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Ninth Circuit Clarifies Constitutionality of Permitting Regulations on Protected Speech in Public Fora

In Kaahumanu v. State of Hawaii, the Ninth Circuit rejected plaintiff’s constitutional challenge and upheld a permit requirement for weddings on public beaches in Hawaii.  (Click here to read the opinion in Kaahumanu v. State of Hawaii, 2012 DJDAR 7472 (9th Cir. 2012).)  The Court found that the permit requirement satisfied the four criteria for a time, place and manner restriction on protected speech in a public forum – it was content-neutral, left ample alternative spaces for holding a wedding, did not vest too much discretion in the licensing official and was narrowly tailored to minimize conflicting uses of limited beach area and conserve the physical resource of the beaches.  The Court reached this conclusion even though the permit requirement applied to weddings involving as few as three people, distinguishing its decision in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) where the Court invalidated a permitting requirement in part because it applied to single speakers. 

In so doing, the Court affirmed its prior holdings in Berger and related cases, but limited those holdings to their particular factual contexts.  Specifically, the Court found that Berger was a facial challenge to a regulation requiring street performers to submit applications and wait days to obtain permits before performing at the Seattle Center, an 80 acre park which is a traditional public forum, whereas Kaahumanu involved an as applied challenge to a regulation requiring commercial wedding vendors to obtain a permit, available within minutes on line, for a particular wedding ceremony before conducting the ceremony on public beaches.  While the Hawaii regulation eliminated all spontaneous speech associated with beach weddings, the Court found that the Hawaii plaintiffs had expressed no interest in engaging in such activity.  Finally, the Court found no significant temporal restriction on speech due to the need to fill out an application and wait to obtain a permit because the process could be completed on line in a few minutes, whereas in Berger the applicant had to fill out paperwork, submit it to the City and wait several days for City officials to determine whether to issue the permit.

This decision establishes that permits may still be utilized by municipalities as reasonable time, place and manner regulations of expressive activities in public fora post-Berger, so long as the permitting system does not significantly and overly burden protected speech.  As is generally true with First Amendment jurisprudence, the issue of whether a permitting system places too great a burden on protected speech to pass constitutional muster is heavily dependent on the particular factual situation.