Lopez v. City of San Diego

1 ] — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 ROGER LOPEZ, Case No.: 24cv1577-LL-DDL 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 14 CITY OF SAN DIEGO, [ECF No. 12]; 15 Defendant. ORDER DENYING AS MOOT — 16 — PLAINTIFF’S MOTION FOR 17 PRELIMINARY INJUNCTION [ECF No. 11]; — 18 — 19 ORDER GRANTING UNOPPOSED EX PARTE MOTION FOR LEAVE — 20 — TO FILE A NOTICE OF 21 SUPPLEMENTAL AUTHORITY [ECF No. 21] — 22 — — 23 — 24 Pending before the Court is Plaintiff Roger Lopez’s Motion for Preliminary 25 Injunction. ECF No. 11. Plaintiff seeks to enjoin Defendant, the City of San Diego, from 26 enforcing Ordinance No. O-21822 and the corresponding San Diego Municipal Code 27 sections. Id.; see also Exhibit A to the Complaint at ECF No. 1. Also pending before the 28 Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint under Federal Rule of Civil 1 Procedure 12(b)(6). ECF No. 12. Both Motions have been fully briefed and are suitable for 2 submission without oral argument. For the reasons set forth below, Defendant’s Motion to 3 Dismiss is GRANTED and Plaintiff’s Motion for a Preliminary Injunction is DENIED 4 AS MOOT. 5 I. BACKGROUND 6 A. City of San Diego’s Ordinance Number O-21822 7 This case centers on the City of San Diego’s Ordinance Number O-218221 (“the 8 Ordinance”) which regulates conduct within 100 feet of health care facilities, places of 9 worship, and school grounds (hereinafter “Covered Facilities”). ECF No. 1. (“Compl.”). 10 The Ordinance amends two sections of the San Diego Municipal Code (“SDMC”), sections 11 52.1001, 52.1002, and adds four new sections 52.1003, 52.1004, 52.1005, 52.1006. See 12 Exhibit A to Compl.; see also Compl. ¶ 24. 13 The Ordinance, which was enacted by the City of San Diego on June 11, 2024, 14 provides that the “Council desires to prevent the obstruction, harassment, and intimidation 15 of people entering and exiting Covered Facilities while preserving the fundamental 16 constitutional rights of people to peacefully assemble and express opinions on matters of 17 public concern.” Exhibit A to the Compl. at 30. The Ordinance prohibits an individual from 18 obstructing an entrance, exit, or access to a parking lot at a Covered Facility and also 19 prohibits harassment and intimidation as follows: 20 (b) Harassment and Intimidation Prohibited. Within a radius of 100 feet of a health care facility, place of worship, or school grounds, no person shall: — 21 — (1) approach within eight feet of a person in the public right-of-way or 22 sidewalk area who is seeking to enter or exit a health care facility, place of worship, or school grounds to harass or intimidate that person; or — 23 — (2) harass or intimidate a person in the public right-of-way or sidewalk 24 area who is seeking to enter or exit a health care facility place of worship, or school grounds. — 25 — — 26 — 27 1 Plaintiff refers to the Ordinance as O-2024-114 in his briefing (See, e.g., ECF No. 16 at 10; see also ECF No. 11-1 at 10). For ease of reference, the Court will refer to it as Ordinance Number O-21822, as — 28 — 1 SDMC 52.1003. 2 The Ordinance requires consent for certain activities within a radius of 100 feet of 3 Covered Facilities as follows: 4 (c) Consent Required. Within a radius of 100 feet of a health care facility, place of worship, or school grounds, unless the person or motor vehicle occupant — 5 — consents, no person shall: 6 (1) knowingly and willfully approach within eight feet of a person in the public right-of-way or sidewalk areas who is seeking to enter or exit a — 7 — health care facility, place of worship, or school grounds, to: 8 (i) pass a leaflet or handbill to that person; (ii) display a sign to that person; — 9 — (iii) engage in oral protest, education, or counseling. 10 (2) knowingly and willfully approach within eight feet of an occupant of a motor vehicle seeking to enter or exit a parking lot, to: — 11 — (i) pass a leaflet or handbill to the motor vehicle occupant; 12 (ii) display a sign to the motor vehicle occupant; or (iii) engage in oral protest, education, or counseling. — 13 — 14 Id. 15 The Ordinance also sets forth the following “Noise Limitations”: 16 (a) Within a radius of 100 feet of a health care facility, place of worship, or school grounds, no person shall: — 17 — (1) make, or cause to be made, any disturbing, excessive, or offensive noise 18 which causes discomfort or annoyance to any reasonably person of normal sensitivities; or — 19 — (2) make, or cause to be made, any noise which unreasonably interferes 20 with the workings of a health care facility, place of worship, or school; or — 21 — (3) use loud speaking amplifiers or similar devices in a manner that emits 22 a sound level exceeding 55 decibels any point ten feet or more from the noise source. — 23 — 24 SDMC 52.1004. 25 The Ordinance is modeled on a Colorado law upheld as constitutional in Hill v. 26 Colorado, 530 U.S. 703 (2000). One difference between the two laws is the instant 27 Ordinance’s inclusion of places of worship and school grounds, while the ordinance in Hill — 28 — 1 applied only to health care facilities. Id. at 707 . Additionally, the instant Ordinance 2 expressly prohibits any acts to “harass or intimidate,” and has a stricter noise ordinance. 3 On September 5, 2024, Plaintiff Roger Lopez sued the City of San Diego, claiming 4 that the Ordinance violates his free speech rights under the First and Fourteenth 5 Amendment of the United States Constitution, on its face. Compl. Plaintiff is a “sidewalk 6 counselor” who alleges his “only chance to directly help abortion-minded women is on the 7 public sidewalk.” Id. ¶ 16. As part of his sidewalk counseling, he stands outside of the 8 downtown Planned Parenthood clinic about 20-25 hours each month “to offer passersby a 9 smile, a shoulder to cry on, and sometimes pamphlets that discuss free pregnancy and 10 childcare resources and social services available to them.” Id. He “listens with empathy 11 and as best he can to the story each passerby tells, even when abortion activists block his 12 way and scream obscenities in his face.” Id. He alleges that “more than 100 women have 13 chosen life after talking with him over the last 15 years since [he] began counseling in front 14 of abortion clinics.” Id. Plaintiff alleges that “counselors including [himself] have begun 15 to self-censor lest they risk heavy damages, penalties, fees, and prison time for the offense 16 of peaceably speaking in a public place.” Id. at 47. 17 The relief sought in the Complaint is as follows: 18 (A) That the Court declare that [the Ordinance] facially violates the First and Fourteenth Amendment to the United States Constitution; — 19 — (B) That the Court enter preliminary and permanent injunctions against the 20 ordinance; (C) That the Court award Plaintiff Lopez nominal damages; — 21 — (D) That the Court award Plaintiff Lopez his costs of litigation, including 22 reasonable attorneys’ fees and costs; and (E) That the Court grant such further relief it deems just and proper. — 23 — 24 Compl. at 24, Prayer for Relief. 25 II. BACKGROUND 26 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 27 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 28 Conservation Force v. Salazar, 646 F.3d 1240 , 1241–42 (9th Cir. 2011) (quoting 1 v. Block, 250 F.3d 729 , 732 (9th Cir. 2001)). “A district court's dismissal for failure to state 2 a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of a 3 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 4 theory.’ ” Id. at 1242 (internal quotation omitted). 5 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and 6 plain statement of the claim showing that the pleader is entitled to relief.’ ” Ashcroft v. 7 Iqbal, 556 U.S. 662 , 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading 8 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 9 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” (quoting Bell 10 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a] pleading that offers 11 ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will 12 not do.’” Id. (quoting Twombly, 550 U.S. at 555 ). 13 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 14 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 15 Twombly, 550 U.S. at 570 ). “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable 17 for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556 ). “[W]here the well18 pleaded facts do not permit the court to infer more than the mere possibility of misconduct, 19 the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ 20 ” Id. at 679 (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)). 21 “If a complaint is dismissed for failure to state a claim, leave to amend should be 22 granted ‘unless the court determines that the allegation of other facts consistent with the 23 challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight 24 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well 25 Furniture Co., 806 F.2d 1393 , 1401 (9th Cir. 1986)). “A district court does not err in 26 denying leave to amend where the amendment would be futile.” Id. (internal citation 27 omitted). 28 / / / 1 III. ANALYSIS 2 a. Summary of Parties’ Arguments 3 In his Complaint, Plaintiff asserts claims for (1) Violation of Plaintiff’s Freedom of 4 Speech and Expressive Association; and (2) Violation of Due Process under the First and 5 Fourteenth Amendment to the United States Constitution. See generally Compl. Defendant 6 seeks to dismiss both of Plaintiff’s causes of action arguing that dismissal is required 7 because “the Ordinance closely mirrors the statute upheld in Hill v. Colorado, 530 U.S. 8 703 (2000).” MTD at 8. Defendant argues: 9 In Hill, the Supreme Court upheld a Colorado law that established a 100-foot buffer zone around healthcare facility entrances, prohibiting individuals from — 10 — ‘knowingly approach[ing]’ within eight feet of another person without 11 consent for purposes such as distributing leaflets, displaying signs, or engaging in oral protest or counseling. Id. at 707. The Colorado statute’s text — 12 — and purpose are substantially similar to the Ordinance. Under Hill, the 13 Ordinance is narrowly tailored, content-neutral time, place, and manner regulation that is neither overbroad nor unconstitutionally vague. — 14 — 15 Id. Defendant further argues that “[s]ince Hill, courts have repeatedly upheld the facial 16 constitutionality of buffer zones similar to the Ordinance.” Id. (citing Brown v. City of 17 Pittsburgh, 586 F.3d 263, 270-73 (3d Cir. 2009); Hoye v. City of Oakland, 653 F.3d 835 , 18 843 (9th Cir. 2011); Vitagliano v. County of Westchester, 71 F. 4th 130 (2nd Cir. 2023)). 19 In sum, Defendant argues that “Hill is directly on point and controls the outcome of this 20 case.” MTD at 8. 21 Plaintiff opposes and argues that “Plaintiff’s claims are not foreclosed by Hill v. 22 Colorado’s holding.” Oppo. at 13.2 Plaintiff argues that there are key dissimilarities in the 23 instant Ordinance from the Hill case including “why the zones were drawn,” “how quickly — 24 — — 25 — 26 2 In support of Plaintiff’s Opposition to the Motion to Dismiss, Plaintiff includes the Declaration of Christopher J. Galiardo, Plaintiff’s attorney. ECF No. 16-1. In the Declaration, Mr. Galiardo includes 27 maps of the areas at issue in the Ordinance drawn using ArcGIS Map Viewer. Id. at ¶¶ 3-9. Defendant objects to this Declaration as “improper and inadmissible.” ECF No. 17-1. The Court OVERRULES — 28 — 1 the zones were drawn,” the “bubble zone design principles” and “smothered alternative 2 communication channels.” Oppo. at 13-20. In sum, Plaintiff argues: 3 Even if Hill is still good law and is binding precedent in this case despite the abovementioned dissimilarities between the two statutes, [the Ordinance] still — 4 — clearly violates the First Amendment for reasons given in Hill. The logic of 5 and principles articulated in Hill compel the conclusion that those and additional dissimilarities mentioned in the Complaint and above combined to — 6 — convert [the Ordinance] into a content-and viewpoint-based speech 7 restriction. But even if one were to ignore that logic and those principles to conclude that the ordinance is content-neutral, the speech ban the ordinance — 8 — imposes does not advance a government interest in a narrowly tailored way 9 and so cannot survive scrutiny even as a time, place, or manner speech regulation. — 10 — 11 Oppo. at 21. 12 b. The First Amendment, Generally 13 The First Amendment, applicable to the States through the Fourteenth Amendment, 14 prohibits the enactment of laws ‘abridging the freedom of speech.’” Reed v. Town of 15 Gilbert, 576 U.S. 155, 163 (2015) (quoting U.S. Const. Amend. I). “Content-based laws – 16 those that target speech based on its communicative content – are presumptively 17 unconstitutional” and are subject to strict scrutiny. Id. at 163 . Laws are content based if 18 they “target speech based on its communicative content,” id. or “single[] out particular 19 content for differential treatment.” Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 20 2009) (en banc). Strict scrutiny permits “[c]ontent-based regulations [to] pass 21 constitutional muster only if they are the least restrictive means to further a compelling 22 interest.” S.O.C., Inc. v. Cty. Of Clark, 152 F.3d 1136 (9th Cir. 1998). 23 On the other hand, “[t]he government may place reasonable time, place, and manner 24 restrictions on speech” if the regulation is content neutral. A.C.L.U. of Nevada v. City of 25 Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Content neutral restrictions are subject to 26 intermediate scrutiny and “must be justified without reference to the protected speech’s 27 content,” and “narrowly tailored to serve a significant government interest, leaving open — 28 — 1 ample alternative channels of expression.” Id.; Reed, 576 U.S. at 163 (“Laws that are 2 content neutral are…subject to lesser scrutiny.”). 3 c. The Ordinance is Content Neutral 4 The parties first dispute whether the Ordinance is content based or content neutral, 5 and thus whether strict or intermediate scrutiny applies. Defendant contends that under 6 Hill, the statute is content neutral. Plaintiff argues that Hill is no longer good law.3 Plaintiff 7 also argues that the “ordinance text expressly exempts from its harassment, intimidation, 8 and consented approach restrictions ‘employees, agents, or volunteers of the health care 9 facility…acting within the scope of their employment, agency, or volunteer service,’” 10 which makes the ordinance content based unless it advances public safety and order.” 11 Oppo. at 21 (internal citations omitted) (emphasis in original). Plaintiff further argues that 12 the Ordinance is content based because it “discriminates on the basis of content and 13 viewpoint.” Id. at 22. Plaintiff states that “[the Ordinance] forbids entering a bubble zone 14 without prior consent to ‘engage in oral protest, education, or counseling,’” and enforcing 15 that provision will “inescapably turn[] on the content (including the function and purpose) 16 of what a person will say.” Oppo. at 22. Plaintiff relies on McCullen to support his 17 argument that “speech regulation is content based if its ‘concerned with…[l]isteners’ 18 reactions to speech.” Oppo at 23 (citing McCullen v. Coakley, 573 U.S. 464 , 471 (2014)). 19 In Hill, the plaintiffs, who were also sidewalk counselors, sought to “educate, 20 counsel, persuade, or inform passerbys about abortion, and abortion alternatives.” 530 U.S. 21 at 708 . The plaintiffs in Hill challenged the constitutionality of a Colorado statute, which 22 made it unlawful within 100 feet of the entrance to a healthcare facility to “‘knowingly 23 approach’ within eight feet of another person, without that person’s consent, ‘for the 24 purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, 25 education, or counseling with such other person.’” Id. at 707. The Ordinance at issue here — 26 — — 27 — 3 For the reasons set forth later in this Order, the Court finds that Hill remains good law, and this Court is — 28 — 1 is modeled after the statute in Hill. Id. The Supreme Court in Hill held that the Colorado 2 statute was content neutral and valid under intermediate scrutiny. Id. at 707 n.1, 725-30. In 3 Hill, the court reasoned that (1) “it [was] a regulation of the places where some speech may 4 occur” rather than a “regulation of speech”; (2) “it was not adopted ‘because of 5 disagreement with the message it conveys’” and the law’s “restrictions apply equally to all 6 demonstrators, regardless of viewpoint, and the statutory language makes no reference to 7 the content of the speech”; and (3) “the State’s interests in protecting access and privacy, 8 and providing the police with clear guidelines, are unrelated to the content of the 9 demonstrators’ speech,” id. at 719-20 (quoting Ward v. Rock Against Racism, 491 U.S. 10 781, 791 (1989)). Additionally, the Court found that the statute “places no restrictions on 11 – and clearly does not prohibit – either a particular viewpoint or any subject matter that 12 may be discussed by a speaker. Rather, it simply establishes a minor place restriction on 13 an extremely broad category of communications with unwilling listeners.” Id. at 723. 14 Like in Hill, here, the Ordinance does not facially distinguish between different 15 kinds of speech, ideas, or messages. It applies uniformly to all individuals, regardless of 16 the message they wish to convey, and regulates only the manner in which speech is 17 conducted near Covered Facilities. It applies to passing a leaflet, displaying a sign, 18 engaging in oral protest, education or counseling. Exhibit A to the Compl. at 12-13. The 19 Supreme Court has consistently found similar restrictions on broad categories of 20 communications to be content neutral because they applied to everyone, regardless of 21 viewpoint or subject matter. See, e.g., Heffron v. Int’l Soc’y for Krishna Consciousness, 22 Inc., 452 U.S. 640, 643-44, 648-49 (1981); Turner Broad Sys., Inc. v. F.C.C., 512 U.S. 23 622, 645 (1994) (explaining that rules that make distinctions “based only upon the manner 24 in which speakers transmit their messages to viewers, and not upon the messages they 25 carry” are not presumed to violate the First Amendment). In fact, the Ninth Circuit recently 26 found a regulation requiring a distinction between classes of speech to be content neutral. 27 See Project Veritas v. Schmidt, 2025 WL 37879 , at *4 (9th Cir. Jan. 7, 2025) (“a 28 [r]egulation may remain content neutral despite touching on content to distinguish between 1 classes or types of speech – such as speech that constitutes solicitation…so long as it does 2 not discriminate on the basis of viewpoint or restrict discussion of an entire topic”). 3 Plaintiff takes issue with the exemption for employees, agents, or volunteers of the 4 health care clinic, but courts have held that “[t]here is nothing inherently suspect about 5 providing some kind of exemption to allow individuals who work at the clinics to enter or 6 remain within the buffer zone[ ].” McCullen, 573 U.S. at 483. The McCullen court reasoned 7 that there was a need for an exemption for clinic employees to enter and exit the clinic, and 8 “the ‘scope of their employment’ qualification simply ensures that the exemption is limited 9 to its purpose of allowing the employees to do their jobs.” Id. Similarly, in this case, the 10 Ordinance’s exemptions for clinic employees do not render it viewpoint based. Id. 11 Plaintiff’s argument that Hill is no longer good law also fails. In support thereof, 12 Plaintiff argues that the three assumptions that the Hill court relied on to conclude that 13 Colorado’s buffer zone was content neutral have been abandoned. Oppo. at 12 (citing Reed, — 14 — 576 U.S. at 163-164 ; McCullen, 573 U.S. at 481, 495; Fellowship of Christian Athletes v. 15 San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664 , 686 n.8 (9th Cir. 2023) (en banc)). 16 Plaintiff further argues that “[a]fter having never approvingly cited Hill’s holding even 17 once in the decades that followed it, the Supreme Court pulled no punches when 18 denouncing it in Dobbs in 2022.” Oppo. at 12 Plaintiff’s conclusory argument is not 19 supported by the cases on which he relies. For example, Reed addressed content-based 20 restrictions, so the facts in that case are different from those in Hill, where the statute 21 regulated conduct not content. In Reed, at issue was a town’s “comprehensive code 22 governing the manner in which people may display outdoor signs.” Reed, 576 U.S. 159 . 23 The Sign Code treated Temporary Directional Signs less favorably than both Ideological 24 Signs and Political Signs which led the Supreme Court to conclude that the Sign Code was 25 “content based on its face.” Id. at 164. Unlike the Sign Code in Reed, in Hill, the Colorado 26 statute said nothing about what one can talk, counsel, educate, protest, or leaflet about. In 27 Hill (and in the instant case), it was not the message of the speech that was important, but 28 the manner of the speech. In other words, unlike in Reed, the Colorado statute was 1 concerned with the manner of speech and regulating any messages conveyed through 2 “leafletting, displaying a sign, or engaging in oral protest, education, or counseling.” 530 3 U.S. at 721-22. 4 Also, notwithstanding Plaintiff’s argument to the contrary, the court in McCullen 5 does cite Hill, stating that “[t]he statute was modeled on a similar Colorado law that this 6 Court had upheld in Hill v. Colorado.” McCullen, 573 U.S. at 470. The Supreme Court’s 7 statement in McCullen regarding the Hill decision indicates that it was aware of it, cited it, 8 did not overturn it, and that it remains good law. See, e.g., Agostini v. Felton, 521 U.S. 203 , 9 237 (1997) (“[I]f a precedent of th[e] [Supreme] Court has direct application in a case, yet 10 appears to rest on reasons rejected in some other line of decision, the Court of Appeals 11 should follow the case [that] directly controls, leaving to this Court the prerogative of 12 overruling its own decisions.”). Thus, Hill remains good law, and this Court is bound by 13 its holdings. 14 Plaintiff’s arguments regarding the “key dissimilarities” that exist between the law 15 in Hill and the Ordinance are also without merit. Oppo. at 16-17. First, Plaintiff argues 16 “[f]rom the day Ordinance [] was inked to the day the clinic’s political director backdoored 17 a grateful campaign contribution to the current city attorney the day the ordinance was 18 approved, no one involved with enacting it seemed to doubt that it aimed only to suppress 19 pro-life speech.” Id. at 15. Even assuming that is true, as the Supreme Court explained in 20 Hill, a statute is not “viewpoint based” simply because its enactment was motivated by the 21 conduct of partisans on one side of a debate. 530 U.S. at 724. In Hill, the court still found 22 the statute to be content neural even though the legislative record revealed that the statute 23 was passed primarily to address pro-life speech outside abortion clinics. Id. at 715. 24 Additionally, the Supreme Court has repeatedly upheld buffer zones without requiring an 25 immediate threat at every regulated location. See Hill, 530 U.S. at 715 ; see also McCullen, 26 573 U.S. at 486-87. Notwithstanding this, the challenged Ordinance explicitly states that 27 “demonstration activities around Covered Facilities have subjected [citizens] to harassment 28 and abuse” and “aggressive demonstration activities pose significant public safety threats 1 and risk bodily harm to the demonstrators blocking driveways and doorways, and to the 2 persons trying to access Covered Facilities.” Exhibit A to the Compl. at 8. 3 Plaintiff’s argument regarding the purported dissimilarity because of the “speed of 4 enactment” also fails. Oppo. at 15. San Diego enacted a buffer zone in 1997 and the instant 5 Ordinance is merely an update to that ordinance. As the Ordinance explicitly states, “the 6 City of San Diego adopted a buffer zone ordinance in 1997 applicable to health care 7 facilities, places of worship, and school grounds (Covered Facilities), which has not been 8 amended since its adoption.” Exhibit A to the Compl. at 7. In support of this argument, 9 Plaintiff relies on Schenk v. Pro-Choice Network of W.N.Y., 519 U.S. 357 (1997) and 10 Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994), stating that these cases set forth 11 guidelines for how quickly a government can make that last resort to speech-free zones 12 outside abortion clinics. However, there is nothing in those cases that require governments 13 to conduct a staged and escalatory approach before enacting reasonable time, place, and 14 manner restrictions. Also, Hill affirmed the constitutionality of buffer zones based on 15 general principles of public safety and access to facilities, which is what the San Diego 16 City Council noted in the purpose of its Ordinance. 530 U.S. at 726. 17 Plaintiff’s argument regarding the “bubble zone design principles” also fails. Oppo. 18 at 16-17. Plaintiff argues that “the bubble zone principles articulated in Hill and applied in 19 Hoye suggest that even if San Diego could satisfy all the other criteria for creating those 20 zones (it cannot), bubbles eight feet wide still would need to be struck down because they 21 ‘prevent [affected speakers] from communicating a message at a normal conversational 22 distance.’” Oppo. at 18 (citing Schenk, 519 U.S. at 377 ; Hoye v. City of Oakland, 653 F.3d 23 835 (9th Cir. 2011)). The Supreme Court in Hill explicitly held that the eight-foot buffer is 24 a reasonable distance noting that the “8-foot restriction on an unwanted physical approach 25 leave ample room to communicate a message through speech.” Hill, 530 U.S. at 726 -730 26 (“Signs, pictures, and voice itself can cross an 8-foot gap with ease.”). Plaintiff relies on 27 Schenk, which predates Hill, and provides no legal support for his argument that the bubble 28 zone principles articulated in Hill do not apply here. 1 Finally, Plaintiff’s argument that the instant Ordinance “more comprehensively [] 2 shuts down alternative communication channels than the statute in Hill did” also fails. 3 Oppo. at 18. Defendant City of San Diego concedes that “the noise provisions, while 4 stricter than those in Hill, remain consistent with the principles of time, place, and manner 5 regulations.” Reply at 6. Defendant states that “while the Ordinance may differ in scope, 6 these differences are constitutionally insignificant.” Id. For the reasons set forth in more 7 detail below, the Court agrees with Defendant that the few differences between the instant 8 ordinance and the statute in Hill (the inclusion of places of worship and school grounds, 9 the express prohibition of any acts to “harass or intimidate,” and a slightly stricter noise 10 ordinance) are constitutionally insignificant and remain consistent with the principles of 11 time, place, and manner regulations. 12 Indeed, another court in this district recently weighed in on the same challenged 13 Ordinance. See Blythe v. City of San Diego, 24cv211-GPC-DDL, 2025 WL 108185 (S.D. 14 Cal. Jan. 14, 2025).4 In Blythe, the court found the Ordinance is content neutral, narrowly 15 tailored to serve the government’s interest in protecting those entering and exiting Covered 16 Facilities, provides ample alternative channels of communication, and is not 17 constitutionally overbroad. Id. For the reasons above, the Court finds that the Ordinance is 18 content neutral. 19 d. The Ordinance is a Valid Time, Place, and Manner Regulation 20 Having concluded the Ordinance is content neutral, the Court must next determine 21 whether it is narrowly tailored to serve a legitimate and significant governmental interest 22 and that “it leaves open ample alternative channels for communication.” Hill, 530 U.S. at 23 725-26; see also McCullen, 573 U.S. at 477. The regulation need not be the least restrictive 24 means of serving the government’s interest, but the government “may not regulate 25 expression in such a manner that a substantial portion of the burden on speech does not — 26 — — 27 — 4 Although the Court was already aware of the Blythe decision, the Court GRANTS Plaintiff’s Unopposed — 28 — 1 serve to advance its goals.” McCullen, 573 at 486 (quoting Ward, 491 U.S. at 798-99). 2 Plaintiff argues that “the Ordinance does not advance any governmental interest” and that 3 it is “not narrowly tailored and overly broad.” Oppo. at 23-26. 4 As an initial matter, the City of San Diego has a substantial and legitimate interest 5 in protecting individuals attempting to access Covered Facilities. See Hill, 530 U.S. at 728 - 6 29; see also Hoye v. City of Oakland, 653 F.3d 835, 844-45 (9th Cir. 2011) (the ordinance 7 was modeled after the statute in Hill, so the “analysis of the Ordinance’s facial 8 constitutionality [wa]s mostly controlled by that case” except where the ordinance departed 9 from the Colorado statute). Plaintiff has failed to allege sufficient facts in the Complaint to 10 depart from the Supreme Court’s holding in Hill, which recognized a governmental interest 11 in protecting individuals attempting to access Covered Facilities. See, e.g., Graff v. City of 12 Chicago, 9 F.3d 1309, 1323 (7th Cir. 1993) (en banc) (“Where the courts have already 13 upheld a similar ordinance because of the governmental interests at stake, a future litigant 14 should not be able to challenge similar governmental interests without showing some 15 distinction at the pleading stage.”); see also G.K. Ltd. Travel v. City of Lake Oswego, 436 16 F.3d 1064, 1073 (9th Cir. 2006) (The Court “generally defer[s] to the legislative body 17 passing the law in determining whether the government’s ends are advanced by a 18 regulation.”). 19 Plaintiff argues that the Ordinance is not narrowly tailored. First, Plaintiff notes that 20 “[t]he San Diego Municipal Code gives city police broad activity to break up crowds 21 gathered on sidewalks” and “many generally applicable laws also prevent obstructions sans 22 speech bans.” Oppo. at 26-27. Plaintiff also relies on Berger v. City of Seattle for the 23 proposition that “‘a speech-restricting a law is not narrowly tailored if it either (1) ‘only 24 marginally, if at all, promotes the City’s asserted interest’; or (2) ‘applies, on its face, to an 25 extraordinarily broad group of individuals, the vast majority of whom are not responsible 26 for the evil [the government] seeks to remedy.’” Oppo. at 27 (citing Berger, 569 F.3d 1029 , 27 1041 (9th Cir. 2009) (en banc)). — 28 — 1 Notably, the facts in Berger are vastly different from the facts in the instant case. In 2 Berger, the Ninth Circuit held that a permitting system established by the City of Seattle 3 for the Seattle Center was facially unconstitutional under the First Amendment noting that 4 the Supreme Court “has repeatedly concluded that single-speaker permitting requirements 5 are not a constitutionally valid means of advancing [the government’s] interest because, 6 typically, (1) they sweep too broadly, (2) they only marginally advance the government’s 7 asserted interests, and (3) the government’s interests can be achieved by less intrusive 8 means.” Id. at 1038 (internal citations omitted). 9 The challenged Ordinance in this case is nothing like the permitting system at issue 10 in Berger. Plaintiff, once again, fails to articulate why the Supreme Court’s reasoning in 11 Hill does not apply here. The Colorado statute in Hill, like the Ordinance, prohibited 12 intentional approaches within eight feet of another person outside healthcare facilities. It 13 also limited its applicability to a 100-feet radius from the entrance to a healthcare facility. 14 Hill, 530 U.S. at 715. The regulated areas in Hill are nearly identical in size to those covered 15 in the Ordinance, both of which apply to healthcare facilities and require a culpable mental 16 state. The Ordinance serves the City’s goal of protecting those from entering and exiting 17 the Covered Facilities from unwanted encounters “by enacting an exceedingly modest 18 restriction on the speakers’ ability to approach.” Id. at 729. It does not ban any form of 19 protected speech. Demonstrators can communicate their messages and otherwise engage 20 in protected speech, but at an eight-foot distance and demonstrators with leaflets can 21 peacefully pass them out to willing listeners without physically approaching unwilling 22 listeners. Hill, 530 U.S. at 729-30 . Finally, a content-neutral regulation does not need to be 23 the least restrictive or least intrusive means of achieving the statutory goal. Id. at 726 ; see 24 also McCullen, 573 U.S. at 486 (content neutral restriction “need not be the least restrictive 25 or least intrusive means of serving the government’s interests.”) (internal quotation marks 26 and citation omitted); Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 662 (U.S. 27 June 27, 1994) (a content neutral regulation “need not be the least speech-restrictive means 28 of advancing” a governmental interest); Ward, 491 U.S. at 798. 1 Accordingly, the Ordinance is narrowly tailored to serve the government’s interest 2 in protecting those entering and exiting the Covered Facilities. 3 e. The Ordinance Leaves Open Ample Alternative Channels of Communication — 4 — 5 Plaintiff argues that Ordinance shuts down alternative communication channels 6 “much more comprehensively” than the statute in Hill. Oppo. at 18. Plaintiff argues that 7 there are “three important ways” that the Ordinance is different than the statute in Hill. Id. 8 at 19. First, Plaintiff argues that the “Colorado statute measures its 100-foot zone from a 9 facility entrance, but San Diego measures its [zone] from an outer entry gate.” Id. Second, 10 Plaintiff argues that the “Colorado statute applied only to licensed healthcare facilities, but 11 San Diego’s applies to any place a licensed healthcare worker regularly sees patients or 12 provides medical information or advice.” Id. Third, Plaintiff argues that “the Colorado 13 statute prohibited obstructing healthcare facilities, whereas the San Diego ordinance also 14 prohibits obstructing any parking lot a facility owns, uses, or even tells a patient she can 15 use.” Id. Finally, Plaintiff argues that the “‘harassment’ provision and an unprecedently 16 oppressive noise ordinance [are] found nowhere in the Colorado statute.” Id. at 19. 17 The Court finds that Plaintiff’s argument overstates the significance of the slight 18 modifications of the instant Ordinance from the Colorado statute in Hill. The Court finds 19 that the reasoning from Hill still applies here. For example, the fact that the Colorado 20 statute measures its 100-foot zone from a facility entrance, but San Diego measures its own 21 from an outer entry gate does not impact the constitutionality of the Ordinance. Oppo. at 22 19. Notably, Plaintiff fails to cite any authority or explain why this modification is 23 constitutionally significant enough to make the reasoning of the Hill inapplicable to this 24 case. Sidewalk counselors may still engage in First Amendment activities at reasonable 25 distances from those entering and exiting the clinic, and they are free from restrictions as 26 to willing listeners who provide consent. 27 Plaintiff also takes issue with the fact that the Colorado statute prohibited obstructing 28 healthcare facilities, whereas the San Diego Ordinance also prohibits obstructing any 1 parking lot a facility owns or uses. Once again, this is still narrowly tailored to serve the 2 government’s interest in protecting those entering and exiting the Covered Facilities. Also, 3 the fact that the instant Ordinance includes a “harassment provision” and a slightly stricter 4 noise ordinance still does not silence speech. See United States v. Waggy, 936 F.3d 1014 , 5 1018-20 (9th Cir. 2019) (explaining that an anti-harassment statute that proscribes 6 harassing conduct does not violate the First Amendment.). For the reasons set forth herein, 7 the Ordinance, even with these provisions, complies with the principles of time, place, and 8 manner regulations. The Court agrees with Defendant that the harassment provision 9 definitions mirror widely accepted criminal counterparts in the California Penal Code and 10 are not unconstitutionally vague. Reply at 6; see Hill, 530 U.S. at 724 . 11 There are ample alternative channels of communication here. As the Hill Court 12 found, eight feet of separation will not impact readers’ ability to read signs. Hill at 726-27 13 (“The 8-foot separation between the speaker and the audience should not have any adverse 14 impact on the readers’ ability to read signs displayed by demonstrators.”). Although the 15 Ordinance regulates noise level when using amplification equipment, the Ordinance still 16 allows for conversation at a normal distance, and gives those handing out leaflets the ability 17 to offer the material at a distance to which the pedestrian can easily accept or decline. Id. 18 at 726-28 (noting that the ordinance still permitted communication at a “normal 19 conversational distance” and permitted leafletting to consenting pedestrians). Here, 20 although the Ordinance contains a noise provision that was not included in Hill, the Court 21 finds that it is still narrowly tailored. 22 It is well established that an alternative channel need not be ideal, but merely 23 adequate. See Heffron, 452 U.S. at 654-55 . “The First Amendment does not guarantee the 24 right to communicate one’s views at all times and places or in any manner that may be 25 desired.” Id. at 647 . Here, for example, sidewalk counselors or other demonstrators are still 26 free to set up in one spot, hold up signs, communicate at a normal conversational distance, 27 and use loud speaking amplifiers as long as they do not exceed 55 decibels any point ten 28 feet or more from the noise source. In sum, the Ordinance only restricts certain types of 1 speech in the place[s] where the restriction is most needed” to advance the government 2 interest. Hill at 730; see also Frisby v. Schultz, 487 U.S. 474, 483 (1988) (An alternative 3 channel is adequate if it “permits the more general dissemination of a message.”). 4 For the reasons stated herein, the Court finds that the Ordinance is content neutral, 5 narrowly tailored to a significant government interest, and provides ample alternative 6 channels of communication. The Ordinance is thus a reasonable time, place, and manner 7 restriction. Accordingly, Plaintiff’s First Amendment claim for freedom of speech and 8 expressive association cannot succeed. 9 f. The Ordinance is Not Overbroad or Vague 10 Plaintiff also argues that the Ordinance violates due process because it is overbroad 11 and vague. Oppo. at 30. For example, Plaintiff argues that “ordinary people cannot know 12 what activity the ordinance criminalizes” in light of the Ordinance’s definitions of 13 “harassment,” “serious alarm,” and “cause substantial distress.” Id. at 31. Plaintiff argues 14 that “[s]uch a standardless sweep conjures a specter of ‘policemen, prosecutors, and juries 15 [unleashed] to pursue their personal predilections.’” Id. at 32 (internal citations omitted). 16 A law is constitutionally overbroad “if it prohibits a substantial amount of protected 17 speech.” United States v. Williams, 553 U.S. 285, 292 (2008); see also Moody v. 18 NetChoice, LLC, 603 U.S 707, 723 (2024) (“The question is whether ‘a substantial number 19 of [the law’s] applications are unconstitutional judged in relation to the statute’s plainly 20 legitimate sweep”). As set forth above, the Ordinance does not prohibit messages, signs, 21 literature, or oral statements, but rather regulates where these communications may occur. 22 Once again, Plaintiff’s argument is foreclosed by Hill. 530 U.S. at 730 . In that case, the 23 “[p]etitioners argued…that the statute is too broad because it protects too many people in 24 too many places, rather than just the patients at the facilities where the confrontational 25 speech occurred.” Id. The Hill court rejected this argument and found that “the fact that the 26 coverage of a statute is broader than the specific concern that led to its enactment is of no 27 constitutional significance. What is important is that all persons entering or leaving health 28 care facilities shared the interests served by the statute.” Id. at 730-31 . Here, for the reasons 1 set forth above, the Ordinance is a valid time, place, and manner restriction on protected 2 speech. The Ordinance applies to generally to all individuals, not just Plaintiff. The purpose 3 of the Ordinance is to promote unimpeded access to Covered Facilities without prohibiting 4 substantive speech by Plaintiff or others. In sum, Plaintiff has failed to meet his burden to 5 show that the Ordinance is constitutionally overbroad. See generally United States v. 6 Hansen, 599 U.S. 762 (2023) (“[I]nvalidation for overbreadth is strong medicine that is not 7 be casually employed.”). 8 An ordinance is unconstitutionally vague “if it fails to provide people of ordinary 9 intelligence a reasonable opportunity to understand what conduct it prohibits.” Hill, 530 10 U.S. at 703. Where a case involves the First Amendment, a greater degree of specificity 11 and clarity is required. See Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141 , 1150 12 (9th Cir. 2001). However, “perfect clarity and precise guidance have never been required 13 even of regulations that restrict expressive activity.” Ward, 491 U.S. at 781. Once again, 14 the language of the Ordinance is not ambiguous and includes definitions of certain key 15 terms such as “harassment” and “intimidation” using widely accepted legal standards. 16 Plaintiff relies on the dissent in Hill in his Complaint to support his argument that “[t]he 17 terms oral protest, education, or counseling are at least as imprecise as criminal prohibitions 18 on speech the Court has declared void for vagueness in past decades.” Compl. ¶ 80 (internal 19 citations omitted). However, the Court is bound by the majority decision in Hill’s 20 resolution on these issues, not the dissent. 21 In conclusion, taking all of Plaintiff’s allegations as true and making reasonable 22 inferences in his favor, the Complaint fails to sufficiently allege that the Ordinance is 23 unconstitutionally overbroad or vague. Accordingly, Plaintiff’s argument that the 24 Ordinance violates Due Process under the First and Fourteenth Amendments must be 25 dismissed. 26 g. Leave to Amend 27 Finally, while Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court 28 should give leave [to amend] freely when justice so requires,” the Court finds that 1 |}amendment under the circumstances of this case would be futile. See Vasquez v. Los 2 || Angeles County, 487 F.3d 1246, 1258 (9th Cir. 2007) (citing Schmier v. U.S. Court of 3 || Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[flutility of 4 ||amendment” as a proper basis for dismissal without leave to amend)). Here, in light of the 5 ||Court’s finding that Plaintiff's challenge to the Ordinance is foreclosed by the binding 6 || precedent of Hill and for the additional reasons stated in this Order, amendment cannot 7 || cure the deficiencies of the Complaint. Accordingly, granting leave to amend would be 8 || futile, and is DENIED. 9 IV. CONCLUSION 10 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss 11 || without leave to amend and DENIES AS MOOT Plaintiff's Motion for Preliminary 12 || Injunction. 13 IT IS SO ORDERED. 14 ||Dated: March 21, 2025 NO 15 DE | 16 Honorable Linda Lopez 7 United States District Judge — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —