F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S A N T A M O N I C A N A T I V I T Y S C E N E S C O M M I T T E E , a California non-profit association, Plaintiff-Appellant

,

v

.

C I T Y O F S A

N T A M O N I C A , a municipal corporation,

Defendant-Appellee

. N o. 13-55011

D.C. No. 2:12-cv-08657- AB C-E

OPI NI ON

A ppeal from the United States District Court for the Central District of California Audrey B . Collins, District J udg e, Presiding

Arg ued and Submitted F ebruary 6, 2015—Pasadena, California

F iled April 30, 2015

B efore: Michael J . Melloy

, * J ay S. B y bee, and Sandra S. I kuta, Circuit J udg es.

Opinion by

J udg e B y bee

* T h e Ho n o rab l e M i c h a e l J

. Mello y , Sen io r Circu it J u dg e f o r t h e U .S. Co u rt o f A p peals f o r th e Eig h th

Circu it, sittin g b y

d esig n atio n

.N A T I V I T Y S C E N E S C O M M

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SUMMARY * *

Civil Rights

The panel affirmed the district court’s order d ismissing a compla i n t b roug ht by the Santa Monica Nativity Scenes Committee see k i n g to continue the d ecade-old practice o f

e x h i b iting nativity scenes during the month of December i n Palisades Park, Santa Monica, California.

T h e Committee challeng ed the c onstitutionality o f t h e City of Santa Monica’s Ordinance No. 2401, which repealed

an ex ception to the City ’s g eneral ban on “ unattended display s” in its parks. The repealed ex ception had p ermitted certain unattended “W inter Display s” in the City ’s Palisades Park every December, using a lottery sy stem to allocate the available space.

The pan e l held that the heckler’s veto doctrine had no appli c a t i on in this case, w hich involved the City ’s
g enerally

- applicable repeal of a special ex ception to its p olicy of ex cluding unattended display s from i t s p a rks. The panel held that the repeal was a c ontent

- n eutral time, place, a nd
manner reg

ulation.

T h e panel held that the Committee’s Establishment Clause c laim was without foundation. The panel determined that the City had several secular rationales for enacti ng Ordinance 2401— e.g. , improving the aesthetics of Palisades Park and alleviating administrative burdens on the City

. The

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.N A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 3

panel further held that it was n ot plau s i b l e t hat, considering Ordinance 2 401 in contex t, a “reasonable obs e r v e r” would conclude that it s primary effect was to communicate a messag e of disfavor toward Christianity

.

COUNSEL

W illiam J

. Be cker ( arg ued), The B ecker L aw F irm, L os Ang e l es , California; Michael J

. Peffer, Pacific J u stice I nstitute, Santa Ana, California, for Plaintiff-Appellant.

Yib in Shen (arg

ued), D eputy City Attorney
, J eanette Schachtner, Chief Deputy City Attorney
, B a rry A

. Rosenbaum, Senior L and U se Attorney
, Heidi Von Tong eln, Deputy City Attorney
, Santa Monica, Califo r nia, for Defendant-Appellee.

OP INION

B YB EE, Circuit J udg e:

No trip to Santa Monica, California, is complete without

a visit to Palis a d e s P a rk—a picturesque strip o f land 14 blocks long that overlooks Santa Monica State B each and the Paci f i c O c e an and is reg arded as the “ crown jewel” of the City ’ s park sy stem. B eg i n n i n g in about 1955, every y e ar during December, local residents erected a s e r i es of larg e dioramas in the Park depicting v arious scenes from the biblical s t o r y of Christmas. The display consisted of 14 booths, e ach 1 8 feet long and filled with life-siz ed mannequins and decorations. Putting up and taking down this elaborate display was a sig nificant undertaking

, and in 1983,N A T I V I T Y S C E N E S C O M M

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the nonprofit Santa Monica Nativity Scenes Committee was org aniz ed to manag e the y e arly construction of the dioramas.

I n 1994, the City prohibit e d the construction o f unattended display s— i.e.
, l arg e, multi-day installations—in its parks, but it nonet h e l e s s continued to allow the nativity

scenes. Subsequent ly

, in 2003, the City Council enacted an

ex c e ption to the g eneral prohibition on un a t t ended display s. This “W inter Disp l a y ” ex c eption authoriz ed unattended display s during the month of December, and only in Palisades Park. Under the “W inter D isplay ” rule, all mem b er s of the community

, not just the Committee, were permitted to p ut up d i s p lay s, and display space was to be allocated on a firstcome, first-served basis.

The W inter Display sy stem f u n c t ioned without incident in its first few y ears of ex istence, during which time the only applicant who requested substantial d i splay space was the C ommittee. I n 2011, however, applications f or W inter Display space surg ed. That y ear, a nu mber of atheists w ho opposed the placement of relig ious display s in Palisades Park applied for W inter Display space in what the Committee alleg es was a coordinated attempt to keep the space a w a y f r o m the Committee and other relig ious g roups. The Ci t y used a lo t t e ry sy stem it h ad created to a llocate the available
space, and t h e a theists received the majority o f the display spots. The Committee and the a theists both vowed to flood the display -space lottery with even more applications in 2012.

Rather than c ont i nue the lottery sy stem and ex pend the effort necessary to process a ll of these ex pected a pplications, the C ity elected to repeal the Winter D isplay ex ception a nd keep the Park free of a ll u n attended display s. The Committee responded by suing the City

, al l e ging that the repealN A T I V I T Y S C E N E S C O M M

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ordinan c e v iolated the Committee’s r ig ht to free speech because it was an unc o nstitutional “heckler’s veto.” The Committee a lso alle ged that the r e peal violated the Establishment Clause by convey ing the messag e that the City disapproved of Christianity

.

Neither of these alleg ations constitutes a viable claim for relief u n d e r t he F irst A mendment. The heckler’s v eto doctrine, w h i ch applies in situations where a particular speaker is silenced because his speech invites o p p o sition, disorder, or violence, has no application in this case, which involves the City ’s g e n erally -applicable repeal of a special

ex c e ption to its policy o f ex cluding unattended display s from its parks. T he repeal was a content-neutral time, p lace, a nd

manner r eg ulation, not a h eckler’s veto. The Committee’s Es t a blishment Clause c laim, meanwhile, is without foundation. W e therefore affirm the district co u rt ’s order dismissing the Committee’s complaint under F ederal Rule o f Civil Procedure 12(b)(6).

I

I n the early y ears of the n ativity scenes’ ex istence, the City of Santa Monica had n o formal reg ulations dealing with private, unattended stru c tures on public park land, and the City allowed and even encourag ed t h e y early display of the Committee’s nativity scenes. I n 1 994, the City enacted an ordinance prohibiting the erection of any “tent, lodg e, shelter,

or structure” in city p a

r ks w i t h o ut authoriz ation from the City

. F ollowing the enactme nt of this ordinance, the City issued “community e vents” permits for the nativity scenes each y ear.N A T I V I T Y S C E N E S C O M M

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I n 2001, however, the City adopted a new “Co m m u n i ty Events Ordinance” that did n o t c over multi-d a y e v ents o r installations. T he Community Events Ordinance’s more

re s t r i c t i ve scope meant that the City c ould no long er p ermit multi-day

, unattended display s such as the nativity scenes a s “community events.” I n 2001 and 2002, the nativity scenes

were thus “ installed w ith the City ’s k n owledg e but w i t hout permits.” T he City subsequently received inquiries from both the Committee and City r esidents a bout the leg al status of the nativity scenes.

I n order to provide a leg al framework that would a ll ow the “long -st a nding tradition” of the nativity scenes to continue while respecting content neutrality

, the City Council passed an o rdinanc e i n 2003 that modified the g eneral prohibition on “structures” in City p arks, adding an ex plicit

ex c e ption for so-called “W inter D isp l a y s.” T he ordinance defined these display s as “[ u] natten d e d installations o r unattended display s in Palisades Park

. . . during the month o f December in an a

rea d esig nated by City Council resolution.” The ordinance provided that, if the amount o f W inter D isplay
sp a c e r e quested was g reater than the area that the City Council had allotted, spaces would b e allotted o n a firstcome, first-served basis, “irrespective of the content of [ each] display o r installation and irrespective o f the identity of the
person or persons responsible for the display

. ” The City Council subsequently passed a separate ordinance specify ing

an area of Palisades Park roug h ly two city blocks long as the area available for W inter Display s.

The first-come, f

irst-served sy stem for W inter D i s play s

was i n p lace from 2003 until 2 010. D uring this period, the number of requests for space in the W inter Display area never

ex c e eded about half o f the total area that the City Council h adN A T I V I T Y S C E N E S C O M M

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allotted, o r one city block. The Committ e e continued to display its 14 nativity

scenes each y

ear.

I n 2010, the demand for W inter Display space increased. The City received three applications f or space; two of th ese applications requested the same space in the same city b lock, which had never happened before, and for the fi r s t time, all of the sp ace in the two city blocks that the City Council h ad desig nated w as allocated to applicants. T he W inter Display s filled one city block a nd al s o i ncluded “two siz eable display s ” in the second block. One of the three applicants that y ear was Damon Vix

, an a theist who opposed the nativity scenes’ presence on City property

. Vix erected only a sing le display in the space h e was a s s i gn e d

, leaving the rest of his

area e mpty

. The display

was a chain-link fence surrounding

a sig n board bearing a quote f rom Thomas J e f

f er s on: “Relig ions are all alike—founded u p on fables a nd
my tholog ies.”

The City anticipated that demand for W i n ter D isplay
space w ould increase even more in 2011 and according ly revised its W inter Display g uidelines to c r e ate a lottery
sy stem 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 W inter Display s into 21 separate “spots” a nd allowed applicants to request up to nine spots each.

I n the 2011 appli c a t i o n c y cle, Vix and several other atheists each a

pplied for the max imum number o f 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. I n the lottery

, two o f Vix ’s confederates received nine spots each, Chabad of SantaN A T I V I T Y S C E N E S C O M M

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Monica ( a J e wish relig ious org aniz ati o n) received one spot, and the Committee—which came in four t h i n the lottery

— received two spots. A s a result, the Committee had space for just three o f the 14 nativity scenes it traditionally e rected. The competition for display space attracted both loca l a n d national attention; th e New Y ork Times published a story in December 2 011 describing V i x ’s opposition to the nativity

scenes a n d proclaiming the City to b e “embroiled in a seasonal c ontroversy it has s o mehow avoided for decades.” J ennifer Medina, W

here Crèches Once Stood, A theists N o w Hold Forth , N.Y. Times, Dec. 22, 2011, at A28.

I n e arly 201 2
, the City Attorney
, Marsha J ones Moutrie, submitted two separate r eports to the City Council in which she recommended tha t t h e Council eliminate the leg al

ex c e ption permitting W inter Display s in Palisades P ar k

. I n these reports, Moutrie ex plained t hat, because the F irst Amendment p rohibited the City from pi c k ing and choosing which display s to allow in the Park dur i n g De c ember, the City h a d only two options: it could c o n tinue with the lottery
sy stem it had in place, or it could r epe a l the W inter D isplay
sy stem altog ether.

Moutrie recommended the latter o ption. She ex p l ai n ed that Santa Monica residents wanted to “preserve the aesthetic
q u a lities” of the Park and their ability to “look at the o cean vista” for which the Park was renowned, rather than continue
to a l l o w the W inter Display s. She also reported that, according to City staff, the lottery sy stem f or display space

was “ time consuming and costly ” to operate, requi r i n g the investment of hundreds of hours of staff time—a problem that

was likely to intensif

y i n t h e future because the g roups involved h ad indicated that they p lanned to “flood” the lottery
process in future y ears “to i n c rease their odds of beingN A T I V I T Y S C E N E S C O M M

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allocated more spaces.” Moutrie concluded that eliminating the W inter Display ex ception w ould “serve the purpose[ s] o f resolving the controversy , eliminating leg al risks, conserving the staff time and resources nec e s s ary to operate a constitutionally valid reg ulatory sy stem, conforming usag e o f Palisades Park to the long standing

, City -wide standard which prohibits unattended display s in parks, and protect i n g the views of the park and ocean.”

The City Council ag reed with Moutrie’s conclusions and,

on J u ne 26, 2012, it u nanimously adopted O rdinance 2401, which repealed the W inter Display ex ception. Three months later, the Committee filed suit in the Centra l District o f California ag a inst the City and the seven members of the City Council, a lleg ing violations of the F irst A m e ndment’s F r ee Speech a nd Establishment C lauses and of the F ourteenth A m endment’s Equal Protection Clause. The Commit t e e pray ed f or declaratory r elief, an injunction ag ainst the City ’s “policy

. . . of banning private unatt e nded display s in Palisades Park,” nominal damag es, and attorney s’ fees.

The Committee moved for a preliminary injunction a day after filing its complaint. After a hearing

, the district court denied this motion, e x plaining that the Com m i t t ee had not shown a likelihood o f success on the merits o f a ny of its constitutional claims. 1

1 T h e d istrict co u

rt’ s d en ial of th e Co m

m ittee’ s m o tio n f

o r a p relim in ary in j u n ctio n is b ef

o re th i s co u rt as p art o f th e p resen t ap p eal. B ecau s e w e af f irm t h e d istrict co u rt’ s Ru le 1 2 ( b ) ( 6 ) d ism issal o f th e co m p lain t, h o w ev er, w e n eed n o t sep arately ad d ress th e q u estio n w h eth er th e d en i al

o f th e Co m

m ittee’ s m o tio n f

o r a p relim in ary i n

j u n ctio n w as p ro p er. S

ee, e.g

. , Ca l. ex rel. Yo u n g er v. Mea d , 6 1 8 F.2 d 6 1 8 , 6 2 2 (9 th Cir. 1 9 8 0 ).N A T I V I T Y S C E N E S C O M M

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W h ile the motion f or a preliminary injunc t ion was p ending

, the defendants moved to dismiss the complaint f o r failure to state a cla im. A fter deny ing the p reliminary

injunction motion, the distr i c t court g ranted this 1 2(b)(6) motion as to the City ; the Committee ag reed voluntari l y to dismiss the individual defendants with prejudice.

I n its dismissal order, the district c o u rt h e l d t hat both o f the Committee’s F irst Amendment claims were le gally deficient. The c ourt determined that the City ’s p o licy o f banning a ll unattended display s in Palisades Park was c ontent neutral, rejecting t h e Committee’s arg ument that the b an should be deemed a content-based “ h e c k ler’s veto.” After concluding that the ban was content neutral, the district court held that it was a valid time, place, and manner reg ulation a nd that the Committee had therefore failed to state a claim under the F ree Speech Clause.

The d istrict court also held, under the tripartite framework of Lemon v. Kurtzman
, 403 U.S. 602, 612–13 (1971), that the total b an did not v iolate the Establishment C l a u se. The district court d ismissed the Committee’s F irst Am endment claims with prejudice. 2 The Committee timely appealed.

W e review the d istrict 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 p a r t o f this assessment, “we inquire whether the complaint’s factual alleg ations, tog ether with all reasonable inferences, state a plausible claim for relief.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc.
,

2 T h e o rd er d i d n o t ad d ress t h e Co m m ittee’ s eq u al- pro t ectio n claim

, w h ich th e Co m

m ittee v o lu n tarily

d ism issed

w ith p rej u d ice.N A T I V I T Y S C E N E S C O M M

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

, 556 U.S. 662 (2009)).

I I

W e beg in with the Committee’s claim under t h e Free Speech Clause. W h e n analy z ing the validity o f a reg ulation under this Clause, we “apply a f orum analy sis” who s e f

i rst step involves determining what ty pe of forum is a ffected b y the reg ulation. Flint v. Dennison
, 488 F .3d 816, 830 (9th Cir. 2007). “ Once the forum is identified, we determine whether [ the ] r e s t rictions on speech are justified by the requisite [ leg al] standard.” Id. (internal quotation marks omitted)

.

All ag r ee that Palisades Park—the forum that Ordinance 2401 f inally an d completely closed to unattended display s

— i s 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 “categ oriz ed for F irst A mendment
purposes as traditional public fora”). I n such a forum, the
g overnment’s ability to reg u late speech is “sharply circumscribed.” Perry Educ. Ass ’n v. Perry Local E d ucators’ Ass’n
, 4 60 U.S. 37, 4 5 ( 1 9 8 3 ). A content-based speech
reg ulation in a tra d i t i o n al public forum is subject to strict scrutiny and w ill be uph e l d o n l y if it is narrowly drawn to serve a compelling g overnmental interest. Id.

Content-neutral time, place, and manner reg ulations, on the other hand, are permitted in traditional p u b l i c f orums if the reg ulations are narrowly tailored to serve a sign i ficant
g overnmental interest a n d leave open ample a lternative channels o f communication. Berger
, 569 F .3d at 1036 (citing W a r d v. Rock Against Racism
, 491 U.S. 781, 7 91 (1989)). B oth this court and the Suprem e C ourt h ave indicated,N A T I V I T Y S C E N E S C O M M

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moreover, that a c ontent-neutral ban on all private unattended display s in a city ’s parks is very likely to be a leg itimate time, place, and manner r e g ulation. Capitol Squa r e Review & Advisory Bd. v. Pinette
, 5 15 U.S. 753, 761 (1995); id. at 783–84 (Souter, J
., concurring ); Am. Jewish Cong. v. City of Beverly Hills

, 90 F

. 3d 3 7 9
, 3 8 4 (9th Cir. 1996) (en banc) (“The City constitutionally could ban all unatt ended private display s in its parks.”); see also Lubavitch Chaba d House, Inc. v. City of Chi.

, 917 F .2d 341, 3 4 7 ( 7 t h Cir. 1990) (“W e

are not cog n iz ant o f[ ]

. . . any private constitutional r ig ht to erect a structu r e on public property

. I f there were, our traditional public forums, such a s our public parks, would be cluttered with all ma n n e r of structures.”). I ndeed, the Committee concedes, in lig ht of this case law, that such a b an is constitutional as long as it is content neutral.

Much depends, therefore, on whether Ordinance 2401 is
content based or content neutral—the q uestion to which we now turn.

A. Content Neutrality

The Committee does not dispute that O r dinance 2 401 is facially content neutral. N or could it. B y repealing the leg al

ex c e ption that previously allowed for W inter Display s, the ordinance e f

f e ctively bans all u nattended display s in Palisad e s Park. I t does not discriminate between particular display s based on their content.

Th e C o mmittee arg u es, however, that Ordinance 2401 should be conside r e d content based pursuant to the “he ck ler’s-veto” doctrine, which holds that a reg ulation o f speech is to be deemed content based when “listeners react to speech based on its content and the g overnment then ratifiesN A T I V I T Y S C E N E S C O M M

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that reaction by restricting the speech in response to listeners’ objections.” Ctr. for Bio-ethical Reform, Inc. v. L.A. Cnty. S heriff D ep’t
, 533 F .3d 780, 789 (9th Cir. 2008) (empha s i s omitted). The doctrine prohibits the g overnment from poi n t i n g t o the “ reaction of listeners” to speech as a “secondary e ffect” justify ing that speech’s reg ulati o n; in other w ords, the g overnment may not reg ulate speech on the
g rounds that it will cause its hearers ang er or discomfort. Id. (citing Boos v. Barry
, 485 U.S. 312, 3 2 1 (1988)). I f speech provokes w r o n gful acts on the part of hecklers, the
g overnment must deal with those wrong ful acts d i r e ctly ; it
may not avoid doing so by

suppressing the speech.

The Committee contends t h at Ordinance 2401 was a heckler’s veto b ecause the City Council enacted it in response to the atheists’ objections to the Committee’s n a tivity scenes. I t a r g ues that the City reacted to the c ontrover sy that h ad beg un to brew over the competing c laims for display space in Palisades Park by opting to suppress speech there altog ether. I t c ites to City A ttorney Moutrie’s re p o r t s , b oth of which reference the importance of resolving the “controversy ” that had arisen ove r t h e Winter Display s, and to the public remarks of individual C i t y Council members during deliberations over Ordinance 2401, w h e n a number o f Council members ex pressed fear that the display controversy would escalate and turn ug ly

.

As the C o m mittee is forced to concede, however, this

case is far a f

i e l d from the heartland of the heckler’s v eto doctrine. The prototy

pical heckler’s veto case is one in which the g overnment silences particular speech or a par t i cular speaker “due to an antic i p a t e d disorderly or violent reaction of the audience.” Ro s e n b a u m v. City & Cnty. of S .F.
, 4 8 4 F.3d 1142, 1 158 ( 9th Cir. 2007); see also Zamecni k v.N A T I V I T Y S C E N E S C O M M

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Indian Prairie Sch. Dist. # 204
, 636 F. 3 d 874, 879 (7th Cir. 2011) (heckl e r ’ s veto doctrine applies when p articular, protected speech is “met by violence or threats or other unprivileg ed retaliatory c on d u c t”); Richard F

. Duncan, Just Another Brick in the W

all: The Establishment Clause a s a Heckler’s Veto
, 18 Tex

. Rev. L

. & Pol. 255, 2 6 4 (2014) (“The classic heckler’s veto cas e a r i ses when someone wishes to speak in a p u blic f

orum and someone else threatens to violently stop the speech.”). I ndeed, every appellate decision apply ing the heckler’s veto d octrine o f which we a re a ware involved the restriction of particular speech due to listeners’ actual o r a n ticipated h ostility to that speech. 3 The

3 S ee, e.g

. , Fo rsyth Cn ty. v. Na tio na list Mo vemen t , 5 0 5 U.S. 1 2 3
, 1 2 6

– 2 7
, 1 3 4 (1 9 9 2 ) (o rd in an ce allo w in g p arad e p erm it f ees to b e ad

j u s ted b ased o n ex p ected co st o f m ain tain in g o rd er d u rin g th e p arad e w as co n ten t b ased b ecau se th e ad

j u st m en ts w ou ld “ d ep en d o n [an ] ad m i n i strato r’ s

m easu re o f th e am o u

n t o f h o stility lik ely to b e created by th e sp eech b ased

o n its co n ten t ”); Termin iello v. City o f Ch i.
, 3 3 7 U.S. 1, 5 (1 9 4 9) (d iso rd erly co n d u ct o rd in an ce v io lated First A m en d m en t b ecau se i t

“ perm itted co n v ictio n o f [a d ef en d an t] i f h i s sp eech s t i r r ed p eo p l e to

an g er, in v ited pu

b lic d isp u te, o r bro u g h t ab o u t a c o n ditio n o f u n rest”); Un ited S ta t es v. Ma rca va g e , 6 0 9 F.3 d 2 6 4
, 2 8 3 (3 d C i r. 2 0 1 0 ) (p ark

ran g ers e n g ag ed in co n ten t- b ased restrictio n o f p ro tester’ s sp eech w h en th ey rem o v ed h im f

ro m a p u b lic street n ear th e L ib erty B ell b ecau se th ey

w ere “ co n cern ed by v isito rs’ reactio n s to [h is] m essag e an d [h is] sig n s[]”); Ctr. fo r Bio eth i ca l Refo rm , 5 3 3 F.3 d at 78 9 (state law

, if ap p lied to p ro test e rs d riv in g tru ck w ith an ti- ab o rtio n m essag es aro u n d a p u b l ic sch o o l, w o u ld b e an u n co n stitu tio n al h eck ler’ s v eto b ecau se it “ p erm i tted [th e sp eech ] u n til th e stu d en ts an d d riv ers aro u n d th e s ch o o l reacted to it,
at w h ich p o in t th e sp eech w as d eem ed disru p tiv e an d o rd ered sto p ped ”); Lewis v. W

ilso n , 2 5 3 F.3 d 1 0 7 7
, 1 0 8 1

– 8 2 (8 th Cir. 2 00 1 ) (state’ s ref u sal
to allo w d riv er t o h av e l icen se p late w ith n u m b er “ A RYA

N- 1 ” w as an

u n co n stitu

tio n al h eck ler’ s v eto b ecau se th e d ecisio n w as b ased o n th e

“ m ere p o ssib ility o f a v io len t reactio n ” to th e licen se p late b y o t h er d riv ers); Ch ristia n Kn ig h ts o f th e Ku Klu

x K la n In visib le Emp ire, In c. v. Dist. of Co lu m b i a , 9 7 2 F.2 d 3 65
, 3 7 4 (D.C. Cir. 19 9 2 ) (city ’ s pro p o sal toN A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 15

Committee’s heckler’s veto claim would thus have some force if the City

, in response t o the atheists’ complaints a nd applications for space, h ad decided that no religious display s could henceforth be erected in Palisades Park.

B u t the City did no such t h i n g

. I nstead, as the district
court noted b e low, the City adopted a g enerally app l i cable
reg ulation meant to balance “competing speech rig h ts” rather than to “suppress[ ]

. . . a [ particular] messag e because of the audience’s reaction to it.” I n 2010 and 2011, the City was confronted for the first time in its h istory with a profusion o f

re q uests for display space in Palisades Park—requests that the City r easonably

believed the F irst Amendment required it to
treat equally

, g iven that the Park is a traditional public forum. 4 The City made an effort to accom m o date 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 b y the Wint e r D isplay lottery
sy stem outweig hed the benefits of continuing it. To address the problems and restore communal peace , the City adopted

restrict lo catio n o f KKK m arch d u e to th e “ th reat o f listen ers’ v io len t reactio n to th e m essag e b ein g d eliv ered ” w as co n ten t b ased ).

4 In its brief

s, th e C o m

m i ttee arg u es at g reat len g th th at th e City co u ld h av e ex clu d ed th e ath eists f ro m t h e W in ter Disp lay s y stem b e c au s e th e ath eists’ d isp lay s w ere n o t i n ten d ed to celeb rate “ [l]eg itim ate w in ter h o lid ay s.” W h eth er th e F irst A m en d m en t i n fa c t p erm itted th e C ity to

ex clu d e t h e ath eists f

ro m th e W in ter Disp lay sy stem is n o t, h o w ev er, relev an t t o th e o u tco m e h ere, an d w e th eref o re declin e to ren d er an ad v iso ry o p in io n o n th at issu e. It is su f f icien t f o r p resen t p u

rp oses to n o te th at th e City set f

o r itself t h e lau d ab le g o al o f treatin g all ap p lican ts eq u ally an d th at, o n ce th e City co n clu d ed th at p erp etu atin g th e W in ter Disp lay s y stem w o u ld b e m o re t r o u b le th an it w as w o rth

, th e City ad d ressed th e p ro b lem w ith a n eu tral reg u latio n th at b an n ed all u n atten ded d isp l ay s, w

h eth er relig i o u s o r secu lar.N A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 16

an evenhanded reg ulation—Ordinance 2401—that removed the leg al ex c eption that permitted the “W inter Display s.” The ordinance did not sing le o ut the Committee’s sp e e ch and, according ly , was not the stuff of a traditional heckler’s veto.

W e acknowledg e that, describ e d at a hig h level o f abstraction, Ordinance 240 1 s o u n ds a bit like a heckler’s
veto. The repeal o f the Wi n t e r Display ex ception d id, in

some sense, r a tify the atheists’ opposition to the nativity
scenes; the a theists started a “controversy ” o ver the scenes, and the City r eacted by ex c l uding the scenes (along with all other unattended display s) from P a lisades Park. W e would

ex p and the heckler’s veto doctrine sig nificantly , however, if

we held here that the doctrine applies to neutral reg ulations that do not targ et particular speech, and the log ic underly ing the heckler’s veto doctrine does not suppo r t o u r doing so. The heckler’s veto doctrine is concerned with the possibility that p articular

speech will be wrong fully ex cluded from the marketplace of ideas merely because it is “offensive to some of [ its] hearers.” See Bachellar v. Maryl a n d

, 3 97 U.S. 564, 567 (1970). T hat possibility is absent w h e n a reg ulation applies to all s p ee c h and does not allow for arbitrary enforcement based on particular speech’s “offensive[ ness]

. ” S ee O vadal v

. City of Madison

, 416 F .3d 531, 5 3 6–37 (7 t h C i r

. 2 0 05) ( city ’s policy of prohibiting sig ns hung from hig hway overpasses if they “impa i r[ ed] traffic safety ” was content based because officers could “decide o n a n a d h oc basis whet h er to allow the protest to continue depending

on how driver s react to the sig ns,” but a g eneral ban on all sig n s o n ove r

p asses would “certainly be a leg itimate place and manner re s t r i c t ion because it would be clearly content-neutral”).N A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 17

W e find no support in federal case law, moreover, for the proposition that a city that chooses to permit unattended display s in its public spaces for some period of time becomes estopped by the F irst Amendment from withdrawing that
p ermission if those display s happen, eventually

, to i n v i t e “controversy .” I ndeed, we impliedly rejected that very notion in our decision i n American Jewish Congress v. City of Beverly Hills

. There, the city of B everly Hills h a d a g eneral policy ag ainst unattended di splay s on public property but made an ex c eption every y ear for a larg e menorah erected in

a park d u ring C h a n u k a h

. 90 F .3d at 3 80–81. Two individuals unsuccessf

u l ly applied f

or p ermission to erect a “winter solstice” display a n d a L atin cross in the park, and the denial of their applications l ed to a challeng e to the c ity ’s permitting p olicy f

or d i s p l a y s. Id. at 381. This court h eld that B e verly Hills’ policy v i o l ated the F irst A mendment because it was susceptible to arbitrary application. Id. at 385. I n the c ourse of reaching this conclusio n , w e c ommented in d i c ta that the city “constitutionally could ban all unattended private display s in its p a

r ks.” I d. a t 384. W e did n ot sug g e st that the c ity was barred from adopting such a ban now that a controversy

had arisen over the menorah’s privileg ed status.

The F irst Circuit came to a similar conclusion in Knights of Columbus, Council # 94 v. Town of Lexington

. 272 F .3d 25 (1st Cir. 2 001). That c ase involved a crèche that had been erected on the B attle Green in L ex ing ton, Massachusetts, for
many decades—first by the town itself a nd then, f r o m 1 973 onward, by two fraternal org a niz a tions. The crè c h e “ long ha[ d] been a source of friction within” L ex ing ton, and some residents had “complained b itterly about its pr e sence on the Gre e n

. ” I

d

. a t 29. I n the fall of 1999, the town received “requests to allo w a w ide rang e of other relig ious structures

on the G reen for comparable p eriods,” including display sN A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 18

relating to J udaism, “witchcraft,” and “the Eg y ptian Sun G od Ra.” Id. The town, which was unwilling to “compromise the aesthetic and historic elements of the Green” by p e rmitting all of t h e se display s, decided to ban the erection of unattended
str u c t u res on the Green. Id. at 29–30. The fraternal
org aniz ations responsible for the crèche sued, alleg ing a violation of their freedom of speech.

The F irst Circuit upheld the ba n

. T h e court ex p lained that, because the ban was “facially neutral,” the only basis on which the court could hold that the town’s action was c ontent based w as the fraternal org aniz ations’ claim that “t h e reg ulation’s primary purpose [ was] to prevent display of the crèche.” Id. at 31. The court d e t e r mined, however, that “nothing in the record . . . evince[ d ] a content-based animus
ag ainst the cr è c h e .” I

d. at 3 2. On the contrary , the record indicated that the town had acted out of a desire to protect the Green and “treat all relig ious ex pression even-handedly .” Id. The Knights o

f Columbus court did not, in other w o r d s, consider L e x ing ton’s ban on unattended display s t o b e a heckler’s veto directed a t the crèch e, e v e n thoug h that b an had been enacted to resolve a c ontroversy over display space that the crèche had previously monopoliz ed.

W e similarly conclude tha t O r d inance 2401 is c ontent neutral. The f

a ct that the speakers who succeeded in crowding the nativity scene s o u t of Palisades Park were atheists w ho

ex p licitly 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 display s from P alisades Park a ffected the Committee disproportionately

. By 2 0 1 1, however, the nativity scen es were living on borrowed time. The scenes owed t

h e i r l o n g , uninterrupted, and near-ex clusive occupation of the Park—a p ublic f orum open to all—larg elyN A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 19

t o the fact that for many y ears, hardly any one else in th e community w ished to put up display s there. T h at was bound
to chang e sooner or later, and i n 2 0 1 0, it finally did. B y repealing its W inter D isplay ex ception, the City did no more than treat all potential d isplay s equally

. Accord id. a t 32 (“I f the [ plaintiffs] feel that the b urden of the reg ulation falls most heavily o n them, it i s p erhaps because they are now held to the same s t a n dard as a ll other similarly situated applicants. W h ile the adjustment may not be an e a sy one, the outcome is inescapably

content-neutral.”). 5

B

. Time, Place, and Manner Regulation

Althoug h w e c onclude that Ordinance 2401 is c ontent neutral, that does not mean that the ordinance necessarily was

co n s titutional. I n order to pass constitutional muster as a time, place, and manner reg ulation, Ordinance 2401 must a lso be “narrowly tailored to serve a sig n i f i c ant g overnmental interest” and “leave open ample a lterna t i v e channels for communication.” W

ard

, 491 U.S. at 791. W e hav e l i t t l e

5 T o say th at g en erally ap p licab le b an s o n p articu lar f o rm s o f s p eech are

co n ten t- n eu tral reg u latio n s is n o t t o su g g est th at su ch b an s w i ll alw ay s b e

co n stitu tio n al. On th e co n trary , th e Su p rem e C o u rt h as in d icated th at su ch b an s are su sp ect w

h en th ey su

pp ress m ore sp eech t

h an is n ecessary to

acco m plish th e i r o b

j ectiv es. S

ee, e.g

. , Ma rtin v. City o f S t r u th ers , 3 1 9 U.S. 1 41
, 1 4 5

– 4 6 (1 94 3 ) (o rd in an ce p ro h ib itin g rin g in g d o o rb ells f or th e pu rp o se of distrib u tin g h an d b ills v io lated th e First A m e nd m en t, b ecau se “ [d ]o o r to d o or d istrib u t io n o f circu lars is essen tial to th e p o o rly f in an ced cau ses o f little peo ple”); S ch n eid er v. T o wn o f Irvin g to n , 3 0 8 U.S. 1 4 7
, 1 6 2 (1 9 39 ) (o rd in an ces b an n in g all d istrib u tio n of literatu re in pu b lic streets in o rd er to prev en t litter w ere in v alid u n d er t h e First A m en d m en t; th e b etter co u rse w as f o r cities to p u

n ish “ t h o se w h o actu ally th ro w p ap ers o n th e streets”). In th is sectio n o f o u r o p i n io n , w e h old o n ly th at b lan k et b an s ap p licab le to all sp eak ers are co n ten t- n eu tral.N A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 20

difficulty

, however, in c o n cluding that the ordinance satisfies all of these requirements.

1. Sig nificant g overnmental interests

O r dinance 2401 served at least two sig nifica n t g overnmental interests: F irst, it p reserved the ae s t h etic qualit i e s of Palisades Park and prevented o bstruction o f patrons’ views of the ocean. The Supreme Court has h eld on several occasions that g overnments may reg ulate speech for aesthet i c purposes. See, e.g. , Clark v. Cmty. for Creative Non-Violence

, 468 U.S. 288, 296 (1984) (Nati o n a l Park Service c ould b an c amping in certain p ublic 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) (c i t y o f L o s Ang e les could b an posters on public utility p oles in order t o c o m bat “visual clutter and blig ht”). And the City has long m a n i f e s t ed its intent to preserve its parks from clutter: since a t least 1994, it has prohibited unattended display s in a l l p arks while making a limited ex ception for “W inter Display s” in Palisades Park. Ordinance 2401 simply made that p rohibition 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 Display s in Palisades Park had been an easy task f or the City ’s staf

f ; i n 2011, however, the staff spent “hund r e d s of hours” administering the lottery sy stem, and all indications were that the sy stem

w ould become more time-consuming in the future a s t h e number of applications for space increased. I t was permissible for the City to seek to alleviate this burden on its employ e es’ time. See, e.g. , Clark

, 4 6 8 U .S. at 296–97 (National Park Service’s total ban on sleeping in certain parksN A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 21

could be justified on the g round that o perating a selective permitting sy stem for camping demonstrations w o u ld be an administrative burden on the Park Service).

The Committee dismisses both of these rationales a s insig nificant and arg u es that O rdinance 2401 does not f urther either of them. “Conclusory alleg ations of law, however, a re insufficient to defeat a motion to dismiss

. ” Lee v. City of L.A.
, 250 F .3d 668, 679 (9th Cir. 2001). T he Committee must alleg e facts that show that the O rdinance 2401 did not serve the ends the City said it did, and the Committee has failed to do this

. T he Committee h as no answer whatsoever to the
statements b y City employ ees—which the Committee itself reproduced as an ex hibit to its complaint—th at eliminating the W inter Display s saved the City many hours of staff time,
ot h e r than stating that it simply does n ot believe the City

. And with respect to the City ’s stated a e sthetic concerns, the Committee has offered only one factual a l l eg a tion that indicates that those concerns were insig nificant: the fact that
at the time that the City created the f o rm a l W inter D isplay
sy stem in 2003, the City ’s staff believed that allocating a twoblock area of Palisades Park for the display s would not cause problems. This fact does not plausibly show that the aesthetic

concerns the City cited in 2012 to justify O r dinance 2401

were insig nificant. The City was entitled to reassess conditions in the Park as it g ained ex p erience with the W inter Display sy stem over time, and by 2012, the City was clearly convinced that chang e was needed.

The Committee also c ontends that, in any event, the City ’ s stated concerns are not valid bases for regu lation because they stem from the “emot i v e impact” o f the Committee’s relig ious spe e ch. B ut the Committee h as not alleg ed any plausible facts to support this claim. The City ’sN A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 22

reg ulation targ eted t h e aesthetic and log istical problems created by t h e i n f

l ux of display space applications in 2011,
not the emotional impact o f the nativity scenes on people w ho

s a w them. The atheists w ho applied f or display sp a ce i n Palisades Park may h ave 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 c r e a ted for the City are a consequence of the “emotive impact” of the nativity scenes. A r eg ulation impermissibly targ ets the “emotive impact” of speech o nly if it is justified by r e ference
to the immediate emotional reaction o f listeners. See Boos
, 485 U.S

. at 321 (invalidating ordinance aimed solely at “protect[ ing ] the d ig nity of foreig n diplomatic personnel b y shieldin g them from speech that is critical of their
go v e r n m e n t s ”

—

p rotest sig ns outside o f e m b as s i es ). Ordinance 2401 is not such a reg ulation.

2. Narrow tailoring

W e also conclude that O r d inance 2401 was narrowly tailored. Althoug h the Committee poi n t s o u t several steps that the City could have taken to a ddress t h e problems it identified, short of repealing the W inter Display ex ception, these observations are irre l e vant to the question of narrow tailoring

. A time, place, and manner reg ulation “need not be the least r estrictive or least intrusive means” of furthering the
g overnm ent’s interests in o rder to be narrowly tailored. W ard

, 4 91 U.S. at 798. Rather, narrow tailoring requires only that a reg ulation “promote[ ] a substantial g overnment interest that would be a chieved less effectively absent the r eg u lation” and not “burden substantially more speech than is necessary to further” that interest. Id. at 799.N A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 23

T here is no question that Ordinance 2401 furthers t h e City ’ s interests in preserving the aesthetics o f Palisades Park and conserving City resources. Nor did the ordinance burden substantially more speech than necess a r y : u n a t t e n d e d d isplay s contribute to clutter and require laborious permitting in way s that other forms of speech, even a ttended display s, usually do not, and the ordinance affected only u nattended display s. See Frisby v. Schult

z , 487 U.S. 474, 485 (1988) (stating that a reg ulation is narrowly tailored if it “eliminates no more than the e x act source o f the ‘evil’ it seeks to remedy”). The City ’s

r e gu l a t i o n t h e re f

o r e s a t i s f

i e s t h e n a r r o w t a i l o r i n g requirement.

3. Alternative channels of communication

F inally

, w e find that O rdinance 2401 leaves open ample alternative channels of communication. As the district court observed, there remain “many a lternative avenues” by which the Committee can communicate its relig ious messag e: it can erect its unattended nativity scenes on p rivate p r o p erty , a nd it can speak in many other way s in Palisades Park, including erecting o ne-day

, attended displa y s, leafleting

, preaching

, holding sig ns, and caroling

. 6

6 Du rin g t h e p en d en cy o f th is ap peal, th e City m ad e tw o req u ests f or j u d icial n o tice o f v ario u s do cu m en ts th at p u rp o rt to sh ow th at, i n th e y ears af ter Ord in an ce 2 4 0 1 w as p assed

, t h e Co m m i ttee d i d sev eral of th ese th in g s , in clu d in g d isp lay in g th e u n atten d ed n ativ ity scen es o n p riv ate p ro p erty an d h o l d in g l i v e Ch r istm as ev en ts in P alisad es P ark

. T h e p ertin en t q u estio n f

o r ou r p u rp o s es, h o w ev er, is w h eth er O rd in an ce 2 4 0 1 lef t o p en am p le altern ativ e ch an n els of co m m u n icatio n ; it d o es n o t m atter

w h eth er th e Co m

m ittee actu ally av ailed itself o f th o se altern ativ e ch an n els. W e th eref

o re d en y t h e City ’ s tw o req u ests f

o r j u d icial n o tice on th e g ro u n d s th at th e do cu m en ts to b e n o t iced are irrelev an t. See, e.g

. , Ru iz v. City o f S an ta Ma ria , 1 60 F.3 d 5 4 3, 5 48 n .1 3 (9 th Cir. 1 9 9 8 ) (d en

y in gN A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 24

The Committee offers s e v e ral a rg uments why the alternative channels of communic a t i o n left to it a re inadequate. F irst, it c ontends that “[ a] n a lternative is not ample if the speaker is not p ermitted to reach the intended audience,” Bay Area Peac e Navy v. United States
, 914 F .2d 1224, 1 229 ( 9th Cir. 199 0 ) ( i nternal quotation marks omitted), and that its “in t e n d ed audience” is visitors to Palisades Park, which it claims is “the optimum location for reaching the g reatest number of spectators” in Santa Monica. Even assuming

, however, that t h e C o mmittee is entitled to insist t h a t i t be specifically allowed to reach visitors to Pali s a d es Park, the Committee is still able to speak in the Park after Ordinance 2401; it simply cannot do so by erecting larg e , unattended structures. Compare Knights of Columbus

, 272 F .3d a t 34 (ban on unattended structures on B attle Green left open alternative channels o f communication, in part because a creche could still appe a r on the G r een as an attended d isplay)

, with Bay Area Pea c e N a vy , 914 F .2d at 1229 (75-y ard security z one around r eviewing st a n d f o r Navy ’s “F leet W eek” did n ot afford paci f i s t demonstrators ample a lternative channels of communication, b ecause i t pr e v e n t ed them from reaching their intended audience o f visitors to F leet W eek).

Second, the Commi t tee arg ues that it would be “impr a c tical” for it to arrang e f o r the nativity scenes to be attended display s because the Committee “cannot practically recruit volunteers or a fford to pay p eople to be present” while the display s are up. I n g e neral, however, the fact that t he alternative channels of comm u nication left open by a reg ulation are mo r e ex pensive is not, by itself, sufficient to

req u est f o r j u d i cial n o tice, i n p art b ecau se i n f o rm atio n to b e n o ticed did

n o t b ear o n

th e “ relev an t issu e” b ef

o re th e co u rt).N A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 25

show that those alternative c h annels are inadequate. See, e.g. , Taxpayers for Vincent
, 466 U.S. at 812 & n.3 0 (ordinance prohibiting posti n g o f sig n s on utility poles left open

a l ternative channels o f communication, such as speakin g i n person and distributing literature in the same locations—both of which tactics are p resumably more ex pensive); Kovacs v

. Cooper
, 336 U.S. 77, 88–89 ( 1 9 4 9 ) (fact that “more people
may be more easily and cheaply reached by s o und trucks” than by other means was not en o u gh to “call forth constitutional p r o tection” for that specific mode o f communication).

F inally

, the Committee arg ues in i t s reply brief that the F irst Amendm e n t “ p rotects [its] rig ht to choose a particular

means or avenue of speech” —i.e.
, unattended d i s p lay s. B ut althoug h we have held that speakers h ave a F irst A mendment rig ht to “choose a particular means or avenue o f speech

. . . to advocate their cause,” w e h ave also made clear that “[ t] his is
not the same as say

ing t h a t [ s p eakers] have a F irst Amendment rig ht to dictate the manner in which they convey their messag e within their chosen avenue. Government may reg ulate the manner of speech in a content-neutral way .” Foti

v. City of Menlo Park

, 1 46 F .3d 629, 641–42 (9th Cir. 1 998) (althoug h a

bortion protesters had t h e rig ht to communicate their messag e by picketing

, city was permitted to reg u late the

manner of this picketing

, e.g. by reg ulating t h e s iz e a nd number of their si g ns). Thus, e ven assuming that the F irst Amendment protects the Committee’s rig ht to speak throug h larg e display s, the City w as permitted to limit the manner of that speech by requiring tha t such display s be attended o r erected as part of limited-duration “community e vents.” See Foti
, 146 F .3d at 641–42; see also United Bhd. of Carpenters & J o iners of Am. Local 586 v. NLRB
, 5 40 F .3d 957, 969 (9th Cir. 20 0 8 ) (“W e will not invalidate a reg ulation merelyN A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 26

because it restricts the spea k e r ’ s preferred method o f communication.”). O rdinance 2401, which allows the Committee to disseminate its messag e in per s o n in many different way s, including attended d isplay s and unatte n d e d d isplay s that a

re part o f sing le-day “community event s , ”
t herefore leaves open sufficient alternative c hannels of communication.

B e cause Ordinance 2 401 was a valid time, place

, a nd

manner reg ulation, we affirm the district court’s conclusion that the Committee’s claim under the F r ee Speec h Clause is not viable and must be dismissed.

I I I

The other claim at issue i s the Committee’s c laim that Ordinance 2401 v iolated the Establishment Clause because it
convey ed impermissible “disapproval of and hostility toward the Christian r elig ion.” W e need not d e tain ourselves long with this alleg a tion, which falls w ell short of amounting to a plausible claim for relief.

A reg ulation violates the Establishment Clause if ( 1 ) i t lacks a “secular leg is lative purpose,” (2) “its principal o r primary effect” is to “advance[ or] inhibit[ ] r elig ion,” or (3) it “foster[ s] an ex ces s i v e g overnment entang lement with relig ion.” Lemon
, 4 0 3 U .S. a t 612–13 (interna l q uotation marks omitted). 7 The Committee makes no attempt to a rg ue

7 A s a m o d e o f an aly sis f o r Estab lish m en t Clau se in q u iries, Lemo n h as b een m u ch criticized bo th in sid e an d o u t sid e th e Co u rt—an d so m etim es ig n o red b y th e Co u rt alto g eth er, see, e.g

. , T o wn o f Greece v. Ga l l o w a

y , 1 3 4 S

. Ct. 1 8 1 1 (2 0 1 4 ). Nev erth eless, Lemo n rem ain s th e Co u r t ’s
p rin cip al f

ram ew o rk f

o r ap ply in g th e Estab l ish m en t Clau se. S ee Cn ty. o fN A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 27

that Ordinance 2401 c reates entang lement between the City and relig ion, focusing instead on the first two pro n gs o f the Lemon test.

The Committee’s alleg ation that Or d i n ance 2401 lacked

a secular leg islative purpose is p l ainly inadequate. A
reg ulation “will stumble on the purpose prong ‘ o n l y i f it is motivated wholly by an impe r m i ssible purpose.’” Kreisner

v. City o f San Di e

g o , 1 F .3d 775, 782 (9th Cir. 1 993) (emphasis added) (quoting Bowen v. Kendrick

, 487 U.S. 589, 602 (1988)). A s w e h a v e ex p lained, the City had several secular rationales f

or enacting Ordina n c e 2401— e.g. , improving the aesthetics of Palisades Park an d a l leviating administrative burdens on the City

. T h at is enoug h to satisfy Lemon ’s f

irst prong

. See id. (“A r e v i ewing court must be

‘ r e l u c t a n t t o attribute uncons t i t u t i o n a l m o t i v e s ’ t o g overnment 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 alleg ation re ga rding Lemon ’s second p rong

— i.e.
, that Ordinance 2401 has the primary effect of “convey [ ing ] disapproval of relig ion”—we find it simply implausible. The history we have recounted s h o w s that, far from disapproving the nativity sc e n e s , the City welcomed and accommodated the Committee’s display s for

over fifty y ears a

nd repealed th e W i n ter Display ex c eption only when it was convinced that no other cours e o f action

ma d e s e n se. I ndeed, a third party mig ht well have h ad
g rounds t o sue the City on the g rounds that the W inter Display sy stem itself v iolat e d t h e Establishment Clause b y

Alleg hen y v. ACLU

, 4 9 2 U.S. 5 7 3, 5 9 2 (1 9 8 9 ) (“ [ Lemo n ’ s] trilo g y o f tests h as b een ap plied reg u la r ly in th e Co u rt’ s later Estab lish m en t Clau s e cases.”).N A T I V I T Y S C E N E S C O M M

. V

. C I T Y O F S A N T A M O N I C A 28

u n d uly privileging relig ion. Thus, it is not plausible th a t , considering Ordinance 2401 in contex t, a “reasonable observer” would c o nclude that its p rimary effect was to communicate a messag e of disfavor toward Christianity

. See Am. F amily Ass’n, Inc. v. City & Cnty. of S.F.
, 277 F .3d 1114, 1122 (9th Cir. 2002).

W e conclude that Ordinance 2 401 p asses muster under the Lemon test and that the Committee has failed to state a claim under the Establishment C l a u s e. The district court properly dismissed this claim under Rule 12(b)(6). 8

I V

W e do n ot doubt th at t h e Committee resents the w ay in which the City curtailed its traditional way of celebrating the Christmas season in Palisades Park, b ut its g r ievances do not

8 T h e Co m

m ittee’ s o p en in g b rief arg u es in p assin g th at th e d istrict co u rt erred b y d ism issin g t his actio n w ith p rej u dice. W e d isag ree. W e are sk ep tical th at th e Co m

m ittee—w

h ich n ev er ask ed t h e d istrict co u rt f or leav e to am en d its co m

p lain t—can n o w b e h eard to co m p lain th at th e d istrict co u rt did n o t g ran t s u ch l eav e. S ee, e.g

. , Ala ska v. Un ited Sta tes , 2 0 1 F.3 d 1 1 54
, 11 6 3

– 64 (9 th Cir. 2 00 0 ) (“ W h ere a p arty d o es n o t ask th e d istrict co u rt f

o r leav e to am en d

, [ a ] req u est o n ap p eal to rem an d w i th in stru ctio n s t o p erm it am en d m en t co m es to o late.” (alteratio n an d in tern al
q u o tatio n m ark s o m itted )). A n d in an y ev en t, leav e to am en d i s n o t

w arran t ed w

h ere, as h ere, “ [i]t is clear th at n o am en d m en t co u ld sav e [th e]

co m plain t.” Desa ig o u d

a r v. Meyerco r

d

, 2 2 3 F.3 d 1 0 2 0
, 1 0 26 (9 th Cir. 2 0 0 0 ). We can n o t co n ceiv e o f an y ad ditio n al f

acts—an d th e Co m

m ittee
p ro f f ers n o n e—th at w o u ld cu re th e d ef icien cies in

th e Co m m ittee’ s First A m en d m en t claim s. T h e district co u rt t h u s d id n o t ab u se i ts d iscretio n b y d ism issin g th e case w ith

p rej u d i ce. S

ee, e.g

. , In re VeriFo n e S ec. Litig

. , 1 1 F.3 d 8 6 5 , 8 7 2 (9 th

Cir. 1 9 9 3 ).N A T I V I T Y S C E N E S C O M M

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. C I T Y O F S A N T A M O N I C A 29

s t a t e a v iable claim that the City violated the F ir s t Amendment. The judg ment of the district court is

AF F IRMED.