On June 4, 2002, NVP appealed the results of the April 17, 2002 lottery
to the Calistoga City Council. NVP's appeal was denied. On June 17,
2002, the City notified NVP that it was required to remove its
publications from the five newsracks within fifteen days.
On July 2, 2002, NVP filed a complaint against the City alleging
violations of NVP's:  First and Fourteenth Amendment rights;  Due
Process rights;  rights under the Equal Protection Clause; and 
rights under the California Constitution.*fn3
Thereafter, on July 17, 2002, the City notified NVP for a second time
that it was required to remove its publications.
NVP appealed the City's notice of removal to the Calistoga City
Council. On July 31, 2002, the City denied NVP's administrative appeal
and ordered NVP to remove its publications within ten days (on or before
August 10, 2002).
On August 8, 2002, NVP filed a motion for a temporary restraining order
and preliminary injunction before the Court asserting as it primary basis
NVP's First Amendment Claim. On August 9, 2002, due to this Court's
unavailability, a hearing on the motion for temporary restraining order
was held before the Honorable Charles R. Breyer. The District Court
issued the temporary restraining order maintaining the status quo.
Additional briefs and evidentiary material were submitted by both
parties and a hearing on the motion for a preliminary injunction was held
on August 21, 2002, and taken under submission.
Having reviewed the briefs and accompanying evidentiary submissions
filed by counsel and the record in this case, as well as having
considered the oral argument of counsel on August 21, 2002, the Court
makes the following determinations.
A. Legal Standard
A preliminary injunction is a provisional remedy, the purpose of which
is to preserve status quo and to prevent irreparable loss of rights prior
to final disposition of the litigation. Sierra On-Line, Inc. v. Phoenix
Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). The trial court may
grant a temporary restraining order or preliminary injunction in the
exercise of its equitable powers. Fed R. Civ. P. 65. It does so in the
exercise of its discretion. See Schneider v. California Department of
Corrections, 91 F. Supp.2d 1316, 1327 (N.D.Cal. 2000), citing, Big
Country Foods, Inc. v. Board of Educ. of Anchorage School Dist.,
868 F.2d 1085, 1087 (9th Cir. 1989). Generally, to obtain preliminary
injunctive relief, a moving party must show a threat of irreparable
injury and the inadequacy of legal remedies, the conventional requisites
for equitable relief. See Arcamuzi v. Continental Air Lines, Inc.,
819 F.2d 935, 937 (9th Cir. 1987); Easyriders Freedom F.I.G.H.T. v.
Hannigan, 92 F.3d 1486, 1495 (9th Cir. 1996).
In addition, the issuance of preliminary injunctive relief rests upon
consideration of four factors:  the likelihood of the plaintiffs'
success on the merits;  the threat of irreparable harm to the
plaintiffs if the injunction is not imposed;  the relative balance of
this harm to the plaintiffs and the harm to the defendants if the
injunction is imposed; and  the
public interest. Los Angeles Memorial
Coliseum Commission v. National Football League, 634 F.2d 1197, 1200-01
(9th Cir. 1980).
The Ninth Circuit has encompassed these factors into a two-prong test.
To qualify for preliminary injunctive relief, the moving party must show
"`either  a likelihood of success on the merits and the possibility of
irreparable injury, or  that serious questions going to the merits
were raised and the balance of hardships tips sharply in [the moving
party's] favor.'" Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115,
1119 (9th Cir. 1999), quoting, Sega Enterprises, Ltd. v.
Accolade, Inc., 977 F.2d 1510, 1517 (9th Cir. 1992). See Schneider, 91
F. Supp.2d at 1327. "These two formulations represent a continuum in
which the required degree of irreparable harm increases as the
probability of success decreases." America West Airlines, Inc. v. National
Mediation Board, 119 F.3d 772, 777 (9th Cir. 1997) (internal quotations
omitted). See Sun Microsystems, 188 F.3d at 1119 (noting that the greater
the moving party's relative hardship, the less probability of success
must be shown); Schneider, 91 F. Supp.2d at 1327 ("These are not two
distinct tests, but rather the opposite ends of a single continuum in
which the required showing of harm varies inversely with the required
showing of meritoriousness." (internal quotations omitted)). When an
injunction would affect the public, the court must examine whether the
public interest would be advanced or impaired by the issuance of a
preliminary injunction. Caribbean Marine Services Co. v. Baldridge,
844 F.2d 668, 674 (9th Cir. 1988).
1. Irreparable injury
The City initially argues that NVP cannot establish irreparable
injury, if it is unable to show a likelihood of success on the merits.
The City argues that if there is only a showing of serious questions on
the merits, the threat to First Amendment rights is insufficient to
permit injunctive relief.
The argument is meritless. It collapses two concepts. Inquiry into
irreparable injury is separate and distinct from inquiry into the
merits. The issue with respect to irreparable injury is whether, if the
preliminary injunction is denied, the plaintiff can be made whole should
it prove victorious at trial, i.e., whether the loss or deprivation
pending trial is reparable. The loss of money is the classic example of an
interim loss that is fully remediable after trial. L.A. Coliseum, 634
F.2d at 1202 (irreparable harm not present where losses can be
compensated by money damages). On the other hand, certain interim
injuries such as an injury to the environment or to a copyright, become
irretrievable once incurred and are not fully remediable. See, e.g.,
Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 545 (1987)
(environmental injury); Cadence Design Systems, Inc. v. Avant! Corp.,
125 F.3d 824, 827 (9th Cir. 1997) (presumption of irreparable harm in
copyright infringement cases), cert. denied, 523 U.S. 1118 (1997).
Irreparability of injury pending trial turns on the nature of the loss
and the ability of the court to make the plaintiff whole after the
trial; it does not necessarily turn on the meritoriousness of the
plaintiff's legal claim.
In this case, the loss threatened is the restriction on distribution of
NVP's publications which would result from enforcement of the Ordinance
and the April 17, 2002 lottery. NVP has proffered evidence it would lose
significant readership if the challenged restrictions were implemented
pending trial. Restrictions which impede speech inflict an immediate loss
the opportunity to speak (or in this case, the opportunity to
disseminate NVP's speech through its publications). That loss is
especially significant (and irremediable) for a periodic publication
whose publication loses value with each passing period. That lost
opportunity to disseminate time sensitive speech cannot be remedied after
trial. Preventing injury that cannot later be repaired is precisely the
kind of irreparable injury that warrants preliminary injunctive relief.
See S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir. 1998)
(finding irreparable injury where ordinance imposed unreasonable time,
place and manner restriction on protected speech), quoting, Elrod v.
Burns, 427 U.S. 347, 373 (1976) ("the loss of First Amendment freedoms
for even minimal periods of time unquestionably constitutes irreparable
injury"); Foti v. City of Menlo Park, 146 F.3d 629, 643 (9th Cir. 1998)
(same); One World One Family Now, Inc. v. State of Nevada,
860 F. Supp. 1457, 1464 (D. Nev. 1994) (finding irreparable injury where
charitable nonprofit organizations were precluded from selling
message-bearing t-shirts using portable tables and signs on the Las Vegas
Furthermore, in addition to the lost opportunity to disseminate
time-sensitive speech, if the challenged impingement on speech violates
the First Amendment, the plaintiff also suffers the loss of a
constitutionally-protected legal right. Violation of a constitutional
right in, and of itself, constitutes irreparable injury. See Topanga
Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1528-29 (9th Cir.
1993) (constitutional rights), cert. denied, 511 U.S. 1030 (1994); Chalk
v. United States District Court, 840 F.2d 701, 710 (9th Cir. 1988) (civil
rights); Zepeda v. United States Immigration and Naturalization Service,
753 F.2d 719, 727 (9th Cir. 1983) (constitutional rights). While this
aspect of harm is related to the meritoriousness of a plaintiff's claim,
even where the plaintiff has not demonstrated it is likely to prevail but
instead establishes serious questions on the merits, it thereby
establishes a distinct possibility that its constitutional rights would
be violated absent the preliminary injunction. Sammartano v. First
Judicial District Court in, for County of Carson City, — F.3d
— , 2002 WL 1963341, *13 (9th Cir. 2002) ("[E]ven if the merits of
the constitutional claim were not clearly established at this early stage
in the litigation, the fact that a case raises serious First Amendment
questions compels a finding that there exists the potential for
irreparable injury." (Internal quotations omitted)). Irreparable injury
need not be established with certainty or even high probability; the
distant possibility of such harm establishes a "serious threat of
irreparable injury" sufficient to support preliminary injunctive relief.
See, e.g., id.; Foti, 146 F.3d at 643; Burkow v. City of Los Angeles,
119 F. Supp.2d 1076, 1082 (C.D.Cal. 2000).
2. The balance of hardships
NVP asserts that with respect to that prong of the preliminary
injunction test involving "serious questions going to the merits," where
First Amendment rights are at issue, it need only show the balance of
hardships tips in its favor, not that the balance tips "sharply" in its
favor. NVP cites to Foti v. City of Menlo Park, supra, for this
proposition. However, the Court is not convinced that Foti establishes a
new and different standard for preliminary injunctive relief. While Foti
omits the term "sharply" in its description of the balance of hardships,
the omission is insignificant. Telling is Foti's citation to Gilder v.
PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991). Gilder states that
"`[t]he critical element in determining the test to be applied is the
relative hardship to the parties. If the balance of harms tips decidedly
toward the plaintiff, then the plaintiff need not show as robust a
likelihood of success on the merits as when the balance tips less
decidedly.'" Gilder, 936 F.2d at 422 (emphasis added), quoting, Benda v.
Grand Lodge of Int'l Ass'n of Machinists & Aerospace Workers,
584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937 (1979).
The Court sees no significance between the terms "decidedly" and
"sharply" and refuses to impute to the Ninth Circuit on such a bare
thread, an intent to modify the general test applicable to preliminary
injunctions. Additionally, the Court notes post Foti, numerous trial
courts have applied the traditional test for a preliminary injunction in
First Amendment cases, requiring that the hardships tip "sharply" in
favor of the plaintiffs where the plaintiffs only establish serious
questions on the merits. See, e.g., City of Thousand Oaks v. Verizon
Media, No. CV 02-2553, 2002 WL 987910, *4 (C.D.Cal. May 15, 2002); Mardi
Gras of San Luis Obispo v. City of San Luis Obispo, 189 F. Supp.2d 1018,
1025 (C.D.Cal. 2002); San Jose Christian College v. City of Morgan Hill,
No. C 91-20857, 2001 WL 1862224, *1 (N.D.Cal. Nov. 14, 2001); Eller Media
Co. v. City of Oakland, No. C 98-2237, 1998 WL 549494, *3 (N.D.Cal. Aug
As noted above, the First Amendment interest may well inform the
calculus in the balance of hardships, but it does not change the
Accordingly, the Court examines the merits of NVP's legal challenges to
the Ordinance and the respective balance of hardships under the
traditional test applicable in this Circuit.
B. Legal Challenges to the Ordinance
At the outset, it is undisputed that NVP's right to sell The Napa
Valley Register and distribute other publications in newsracks with the
city limits of Calistoga is constitutionally protected by the First
Amendment. See Gannett Satellite Info. Network v. Metropolitan
Transportation Authority, 745 F.2d 767, 772 (2d Cir. 1984). The First
Amendment, however, "does not guarantee the right to communicate one's
views at all times and places or in any manner that may be desired,"
Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647
(1981), and under certain circumstances, a municipality may impose
reasonable time, place and manner restrictions on the exercise of First
Amendment rights. The municipality possesses the burden, however, as the
City concedes, of proving the constitutionality of the Ordinance. See
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816
(2000) ("When the Government restricts speech, the Government bears the
burden of proving the constitutionality of its actions.").
Here, NVP bases its motion for a preliminary injunction on two
challenges to the Ordinance. First, it contends that the Ordinance grants
excessive discretion to the City to grant or deny the permits required
for the installation and use of newsracks. Second, NVP challenges the
numerical limits on newsracks permitted and the allocation of resulting
scarcity by annual lottery as an invalid time, place and manner
restriction on speech.
1. Statute of Limitations
As a threshold question, the City argues that NVP is precluded from
challenging the Ordinance due to the one-year statute of limitation which
runs from the time the Ordinance was passed (February 6, 2001). For this
proposition, the City cites Acuna v. The Regents of the University of
California, 56 Cal.App.4th 639, 645-46 (1997) (determining that an
one year statute of limitations applied to a wrongful termination action
where the university allegedly terminated a professor based on his
political views). However, Acuna involves an "as-applied" challenge as
opposed to a facial challenge to legislation.*fn4
In this case, NVP purports to challenge the Ordinance on its face. The
statute of limitations does not apply to the facial challenge of a
statute that infringes First Amendment freedoms as such as statute
inflicts a continuing harm. See 3570 East Foothill Blvd., Inc. v. City of
Pasadena, 912 F. Supp. 1268, 1278 (C.D.Cal. 1996) (noting that such a
challenge is different in a takings context because there the very
enactment of the statute inflicts harm); Santa Fe Springs Realty Corp.
v. City of Westminster, 906 F. Supp. 1341, 1364-65 (C.D.Cal. 1995)
("Because strong policy reasons militate in favor of permitting facial
challenges to statutes that impinge upon protected First Amendment
rights, the statute of limitations should not preclude a plaintiff from
bringing a facial challenge more than one year after the statute is
enacted."). See also National Advertising Co. v. City of Raleigh,
947 F.2d 1158, 1168 (4th Cir 1991), cert. denied, 504 U.S. 931 (1992).
Moreover, even if the City's statute of limitations defense applied to
those aspects of NVP's claims which might be construed as an as-applied
challenge to the Ordinance, the statute of limitations defense begins to
run as of the date of the challenged application, e.g., when the party
seeks and is denied a permit under the statute. See Gilbert v. City of
Cambridge, 745 F. Supp. 42, 49 (D.Mass. 1990), aff'd, 932 F.2d 51 (1st
Cir. 1991), cert. denied, 502 U.S. 866 (1991). In the case at bar, the
City's denial of NVP's newsrack locations based on the results of the
April 17, 2002 lottery is within a year of this suit.
Thus, at this juncture, the City has not demonstrated that this suit is
2. The City's unbridled discretion in the issuance of permits under the
Where a city vests unbridled discretion in the hands of a government
official or agency in issuing a permit for speech, it imposes a prior
restraint. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750,
757 (1988). See S.E. Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-53
(1975) (stating that a prior restraint is found where a party must apply
to a government body prior to its exercise of its First Amendment rights
for a permit). A prior restraint is presumptively unconstitutional.
Forsyth County, Ga. v. The Nationalist Movement, 505 U.S. 123, 131-32
The critical question is whether the restraint presents an intolerable
risk of censorship. The seminal case applicable here is City of
Lakewood, supra. In City of Lakewood, the defendant city enacted an
ordinance regulating newsracks within city limits. The ordinance gave the
defendant city's mayor the authority to grant or deny newsrack permit
applications and only required the mayor to "state the reasons for such
denial." City of Lakewood, 486 U.S. at 753. Where the mayor granted the
permit application, the permit was subject to several terms and conditions
such as, inter alia, the approval of the newsrack design and "any other
terms and condition deemed necessary and reasonable by the [m]ayor." Id.
at 754. The plaintiff, a newspaper publisher, did not seek a permit, but
instead brought suit to challenge the constitutionality of the ordinance
on its face. The Supreme Court found that a facial challenge was proper
and that the plaintiff was not required to seek and suffer denial of a
permit in order to bring suit. Id. at 759.
The Court found that "the ordinance itself contain[ed] no explicit
limits on the mayor's discretion," and that "nothing in the [ordinance]
as written requires the mayor to do more than make the statement `it is
not in the public interest' when denying a permit application." Id. at
769 The Supreme Court concluded that allowing such an illusory constraint
"to constitute standards necessary to [bind] a licensor's discretion
renders the guarantee against censorship little more than a high-sounding
ideal." Id. at 769-70, citing, Shuttlesworth v. City of Birmingham,
Alabama, 394 U.S. 147, 150-51 (1969). The broad discretion gave
government officials substantial power to discriminate based on the
content or the viewpoint of the speech by suppressing disfavored speech
or disliked speakers. City of Lakewood, 486 U.S. at 759-60. The Court
the absence of express standards makes it difficult to
distinguish, "as applied," between a licensor's
legitimate denial of a permit and its illegitimate
abuse of censorial power. Standards provide the
guideposts that check the licensor and allow courts
quickly and easily to determine whether the licensor
is discriminating against disfavored speech. Without
these guideposts, post hoc rationalizations by the
licensing official and the use of shifting or
illegitimate criteria are far too easy, making it
difficult for courts to determine in any particular
case whether the licensor is permitting favorable, and
suppressing unfavorable, expression.
Id. at 758. The Court thus noted that "the mere existence of the
licensor's unfettered discretion, coupled with the power of prior
restraint, intimidates parties into censoring their own speech, even if
the discretion and power are never actually abused." Id. at 757.
It is not difficult to visualize a newspaper that
relies to a substantial degree on single issue sales
feeling significant pressure to endorse the incumbent
mayor in an upcoming election, or to refrain from
criticizing him, in order to receive a favorable and
speedy disposition on its permit application. Only
standards limiting the licensor's discretion will
eliminate this danger by adding an element of
certainty fatal to self-censorship.
Id. at 757-58.