Southern Oregon Barter Fair v. Jackson County , 401 F.3d 1124 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUTHERN OREGON BARTER FAIR, 
Plaintiff-Appellant,
v.
JACKSON COUNTY, OREGON; JACKSON
COUNTY BOARD OF COMMISSIONERS;
JACKSON COUNTY SHERIFF’S No. 02-35560
DEPARTMENT; RIC HOLT; JACK
WALKER; SUE KUPILLAS; ROBERT  D.C. No.
CV-96-03067-CO
KENNEDY, ORDER
Defendants,
and
STATE OF OREGON,
Defendant-intervenor-
Appellee.

Filed March 24, 2005
Before: Arthur L. Alarcón, Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Order;
Dissent by Judge Berzon
ORDER
Judges Rawlinson and Bybee have voted to deny the peti-
tion for rehearing en banc and Judge Alarcón so recommends.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
3579
3580 SOUTHERN OREGON BARTER v. OREGON
ter en banc, and the matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.
The petition for panel rehearing en banc, filed July 21,
2004, is DENIED.
BERZON, Circuit Judge, with whom PREGERSON,
REINHARDT, KOZINSKI, WARDLAW, W. FLETCHER,
and PAEZ, Circuit Judges, join, dissenting from denial of
rehearing en banc:
I respectfully dissent from the order denying rehearing en
banc. The panel holds that a statute governing the issuance of
permits for the conduct of events involving First Amendment-
protected activity need not contain any deadline by which the
permitting authorities will decide whether or not the permit
will be granted. The result — as the facts underlying this case
demonstrate — is to accord governmental authorities unbri-
dled discretion, through official footdragging, effectively to
veto the holding of an event protected by the First Amend-
ment. The panel’s decision is in square conflict with the very
Supreme Court precedent upon which it relies, and will permit
administrators to impede parties seeking to engage in First
Amendment-protected activity on private property. As the
case is both an important one and one in which the panel has
seriously misread Supreme Court law, we should have heard
it en banc.
1. My central quarrel with the panel’s decision is its fun-
damental misreading of Thomas v. Chicago Park District, 534
U.S. 316 (2002). The panel rests on Thomas as the pillar of
its reasoning. S. Or. Barter Fair v. Jackson County, 372 F.3d
1128, 1137-39 (9th Cir. 2004). In fact, Thomas embraced two
holdings, not one: The first, upon which the panel relies, is
that the specific set of prophylactic protections created in
SOUTHERN OREGON BARTER v. OREGON 3581
Freedman v. Maryland, 380 U.S. 51 (1965),1 for content-
based censorship schemes does not apply to content-neutral
permitting schemes. Thomas, 534 U.S. at 322-23. The second,
construed by the panel as not applying to time-limits issues,
is that content-neutral schemes must “contain adequate stan-
dards to guide the official’s decision and render it subject to
effective judicial review,” so as to avoid their application “in
such a manner as to stifle free expression.” Id. at 323. This
case concerns only the second holding. The panel’s decision
mangles its application.
In Thomas, the plaintiff requested “that the park district
should in every case in which it denies a permit be required
to seek judicial review of its own action.” Thomas v. Chi.
Park Dist., 227 F.3d 921, 926 (7th Cir. 2000) (emphasis
added), aff’d, 534 U.S. 316. The Court ruled that although
such a requirement does apply when the government seeks to
ban speech on the basis that it comes within the exceedingly
narrow set of circumstances in which prior restraints on
speech based on content are permitted, no such special pro-
phylactic rule applies to administrative decisions regarding
the issuance of permits under otherwise valid schemes that do
not take into account the content of any intended speech.
Thomas, 534 U.S. at 323.
Here, the question that deserves en banc consideration does
not concern judicial review,2 but the timeliness of an initial
administrative decision on a permit application for speech-
1
In the context of content-based censorship schemes, the Freedman set
of protections requires that:
(1) any restraint prior to judicial review can be imposed only for
a specified brief period during which the status quo must be
maintained; (2) expeditious judicial review of that decision must
be available; and (3) the censor must bear the burden of going to
court to suppress the speech and must bear the burden of proof
once in court.
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990) (plurality opin-
ion) (citing Freedman, 380 U.S. at 58-60).
2
The panel also rejected the contention that the Oregon Mass Gathering
Act is invalid because it lacks a provision for prompt judicial review of
permit application denials. S. Or. Barter Fair, 372 F.3d at 1138. I have no
quarrel with this holding.
3582 SOUTHERN OREGON BARTER v. OREGON
related activity. The Oregon Mass Gathering Act (“OMGA”),
OR. REV. STAT. §§ 433.735 et seq., requires that citizens plan-
ning large events on private property must demonstrate in
their application for a permit the ability to comply with a
complex set of logistical requirements. Complying with those
requirements can involve significant advance planning, pur-
chasing, hiring, and installment of equipment. Yet, the
OMGA does not provide for any time limit within which the
permitting authorities must respond to a permit request. In the
absence of any such limitation, the permitting officials have
broad discretion to determine the time interval left to plain-
tiffs to plan their event at the requested site or, if the permit
is denied, make alternate plans. Answering the question
whether such an open-ended statute governing speech activity
is permissible requires application of Thomas’s second hold-
ing: whether the OMGA “contain[s] adequate standards to
guides the official’s discretion and render it subject to effec-
tive judicial review.” Id.
Without careful attention, it is easy to read the Thomas and
Southern Oregon Barter Fair requests as one and the same:
for a time limit on review of submitted applications. The
panel fell prey to this mistake, seriously misunderstanding the
difference between Thomas’s two, distinct holdings. See S.
Or. Barter Fair, 372 F.3d at 1138 (“The Act need not include
either a deadline for consideration by the governing body or
a provision for prompt judicial review. See Thomas, 534 U.S.
at 322-23.” (emphasis added)).
Thomas did not decide that a content-neutral time place,
and manner regulation need not include any deadline for
administrative review; the ordinance in Thomas, indeed, had
such a deadline — twenty-eight days. See 534 U.S. at 318.
Instead, the Court decided only that two Freedman require-
ments — a deadline for judicial review of a censor’s decision,
and the requirement that the government must initiate litiga-
tion — do not apply to content-neutral schemes. See id. at 321
(“Petitioners contend that the Park District, like the Board of
SOUTHERN OREGON BARTER v. OREGON 3583
Censors in Freedman, must initiate litigation every time it
denies a permit and that the ordinance must specify a deadline
for judicial review of a challenge to a permit denial. We reject
those contentions.”). Furthermore, in deciding whether the
Chicago Park District regulatory scheme contained “adequate
standards to guide [an] official’s discretion and render it sub-
ject to effective judicial review,” id. at 323, the Court specifi-
cally pointed to the deadline for administrative review —
mandating that “the Park District must process applications
within 28 days,” id. at 324 — as among the reasons why the
Chicago Park District’s scheme does not give “the licensing
official . . . unduly broad discretion in determining whether to
grant or deny a permit, [creating] a risk that he will favor or
disfavor speech based on its content.” Id. at 323.
2. That the OMGA includes onerous and time-consuming
requirements3 for sponsors of large-scale events, but does not
contain a deadline for administrative review, creates the very
“risk that [a licensing official] will favor or disfavor speech
based on its content,” id., that Thomas posits for imprecise
statutory and regulatory permitting schemes. In particular, the
OMGA allows administrators to sit on applications until the
time before an event is so limited that an applicant will be
unable to meet the significant statutory requirements for fire
protection, water supply, and so on.
In this case, that risk was well illustrated by the processing
of the Fair’s OMGA application for its 1996 event. The Fair
first requested an application in January 1996. The defendants
did not immediately provide an application, explaining that
they were in the process of drafting a new ordinance that
would require a new application. In April 1996, defendants
3
Rules issued by Oregon’s Department of Human Services in accor-
dance with the OMGA demand a permit applicant to meet standards gov-
erning water supply, drainage, sewerage facilities, refuse storage and
disposal, food and sanitary food service, fire protection, security person-
nel, and traffic. See Or. Admin. R. 333-039-0005 et seq.
3584 SOUTHERN OREGON BARTER v. OREGON
gave the Fair an application that was identical to the one they
had provided the year before. Plaintiff immediately submitted
an application, but the defendants did not schedule a hearing
on the application until July 22, 1996, more than three months
after the Fair submitted the permit and more than five months
after the Fair had first applied for a permit application. At the
July 22 hearing, one defendant-commissioner, expressing his
personal disapproval of the lifestyle, beliefs, and practices of
the people who would attend the proposed Fair, argued that
the Fair’s proposed event had no merit and should not be
allowed to proceed. Defendants ultimately reached no deci-
sion on the application at that hearing, and rescheduled the
hearing for more than one month later on August 27, 1996.
Finally, more than eight months after the Fair first requested
an application, defendants approved the Fair’s application on
August 29, 1996.
As the panel noted, “the uncertainty inherent in the 1996
application process was one of the Fair’s primary reasons for
bringing suit.” S. Or. Barter Fair, 372 F.3d at 1138. This
background obviously provided a strong basis for the Fair’s
as-applied challenge to the OMGA, which it ultimately won,
following a jury trial. More importantly, however, this history
demonstrates well that the OMGA’s lack of a deadline for
administrative review facilitates content-based discrimination.
The potential for abuse is precisely why the line of cases cul-
minating in Thomas requires that a time, place, and manner
restriction contain adequate standards to guide an official’s
decision and render it subject to effective judicial review.
The availability of injunctive relief, mandamus, or damages
under 42 U.S.C. § 1983 is not a substitute for specificity in
the statute itself. A central premise of Thomas and its pre-
decessors is that case-by-case adjudication is not a substitute
for “ ‘narrowly drawn, reasonable and definite standards,’ ”
Thomas, 534 U.S. at 324 (quoting Forsyth County v. Nation-
alist Movement, 505 U.S. 123, 133 (1992)), that guide a licen-
sor’s determination. Post-hoc relief is not a fully adequate
SOUTHERN OREGON BARTER v. OREGON 3585
equivalent of the right to speak when and where one chooses
to do so. And obtaining injunctive or mandamus relief without
clear statutory standards requires proof of illicit motive, diffi-
cult under any circumstances and particularly difficult when
time is short and full development of the facts through discov-
ery unlikely.
In short, relegating citizens applying for permits for
speech-related activity to as-applied challenges is decidedly
not the law. Instead, the standards governing the issuance of
such permits — including, as Thomas indicates, standards of
timeliness — must be spelled out in the ordinance itself. Id.
at 324-25.
There is no basis for treating unbridled discretion with
respect to timing of administrative response to a permit appli-
cation differently from other kinds of administrative discre-
tion with respect to the issuance of permits, and the panel
suggests none. Timing is likely to be of the essence when
planning a large event of the kind covered by the OMGA.
Administrative delays can interfere not only with a party’s
ability to comply with the OMGA’s complicated logistical
requirements, but also stymy effective judicial review. Here,
for example, the defendants kept, effectively, stringing the
Fair along, making it difficult to obtain judicial review before
rather than after the scheduled date of the event.
In addition, the panel erred by not giving particular atten-
tion to the need for safeguards against unbridled discretion in
the context of this non-traditional time, place, and manner
regulation, governing the use of private property. Although
the government certainly has valid interests in the health and
safety of the many people participating in and affected by
large events such as the Southern Oregon Barter Fair, those
interests are different from, and to some degree narrower
than, those at stake when the government is property manager
of a public forum. See Cox v. New Hampshire, 312 U.S. 569,
574 (1941) (“The authority of a municipality to impose regu-
3586 SOUTHERN OREGON BARTER v. OREGON
lations in order to assure the safety and convenience of the
people in the use of public highways has never been regarded
as inconsistent with civil liberties but rather as one of the
means of safeguarding the good order upon which they ulti-
mately depend.” (emphasis added)). In our own homes and on
our own land, our right to have political meetings and other
speech-related events without asking the government prior
permission is ordinarily absolute. The OMGA is permissible
at all only because it covers extremely large gatherings, likely
to create sanitary and logistic problems if not well run. In this
context, the potential for infringement on core First Amend-
ment activities is at its greatest.
3. Finally, I note that fear of creating an inter-circuit con-
flict is no reason to decide this case contrary to Thomas.
Avoiding a circuit conflict is an important consideration when
issues are close. When, as here, there is clear statutory or case
law dictating the result, we should decide the case correctly
for ourselves. Cf. Costa v. Desert Palace, Inc., 299 F.3d 838,
851-54 (9th Cir. 2002) (en banc) (declining to follow the
approach generally used by other circuits with regard to proof
of Title VII mixed motive cases, when other circuits had
failed to consider superseding statutory language), unani-
mously aff’d, 539 U.S. 90 (2003); United States v. Gaudin, 28
F.3d 943, 948-51 (9th Cir. 1994) (en banc) (holding that the
materiality of false statements to the government is a question
of fact, notwithstanding the contrary view of the eleven other
circuits that had considered the issue), unanimously aff’d, 515
U.S. 506 (1995).
In this instance, some of the cases in the other circuits that
consider seemingly similar questions rely on considerations
not here applicable. To the extent others of those cases, like
the panel in this case, read Thomas as having held that there
is no longer any need for clear timeliness standards for the
consideration of content-neutral permits affecting speech
activities, those cases are wrong, and we should not follow
them.
SOUTHERN OREGON BARTER v. OREGON 3587
The First Circuit’s decision in New England Regional
Council of Carpenters v. Kinton, 284 F.3d 9 (1st Cir. 2002),
for example, involves circumstances sufficiently different
from those in this case that there would be no conflict were
we to hold the OMGA facially invalid for failure to specify
any time limit for consideration of permit applications. In
New England Regional Council, the First Circuit considered
a leafletting permit scheme under which “the automatic issu-
ance of permits negate[d] [the] potential concern . . . that offi-
cials could effectively deny permits by dragging their feet.”
Id. at 25 n.8. More importantly, the plaintiff’s as-applied
challenge did not specifically attack the lack of an administra-
tive review deadline.
The Tenth Circuit, in Utah Animal Rights Coalition v. Salt
Lake City Corp., 371 F.3d 1248 (10th Cir. 2004), erred as the
panel did — by reading Thomas as holding that permitting
ordinances need not contain time limits when in fact Thomas
did not so state. See id. at 1259. In the course of so ruling,
Utah Animal Rights Coalition suggested that there is no need
for time limits in content-neutral permitting ordinances, as
they do not restrain speech during the period of any delay.
This analysis entirely misses the reason given in Thomas for
requiring “[n]arrowly drawn, reasonable and definite stan-
dards,” id. at 324 — to constrain administrative discretion that
can serve as a cover for content-based distinctions and result
in preventing speech for lack of adequate advance notice.
Moreover, the analysis turned in part on the plaintiff’s failure
in that case to argue that the lack of a deadline for administra-
tive review violated Thomas’s second holding. Id. at 1260.
The plaintiff apparently argued that an administrative review
deadline was required under only Freedman v. Maryland, not
Thomas, as it suffered from “confusion on this point of law.”
Id. at 1259. Finally, as in Granite State Outdoor Advertising,
Inc. v. City of St. Petersburg, 348 F.3d 1278 (11th Cir. 2003),
cert. denied, 124 S. Ct. 2816 (2004), and Griffin v. Secretary
of Veterans Affairs, 288 F.3d 1309 (Fed. Cir. 2002), Utah
Animal Rights Coalition disregarded Thomas’s review of the
3588 SOUTHERN OREGON BARTER v. OREGON
Chicago Park District permitting ordinance, failing to note
that there was an administrative review deadline and that the
Court considered that deadline in concluding that the stan-
dards in the permitting ordinance were sufficiently specific to
survive a facial challenge.4
In sum, because the panel misread binding Supreme Court
precedent by issuing a decision that will allow unbridled
administrative discretion and the unconstitutional infringe-
ment of First Amendment-protected free speech rights, I
respectfully dissent.
4
Granite State Outdoor Advertising is particularly worrisome, as the
court explicitly decided to await evidence of a pattern of abuse before
deciding that the challenged ordinance without a time limit for administra-
tive review was constitutionally inadequate. 348 F.3d at 1282.
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