[00:00:00] Speaker 04:
Just one second here.

[00:00:11] Speaker 04:
All right, I think you say Cowart, is that correct?

[00:00:15] Speaker 01:
Cowart.

[00:00:15] Speaker 04:
Okay.

[00:00:17] Speaker 04:
Ms.

[00:00:17] Speaker 04:
Cowart, please proceed.

[00:00:20] Speaker 01:
Carola Cowart for the City of Seattle.

[00:00:23] Speaker 01:
Good morning and may it please the court.

[00:00:25] Speaker 01:
I'd like to reserve five minutes for rebuttal.

[00:00:29] Speaker 01:
Visual blight is a serious problem in cities and one that many local governments care about deeply.

[00:00:37] Speaker 01:
Courts have recognized that significant interest for decades.

[00:00:41] Speaker 01:
The city's anti-graffiti ordinance here is not an outlier.

[00:00:46] Speaker 01:
Many state and local governments prohibit defacement without regard to whether it causes property damage or whether the market is temporary or whether the government is the property owner.

[00:00:57] Speaker 01:
That's what the city's done here.

[00:00:59] Speaker 01:
The anti-graffiti ordinance prohibits marking on someone else's property without their permission.

[00:01:08] Speaker 01:
This is not a hard case because there's not an absolute First Amendment right to deface government property.

[00:01:14] Speaker 01:
The city asks this court to vacate the preliminary injunction.

[00:01:18] Speaker 01:
I'll plan to start with the First Amendment and then turn to the Fourteenth Amendment.

[00:01:25] Speaker 01:
The district court held that there was substantial overbreath and enjoined all applications of the city's anti-graffiti ordinance.

[00:01:34] Speaker 01:
But there are no serious questions on the merits as to the facial validity of the ordinance.

[00:01:41] Speaker 01:
To justify facial invalidation, a law's unconstitutional applications must be realistic, not fanciful.

[00:01:50] Speaker 01:
and their number must be substantially disproportionate to the statute's lawful sweep.

[00:01:55] Speaker 04:
Did Judge Peckman do any analysis?

[00:01:58] Speaker 04:
I know she stated the law that way, but did she do any analysis on applications of the ordinance beyond that which was before her, like private property or things like that?

[00:02:11] Speaker 01:
No, Your Honor, she talked about some hypotheticals, but she didn't consider the broad lawful sweep of the ordinance.

[00:02:19] Speaker 01:
For example, she enjoined the ordinance and prohibited the city from enforcing it as to the defacement of a private home or a private business as to spray paint or etching or permanent ink.

[00:02:33] Speaker 01:
all of those applications are enjoined even though no one is arguing that those are unconstitutional applications.

[00:02:40] Speaker 04:
Did the plaintiffs in this case argue that any of those were unconstitutional or they just weren't considered by the district court?

[00:02:48] Speaker 01:
No, none of those examples.

[00:02:51] Speaker 01:
The plaintiffs did not, the appellees did not argue about defacement of a private home.

[00:02:57] Speaker 01:
They proffered some examples, for example, painting on a canvas provided by a school or writing in sand on the beach.

[00:03:14] Speaker 01:
The district court talked about, so there are some, what I would say are not realistic hypotheticals in the record, or writing on stationary provided by your employer.

[00:03:27] Speaker 03:
At least some of them were not government property, stationary provided by employer.

[00:03:31] Speaker 03:
Some places there's a reference to writing on a restaurant credit card slip.

[00:03:38] Speaker 03:
And so there's some discussion, even though the focus

[00:03:43] Speaker 03:
as I understood as the case was brought, concerned city properties, public property.

[00:03:49] Speaker 03:
But there were references along the way.

[00:03:51] Speaker 03:
And then the end result was to enjoin enforcement, as best I can tell, in any context.

[00:04:00] Speaker 01:
That's right.

[00:04:00] Speaker 01:
The injunction is as to any and all enforcement or applications of the ordinance.

[00:04:06] Speaker 03:
So here we have overbreaths of some kind.

[00:04:10] Speaker 01:
I agree, Your Honor.

[00:04:11] Speaker 01:
There are examples that were put forward by the district court and appellees that go to private property, like writing a note of hello on a classmate's

[00:04:21] Speaker 01:
notebook the district court talked about writing in the sand on a beach.

[00:04:26] Speaker 01:
None of those examples are realistic.

[00:04:28] Speaker 01:
The appellees didn't argue and the district court didn't conclude that there was any realistic prospect of chilling as to those activities.

[00:04:37] Speaker 01:
The examples for purposes of facial invalidation must be realistic, not fanciful.

[00:04:43] Speaker 01:
It's not enough to simply conceive of a handful of possible unconstitutional applications because we're using language and language has imprecision.

[00:04:56] Speaker 01:
That's not what the court's talking about when it's looking at facial invalidation.

[00:05:01] Speaker 02:
No evidence was part of the case except for pleadings, right?

[00:05:07] Speaker 02:
I mean, they didn't have any testimony about anybody.

[00:05:10] Speaker 01:
The appellees submitted declarations, but other than that, it's the complaint and their declarations.

[00:05:21] Speaker 04:
The declarations said nothing about the credit card or the writing on the wedding book or anything, right?

[00:05:30] Speaker 01:
No, Your Honor.

[00:05:30] Speaker 01:
Appellees' declarations talk about their fear of chilling as to writing in chalk on sidewalks and walls.

[00:05:40] Speaker 01:
The district court determined there was a realistic danger of chilling only as to chalking on public walls and walkways.

[00:05:48] Speaker 01:
And that's because the district court simply didn't do the required analysis of considering all of the lawful applications of the ordinance.

[00:05:57] Speaker 01:
The application as to chalking on government property would survive intermediate scrutiny, but even if it didn't, that wouldn't matter because there is no substantial over-breath.

[00:06:10] Speaker 01:
There's not a lopsided ratio, which is what United States v. Hanson said is required, and it was legal error to enjoin the ordinance in all of its applications.

[00:06:20] Speaker 04:
You go back to it for a moment.

[00:06:22] Speaker 04:
I believe the city has challenged the standing of these folks.

[00:06:26] Speaker 04:
Are you still making that argument, or do you concede they actually did have standing in all of this?

[00:06:32] Speaker 01:
Your Honor, we are arguing redressability.

[00:06:36] Speaker 01:
There is a question as to redressability.

[00:06:39] Speaker 04:
And that's because of the state ordinance, or what?

[00:06:43] Speaker 01:
Yes.

[00:06:44] Speaker 01:
The conduct that they say they're chilled from, chalking on public walkways and public walls,

[00:06:50] Speaker 01:
that does remain a crime under state law.

[00:06:54] Speaker 04:
But nobody's ever been prosecuted for that by the city, right?

[00:06:58] Speaker 04:
In other words, the city has not applied the state law in that setting.

[00:07:03] Speaker 01:
That's not in the record.

[00:07:05] Speaker 01:
The city, I'm not aware if the city has ever, the city doesn't have authority to prosecute.

[00:07:12] Speaker 01:
Certainly, the city has authority to make arrests for any violations of state law.

[00:07:18] Speaker 01:
But I'm not aware of any evidence that we have enforced that in the past.

[00:07:23] Speaker 04:
I guess what I'm thinking about here is, are these folks claiming that because they've been previously arrested, they're worried it's going to happen again and that their freedom to write in chalk in front of the police department, someone's going to be inhibited.

[00:07:41] Speaker 04:
They've never been prosecuted with a state

[00:07:43] Speaker 04:
on the state, I guess it's called the Melissa's Mischief Act or whatever it is.

[00:07:47] Speaker 04:
And probably nobody else has either in this city of Seattle.

[00:07:52] Speaker 04:
So I'm having difficulty understanding why they don't have standing in this case.

[00:08:00] Speaker 01:
The narrow argument we're making is that because their conduct remains illegal, it remains a crime.

[00:08:08] Speaker 04:
They fear their rights are going to be inhibited.

[00:08:12] Speaker 04:
Isn't that enough in this case for standing purposes?

[00:08:16] Speaker 01:
The city would concede it's a close question as to redress ability if I could keep going.

[00:08:21] Speaker 03:
That's why you're preferring to talk about other subjects.

[00:08:24] Speaker 03:
We get that.

[00:08:25] Speaker 01:
Thank you, your honor.

[00:08:28] Speaker 01:
If we do assume that chalking on government property is enough for substantial over breath and it's not.

[00:08:34] Speaker 01:
But if we assume that for argument that restriction would withstand intermediate scrutiny.

[00:08:39] Speaker 01:
The city has a significant interest in prohibiting chalking on government property.

[00:08:44] Speaker 01:
Visual blight is a serious problem and courts have recognized that for decades.

[00:08:49] Speaker 01:
And the district court simply substituted its judgment for that of city council when it said chalking drawings or messages in chalk can hardly be said to constitute visual blight.

[00:09:00] Speaker 01:
The city also has a significant interest in choosing what to display, what messages to display or not display on city property.

[00:09:10] Speaker 01:
And this the prohibition is narrowly tailored.

[00:09:13] Speaker 03:
Let me pause.

[00:09:15] Speaker 03:
There are a couple of things that concern me here and one of them may have been touched upon what you just said.

[00:09:23] Speaker 03:
I'm not saying it's the focus of this case.

[00:09:25] Speaker 03:
I think it's has been identified as a concern and that is you say the city has the right

[00:09:31] Speaker 03:
to select the messages?

[00:09:34] Speaker 03:
Can this ordinance be enforced?

[00:09:36] Speaker 03:
And indeed, it's alleged that it's enforced in such a way as to disfavor the views of these plaintiffs and favor somebody who might put up some pro-police message.

[00:09:49] Speaker 03:
There is a suggestion of viewpoint discrimination.

[00:09:53] Speaker 01:
The appellees do have a claim of selective enforcement in that manner.

[00:10:00] Speaker 01:
was not at issue in this preliminary injunction, and it's still being litigated in district court.

[00:10:07] Speaker 01:
Here, the district court simply relied on their facial claims.

[00:10:11] Speaker 04:
I know this appeal is just on the facial claim.

[00:10:15] Speaker 04:
You say that the selective enforcement is being litigated at the district court now or some other place.

[00:10:22] Speaker 04:
Where is that being litigated?

[00:10:24] Speaker 01:
In this case.

[00:10:25] Speaker 04:
Oh, in this case?

[00:10:26] Speaker 01:
In this case.

[00:10:26] Speaker 04:
But not on this appeal?

[00:10:28] Speaker 04:
Not on this appeal.

[00:10:29] Speaker 01:
No, I'm sorry.

[00:10:30] Speaker 01:
This appeal presents only the facial claims, but their as-applied claims have not been resolved by the district court.

[00:10:37] Speaker 04:
So basically, it's arguendo.

[00:10:40] Speaker 04:
If we agreed with you, then it goes back to the district court.

[00:10:45] Speaker 04:
Even if we don't agree with you, it still goes back to the district court to handle the other portion of the case.

[00:10:49] Speaker 04:
Is that right?

[00:10:50] Speaker 01:
Yes, Your Honor.

[00:10:52] Speaker 01:
And there isn't any evidence in the record that the city has been, that the city has set up a permitting regime or enacted any type of a prior restraint.

[00:11:04] Speaker 01:
The record simply shows that the city treats chalking on walls differently from chalking on public walkways.

[00:11:15] Speaker 01:
And it's reasonable for the city to make that decision.

[00:11:18] Speaker 01:
Appellees here were arrested for chalking on a wall.

[00:11:21] Speaker 01:
There's no allegation the city has ever arrested anyone for chalking on a public walkway.

[00:11:27] Speaker 04:
So to get to my colleague's point, is there an allegation that there was, if you will, content discrimination?

[00:11:36] Speaker 04:
I know it's not an appeal, but is there such an allegation that just their message was selected, right?

[00:11:45] Speaker 01:
Yes, they do allege that.

[00:11:47] Speaker 03:
OK.

[00:11:49] Speaker 03:
We just don't have to deal with it.

[00:11:51] Speaker 03:
I mean, I remember reading it, I guess, in the complaint.

[00:11:53] Speaker 01:
Yes.

[00:11:55] Speaker 01:
That's correct.

[00:11:55] Speaker 01:
And the record presently doesn't support that allegation.

[00:11:59] Speaker 04:
We're dealing totally on a facial challenge, right?

[00:12:02] Speaker 04:
In both things.

[00:12:03] Speaker 01:
Yes, Your Honor.

[00:12:06] Speaker 01:
The ordinance is narrowly tailored because a ban on chalking on public property responds to the precise problem of visual blight, which is what the city was concerned with.

[00:12:19] Speaker 01:
Visual blight isn't simply a possible byproduct of chalking on government property.

[00:12:25] Speaker 01:
The chalking is a visual blight.

[00:12:27] Speaker 01:
And under the rationale and taxpayers for Vincent and Mahoney v. Doe, that makes the ordinance narrowly tailored.

[00:12:35] Speaker 01:
Appellees here have many alternate ample ways to communicate.

[00:12:40] Speaker 01:
They can distribute literature or buttons or pamphlets, use bumper stickers.

[00:12:45] Speaker 01:
They can march, speak, or hold vigils.

[00:12:47] Speaker 03:
Well, but I mean, if we just focus on the point you're making here and not some of the other arguments you could spawn, it's not the same to say you could hand out leaflets or wear a button because unless somebody's going to be there 24-7, they're not in a position to communicate messages 24-7 the way that something written on a wall could.

[00:13:14] Speaker 03:
You hand out leaflets, somebody's got to take the leaflet.

[00:13:17] Speaker 03:
I've walked by several people handing out leaflets.

[00:13:19] Speaker 03:
I don't necessarily or almost never take them.

[00:13:23] Speaker 03:
But if it's up there on the wall, that message is going to be communicated.

[00:13:27] Speaker 03:
So I'm not sure you can say the alternatives you propose scratch the itch that have been identified by the plaintiffs.

[00:13:35] Speaker 03:
They want to deliver a message in a certain way because it communicates differently than the alternatives you suggested.

[00:13:42] Speaker 01:
And those arguments were also made in Mahoney v. Doe and in taxpayers for Vincent.

[00:13:50] Speaker 01:
I don't believe that there is a difference between chalking or writing a message on a wall and handing out a leaflet.

[00:13:57] Speaker 01:
There is a difference.

[00:13:59] Speaker 01:
However, for purposes of intermediate scrutiny, the fact that there is some difference

[00:14:05] Speaker 01:
in the prohibited conduct or the prohibited expression and the ample alternative methods that doesn't then bump this case up into strict scrutiny.

[00:14:17] Speaker 01:
We aren't in a situation like City of Ladue where the Supreme Court said this ban on all signs on residential properties

[00:14:28] Speaker 01:
Although it wasn't a total ban, it had content-based exceptions.

[00:14:31] Speaker 01:
But this ban on this venerable form of communication, signs on residential properties, this is—we're not just going to apply intermediate scrutiny.

[00:14:40] Speaker 01:
This is something different.

[00:14:42] Speaker 01:
It entirely forecloses a medium of expression.

[00:14:46] Speaker 01:
This ordinance doesn't entirely foreclose a medium of expression.

[00:14:51] Speaker 01:
Chalking on someone's property without their permission is not a venerable means of expression the way like the Supreme Court addressed in City of Ladue.

[00:15:02] Speaker 02:
What relief now are you seeking from this Court?

[00:15:06] Speaker 01:
We request this Court to vacate the preliminary injunction.

[00:15:10] Speaker 04:
That's all?

[00:15:11] Speaker 01:
That's all.

[00:15:13] Speaker 04:
You're getting close to your five minutes.

[00:15:15] Speaker 04:
Do you want to save the balance of your time for rebuttal?

[00:15:17] Speaker 01:
Yes, Your Honor.

[00:15:18] Speaker 01:
Thank you.

[00:15:21] Speaker 04:
Very well.

[00:15:24] Speaker 04:
All right, Mr. Flack.

[00:15:37] Speaker 00:
Good morning, Your Honors.

[00:15:38] Speaker 00:
May it please the Court, my name is Nathaniel Flack and I represent Derek Tucson and the other plaintiffs, FLEs in this matter.

[00:15:44] Speaker 00:
The district court correctly determined that plaintiffs are likely to succeed on two fundamental constitutional problems with the ordinance here.

[00:15:53] Speaker 00:
The district court also determined that plaintiffs had standing to challenge the only ordinance under which they were actually arrested and jailed for harmless writing in the public forum.

[00:16:04] Speaker 00:
I want to start, if I may, by addressing the contention that this case is about blight or the city's concern with blight.

[00:16:14] Speaker 00:
Plaintiffs here were not arrested for any reason relating to blight.

[00:16:19] Speaker 00:
They were arrested for writing on a stack of concrete blocks that the city had erected in front of the

[00:16:27] Speaker 00:
police station as the district court found blocking the sidewalk, the traditional public forum in front of that police precinct and for writing in purely harmless, temporary and removable material the words peaceful protest.

[00:16:45] Speaker 00:
And the city concedes here effectively that it does not consider chalk writing to be a form of blight because it concedes that

[00:16:54] Speaker 00:
It has a policy of not arresting people for writing in chalk in the public forum, on the sidewalk, or in parks.

[00:17:03] Speaker 03:
Well, but the injunction we're looking at isn't limited to what you have carefully and somewhat narrowly described.

[00:17:12] Speaker 03:
And are we supposed to consider only the case that you're posing now or the injunction as it's prepared and issued by the district court, which is somewhat more sweeping?

[00:17:23] Speaker 00:
Yes, Your Honor.

[00:17:24] Speaker 00:
The district court did enjoin enforcement of subsection A2 of the Seattle municipal ordinance at issue here.

[00:17:33] Speaker 00:
And the reason it did that is because it found the ordinance facially overbroad and facially vague in violation of the 14th Amendment.

[00:17:42] Speaker 00:
And when a provision of law is facially invalid, the

[00:17:48] Speaker 00:
standard remedy, the usual remedy, is to enjoin the application of that provision as to anybody.

[00:17:53] Speaker 00:
And I think many of the overlap.

[00:17:55] Speaker 03:
Then we have to take on the standards for facial invalidation.

[00:17:59] Speaker 03:
And the district court didn't really seem to do that.

[00:18:04] Speaker 03:
The standard is most recently articulated in Hanson, or before that in Hill, suggests in so many words that, let's just say,

[00:18:19] Speaker 03:
Hanson, the applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute's lawful sweep.

[00:18:31] Speaker 03:
And I didn't see anything of the district court that faced up to that.

[00:18:33] Speaker 03:
Indeed, the district court's order, I think it was the one that may have talked about the writing in the beach and the writing in a guest book and so forth.

[00:18:44] Speaker 03:
And I don't think anybody's really concerned when I go to the beach, which

[00:18:49] Speaker 03:
I'm happy to say I live in Hawaii, so it's not as tough as it might be in Seattle.

[00:18:55] Speaker 03:
Nobody's under threat of arrest for riding on the beach.

[00:18:58] Speaker 03:
So how can the district court's injunction on facial grounds be sustained in the face of the Supreme Court's statements with regard to what you have to show to issue injunctions on facial grounds?

[00:19:15] Speaker 00:
A couple of responses to that, Your Honor.

[00:19:17] Speaker 00:
First, with respect to the example of writing in sand on the beach, I think Mr. Toussaint and the plaintiffs here would disagree that they don't have to be concerned about arrest.

[00:19:29] Speaker 00:
I think there's no dispute here that the plain language of the ordinance makes it unlawful to mark or inscribe writing in sand.

[00:19:36] Speaker 03:
But have they been arrested for writing in sand?

[00:19:40] Speaker 00:
We're not aware of that at this time, Your Honor.

[00:19:45] Speaker 03:
strikes me as leaning toward the fanciful side.

[00:19:52] Speaker 03:
I mean, the Supreme Court says this has to be realistic.

[00:19:54] Speaker 03:
And in immigration cases, we frequently have to distinguish between subjective fear and objectively reasonable fear.

[00:20:02] Speaker 03:
I get it.

[00:20:03] Speaker 03:
Your client may have a reason to say, gee, if I do that, I'm going to get into trouble.

[00:20:08] Speaker 03:
Standing back a little bit, that doesn't seem like a real threat.

[00:20:13] Speaker 04:
It seems like you're really arguing that you're as applied case, which is not before us here.

[00:20:18] Speaker 04:
And as my colleague points out, under Hanson, what the district judge did here, a judge we all respect, you know, she didn't do the analysis.

[00:20:29] Speaker 04:
She didn't follow Hanson.

[00:20:31] Speaker 04:
How do we get around the problem?

[00:20:33] Speaker 04:
Again, putting aside the as-applied, we know what your clients are worried about, that's an as-applied issue.

[00:20:39] Speaker 04:
But you basically have to show that this ordinance doesn't apply in any way, realistically.

[00:20:45] Speaker 04:
And I'm struggling with where the judge dealt with that.

[00:20:51] Speaker 00:
Respectfully, Your Honor, I don't think the standard is that the ordinance cannot

[00:20:55] Speaker 00:
apply in any circumstance lawfully.

[00:20:58] Speaker 00:
The question is substantial over breadth and I think the language in taxpayers for Vincent, the case that appellants rely on is when you have a content neutral

[00:21:09] Speaker 00:
a provision of law that makes a crime, as this ordinance does, of speech in the traditional public forum, the question is whether it is broader than is essential to further the government's asserted interest.

[00:21:21] Speaker 00:
And here that's an aesthetic interest, which we know from cases like Metro Media and from taxpayers for Vincent itself is a limited interest and an interest that has to be taken with a grain of salt because of the overlap with speech concerns.

[00:21:36] Speaker 00:
But the test that the district court

[00:21:38] Speaker 03:
Well, can you go up to this building?

[00:21:41] Speaker 03:
This is a public building.

[00:21:42] Speaker 03:
Can you start writing on the walls of this building whatever message you want to put on it?

[00:21:47] Speaker 00:
No, Your Honor.

[00:21:48] Speaker 00:
And we have never contended that, and I think it's clear that that's not the case.

[00:21:53] Speaker 00:
And in fact, there are many other means at the cities of Seattle's disposal to prevent that from occurring and to apply the law where that does occur.

[00:22:05] Speaker 00:
There's no suggestion that

[00:22:08] Speaker 00:
that the walls of buildings themselves are part of the traditional public forum for purposes of writing.

[00:22:13] Speaker 00:
And I think it's very important, and I want to direct the court's attention, if I may, to the photograph of the so-called wall at issue here.

[00:22:20] Speaker 04:
But with respect, counsel, it seems to me you're kind of making the case for your opponents.

[00:22:25] Speaker 04:
I mean, you point out legitimately that you can't just go write all of your government buildings.

[00:22:32] Speaker 04:
And yet the ordinance, on a facial basis,

[00:22:37] Speaker 04:
covers lots that covers private property, all kinds of things, but the district court has blown that out.

[00:22:44] Speaker 04:
I don't know what the answer is as to an applied basis or as to your clients, but blown that out on vagueness and over-breath bases.

[00:22:52] Speaker 04:
And yet, isn't it true that as to both aspects, one can think of many, many, many, many perfectly legitimate examples that the Supreme Court has verified are legitimate,

[00:23:06] Speaker 04:
on a, basically, on a facial basis.

[00:23:11] Speaker 04:
I'm struggling with how you succeed on the facial basis, which is all that's before us.

[00:23:17] Speaker 04:
Help me out, okay?

[00:23:18] Speaker 00:
Thank you, Your Honor.

[00:23:19] Speaker 00:
And I think there was a question during Appellant's argument about the elimination of an entire means or avenue of speech.

[00:23:30] Speaker 00:
And that is an argument that we made below and that we make here.

[00:23:33] Speaker 00:
And I think there are cases of this court and of the Supreme Court that

[00:23:36] Speaker 00:
that show that when a law makes a crime of an entire means or medium of speech, that that is itself a basis for a finding of over-breadth.

[00:23:49] Speaker 03:
Let's take this building.

[00:23:52] Speaker 03:
You agree that your client or anybody is not allowed to ride on the walls of this building.

[00:23:59] Speaker 03:
Why doesn't that pose the same problem you're just identifying?

[00:24:02] Speaker 03:
There's not an alternative.

[00:24:03] Speaker 03:
I mean, you're not allowed to post a billboard next to the building.

[00:24:07] Speaker 03:
So by saying you can't write on this building, or how does that not raise a problem with the argument you're trying to make for the district court's pretty sweeping, striking down of enforcement?

[00:24:25] Speaker 00:
The distinction there, Your Honor, is the medium or the avenue of speech, and we cite here the Klein case and the Project Veritas case from last year in this court, the medium or the avenue of speech versus the location of the speech or the question of whether or not the speech is in the public forum.

[00:24:43] Speaker 00:
So in Your Honor's example, to regulate the actual place of the speech as far as in the public forum on a sidewalk versus an actual building is not

[00:24:54] Speaker 04:
uh... going to the issue of of the medium that was it was in the council isn't that though the whole as applied i mean i'll and applied as an applied basis of course those issues are very important but we're talking about the district judge in this case struck down the entire ordinance on its face which in effect says there's no way that this could ever be enforced in any setting that's not really true is it

[00:25:27] Speaker 00:
I want to just make sure it's clear that the district court enjoined A2.

[00:25:31] Speaker 00:
So it enjoined the subsection.

[00:25:33] Speaker 00:
When I say this, I'm talking about what she enjoined here.

[00:25:35] Speaker 00:
Yes.

[00:25:36] Speaker 00:
So it enjoined only the provision that relates to writing that causes no damage.

[00:25:41] Speaker 00:
And so I think there was some discussion.

[00:25:43] Speaker 03:
Well, I don't think it says causes no damage.

[00:25:46] Speaker 03:
I mean, the fact that if you go up and write like crazy, you may be subject to

[00:25:53] Speaker 03:
but A1, but that doesn't mean you're not subject to A2.

[00:25:59] Speaker 03:
I'm not sure, and indeed, that one of the other problems, and maybe I should take this up with the city, the exceptions, the affirmative defense defined to A1 isn't the same for A2.

[00:26:14] Speaker 03:
I guess I'm saying, in simply a different way, the same thing that Judge Smith is raising, which is that

[00:26:22] Speaker 03:
when you have a facial invalidation or inability to enforce, the risk is you throw them maybe along with the bathwater.

[00:26:30] Speaker 03:
And if there is a core that can properly be enforced, why isn't the instruction of the Supreme Court in cases most recently like Hanson telling us, no, you don't do it that way.

[00:26:41] Speaker 03:
You can't facially invalidate if, in fact, there is a legitimate core that should properly be enforceable.

[00:26:52] Speaker 00:
Your Honor, I think to clarify my prior answer, I think to the extent that any writing does cause damage, that writing is still a crime in the city of Seattle under A-1, and that is not infected.

[00:27:04] Speaker 03:
The problem there is damage.

[00:27:06] Speaker 03:
I mean, from my perspective, it can be chalk, and you're writing on the wall of this building, or of City Hall, or of the Capitol Building, or of the White House.

[00:27:17] Speaker 03:
There are certain structures that we try to take

[00:27:20] Speaker 03:
off limits.

[00:27:22] Speaker 03:
And I think the government's entitled to do that.

[00:27:25] Speaker 03:
And so to say that Seattle can't enforce against the Nakamura Courthouse in Seattle because the statute is facially unenforceable, invalid,

[00:27:42] Speaker 03:
That seems to me to be overreach of a different kind.

[00:27:48] Speaker 03:
Why isn't that going to run afoul of Hanson?

[00:27:55] Speaker 00:
Because I think, Your Honor, first, the city does have other means of enforcing the notion that you can't write on a building.

[00:28:05] Speaker 00:
So there are trespass laws and ordinances they can enforce.

[00:28:08] Speaker 00:
There is the state malicious mischief law that they've talked about in their briefing that they can arrest under.

[00:28:14] Speaker 00:
There are a variety of other provisions in the municipal code and in the state law of Washington that they can use to address these concerns.

[00:28:24] Speaker 00:
What the record shows here is that the ordinance is

[00:28:28] Speaker 00:
is specifically used to punish people like the four plaintiffs here who write messages in a harmless way in the public forum.

[00:28:36] Speaker 04:
Again, counsel, you're able lawyer and you get this well, I understand.

[00:28:41] Speaker 04:
But you're making an as applied argument.

[00:28:44] Speaker 04:
We're talking about an ordinance has been, the portion of an ordinance has been voided in its entirety.

[00:28:51] Speaker 04:
And I'm having trouble with that.

[00:28:53] Speaker 04:
Let me switch to a slightly different subject.

[00:28:55] Speaker 04:
The district court's vagueness analysis focused a lot on whether the term damage was not defined.

[00:29:02] Speaker 04:
Well, there's no word damage in the ordinance in the first place.

[00:29:06] Speaker 04:
So how do we deal with that?

[00:29:09] Speaker 00:
Yes, Your Honor.

[00:29:12] Speaker 00:
I think the key to the district court's vagueness analysis is the discretion that the breadth of the ordinance, including after its amendment, the addition of this express permission limitation, the extreme level of discretion that that gives to law enforcement officers to decide when they're gonna write for, when they're gonna arrest for expressive activity that is, as the city concedes, generally not arrestable, and as far as we know, only arrest when they disagree with the message expressed,

[00:29:42] Speaker 00:
As to the particular portion of the opinion that your honor has pointed out, I'm not sure how to interpret that sentence of the opinion except to say that I think it goes to the difficulty that the public would have in understanding what they can and can't do under this ordinance.

[00:30:03] Speaker 00:
I think if a member of the public wants to open up the municipal code and understand is it a crime or not for me to go to

[00:30:12] Speaker 00:
the park or the sidewalk in front of my house and write about a candidate that I support or an issue that I care about, they're going to look at this ordinance and there's not going to be any guidance for them about whether or not they really can do that or not.

[00:30:25] Speaker 00:
The only thing that they're going to have now is the idea that it's okay if there's expressed permission, but otherwise any writing and chalk on the sidewalk is a crime.

[00:30:33] Speaker 00:
But the problem with that, and this is I think the

[00:30:36] Speaker 00:
The focus of the district court's analysis of the vagueness issue is that that just delegates complete control over what is illegal and what is not to the officer on the beat who happens to be walking by.

[00:30:47] Speaker 00:
Well, with respect, I mean, we have separation of powers.

[00:30:51] Speaker 04:
The police are part of the executive branch, right?

[00:30:53] Speaker 04:
Yes, sir.

[00:30:54] Speaker 04:
And I don't think you've made separation of powers arguments here, have you?

[00:30:59] Speaker 04:
You're saying that the police have no prosecutorial discretion?

[00:31:04] Speaker 04:
You've had enough trouble in Seattle with police as it is.

[00:31:07] Speaker 04:
You're going to basically say, hey, you have no discretion to do anything, to charge anybody, because somebody might misinterpret it.

[00:31:14] Speaker 04:
Come on.

[00:31:15] Speaker 04:
Let's be serious here.

[00:31:17] Speaker 04:
Are you really saying that the discretion in this case is sufficient on its face that the whole ordinance gets thrown out?

[00:31:30] Speaker 00:
Yes, your honor, because of course police have discretion about when to arrest and the executive has discretion about when to prosecute and we don't differ on those principles.

[00:31:40] Speaker 00:
The reason why the discretion is excessive here is because the language of the ordinance makes, by its plain meaning, makes a gross misdemeanor punishable by up to a year in jail of conduct and expressive activity that

[00:31:56] Speaker 00:
people, normal people, engage in all the time and understand to be innocent and don't consider criminal, and the city does not, in fact, consider criminal, yet they have a law on their books.

[00:32:06] Speaker 03:
That's an important distinction there.

[00:32:08] Speaker 03:
The district court, although it didn't incorporate the laundry list, did make an explicit reference in its order with regard to the vagueness argument, which is what we're on now.

[00:32:19] Speaker 03:
Apparently, the city asked the court to strike plaintiffs' list of potentially innocuous conduct listed in the reply.

[00:32:27] Speaker 03:
The court finds these examples respond appropriately on the vagueness issue.

[00:32:31] Speaker 03:
When I look at that laundry list, we have drawing in the sand.

[00:32:35] Speaker 03:
We have writing on a friend's scrap of paper.

[00:32:38] Speaker 03:
We have writing or printing on paper implied by one's employer.

[00:32:42] Speaker 03:
I mean, you're familiar with the list.

[00:32:45] Speaker 03:
As to which it seems to me the Supreme Court's admonition about be realistic strikes home.

[00:32:53] Speaker 03:
Is anybody really expecting the Seattle Police Department to go out and arrest somebody for writing on a restaurant credit card slip or writing on a piece of paper given to you by a friend?

[00:33:07] Speaker 03:
I think the answer is pretty clearly no.

[00:33:10] Speaker 03:
And yet what the district court decided

[00:33:14] Speaker 03:
Referencing this list suggests that, no, somebody somewhere may think that writing in a friend's scrap of paper violates this ordinance, that makes the ordinance vague.

[00:33:27] Speaker 03:
And that doesn't seem to me at all consistent with what the Supreme Court has told us about realistic examples.

[00:33:33] Speaker 00:
Your Honor, that all may be true.

[00:33:35] Speaker 00:
It's also the case that

[00:33:37] Speaker 00:
our clients, Mr. Toussaint and the other plaintiffs here, were shocked to be arrested for writing in chalk.

[00:33:45] Speaker 00:
And I think many people would be shocked and are shocked to hear that you could be arrested and booked into jail on a gross misdemeanor charge for the use of ordinary children's sidewalk chalk.

[00:33:57] Speaker 03:
I don't think it was the chalk that was the problem.

[00:34:00] Speaker 03:
The problem is putting up substantive messages on a place where

[00:34:05] Speaker 03:
It's like the subway car, the metro cars in, well, I started with New York, but I guess it's spread.

[00:34:16] Speaker 03:
Somebody wants to put up a message.

[00:34:18] Speaker 03:
Other people may not want to see something scrawled on the side of the car, or in this case, on the side of a building barrier.

[00:34:26] Speaker 03:
And so why can't the city say?

[00:34:28] Speaker 03:
That's where the line's drawn.

[00:34:30] Speaker 00:
Yes, and I would direct the court's attention to the Klein case in this regard.

[00:34:34] Speaker 00:
I think many of the issues that have come up in this challenge and this appeal are addressed in the Klein case.

[00:34:41] Speaker 00:
We cite it in our brief, including at page 36.

[00:34:44] Speaker 02:
Is there really a dispute here?

[00:34:47] Speaker 02:
The city wants the relief to go back down and set aside the court's order.

[00:34:55] Speaker 02:
So that's what you want too, right?

[00:34:58] Speaker 00:
No, Your Honor, we're asking this court to affirm the district court's preliminary injunction through the dependency of this action.

[00:35:07] Speaker 00:
In the Klein case, the court addressed a ordinance that prohibited the plaintiffs from placing leaflets on private automobiles, cars that were parked on the street in the public forum.

[00:35:19] Speaker 00:
And the district court denied the preliminary injunction, and this court reversed

[00:35:23] Speaker 00:
It rejected aesthetic concerns that the city had raised based on leaflets being unsightly, supposedly.

[00:35:30] Speaker 00:
It rejected the notion that the property rights of the car owners overrode the First Amendment rights of the leafletters.

[00:35:36] Speaker 00:
That was an as-applied case, was it not?

[00:35:39] Speaker 04:
It's not a facial challenge.

[00:35:41] Speaker 00:
I don't believe so, Your Honor.

[00:35:42] Speaker 00:
I believe that the Ninth Circuit in that case directed the district court to enter injunction against the enforcement of the ordinance.

[00:35:48] Speaker 00:
I realize I'm out of time.

[00:35:50] Speaker 00:
You are.

[00:35:51] Speaker 00:
Thank you.

[00:35:51] Speaker 04:
Let me ask my colleagues whether either have additional questions.

[00:35:54] Speaker 04:
Thank you very much for your argument, Council.

[00:35:56] Speaker 04:
Thank you, Your Honor.

[00:35:57] Speaker 04:
So the city has a time for rebuttal.

[00:36:03] Speaker 01:
Thank you, Your Honor.

[00:36:05] Speaker 01:
I'll briefly address the case that appellees were just discussing, Klein v. City of San Clemente.

[00:36:12] Speaker 01:
That involved an anti-littering ordinance, which prohibited the leafletting of unoccupied vehicles parked on city streets.

[00:36:21] Speaker 01:
And that failed intermediate scrutiny

[00:36:24] Speaker 01:
because the city said its interest was anti-littering.

[00:36:28] Speaker 01:
But instead of banning littering, it banned placing leaflets on windshields.

[00:36:35] Speaker 01:
However, there was no evidence in that case about the connection between the problem of litter and leafletting on cars.

[00:36:45] Speaker 01:
So that case simply doesn't apply here.

[00:36:47] Speaker 01:
That was a narrow tailing issue.

[00:36:49] Speaker 04:
Was that a facial challenge or as applied?

[00:36:52] Speaker 01:
I believe it was a facial challenge.

[00:36:56] Speaker 03:
A facial challenge to a narrower ordinance.

[00:36:59] Speaker 03:
So I think it was a facial challenge.

[00:37:01] Speaker 01:
Yes.

[00:37:02] Speaker 01:
Yes, Your Honor.

[00:37:04] Speaker 03:
But there was a missed- But it was a narrower audience.

[00:37:06] Speaker 03:
So the problem that I've said the Supreme Court has defined

[00:37:16] Speaker 03:
at least wasn't as clearly presented there.

[00:37:18] Speaker 03:
It wasn't fanciful examples.

[00:37:19] Speaker 03:
The ordinance was specifically aimed at putting leaflets on cars.

[00:37:25] Speaker 01:
Precisely.

[00:37:25] Speaker 01:
That was the only application that there was of that ordinance.

[00:37:29] Speaker 01:
And that was the one that the court held failed intermediate scrutiny.

[00:37:34] Speaker 01:
Here we have many, many constitutional applications, a very broad lawful sweep, and only concerns by the district court as to chalking.

[00:37:45] Speaker 01:
Judge Smith asked a question about, of appellees, about why the word damage appears in the district court's order.

[00:37:53] Speaker 01:
I believe I can answer that.

[00:37:54] Speaker 01:
The district court initially inadvertently enjoined two sections of the city's code, the anti-graffiti ordinance and then also

[00:38:06] Speaker 01:
A1, which does have the word damage in it, then when the court corrected that error, it didn't go back and change the underlying substance in its opinion.

[00:38:17] Speaker 03:
I understand that error because I got caught in the same thing between A1 and A2, but it does raise a question that the defenses, well, there's now only an affirmative defense as the ordinance was revised to

[00:38:34] Speaker 03:
A1, the damage one, the property damage one.

[00:38:39] Speaker 03:
A2 puzzles me as to the affirmative defense was taken out and put into the main text, if you are understanding what I'm trying to refer to inelegantly.

[00:38:57] Speaker 03:
And I was wondering, why is express permission

[00:39:02] Speaker 03:
required, I can imagine circumstances where your neighbor has said, fine, this wall is open territory.

[00:39:14] Speaker 03:
And there are areas of Honolulu, for sure I know, areas where there's kind of a standing invitation, come right on our walls.

[00:39:24] Speaker 03:
It was even an exhibition at a museum in Honolulu a couple of years ago.

[00:39:30] Speaker 03:
Why does the city ordinance require express permission rather than a reasonable belief that there's permission?

[00:39:43] Speaker 03:
Or more like the exception in one, reasonable believe he had a lawful right to damage.

[00:39:50] Speaker 03:
Why can't there be a reasonable leave to permission to put your chalk or paint or whatever on the given property?

[00:40:00] Speaker 01:
There's nothing in the record about why in 1996 that language was used.

[00:40:05] Speaker 01:
However, one possible reason is that these type of

[00:40:13] Speaker 01:
If there were a wall in the city with a lot of graffiti on it, then could someone say, well, because the property owner's not cleaning up that graffiti, that must be implied permission.

[00:40:23] Speaker 01:
Therefore, I can go add my graffiti to it.

[00:40:26] Speaker 01:
So these kind of graffiti walls.

[00:40:27] Speaker 03:
And in theory, if the owner said later, oh, yeah, that's fine.

[00:40:30] Speaker 03:
I hadn't given express permission, you would, at least by the text of the ordinance, have a violation.

[00:40:37] Speaker 01:
The express, I don't believe here, is the same as in the contract law setting.

[00:40:44] Speaker 01:
Black's Law Dictionary defines express as clear and unmistakable permission granted by words or actions.

[00:40:52] Speaker 01:
So it doesn't have to be written in this context.

[00:40:56] Speaker 01:
It just means clear and unmistakable permission.

[00:40:59] Speaker 01:
Whereas, Black's law dictionary defines implied permission as you infer the permission from words or actions.

[00:41:06] Speaker 03:
I confess, I don't, I'm not entirely sure.

[00:41:08] Speaker 03:
I got into this when I was thinking about overbreath and narrowly tailored and so forth, and I couldn't figure out why it was set up that way, but I don't know what that leads to.

[00:41:18] Speaker 03:
I just was struggling with it.

[00:41:20] Speaker 01:
For purposes of vagueness, I believe expressed permission is probably clearer.

[00:41:24] Speaker 01:
than if the ordinance also covered implied permission.

[00:41:27] Speaker 03:
It's clear, but the problem is that the potential overreach seems to be substantial.

[00:41:32] Speaker 03:
Because if you've got an owner that really just doesn't pay any attention, there can be a reasonable belief, gee, this must be OK, even though the owner hasn't given express permission.

[00:41:43] Speaker 03:
And the lack of express permission would constitute a violation, whereas a reasonable belief might not.

[00:41:51] Speaker 01:
I don't believe there's evidence on the record about chilling or past enforcement in that arena.

[00:41:59] Speaker 01:
The ordinance is clear.

[00:42:00] Speaker 01:
If you want to write on someone else's property, you simply have to get permission.

[00:42:05] Speaker 01:
There's nothing unclear or vague about that.

[00:42:08] Speaker 01:
If I could.

[00:42:09] Speaker 04:
Your time is up.

[00:42:10] Speaker 04:
Let me ask my colleague whether either has additional questions.

[00:42:12] Speaker 04:
We're sure you have lots more to say, but.

[00:42:14] Speaker 03:
We'll tell the city to pay you for an extra.

[00:42:17] Speaker 04:
That's right.

[00:42:17] Speaker 04:
That's right.

[00:42:18] Speaker 04:
You probably work for them though, right?

[00:42:19] Speaker 04:
So you're good.

[00:42:21] Speaker 04:
Thanks to both counsel for your argument, your briefs.

[00:42:24] Speaker 04:
Case just argued is submitted and the court stands adjourned for the day.