Kaahumanu v. State of Hawai’i, 682 F3d ___ 789 (9th Cir., 2012) involved a native Hawai’ian pastor, who performed commercial wedding ceremonies on state beaches, and his wedding production company. Defendant state and state officials adopted and sought to enforce regulations on such wedding on beach land which was under the jurisdiction of the State Department of Land and Natural Resources (DLNR). The regulations provided for a license for all commercial wedding activities on DLNR beaches. The permits used a sliding scale of fees, depending on the area used, limited the time for wedding events, and required insurance and indemnification of the state. The regulations also limited the type of accessories and structures that could be used in weddings and allowed the DLNR director to grant or deny permits and to impose additional conditions on a permit. Plaintiffs brought suit to declare these regulations unconstitutional under the First Amendment and the Equal Protection and Due Process clauses. The trial court granted summary judgment to the state, finding state beaches were not a traditional public forum and, even if they were, the rules were a reasonable time, place and manner regulation. Plaintiffs appealed.
On appeal, Defendants challenged Plaintiffs’ standing but the court disagreed. There was testimony by certain wedding professionals that costs had gone up and business had dropped off as a result of the new rules. The court found these allegations sufficient for standing because the case arguably involved constitutional rights and economic injury. Only one plaintiff need have standing for the case to proceed.
The court next turned to DLNR’s contention that weddings were not protected First Amendment speech, finding that it was, as weddings conveyed a “particularized message” of the wedding couple’s mutual commitment. As such, they were categorized as speech.
The court next turned to whether the beaches under the DLNR’s jurisdiction were considered “traditional public forum” (such as public streets and parks) a designated public forums (such as a speaker’s corner) designated by a local authority, or a limited public forum (such as public hearings). Traditional public forums have a long tradition of public use and as such can only be excluded if necessary to serve a compelling state interest and the exclusion is narrowly drawn to serve that interest. Designated public forums are created by affirmative governmental actions and, upon designation, have the same protections as traditional public forums. Limited government forums are government lands used for discussion of certain topics. Reasonable and viewpoint-neutral regulations may be imposed on this kind of forum. Other government properties are either nonpublic or not a forum at all and may be regulated so long as the regulations are reasonable and the latter’s purpose is served by the fact that public space and they are viewpoint-neutral. DLNR contended that beaches are nonpublic forums while plaintiffs claimed they were traditional public forums. The court said it was unnecessary to categorize all DLNR beaches in a single group, but assumed, without deciding, that they were traditional public forums; however, for the regulations that it would declare invalid, the court assumed that those beaches were nonpublic forums.
Then with the commencement of review of the regulations themselves, the court concluded that with one category of exception (related to the authority to grant or deny permits or to impose conditions on them) all challenges to the regulatory regime must be “as applied” challenges. Only those rules which sought to regulate words or patently expressive or communicative conduct are liable to a facial challenge. In this case, most of the challenged rules do not seek to regulate the words or the wedding ceremony or patently expressive or communicative conduct, as the regulations deal with all commercial activities on the beach – thus those challenges must be to particular permits, rather than the regulations on their face. As to the allowable facial challenges, i.e., the DLNR chair authority to approve, deny or condition permits, these may be challenged in order to deal with both the dangers of unfettered discretion and prior restraint, as well the possible effects of actual or self-censorship, even if that power is not used in a specific case. A plaintiff in such a case need only show that the licensing requirement applies to its conduct and has a sufficient nexus to the regulation of expression or conduct to pose a real and substantial threat of censorship risk. On that basis, the court considered plaintiff’s facial challenges to the permit process.
Plaintiffs brought three challenges to these portions of the regulations:
1. The permit requirements themselves;
2. Limitations on accessory equipment and structure; and
3. The insurance and indemnification requirements of the regulations.
The court added the fourth consideration:
4. Delegation of overly broad discretion to a licensing official.
Defendants contended that the regulations were reasonable time, place and manner restrictions of the kind upheld by the United States Supreme Court in Thomas v. Chicago Park District, 534 US 316 (2002) and concluded that the regulations served the same purposes as in Thomas, i.e., coordination of multiple uses of public space, assurance of the preservation of park facilities, the prevention of dangerous, unlawful, impermissible use of parks, and assurance of financial accountability for damages caused by an event. Moreover, the court found the rules narrowly tailored to further those interests. Permits may be requested and paid for online and it was reasonably easy to add the state as an additional insured. The process is ministerial and no permit has ever been denied. Similarly, the permit conditions for those already issued were shown mainly to be narrowly tailored by limiting the event in time, assuring that other beach users were not inconvenienced, and safeguarding clean-up after the event, unlike the regulations found invalid in Berger v. City of Seattle, 569 F3d 1029 (9th Cir., 2009). Berger had significant differences in the process of filling out and submitting a written permit application, waiting for that permit to be processed and the elimination of spontaneous and anonymous speech. The court did not find these problems in the instant case. Moreover, the court found the process to be content-neutral and not foreclosing the entire medium of commercial beach weddings.
Nevertheless, while the power to grant these permits is sufficiently constrained, the power to revoke those same permits was not, as the permit is terminable for any reason in the sole and absolute discretion of the DLNR chair, who also retained the discretion to impose additional terms and conditions on any permit without limitation. Even assuming the beaches were nonpublic forums, restrictions on access must be reasonable in view of the purpose served and be viewpoint neutral. Viewpoint neutrality has not been directly required by the United States Supreme Court but two circuit courts of appeal have required governments to provide affirmative prohibitions on permit granting to assure such neutrality and there are additional inferences from some United States Supreme Court opinions to that same effect. The court concluded the dangers of arbitrary standard-less application and real or self-censorship would allow for content-based discrimination and thus would not constitute a reasonable time, place and manner regulation. However, the Court upheld the limitation on structures and accessories used in weddings (which did not include hand-carried accessories) in view of allowing public access to beaches and therefore not violating of the First Amendment. Similarly, the court upheld the regulations relating to insurance and indemnification which required inter alia a policy naming the state as an additional insured with a $300,000 per incident and $500,000 aggregate policy limits in place, as well as holding DLNR harmless from third party claims regarding events occurring at the wedding. The Court found these regulations protected the state’s property interests, were not overly broad (as they dealt with harm caused by the applicant, and not torts of the state) and content-neutral. The Court concluded that only those portions of the permit requirements that dealt with revocation or the imposition of conditions offended the First Amendment and held those portions only as unconstitutional.
Additionally, the Court rejected plaintiffs’ due process and equal protection contention. While the right to marry is fundamental, regulation of commercial weddings on state property does not impinge on that right or the right of free expression. Moreover, the power of the state to choose to regulate commercial (but not non-commercial) regulations on state property does not offend equal protection. The regulations, except for the permit revocation and conditioning authorities, were thus upheld.
Kaahumanu v. State of Hawai’i, 682 F3d ___ 789 (9th Cir., 2012).
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