                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 04 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STEVE KLEIN; HOWARD PUTNAM;                      No. 09-56430
GLEN BIONDI,
                                                 D.C. No. 8:08-cv-01369-CJC-
              Plaintiffs - Appellants,           MLG

       v.
                                                 MEMORANDUM *
CITY OF LAGUNA BEACH,

              Defendant - Appellee.

                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                      Argued and Submitted February 1, 2010
                               Pasadena, California

Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.

      Steve Klein, Howard Putnam and Glen Biondi (collectively “Klein”) appeal

the denial of their motion for a preliminary injunction barring enforcement of the

City of Laguna Beach’s amplified sound ordinance. We vacate and remand.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review denial of a preliminary injunction for abuse of discretion. See,

e.g., Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). “A

plaintiff seeking a preliminary injunction must establish that he is likely to succeed

on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129

S. Ct. 365, 374 (2008). The same standard applies regardless of whether the

movant seeks to maintain the status quo or to halt an ongoing deprivation of rights.

See Textile Unlimited, Inc. v. A..BMH & Co., 240 F.3d 781, 786 (9th Cir. 2001).

Sound amplification is protected by the First Amendment. Saia v. New York, 334

U.S. 558, 561 (1948). Therefore, whereas Klein has “the general burden of

establishing the elements necessary to obtain injunctive relief, the City has the

burden of justifying the restriction on speech.” Klein v. City of San Clemente, 584

F.3d 1196, 1201 (9th Cir. 2009).

                                            I.




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      The district court erred in finding that Klein’s overbreadth argument was

unlikely to succeed on the merits.1 The amplified speech ordinance is a restriction

on the time, place and manner of speech, so under the First Amendment it must be

“‘justified without reference to the content of the regulated speech,’” “‘narrowly

tailored to serve a significant governmental interest’” and must “‘leave open ample

alternative channels for communication of the information.’” Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative

Non-Violence, 468 U.S. 288, 293 (1984)); see also Klein, 584 F.3d at 1200-01

(same standard under California Constitution). The ordinance is content-neutral on

its face. Klein does not challenge the significance of the City’s interests in peace

and tranquility, maintenance of public safety, and protecting individuals from

unwanted speech. The ordinance also provides ample alternative channels because

Klein retains “the right to conduct [some] desired activity at some point within the




      1
         Klein has challenged the ordinance under both the federal and California
constitutions. Because “federal courts should not decide federal constitutional
issues when alternative grounds yielding the same relief are available,” Kuba v. 1-
A Agric. Ass’n, 387 F.3d 850, 856 (9th Cir. 2004) (citing Carreras v. City of
Anaheim, 768 F.2d 1039, 1042 (9th Cir. 1985)), we decide this case under the
California constitution. However, because “California’s ‘formulation of the time,
place[] and manner test was fashioned from a long line of United States Supreme
Court cases,’” we “apply federal time, place and manner standards.” Kuba, 387
F.3d at 857-58.

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forum,” even if alternatives would be less effective. Heffron v. Int’l Soc’y for

Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981).

      Laguna Beach, however, failed to present evidence that the amplified sound

ordinance is narrowly tailored to its interests. Likelihood of success on the merits

must be based on admissible evidence in the record, rather than surmise or

speculation concerning what evidence could be produced at trial. The evidence

before the district court did not support the court’s findings, and the district court’s

characterization of the City’s briefs as “uncontested evidence” was erroneous.

Arguments are not evidence. See, e.g., Furman v. Wood, 190 F.3d 1002, 1006 (9th

Cir. 1999).

      First, as to Laguna Beach High School, there was no evidence to support a

blanket prohibition on the use of a bullhorn within 100 yards of the school 30

minutes before or after the dismissal bell. Government may restrict expression in

or around a school “only if the forbidden conduct ‘materially disrupts classwork or

involves substantial disorder or invasion of the rights of others,’” Grayned v. City

of Rockford, 408 U.S. 104, 118 (1972) (quoting Tinker v. Des Moines Ind. Cmty.

Sch. Dist, 393 U.S. 503, 513 (1969)). The City argues that students in California

are subject to compulsory attendance laws and they are therefore “practically

helpless to escape . . . interference with [their privacy] . . . regardless of whether


                                            4
[they are] sitting in a classroom during regular hours of instruction, participating in

after-school programs or walking to a bus.” But the City presented no evidence as

to how after school activities would actually be disrupted by Klein’s proposed

speech. Municipalities may protect the privacy of a truly “captive audience,” but

only students who must remain in the school for extracurricular activities are even

arguably captive, as those walking to a car or a bus may simply continue on their

way. See Berger v. City of Seattle, 569 F.3d 1029, 1054-55 (9th Cir. 2009) (en

banc); cf. Frisby v. Schultz, 487 U.S. 474, 487 (1988). The same lack of evidence

undermines Laguna Beach’s argument concerning student privacy.




      Traffic safety may also justify limitations on speech, see Seattle Affiliate of

the Oct. 22nd Coal. to Stop Police Brutality, Repression & the Criminalization of a

Generation v. City of Seattle, 550 F.3d 788, 807 (9th Cir. 2008), but again the City

has not provided evidence that the full breadth of the ordinance is necessary to

protect students. Although we understand that traffic and pedestrian safety is an

important school interest, the City has the burden to prove that a blanket 100-yard

perimeter is narrowly tied to that legitimate interest. See Kuba v. 1-A Agric. Ass’n,

387 F.3d 850, 859-60 (9th Cir. 2004) (“[M]erely invoking interests [potentially

harmed by a speaker] is insufficient. The government must also show that the


                                           5
proposed communicative activity endangers those interests.” (internal citations

omitted)). There is no evidence of a “substantial consensus,” Burson v. Freeman,

504 U.S. 191, 211 (1992), that a uniform protective zone around a school building

is necessary to protect students and drivers from distraction. Indeed, any “common

sense” argument that use of amplification within 100 yards of schools would

generate a crowd that might pose a harmful distraction is undercut by the City’s

insistence that Klein could stand just off school grounds, speak in a loud voice,

hand out leaflets and display graphic signs.

      Second, there was similarly no evidence that use of a bullhorn within 100

yards of City Hall would significantly disrupt or impede government activity. Cf.

White v. City of Norwalk, 900 F.2d 1421, 1424-25 (9th Cir. 1990). Laguna Beach

failed to offer evidence that any amplified sound would significantly exceed the

ambient noise in the commercial district in which City Hall is located or would

penetrate City Hall from a sidewalk 15 to 20 yards from the building. Nor did it

show that barring use of amplified sound before or after City Hall is in use is

narrowly tailored to a significant government interest.

      Third, there was no evidence to support the district court’s finding that a

blanket prohibition on amplified sound after 5 p.m. is narrowly tailored to a

significant government interest in public tranquility, particularly in light of the


                                           6
significant protections for speech in a public forum. See, e.g., Erznoznik v. City of

Jacksonville, 422 U.S. 205, 210 (1975). For instance, there was no evidence that

residential and commercial areas are so interwoven that use of amplified sound in

any area would necessarily disturb evening privacy in the home. The City’s use of

32 zoning classifications and four classifications in its noise ordinance is

significant evidence to the contrary. Nor are individuals who are seated while

eating or drinking a captive audience for First Amendment purposes. See Berger,

569 F.3d at 1053-55. Klein’s unrebutted submissions concerning ambient noise

levels downtown, the general noise ordinance’s use of a 9 p.m. transition time and

Laguna Beach’s continued use of amplified sound at city-sponsored events

undermine the City’s narrow tailoring arguments.

                                          II.

      The district court also erred in finding that the remaining preliminary

injunction requirements favored the City. If the amplified sound ordinance is

overbroad, then Klein continues to suffer an irreparable loss of First Amendment

freedoms. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.); Klein, 584

F.3d at 1208. The balance of equities thus tips in Klein’s favor, see Klein, 584

F.3d at 1208, and the public has a fundamental interest in the protection of all




                                           7
people’s constitutional rights, see Sammartano v. First Judicial Dist. Ct., 303 F.3d

959, 973 (9th Cir. 2002).

      Laguna Beach also failed to establish through admissible evidence that it

would endure hardship if challenged provisions of the amplified sound ordinance

were enjoined. Even if the amplified sound ordinance had been preliminarily

enjoined, the City’s general noise ordinance would have remained in effect,

prohibiting excessive and disruptive sound of all kinds (including amplified

sound). See Laguna Beach, Cal., Code §§ 7.25.040, 7.25.060. We recognize that

the balance of hardships inquiry is complicated by uncertainty concerning the

scope of Klein’s challenge to the amplified sound ordinance. See infra, Section IV.

He argues that the ordinance is overbroad, a facial attack under the First

Amendment. See, e.g., Santa Monica Food Not Bombs v. City of Santa Monica,

450 F.3d 1022, 1034 (9th Cir. 2006). At oral argument, however, Klein stated that

the scope of the injunction could be determined at the discretion of the district

court. An injunction against all enforcement of an ordinance typically imposes far

greater hardship than an injunction forbidding only application to those who have

challenged the law. However, in the absence of any evidence concerning the

hardship that an injunction would cause, the district court’s finding was error

regardless of the scope of relief Klein seeks.


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                                           III.

      The district court also erred in finding on the limited record before it that

Klein was not likely to prove that the 5 p.m. restriction was content based as

applied, given Laguna Beach’s permitted use of amplified sound after 5 p.m. for

City-sponsored events. In the absence of guiding standards, municipalities may

not permit some government-sponsored speech designated as beneficial to the

general welfare while barring other speech. See Forsyth County, Ga. v. Nationalist

Movement, 505 U.S. 123, 130 (1992); Cox v. Louisiana, 379 U.S. 536, 556-57

(1965); Santa Monica Food Not Bombs, 450 F.3d at 1037. On the other hand,

limited exemptions from speech restrictions for certain institutional speakers may

not constitute content discrimination when the exemption serves purposes

unrelated to content and does not reflect disfavor against particular speakers. See

G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1077 (9th Cir. 2006)

(citing Ward, 491 U.S. at 791). However, the City submitted no evidence of such a

content-neutral policy to the district court.

                                           IV.

      “Facial challenges are generally disfavored . . . .” Seattle Affiliate, 550 F.3d

at 794 (9th Cir. 2008). We are uncertain whether Klein challenges the Laguna

Beach amplified sound ordinance as facially overbroad or merely as insufficiently


                                            9
tailored as applied to his particular case, and Klein appears no more sure than we

are. See supra, Section II. Accordingly, we decline to direct the district court to

enter an injunction based on the current record, lest the injunction sweep more

broadly than necessary. We vacate and remand on an open record for proceedings

consistent with this disposition. The panel will retain jurisdiction over this case.

      VACATED and REMANDED.




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