and Submitted February 8, 2019 San Francisco, California
from the United States District Court for the Eastern
District of California Kimberly J. Mueller, District Judge,
Presiding D.C. No. 2:16-cv-02584-KJM-KJN
A. Murray (argued) and Scott L. Nelson, Public Citizen
Litigation Group, Washington, D.C., for Plaintiff-Appellant.
Katelyn M. Knight (argued), Deputy City Attorney; Claudia
Quintana, City Attorney; Office of the City Attorney,
Vallejo, California; Adam W. Hofmann and Josephine K. Mason,
Hanson Bridgett LLP, San Francisco, California; for
Before: Richard A. Paez and Marsha S. Berzon, Circuit Judges,
and Gary Feinerman, [*] District Judge.
panel reversed the district court's denial of
plaintiff's motion for a preliminary injunction seeking
to enjoin the enforcement of the City of Vallejo's
requirement that individuals obtain permits before they use
sound-amplifying devices within the City.
sought to use a bullhorn so that he could amplify his voice
during weekend protests of alleged animal mistreatment at Six
Flags Discovery Park in Vallejo, where the noise of the park
hampers his ability to spread his message. Concerned that the
City would enforce the permit requirement against him,
plaintiff filed this action, contending that the permit
requirement set forth in Chapter 8.56 of the Vallejo
Municipal Code violates the First Amendment of the United
States Constitution and the Liberty of Speech Clause of the
panel first held that the case was not moot even though the
City of Vallejo had recently amended Chapter 8.56. The panel
held that the gravamen of plaintiff's complaint and the
irreparable harm that plaintiff alleged remained unaffected
by the amendments.
panel held that district court abused its discretion by
concluding that plaintiff was unlikely to succeed on the
merits of his claim that the permit requirement imposed an
unconstitutional prior restraint on public speech. The panel
held that under California law, because Section 8.56.030
establishes a permit requirement in advance of public speech
and bans an instrumentality of speech absent a permit, it
imposes a prior restraint. The panel concluded that although
the permit requirement furthered the City's significant
interests, it was not narrowly tailored because it covered
substantially more speech than necessary to achieve those
panel held that the district court abused its discretion by
failing to recognize that a police officer's threat of
criminal sanctions against plaintiff constituted irreparable
harm. The panel held that as long as Section 8.56.030 remains
in effect, the threat of enforcement against plaintiff will
persist, chilling his exercise of free speech rights. Under
the circumstances, the panel held that plaintiff's delay
in bringing his action did not significantly undercut his
showing of irreparable harm.
panel held that the district court abused its discretion in
finding that the balance of equities tipped in the City's
favor and that halting the enforcement of Chapter 8.56 would
not be in the public interest.
Judge Feinerman stated that plaintiff filed his suit one year
after he had last been threatened with enforcement of the
challenged ordinance, and he then waited five months after
filing suit to move for a preliminary injunction. In Judge
Feinerman's view, this lengthy and unjustified delay
showed that plaintiff did not suffer irreparable harm and
therefore disentitled him to preliminary injunctive relief.
City of Vallejo requires individuals to obtain permits before
they use sound-amplifying devices within the City. Joseph
Cuviello seeks to use a bullhorn so that he can amplify his
voice during weekend protests of alleged animal mistreatment
at Six Flags Discovery Park ("Six Flags") in
Vallejo, where the noise of the park hampers his ability to
spread his message. Concerned that the City would enforce the
permit requirement against him, Cuviello filed this action,
contending that the requirement violates the First Amendment
of the United States Constitution and the Liberty of Speech
Clause of the California Constitution. Cuviello moved for a
preliminary injunction to enjoin the enforcement of the
City's permit system, which the district court denied. We
reverse and remand.
protests abuse and mistreatment of animals by circuses and
other entertainment entities. For over a decade, Cuviello has
called attention to the treatment of animals kept in
captivity and used in attractions at Six Flags. Between 2006
and 2014, Cuviello regularly demonstrated at Six Flags,
displaying signs and video footage of animal mistreatment as
well as distributing information to patrons as they entered
the park. In May 2014, however, Park Management
Corporation-which owns Six Flags-filed a lawsuit to enjoin
demonstrators from protesting on its property and eventually
secured a permanent injunction to that effect. Since May 2014,
Cuviello and his fellow protestors have moved their
demonstrations to the public sidewalk along Fairground Drive,
which borders Six Flags.
both the park entrance and the parking lot are on private
property and set back from the nearest public sidewalk,
Cuviello and his fellow advocates could no longer physically
approach patrons to distribute information and discuss the
treatment of animals at Six Flags. To overcome the deafening
sound of rollercoasters and other park attractions from the
sidewalk, Cuviello began using a bullhorn to amplify his
voice and increase the chances that patrons could hear his
message from inside their cars.
8.56 of the Vallejo Municipal Code governs the use of
sound-amplifying or loudspeaking devices, including
bullhorns. Vallejo, Cal., Municipal Code, tit. 8, ch. 8.56.
When Cuviello first began using a bullhorn at protests in
2015, Section 8.56.101 of Chapter 8.56 provided:
It is unlawful for any person . . . to operate or cause to be
operated any sound amplifying or loudspeaking device . . .
upon any public street, parkway, thoroughfare, or on
privately or publicly owned property, without first obtaining
a permit from the chief of police to do so.
Cal., Municipal Code, § 8.56.101 (1997). To obtain a
permit to use a sound amplifying device, individuals were
required to complete and file an application with the chief
of police and pay a fee. The application required the
applicant's name, contact information, and basic
information about the event for which the permit would be
used. Id. § 8.56.020. The chief of police was
required to act on a sound amplification permit within ten
days of receiving the application. Id. §
obtaining a sound amplification permit, the applicant was
required to comply with certain regulatory conditions. The
sound amplifying device could be used only between 10 a.m.
and sunset; the device could not be used within 100 yards of
a hospital, clinic, animal care facility, school, church,
courthouse, or public library; there could be no
amplification of profane, lewd, indecent, or slanderous
speech; and the device could not be operated beyond a
fifteen-watt level. Id. In addition to these
restrictions on permit-holders, Chapter 7.84 of the Vallejo
Municipal Code prohibits as a public nuisance "any loud,
unnecessary, and unusual noise which disturbs the peace or
quiet of any neighborhood or which causes discomfort or
annoyance to any reasonable person of normal sensitiveness
residing in the area." Vallejo, Cal., Municipal Code,
§ 7.84.010 (1997).
first became aware of the permit requirement and related
restrictions in June 2015, when a fellow demonstrator relayed
that a police officer had told him bullhorns could not be
used without a permit. Cuviello approached the officer to
discuss his use of a bullhorn, and the officer showed him the
text of Chapter 8.56. Cuviello did not use his bullhorn for
the rest of that day.
future demonstrations, Cuviello tried to comply with Chapter
8.56's permit and other requirements. He did not apply
for a permit for a July 4th protest, to avoid putting Six
Flags and the City of Vallejo on notice of the demonstration.
He did apply for a permit for a demonstration that occurred a
few days later but never received a reply from the Vallejo
Police Department. Because he feared being arrested, Cuviello
did not use a bullhorn at either demonstration.
conducted his own legal research over the subsequent months
and concluded that Chapter 8.56-and in particular, Chapter
8.56's permit requirement-was an unconstitutional prior
restraint on speech. In September 2015, he e-mailed his
findings to Claudia Quintana, the City Attorney of Vallejo,
and informed her that he would no longer comply with Chapter
8.56's permit requirements. In response, City Attorney
Quintana justified Chapter 8.56's requirements as
permissible time, place, and manner restrictions.
Unpersuaded, Cuviello again began using his bullhorn at
demonstrations outside Six Flags without a permit.
Cuviello's bullhorn use went unchallenged. But at a
demonstration in October 2015, a City of Vallejo police
officer approached Cuviello and informed him that he could
not use his bullhorn without a permit. Cuviello asked if he
would be arrested for continuing to use the bullhorn, and the
officer told him that he would only confiscate the bullhorn
"as evidence of a crime." Following this warning,
Cuviello did not use his bullhorn at any further
demonstrations at Six Flags.
October 2016, Cuviello filed this action under 42 U.S.C.
§ 1983, alleging violations of the First and Fourteenth
Amendments to the U.S. Constitution and various California
constitutional and statutory free speech protections.
See U.S. Const. amend. I, XIV; Cal. Const. art 1,
§ 2a; Cal. Civ. Code § 52.1. Cuviello alleged that
Chapter 8.56's permit system was unconstitutional, both
on its face and as applied to his actions.
challenged the facial validity of Chapter 8.56 on three
grounds: first, the permit requirement constituted an
impermissible prior restraint on speech in a public forum;
second, Chapter 8.56 was unconstitutionally vague because it
did not set a deadline to apply for a permit or define
"amplifying devices and loudspeakers"; and third,
the condition that permit-holders refrain from amplifying
profane, lewd, indecent, or slanderous speech vested improper
discretion in police officers to regulate speech based on its
content. Cuviello also contended that the City of
Vallejo's threatened enforcement of the permit
requirement against him constituted a prior restraint.
March 2017, Cuviello moved for a preliminary injunction to
enjoin enforcement of Chapter 8.56's permit system. The
district court denied the preliminary injunction, concluding
that Cuviello had not established a likelihood of success on
the merits of any of his claims. The district court rejected
Cuviello's arguments that Chapter 8.56 was an improper
prior restraint, void for vagueness, or impermissibly
content-based, and instead held that Chapter 8.56's
requirements could be justified as permissible time, place,
and manner restrictions on speech in a public forum. The
district court further noted that even if Cuviello was likely
to succeed on the merits, he had not shown a risk of
irreparable harm, that the balance of hardships tipped in his
favor, or that the public interest favored a preliminary
injunction. Cuviello timely appealed.
both parties filed their appellate briefs, the City of
Vallejo amended Chapter 8.56. The City Council added
legislative findings justifying the regulation of sound
amplification devices, see Vallejo, Cal., Municipal
Code § 8.56.010 (2016), and moved the permit requirement
to Section 8.56.030. Section 8.56.030 now states that any
person who wishes to use a sound amplifying device "upon
any public street, parkway, thoroughfare, or on privately or
publicly owned property" must obtain a permit from the
City of Vallejo Chief of Police. See id.
§§ 8.56.030, 8.56.090. The new section also
eliminates the permit-fee requirement, defines "sound
amplifying devices," shortens the processing time for
permit approval to three days, includes ...