Santa Monica Food Not Bombs v. City of Santa Monica

concurring:

I concur in Judge Berzon’s principal opinion, except as to Part II.C. In my view, the indemnification provision is content neutral. “In determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation.” Bartnicki v. Vopper, 532 U.S. 514, 526 , 121 S.Ct. 1753 , 149 L.Ed.2d 787 (2001); see also Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1043-44 (9th Cir.2002). The purpose of Santa Monica’s indemnification provision is to protect the public fisc, not to burden particular speech. A regulation requiring permittees to defend against suits that result from their own acts or omissions, regardless of the ultimate success of the suit, does not discriminate based on the content of the message; nor is it unreasonable. See Cal. Civ.Code § 2778 (defining default rule in interpretation of indemnification agreements that the indemnitor pays the cost of defending claims).

Judge Berzon’s reading of Forsyth County v. Nationalist Movement, 505 U.S. 123 , 112 S.Ct. 2395 , 120 L.Ed.2d 101 (1992) is overly broad. In that case, the ordinance allowed the county administrator to adjust the size of the permitting fee, based on his…

Opinion and Partial Dissent by Judge BERZON; Partial Majority Opinion, Partial Concurrence, and Partial Dissent by Judge KLEINFELD; Concurrence by Judge WARDLAW.

with whom Judge KLEINFELD concurs except as to Sections II.B.2.b.(l)(ii) and II.C, and Judge WARDLAW concurs except as to Section II.C.

We consider the facial constitutionality of ordinances enacted by the City of Santa Monica to regulate activity in its outdoor public spaces. During the pendency of this litigation, both these ordinances and Santa Monica’s administrative interpretation of them have changed substantially. Appellants’ persistent urging and Santa Monica’s 'willingness to change its regulations have together produced a transformation in the applicable permitting scheme that — to the credit of all parties involved— provides significantly more opportunity for those who wish to make their views heard in public spaces to do so without first obtaining permits.

We review only the present version of the ordinance and implementing regulations and, of course, only those portions that appellants specifically challenge. 1 Doing so,' we hold that Santa Monica’s Community Events Ordinance is, save a single provision, a…

I. FACTUAL AND LEGAL BACKGROUND

A. Santa Monica and the Ordinances at Issue2 1 As always, we are not to be understood as having reviewed or approved aspects of the ordinances or implementing regulations not here challenged. To clarify our holdings in this sensitive area, we have endeav- ored throughout to be quite specific about the limited nature of the chal- lenges to which we respond. 2 Santa Monica has requested that we take judicial notice of six docu- ments: Staff Report, City Council of the City of Santa Monica (Feb. 10, 2004) at 6-20; Staff Report, City Council of the City of Santa Monica (Feb. 10, 2004) at 21-31; City of Santa Monica Ordinance No. 2116; City of Santa Monica Ordinance No. 2117; Event Permit Application; City of Santa Monica Defense, Indemnity, and Hold Harmless Agreement. Santa Monica submits that each document is a certified public record. The first four documents are on file with the City Clerk of the City of Santa Mon- ica. The remainder can be accessed at Santa Monica’s official website found at www.santa-monica.org/ccs/events and are on file with the Open Space Management Division of the Community and Cultural Services Department of the City…