrate their messages of honor, celebration or, as in this case, protest — and the city’s interests in traffic safety. The City of Seattle by ordinance gives its police chief, when issuing a parade permit, the discretion to require marchers to use the sidewalks instead of the city streets. *791 The issue is whether the ordinance violates the free speech guarantees of the First Amendment because on its face it imper-missibly grants “the licensing official ... unduly broad discretion.” Thomas v. Chi. Park Dist. 534 U.S. 316, 323 , 122 S.Ct. 775 , 151 L.Ed.2d 783 (2002). We conclude that the ordinance by its terms gives the Chief of Police unbridled discretion to force marchers off the streets and onto the sidewalks, unchecked by any requirement to explain the reasons for doing so or to provide some forum for appealing the chiefs decision. We therefore hold that the parade ordinance is facially unconstitutional.

I. Factual and Procedural Background

The Seattle affiliate of…

dissenting:

Seattle requires the Chief of Police to grant a parade permit to anyone who applies for one. SMC 11.25.020. 1 The Chief of Police has authority only to modify the parade’s place, time, and proposed line of movement or march “in the interest of vehicular or pedestrian traffic safety.” Id. Because Seattle defines “parade” as always involving some “closure of streets to prevent a conflict with the regular flow of vehicular traffic,” SMC 11.14.410, anyone with a parade permit is entitled to some use of the city streets. Seattle’s routine effort to coordinate parade activities with public safety concerns is a garden-variety content-neutral time, place and manner restriction. And yet the majority holds that the routine authority to reroute a march for vehicular and pedestrian safety is actually a grant of standardless discretion to deny First Amendment rights which must be struck down as facially unconstitutional. 2 Maj. Op. at 801-03. Because this conclusion is not supported by Supreme *804 Court precedent or our case law, I must respectfully dissent.

A

“[I]n order to regulate competing uses of public forums, [local governments] may impose a permit requirement on those…

Michael K. Ryan (argued), Ryan Drew Redekopp and Alex Wagner, Preston Gates & Ellis LLP, Seattle, WA, and Aaron H. Caplan, American Civil Liberties Union of Washington, Seattle, WA, for the plaintiff-appellant.

Carlton W.M. Seu (argued), Assistant City Attorney, and Thomas A. Carr, City Attorney, Seattle, WA, for the defendants-appellees.

Before: RAYMOND C. FISHER, RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge FISHER; Dissent by Judge IKUTA.

FISHER, Circuit Judge:

We are presented with a conflict between those who wish to conduct a parade on Seattle's city streets—a forum historically preferred by people who want to demonstrate their messages of honor, celebration or, as in this case, protest—and the city's interests in traffic safety. The City of Seattle by ordinance gives its police chief, when issuing a parade permit, the discretion to require marchers to use the sidewalks instead of the city streets. The issue is whether the ordinance violates the free speech guarantees of the First Amendment because on its face it impermissibly grants "the licensing official ... unduly broad discretion." Thomas v. Chi. Park Dist., 534 U.S. 316, 323 , 122 S.Ct. 775…