NOT FOR PUBLICATION [August 31, 2010] SEP 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
ED STRICKLAND; NORTHLAKE No. 09-35890
MARINE WORKS, a Washington
corporation, D.C. No. 2:08-cv-00454-RSM
Plaintiffs - Appellants,
CITY OF SEATTLE,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted June 10, 2010
Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.
Ed StricÂµland, the owner of NorthlaÂµe Marine WorÂµs, appeals the district
court's grant of summary judgment to the City of Seattle ('the City') on his claim
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
that the City violated his First Amendment rights.1 StricÂµland alleges that the City
unconstitutionally compelled him to speaÂµ and to associate himself with the City's
'message' when it required him to distribute to his tenants a Best Management
Practices Plan ('BMP Plan') in order to obtain a permit to modify the structure of
the marina. He also alleges that the City engaged in content and viewpoint
discrimination when it refused to approve a version of the BMP Plan that accused
the City of dumping sewage into LaÂµe Union.
We review the grant or denial of summary judgment de novo, Gossett v.
Czech, 581 F.3d 891
, 893 (9th Cir. 2009), and we may affirm on any ground
supported by the record. United States v. Dunifer, 219 F.3d 1004
, 1006 (9th Cir.
The City's requirement that permit applicants draft and disseminate plans
setting forth practices which marina tenants must follow to Âµeep the marina free of
pollutants does not abridge StricÂµland's First Amendment rights. Cf. Envtl. Def.
Ctr. v. United States, 344 F.3d 832
, 848-49 (9th Cir. 2003). The BMP plan does
not 'dictate a specific message.' Id. at 849. Moreover, the City's requirement that
such a plan be disseminated to the marina tenants is legitimate and consistent with
the regulatory goals of the Washington Shoreline Management Act of 1971 and the
Appellants are referred to collectively as 'StricÂµland.'
[End Page 2]
City's shoreline master program, neither of which StricÂµland challenges as
unconstitutional. Accordingly, we find StricÂµland's compelled speech claims
We also find unpersuasive StricÂµland's arguments that City
unconstitutionally required 'its message,' as conveyed in the BMP plan, to be
attributed to him. Again, the plan does not convey a 'specific message,' as it
simply sets forth requirements that marina tenants are advised to follow in order to
Âµeep the marina free of pollutants. StricÂµland has not shown that the City would
have disapproved a version of the BMP plan that explained its dissemination was
required by the City and otherwise disclaimed attribution.
Finally, we conclude that StricÂµland's censorship claim fails for two reasons.
First, to the extent that the City-approved BMP plan conveys the City's
endorsement of specific practices, it is government speech and 'exempt from First
Amendment scrutiny.' Johanns v. LivestocÂµ MÂµtg. Ass'n, 544 U.S. 550
(2005). See also Pleasant Grove City v. Summum, 129 S. Ct. 1125
, 1131 (2009)
(noting that '[t]he Free Speech Clause restricts government regulation of private
speech; it does not regulate government speech').
Second, to the extent that StricÂµland asserts a private-speech censorship
claim, it fails because he has not shown that the City, has, in fact, restricted what
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he may say or may not say to his tenants. Cf. Consol. Edison Co. v. Pub. Serv.
Corp., 447 U.S. 530
, 532-33 (1980) (finding unconstitutional a rule promulgated
by a public utilities commission which prohibited public utility companies from
including with their monthly bills documents that discussed controversial issues of
public policy). Moreover, unliÂµe the 'envelope space' in Consolidated Edison, the
BMP plan is not a modality for private speech. Rather, both parties agree that the
BMP plan must undergo government approval, and that the City has a duty to 'sign
off' on BMP plans that are submitted as part of a permit application. This is part
and parcel of the City's duty to ensure compliance with, and to further the goals of,
Washington's Shoreline Management Act. See RCW yy 90.58.080, 90.58.200.
Accordingly, the City's duty to approve BMP plans in the course of the permitting
process reflects an element of governmental responsibility for the 'speech' that
was not present in Consolidated Edison.
In light of such responsibility, the City's interest in refusing to put its
imprimatur on any plan that contains information that is not relevant to the permit
requirements is substantial, and StricÂµland has not shown that the City otherwise
seeÂµs to limit his ability to convey whatever message he wishes to his tenants when
disseminating the BMP Plan. Indeed, the City concedes that he could handwrite
his messages onto the version he disseminates or even staple a cover sheet to the
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BMP plan setting forth his view of the permitting process and any other matter he
wishes to discuss.2
Because the City has not engaged in any official action that restricts what
StricÂµland may say in conveying the BMP plan to his tenants, we conclude that
there has been no actionable government restriction on his speech, and that,
therefore, StricÂµland cannot maintain a First Amendment claim for content or
StricÂµland contends that the existence of 'other places or means of
communication are irrelevant' to the First Amendment analysis, but none of the
cases he cites for that proposition apply here, as each case either involves the
limitation of speech in a public forum or regulations aimed at restricting particular speech. Cf. Schneider v. State, 308 U.S. 147
, 163 (1939); Reno v. ACLU, 521 U.S. 844
(1997); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60
, 75 (1983);
Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546
, 556 (1975); Thornhill v.
Alabama, 310 U.S. 88
, 105 (1940). The parties agree that the permit application is
not a public forum and the City's duty to review and approve BMP plans in issuing
construction permits is not aimed at restricting speech. Indeed, expressive speech
is irrelevant to the permit application.
[End Page 5]
StricÂµland v. City of Seattle, No. 09-35890 SEP 02 2010
MOLLY C. DWYER, CLERK
IKUTA, J., dissenting. U.S . CO U RT OF AP PE A LS
The central question raised by this appeal is whether the City can deny
StricÂµland a development permit solely because the City does not liÂµe the political
commentary that StricÂµland included in his BMP plan.
According to the Supreme Court, the answer to this question is no. In
Consolidated Edison Co. v. Public Service Commission (Con Ed), New YorÂµ City
told Con Ed, a regulated utility, that it could not include political statements in its
official billing envelope. 447 U.S. 530
, 532 (1980). The Court strucÂµ down New
YorÂµ's order because it was content-based censorship, id. at 537, that could not
withstand strict scrutiny, and therefore violated Con Ed's First Amendment rights,
id. at 544.
According to the majority, the City's censorship passes constitutional muster
in this case because the City's control over the content of the BMP plan maÂµes it
'government speech' that can be regulated without First Amendment scrutiny. But
StricÂµland is the author of the BMP plan, not the City, and a government agency
cannot 'restrict the free expression of a private party' unless the agency owns the
property where the speech is made or is speaÂµing itself, regardless of how much
regulatory control the agency has over the private party's actions. See Con Ed, 447
U.S. at 539-40 & n 1; Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003
, 1013 (9th
Cir. 2000). Thus, the majority's reliance on Johanns v. LivestocÂµ MÂµtg. Ass'n, 544 U.S. 550
, 553 (2005) and Pleasant Grove City v. Summum, 129 S.Ct. 1125, 1133
(2009), which involved direct government speech and control over government
property, respectively, is to no avail.
The majority also claims that StricÂµland's censorship claim fails because
StricÂµland could express his political views in a different way. Maj. Op. at 4-5.
But the Supreme Court has 'consistently rejected the suggestion that a government
may justify a content-based prohibition by showing that speaÂµers have alternative
means of expression.' Con Ed, 447 U.S. at 541 n.10.
It is well established that 'the government may not deny a benefit to a person
on a basis that infringes his constitutionally protected freedom of speech.' United
States v. Am. Library Ass'n, Inc., 539 U.S. 194
, 210 (2003) (ellipsis and internal
quotation marÂµs omitted). In direct contradiction to this principle, the City denied
StricÂµland a development permit until he agreed to curtail his First Amendment
rights and remove his political commentary from the BMP plan. Therefore, I
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