The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
By way of the instant action, Plaintiff brings a facial challenge to City of Stockton Municipal Code § 16-575-050A. Presently before the Court is Plaintiff's Motion for Permanent, or alternatively, Preliminary, Injunction, through which Plaintiff seeks an order directing Defendant City of Stockton to refrain from enforcing, applying, or otherwise giving any legal effect to the municipal code section requiring individuals to obtain a use permit as a prerequisite to providing live entertainment. The Court heard oral argument from the parties on Monday, June 8, 2009, at 2:00 p.m. and, in open court and on the record, granted Plaintiff's Motion in part.
A preliminary injunction is an extraordinary remedy, and Plaintiff has the burden of proving the propriety of such a remedy by clear and convincing evidence. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 442 (1974). In order to warrant issuance of such relief, Plaintiff must demonstrate either: 1) a combination of probable success on the merits and a likelihood of irreparable injury; or 2) that serious questions are raised and the balance of hardships tips sharply in favor of granting the requested injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839-40 (9th Cir. 2001); Winter v. Natural Resources Defense Council, 129 S.Ct. 365, 375 (2008) (likelihood rather than possibility of success on the merits required for issuance of preliminary injunctive relief). These two alternatives represent two points on a sliding scale, pursuant to which the required degree of irreparable harm increases or decreases in inverse correlation to the probability of success on the merits. Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). Under either formulation of the test for granting injunctive relief, however, Plaintiff must demonstrate a significant threat of irreparable injury. Oakland Tribune, Inc. v. Chronicle Publ. Co., 762 F.2d 1374 (9th Cir. 1985).
Plaintiff has adequately convinced the Court that this case implicates critical First Amendment interests and that, absent the issuance of injunctive relief, Plaintiff will suffer an unconstitutional prior restraint upon his speech and/or expression. The challenged provision in this case, Municipal Code § 16-575-050A, governs, inter alia, the issuance of use permits to individuals seeking to provide various forms of live entertainment. Thus, according to Plaintiff, the code section imposes an impermissible prior restraint on Plaintiff's chosen form of expression, which, in this case, consists of live musical entertainment offered at his restaurant. The United States Supreme Court has made it abundantly clear that music is a form of expression protected by the First Amendment, and that loss of such protected "First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); Elrod v. Burns, 427 U.S. 347, 373 (1976).
2. Likelihood of Success on the Merits
As above, Plaintiff's likelihood of success on the merits is also dependent upon his ability to show that the challenged portion of the municipal code constitutes an unconstitutional prior restraint on speech and/or expression.
Accordingly, this case is not about a particular type of entertainment, or more specifically, loud music and/or crowd control. Those issues are adequately addressed through, inter alia, the California Penal Code and City of Stockton parking, traffic, and noise ordinances. Rather, this case is specifically limited to a specific ordinance, one which the City of Stockton acknowledges is constitutionally infirm. The issue this Court is now called upon to resolve is whether it should immediately issue a permanent injunction enjoining enforcement of the ordinance or whether the City should be granted its request for one-hundred twenty (120) days to review and revise the challenged ordinance. The Court appreciates Defendant's candor in acknowledging that the ordinance in question is constitutionally flawed. Nevertheless, this Court finds that, under the circumstances, one hundred twenty (120) days is an excessive amount of time in which to complete the necessary revisions. Thus, for the following reasons, Plaintiff's request for preliminary injunctive relief is granted in part, but Defendant will be allowed an abbreviated time in which to address those challenged infirmities.
A prior restraint occurs under circumstances in which the licensing regime "gives public officials the power to deny use of a forum in advance of actual expression." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975). "Prior restraints are not unconstitutional per se." Id. at 558 (1975). "Any system of prior restraint, however, 'comes to this Court bearing a heavy presumption against its constitutional validity.'" Id., quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
"[T]he [Supreme] Court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use." Id. at 553.
For similar reasons, "[i]t is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. Thus, the [United States Supreme] Court has permitted a party to challenge an ordinance under the overbreadth doctrine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker..." Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123, 129-130 (1992) (internal citations omitted).
"In evaluating [a] facial challenge, [the Court] must consider the [City's] authoritative constructions of the ordinance, including its own ...