issue. However, the language relied upon by Defendants is dictum.
Savage involved a private shopping center's policies not to permit leafleting of cars in its parking lot and to permit leafleting within the shopping center only if the content of the leaflet was "political." The court held that the parking lot ban did not violate the plaintiff's free speech rights under the California Constitution, since the policy was neutral with respect to the message communicated on the leaflet and was a reasonable time, place and manner restriction. Id. at 1571. It held, however, that the shopping center did not have the power to regulate the contents of the leaflets distributed within the shopping center. Id. at 1580-81. In a footnote, the court noted that while the content of a message is not subject to regulation, the means employed to convey a message are subject to regulation, and opined that a regulator could "validly draw a distinction between distributing leaflets and soliciting donations." Id. at 1581 n.6. However, that footnote is dictum, since the solicitation of donations was not at issue in that case.
Therefore, this Court will follow Carrera and find that Alternatives for California Women states the test under the California Constitution Liberty of Speech clause for impermissible content based discrimination. Applying that test, the Berkeley Solicitation Ordinance is facially invalid under the California Constitution. It defines the scope of regulated conduct based upon the content of speech, that is, whether or not the speaker conveys the message of seeking contributions. Accordingly, Plaintiffs will almost certainly prevail on the merits of their challenge to this ordinance.
With respect to the Sitting Ordinance, Plaintiffs do not claim that the protection of the California Liberty of Speech clause exceeds that of the First Amendment. Where the related federal and state constitutional provisions are co-extensive, a federal court may decide the federal constitutional claims without first separately addressing the state claims, because the federal analysis will decide the state claims. Vernon v. City of Los Angeles, 27 F.3d 1385, 1392 (9th Cir.), cert. denied, 130 L. Ed. 2d 417, 115 S. Ct. 510 (1994).
3. First Amendment
Plaintiffs contend that the Sitting Ordinance places an unreasonable burden on the exercise of First Amendment rights and is, therefore, unconstitutional. Since the ordinance does not on its face regulate speech, Plaintiffs have the burden to establish that the First Amendment applies. Clark v. Community for Non-Violence, 468 U.S. 288, 293 n.5, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984).
Plaintiffs attempt to meet that burden in two ways: first, by asserting that sitting can be expressive conduct; and second, by demonstrating that, at least as to Plaintiffs Stanley, Catano and Berkeley Community Health Project and one declarant, sitting is so necessary to and intertwined with their exercise of their free speech rights as to establish that the Sitting Ordinance significantly burdens speech. Plaintiffs argue that the Sitting Ordinance is overbroad, in that it impermissibly regulates conduct within the scope of the First Amendment's protection as well as unprotected conduct.
Defendants argue that these arguments cannot prevail on a facial challenge, but must await enforcement of the ordinance and an "as applied" challenge to that enforcement. It is true that, as a general rule, a facial challenge to the constitutional validity of an enactment considers only the text of the measure itself, not its application to the particular circumstances of an individual, so that the challenger must demonstrate that the enactment's provisions pose a total and fatal conflict with applicable constitutional prohibitions. United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). However, to avoid chilling the exercise of free speech rights, an exception to this general rule exists for First Amendment overbreadth challenges. Yniguez v. Arizonans for Official English, 42 F.3d 1217, 1228 (9th Cir. 1995). The Ninth Circuit explained the overbreadth doctrine in Yniguez as follows:
Under the overbreadth doctrine, ... a party may challenge a law as facially overbroad that would be unconstitutional as applied to him so long as it would also chill the speech of absent third parties. The facial invalidation that overbreadth permits is necessary to protect the First Amendment rights of speakers who may fear to challenge the provision on their own. ...