Klein v. City of San Clemente ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE KLEIN; SUSEN FAY; M. 
LORRAINE KLEIN; MICHAEL LEWIS;
SAUL LISAUSKAS; KRISTIN
SCHUITEMAN; JEFFERSON SMITH; No. 08-55015
MARY THOMPSON; ELIZABETH
WELLER; and ROBERT WELLER,  D.C. No.
CV-07-03747-AHM
Plaintiffs-Appellants,
OPINION
v.
CITY OF SAN CLEMENTE,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
August 4, 2008—Pasadena, California
Filed October 2, 2009
Before: Stephen Reinhardt, Roger J. Miner,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
*The Honorable Roger J. Miner, Senior United States Circuit Judge for
the Second Circuit, sitting by designation.
14227
KLEIN v. CITY OF SAN CLEMENTE 14231
COUNSEL
Michael J. Kumeta (argued), La Mesa, California ; William
G. Gillespie, Poway, California; for plaintiffs-appellants
Steve Klein, et al.
Edwin J. Richards (argued), Julie R. Beaton, M. Courtney
Koger, Kutak Rock LLP, Irvine, California; for defendant-
appellee City of San Clemente.
OPINION
BERZON, Circuit Judge:
The City of San Clemente flatly prohibits the leafleting of
unoccupied vehicles parked on city streets. We conclude that
14232 KLEIN v. CITY OF SAN CLEMENTE
petitioners are likely to succeed in demonstrating that the
City’s justification for its prohibition is insufficient and that
they have otherwise met the requirements for obtaining a pre-
liminary injunction enjoining enforcement of the prohibition.
We therefore reverse the district court’s order denying peti-
tioners’ motion for a preliminary injunction and remand for
further proceedings consistent with this opinion.
FACTUAL & PROCEDURAL BACKGROUND
On June 2, 2007, Steve Klein and several cohorts (collec-
tively “Klein”) were distributing leaflets expressing their
views on immigration policy. Klein initially handed leaflets to
passing pedestrians but later started placing leaflets under the
windshield wipers of unoccupied vehicles parked along city
streets. While doing so, he was approached by several local
sheriff’s deputies. The deputies ordered him to stop, explain-
ing that “throwing” or “depositing” any commercial or non-
commercial advertisement “in or upon” any vehicle violated
a City of San Clemente anti-litter ordinance. Section 8.40.130
of the City’s municipal code provides:
“No person shall throw or deposit any commercial or
noncommercial advertisement in or upon any vehi-
cle. Provided, however, that it shall not be unlawful
in any public place for a person to hand out or dis-
tribute, without charge to the receiver thereof, a non-
commercial advertisement to any occupant of a
vehicle who is willing to accept it.”
Klein asked the deputies what they would do if he contin-
ued to leaflet parked vehicles and was told that he would be
cited for violating the ordinance. He immediately stopped dis-
tributing leaflets.
Klein then filed suit in federal court, arguing that the City’s
vehicle leafleting ordinance, both on its face and as applied,
violated his free speech rights under the First Amendment of
KLEIN v. CITY OF SAN CLEMENTE 14233
the federal Constitution and the Liberty of Speech Clause of
the California Constitution. The district court denied Klein’s
motion for a preliminary injunction. Klein timely appealed.
ANALYSIS
[1] To warrant injunctive relief, a plaintiff “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, 129 S. Ct. 365, 374 (2008); see also Am. Truck-
ing Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052
(9th Cir. 2009). “In each case, courts ‘must balance the com-
peting claims of injury and must consider the effect on each
party of the granting or withholding of the requested relief.’ ”
Winter, 129 S. Ct. at 376 (quoting Amoco Prod. Co. v. Village
of Gambell, 480 U.S. 531, 542 (1987)).
In this case, the district court judge denied Klein’s motion
for a preliminary injunction solely because he concluded that
the City’s ordinance was narrowly tailored to serve the City’s
significant interest in litter prevention and “promoting esthetic
values.” “We will reverse a denial of a preliminary injunction
where the district court abused its discretion or based its deci-
sion on an erroneous legal standard or on clearly erroneous
findings of fact.” Sammartano v. First Judicial District Court,
303 F.3d 959, 964 (9th Cir. 2002); see also Community
House, Inc. v. City of Boise, 490 F.3d 1041, 1047 (9th Cir.
2007). Further, “[w]hen the district court is alleged to have
relied on an erroneous legal premise, we review the underly-
ing issues of law de novo.” Id.; see also Sammartano, 303
F.3d at 964-65.
Applying those review standards, we hold that the district
court’s conclusion regarding Klein’s likelihood of success on
the merits was incorrect. On the current record, none of the
interests asserted by the City were proven sufficiently weighty
14234 KLEIN v. CITY OF SAN CLEMENTE
to justify the restrictions placed on Klein’s right to express his
political views. Moreover, Klein has established the other pre-
requisites for a preliminary injunction under the Winter stan-
dard. We therefore reverse the district court’s denial of
Klein’s motion for a preliminary injunction and remand for
further proceedings consistent with this opinion.
I.
Klein filed suit under both the California and federal Constitu-
tions.1 We must first “determine if the California Constitution
provides independent support for [his] claim. If so, we will be
able to avoid the determination of any federal constitutional
issues and thus abide by the doctrine that federal courts
should not decide federal constitutional issues when alterna-
tive grounds yielding the same relief are available.” Kuba v.
1-A Agric. Ass’n, 387 F.3d 850, 856 (9th Cir. 2004) (quota-
tion and citation omitted).
[2] In this case, however, the relevant standards under the
federal and state constitutions are the same. The parties agree,
although they arrive at this conclusion by different routes, that
the City’s ordinance should be treated as a traditional “time,
place, and manner” restriction on Klein’s speech.2 Califor-
nia’s “formulation of the time, place, and manner test was
fashioned from a long line of United States Supreme Court
1
The California Liberty of Speech Clause provides, “Every person may
freely speak, write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain or abridge
liberty of speech or press.” CAL. CONST. art. I, § 2(a). This clause has been
interpreted to “provide[ ] protections for speakers in some respects broader
than provided by the First Amendment.” Kuba, 387 F.3d at 856; see also
L.A. Alliance for Survival v. City of Los Angeles, 993 P.2d 334, 341 (Cal.
2000).
2
We agree that time, place, and manner analysis is appropriate here,
either under a public forum analysis, see Kuba, 387 F.3d at 856-57, or
because placing leaflets with a political message on cars is expressive con-
duct. See United States v. O’Brien, 391 U.S. 367 (1968).
KLEIN v. CITY OF SAN CLEMENTE 14235
cases, and . . . analysis of speech regulation under [the Cali-
fornia Liberty of Speech Clause] employs time, place and
manner restrictions measured by federal constitutional stan-
dards.” Id. at 340 n.7 (quotations and citations omitted); see
also Kuba, 387 F.3d at 856. “Under either foundational docu-
ment . . . permissible restrictions on expression in public fora
must be content-neutral, be narrowly tailored to serve an
important government interest, and leave open ample alterna-
tive channels for the communication of the message.” Kuba,
387 F.3d at 856-58 (quotation omitted).3 While 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. See Kaufman v. ACS Systems, Inc.,
2 Cal. Rptr 3d. 296, 313 (2003) (“The party seeking to uphold
a restriction on commercial speech carries the burden of justi-
fying it,” (quotations omitted)); S.O.C. v. County of Clark,
152 F.3d 1136, 1146 (9th Cir. 1998) (holding that plaintiffs
were likely to succeed on the merits because county did not
meet its burden of demonstrating that its content-based ordi-
nance was the least restrictive means to further a compelling
interest).
II.
[3] The parties agree that the ordinance is content-neutral,
so the first prong of the traditional “time, place, and manner”
inquiry is not at issue in this case. Thus, to justify restricting
Klein’s constitutionally-protected speech, the City must dem-
onstrate that the restrictions imposed by its anti-litter ordi-
nance are “narrowly tailored to serve a significant government
interest, and that they leave open ample alternative avenues
3
The term “important government interest” refers to the same standard
as the “substantial” or “significant” government interest invoked in federal
First Amendment cases. See Kuba, 387 F.3d at 856 (noting that restriction
must be “narrowly tailored to serve an important government interest,”
quoting Galvin v. Hay, 374 F.3d 739, 746 (9th Cir. 2004)) and 858 (refer-
ring to government interest as “significant”) and at n.9 (citing federal
cases characterizing government interest as “substantial”).
14236 KLEIN v. CITY OF SAN CLEMENTE
for communication of the information.” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (citations omitted).
[4] To satisfy the “narrowly tailored” aspect of this test, the
restriction “need not be the least restrictive or least intrusive
means of [serving the government’s interest],” but it also may
not “burden substantially more speech than is necessary to
further” that interest. Id. at 798-99. The existence of “numer-
ous and obvious less-burdensome alternatives” is relevant to
assessing whether the restriction on speech reasonably fits the
interest asserted. See City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 417 n.13 (1993).
The City contends that the anti-litter ordinance is narrowly
tailored to advance two significant interests, which we
address in turn below: preventing littering and the unautho-
rized use of private property. The district court concluded that
the ordinance was narrowly tailored to advance the anti-
littering interest, and thus denied Klein’s motion for a prelimi-
nary injunction. We disagree with the district court’s assess-
ment in this regard and conclude that the second interest
proffered by the city, preventing unauthorized use of private
property, fares no better. We therefore reverse.
A. LITTER
The City first asserts an interest in “prohibiting litter and
visual blight thereby preserving the aesthetics of the communi-
ty.”4 Citing a line of cases addressing municipal regulation of
4
In referring to “litter and visual blight,” the City does not suggest that
the leaflets constitute litter or visual blight when they are placed on the
windshields of unoccupied vehicles, but rather that they may result in
visual blight if strewn on the ground. For example, the City’s brief asserts
that “leaflets blown off vehicles, or thrown off vehicles by angry drivers,
certainly fit into” the definition of litter under city ordinances, and cites
“the public blight that would be caused by the litter.” (emphasis added).
Similarly, the City objects to the proposition that it could punish those
KLEIN v. CITY OF SAN CLEMENTE 14237
billboards and outdoor advertising, the City argues that “it is
well-recognized that the curbing of litter and visual blight [to
preserve] the aesthetics of the community are substantial gov-
ernmental goals.” See, e.g., Metromedia, Inc. v. City of San
Diego, 453 U.S. 490 (1981). The ordinance is narrowly tai-
lored to serve this interest, the City contends, because it “only
prohibits the placing of materials on unoccupied vehicles
where it results in litter” and thus “target[s] the precise prob-
lem that it wished to correct.”
[5] We cannot accept the government’s syllogism. The city
would have to show some nexus between leaflets placed on
vehicles and a resulting substantial increase in litter on the
streets before we could find that the City’s asserted interest in
preventing littering on the street justifies a prohibition on
placing leaflets on windshields. As both this court and the
Supreme Court have repeatedly emphasized, “merely invok-
ing interests . . . is insufficient. The government must also
show that the proposed communicative activity endangers
those interests.” Kuba, 387 F.3d at 859 (citation omitted); see
also Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 73, 75
who actually throw leaflets on the ground only on the basis that leaflets
may be dislodged from car windshields by wind and rain, but does not
contend that “visual blight” is created by the leaflets when attached to
cars. As the City’s asserted interest is simply preventing litter in the usual
sense of the term and not the appearance of the leaflets while secured to
the cars, Members of the City Council v. Taxpayers for Vincent, 466 U.S.
789 (1984), upholding an ordinance forbidding the permanent attachment
of leaflets to utility poles, is not applicable.
The City’s chosen articulation of its interest is understandable, as any
analogy to the governmental interest recognized in Taxpayers for Vincent
— eliminating the “visual blight” of numerous signs attached to utility
poles — would be weak. Here, the cars themselves are not permanently
present on the streets, nor are the leaflets permanently affixed to the cars.
Also, the leaflets are likely designed to be read only by the owner of the
car, not by passersby, and so will not attract attention based on what is
written on them. Any visual impact is therefore both marginal and transi-
tory, rendering any governmental interest in eliminating it minimal.
14238 KLEIN v. CITY OF SAN CLEMENTE
(1981) (rejecting city’s asserted zoning interests because it
“presented no evidence”); Bay Area Peace Navy v. U.S., 914
F.2d 1224, 1228 (9th Cir. 1990) (“[The government] is not
free to foreclose expressive activity in public areas on mere
speculation about danger”); S.O.C., Inc., 152 F.3d at 1146
(“[N]o evidence exists in the present record . . . to support an
assumption that commercial handbillers are the inherent cause
of Clark County’s pedestrian flow problems.”); Sammartano,
303 F.3d at 967 (“There must be evidence in the record to
support a determination that the restriction [on speech] is rea-
sonable.”); Berger v. City of Seattle, 569 F.3d 1029, 1049 (9th
Cir. 2009) (“A governmental body seeking to sustain a restric-
tion must demonstrate that the harms it recites are real.”)
(citation omitted).
[6] Applying this evidentiary requirement and assuming
that litter prevention can constitute a sufficiently significant
government interest to justify an interference with free speech,5
the record in this case is plainly inadequate to support the
government’s asserted interest in restricting Klein’s speech.
5
There is language in Supreme Court decisions suggesting that prevent-
ing littering is simply not a sufficiently significant interest to preclude lea-
fletting. See Schneider v. New Jersey, 308 U.S. 147, 165-66 (1939)
(“[T]he public convenience in respect of cleanliness of the streets does not
justify an exertion of the police power which invades the free communica-
tion of information and opinion secured by the Constitution.”); Martin v.
City of Struthers, 319 U.S. 141, 143 (1943) (“[The right to distribute liter-
ature] may not be withdrawn even if it creates the minor nuisance for a
community of cleaning litter from its streets.”). These cases were decided
before the full-blown articulation of the time, place and manner standard.
It may be that, under the standard as currently articulated, the observations
about littering in Schneider and Martin are best understood as applications
of the “narrow tailoring” prong. See Van Nuys Publishing Company, Inc.
v. City of Thousand Oaks, 97 Cal. Rptr. 777, 779 (1971) (referring to litter
reduction as “a legitimate and, indeed an increasingly urgent, government
objective,” but, relying on Martin and Schneider, striking down an ordi-
nance restricting door-to-door leafletting). In any event, we need not
decide here whether preventing littering can ever be a significant govern-
ment interest justifying a speech regulation in a public forum, as we con-
clude that the record is insufficient to establish such an interest here.
KLEIN v. CITY OF SAN CLEMENTE 14239
We note that preventing a marginal quantity of litter is not a
sufficiently significant interest to restrict leafletting. Dis-
carded paper, coffee cups and food wrappers can also add to
litter, but we remain free to carry beverages and candy bars
on public streets, indicating that municipalities do not usually
endeavor to eliminate all possibilities of litter. So the City
must show not only that vehicle leafletting can create litter,
but that it creates an abundance of litter significantly beyond
the amount the City already manages to clean up.
The only evidence on this point was submitted by Klein,
who stated that “if [he] securely place[s] leaflets under wind-
shield wipers of vehicles, usually no litter will occur as a
result of the leafletting activity. In those instances where some
litter does occur, it usually consists of no more than one or
two leaflets out of hundreds of leaflets placed on unoccupied
vehicles.” Preventing “one or two leaflets” from being placed
on city streets does not constitute a significant government
interest. See Schneider, 308 U.S. at 155, 157 (indicating that
the governmental interest was insufficient where “many” of
the hand-bills, at least 30 in one city, “lay in the gutter and in
the street”).
The City argues that “the Court need look no further than
the Ordinance itself to find evidence of the City’s interests
and goals,” as “the City’s interest in curbing litter is evi-
denced by the explicit title of the ordinance[,] . . . the ‘San
Clemente Anti-Litter Ordinance.’ ” Noticeably absent from
the City’s argument, however, is any claim that the type of
leafleting engaged in by Klein significantly increases the
amount of litter in San Clemente. The title of an ordinance is
not evidence of an actual problem.
[7] Aside from the ordinance’s title, all the City offers con-
cerning its interest in limiting litter on the streets by forbid-
ding affixing leaflets on car windshields is the equivocal
promise that, “[s]hould this case go forward, . . . discovery
and witnesses . . . would likely support the City’s assertions.”
14240 KLEIN v. CITY OF SAN CLEMENTE
That may be, and the City will have a chance later to conduct
discovery and put on witnesses. But the preliminary injunc-
tion record as it now stands contains nothing whatever to sup-
port the assertion that placing leaflets on car windshields
results in a significant increase in the amount of litter on the
streets.
Our conclusion that an asserted interest in preventing street
litter cannot justify a prohibition on placing leaflets on car
windshields accords with holdings by two of the three circuits
that have addressed this very issue. Jobe v. City of Catletts-
burg, 409 F.3d 261, 269 (6th Cir. 2005) held “the common-
sense explanation for these types of laws” sufficient without
any proof that the problem has occurred in the past. But the
Seventh Circuit disagreed, noting that “common sense . . . can
all-too-easily be used to mask unsupported conjecture, which
is, of course, verboten in the First Amendment context.”
Horina v. Granite City, 538 F.3d 624, 633 (7th Cir. 2008)
(citations omitted). And the Eighth Circuit invalidated a
vehicle-leafletting ban “notwithstanding defendants’ evidence
that government officials received complaints about handbills
left on cars,” because the city had failed to “establish[ ] a fac-
tual basis for concluding that a cause-and-effect relationship
actually exists between the placement of handbills on parked
cars and litter that impacts the health, safety, or aesthetic well-
being of the defendant cities.” Krantz v. City of Fort Smith,
160 F.3d 1214, 1221-22 (8th Cir. 1998). Accord City of Akron
v. Molyneaux, 760 N.E.2d 461,467 (Ohio App. 2001) (“The
city has not established a factual basis for concluding that a
relationship actually exists between the placement of hand-
bills on vehicles on private or public property and the preven-
tion of litter that impacts the health, morals, peace, and
welfare of the community.”)
[8] In sum, the City has not provided any evidence that
placing leaflets on parked cars results in any litter, much less
a more-than-minimal amount of additional litter. The district
court thus clearly erred in concluding that the ordinance was
KLEIN v. CITY OF SAN CLEMENTE 14241
narrowly tailored to advance the City’s significant interest in
preventing litter.
B. UNAUTHORIZED USE OF PRIVATE PROPERTY
[9] The City also asserts an “interest in preserving an indi-
vidual’s right to decide how and when their private property
will be used.” This interest is also plainly insufficient to jus-
tify the City’s ordinance.
[10] The assertion of an interest in protecting the rights of
car owners runs counter to the general rule that the “right to
distribute literature . . . necessarily protects the right to
receive it.” Martin, 319 U.S. at 143. When an ordinance “does
not control anything but the distribution of literature,” the
government cannot “submit[ ] the distributer to criminal pun-
ishment for annoying the person on whom he calls, even
though the recipient of the literature distributed is in fact glad
to receive it.” Id. at 143-44.
In this case, the City’s ordinance forbids Klein to distribute
literature to vehicle owners who may want to receive his
speech even though they are not present at the time of distri-
bution. The Court has rejected similar attempts to “shut off
the flow of” protected speech, even when the speaker seeks
access to the recipient’s private home, see Martin, 319 U.S.
at 142, and even when the speech in question is commercial
speech afforded “less protection . . . [than] other constitution-
ally safeguarded forms of expression.” Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 64-65 (1983).6 The mere fact that
an unwilling recipient must take the unsolicited leaflet from
6
In Bolger, the Court held that “the First Amendment does not permit
the government to prohibit speech as intrusive unless the captive audience
cannot avoid objectionable speech.” 463 U.S. at 72 (quotation omitted).
The Court clarified that recipients of unsolicited leaflets or mailers are not
a captive audience, as they “may effectively avoid further bombardment
of their sensibilities simply by averting their eyes.” Id. (quotation omit-
ted).
14242 KLEIN v. CITY OF SAN CLEMENTE
her windshield and place it in the garbage cannot justify an
across-the-board restriction. Just as the “short, though regular,
journey from mail box to trash can . . . is an acceptable bur-
den, at least so far as the Constitution is concerned,” id. at 72
(quotation omitted), so the burden on recipients of disposing
of unwanted leaflets cannot justify hampering speech.
The City may allow potential recipients to opt-out of
receiving communications on their property, see Rowan v.
Post Office Dep’t, 397 U.S. 728, 737 (1970), as Klein recog-
nizes by proposing that the City permit vehicle owners to post
the equivalent of a “No Soliciting” sign on their dashboard to
avoid unwanted leaflets. But the City’s ordinance goes well
beyond merely allowing unwilling recipients to opt out of car
leafletting, rendering any asserted interest in preserving pri-
vate property rights insufficient to support the breadth of the
prohibition.
The Sixth Circuit’s concluded otherwise, declaring that
protecting unwilling recipients of car leaflets by allowing
them to place a “No Handbills” sign on the dashboard, and
requiring that it be honored, represents an “unorthodox bur-
den.” Jobe, 409 F.3d at 272. We disagree. The Supreme Court
has repeatedly held “No Solicitations” signs adequate to
inform door-to-door canvassers that residents do not want
unknown visitors at their homes, and has on that basis pre-
cluded broad bans on door-to-door solicitation. See, e.g.,
Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Strat-
ton, 536 U.S. 150, 168 (2002) (holding that the provision of
the ordinance “which provides for the posting of ‘No Solicita-
tion’ signs . . . provides ample protection for the unwilling lis-
tener.”); Vill. of Schaumberg v. Citizens for a Better Env’t,
444 U.S. 620, 639 (invalidating a restriction on door-to-door
canvassing because “the provision permitting homeowners to
bar solicitors from their property by posting signs . . . sug-
gest[s] the availability of less intrusive . . . measures to protect
privacy.”). If anything, vehicles are entitled to less assiduous
protection than residences, long afforded a higher degree of
KLEIN v. CITY OF SAN CLEMENTE 14243
privacy under our law. See, e.g., California v. Carney, 471
U.S. 386, 392 (1985) (holding that the Fourth Amendment
permits warrantless searches of cars because “[a]utomobiles,
unlike homes, are subjected to pervasive and continuing gov-
ernmental regulation and controls.”). And as the Seventh Cir-
cuit noted, the alternative to vehicle-leafletting is distributing
leaflets only to those available to accept them, a mode of
communication that is “extremely time consuming and bur-
densome, particularly when the individual intends to convey
a message to people who park their automobiles in a certain
area of the city or who live in a certain neighborhood.”
Horina, 538 F.3d at 636.
[11] In sum, just as the protection of private property is not
a sufficiently substantial government interest to justify an
across-the-board ban on door-to-door solicitation, so that
interest cannot suffice to justify an across-the-board ban on
placing leaflets on the windshields of empty vehicles parked
on public streets.
III.
[12] The California Supreme Court has yet to decide
whether ordinances prohibiting the leafletting of unoccupied
vehicles parked on public streets are incompatible with the
state Constitution’s Liberty of Speech Clause. Closely analo-
gous California Supreme Court precedent addressing door-to-
door distribution of leaflets, however, has affirmed a speak-
er’s right to leave literature on the doorsteps and porches of
residences. In Van Nuys Publishing Company, Inc. v. City of
Thousand Oaks, 97 Cal. Rptr. 777 (1971), the California
Supreme Court struck down an anti-littering ordinance that
prohibited leaving leaflets in or on the yard, porch or doorstep
of private residences without prior permission. The ordinance
swept too broadly by criminalizing the behavior of “those
who, in delivering pamphlets, take care to secure their mes-
sages so as to eliminate the hazards of litter.” Id. at 779-80.
The Court noted that “[i]n the context of private residences
14244 KLEIN v. CITY OF SAN CLEMENTE
. . . a requirement that a distributor obtain consent prior to the
delivery of written material will, as a practical matter, fre-
quently operate to curtail completely this means of communi-
cation.” Id. at 781.
The Van Nuys Court did not, as the City suggests, rest its
holding on the fact that the ordinance prohibited entry onto
private property where residents might be present and willing
to receive the literature. The effect of the ordinance, the Court
noted, was to eliminate “the possibility of communication
between a distributor and those willing recipients who are not
present to give personal consent to the delivery of distributed
literature.” Id. at 814 (emphasis added, citations and quotation
marks omitted). The ordinance thus “impairs a distributor’s
opportunity to win the attention of all uncommitted listeners.”
Id. (citations and quotation marks omitted).7
[13] More recently, a California appellate court upheld a
vehicle-leafletting ban applicable to the parking lot of a pri-
vate shopping center. See Savage v. Trammell Crow Co., 273
Cal. Rptr. 302 (Cal. Ct. App. 1990). If Savage were directly
analogous to this case, we would be bound to follow it as the
pronouncement of a state appellate court, “[i]n the absence of
a pronouncement by the highest court of a state . . . unless
there is convincing evidence that the highest court of the state
would decide differently.” Briceno v. Scribner, 555 F.3d
1069, 1080 (9th Cir. 2009) (citation and quotation marks
omitted). But Savage does not concern an analogous munici-
pal ordinance applicable to public streets. Moreover, Savage
has been at least somewhat undermined as to what it did hold
by a later California Supreme Court opinion, Fashion Valley
Mall, LLC v. NLRB, 69 Cal. Rptr. 3d. 288, 301 (2007). For
7
The Georgia Supreme Court similarly concluded that an ordinance pro-
hibiting the placement of literature in yards, driveways and porches imper-
missibly “bans a substantial amount of speech that residents may want to
hear . . . .” Statesboro Publ’g Co. v. City of Sylvania, 516 S.E.2d 296, 298
(Ga. 1999).
KLEIN v. CITY OF SAN CLEMENTE 14245
several reasons, we believe that the California Supreme Court
would follow Van Nuys, rather than Savage, in deciding the
validity of a municipal vehicle-leafletting ordinance, and so
rely on Van Nuys and not Savage.
First, the ban in Savage was imposed by the owner of a pri-
vate mall, making it factually and analytically distinguishable
from the municipal ordinance here. The California court of
appeal in Savage noted that the mall owner’s right to impose
reasonable time, place and manner restrictions stemmed from
“important rights of substance,” namely “freedom from dis-
ruption of normal business operations and freedom from inter-
ference with customer convenience.” Savage, 273 Cal. Rptr.
at 306 (quotation marks and citation omitted). No similar pri-
vate business interests are at stake here.
Moreover, even to the degree the interests in Savage are not
focused on conducting private business without interference,
the ban was not upheld based solely on an interest in prevent-
ing littering, but took into account an additional interest not
here present. The ban in Savage was applied in a parking lot,
not a public street, and the opinion stressed that the parking
lot’s restricted traffic patterns led to valid concerns about “in-
terference with ingress and egress from the center” because of
the presence of the leafletters, which could “potentially
increase the occurrence of traffic accidents.” Savage, 273 Cal.
Rptr. at 307, 305. It is well established that “interests in
pedestrian and traffic safety, as well as in preventing traffic
congestion, are significant.” Kuba, 387 F.3d at 858. This
parking lot/traffic focus makes Savage less persuasive author-
ity than Van Nuys, which addressed interests parallel to those
asserted by the City here and found that “[a] city cannot . . .
preserve privacy (or attack litter) by prohibiting all distribu-
tion without prior consent.” Van Nuys, 97 Cal. Rptr. at 783-84
(internal quotation marks omitted).
Finally, Savage has been undermined, if not overruled, by
Fashion Valley Mall. Savage relied repeatedly on H-CHH
14246 KLEIN v. CITY OF SAN CLEMENTE
Assoc. v. Citizens for Representative Gov’t, 238 Cal. Rptr 841
(Cal. Ct. App. 1987), which held that a shopping mall could
prohibit the solicitation of contributions or donations because
the mall’s “function is to facilitate the ease of commerce and
to promote the business of its merchant tenants,” and any
solicitation of political funds is in tension with that function.
H-CHH, 238 Cal. Rptr at 859; see Savage, 273 Cal. Rptr. at
306-07 (citing H-CHH four times). The California Supreme
Court recently disapproved H-CHH in Fashion Valley Mall,
69 Cal. Rptr. 3d. at 301 (holding that a union was entitled to
conduct a peaceful boycott of one of the mall’s tenants).8 The
court in Savage did not cite H-CHH for the precise point of
law that the California Supreme Court specifically rejected in
Fashion Valley Mall. But Savage’s focus on mall owners’
prerogative to limit speech so as to further its interests as a
property owner has been undermined by the Court’s strong
affirmation of free speech rights in the shopping mall context
in Fashion Valley Mall.
[14] In sum, we conclude that Van Nuys strongly supports
our conclusion that under California law a vehicle leafletting
ban cannot be justified by an interest in protecting the private
property rights of recipients of leaflets. We have a firm basis
for believing that, in a case similar to this one, the California
Supreme Court would follow Van Nuys and not Savage, a
later intermediate appellate decision involving different cir-
cumstances and undermined by subsequent California
Supreme Court authority.
IV.
[15] Klein has thus demonstrated a likelihood of success on
8
Fashion Valley Mall relied on H-CHH in arguing that, because malls
could prohibit financial solicitation as fundamentally incompatible with
the mall’s function, they could prohibit boycotts against stores in the mall
for the same reason. The Court rejected this line of analysis. Fashion Val-
ley Mall, 69 Cal. Rptr. 3d at 301-02.
KLEIN v. CITY OF SAN CLEMENTE 14247
the merits of his claim that the City’s anti-litter ordinance vio-
lates his right to free speech under the California Constitution,
as the City has not shown that the ordinance is narrowly tai-
lored to advance either of its asserted interests. To warrant
injunctive relief, however, Klein must also demonstrate that
he is likely to suffer irreparable injury in the absence of a pre-
liminary injunction, and that the balance of equities and the
public interest tip in his favor. See Winter, 129 S. Ct. at 374.
If we were in doubt whether Klein satisfied the remaining
requirements for injunctive relief, we would remand to allow
the district court to assess the likelihood of irreparable injury
and to balance the equities. Given the free speech protections
at issue in this case, however, it is clear that these require-
ments are satisfied.
[16] Both this court and the Supreme Court have repeatedly
held that “[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irrepara-
ble injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see
also Sammartano, 303 F.3d at 973-74; S.O.C., Inc., 152 F.3d
at 1148; Jacobsen v. U.S. Postal Service, 812 F.2d 1151, 1154
(9th Cir. 1987). The harm is particularly irreparable where, as
here, a plaintiff seeks to engage in political speech, as “timing
is of the essence in politics” and “[a] delay of even a day or
two may be intolerable . . . .” Long Beach Area Peace Net-
work v. City of Long Beach, 522 F.3d 1010, 1020 (9th Cir.
2008) (quoting NAACP. v. City of Richmond, 743 F.2d 1346,
1356 (9th Cir. 1984)). Klein has therefore demonstrated a
likelihood of irreparable injury in the absence of an injunc-
tion.
[17] We have also consistently recognized the “significant
public interest” in upholding free speech principles, see Sam-
martano, 303 F.3d at 974 (collecting cases), as the “ongoing
enforcement of the potentially unconstitutional regulations . . .
would infringe not only the free expression interests of [plain-
tiffs], but also the interests of other people” subjected to the
same restrictions. Id. In this case, the City’s ordinance prohib-
14248 KLEIN v. CITY OF SAN CLEMENTE
its any potential speaker from placing leaflets on unoccupied
parked vehicles, regardless of the type of leaflet or the would-
be recipients’ willingness to receive the speech. The ordi-
nance thus infringes on the free speech rights not only of
Klein, but also of anyone seeking to express their views in
this manner in the City of San Clemente. The balance of equi-
ties and the public interest thus tip sharply in favor of enjoin-
ing the ordinance. As our caselaw clearly favors granting
preliminary injunctions to a plaintiff like Klein who is likely
to succeed on the merits of his First Amendment claim, we
see no reason to remand for further proceedings with respect
to Klein’s motion in this case.
CONCLUSION
[18] The record does not support the district court’s conclu-
sion that the City’s anti-litter ordinance was narrowly tailored
to serve a significant government interest. Moreover, the
ongoing violation of Klein’s right to express his political
beliefs constitutes irreparable injury, and the public interest
strongly favors enforcing free speech protections. The district
court’s order denying a preliminary injunction is therefore
REVERSED, and this case is REMANDED to the district
court for further proceedings consistent with this opinion,
including the issuance of an appropriate injunction.