(CN) - Sales pitches from vendors along Los Angeles' famed Venice Beach boardwalk are not protected by the First Amendment, the 9th Circuit ruled Tuesday, finding that a city ordinance properly limits the expression of the hawkers, performers and artists who crowd the colorful walkway.
After being arrested for illegal vending, Michael Hunt and Matthew Dowd challenged the city's ordinances requiring Venice Beach peddlers to hold a "public expression participant permit" and to confine their sales to "merchandise constituting, carrying or making a religious, political, philosophical or ideological message or statement which is inextricably intertwined with the merchandise," according to the ruling.
Hunt told passers-by that homemade shea butter he sold on the boardwalk had healing properties, and Dowd sold homemade incense and incense holders engraved with various religious and cultural symbols.
U.S. District Judge Dean Pregerson found that the city's 2004 incarnation of the ordinance was unconstitutionally vague, but that a 2006 version clearly spelled out what a legal vendor could and could not sell on the boardwalk.
The judge ruled in the city's favor on the challenge to the 2006 ordinance, finding that Hunt and Dowd had failed to show that they were engaged in the kind of speech that it protected.
A three-judge appellate panel in Pasadena agreed on Tuesday.
"Hunt and Dowd could easily sell their wares without reference to any religious, philosophical, and/or ideological element, and they could also express any noncommercial message without selling these wares," U.S. District Judge J. Michael Seabright wrote for the 9th Circuit. Seabright was sitting on the panel by designation from the District Court of Hawaii. "Considering all of the evidence, there is simply no meaningful nexus between the products sold (the commercial speech) and the information provided (the noncommercial speech) that would support a determination that the two are inextricably intertwined." (Parentheses in original.)
The panel found that the 2006 ordinance clearly bans the sale of products that have a "common and dominant non-expressive purpose," such as "housewares, appliances, articles of clothing, sunglasses, auto parts, oils, incense, perfume, lotions, candles, jewelry, toys, and stuffed animals," according to the ordinance as quoted in the ruling.
Seabright added that the plaintiffs, even with their claims of the healing power and religious significance of their products, are "simply explaining the use and meaning of their products in an attempt to convince passers-by to purchase them."
"Plaintiffs' products on their own do not have any inherently communicative elements that make their sale constitute expressive activity, and nothing prevents plaintiffs from espousing their beliefs without selling these products," he wrote. "To accept that plaintiffs' incorporation of spiritual elements into their sales pitch and products transforms their proposal of a commercial transaction into fully protected speech would recast a broad range of vendors' sales pitches as protected speech. Viewing their conduct as a whole, however, confirms that the focus of plaintiffs' speech is to sell their products as opposed to communicate a particular message to the public."
The panel upheld the District Court's rulings on the ordinances, but remanded the case because the court failed to address the plaintiffs' challenge to a separate ordinance that prohibits various activities in city-owned parks and property controlled by the Harbor Department.
The panel also ruled that the city had failed to properly appeal a jury's award of $264,286 in attorney's fees to Hunt.
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