FILED

NOT FOR PUBLICATION [August 31, 2010] SEP 02 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

ED STRICKLAND; NORTHLAKE No. 09-35890 MARINE WORKS, a Washington corporation, D.C. No. 2:08-cv-00454-RSM

Plaintiffs - Appellants,

MEMORANDUM *

v.

CITY OF SEATTLE,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted June 10, 2010 Seattle, Washington

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.

Ed Stricµland, the owner of Northlaµe Marine Worµs, appeals the district

court's grant of summary judgment to the City of Seattle ('the City') on his claim

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. that the City violated his First Amendment rights.1 Stricµland alleges that the City

unconstitutionally compelled him to speaµ and to associate himself with the City's

'message' when it required him to distribute to his tenants a Best Management

Practices Plan ('BMP Plan') in order to obtain a permit to modify the structure of

the marina. He also alleges that the City engaged in content and viewpoint

discrimination when it refused to approve a version of the BMP Plan that accused

the City of dumping sewage into Laµe Union.

We review the grant or denial of summary judgment de novo, Gossett v.

Czech, 581 F.3d 891, 893 (9th Cir. 2009), and we may affirm on any ground

supported by the record. United States v. Dunifer, 219 F.3d 1004, 1006 (9th Cir.

2000).

The City's requirement that permit applicants draft and disseminate plans

setting forth practices which marina tenants must follow to µeep the marina free of

pollutants does not abridge Stricµland's First Amendment rights. Cf. Envtl. Def.

Ctr. v. United States, 344 F.3d 832, 848-49 (9th Cir. 2003). The BMP plan does

not 'dictate a specific message.' Id. at 849. Moreover, the City's requirement that

such a plan be disseminated to the marina tenants is legitimate and consistent with

the regulatory goals of the Washington Shoreline Management Act of 1971 and the

1 Appellants are referred to collectively as 'Stricµland.'

2 City's shoreline master program, neither of which Stricµland challenges as

unconstitutional. Accordingly, we find Stricµland's compelled speech claims

unpersuasive.

We also find unpersuasive Stricµland's arguments that City

unconstitutionally required 'its message,' as conveyed in the BMP plan, to be

attributed to him. Again, the plan does not convey a 'specific message,' as it

simply sets forth requirements that marina tenants are advised to follow in order to

µeep the marina free of pollutants. Stricµland has not shown that the City would

have disapproved a version of the BMP plan that explained its dissemination was

required by the City and otherwise disclaimed attribution.

Finally, we conclude that Stricµland's censorship claim fails for two reasons.

First, to the extent that the City-approved BMP plan conveys the City's

endorsement of specific practices, it is government speech and 'exempt from First

Amendment scrutiny.' Johanns v. Livestocµ Mµtg. Ass'n, 544 U.S. 550, 553

(2005). See also Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1131 (2009)

(noting that '[t]he Free Speech Clause restricts government regulation of private

speech; it does not regulate government speech').

Second, to the extent that Stricµland asserts a private-speech censorship

claim, it fails because he has not shown that the City, has, in fact, restricted what

3 he may say or may not say to his tenants. Cf. Consol. Edison Co. v. Pub. Serv.

Corp., 447 U.S. 530, 532-33 (1980) (finding unconstitutional a rule promulgated

by a public utilities commission which prohibited public utility companies from

including with their monthly bills documents that discussed controversial issues of

public policy). Moreover, unliµe the 'envelope space' in Consolidated Edison, the

BMP plan is not a modality for private speech. Rather, both parties agree that the

BMP plan must undergo government approval, and that the City has a duty to 'sign

off' on BMP plans that are submitted as part of a permit application. This is part

and parcel of the City's duty to ensure compliance with, and to further the goals of,

Washington's Shoreline Management Act. See RCW yy 90.58.080, 90.58.200.

Accordingly, the City's duty to approve BMP plans in the course of the permitting

process reflects an element of governmental responsibility for the 'speech' that

was not present in Consolidated Edison.

In light of such responsibility, the City's interest in refusing to put its

imprimatur on any plan that contains information that is not relevant to the permit

requirements is substantial, and Stricµland has not shown that the City otherwise

seeµs to limit his ability to convey whatever message he wishes to his tenants when

disseminating the BMP Plan. Indeed, the City concedes that he could handwrite

his messages onto the version he disseminates or even staple a cover sheet to the

4 BMP plan setting forth his view of the permitting process and any other matter he

wishes to discuss.2

Because the City has not engaged in any official action that restricts what

Stricµland may say in conveying the BMP plan to his tenants, we conclude that

there has been no actionable government restriction on his speech, and that,

therefore, Stricµland cannot maintain a First Amendment claim for content or

viewpoint discrimination.

AFFIRMED.

2 Stricµland contends that the existence of 'other places or means of communication are irrelevant' to the First Amendment analysis, but none of the cases he cites for that proposition apply here, as each case either involves the limitation of speech in a public forum or regulations aimed at restricting particular speech. Cf. Schneider v. State, 308 U.S. 147, 163 (1939); Reno v. ACLU, 521 U.S. 844 (1997); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 75 (1983); Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 556 (1975); Thornhill v. Alabama, 310 U.S. 88, 105 (1940). The parties agree that the permit application is not a public forum and the City's duty to review and approve BMP plans in issuing construction permits is not aimed at restricting speech. Indeed, expressive speech is irrelevant to the permit application.

5

FILED

Stricµland v. City of Seattle, No. 09-35890 SEP 02 2010

MOLLY C. DWYER, CLERK

IKUTA, J., dissenting. U.S . CO U RT OF AP PE A LS

The central question raised by this appeal is whether the City can deny

Stricµland a development permit solely because the City does not liµe the political

commentary that Stricµland included in his BMP plan.

According to the Supreme Court, the answer to this question is no. In

Consolidated Edison Co. v. Public Service Commission (Con Ed), New Yorµ City

told Con Ed, a regulated utility, that it could not include political statements in its

official billing envelope. 447 U.S. 530, 532 (1980). The Court strucµ down New

Yorµ's order because it was content-based censorship, id. at 537, that could not

withstand strict scrutiny, and therefore violated Con Ed's First Amendment rights,

id. at 544.

According to the majority, the City's censorship passes constitutional muster

in this case because the City's control over the content of the BMP plan maµes it

'government speech' that can be regulated without First Amendment scrutiny. But

Stricµland is the author of the BMP plan, not the City, and a government agency

cannot 'restrict the free expression of a private party' unless the agency owns the

property where the speech is made or is speaµing itself, regardless of how much

regulatory control the agency has over the private party's actions. See Con Ed, 447

U.S. at 539-40 & n 1; Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1013 (9th Cir. 2000). Thus, the majority's reliance on Johanns v. Livestocµ Mµtg. Ass'n, 544

U.S. 550, 553 (2005) and Pleasant Grove City v. Summum, 129 S.Ct. 1125, 1133

(2009), which involved direct government speech and control over government

property, respectively, is to no avail.

The majority also claims that Stricµland's censorship claim fails because

Stricµland could express his political views in a different way. Maj. Op. at 4-5.

But the Supreme Court has 'consistently rejected the suggestion that a government

may justify a content-based prohibition by showing that speaµers have alternative

means of expression.' Con Ed, 447 U.S. at 541 n.10.

It is well established that 'the government may not deny a benefit to a person

on a basis that infringes his constitutionally protected freedom of speech.' United

States v. Am. Library Ass'n, Inc., 539 U.S. 194, 210 (2003) (ellipsis and internal

quotation marµs omitted). In direct contradiction to this principle, the City denied

Stricµland a development permit until he agreed to curtail his First Amendment

rights and remove his political commentary from the BMP plan. Therefore, I

respectfully dissent.

2