FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTA MONICA NATIVITY SCENES

COMMITTEE, a California non-profit

association,

Plaintiff-Appellant,

v.

CITY OF SANTA MONICA, a

municipal corporation,

Defendant-Appellee.

No. 13-55011

D.C. No.

2:12-cv-08657-

ABC-E

OPINION

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

February 6, 2015—Pasadena, California

Filed April 30, 2015

Before: Michael J. Melloy,

*

Jay S. Bybee,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Bybee

* The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.

Court of Appeals for the Eighth Circuit, sitting by designation.
2 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

SUMMARY**

Civil Rights

The panel affirmed the district court’s order dismissing a

complaint brought by the Santa Monica Nativity Scenes

Committee seeking to continue the decade-old practice of

exhibiting nativity scenes during the month of December in

Palisades Park, Santa Monica, California.

The Committee challenged the constitutionality of the

City of Santa Monica’s Ordinance No. 2401, which repealed

an exception to the City’s general ban on “unattended

displays” in its parks. The repealed exception had permitted

certain unattended “Winter Displays” in the City’s Palisades

Park every December, using a lottery system to allocate the

available space.

The panel held that the heckler’s veto doctrine had no

application in this case, which involved the City’s

generally-applicable repeal of a special exception to its policy

of excluding unattended displays from its parks. The panel

held that the repeal was a content-neutral time, place, and

manner regulation.

The panel held that the Committee’s Establishment

Clause claim was without foundation. The panel determined

that the City had several secular rationales for enacting

Ordinance 2401—e.g., improving the aesthetics of Palisades

Park and alleviating administrative burdens on the City. The

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 3

panel further held that it was not plausible that, considering

Ordinance 2401 in context, a “reasonable observer” would

conclude that its primary effect was to communicate a

message of disfavor toward Christianity.

COUNSEL

William J. Becker (argued), The Becker Law Firm, Los

Angeles, California; Michael J. Peffer, Pacific Justice

Institute, Santa Ana, California, for Plaintiff-Appellant.

Yibin Shen (argued), Deputy City Attorney, Jeanette

Schachtner, Chief Deputy City Attorney, Barry A.

Rosenbaum, Senior Land Use Attorney, Heidi Von Tongeln,

Deputy City Attorney, Santa Monica, California, for

Defendant-Appellee.

OPINION

BYBEE, Circuit Judge:

No trip to Santa Monica, California, is complete without

a visit to Palisades Park—a picturesque strip of land 14

blocks long that overlooks Santa Monica State Beach and the

Pacific Ocean and is regarded as the “crown jewel” of the

City’s park system. Beginning in about 1955, every year

during December, local residents erected a series of large

dioramas in the Park depicting various scenes from the

biblical story of Christmas. The display consisted of 14

booths, each 18 feet long and filled with life-sized

mannequins and decorations. Putting up and taking down this

elaborate display was a significant undertaking, and in 1983,
4 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

the nonprofit Santa Monica Nativity Scenes Committee was

organized to manage the yearly construction of the dioramas.

In 1994, the City prohibited the construction of

unattended displays—i.e., large, multi-day installations—in

its parks, but it nonetheless continued to allow the nativity

scenes. Subsequently, in 2003, the City Council enacted an

exception to the general prohibition on unattended displays. 

This “Winter Display” exception authorized unattended

displays during the month of December, and only in Palisades

Park. Under the “Winter Display” rule, all members of the

community, not just the Committee, were permitted to put up

displays, and display space was to be allocated on a firstcome, first-served basis.

The Winter Display system functioned without incident

in its first few years of existence, during which time the only

applicant who requested substantial display space was the

Committee. In 2011, however, applications for Winter

Display space surged. That year, a number of atheists who

opposed the placement of religious displays in Palisades Park

applied for Winter Display space in what the Committee

alleges was a coordinated attempt to keep the space away

from the Committee and other religious groups. The City

used a lottery system it had created to allocate the available

space, and the atheists received the majority of the display

spots. The Committee and the atheists both vowed to flood

the display-space lotterywith even more applications in 2012.

Rather than continue the lottery system and expend the

effort necessary to process all of these expected applications,

the City elected to repeal the Winter Display exception and

keep the Park free of all unattended displays. The Committee

responded by suing the City, alleging that the repeal
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 5

ordinance violated the Committee’s right to free speech

because it was an unconstitutional “heckler’s veto.” The

Committee also alleged that the repeal violated the

Establishment Clause by conveying the message that the City

disapproved of Christianity.

Neither of these allegations constitutes a viable claim for

relief under the First Amendment. The heckler’s veto

doctrine, which applies in situations where a particular

speaker is silenced because his speech invites opposition,

disorder, or violence, has no application in this case, which

involves the City’s generally-applicable repeal of a special

exception to its policy of excluding unattended displays from

its parks. The repeal was a content-neutral time, place, and

manner regulation, not a heckler’s veto. The Committee’s

Establishment Clause claim, meanwhile, is without

foundation. We therefore affirm the district court’s order

dismissing the Committee’s complaint under Federal Rule of

Civil Procedure 12(b)(6).

I

In the early years of the nativity scenes’ existence, the

City of Santa Monica had no formal regulations dealing with

private, unattended structures on public park land, and the

City allowed and even encouraged the yearly display of the

Committee’s nativity scenes. In 1994, the City enacted an

ordinance prohibiting the erection of any “tent, lodge, shelter,

or structure” in city parks without authorization from the

City. Following the enactment of this ordinance, the City

issued “community events” permits for the nativity scenes

each year.
6 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

In 2001, however, the City adopted a new “Community

Events Ordinance” that did not cover multi-day events or

installations. The Community Events Ordinance’s more

restrictive scope meant that the City could no longer permit

multi-day, unattended displays such as the nativity scenes as

“community events.” In 2001 and 2002, the nativity scenes

were thus “installed with the City’s knowledge but without

permits.” The City subsequentlyreceived inquiries from both

the Committee and City residents about the legal status of the

nativity scenes.

In order to provide a legal framework that would allow

the “long-standing tradition” of the nativity scenes to

continue while respecting content neutrality, the CityCouncil

passed an ordinance in 2003 that modified the general

prohibition on “structures” in City parks, adding an explicit

exception for so-called “Winter Displays.” The ordinance

defined these displays as “[u]nattended installations or

unattended displays in Palisades Park . . . during the month of

December in an area designated by City Council resolution.” 

The ordinance provided that, if the amount of Winter Display

space requested was greater than the area that the City

Council had allotted, spaces would be allotted on a firstcome, first-served basis, “irrespective of the content of [each]

display or installation and irrespective of the identity of the

person or persons responsible for the display.” The City

Council subsequently passed a separate ordinance specifying

an area of Palisades Park roughly two city blocks long as the

area available for Winter Displays.

The first-come, first-served system for Winter Displays

was in place from 2003 until 2010. During this period, the

number of requests for space in the Winter Display area never

exceeded about half of the total area that the CityCouncil had
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 7

allotted, or one city block. The Committee continued to

display its 14 nativity scenes each year.

In 2010, the demand for Winter Display space increased. 

The City received three applications for space; two of these

applications requested the same space in the same city block,

which had never happened before, and for the first time, all

of the space in the two city blocks that the City Council had

designated was allocated to applicants. The Winter Displays

filled one city block and also included “two sizeable

displays” in the second block. One of the three applicants

that year was Damon Vix, an atheist who opposed the nativity

scenes’ presence on City property. Vix erected only a single

display in the space he was assigned, leaving the rest of his

area empty. The display was a chain-link fence surrounding

a signboard bearing a quote from Thomas Jefferson:

“Religions are all alike—founded upon fables and

mythologies.”

The City anticipated that demand for Winter Display

space would increase even more in 2011 and accordingly

revised its Winter Display guidelines to create a lottery

system that could be used to allocate space fairly in the event

that multiple requests were submitted the same day. The City

divided the area of the Park allotted for Winter Displays into

21 separate “spots” and allowed applicants to request up to

nine spots each.

In the 2011 application cycle, Vix and several other

atheists each applied for the maximum number of spots. The

City received 13 applications requesting a total of 109

spots—far more than the 21 spots available—and was

required to run the lottery it had set up. In the lottery, two of

Vix’s confederates received nine spots each, Chabad of Santa
8 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

Monica (a Jewish religious organization) received one spot,

and the Committee—which came in fourth in the lottery—

received two spots. As a result, the Committee had space for

just three of the 14 nativity scenes it traditionally erected. 

The competition for display space attracted both local and

national attention; the New York Times published a story in

December 2011 describing Vix’s opposition to the nativity

scenes and proclaiming the City to be “embroiled in a

seasonal controversy it has somehow avoided for decades.” 

Jennifer Medina, Where Crèches Once Stood, Atheists Now

Hold Forth, N.Y. Times, Dec. 22, 2011, at A28.

In early 2012, the City Attorney, Marsha Jones Moutrie,

submitted two separate reports to the City Council in which

she recommended that the Council eliminate the legal

exception permitting Winter Displays in Palisades Park. In

these reports, Moutrie explained that, because the First

Amendment prohibited the City from picking and choosing

which displays to allow in the Park during December, the

City had only two options: it could continue with the lottery

system it had in place, or it could repeal the Winter Display

system altogether.

Moutrie recommended the latter option. She explained

that Santa Monica residents wanted to “preserve the aesthetic

qualities” of the Park and their ability to “look at the ocean

vista” for which the Park was renowned, rather than continue

to allow the Winter Displays. She also reported that,

according to City staff, the lottery system for display space

was “time consuming and costly” to operate, requiring the

investment of hundreds of hours of staff time—a problem that

was likely to intensify in the future because the groups

involved had indicated that they planned to “flood” the lottery

process in future years “to increase their odds of being
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 9

allocated more spaces.” Moutrie concluded that eliminating

the Winter Display exception would “serve the purpose[s] of

resolving the controversy, eliminating legal risks, conserving

the staff time and resources necessary to operate a

constitutionally valid regulatory system, conforming usage of

Palisades Park to the long standing, City-wide standard which

prohibits unattended displays in parks, and protecting the

views of the park and ocean.”

The City Council agreed with Moutrie’s conclusions and,

on June 26, 2012, it unanimously adopted Ordinance 2401,

which repealed the Winter Display exception. Three months

later, the Committee filed suit in the Central District of

California against the City and the seven members of the City

Council, alleging violations of the First Amendment’s Free

Speech and Establishment Clauses and of the Fourteenth

Amendment’s Equal Protection Clause. The Committee

prayed for declaratory relief, an injunction against the City’s

“policy . . . of banning private unattended displays in

Palisades Park,” nominal damages, and attorneys’ fees.

The Committee moved for a preliminary injunction a day

after filing its complaint. After a hearing, the district court

denied this motion, explaining that the Committee had not

shown a likelihood of success on the merits of any of its

constitutional claims.1

1 The district court’s denial of the Committee’s motion for a preliminary

injunction is before this court as part of the present appeal. Because we

affirm the district court’s Rule 12(b)(6) dismissal of the complaint,

however, we need not separately address the question whether the denial

of the Committee’s motion for a preliminary injunction was proper. See,

e.g., Cal. ex rel. Younger v. Mead, 618 F.2d 618, 622 (9th Cir. 1980).
10 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

While the motion for a preliminary injunction was

pending, the defendants moved to dismiss the complaint for

failure to state a claim. After denying the preliminaryinjunction motion, the district court granted this 12(b)(6)

motion as to the City; the Committee agreed voluntarily to

dismiss the individual defendants with prejudice.

In its dismissal order, the district court held that both of

the Committee’s First Amendment claims were legally

deficient. The court determined that the City’s policy of

banning all unattended displays in Palisades Park was content

neutral, rejecting the Committee’s argument that the ban

should be deemed a content-based “heckler’s veto.” After

concluding that the ban was content neutral, the district court

held that it was a valid time, place, and manner regulation and

that the Committee had therefore failed to state a claim under

the Free Speech Clause.

The district court also held, under the tripartite framework

of Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), that the

total ban did not violate the Establishment Clause. The

district court dismissed the Committee’s First Amendment

claims with prejudice.2 The Committee timely appealed.

We review the district court’s dismissal of the complaint

under Rule 12(b)(6) de novo. Gant v. Cnty. of L.A., 772 F.3d

608, 614 (9th Cir. 2014). As part of this assessment, “we

inquire whether the complaint’s factual allegations, together

with all reasonable inferences, state a plausible claim for

relief.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc.,

2 The order did not address the Committee’s equal-protection claim,

which the Committee voluntarily dismissed with prejudice.
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 11

637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal,

556 U.S. 662 (2009)).

II

We begin with the Committee’s claim under the Free

Speech Clause. When analyzing the validity of a regulation

under this Clause, we “apply a forum analysis” whose first

step involves determining what type of forum is affected by

the regulation. Flint v. Dennison, 488 F.3d 816, 830 (9th Cir.

2007). “Once the forum is identified, we determine whether

[the] restrictions on speech are justified by the requisite

[legal] standard.” Id. (internal quotation marks omitted).

All agree that Palisades Park—the forum that Ordinance

2401 finally and completely closed to unattended

displays—is a traditional public forum. See, e.g., Berger v.

City of Seattle, 569 F.3d 1029, 1036 (9th Cir. 2009) (en banc)

(noting that parks are “categorized for First Amendment

purposes as traditional public fora”). In such a forum, the

government’s ability to regulate speech is “sharply

circumscribed.” Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 45 (1983). A content-based speech

regulation in a traditional public forum is subject to strict

scrutiny and will be upheld only if it is narrowly drawn to

serve a compelling governmental interest. Id.

Content-neutral time, place, and manner regulations, on

the other hand, are permitted in traditional public forums if

the regulations are narrowly tailored to serve a significant

governmental interest and leave open ample alternative

channels of communication. Berger, 569 F.3d at 1036 (citing

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). 

Both this court and the Supreme Court have indicated,
12 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

moreover, that a content-neutral ban on all private unattended

displays in a city’s parks is very likely to be a legitimate time,

place, and manner regulation. Capitol Square Review &

Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995); id. at

783–84 (Souter, J., concurring); Am. Jewish Cong. v. City of

Beverly Hills, 90 F.3d 379, 384 (9th Cir. 1996) (en banc)

(“The City constitutionally could ban all unattended private

displays in its parks.”); see also Lubavitch Chabad House,

Inc. v. City of Chi., 917 F.2d 341, 347 (7th Cir. 1990) (“We

are not cognizant of[] . . . any private constitutional right to

erect a structure on public property. If there were, our

traditional public forums, such as our public parks, would be

cluttered with all manner of structures.”). Indeed, the

Committee concedes, in light of this case law, that such a ban

is constitutional as long as it is content neutral.

Much depends, therefore, on whether Ordinance 2401 is

content based or content neutral—the question to which we

now turn.

A. Content Neutrality

The Committee does not dispute that Ordinance 2401 is

facially content neutral. Nor could it. By repealing the legal

exception that previously allowed for Winter Displays, the

ordinance effectively bans all unattended displays in

Palisades Park. It does not discriminate between particular

displays based on their content.

The Committee argues, however, that Ordinance 2401

should be considered content based pursuant to the

“heckler’s-veto” doctrine, which holds that a regulation of

speech is to be deemed content based when “listeners react to

speech based on its content and the government then ratifies
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 13

that reaction by restricting the speech in response to listeners’

objections.” Ctr. for Bio-ethical Reform, Inc. v. L.A. Cnty.

Sheriff Dep’t, 533 F.3d 780, 789 (9th Cir. 2008) (emphasis

omitted). The doctrine prohibits the government from

pointing to the “reaction of listeners” to speech as a

“secondary effect” justifying that speech’s regulation; in

other words, the government may not regulate speech on the

grounds that it will cause its hearers anger or discomfort. Id.

(citing Boos v. Barry, 485 U.S. 312, 321 (1988)). If speech

provokes wrongful acts on the part of hecklers, the

government must deal with those wrongful acts directly; it

may not avoid doing so by suppressing the speech.

The Committee contends that Ordinance 2401 was a

heckler’s veto because the CityCouncil enacted it in response

to the atheists’ objections to the Committee’s nativity scenes. 

It argues that the City reacted to the controversy that had

begun to brew over the competing claims for display space in

Palisades Park by opting to suppress speech there altogether. 

It cites to City Attorney Moutrie’s reports, both of which

reference the importance of resolving the “controversy” that

had arisen over the Winter Displays, and to the public

remarks of individual City Council members during

deliberations over Ordinance 2401, when a number of

Council members expressed fear that the display controversy

would escalate and turn ugly.

As the Committee is forced to concede, however, this

case is far afield from the heartland of the heckler’s veto

doctrine. The prototypical heckler’s veto case is one in which

the government silences particular speech or a particular

speaker “due to an anticipated disorderly or violent reaction

of the audience.” Rosenbaum v. City & Cnty. of S.F.,

484 F.3d 1142, 1158 (9th Cir. 2007); see also Zamecnik v.
14 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

Indian Prairie Sch. Dist. #204, 636 F.3d 874, 879 (7th Cir.

2011) (heckler’s veto doctrine applies when particular,

protected speech is “met by violence or threats or other

unprivileged retaliatory conduct”); Richard F. Duncan, Just

Another Brick in the Wall: The Establishment Clause as a

Heckler’s Veto, 18 Tex. Rev. L. & Pol. 255, 264 (2014) (“The

classic heckler’s veto case arises when someone wishes to

speak in a public forum and someone else threatens to

violently stop the speech.”). Indeed, every appellate decision

applying the heckler’s veto doctrine of which we are aware

involved the restriction of particular speech due to listeners’

actual or anticipated hostility to that speech.3 The

3

See, e.g., Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123,

126–27, 134 (1992) (ordinance allowing parade permit fees to be adjusted

based on expected cost of maintaining order during the parade was content

based because the adjustments would “depend on [an] administrator’s

measure of the amount of hostility likely to be created by the speech based

on its content”); Terminiello v. City of Chi., 337 U.S. 1, 5 (1949)

(disorderly conduct ordinance violated First Amendment because it

“permitted conviction of [a defendant] if his speech stirred people to

anger, invited public dispute, or brought about a condition of unrest”);

United States v. Marcavage, 609 F.3d 264, 283 (3d Cir. 2010) (park

rangers engaged in content-based restriction of protester’s speech when

they removed him from a public street near the Liberty Bell because they

were “concerned by visitors’reactions to [his] message and [his] signs[]”);

Ctr. for Bioethical Reform, 533 F.3d at 789 (state law, if applied to

protesters driving truck with anti-abortion messages around a public

school, would be an unconstitutional heckler’s veto because it “permitted

[the speech] until the students and drivers around the school reacted to it,

at which point the speech was deemed disruptive and ordered stopped”);

Lewis v. Wilson, 253 F.3d 1077, 1081–82 (8th Cir. 2001) (state’s refusal

to allow driver to have license plate with number “ARYAN-1” was an

unconstitutional heckler’s veto because the decision was based on the

“mere possibility of a violent reaction” to the license plate by other

drivers); Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v.

Dist. of Columbia, 972 F.2d 365, 374 (D.C. Cir. 1992) (city’s proposal to
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 15

Committee’s heckler’s veto claim would thus have some

force if the City, in response to the atheists’ complaints and

applications for space, had decided that no religious displays

could henceforth be erected in Palisades Park.

But the City did no such thing. Instead, as the district

court noted below, the City adopted a generally applicable

regulation meant to balance “competing speech rights” rather

than to “suppress[] . . . a [particular] message because of the

audience’s reaction to it.” In 2010 and 2011, the City was

confronted for the first time in its history with a profusion of

requests for displayspace in Palisades Park—requests that the

City reasonably believed the First Amendment required it to

treat equally, given that the Park is a traditional public

forum.4 The City made an effort to accommodate both the

Committee and the other applicants for space, but the City

soon came to the conclusion that the administrative problems

and intramural strife caused by the Winter Display lottery

system outweighed the benefits of continuing it. To address

the problems and restore communal peace, the City adopted

restrict location of KKK march due to the “threat of listeners’ violent

reaction to the message being delivered” was content based).

4

In its briefs, the Committee argues at great length that the City could

have excluded the atheists from the Winter Display system because the

atheists’ displays were not intended to celebrate “[l]egitimate winter

holidays.” Whether the First Amendment in fact permitted the City to

exclude the atheists from the Winter Display system is not, however,

relevant to the outcome here, and we therefore decline to render an

advisory opinion on that issue. It is sufficient for present purposes to note

that the City set for itself the laudable goal of treating all applicants

equally and that, once the City concluded that perpetuating the Winter

Display system would be more trouble than it was worth, the City

addressed the problemwith a neutral regulation that banned all unattended

displays, whether religious or secular.
16 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

an evenhanded regulation—Ordinance 2401—that removed

the legal exception that permitted the “Winter Displays.” The

ordinance did not single out the Committee’s speech and,

accordingly, was not the stuff of a traditional heckler’s veto.

We acknowledge that, described at a high level of

abstraction, Ordinance 2401 sounds a bit like a heckler’s

veto. The repeal of the Winter Display exception did, in

some sense, ratify the atheists’ opposition to the nativity

scenes; the atheists started a “controversy” over the scenes,

and the City reacted by excluding the scenes (along with all

other unattended displays) from Palisades Park. We would

expand the heckler’s veto doctrine significantly, however, if

we held here that the doctrine applies to neutral regulations

that do not target particular speech, and the logic underlying

the heckler’s veto doctrine does not support our doing so. 

The heckler’s veto doctrine is concerned with the possibility

that particular speech will be wrongfully excluded from the

marketplace of ideas merely because it is “offensive to some

of [its] hearers.” See Bachellar v. Maryland, 397 U.S. 564,

567 (1970). That possibility is absent when a regulation

applies to all speech and does not allow for arbitrary

enforcement based on particular speech’s “offensive[ness].” 

See Ovadal v. City of Madison, 416 F.3d 531, 536–37 (7th

Cir. 2005) (city’s policy of prohibiting signs hung from

highway overpasses if they “impair[ed] traffic safety” was

content based because officers could “decide on an ad hoc

basis whether to allow the protest to continue depending

on how drivers react to the signs,” but a general ban on

all signs on overpasses would “certainly be a legitimate

place and manner restriction because it would be clearly

content-neutral”).
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 17

We find no support in federal case law, moreover, for the

proposition that a city that chooses to permit unattended

displays in its public spaces for some period of time becomes

estopped by the First Amendment from withdrawing that

permission if those displays happen, eventually, to invite

“controversy.” Indeed, we impliedly rejected that verynotion

in our decision in American Jewish Congress v. City of

Beverly Hills. There, the city of Beverly Hills had a general

policy against unattended displays on public property but

made an exception every year for a large menorah erected in

a park during Chanukah. 90 F.3d at 380–81. Two

individuals unsuccessfully applied for permission to erect a

“winter solstice” display and a Latin cross in the park, and the

denial of their applications led to a challenge to the city’s

permitting policy for displays. Id. at 381. This court held

that Beverly Hills’ policy violated the First Amendment

because it was susceptible to arbitrary application. Id. at 385. 

In the course of reaching this conclusion, we commented in

dicta that the city “constitutionally could ban all unattended

private displays in its parks.” Id. at 384. We did not suggest

that the city was barred from adopting such a ban now that a

controversy had arisen over the menorah’s privileged status.

The First Circuit came to a similar conclusion in Knights

of Columbus, Council #94 v. Town of Lexington. 272 F.3d 25

(1st Cir. 2001). That case involved a crèche that had been

erected on the Battle Green in Lexington, Massachusetts, for

many decades—first by the town itself and then, from 1973

onward, by two fraternal organizations. The crèche “long

ha[d] been a source of friction within” Lexington, and some

residents had “complained bitterly about its presence on the

Green.” Id. at 29. In the fall of 1999, the town received

“requests to allow a wide range of other religious structures

on the Green for comparable periods,” including displays
18 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

relating to Judaism, “witchcraft,” and “the Egyptian Sun God

Ra.” Id. The town, which was unwilling to “compromise the

aesthetic and historic elements of the Green” by permitting all

of these displays, decided to ban the erection of unattended

structures on the Green. Id. at 29–30. The fraternal

organizations responsible for the crèche sued, alleging a

violation of their freedom of speech.

The First Circuit upheld the ban. The court explained

that, because the ban was “facially neutral,” the only basis on

which the court could hold that the town’s action was content

based was the fraternal organizations’ claim that “the

regulation’s primary purpose [was] to prevent display of the

crèche.” Id. at 31. The court determined, however, that

“nothing in the record . . . evince[d] a content-based animus

against the crèche.” Id. at 32. On the contrary, the record

indicated that the town had acted out of a desire to protect the

Green and “treat all religious expression even-handedly.” Id.

The Knights of Columbus court did not, in other words,

consider Lexington’s ban on unattended displays to be a

heckler’s veto directed at the crèche, even though that ban

had been enacted to resolve a controversy over display space

that the crèche had previously monopolized.

We similarly conclude that Ordinance 2401 is content

neutral. The fact that the speakers who succeeded in crowding

the nativity scenes out of Palisades Park were atheists who

explicitly opposed the scenes’ display is surely a bitter pill for

the Committee, and it may appear to some observers that the

City’s decision to ban unattended displays from Palisades

Park affected the Committee disproportionately. By 2011,

however, the nativity scenes were living on borrowed time. 

The scenes owed theirlong, uninterrupted, and near-exclusive

occupation of the Park—a public forum open to all—largely
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 19

to the fact that for many years, hardly anyone else in the

community wished to put up displays there. That was bound

to change sooner or later, and in 2010, it finally did. By

repealing its Winter Display exception, the City did no more

than treat all potential displays equally. Accord id. at 32 (“If

the [plaintiffs] feel that the burden of the regulation falls most

heavily on them, it is perhaps because they are now held to

the same standard as all other similarly situated applicants. 

While the adjustment may not be an easy one, the outcome is

inescapably content-neutral.”).5

B. Time, Place, and Manner Regulation

Although we conclude that Ordinance 2401 is content

neutral, that does not mean that the ordinance necessarilywas

constitutional. In order to pass constitutional muster as a

time, place, and manner regulation, Ordinance 2401 must also

be “narrowly tailored to serve a significant governmental

interest” and “leave open ample alternative channels for

communication.” Ward, 491 U.S. at 791. We have little

5 To say that generally applicable bans on particular forms of speech are

content-neutral regulations is not to suggest that such bans will always be

constitutional. On the contrary, the Supreme Court has indicated that such

bans are suspect when they suppress more speech than is necessary to

accomplish their objectives. See, e.g., Martin v. City of Struthers,

319 U.S. 141, 145–46 (1943) (ordinance prohibiting ringing doorbells for

the purpose of distributing handbills violated the First Amendment,

because “[d]oor to door distribution of circulars is essential to the poorly

financed causes of little people”); Schneider v. Town of Irvington,

308 U.S. 147, 162 (1939) (ordinances banning all distribution ofliterature

in public streets in order to prevent litter were invalid under the First

Amendment; the better course was for cities to punish “those who actually

throw papers on the streets”). In this section of our opinion, we hold only

that blanket bans applicable to all speakers are content-neutral.
20 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

difficulty, however, in concluding that the ordinance satisfies

all of these requirements.

1. Significant governmental interests

Ordinance 2401 served at least two significant

governmental interests: First, it preserved the aesthetic

qualities of Palisades Park and prevented obstruction of

patrons’ views of the ocean. The Supreme Court has held on

several occasions that governments may regulate speech for

aesthetic purposes. See, e.g., Clark v. Cmty. for Creative

Non-Violence, 468 U.S. 288, 296 (1984) (National Park

Service could ban camping in certain public parks in order to

“maintain[]” the parks “in an attractive and intact condition”);

Members of City Council of L.A. v. Taxpayers for Vincent,

466 U.S. 789, 808 (1984) (city of Los Angeles could ban

posters on public utility poles in order to combat “visual

clutter and blight”). And the City has long manifested its

intent to preserve its parks from clutter: since at least 1994,

it has prohibited unattended displays in all parks while

making a limited exception for “Winter Displays” in

Palisades Park. Ordinance 2401 simplymade that prohibition

applicable to all of Santa Monica’s parks at all times.

Second, Ordinance 2401 conserved the City’s resources. 

Prior to 2011, coordinating the Winter Displays in Palisades

Park had been an easy task for the City’s staff; in 2011,

however, the staff spent “hundreds of hours” administering

the lottery system, and all indications were that the system

would become more time-consuming in the future as the

number of applications for space increased. It was

permissible for the City to seek to alleviate this burden on its

employees’ time. See, e.g., Clark, 468 U.S. at 296–97

(National Park Service’s total ban on sleeping in certain parks
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 21

could be justified on the ground that operating a selective

permitting system for camping demonstrations would be an

administrative burden on the Park Service).

The Committee dismisses both of these rationales as

insignificant and argues that Ordinance 2401 does not further

either of them. “Conclusory allegations of law, however, are

insufficient to defeat a motion to dismiss.” Lee v. City of

L.A., 250 F.3d 668, 679 (9th Cir. 2001). The Committee must

allege facts that show that the Ordinance 2401 did not serve

the ends the City said it did, and the Committee has failed to

do this. The Committee has no answer whatsoever to the

statements by City employees—which the Committee itself

reproduced as an exhibit to its complaint—that eliminating

the Winter Displays saved the City many hours of staff time,

other than stating that it simply does not believe the City. 

And with respect to the City’s stated aesthetic concerns, the

Committee has offered only one factual allegation that

indicates that those concerns were insignificant: the fact that

at the time that the City created the formal Winter Display

system in 2003, the City’s staff believed that allocating a twoblock area of Palisades Park for the displays would not cause

problems. This fact does not plausibly show that the aesthetic

concerns the City cited in 2012 to justify Ordinance 2401

were insignificant. The City was entitled to reassess

conditions in the Park as it gained experience with the Winter

Display system over time, and by 2012, the City was clearly

convinced that change was needed.

The Committee also contends that, in any event, the

City’s stated concerns are not valid bases for regulation

because they stem from the “emotive impact” of the

Committee’s religious speech. But the Committee has not

alleged any plausible facts to support this claim. The City’s
22 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

regulation targeted the aesthetic and logistical problems

created by the influx of display space applications in 2011,

not the emotional impact of the nativity scenes on people who

saw them. The atheists who applied for display space in

Palisades Park may have done so in reaction to the presence

of the nativity scenes, but that does not mean that any

problems that the increased number of applications created

for the City are a consequence of the “emotive impact” of the

nativity scenes. A regulation impermissibly targets the

“emotive impact” of speech only if it is justified by reference

to the immediate emotional reaction of listeners. See Boos,

485 U.S. at 321 (invalidating ordinance aimed solely at

“protect[ing] the dignity of foreign diplomatic personnel by

shielding them from speech that is critical of their

governments”—protest signs outside of embassies). 

Ordinance 2401 is not such a regulation.

2. Narrow tailoring

We also conclude that Ordinance 2401 was narrowly

tailored. Although the Committee points out several steps

that the City could have taken to address the problems it

identified, short of repealing the Winter Display exception,

these observations are irrelevant to the question of narrow

tailoring. A time, place, and manner regulation “need not be

the least restrictive or least intrusive means” of furthering the

government’s interests in order to be narrowly tailored. 

Ward, 491 U.S. at 798. Rather, narrow tailoring requires only

that a regulation “promote[] a substantial government interest

that would be achieved less effectively absent the regulation”

and not “burden substantially more speech than is necessary

to further” that interest. Id. at 799.
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 23

There is no question that Ordinance 2401 furthers the

City’s interests in preserving the aesthetics of Palisades Park

and conserving City resources. Nor did the ordinance burden

substantiallymore speech than necessary: unattended displays

contribute to clutter and require laborious permitting in ways

that other forms of speech, even attended displays, usually do

not, and the ordinance affected only unattended displays. See

Frisby v. Schultz, 487 U.S. 474, 485 (1988) (stating that a

regulation is narrowly tailored if it “eliminates no more than

the exact source of the ‘evil’ it seeks to remedy”). The City’s

regulation therefore satisfies the narrow tailoring

requirement.

3. Alternative channels of communication

Finally, we find that Ordinance 2401 leaves open ample

alternative channels of communication. As the district court

observed, there remain “many alternative avenues” by which

the Committee can communicate its religious message: it can

erect its unattended nativity scenes on private property, and

it can speak in many other ways in Palisades Park, including

erecting one-day, attended displays, leafleting, preaching,

holding signs, and caroling.

6

6 During the pendency of this appeal, the City made two requests for

judicial notice of various documents that purport to show that, in the years

after Ordinance 2401 was passed, the Committee did several of these

things, including displaying the unattended nativity scenes on private

property and holding live Christmas events in Palisades Park. The

pertinent question for our purposes, however, is whether Ordinance 2401

left open ample alternative channels of communication; it does not matter

whether the Committee actually availed itself of those alternative

channels. We therefore deny the City’s two requests for judicial notice on

the grounds that the documents to be noticed are irrelevant. See, e.g., Ruiz

v. City of Santa Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (denying
24 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

The Committee offers several arguments why the

alternative channels of communication left to it are

inadequate. First, it contends that “[a]n alternative is not

ample if the speaker is not permitted to reach the intended

audience,” Bay Area Peace Navy v. United States, 914 F.2d

1224, 1229 (9th Cir. 1990) (internal quotation marks

omitted), and that its “intended audience” is visitors to

Palisades Park, which it claims is “the optimum location for

reaching the greatest number of spectators” in Santa Monica. 

Even assuming, however, that the Committee is entitled to

insist that it be specifically allowed to reach visitors to

Palisades Park, the Committee is still able to speak in the

Park after Ordinance 2401; it simply cannot do so by erecting

large, unattended structures. Compare Knights of Columbus,

272 F.3d at 34 (ban on unattended structures on Battle Green

left open alternative channels of communication, in part

because a creche could still appear on the Green as an

attended display), with Bay Area Peace Navy, 914 F.2d at

1229 (75-yard security zone around reviewing stand for

Navy’s “Fleet Week” did not afford pacifist demonstrators

ample alternative channels of communication, because it

prevented them from reaching their intended audience of

visitors to Fleet Week).

Second, the Committee argues that it would be

“impractical” for it to arrange for the nativity scenes to be

attended displays because the Committee “cannot practically

recruit volunteers or afford to pay people to be present” while

the displays are up. In general, however, the fact that the

alternative channels of communication left open by a

regulation are more expensive is not, by itself, sufficient to

request for judicial notice, in part because information to be noticed did

not bear on the “relevant issue” before the court).
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 25

show that those alternative channels are inadequate. See, e.g.,

Taxpayers for Vincent, 466 U.S. at 812 & n.30 (ordinance

prohibiting posting of signs on utility poles left open

alternative channels of communication, such as speaking in

person and distributing literature in the same locations—both

of which tactics are presumably more expensive); Kovacs v.

Cooper, 336 U.S. 77, 88–89 (1949) (fact that “more people

may be more easily and cheaply reached by sound trucks”

than by other means was not enough to “call forth

constitutional protection” for that specific mode of

communication).

Finally, the Committee argues in its reply brief that the

First Amendment “protects [its] right to choose a particular

means or avenue of speech”—i.e., unattended displays. But

although we have held that speakers have a First Amendment

right to “choose a particular means or avenue ofspeech . . . to

advocate their cause,” we have also made clear that “[t]his is

not the same as saying that [speakers] have a First

Amendment right to dictate the mannerin which they convey

their message within their chosen avenue. Government may

regulate the manner of speech in a content-neutral way.” Foti

v. City of Menlo Park, 146 F.3d 629, 641–42 (9th Cir. 1998)

(although abortion protesters had the right to communicate

their message by picketing, city was permitted to regulate the

manner of this picketing, e.g. by regulating the size and

number of their signs). Thus, even assuming that the First

Amendment protects the Committee’s right to speak through

large displays, the City was permitted to limit the manner of

that speech by requiring that such displays be attended or

erected as part of limited-duration “community events.” See

Foti, 146 F.3d at 641–42; see also United Bhd. of Carpenters

& Joiners of Am. Local 586 v. NLRB, 540 F.3d 957, 969 (9th

Cir. 2008) (“We will not invalidate a regulation merely
26 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

because it restricts the speaker’s preferred method of

communication.”). Ordinance 2401, which allows the

Committee to disseminate its message in person in many

different ways, including attended displays and unattended

displays that are part of single-day “community events,”

therefore leaves open sufficient alternative channels of

communication.

Because Ordinance 2401 was a valid time, place, and

manner regulation, we affirm the district court’s conclusion

that the Committee’s claim under the Free Speech Clause is

not viable and must be dismissed.

III

The other claim at issue is the Committee’s claim that

Ordinance 2401 violated the Establishment Clause because it

conveyed impermissible “disapproval of and hostility toward

the Christian religion.” We need not detain ourselves long

with this allegation, which falls well short of amounting to a

plausible claim for relief.

A regulation violates the Establishment Clause if (1) it

lacks a “secular legislative purpose,” (2) “its principal or

primary effect” is to “advance[ or] inhibit[] religion,” or (3)

it “foster[s] an excessive government entanglement with

religion.” Lemon, 403 U.S. at 612–13 (internal quotation

marks omitted).7 The Committee makes no attempt to argue

7 As a mode of analysis for Establishment Clause inquiries, Lemon has

been much criticized both inside and outside the Court—and sometimes

ignored by the Court altogether, see, e.g., Town of Greece v. Galloway,

134 S. Ct. 1811 (2014). Nevertheless, Lemon remains the Court’s

principal framework for applying the Establishment Clause. See Cnty. of
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 27

that Ordinance 2401 creates entanglement between the City

and religion, focusing instead on the first two prongs of the

Lemon test.

The Committee’s allegation that Ordinance 2401 lacked

a secular legislative purpose is plainly inadequate. A

regulation “will stumble on the purpose prong ‘only if it is

motivated wholly by an impermissible purpose.’” Kreisner

v. City of San Diego, 1 F.3d 775, 782 (9th Cir. 1993)

(emphasis added) (quoting Bowen v. Kendrick, 487 U.S. 589,

602 (1988)). As we have explained, the City had several

secular rationales for enacting Ordinance 2401—e.g.,

improving the aesthetics of Palisades Park and alleviating

administrative burdens on the City. That is enough to satisfy

Lemon’s first prong. See id. (“A reviewing court must be

‘reluctant to attribute unconstitutional motives’ to

government actors in the face of a plausible secular purpose.”

(quoting Mueller v. Allen, 463 U.S. 388, 394–95 (1983))).

As for the Committee’s allegation regarding Lemon’s

second prong—i.e., that Ordinance 2401 has the primary

effect of “convey[ing] disapproval of religion”—we find it

simply implausible. The history we have recounted shows

that, far from disapproving the nativity scenes, the City

welcomed and accommodated the Committee’s displays for

over fifty years and repealed the Winter Display exception

only when it was convinced that no other course of action

made sense. Indeed, a third party might well have had

grounds to sue the City on the grounds that the Winter

Display system itself violated the Establishment Clause by

Allegheny v. ACLU, 492 U.S. 573, 592 (1989) (“[Lemon’s] trilogy of tests

has been applied regularly in the Court’s later Establishment Clause

cases.”).
28 NATIVITY SCENES COMM. V. CITY OF SANTA MONICA

unduly privileging religion. Thus, it is not plausible that,

considering Ordinance 2401 in context, a “reasonable

observer” would conclude that its primary effect was to

communicate a message of disfavor toward Christianity. See

Am. Family Ass’n, Inc. v. City &Cnty. of S.F., 277 F.3d 1114,

1122 (9th Cir. 2002).

We conclude that Ordinance 2401 passes muster under

the Lemon test and that the Committee has failed to state a

claim under the Establishment Clause. The district court

properly dismissed this claim under Rule 12(b)(6).8

IV

We do not doubt that the Committee resents the way in

which the City curtailed its traditional way of celebrating the

Christmas season in Palisades Park, but its grievances do not

8 The Committee’s opening brief argues in passing that the district court

erred by dismissing this action with prejudice. We disagree. We are

skeptical that the Committee—which never asked the district court for

leave to amend its complaint—can now be heard to complain that the

district court did not grant such leave. See, e.g., Alaska v. United States,

201 F.3d 1154, 1163–64 (9th Cir. 2000) (“Where a party does not ask the

district court for leave to amend, [a] request on appeal to remand with

instructions to permit amendment comes too late.” (alteration and internal

quotation marks omitted)). And in any event, leave to amend is not

warranted where, as here, “[i]t is clear that no amendment could save [the]

complaint.” Desaigoudar v. Meyercord, 223 F.3d 1020, 1026 (9th Cir.

2000). We cannot conceive of any additional facts—and the Committee

proffers none—that would cure the deficiencies in the Committee’s First

Amendment claims. The district court thus did not abuse its discretion by

dismissing the case with prejudice. See, e.g., In re VeriFone Sec. Litig.,

11 F.3d 865, 872 (9th Cir. 1993).
NATIVITY SCENES COMM. V. CITY OF SANTA MONICA 29

state a viable claim that the City violated the First

Amendment. The judgment of the district court is

AFFIRMED.