A marine mammal swims at Six Flags in Vallejo, California. Source: San Francisco Chronicle.

Last week, the federal Ninth Circuit Court of Appeals found that Vallejo, California’s requirement that a person obtain a permit before using a sound amplification is likely unconstitutional.  The court’s decision reverses the district court’s order denying the plaintiff’s motion for preliminary injunction, and allows the case to proceed to additional stages of litigation.

Joseph Cuviello is an animal rights activist in Vallejo who wished to protest alleged animal mistreatment at Six Flags Discovery Park, an amusement park.  Cuviello has been active in protesting Six Flags since 2006.  In 2014, Cuviello decided to begin protesting on a public sidewalk outside of the park, using a bullhorn.  Vallejo, however, requires a permit for the use of sound amplification devices, and the city imposes restrictions on the use of such devices.  Cuviello filed suit against the city, challenging the permit requirement as an unconstitutional prior restraint, and the ordinance as impermissibly vague and content based.  Cuviello eventually abandoned the latter arguments, and the court’s decision focused entirely on the prior restraint question.

Applying the California state constitutional standard for analyzing free speech matters, the court evaluated whether the permit system placed a reasonable time, place, and manner restriction on speech.  The court determined that the city’s interest in preventing distractions attendant to sound amplification devices was significant, but concluded that the permit requirement was not narrow tailored to that interest.  Specifically, the court noted that the permit requirement was not necessary to limit disturbances.  In the court’s view, a permit requirement applied to an individual in the same manner as it is applied to a large group, and which required an individual to obtain a permit regardless of the location of the protest, does not directly advance the city’s regulatory interest.  The court also observed that obvious alternatives existed to achieve the city’s desired outcome, such as regulating high volumes, locations, and hours when sound amplification could be employed.

In analyzing whether Cuviello would experience irreparable harm absent a preliminary injunction, the court acknowledged that prior restraints on speech cause harm in that they impose cost and delay on the dissemination of speech.  The court additionally observed that, although Cuviello waited to file his lawsuit, such a delay is not dispositive in determining whether he had experienced irreparable harm.

In dissent, Judge Feinerman determined that the plaintiff had failed to show a likelihood of irreparable harm, in that he had failed to seek judicial relief for several years.

Cuviello v. City of Vallejo, ___ F.3d ___, 2019 WL 6710220 (9th Cir. Dec. 10, 2019).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private…

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.