                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 11 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
FRIEDERICH KOENIG,                               No.   14-56608

              Plaintiff-Appellant,               D.C. No. 5:14-cv-01310-R-SH

 v.
                                                 MEMORANDUM*
TOWN OF YUCCA VALLEY and
SHANE STUECKLE, in his official
capacity as acting City Manager and
Deputy Manager of the Town of Yucca
Valley,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted August 2, 2016
                               Pasadena, California

Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.
      Friederich Koenig (“Koenig”) appeals the district court’s grant of a motion

to dismiss his claim that the Town of Yucca Valley (“Town”) violated his First

Amendment rights.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. First, we find that Koenig has not adequately alleged that the Town has, in

fact, restricted what he may say. Nothing in the complaint or record suggests that

Koenig was prevented from presenting his materials directly to the Planning

Commission, and indeed, the complaint and record reflect that Koenig presented

his filing in full to the Town Council, the body charged with the final decision on

permit applications. Moreover, Koenig not only submitted his documents to the

Town Council, but the judicially noticed meeting minutes in the record show that

he in fact spoke in person at both the Commission and the Council hearings. Given

these facts, we agree with the district court’s conclusion that the Town did not

prevent or restrain Koenig’s free speech.

      2. We additionally reject Koenig’s contention that by including public

comments in the staff report, the Town transformed the document into a limited

public forum. Neither our First Amendment precedent nor the text of California’s

Brown Act supports Koenig’s claims.

      When the government incorporates multiple speakers’ messages into a larger

compilation, it does not necessarily create a public forum. See, e.g., Pleasant

Grove City v. Summum, 555 U.S. 460, 478-81 (2009) (holding that by opening a

park to certain privately donated monuments, the government did not render the

space a public forum). The “government does not create a public forum by inaction


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or by permitting limited discourse, but only by intentionally opening a

nontraditional public forum for public discourse.” Hopper v. City of Pasco, 241

F.3d 1067, 1075 (9th Cir. 2001) (quoting Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 802 (1985)). Here, the purpose of the staff report was not

to express the full range of public opinion or to provide a space for public debate,

but instead to convey a specific recommendation from the Town staff to the

Planning Commission. As we have previously held, “[s]imply because the

government opens its mouth to speak does not give every outside individual or

group a First Amendment right to play ventriloquist.” Downs v. L.A. Unified Sch.

Dist., 228 F.3d 1003, 1013 (9th Cir. 2000). The decision by the Town staff to

support its analysis by attaching certain public submissions in full while failing to

include the entirety of others presents no First Amendment quandary.

      Koenig’s contention that the Brown Act gives substance to his First

Amendment claims similarly falls short. The California statute in relevant part

provides that: “[e]very agenda for regular meetings shall provide an opportunity for

members of the public to directly address the legislative body on any item of

interest to the public, before or during the legislative body’s consideration of the

item[.]” Cal. Gov’t Code § 54954.3(a). Here, Koenig was clearly provided the

opportunity to address the Planning Commission and the Town Council during their


                                           3
respective meetings. The Brown Act does not guarantee Koenig any further

communication with the Commission, and certainly does not require that the Town

include his submissions in the pre-hearing staff report.

       3. Finally, to the extent that the staff report conveys the Town’s internal

recommendation to its Planning Commission, it is government speech and the

“First Amendment strictures that attend the various types of government-

established forums do not apply.” Walker v. Tex. Div., Sons of Confederate

Veterans, 135 S. Ct. 2239, 2250 (2015). We have noted that when the government

speaks, “the First Amendment does not preclude the government from exercising

editorial control over its own medium of expression.” Downs, 228 F.3d at 1013

(citation and internal quotation marks omitted). The report was prepared by town

staff members, whose names appeared on the “from” line of the document, and it

conveyed the staff’s own analysis and viewpoint to the Commission. An onlooker

would reasonably appreciate the identity of the speakers to be the government, and

would understand that the government “has ‘effectively controlled’ the messages . .

. by exercising ‘final approval authority’ over [them].” Walker, 135 S. Ct. at 2249

(quoting Summum, 555 U.S. at 473). Thus, we agree with the district court that it

was “clearly within the Town staff’s prerogative to determine what went in to this

report.”


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The decision of the district court is therefore AFFIRMED.




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