Bay Area Peace Navy v. United States , 914 F.2d 1224 ( 1990 )

CANBY, Circuit Judge:

The United States appeals from the district court’s decision (1) declaring a 75-yard security zone imposed by the Coast Guard during Fleet Week in 1986 a violation of the First Amendment rights of the Bay Area Peace Navy (the Peace Navy), and (2) permanently enjoining the Coast Guard “from imposing a security zone in excess of [25] yards away from the reviewing stand on the pier or on the shoreline of San Francisco Bay during the opening ceremonies for any future Fleet Week.” In addition, the government appeals the district court’s award of attorneys’ fees to the Peace Navy under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.

Because the government has failed to meet its burden of demonstrating that the 75-yard security zone is a reasonable time, place and manner restriction, we hold that the zone is a violation of the First Amendment rights of persons desiring to demonstrate in boats off the Aquatic Park Pier during Fleet Week. However, we reverse the district court’s award of attorneys’ fees to the Peace Navy because we conclude that the government was substantially justified in taking the position it did, even though it did not ultimately prevail.

BACKGROUND

Beginning in 1983, the Navy and the City of San Francisco have annually sponsored “Fleet Week,” which includes a parade of Naval ships and a Blue Angels air show, in and over San Francisco Bay. Fleet Week is the largest annual Naval event in the United States and is intended to demonstrate that the Navy is well-prepared, effective and represents a sound investment of public funds. About 500,000 people watch the parade from the shore, while over 3,000 invited guests, including high-ranking military officers, local government officials and other dignitaries, watch from bleacher seats on Aquatic Park Pier. On the end of the pier there is a reviewing platform where approximately 60 of the highest ranking guests sit.

Every year since 1984, the Peace Navy, a non-profit association dedicated to using small boats for peaceful anti-war and anti-militarization demonstrations, has engaged in a counter-demonstration during Fleet Week by parading in formation in front of the invited guests on the pier during the parade of real Navy ships farther out in the Bay. The twenty-five to sixty pleasure craft in the Peace Navy, ranging in size from kayaks to thirty-foot vessels, display signs and banners expressing displeasure with military influence in the conduct of foreign policy and other messages. The Peace Navy has also employed other devices for conveying its messages. In 1986, a chorus of children sang anti-war songs from one of the boats in the counter-parade. And in 1987, the Peace Navy presented a water-borne theatrical production. In addition to the Peace Navy, hundreds of other groups or individuals protest or simply watch the Navy’s Fleet Week parade from boats on the Bay.

During Fleet Week in 1983, 1984 and 1985, the Coast Guard imposed minimal restrictions on boaters during the Naval parade — safety zones around the pier during a parachute jump and a small boat demonstration, moving safety zones around each Navy ship, and a temporary safety zone in the area over which the Blue Angels fly. However, in 1986, despite the absence of any previous accidents or breaches of security, the Coast Guard imposed a 75-yard safety and security zone around the pier, effective from approximately 10:30 a.m. to 1:30 p.m. on the day of the Navy parade, which civilian boats were prohibited from entering. Because of the zone, the Peace Navy’s message was not effectively conveyed in 1986 because the audience on the pier could neither read the banners nor hear the boatload of children singing. This 75-yard zone was re-established in 1987 on the ground that the zone was “needed to safeguard prominent public officials from subversive acts or accidents, or incidents of a similar nature.”

The Peace Navy sought and the district court granted a temporary restraining order against enforcement of the 75-yard zone in 1987. The Peace Navy was permitted to come within 50 yards of the pier and to anchor a performance boat 25 yards from the pier for a close-up theatrical performance. In May of 1988, the district court permanently enjoined the Coast Guard from enforcing a zone greater than 25 yards during any future Fleet Week in the absence of changed circumstances demonstrating a tangible threat to security or dangerous weather conditions. After the entry of the permanent injunction, the Peace Navy requested and was granted $24,157.50 in attorneys’ fees under the EAJA. The government appealed the district court’s ruling both on the merits and on the attorneys’ fees issue. We ordered the appeals consolidated.

DISCUSSION

I. First Amendment Challenge.

The Supreme Court recently reaffirmed that

in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

Ward v. Rock Against Racism, — U.S. -, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (quoting Clark v. Community For Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068-69, 82 L.Ed.2d 221 (1984)). See also Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983)). Both parties agree that the portion of the San Francisco Bay off the Aquatic Park Pier is a “public forum” and that the Peace Navy’s message constitutes “protected speech.” In addition, the government argues, and the Peace Navy does not dispute, that the Coast Guard’s regulation is “content neutral,” in that it is “ ‘justified without reference to the content of the regulated speech.’ ” Ward, 109 S.Ct. at 2753 (quoting Community For Creative Non-Violence, 468 U.S. at 293, 104 S.Ct. at 3069); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986) (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)).

Therefore, the only issues contested on appeal are (1) whether the challenged regulation is “narrowly tailored” to serve a “significant governmental interest”, and (2) whether the regulation leaves open ample alternative channels of communication.¹ The government bears the burden of proving that the “narrowly tailored” and “alternative communication” prongs are satisfied. City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1551 (7th Cir.1986), aff'd without opinion, 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972 (1987). Cf. Community For Creative Non-Violence, 468 U.S. at 293 n. 5, 104 S.Ct. at 3069 n. 5. (“[I]t is common to place the burden upon the Government to justify im-pingements on First Amendment interests”).

The district court properly conceded that the government’s interest in “protecting public and naval officials from attack” and in “marine safety” was “significant.” The question then became whether the 75-yard security zone was a measure “narrowly tailored” to serve that interest. Determining whether a content-neutral time, place, or manner regulation is “narrowly tailored” to serve a significant government interest does not require that the regulation be the least-restrictive or least-intrusive means of serving the interest. Ward, 109 S.Ct. at 2757-58. See also Regan v. Time, Inc., 468 U.S. 641, 657, 104 S.Ct. 3262, 3271, 82 L.Ed.2d 487 (1984) (plurality opinion of White, J.). Rather, “[s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest, [] the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” Ward, 109 S.Ct. at 2758 (emphasis added). See United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906-07, 86 L.Ed.2d 536 (1985) (the validity of a regulation “does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests”).

Even though this standard gives the government leeway, we conclude that the district court was correct in holding that there was insufficient justification for the 75-yard free zone. The district court concluded:

Although the government’s interest in protecting public and naval officials from attack is significant, there is no tangible evidence that a 75 yard security zone is necessary to protect officials during the “Fleet Week” ceremonies....

Although the government’s interest in marine safety is significant, there is no tangible evidence that a 75 yard security zone is necessary to protect that interest. In prior years, the Coast Guard has demonstrated ample ability to operate safely without a 75 yard security zone.

These rulings clearly amount to a determination that the 75-yard zone “burdens substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 109 S.Ct. at 2758. The record supports that determination. The only evidence offered by the government to support its claim that a 75-yard zone was essential to serve security interests was the existence of terrorism in the world generally and the opinions of various military personnel that a 75- or 100-yard zone was needed to protect against acts of terrorism. The references to terrorist or other threats of violent attacks were unrelated to incidents in the San Francisco Bay Area, or in the United States for that matter. In fact, Navy Commander George Farrar testified, in response to a question by the district court, that to his knowledge there had never been a “known threat” that would affect the audience on the Aquatic Park Pier. As the district court noted, there was no showing that Fleet Week presents “any danger that is not present each time a public official appears in public.”

In addition, there was almost no testimony about marine safety concerns, except for a statement that a channel of access to the land by military vessels was useful for handling law enforcement and medical emergencies. There was no evidence presented that a 25-yard zone was insufficient for this purpose. At best, there was testimony that it is more difficult to maneuver in a 25-yard zone than in a larger zone, that maneuverability is affected by changing wind and weather conditions, and that the Fleet Week parade is an event normally crowded with many civilian boaters, implying that there is an increased likelihood of water-borne collision. There was evidence, of course, that safety had not been a problem in the years when there was no 75-yard security zone.

Although the government legitimately asserts that it need not show “an actual terrorist attack or serious accident” to meet its burden, it is not free to foreclose expressive activity in public areas on mere speculation about danger.² Cf. Boos v. Barry, 485 U.S. 312, 330, 108 S.Ct. 1157, 1168-69, 99 L.Ed.2d 333 (1988) (upholding a ban on congregations within 500 feet of a foreign embassy against overbreadth and vagueness challenges, noting that the statute does not reach peaceful congregations, only “groups posing a security threat”); Community For Creative Non-Violence, 468 U.S. at 311, 104 S.Ct. at 3078 (Marshall, J. dissenting) (“A mere apprehension of difficulties should not be enough to overcome the right to free expression”); United States v. Grace, 461 U.S. 171, 182, 103 S.Ct. 1702, 1709-10, 75 L.Ed.2d 736 (1983) (when there is no evidence of obstruction, threatened injury or interference with orderly administration, a ban on carrying a sign or banner on public sidewalks surrounding the Supreme Court building fails substantially to serve the stated purpose of “protecting] persons and property or [] maintaining] proper order and decorum within the Supreme Court grounds”). Otherwise, the government’s restriction of first amendment expression in public areas would become essentially unreviewable.

In light of the whole record, and the district court’s evaluation of the evidence, we conclude that the 75-yard security zone “burden[s] substantially more speech than is necessary to further the government’s legitimate interests” and is therefore “substantially broader than necessary to achieve the government’s interest” in protecting the audience on the pier from a speculative threat of violent attack or in promoting “marine safety” generally. See Ward, 109 S.Ct. at 2758; see also Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420 (1988) (“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy”) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808-10, 104 S.Ct. 2118, 2131-32, 80 L.Ed.2d 772 (1984)). Should circumstances change, the permanent injunction entered by the district court provides for modification on the basis of evidence of, for example, a tangible threat to security or weather conditions inhibiting the government’s ability to ensure marine safety.

We also agree with the district court that there are no ample alternative means of communication available to the Peace Navy. Of course, “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). As the district court recognized, however, an alternative mode of communication may be constitutionally inadequate if the speaker’s “ability to communicate effectively is threatened.” Taxpayers For Vincent, 466 U.S. at 812, 104 S.Ct. at 2133. Restrictions have been upheld, for example, when “[the challenged ordinance] does not affect any individual’s freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited,” id. (emphasis added), and “the [challenged rule] has not been shown to deny access within the forum in question.” Heffron, 452 U.S. at 655, 101 S.Ct. at 2567 (emphasis added).

The district court found both that the 75-yard security zone rendered the Peace Navy’s water-borne demonstration “completely ineffective” and that “passing out pamphlets on land or demonstrating at the entrance to the pier are not viable alternatives because the invited visitors, who are the Peace Navy’s intended audience, are not accessible from those positions.” The Peace Navy cannot employ effective alternative water-borne methods of communicating with the audience on the pier with the equipment it now has and with the sound amplification restrictions that are not challenged here.³ All other approaches to the pier are blocked. These facts are sufficient to support the district court s conclusion that “[t]he regulation imposing a 75-yard security zone does not leave open ample alternative channels of communication.” An alternative is not ample if the speaker is not permitted to reach the “intended audience.” See Students Against Apartheid Coalition v. O’Neil, 660 F.Supp. 333, 339-40 (W.D.Va.1987) (university regulation prohibiting erection of protest shanties on lawn of building where Board of Visitors meets is not rendered valid by permission to erect shanties elsewhere on campus, in place not visible to members of Board, the intended audience), aff'd, 838 F.2d 735 (4th Cir.1988). See also Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chicago, 419 F.Supp. 667, 674 (N.D.Ill.1976) (parade route through black neighborhood not constitutional alternative to route through white neighborhood when intended audience was white). Cf. Ward v. Rock Against Racism, 109 S.Ct. at 2760 (regulation may permissibly diminish audience if remaining avenues of communication are adequate); ACORN v. City of Phoenix, 798 F.2d 1260, 1271 (9th Cir.1986) (alternative channels exist where there are “myriad and diverse” methods of fundraising available and the organization can convey its message by distributing literature to automobile occupants, the intended audience).

Community for Creative Non-Violence and Heffron, relied on by the government, are distinguishable. In Heffron, requiring the International Society for Krishna Consciousness to deliver its message to state fair patrons from a booth did not prevent it from reaching its audience. Heffron, 452 U.S. at 654-55, 101 S.Ct. at 2567-68. And in Community for Creative Non-Violence, the Court found that the organization faced no barrier to presenting its message to the media and the public, the demonstration’s intended audience. Community for Creative Non-Violence, 468 U.S. at 295, 104 S.Ct. at 3069-70. In contrast, the 75-yard security zone on the water side and the large crowd of the general public on the land side has clearly been shown to insulate the 3,000 or more Fleet Week official invitees on the pier from receiving the message of the Peace Navy and other demonstrators. The government has simply not met its burden of showing that there are sufficient alternative means of communicating the Peace Navy’s message.

II. Attorneys’ Fees.

The district court awarded fees of $24,-157.50 under the EAJA, 28 U.S.C. § 2412. The EAJA provides, in relevant part, that the district court

shall award to a prevailing party other than the United States fees and other expenses ... in any civil action (other than cases sounding in tort) ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (emphasis added). On appeal, the government argues only that its position was substantially justified and that therefore no fees should have been awarded.

We review the district court’s determination of substantial justification for an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 560, 108 S.Ct. 2541, 2547, 101 L.Ed.2d 490 (1988); Kali v. Bowen, 854 F.2d 329, 334 (9th Cir.1988); Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir.1987). “There is an abuse of discretion when a judge’s decision is based on an erroneous conclusion of law or when the record contains no evidence on which he rationally could have based that decision.” Petition of Hill, 775 F.2d 1037, 1040 (9th Cir.1985). This is a “highly deferential standard,” Kali, 854 F.2d at 334, and “[w]e may not substitute our view of what constitutes substantial justification for that of the district court; our review is limited to assuring that the district court’s determination has a basis in reason.” Pirus v. Bowen, 869 F.2d 536, 540 (9th Cir.1989). The government bears the burden of demonstrating substantial justification. Kali, 854 F.2d at 332; Barry, 825 F.2d at 1330.

On the other hand, “substantial justification” under the EAJA means that the government’s position must have a “reasonable basis both in law and in fact,” i.e., the government need not be “ ‘justified to a high degree,’ but rather ‘justified in substance or in the main’—that is, justified to a degree that could satisfy a reasonable person.” Underwood, 108 S.Ct. at 2550. See Barry, 825 F.2d at 1330; Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984). The government need not, therefore, “show that it had a substantial likelihood of prevailing.” United States v. First Nat’l Bank of Circle, 732 F.2d 1444, 1447 (9th Cir.1984); Hill, 775 F.2d at 1042. In making a determination of substantial justification, the court must consider the reasonableness of both “the underlying government action at issue” and the position asserted by the government “in defending the validity of the action in court.” Kali, 854 F.2d at 332. See United States v. Gavilan Joint Community College Dist., 849 F.2d 1246, 1248-49 (9th Cir.1988); Barry, 825 F.2d at 1330.

To meet its burden, the government argues that the Coast Guard was responding to what it considered legitimate safety and security concerns when it originally imposed the 75-yard security zone and that the government’s decision to defend the Coast Guard’s regulation was based on the plausible (albeit ultimately incorrect) legal theory that the regulation was merely a reasonable time, place and manner restriction which did not impermis-sibly infringe the Peace Navy’s First Amendment rights. On the other hand, the Peace Navy contends that the government has not met its burden, pointing to the government’s insistence on trial “despite repeated attempts by plaintiffs and hints from the judge that no distance over 25 yards was acceptable,” the lack of concrete evidence regarding a concrete terrorist threat and general failure to consider plaintiffs’ free speech rights.⁴

Although the issue is a close one in light of our deferential standard of review, we believe that the district court’s decision that the government’s position was not “justified in substance or in the main,” Underwood, 108 S.Ct. at 2550, constitutes an abuse of discretion. The Coast Guard reasonably tried to establish a security perimeter, particularly in light of Congress’ directive to “carry out ... measures, including ... the establishment of security and safety zones, ... to prevent or respond to acts of terrorism.” 33 U.S.C. § 1226(b)(1). It was also not unreasonable for the government to try to uphold the Coast Guard’s regulation when confronted with litigation. In other words, “substantial justification” is shown in this case because the government has argued its position “forcefully and well,” Kali, 854 F.2d at 334 (quotation omitted), Edwards v. McMahon, 834 F.2d 796, 803 (9th Cir.1987) (quotation omitted), “difficult questions” were raised and there is an absence of adverse precedent on point. Id. at 802-03. See Underwood, 108 S.Ct. at 2551-52 (the views of other courts on the merits of the issues presented can be relevant); Kali, 854 F.2d at 332 n. 2 (suggesting that the fact that the Ninth Circuit has not yet ruled on an issue may be relevant); Oregon Environmental Council v. Kunzman, 817 F.2d 484, 498 (9th Cir.1987) (absence of adverse precedent is relevant). The disagreement within this panel regarding the merits of the government’s appeal further suggests that a finding of substantial justification is appropriate.

We AFFIRM the district court’s decision enjoining the Coast Guard from imposing or enforcing a 75-yard security zone in the absence of new evidence of safety or security threats. The award of attorneys’ fees to the Peace Navy is REVERSED. Each party will bear its own costs.

AFFIRMED in part; REVERSED in part.

1 . "The question as to whether [the Peace Navy’s] First Amendment free speech rights have been infringed is a mixed question of law and fact ‘since it requires [the panel] to apply principles of First Amendment jurisprudence to the specific facts of this case.’ [citation omitted]. The appropriate standard of review is de novo because the application of constitutional law to the facts of this case ‘requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles.’ ” ACORN v. City of Phoenix, 798 F.2d 1260, 1263 (9th Cir.1986) (citations omitted).

2 . The Peace Navy seems to argue that an analysis of the validity of the regulation can be undertaken with reference only to the safety and security threat posed by the Peace Navy. This is simply not true. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 652, 101 S.Ct. 2559, 2566, 69 L.Ed.2d 298 (1981) ("The justification for the [challenged rule] should not be measured by the disorder that would result from granting an exemption solely to [the challenging party]”). See also Community For Creative Non-Violence, 468 U.S. at 296-97, 104 S.Ct. at 3070-71; ACORN, 798 F.2d at 1270. Therefore, the testimony of Coast Guard Lieutenant Commander James Spitzer that the Peace Navy has been “cooperative” and has not represented a threat to the audience on the reviewing stand is not alone dispositive.

3 . In addition to accessibility to an audience or forum generally, an alternative has been held not "ample" or adequate because, among other things, it is "more expensive” than the prohibited means of communication. City of Watseka, 796 F.2d at 1558. Cf. Taxpayers For Vincent, 466 U.S. at 812 n. 30, 104 S.Ct. at 2133 n. 30 ("[T]he Court has shown special solicitude for forms of expression that are much less expensive than feasible alternatives”). The government’s suggestion that the Peace Navy could purchase larger boats capable of handling larger banners may be constitutionally irrelevant for this reason alone.

4 . Failure to prevail does not raise a presumption of lack of substantial justification, Kali, 854 F.2d at 332, and the Peace Navy therefore correctly does not rely solely on its success below. Cf. Underwood, 108 S.Ct. at 2552 (the government could take a position which was substantially justified, yet lose).