Argued and Submitted, San Francisco, California:
October 9, 2013.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:12-cr-00206MCE-1. Morrison C. England, Jr., Chief District Judge, Presiding.
The panel affirmed the district court's judgment with regard to the defendant's as-applied constitutional challenges to 38 C.F.R. § 1.218(a)(5), and dismissed for lack of jurisdiction his facial challenge to the regulation, in a case in which the defendant was convicted of disorderly conduct in violation of § 1.218(a)(5), which prohibits causing " disturbances" at Veterans Affairs facilities.
Rejecting the defendant's as-applied First Amendment challenge, the panel held that the conduct for which the defendant was convicted does not constitute protected speech because it involved a " true threat" of violence. The panel held that even if the defendant's conduct did constitute protected speech, § 1.218(a)(5) would not be unconstitutional as applied to his conduct because it is a viewpoint neutral regulation, and prohibiting a visitor from yelling obscenities and threatening physical violence is eminently reasonable in view of the government's legitimate interest in caring for veteran patients and not triggering adverse psychological reactions from such patients.
Rejecting the defendant's contention that § 1.218(a)(5) is vague in violation of the Due Process Clause of the Fifth Amendment, as applied to him, the panel held that the defendant's actions unambiguously fall within the regulation's prohibition on " loud" and " abusive" language and on " conduct . . . which creates loud or unusual noise."
The panel dismissed for lack of jurisdiction the defendant's facial overbreadth challenge to the regulation because 38 U.S.C. § 502 states that facial challenges to the validity of VA regulations may be brought on in the Federal Circuit. The panel held that § 502's jurisdictional bar does not violate the defendant's right to due process.
Concurring in part and dissenting in part, Judge Nelson disagreed with the majority's holding that this court lacks jurisdiction to hear the defendant's overbreadth challenge.
Douglas Beevers (argued), Assistant Federal Defender, Joseph Schlesinger, Acting Federal Defender, Heather E. Williams, Acting Federal Defender, and Zachary Schultz, Certified Law Student, Office of the Federal Defender, Sacramento, California, for Defendant-Appellant.
Ashwin Janakiram (argued), Special Assistant United States Attorney, Benjamin Wagner, United States Attorney, and Camil Skipper, Appellate Chief, Office of the United States Attorney, Sacramento, California, for Plaintiff-Appellee.
Before: Dorothy W. Nelson, Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.; Partial Concurrence and Partial Dissent by Judge D.W. Nelson.
M. SMITH, Circuit Judge:
Defendant-Appellant William J. Szabo appeals from his judgment of conviction under Title 38, Code of Federal Regulations, Section 1.218(a)(5), arguing that the regulation violates the First and Fifth Amendments, both facially and as applied to his conduct. With regard to Szabo's as-applied challenges, we affirm the judgment of the district court. We dismiss Szabo's facial challenge for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Szabo is a veteran who qualifies to receive services at Veterans Affairs (VA) facilities. Prior to August 29, 2011, Szabo was a patient at the Sacramento VA Medical Center outpatient mental health clinic (the VA Hospital). As a result of his prior behavioral problems at the VA Hospital, Szabo was required to have a police escort when he visited the facility, and he was only permitted to be treated by one particular physician.
On August 29, 2011, Szabo arrived at the VA Hospital and asked to see his doctor. He was accompanied only by his brother. A receptionist, who was familiar with Szabo, asked if Szabo had checked in with the VA police, and informed Szabo that he did not have an appointment. In response, Szabo became angry, clenched his fists, and yelled " I don't need [the] fuckin' VA police. I don't need nobody to show me around. I've -- I just want to see my doctor." When the receptionist told Szabo that his doctor was not in, Szabo yelled " I don't need to see his pussy ass anyway, just you know, give me another fuckin' doctor." Szabo proceeded to call the receptionist " a cocksucker , a motherfucker, and a faggot ass son of a bitch." His yelling was so loud that it caused patients to move into the hallway and was audible on other floors. VA security was dispatched to respond.
As the receptionist waited for security to arrive, Szabo threatened that he would " kick [the receptionist's] ass, [his] pussy ass, [his] fucking pussy ass . . . and [the Dr.'s] pussy ass." While making these threats, Szabo was " flailing his arms,  leaning . . . over the counter[,] yelling in the face of . . . the receptionist . . . . slamm[ing] [a stack of papers] to the counter, and . . . slamming his hands [on the counter]." The receptionist feared for his safety and the other patients' safety, and when the security officer arrived, the receptionist left the reception area.
The security officer attempted to calm Szabo and to persuade Szabo to go outside. In response Szabo yelled " [a]t the top of his lungs" : " [F]uck you, you queer ass, faggot ass, motherfucker, I'll kick your ass." A number of patients left the area. The security officer asked Szabo to calm down two or three additional times, and Szabo's brother attempted to " coax him out[side.]" When these efforts were unsuccessful, the security officer called the police.
While the security officer was contacting the police, Szabo started to walk outside. The police arrived about two minutes later and requested several times that Szabo sit on the curb while the security officer explained
the situation to them. Szabo did not comply with the officers' instructions and continued to yell obscenities. When Szabo pushed one of the officers, a struggle ensued. Szabo was ultimately sprayed with pepper spray and placed in handcuffs.
Following a bench trial, Szabo was convicted of one count of disorderly conduct, in violation of Title 38, Code of Federal Regulations, Section 1.218(a)(5), which prohibits causing " disturbances" at VA facilities. Pursuant to the regulation, " disturbances" are defined as:
Conduct on property which creates loud or unusual noise; which unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; which otherwise impedes or disrupts the performance of official duties by Government employees; which prevents one from obtaining medical or other services provided on the property in a timely manner; or the use of loud, abusive, or otherwise improper language; or unwarranted loitering, sleeping, or assembly. . .
38 C.F.R. § 1.218(a)(5). Szabo was sentenced to three years of supervised release, fifty hours of community service, and a ten dollar special assessment. He timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review the judgment of the district court under 28 U.S.C. § 1291. We review questions of law de novo. United States v. Thoms, 684 F.3d 893, 898 (9th Cir. 2012). " The existence of subject matter jurisdiction is a question of law that we review de novo." Hamad v. Gates, 732 F.3d 990, 995 (9th Cir. 2013).
Szabo argues that 38 C.F.R. § 1.218(a)(5) violates the First Amendment and the Fifth Amendment both facially and as applied to his conduct. We reject Szabo's as-applied challenges, and we lack jurisdiction to consider his facial challenge.
I. As-Applied Challenges
Szabo argues that 38 C.F.R. § 1.218(a)(5) is unconstitutional as applied to him, because (1) the conduct for which he was convicted constitutes protected First Amendment speech; and (2) 38 C.F.R. § 1.218(a)(5) is vague in violation of the Due Process Clause of the Fifth Amendment. We reject both arguments.
A. Protected Speech
1. Legal Standard
The right to speak is not unlimited, and the degree of scrutiny that we apply to
challenged speech " varies depending on the circumstances and the type of speech at issue." In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011). Speech that threatens a person with violence is not protected by the First Amendment. Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1072 (9th Cir. 2002) (" [W]hile advocating violence is protected, threatening a person with violence is not." ); see also Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). " Threats, in whatever forum, may be . . . proscribed without implicating the First Amendment." Planned Parenthood, 290 F.3d at 1076, n.11 (collecting cases).
Where protected speech is at issue, the degree to which the government may regulate such speech depends on the nature of the forum. Preminger v. Principi, 422 F.3d 815, 823 (9th Cir. 2005) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). VA medical facilities are " non-public" fora, Preminger v. Peake, 552 F.3d 757, 765 (9th Cir. 2008), and the government's power to regulate speech " is at its greatest when regulating speech in a non-public forum," Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 961 (9th Cir. 2011) (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). For this reason, restrictions on speech in VA medical facilities do not violate the First Amendment so long as they are (1) reasonable in light of the purpose served by the forum and (2) viewpoint neutral. United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Peake, 552 F.3d at 765.
In the context of restrictions on speech, reasonableness concerns " the purpose of the forum and all the surrounding circumstances." Peake, 552 F.3d at 765. While there must be more than " a rational basis" for a restriction on speech, the restriction " need not constitute the least restrictive alternative available." Id. at 766. We have recognized that patients at VA medical facilities " have significant health care needs," which justify the government's prohibiting conduct that diverts attention and resources from patient care. Id. " In a nonpublic forum, the First Amendment does not forbid . . . exclusion of speakers who would disrupt ...