                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 CPR FOR SKID ROW, an                                No. 12-55289
 unincorporated association; HAMID
 KHAN; PETER WHITE,                                    D.C. No.
                Plaintiffs-Appellants,              2:11-cv-06274-
                                                       JFW-CW
                      v.

 CITY OF LOS ANGELES,                                  OPINION
               Defendant-Appellee.


         Appeal from the United States District Court
            for the Central District of California
          John F. Walter, District Judge, Presiding

                    Argued and Submitted
            January 7, 2014—Pasadena, California

                       Filed March 10, 2015

 Before: Stephen Reinhardt and Richard R. Clifton, Circuit
      Judges, and Jennifer A. Dorsey, District Judge.*

                Opinion by Judge Clifton;
Partial Concurrence and Partial Dissent by Judge Reinhardt


 *
   The Honorable Jennifer A. Dorsey, U.S. District Judge for the District
of Nevada, sitting by designation.
2       CPR FOR SKID ROW V. CITY OF LOS ANGELES

                           SUMMARY**


                            Civil Rights

    The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in an action
challenging a California statutory scheme pertaining to public
protests.

    Plaintiffs, CPR for Skid Row and two of its members,
brought suit after the members were threatened with arrest
and plaintiff Peter White was arrested for chanting loudly in
protest of an organized walk by public officials and others
through Los Angeles' Skid Row. Plaintiffs challenged
California Penal Code § 403, which makes it a misdemeanor
to “willfully disturb[] or break[] up any assembly or meeting
that is not unlawful in its character, other than an assembly or
meeting referred to in . . . Section 18340 of the Elections
Code.” Section 18340 makes it a misdemeanor to willfully
hinder or prevent, by threats, intimidations, or unlawful
violence, “electors from assembling in public meetings for
the consideration of public questions.”

   Affirming in part, the panel held that § 403 was not
unconstitutional on its face. The panel rejected plaintiffs’
challenge to § 403 on the grounds that it was
unconstitutionally vague or an unconstitutional restriction on
speech.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
       CPR FOR SKID ROW V. CITY OF LOS ANGELES                  3

    Reversing in part, the panel held that California Penal
Code § 403 was unconstitutionally applied to CPR’s
activities. The panel held that the plain language of the statute
and its legislative history demonstrate that § 403 does not
cover political meetings, including the meeting at issue here.
The panel held that because CPR’s activities fell within the
exception carved out by Elections Code § 18340, § 403 did
not criminalize CPR’s conduct.

    Concurring in part and dissenting in part, Judge Reinhardt
agreed with the majority’s reversal of the district court’s
judgment in favor of the defendant and its holding that § 403
of the Penal Code may not be applied to plaintiffs. Judge
Reinhardt would hold, however, that § 403 (and §§ 18340 and
302 as well) are unconstitutionally void for vagueness and not
simply as applied in the particular circumstances. In addition,
although he would not decide the question, Judge Reinhardt
believes the statutory scheme, or at least a part of it, is likely
also unconstitutional as content-based.


                          COUNSEL

Carol A. Sobel (argued), Law Office of Carol A. Sobel, Santa
Monica, California, for Plaintiffs-Appellants.

Kimberly Anne Erickson (argued), Deputy City Attorney,
Laurie Rittenberg, Assistant City Attorney, and Carmen A.
Trutanich, City Attorney, Los Angeles City Attorney’s
Office, Los Angeles, California, for Defendant-Appellee.
4      CPR FOR SKID ROW V. CITY OF LOS ANGELES

                          OPINION

CLIFTON, Circuit Judge:

    This appeal presents the question of whether California
Penal Code § 403, which makes it a misdemeanor to
“willfully disturb[] or break[] up any assembly or meeting
that is not unlawful in its character, other than an assembly or
meeting referred to in . . . Section 18340 of the Elections
Code,” is constitutional. Plaintiffs challenge that statute both
facially and as applied to them. We hold that § 403 is not
unconstitutional on its face and affirm, in part, the decision of
the district court to that effect. Because § 403 does not
properly apply to Plaintiffs’ activity, however, we reverse the
district court’s summary judgment dismissing the action and
remand for further proceedings.

I. Background

    Plaintiffs are an organization, CPR for Skid Row, and two
of its members, Hamid Khan and Pete White (collectively
“CPR” or “Plaintiffs”). CPR was founded in 2011 to
advocate for the rights of people who reside in the area of
downtown Los Angeles known as Skid Row. White is also
a founder and co-director of the Los Angeles Community
Action Network.

    CPR and its members oppose walks through the Skid Row
neighborhood sponsored by the Central City East Association
(“CCEA”).       CCEA is a non-profit corporation that
administers two Business Improvement Districts in
downtown Los Angeles and “serve[s] as the principal voice
of industrial downtown.” In conjunction with the Midnight
Mission and Los Angeles City Councilperson Jan Perry, the
       CPR FOR SKID ROW V. CITY OF LOS ANGELES              5

CCEA in 2005 began organizing community neighborhood
walks through Skid Row (the “Walks”). According to the
CCEA, the Walks are attended by public officials, law
enforcement, members of the judiciary, students, academics,
local business owners, social service providers, and the
media. The Walks take place on the public sidewalks of the
Skid Row neighborhood and, according to the CCEA, allow
participants “to see for themselves and learn about the
challenges, not through a windshield, but from the experience
of walking through [Skid Row] and interacting with social
service representatives, police, residents and business
owners.”

    Members of CPR, in contrast, believe that the Walks
“support[] and promote[] the criminalization of homelessness
and poverty and [are] comprised only of those from outside
of [the Skid Row] community.” According to CPR, the
Walks are “dominated by police officers and representatives
of the business community,” which are “exactly the same
institutions that are promoting the unprecedented levels of
police presence, citations and arrests in Skid Row that have
made many homeless and poor residents less safe and/or less
stable.” The Walks “do not represent the interests of the low-
income community, nor [CPR’s] vision for public safety.”
  CPR members believe that “the public officials who
participate [in the Walks] are demeaning and depersonalizing
homeless individuals in order to gain support for repressive
measures against the low-income residents of Skid Row who
need critical assistance.”

    CPR thus began staging protests of the Walks. In
preparation for the July 6, 2011, Walk, Lieutenant Shannon
Paulson, the Los Angeles Police Department officer in charge
of the Central Area Safer Cities Initiative Task Force in Skid
6       CPR FOR SKID ROW V. CITY OF LOS ANGELES

Row, held a meeting with her officers and distributed
photographs of particular individuals who had engaged in
what she had deemed to be “aggressive” behavior at previous
Walks in violation of California Penal Code § 403. White’s
photograph was not among those distributed.

    At the July 6, 2011, Walk, CPR protestors shouted chants,
including: “We are not resisting. This is our First
Amendment Right.” They also banged on drums, often in
close proximity to the Walk participants. Lieutenant Paulson
and Captain Todd Chamberlain spoke with legal observers
from the National Lawyers Guild, informing them that the
protestors could demonstrate but that “if it gets to the point
when it is disturbing a lawful public meeting, just like we
wouldn’t let anyone do it to you, we can’t let anyone do it to
them.” They warned the protestors that they could be
arrested under § 403. Eventually, White, who was filming
the Walk and the protest, was arrested by the LAPD for
violating California Penal Code § 403, after he allegedly
yelled loudly less than a foot away from one of the Walk
attendees. He was booked and released on bail but was not
charged with any violation of the law.

    CPR filed a lawsuit against the City of Los Angeles
asserting that California Penal Code § 403 is unconstitutional,
both on its face and as applied, under the First and Fourteenth
Amendments of the Constitution and analogous provisions of
the California Constitution.1 The parties filed cross-motions
for summary judgment. The district court granted the City’s
motion, holding that § 403 is constitutional both on its face


    1
    CPR notified the California Attorney General that it was challenging
the constitutionality of § 403, but the Attorney General did not intervene
to defend it.
       CPR FOR SKID ROW V. CITY OF LOS ANGELES               7

and as applied, and denied CPR’s motions for summary
judgment, a preliminary injunction, and declaratory relief.
Plaintiffs appeal.

II. Void for Vagueness Challenge

   California Penal Code § 403 states, in its entirety:

       Every person who, without authority of law,
       willfully disturbs or breaks up any assembly
       or meeting that is not unlawful in its
       character, other than an assembly or meeting
       referred to in Section 302 of the Penal Code
       or Section 18340 of the Elections Code, is
       guilty of a misdemeanor.

    The first exception identified in § 403 is § 302 of the
Penal Code. It concerns meetings “for religious worship” and
states, in relevant part:

       Every person who intentionally disturbs or
       disquiets any assemblage of people met for
       religious worship at a tax-exempt place of
       worship, by profane discourse, rude or
       indecent behavior, or by any unnecessary
       noise, either within the place where the
       meeting is held, or so near it as to disturb the
       order and solemnity of the meeting, is guilty
       of a misdemeanor . . . .

    The second exception listed in § 403, and the one
particularly relevant to this case, is § 18340 of the Elections
Code. It states, in its entirety:
8      CPR FOR SKID ROW V. CITY OF LOS ANGELES

       Every person who, by threats, intimidations,
       or unlawful violence, willfully hinders or
       prevents electors from assembling in public
       meetings for the consideration of public
       questions is guilty of a misdemeanor.

The Elections Code defines “elector” as

       any person who is a United States citizen 18
       years of age or older and . . . is a resident of
       an election precinct at least 15 days prior to an
       election[, or is not a resident but either]

       (1) He or she was a resident of this state when
       he or she was last living within the territorial
       limits of the United States or the District of
       Columbia[, or]

       (2) He or she was born outside of the United
       States or the District of Columbia, his or her
       parent or legal guardian was a resident of this
       state when the parent or legal guardian was
       last living within the territorial limits of the
       United States or the District of Columbia, and
       he or she has not previously registered to vote
       in any other state.

Cal. Elec. Code § 321.

A. CPR’s Challenge

    CPR contends that § 403 is void for vagueness because it
is not clear what conduct is subject to the criminal penalties
of § 403 and what conduct is covered by § 18340 and thus
       CPR FOR SKID ROW V. CITY OF LOS ANGELES               9

excluded from the reach of § 403. Section 18340 refers to
“public meetings for the consideration of public questions,”
a category of meetings that, argues CPR, appears from the
face of the statute to encompass the type of meeting at issue
in this case. Electors, similarly, by the statutory definition,
include anyone over 18 who resides in any election precinct.
That is a vast group of potential participants that, again,
encompasses the participants in the meeting at issue here.

    This is significant, argues CPR, because § 18340 sets
forth a standard for a misdemeanor that is different from, and
higher than, the standard for a misdemeanor under § 403.
While a person is subject to criminal penalties under § 403 if
he “willfully disturbs or breaks up” a meeting, under § 18340
he is subject to penalties only if he uses “threats,
intimidations, or unlawful violence”—more egregious
conduct—to hinder or prevent the meeting in question from
assembling. Thus, knowing what type of meeting is covered
by § 18340, and therefore excluded from coverage under
§ 403, is critical to understanding what type of conduct
exposes a person to criminal penalties under § 403.

    A penal statute must “define the criminal offense with
sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983). An
insufficiently definite statute is void for vagueness. Id.
“[S]tandards of permissible statutory vagueness are strict in
the area of free expression.” NAACP v. Button, 371 U.S. 415,
432 (1963). “Laws that are insufficiently clear are void for
three reasons: (1) To avoid punishing people for behavior that
they could not have known was illegal; (2) to avoid subjective
enforcement of the laws based on arbitrary or discriminatory
10     CPR FOR SKID ROW V. CITY OF LOS ANGELES

interpretations by government officers; and (3) to avoid any
chilling effect on the exercise of First Amendment freedoms.”
United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir. 1996).

    “[W]here a vague statute abuts upon sensitive areas of
basic First Amendment freedoms, it operates to inhibit the
exercise of those freedoms. Uncertain meanings inevitably
lead citizens to steer far wider of the unlawful zone than if the
boundaries of the forbidden areas were clearly marked.”
Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)
(internal quotation marks, footnote, and alterations omitted).
That § 403 “abuts upon sensitive areas of basic First
Amendment freedoms” is evident in the facts of this case and
in every available case involving the statute, all of which
involve not merely speech or expressive conduct but core
political speech. See, e.g., In re Kay, 1 Cal. 3d 930, 936
(1970) (rhythmic clapping during a congressman’s speech);
McMahon v. Albany Unified Sch. Dist., 104 Cal. App. 4th
1275, 1280–81 (Cal. Ct. App. 2002) (dumping gallons of
garbage on the floor during a school board meeting as part of
a speech about the problem of litter in the area of the high
school); Saraceni v. City of Roseville, No. C041085, 2003
WL 21363458, at *2 (Cal. Ct. App. June 13, 2003)
(attempting to address the city council and city attorney at a
city council meeting after the public comment period had
ended); Norse v. City of Santa Cruz, 629 F.3d 966, 970 (9th
Cir. 2010) (en banc) (giving a silent Nazi salute and
whispering to another meeting attendee in city council
meetings); Sanchez v. City of Los Angeles, No. CV 07–5132
GHK (JC), 2011 WL 6951822, at *2 (C.D. Cal. Oct. 31,
2011) (attending a city council meeting with a pillow case,
attached to a shirt, that read “CRA Destroys Communities”).
       CPR FOR SKID ROW V. CITY OF LOS ANGELES               11

    “[A] plaintiff seeking to vindicate his own constitutional
rights may argue that an ordinance is unconstitutionally vague
or impermissibly restricts a protected activity.” Santa
Monica Food Not Bombs v. City of Santa Monica, 450 F.3d
1022, 1033 (9th Cir. 2006) (citations, alterations, and internal
quotation marks omitted). Where, as here, plaintiffs make a
facial constitutional challenge to a state law, “a federal court
must, of course, consider any limiting construction that a state
court or enforcement agency has proffered.” Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494
n.5 (1982).

    The California Supreme Court has interpreted § 403 only
once. In re Kay, 1 Cal. 3d 930, 936–37 (1970), concerned the
arrest and conviction of four people for engaging in
“rhythmical clapping” and “some shouting for about five or
ten minutes” during the speech of a congressman in a public
park at an Independence Day celebration. The California
Supreme Court noted that § 403 could be read to cover
speech protected by the First Amendment. Applying the
common presumption that the legislature intended to enact a
valid statute, however, it interpreted the statute more
narrowly to render it constitutional. It held that § 403
requires “that the defendant substantially impair[] the conduct
of the meeting by intentionally committing acts in violation
of implicit customs or usages or of explicit rules for
governance of the meeting, of which he knew, or as a
reasonable man should have known.” Id. at 943. The court
specified that criminal sanctions could be imposed “only
when the defendant’s activity itself—and not the content of
the activity’s expression—substantially impairs the effective
conduct of a meeting.” Id. at 942.
12      CPR FOR SKID ROW V. CITY OF LOS ANGELES

    In so construing § 403, the California Supreme Court did
not consider the statute’s exceptions for political meetings
and religious meetings. In fact, the court omitted all
reference to the exceptions when citing the statute and in its
discussion of the statute’s origins.2 Nonetheless, the court set
aside the criminal conviction at issue, concluding that the
defendants’ rhythmical clapping did not rise to the level of a
misdemeanor under § 403.

B. Interpretation of Section 403

    Because no state or federal court has expressly construed
§ 403 in relation to § 18340, we interpret those statutes by
applying California’s rules of statutory construction. In re
First T.D. & Inv., Inc., 253 F.3d 520, 527 (9th Cir. 2001).
Under California law, the “fundamental task” of statutory
interpretation is “to determine the Legislature’s intent so as
to effectuate the law’s purpose.” People v. Cornett, 53 Cal.
4th 1261, 1265 (2012) (internal citations and quotation marks
omitted). Where the plain language of a statute is ambiguous
or uncertain, we may consider “the purpose of the statute, the
evils to be remedied, the legislative history, public policy,
and the statutory scheme encompassing the statute.” Id.
(internal citations and quotation marks omitted); see People
v. Van Alstyne, 46 Cal. App. 3d 900, 911–14 (Cal. Ct. App.
1975) (consulting the legislative history after finding that the
statutory definition of marijuana as Cannabis sativa L. was
ambiguous despite its specificity).


 2
    The court quoted an expurgated version of § 403: “Section 403 of the
Penal Code provides: ‘Every person who, without authority of law,
willfully disturbs or breaks up any assembly or meeting, not unlawful in
its character, . . . is guilty of a misdemeanor.’” Kay, 1 Cal. 3d at 937–38
(alteration in original).
        CPR FOR SKID ROW V. CITY OF LOS ANGELES                        13

    By its express terms, § 403 does not apply to activity in
connection with “an assembly or meeting referred to in
Section 302 of the Penal Code or Section 18340 of the
Elections Code.” It is the latter exception for meetings
covered by § 18340, namely “public meetings for the
consideration of public questions,” that is at issue in this case.
CPR argues that there is uncertainty as to the type of
meetings excluded from § 403 because they are covered by
§ 18340.

    We turn to the legislative history for guidance as to the
legislature’s intent in excluding meetings covered by § 18340
from coverage by § 403. See People v. Yoshimura, 62 Cal.
App. 3d 410, 415–16 (Cal. Ct. App. 1976) (where a defendant
asserted that the terms “substance” and “material” in a
criminal statute were unconstitutionally vague, the court
considered the legislative history of the criminal statute,
determined the statute’s legislative purpose, and found the
terms not to be vague). The legislative history, although
complex, shows that § 403 and the other two statutes it
identifies as exceptions were intended to apply to three
different types of meetings: religious meetings, political
meetings, and all other meetings.

    Originally enacted in 1872 as part of the first California
Penal Code, § 403 had the headnote “Disturbance of public
meetings, other than religious or political”3 and provided, in
terms very similar to today’s statute:


 3
   See Farraher v. Superior Court of Kern County, Dept. 3, 45 Cal. App.
4, 5–6 (Cal. Ct. App. 1919) (the heading of the 1872 version of § 403
“must be deemed a part of the substance of the enactment and accorded
the same effect as though written into the body of the law” and, therefore,
a meeting must be public to fall within this section).
14         CPR FOR SKID ROW V. CITY OF LOS ANGELES

           Every person who, without authority of law,
           willfully disturbs or breaks up any assembly
           or meeting, not unlawful in its character, other
           than such as is mentioned in Sections 59 and
           302, is guilty of a misdemeanor.

Cal. Penal Code § 403 (Haymond & Burch 1874).4 The Code
Commentator’s note to the 1872 Code explained the coverage
of the three sections as follows:

           The assembly specified in Sec. 59 is a
           meeting of electors, held for the discussion of
           public questions, and that in Sec. 302 a
           religious meeting. This section includes
           funerals, and like lawful meetings, and
           corresponds with the N. Y. Penal Code, Sec.
           473.




 4
     Compare to the current version of § 403 (differences indicated in bold):

           Every person who, without authority of law, willfully
           disturbs or breaks up any assembly or meeting that is
           not unlawful in its character, other than an assembly or
           meeting referred to in Section 302 of the Penal Code
           or Section 18340 of the Elections Code, is guilty of a
           misdemeanor.
          CPR FOR SKID ROW V. CITY OF LOS ANGELES                       15

Cal. Penal Code § 403 (Haymond & Burch 1874).5 Cf.
People v. Stuart, 47 Cal. 2d 167, 175 (1956) (using the Code
Commissioner’s note from 1872 as an indication of prior
legislative intent).

   In 1872, § 302, the religious-meetings exception to § 403,
was very similar to today’s version of that section,6 but the

 5
     Section 473 stated:

          Every person who, without authority of law, willfully
          disturbs or breaks up any assembly or meeting, not
          unlawful in its character, other than such as are
          mentioned in sections 55, 79, and 359, of this Code, is
          guilty of a misdemeanor.

Draft of a Penal Code for the State of New York (“Fields Draft”) § 473
(1864). The annotation to the Fields Draft explains that “The assemblies
specified in the sections referred to are religious meetings, meetings of
electors held for discussion of public questions, and funerals.” Id. The
California version of the statute does not have a separate statutory section
covering funerals and instead incorporates funerals into § 403.
 6
     The 1872 version of § 302 provided:

          Every person who willfully disturbs or disquiets any
          assemblage of people met for religious worship by
          noise, profane discourse, rude, or indecent behavior, or
          by any unnecessary noise, either within the place where
          such meeting is held, or so near it as to disturb the order
          and solemnity of the meeting, is guilty of a
          misdemeanor.

Cal. Penal Code § 302 (Haymond & Burch 1874). Compare to the current
version of § 302 (deletions indicated by strike-through; additions indicated
by bold):

          (a) Every person who intentionally disturbs or
          disquiets any assemblage of people met for religious
16       CPR FOR SKID ROW V. CITY OF LOS ANGELES

political-meetings exception, § 59, was notably different from
today’s § 18340.        Section 59, under the headnote
“Disturbance of public meetings, misdemeanor,” stated, using
a structure and a standard very similar to § 403:

         Every person who willfully disturbs or breaks
         up any public meeting of electors or others,
         lawfully being held for the purpose of
         considering public questions, is guilty of a
         misdemeanor.

Cal. Penal Code § 59 (1874). This section is not the historical
predecessor of the current political meetings exception,
Elections Code § 18340, however. Section 18340 derived
from a different section of the original 1872 Penal Code,
specifically § 58. That section was not, in 1872, exempted
from coverage under § 403. Section 58 had the heading
“Preventing public meetings” and stated:

         Every person who, by threats, intimidations,
         or unlawful violence, willfully hinders or
         prevents electors from assembling in public



         worship at a tax-exempt place of worship, by [noise,]
         profane discourse, rude or indecent behavior, or by any
         unnecessary noise, either within the place where the
         meeting is held, or so near it as to disturb the order and
         solemnity of the meeting, is guilty of a misdemeanor
         punishable by a fine not exceeding one thousand
         dollars ($1,000), or by imprisonment in a county jail
         for a period not exceeding one year, or by both that
         fine and imprisonment.

The current statute also contains sections (b)–(f), which provide additional
details on penalties for violation of § 302.
         CPR FOR SKID ROW V. CITY OF LOS ANGELES                         17

         meeting for the consideration of public
         questions, is guilty of a misdemeanor.

Cal. Penal Code § 58 (1874). This is identical to the language
in current Elections Code § 18340, exempted from § 403.

    In short, §§ 58 and 59 both applied to “public meetings
for the consideration of public questions,” but the two
sections had different standards for a misdemeanor. Under
§ 58, it was a misdemeanor to hinder such a meeting “by
threats, intimidations, or unlawful violence,” while under
§ 59, it was a misdemeanor simply to “willfully disturb[] or
break[] up” such a meeting. Only § 59 was referred to and
excluded from the coverage of § 403; § 58 was not mentioned
in § 403 at all.

    How did it happen that the original 1872 version of § 403
referred to the now-extinct Cal. Penal Code § 59
(“Disturbance of public meetings”) but the current version of
§ 403 refers to a section identical to the 1872 version of § 58
(“Preventing public meetings”)? The first step in this shift
occurred in 1905 when § 59 of the Penal Code was amended
and its text wholly replaced with § 41 of the Purity in
Elections Act,7 which had been passed in 1893. The amended
§ 59 had the headnote “Force, violence or restraint used to
influence votes” in place of the original headnote
“Disturbance of public meetings, misdemeanor,” and it
contained lengthy prohibitions on voting intimidation and



   7
     The full title was “An Act to promote the purity of elections by
regulating the conduct thereof, and to support the privilege of free suffrage
by prohibiting certain acts and practices in relation thereto, and providing
for the punishment thereof.” 1893 Cal. Stat. 12.
18        CPR FOR SKID ROW V. CITY OF LOS ANGELES

interference. Cal. Penal Code § 59 (1905).8 Although § 59

 8
     The amended § 59 stated, in full:

          It is unlawful for any person, directly or indirectly, by
          himself or any other person in his behalf, to make use
          of, or threaten to make use of, any force, violence, or
          restraint, or to inflict or threaten the infliction, by
          himself or through any other person, of any injury,
          damage, harm, or loss, or in any manner to practice
          intimidation upon or against any person, in order to
          induce or compel such person to vote or refrain from
          voting at any election, or to vote or refrain from voting
          for any particular person or persons at any election, or
          on account of such person or persons at any election, or
          on account of such person having voted or refrained
          from voting at any election. And it is unlawful for any
          person, by abduction, duress, or any forcible or
          fraudulent device or contrivance whatever, to impede,
          prevent, or otherwise interfere with the free exercise of
          the elective franchise by any voter; or to compel,
          induce, or prevail upon any voter either to give or
          refrain from giving his vote at any election, or to give
          or refrain from giving his vote for any particular person
          or persons at any election. It is not lawful for any
          employer, in paying his employees the salary or wages
          due them, to inclose their pay in “pay envelopes” upon
          which there is written or printed the name of any
          candidate, or any political mottoes, devices, or
          arguments containing threats, express or implied,
          intended or calculated to influence the political
          opinions or actions of such employees. Nor is it lawful
          for any employer, within ninety days of any election, to
          put up or otherwise exhibit in his factory, workshop, or
          other establishment or place where his workmen or
          employees may be working, any hand-bill or placard
          containing any threat, notice, or information, that in
          case any particular ticket of a political party, or
          organization, or candidate shall be elected, work in his
          place or establishment will lease, in whole or in part, or
        CPR FOR SKID ROW V. CITY OF LOS ANGELES                        19

no longer had anything to do with public meetings, § 403’s
exclusion of § 59 was not modified to reflect the change in
the function of § 59. The amendment of § 59 thus rendered
§ 403’s exclusion of meetings covered by § 59 nonsensical,
as § 59 was concerned not with meetings at all but with
voting interference. This problem was likely due to an error
by the legislature in failing to consider the effect of the
amendment of § 59 on § 403 and failing to amend § 403
accordingly. The error was noticed by Deering editors as
early as 1915, but the legislature did not take any steps to
amend § 403 at that time.9

    In 1939, Penal Code §§ 58 and 59, among others, were
repealed as part of the adoption of California’s first Elections
Code. Section 58 (“Preventing public meetings”) became
Elections Code § 5004, and § 59 (“Force, violence, or
restraint used to influence vote”) was split among Elections


         his place or establishment be closed up, or the salaries
         or wages of his workmen or employees be reduced, or
         other threats, express or implied, intended or calculated
         to influence the political opinions or actions of his
         workmen or employees. This section applies to
         corporations as well as individuals, and any person or
         corporation violating the provisions of this section is
         guilty of a misdemeanor, and any corporation violating
         this section shall forfeit its charter.

Cal. Penal Code § 59 (1905).
 9
   In the 1915 edition of the California Penal Code, although the statutory
text of § 403 still referred to § 59, the Deering’s annotations now pointed
to a Penal Code § 58, which had not previously been associated with § 403
in any way. Similarly, the Deering’s annotations pertaining to § 58, and
not to § 59, referred to § 403. Cal. Penal Code §§ 403, 58, 59 (Deering
1915).
20       CPR FOR SKID ROW V. CITY OF LOS ANGELES

Code §§ 11581, 11582, 11584–86. See Cal. Elec. Code
§§ 11581–82, 11584–86 (Deering Supp. 1939).

    Finally, in 1949, the California Special Crime Study
Commission on Criminal Law and Procedure reported that
“[a] study of the code indicates that the reference to Section
59 of the Penal Code contained in Section 403 should have
been to Section 58 which is now Section 5004 of the
Elections Code,” and recommended amending § 403.
SPECIAL CRIME STUDY COMMISSION, FINAL REPORT ON
CRIMINAL LAW AND PROCEDURE, Recommendation 13, at
23–24 (1949). In accordance with this recommendation,
§ 403 was amended, and its reference to Penal Code § 59 was
replaced with a reference to Elections Code § 5004, the
successor to Penal Code § 58 and predecessor to § 18340.
1949 Cal. Stat. 2119; Cal. Penal Code § 403 (1955). Since
1949, § 403 has not been amended substantively.10

    Thus, § 18340, which is currently exempted from
coverage by § 403, is the successor section to § 58, which
was not the original exemption. The substance of § 59, the
original exemption from § 403, no longer exists in any form
in the California Codes.




  10
     A mysterious legislative comment appeared in 1976, stating that the
Elections Code section (then § 12046, now § 18340) “is needed to prevent
conduct which would prevent a meeting from taking place at all, including
verbal threats, etc. since Penal Code 403 does not deal with verbal
behavior.” Cal. Elec. Code § 29440 (Deering 1977). This comment
contradicts all other indications of the legislative purpose of the exceptions
to § 403 and also contradicts the Kay court’s 1970 interpretation of § 403
as very much covering “verbal behavior,” as is clear in its extended First
Amendment analysis. We therefore give this comment little weight.
       CPR FOR SKID ROW V. CITY OF LOS ANGELES                21

    In the face of this tortuous history of § 403 and its
exceptions, one thing remains clear. The original version of
§ 403 was enacted with the intent to exempt political
meetings from coverage by § 403. This intent was reaffirmed
in 1949, when the legislature, after careful consideration,
chose to exclude from § 403’s coverage a statutory section as
close as possible to the original exception, with the result that
the revised version of § 403 excluded the same meetings as
had the original version of the statute: political and religious
meetings. As to political meetings, however, unlike general
meetings and religious meetings, the legislature established
a higher threshold for unlawful conduct than the original
exception had done. The amended political-meetings statute
made it a misdemeanor to hinder or prevent such meetings by
“threats, intimidations, or unlawful violence,” but not to
“disturb or break up” such meetings by non-violent means.

C. Application of § 403 to CPR’s Activities

    The plain language of the statute and its legislative history
demonstrate that § 403 does not cover political meetings,
including the meeting at issue here. It is a misdemeanor to
disrupt such meetings only under § 18340 and only if the
disruption consists of “threats, intimidations, or unlawful
violence.”

    The “meeting” at issue here involved the consideration of
public questions, namely the conditions on Skid Row, and
involved people within the broad definition of “electors.”
Those invited to participate in the Walk were people whom
the CCEA refers to as “stakeholders” in downtown business.
As discussed below at 29, this conclusion leads us to reverse
the judgment of the district court in part and remand for
further proceedings.
22     CPR FOR SKID ROW V. CITY OF LOS ANGELES

D. The Void-for-Vagueness Challenge Falls Short

    Based on this understanding of the statute, though, we
affirm the portion of the district court’s judgment that
rejected CPR’s facial challenge to § 403 as unconstitutionally
vague. A facial challenge is “the most difficult challenge to
mount successfully.” United States v. Salerno, 481 U.S. 739,
745 (1987).

    As expressed in his concurring opinion, Judge Reinhardt
takes the position that the construction given to § 403 by the
California Supreme Court in Kay, 1 Cal. 3d 930, renders the
statute unconstitutionally vague because the court disregarded
the exception for assemblies covered by Elections Code
§ 18340. In support of his position, he cites to subsequent
decisions by the California Courts of Appeal and federal
courts that also disregarded the exception. In Judge
Reinhardt’s view, the disparity between the plain language of
the statutory exception and the interpretation in Kay that
appears to eliminate the exception in a factual context where
it should apply is too great for citizens to understand what
§ 403 actually covers. We think that conclusion assumes too
much.

    We agree that the text and legislative history of § 403
demonstrate that it does not apply to assemblies of electors of
the type covered in § 18340. We also agree that the kind of
meetings discussed in Kay would appear to qualify as a public
meeting of electors under the Elections Code. But we cannot
assume that the California Supreme Court intended by its
decision in Kay to read the statutory exceptions to § 403 out
of the statute.
       CPR FOR SKID ROW V. CITY OF LOS ANGELES             23

    There is no indication in Kay that either party raised the
question of the applicability of § 403 to political meetings.
California appellate courts are not required to consider or
discuss arguments that were not developed in the briefs.
People v. Stanley, 10 Cal. 4th 764, 793 (1995) (noting that if
a brief does not contain a legal argument with citation of
authorities on the points made, the “‘court may treat it as
waived, and pass it without consideration’” (quoting 9
Witkin, Cal. Procedure, Appeal § 479 (3d ed. 1985)));
Mansell v. Bd. of Admin., 30 Cal. App. 4th 539, 546 (Cal. Ct.
App. 1994) (“[I]t is not [the appellate] court’s function to
serve as . . . backup appellate counsel.”). If neither party
argued the exception applied, the California Supreme Court
would not be required to address the exception in its opinion,
even in a case in which the facts would support its
application.

    Moreover, the Kay court concluded that the conduct of the
defendants did not substantially impair or disturb the public
meeting. Kay concerned an Independence Day celebration in
a public park with a speech by a congressman who was also
a candidate for reelection. 1 Cal. 3d at 935–36. The speech
was interrupted by “rhythmical clapping” by protestors who
supported a consumer boycott of non-union table grapes,
which the congressman had declined to support. Id. The
California Supreme Court applied § 403 and held that the
conduct did not rise to the level required for a misdemeanor.
An argument based on the statutory exception would have led
to exactly the same result. Courts need not deal with all
alternative routes to the same outcome. Any inference based
on the failure of the decision to discuss an alternative route
rests on an unpersuasive foundation.
24       CPR FOR SKID ROW V. CITY OF LOS ANGELES

    The California Courts of Appeal following Kay have not
addressed the interaction between § 403 and § 18340. See
McMahon, 104 Cal. App. 4th at 1286–87; Saraceni, No.
C041085, 2003 WL 21363458. Indeed, in no case—state or
federal, published or unpublished—in which a court has
addressed § 403 did any court construe Penal Code § 403 in
relation to Elections Code § 18340. See id.; Norse, 629 F.3d
at 970, 978; Sanchez, 2011 WL 6951822, at *13. As in Kay,
there is no indication in any of these cases that the exception
to § 403 was raised.11

    Premising a conclusion that § 403 is unconstitutionally
void for vagueness based on an interpretation of that statute
that has never actually been expressed by the California
Supreme Court or by any court is a leap that we are not
prepared to take. We will not attribute that interpretation to
the California Supreme Court based on its silence in Kay. We
affirm the portion of the district court’s decision that
concluded that § 403 is not void for vagueness.

III.     Other Facial Challenges

    CPR also argues that § 403 is an unconstitutional
restriction on speech because it is content based, is not
narrowly tailored, and does not leave open ample alternative


  11
     As it happens, the one Ninth Circuit decision cited in the concurring
opinion, at 40, to illustrate the application of Penal Code § 403 to a
political meeting and judicial disregard of the statutory exception for
activity covered by Elections Code § 18340 is an opinion that both Judge
Reinhardt and Judge Clifton joined, as members of an 11-judge en banc
panel. Norse v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (en
banc). It is safe to infer that neither of us, or any other member of the
panel, intended to cut the exception out of the statute. The subject was not
raised at the time.
       CPR FOR SKID ROW V. CITY OF LOS ANGELES              25

means of communication. The government “may impose
reasonable restrictions on the time, place, or manner of
protected speech, provided the restrictions are justified
without references to the content of the regulated speech, that
they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels
for communication of the information.”              Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936, 945 (9th Cir. 2011) (en banc) (internal
quotation marks and citations omitted).

     We “consider a rule content-based when it establishes a
general ban on speech, but maintains exceptions for speech
on certain subjects.” Glendale Assocs., Ltd. v. N.L.R.B.,
347 F.3d 1145, 1155 (9th Cir. 2003). CPR argues that § 403
is a content-based restriction on speech because, by its terms,
it does not apply to meetings covered by the two exceptions
identified above, for religious worship or for public meetings
of electors to consider public questions.

    The exceptions here, however, distinguish certain types
of meetings, not speech on certain subjects at those meetings.
Neither Penal Code § 302 nor Elections Code § 18340
pertains to speech itself. They pertain to the contexts in
which speech is regulated. The statute is silent with respect
to what subject matter of speech may or may not be spoken
at such meetings. Indeed, the exemptions from § 403 for
religious or electoral meetings are more accurately
differences in the standard for disruptive speech rather than
actual exceptions. For the same reasons, § 403 also does not
prohibit or protect specific messages, as did the flag-burning
statute at issue in United States v. Eichman, 496 U.S. 310
(1990).
26     CPR FOR SKID ROW V. CITY OF LOS ANGELES

    A statute may also be content based if it “would allow or
disallow speech depending on the reaction of the audience.”
Center for Bio-Ethical Reform, Inc. v. Los Angeles Cnty.
Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir. 2008).
“[L]isteners’ reaction to speech is not a content-neutral basis
for regulation.” Id. at 788 (quoting Forsyth Cnty. v.
Nationalist Movement, 505 U.S. 123, 134 (1992)).

    Section 403 does not regulate speech based on audience
reaction. The California Supreme Court explained that
whether a disturbance triggers a § 403 violation depends on
“the actual impact of that misconduct on the course of the
meeting; the question cannot be resolved merely by asking
persons present at the meeting whether they were
‘disturbed.’” Kay, 1 Cal. 3d at 944. We agree with the
district court that § 403 does not regulate the content of
speech.

    A content-neutral time, place, or manner restriction on
speech is narrowly tailored if it “does not burden substantially
more speech than is necessary to achieve a substantial
government interest. . . . [T]he existence of obvious, less
burdensome alternatives is a relevant consideration in
determining whether the ‘fit’ between ends and means is
reasonable.” Berger v. City of Seattle, 569 F.3d 1029, 1041
(9th Cir. 2009) (internal citations, quotation marks, and
modifications omitted). CPR argues that § 403 is not
narrowly tailored because it applies to expressive conduct, no
matter how momentary, and sweeps within its breadth large
amounts of protected speech.

    The government interest at stake in this statute is
“ensuring that some individuals’ unruly assertion of their
rights of free expression does not imperil other citizens’
       CPR FOR SKID ROW V. CITY OF LOS ANGELES              27

rights of free association and discussion.” Kay, 1 Cal. 3d at
941. In short, the statute aims to prevent meetings from being
disrupted. A protestor’s conduct only violates the statute
when it “substantially impair[s] the conduct of the meeting.”
Id. at 943. Further, as Kay emphasized, “the nature of a
meeting necessarily plays a major role” in determining
whether protestor conduct has substantially impaired the
meeting. Id. “The customs and usages at political
conventions may countenance prolonged, raucous, boisterous
demonstrations as an accepted element of the meeting
process; similar behavior would violate the customs and
usages of a church service.” Id. This contextual inquiry into
the “customs and usages” of the meeting along with the
substantial-impairment standard narrowly tailor the statute to
the government’s substantial interest. Contrary to CPR’s
concerns, neither a momentary disruption nor large amounts
of protected speech would fall within the statute’s reach.

    A time, place, or manner restriction on speech must leave
open ample alternatives for communication. Section 403
does. To violate the statute, a protestor must substantially
impair or break up a public meeting. The statute does not
prevent all protests or means of protest. It requires only that
a protest not be so disruptive as to break up or substantially
impair the meeting. There is nothing that prevents CPR from
communicating its message in non-disruptive ways, and CPR
does not allege that it has been precluded from doing so. By
allowing protest that does not substantially impair public
meetings, § 403 leaves open alternative communication
channels.

   We therefore agree with the district court that § 403 is not
unconstitutional on its face.
28     CPR FOR SKID ROW V. CITY OF LOS ANGELES

IV.    As-Applied Challenge

   Although § 403 is constitutional on its face, it does not
properly apply to CPR’s protests. As discussed above at 21,
Elections Code § 18340 governs “electors . . . assembling in
public meetings for the consideration of public questions.”
Cal. Elec. Code § 18340. CPR’s activities fall within this
exception to § 403 because the Walks they have protested
consist of public officials and members of the public who
meet on public sidewalks to learn about the challenges in the
Skid Row neighborhood. By its terms, § 403 does not cover
meetings that are covered by § 18340, so § 403 does not
apply to CPR’s activities.

    In rejecting CPR’s as-applied challenge, the district court
did not discuss that question. Rather, it focused on whether
White was arrested based on the content of his speech. It
concluded that “there can be no serious dispute that Mr.
White was arrested because his conduct substantially
impaired the conduct of the Skid Row Walk and was not
based upon, in any manner whatsoever, the content of his
chant.” That was true, but it does not speak to the threshold
question of whether § 403 applied to that activity in the first
place. Because we conclude that it did not, we reverse that
part of the district court’s decision and remand for further
proceedings, including the consideration of what relief is
appropriate.

V. Conclusion

   We hold that California Penal Code § 403 was
unconstitutionally applied to CPR’s activities. Because
CPR’s activities fall within the exception carved out by
Elections Code § 18340, § 403 does not criminalize CPR’s
       CPR FOR SKID ROW V. CITY OF LOS ANGELES              29

conduct. Therefore, the district court’s order granting
summary judgment in favor of defendants and denying
summary judgment to plaintiffs is reversed. We remand for
further proceedings, including the determination of what
relief, if any, may be appropriate.

   Each party to bear its own costs.

  AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.



REINHARDT, Circuit Judge, concurring in part and
dissenting in part:

    I concur in the majority’s reversal of the district court’s
judgment in favor of the defendant and its holding that § 403
of the Penal Code may not be applied to plaintiffs. I would
reach the latter decision, however, by holding that § 403 (and
§§ 18340 and 302 as well) are unconstitutionally void for
vagueness and not simply as applied in the particular
circumstances. In addition, although I would not decide the
question, I believe the statutory scheme, or at least a part of
it, is likely also unconstitutional as content-based.
Essentially, I believe that the majority’s decision simply does
not go far enough and will lead to unnecessary confusion
regarding the applicability of the various sections of the
antiquated statutory scheme to expressive conduct that
interferes with or disrupts various types of public meetings.
More important, it will leave the citizens of California
without clear guidance as to the exercise of their First
Amendment rights to engage in public protests. That, in my
view, is not an acceptable result.
30     CPR FOR SKID ROW V. CITY OF LOS ANGELES

                              I.

    Penal Code § 403 applies broadly to lawful meetings. It
provides simply that anyone who “willfully disturbs or breaks
up” such a meeting is guilty of a misdemeanor. Cal. Penal
Code § 403. Under that provision a willful disturbance is
enough to support a criminal conviction. Section 403
contains two exceptions, however: meetings referred to in
Elections Code § 18340, and meetings referred to in Penal
Code § 302. Section 403 and its statutory exceptions thus
form an integrated statutory scheme, and no definition of
§ 403 can be derived without also defining these exceptions.

     The first exception, § 18340, governs political meetings,
defined as “public meetings” in which people “assembl[e] . . .
for the consideration of public questions.” Cal. Elections
Code § 18340. This provision is far more protective of
expressive conduct than is § 403. Section 18340 criminalizes
conduct only if it unlawfully hinders meetings through the
use of “threats, intimidations, or unlawful violence.” Id.
Section 302 governs religious meetings, defined as “any
assemblage of people met for religious worship at a tax-
exempt place of worship.” Cal. Penal Code § 302. It
specifically proscribes the use of “profane discourse, rude or
indecent behavior, or . . . any unnecessary noise” to
“intentionally disturb[] or disquiet[]” a religious meeting,
when the conduct is in or near the place of worship. Id.
Because meetings covered by § 18340 (political) and § 302
(religious) are excepted from § 403, and because these
provisions proscribe different levels of conduct than does
§ 403, in order to determine whether § 403 survives a facial
challenge for vagueness it is critical to know what meetings
are covered by that section and what meetings are covered by
its statutory exceptions. Unfortunately, it is not possible to
       CPR FOR SKID ROW V. CITY OF LOS ANGELES              31

determine the answer to that question if we follow the law
that controls our decision-making, including our obligation to
accept the construction of California statutes by the
California courts. Here, § 403, as construed by California’s
Supreme Court and by its Courts of Appeal, is
unconstitutionally vague; the end result of the courts’
decisions is that the statutory scheme as construed fails to
give clear notice of what meetings fall within § 403 and what
meetings are covered by § 18340 or even by § 302. In fact,
the California cases leave the people of that state without any
guidance as to when conduct is unlawful because it merely
willfully disturbs a meeting and what conduct is unlawful
only if committed by means of threats, intimidations, or
unlawful violence. This void is especially harmful to the
public interest as it pertains to expressive conduct that is
subject to the protection of the First Amendment. The failure
to provide notice of what expressive conduct is permitted and
what is prohibited chills First Amendment rights and thus
makes vagueness even more constitutionally unacceptable.

    I agree with the majority’s conclusion that the plain
language of § 403 and its legislative history support the
conclusion that the provision does not cover political
meetings, including the meeting at issue in this case. I
disagree, however, as to the effect of the decisions of
California’s state courts, including its Supreme Court. Those
courts have applied § 403 to the very type of meeting at issue
here. To follow those decisions would lead us to the opposite
result than would the plain language of § 403 and its
legislative history, yet to ignore them is wholly
impermissible. The decisions uniformly apply § 403 to
political meetings and thus, contrary to the express exception
the provision contains, criminalize disruptions of political
32     CPR FOR SKID ROW V. CITY OF LOS ANGELES

meetings by acts that fall far short of “threats, intimidations,
or unlawful violence.” Cal. Elections Code § 18340.

    Unlike the majority, I do not believe that we can simply
disregard the consistent application of a state statute by the
state courts, including its Supreme Court, and by the federal
courts that have followed the state courts’ decisions. Because
we must follow the state courts’ interpretation of the statute,
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494 n.5 (1982), the crux of our statutory
analysis here must be the meaning given to § 403 by the
California courts. As California courts have given § 403 a
fundamentally different application than the statute’s plain
language and legislative history would require, and have
failed consistently to apply the controlling statutory exception
to political protests, I believe that it is not possible for
Californians to know in advance what conduct is prohibited
by § 403 and what is permissible under the far more speech-
protective provisions of § 18340. In short, it is not possible to
determine what conduct involving the disruption of political
meetings is prohibited by which part of the California
statutory scheme and what conduct is permissible under the
statutory scheme as a whole. As a result we have no
alternative but to declare § 403 and its related sections void
for vagueness.

    As to the controlling law, there is one California Supreme
Court case, two Courts of Appeal cases and several federal
cases applying § 403, each of which does so in a manner
directly contrary to that required by the statute’s plain
language and legislative history. Each applies § 403 to
interference with meetings that are undisputably political.
None applies the exception that on its face governs such
meetings. In In re Kay, 1 Cal. 3d 930 (1970), the only
       CPR FOR SKID ROW V. CITY OF LOS ANGELES              33

California Supreme Court decision directly construing § 403,
the Court applied § 403 to a political meeting clearly falling
within the ambit of Elections Code § 18340 and clearly
exempted from § 403 by its express language. Kay concerned
four people convicted under § 403 and sentenced to four
months in jail for protesting a congressman’s speech in a
public park by engaging in “rhythmical clapping” and several
minutes of shouting. Id. at 935–37. The Kay court noted that
it would be “blinking reality not to acknowledge that the
[congressman’s] July 4 speech was part [of] his political
campaign,” and acknowledged that the speech was by a
public figure on a public issue. Id. at 963 n.3 (citation and
internal question marks omitted).

    Recognizing that the application of § 403 to the conduct
in question would be constitutionally overbroad, because it
would criminalize expressive conduct that disturbs “a
meeting only because the content of the expression conflicted
with the views espoused by the meeting’s organizers or
official speakers,” id. at 941, the Kay court narrowed the
statute to comport with the First Amendment, id. at 942. The
court held that under § 403 conduct could be punished only
where the “defendant substantially impaired the conduct of
the meeting by intentionally committing acts in violation of
implicit customs or usages or of explicit rules for governance
of the meeting, of which he knew, or as a reasonable man
should have known.” Id. at 943. Without mentioning the
exclusion of political meetings from § 403, the court then
applied that section and not § 12046 (as § 18340 was then
numbered) to the political meeting at issue, ultimately finding
that the conduct at issue did not rise to the level proscribed
under the court’s narrowed construction of § 403. Id. at
944–45.
34     CPR FOR SKID ROW V. CITY OF LOS ANGELES

    Although intended to bring (what it apparently thought to
be) § 403’s proscription of interference with a political
meeting into conformity with the First Amendment, Kay
provided no guidance as to what types of political meetings
are covered by § 403 and what types, if any, are excluded
from § 403 and covered by § 18340. Nor did it indicate in
any way the relationship between the two parts of the
integrated statutory scheme regulating core political speech.
To the contrary, it simply treated § 403 as applicable to
political meetings. Kay and the cases which followed
it—every California political speech case, as far as I can
tell—thus give rise to a fundamental lack of certitude as to
how and to what extent Californians are free to exercise their
First Amendment rights without fear of criminal punishment
when they engage in protests that disturb political meetings
but do not involve “threats, intimidation, or unlawful
violence”.     Similarly, limiting their exposure to the
“commi[ssion] [of] acts in violation of implicit customs or
usages” as did the Kay court, does nothing to cure that
constitutional defect. Id. at 943.

    The majority concludes that the Kay court’s application
of § 403 to a political meeting and its failure to apply the
statutory exceptions to § 403, does not render the statute
unconstitutionally vague because there is no indication that
either party argued that § 403 did not apply to political
meetings, and because the Kay court was thus not required to
address Elections Code § 18340 (even though it, not § 403,
was the statutory provision applicable to the meeting). I
respectfully disagree with the majority’s conclusion that Kay
does not constitute binding precedent as to the applicability
of § 403, as, it appears, do all state and federal courts that
have dealt with the question of political meetings since Kay.
All have unhesitatingly followed Kay and applied § 403 to
       CPR FOR SKID ROW V. CITY OF LOS ANGELES                 35

political meetings in direct contradiction of the express
provisions of that statute. The majority’s rationale for its
conclusion is that Kay doesn’t expressly hold that § 403
applies to political meetings, so we can simply ignore the
case. No court to date, state or federal has taken that position.
To the contrary, all have followed Kay and applied § 403 not
§ 18340 to interference with the conduct of political
meetings.

                               A.

    Although it is of course true that courts are under no
obligation either to address arguments the parties fail to raise
in their briefs or provide alternative grounds for their
holdings, it is also true that courts must interpret statutes with
reference to the entire statutory scheme and seek to give
meaning to every provision. People v. Pieters, 52 Cal. 3d
894, 899 (1991) (“[W]e do not construe statutes in isolation,
but rather read every statute ‘with reference to the entire
scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness.’” (quoting Clean Air
Constituency v. Cal. State Air Res. Bd., 11 Cal.3d 801, 814
(1974))); Cal. Teachers Ass’n v. Governing Bd. of Rialto
Unified Sch. Dist., 14 Cal. 4th 627, 634 (1997) (“‘In
analyzing statutory language, we seek to give meaning to
every word and phrase in the statute to accomplish a result
consistent with the legislative purpose. . . ’” (quoting Harris
v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1159
(1991))). Thus, canons of statutory construction oblige courts
to consider the entire statute even where the parties fail to
argue one of its relevant provisions. As the United States
Supreme Court has recognized, legislative bodies must “be
able to legislate against a background of clear interpretive
rules, so that [they] may know the effect of the language
36     CPR FOR SKID ROW V. CITY OF LOS ANGELES

[they] adopt[].” Finley v. United States, 490 U.S. 545, 556
(1989).

    Here, the California Supreme Court was not required to
review a set of complex provisions contained in a statutory
scheme set forth in a lengthy section of a voluminous Code.
Section 403 consists of a single sentence that occupies only
two and a half lines. All the court needed to do was to read
that sentence and it would know (as I am sure it did) that
§ 403 did not apply to all meetings, but that on its face it
excluded certain types of gatherings. Sophisticated as that
nationally respected court was and sensitive as it
demonstrated itself to be to the requirements of the First
Amendment, it is inexplicable that the Court would be
unaware that political speech was excluded from the coverage
of § 403 by the second half of that one sentence provision.
Nevertheless the court proceeded to analyze and apply § 403
to conduct that allegedly interfered with the political meeting
in question. To suggest that the California Supreme Court
would revise and limit § 403 in an attempt to bring it into
conformity with the First Amendment without being aware of
the effect of the exclusion contained within the one sentence
it was revising or without being aware that its holding applied
to political meetings is simply not credible.

    Generally, when an appellate court analyzes a statute in
a precedential opinion, it is not simply resolving the parties’
dispute, but is explaining the law in a manner that will bind
future litigants and courts. This is particularly true in a
decision based on constitutional grounds. The majority’s
reading of Kay in a manner that contravenes this rule might
have some credence had the California Supreme Court stated
that its decision was a narrow one applicable only to the case
before it, or given some indication that its construction of
       CPR FOR SKID ROW V. CITY OF LOS ANGELES              37

§ 403 would not be applied if, in a subsequent case, the party
argued that political meetings are excluded from § 403. The
court took neither approach, however. By omitting any
discussion of why a speech by a local congressman to more
than 6,000 people is not a “public meeting[] for the
consideration of public questions,” and thus excluded from
coverage under § 403, and by instead tailoring
(unsuccessfully in my view) § 403 to meet the requirements
of the First Amendment, the Kay court left the ordinary
person with no basis for understanding why and when the
more speech friendly provision of § 18340 would apply, if it
would ever apply at all. Yet, there it is, plain on the face of
the statutory scheme, both in the exclusion from § 403 of
meetings referred to in § 18340 and in the express language
of § 18340 itself. Section 403 does not apply to political
meetings; section 18340 does.

                              B.

    Even were we to accept arguendo the majority’s
unpersuasive explanation that the Kay court found it
unnecessary to discuss Elections Code § 18340 because it
determined the conduct at issue did not violate the lesser
restrictions imposed by Penal Code § 403, the same cannot be
said for the California Courts of Appeal cases applying Kay
to political meetings and affirming violations of § 403, in
reliance on Kay. In McMahon v. Albany Unified Sch. Dist.,
104 Cal. App. 4th 1275 (Cal. Ct. App. 2002), the California
Court of Appeal followed Kay and likewise omitted any
discussion of Elections Code § 18340 in concluding that a
violation of Penal Code § 403 had occurred. The case
concerned the citizen’s arrest of David McMahon at a school
board meeting held in the multipurpose room of an
elementary school, which was also used as the school’s
38     CPR FOR SKID ROW V. CITY OF LOS ANGELES

cafeteria and for an after-school childcare program. Id. at
1280. During the public comment period, McMahon emptied
onto the floor several 13-gallon bags of garbage, that
contained alcohol bottles and drug paraphernalia, in order to
protest littering by local high school students. Id. at 1280–81.
The superintendent then made a citizen’s arrest of McMahon
for violating Penal Code § 403; McMahon was subsequently
issued a citation by the police, but was not charged. Id. at
1281. McMahon sued the superintendent, a board member,
and the school district for false arrest and false imprisonment.
Id. The court denied McMahon’s motion for a directed
verdict, granted a nonsuit as to the board member, and a jury
returned a special verdict in favor of the district and
superintendent. Id. at 1281–82.

     The Court of Appeal affirmed. Id. It determined that the
trial court’s jury instruction on the elements of § 403
conformed with Kay, and that the jury’s conclusion that
McMahon violated § 403 was supported by substantial
evidence. Id. at 1286–87, 1289. The court discussed Kay at
length, upheld the application of § 403 to the meeting in
question, and made no mention of the statutory exceptions for
meetings for the consideration of public questions or why
Elections Code § 18340 did not apply to McMahon.

    The California Court of Appeal similarly relied on Kay in
an unpublished decision, Saraceni v. City of Roseville, No.
C041085, 2003 WL 21363458 (Cal. App. Ct. June 13, 2003).
In Saraceni, the court held that a police officer had probable
cause to arrest the plaintiff at a city council meeting for
violating Penal Code § 403, where the plaintiff attempted to
address the council and city attorney after the public
comment period had ended, and refused repeated requests
from the mayor and council members to take his seat. Id. at
       CPR FOR SKID ROW V. CITY OF LOS ANGELES             39

*5–6. Like the meeting in McMahon, the meeting in
Saraceni was unquestionably one at which people
“assembl[ed] in public meeting[] for the consideration of
public questions.” Yet, like the court in McMahon, the court
in Saraceni citing Kay applied § 403 to a political meeting
without any discussion of Elections Code § 18340.

    Even in the absence of Kay, we would be bound by the
McMahon court’s construction of § 403 short of a persuasive
indication that the California Supreme Court would decide
otherwise. Lawson v. Kolender, 658 F.2d 1362, 1364 n.3 (9th
Cir. 1981), aff’d by Kolender v. Lawson, 461 U.S. 352 (1983)
(noting that the construction placed on a statute by a state’s
intermediate appellate court is regarded as authoritative);
Morales-Garcia v. Holder, 567 F.3d 1058, 1063 n.3 (9th Cir.
2009) (“Where an intermediate appellate state court rests its
considered judgment upon the rule of law which it announces,
that is a datum for ascertaining state law which is not to be
disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would
decide otherwise” (quoting West v. Am. Tel. & Tel. Co.,
311 U.S. 223, 237 (1940))). No persuasive data indicate that
the California Supreme Court would decide McMahon
differently with respect to the application of § 403. All data
are to the contrary: McMahon faithfully follows Kay—the
only relevant decision by the state’s highest court—which
applied § 403 to a political meeting while ignoring Elections
Code § 18340. Moreover, although not binding on this court,
the Court of Appeal’s unpublished decision in Saraceni is
persuasive authority further illustrating the way in which
California courts apply § 403. Employers Ins. of Wausau v.
Granite State Ins. Co., 330 F.3d 1214, 1220 (9th Cir. 2003)
(“[W]e may consider unpublished state decisions, even
though such opinions have no precedential value.” (quoting
40     CPR FOR SKID ROW V. CITY OF LOS ANGELES

Nunez v. City of San Diego, 114 F.3d 935, 943 n.4 (9th Cir.
1997))).

    Federal courts have likewise applied Penal Code § 403 to
political meetings in accord with Kay, and ignored the
statutory exception in Elections Code § 18340, dismissing
§ 1983 claims for false imprisonment and false arrest for
arrests at political meetings on the ground that the arresting
officers had probable cause to arrest the plaintiffs based on
violations of Penal Code § 403. See Norse v. City of Santa
Cruz, 629 F.3d 966, 970, 978 (9th Cir. 2010) (en banc)
(finding probable cause existed to arrest plaintiff at city
council meetings for giving a silent Nazi salute and
whispering to another meeting attendee); Sanchez v. City of
Los Angeles, No. CV 07–5132 GHK (JC), 2011 WL 6951822
(C.D. Cal. Oct. 31, 2011) (citing Kay and finding probable
cause existed to arrest plaintiff for attending a city council
meeting with a pillow case attached to a shirt that read “CRA
Destroys Communities”).

    To what then does § 18340 apply? To what type of
meetings Californians might want to protest does § 403 apply,
and what type of political and religious meetings are excluded
from that provision? The California and federal cases
construing § 403 give us no help with these questions. More
important, they leave “ordinary people” unable to
“understand what conduct is prohibited.” Kolender, 461 U.S.
at 357. Is it a violation of the statutory scheme simply to
willfully disturb a political meeting by “committing acts in
violation of implicit customs or usages,” as provided by § 403
or is it an offense to disrupt such a meeting only by “threats,
intimidations, or unlawful violence” as § 18340 provides?
And do some political meetings fall in one category and some
       CPR FOR SKID ROW V. CITY OF LOS ANGELES               41

in the other? And, if so, how does anyone tell which fall
where?

     Although I agree with the majority that the plain language
and legislative history of Penal Code § 403 suggest that the
statute does not properly apply to White’s activity, I conclude
that Kay, and particularly McMahon and Saraceni, limit our
ability to apply a plain language reading of the statute so as
to find that White’s conduct falls outside the conduct
proscribed by Penal Code § 403. Rather, I find that Kay and
Kay’s progeny have left the statutory scheme comprehended
by § 403 and its express exceptions without any means of
rational construction, and the people of California without
any means of determining how and when the various sections
apply. In short, because Californians are not adequately
informed of how or in what manner they must comport
themselves when engaged in protests regarding political
gatherings (such as a political party’s national convention) or,
critically, under what circumstances they face criminal
punishment for engaging in such First Amendment activity,
there is no alternative but to find that § 403 and its related
sections are unconstitutionally vague. Kolender, 461 U.S. at
357.

                              II.

     Although I do not find it necessary to reach the issue, I
strongly question the majority’s determination that the
statutory scheme is not content-based. Penal Code § 403 and
its statutory exceptions impose punishment on different forms
of expressive conduct on the basis of the subject matter of the
meeting being protested. This is a form of protection for
more favored or less favored speech which cannot be done
indirectly any more than it could be directly. Clairmont v.
42     CPR FOR SKID ROW V. CITY OF LOS ANGELES

Sound Mental Health, 632 F.3d 1091, 1100 (9th Cir. 2011)
(“Where the government may not prohibit certain speech, it
also may not [indirectly suppress that speech] in order to
‘produce a result which [it] could not command directly.’”
(quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972))
(alteration in original)). Moreover, the majority ignores the
significant correlation between the subject matter of the
meeting being protested and the subject matter of the speech
likely to be used to disrupt it. For example, as the foregoing
discussion of the caselaw illustrates, speech used to disrupt
political meetings is, by and large, political speech. In
addition the type of speech that is regulated or banned when
interfering with a religious issue is involved is speech that is
“profane discourse, rude or indecent behavior, . . . .” Not
only is the type of speech regulated on the basis of the subject
of the meeting but so is the manner in which that speech is
delivered. Because I need not resolve this question I will end
the analysis by saying simply that whatever one might say
about two of the three sections under discussion here, the
section of the statutory scheme governing “profane discourse,
[and] rude or indecent behavior” seems to me to be clearly
unconstitutional either because the proscription of those
forms of speech are content-based, because the provision is
void for vagueness, or because it otherwise violates the
fundamental principles of the First Amendment.

                             ***

    The difference between my position and the majority’s
does not simply reflect an intellectual or academic
disagreement about judicial methodology. The case before us
has important practical ramifications. California is a highly
active political state with numerous political parties and
volunteer political groups many of which regularly hold
       CPR FOR SKID ROW V. CITY OF LOS ANGELES                43

political meetings, some of which are the object of fervent
demonstrations or protests. Equally, if not more important,
California has on a number of occasions, including six in the
period between 1956 and 2000, been the site of national
conventions of the two major political parties. Some of these
conventions have also been marked by major political
protests or demonstrations, not all of which have been
entirely peaceful. In view of the failure of the California
courts to treat the question before us with the careful
constitutional attention it deserves, it would be nice if our
court could get the answer right. I am afraid that my
colleagues in the majority fail to do so.

                             ***

    The holding that I believe we are required to reach—that
§ 403 and its related provisions are void for vagueness—
would not only be more respectful of the California courts
than the majority’s ruling but would better serve the people
of that state. If the State of California were to review the
three code sections that form the integrated statutory
scheme—the general provision, Penal Code § 403, the
political meetings provision, Elections Code § 18340, and the
religious meetings provision, Penal Code § 302—and the
checkered history of those sections, it might find that it
wishes not merely to amend its laws to bring them into
conformity with the Constitution, but also to consider how
best to update the antiquated provisions that have persisted
since they were originally drafted in the nineteenth century.
“Rewriting the statute[, however,] is a job for the [state]
legislature, if it is so inclined, and not for this court.” Valle
del Sol, Inc., 732 F.3d at 1021. Thus, I can only suggest to
the Legislature that it might be well-advised to reform the
44    CPR FOR SKID ROW V. CITY OF LOS ANGELES

statutory scheme rather than to allow the continuing
enforcement of clearly unconstitutional laws.
