TUCSON V. CITY OF SEATTLE, No. 23-35449 (9th Cir. 2024)
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In the case before the United States Court of Appeals for the Ninth Circuit, a group of plaintiffs challenged a Seattle ordinance that criminalizes the intentional writing, painting, or drawing on property without the express permission of the property’s owner or operator. The plaintiffs, who were arrested for writing political messages in charcoal and sidewalk chalk near a Seattle Police Department precinct, argued that the ordinance was substantially overbroad under the First Amendment and facially vague under the Fourteenth Amendment.
The Ninth Circuit held that the plaintiffs had Article III standing because enjoining enforcement of the ordinance was substantially likely to redress plaintiffs’ injury by allowing them to chalk political messages on City sidewalks and barriers erected on public walkways without fear of arrest. However, the court found that the district court erred when it granted the plaintiffs' request for a preliminary injunction on their First Amendment facial overbreadth claim and their Fourteenth Amendment facial vagueness claim. The court reasoned that the district court failed to acknowledge the numerous applications of the ordinance that would not implicate any protected speech, and speculated about possible vagueness in hypothetical situations not before the court.
Therefore, the Ninth Circuit reversed the district court’s order granting the preliminary injunction and remanded the case back to the district court for further proceedings.
Court Description: Overbreadth and Vagueness Doctrines The panel reversed the district court’s order preliminarily enjoining enforcement of a Seattle ordinance that criminalizes the intentional writing, painting, or drawing on property without the express permission of the property’s owner or operator.
Plaintiffs brought suit pursuant to 42 U.S.C. § 1983 alleging, in part, that the Seattle ordinance was substantially overbroad under the First Amendment and facially vague under the Fourteenth Amendment.
The panel first determined that plaintiffs had Article III standing because enjoining enforcement of the ordinance was substantially likely to redress plaintiffs’ injury by allowing them to chalk political messages on City sidewalks and barriers erected on public walkways without fear of arrest. * The Honorable Eugene E. Siler, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation. The panel next held that the district court erred when it enjoined the ordinance as facially overbroad. To justify facial invalidation, a law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep. Here, the district court never acknowledged the ordinance’s numerous applications that would not implicate protected speech. By failing to inquire into the ordinance’s numerous lawful applications, the district court was unable to analyze whether the number of unconstitutional applications was substantially disproportionate to the statute’s lawful sweep. The panel therefore reversed the district court’s order granting plaintiffs a preliminary injunction on their First Amendment facial overbreadth claim.
The panel next held that the district court erred in applying the facial vagueness doctrine. Instead of examining whether the ordinance was not vague in the vast majority of its intended applications, the district court instead speculated about possible vagueness in hypothetical and fanciful situations not before the court. The district court’s failure to employ the requisite analysis to sustain a facial vagueness claim was sufficient to warrant reversal.
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