Wednesday, December 11, 2019

Cuviello v. City of Vallejo (9th Cir. - Dec. 10, 2019)

Many lawsuits are unavoidable. A driver rear-ends another driver, or hits a pedestrian. A contract gets breached. A house accidentally burns down. There's more than likely going to be a lawsuit in such circumstances, and apart from trying to resolve the thing beforehand (or settle it expeditiously), there's not much one can do.

And then there are cases like this one.

I totally understand why the City of Vallejo didn't want people to use bullhorns all the time.  It's no fun to have 'em blasting outside your residence, or (as the panel notes) cranking out some jams at a hospital at 2:00 a.m.  People often want quiet, and bullhorns are the opposite of that.

Plus, it's the City of Vallejo.  That's where Six Flags is located.  An amusement park that contains some animal attractions, and hence occasionally attracts protesters.  Including but not limited to protesters who's like to use bullhorns.  I suspect that Six Flags has more than a little bit of influence with the City Council in the small municipality in which it is located and in which it's one of (if not) the largest employers.

So, again, I get why the city wants to regulate bullhorns.

But precisely because these things are used in protests -- and are used as part of (and hence protected by) free speech -- you've got to be careful in such regulation.  Lest you violate the First Amendment and get yourself dragged into a federal lawsuit in which you might well be liable to the other side for its attorney's fees.

And, if you're being careful, the mechanism that you most definitely do not deliberately employ is a permitting scheme.  We generally don't like requiring advance "permits"  for speech.  Because there's a long history of prior restraint jurisprudence that's very much protective of speech.  Do we allow 'em sometimes?  Sure.  But rarely.  And we're pretty darn skeptical of them.

It's not like the City of Vallejo didn't understand all of this.  It got sued by Mr. Cuviello, who alleged that restricting his use of a bullhorn was unconstitutional in a variety of ways.  Which prompted the city to -- smartly -- amend its municipal code in response, thereby mooting a number of the claims that the plaintiff had made in his lawsuit.  Smart.  There's generally no "catalyst" theory of attorney's fees in federal court.  So if you're a city, and you get sued, and there's a problem, go ahead and solve it.  Or at least make it extremely more difficult for the plaintiff to win by putting your best statute forward, unlike the one you initially passed.

When the City of Vallejo amended the statute, it had a ton of options.  But the one it elected retained the basic "permitting" scheme of its initial approach.

And that's the problem.

The city could have done a ton of things that I'm quite confident would have passed constitutional muster.  Most directly, it could have just regulated the core "noise" problem directly; for example, by saying that anyone could use a bullhorn, but wasn't allowed to amplify voices, say, more than 20 decibels (or whatever) over the existing ambient noise level.  That would have more than solved the problem, and would even have accomplished Six Flags' objective in not letting protesters at its park to excessively disturb its patrons.  All without creating the constitutional problems engendered by a statute that contained a permitting scheme and a prior restraint.

But, nope.  That's not what the city did.  Ergo the result of this lawsuit.  Which reverses the trial court's refusal to enter a preliminary injunction against the ordinance.

Sometimes municipalities are smart.  But this time, the City of Vallejo was smart to amend the statute under attack, but not nearly smart enough to do it correctly.