FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEATTLE AFFILIATE OF THE OCTOBER 

22ND COALITION TO STOP POLICE

BRUTALITY, REPRESSION AND THE

CRIMINALIZATION OF A GENERATION,

an unincorporated association,

Plaintiff-Appellant,

No. 06-35597 v.

D.C. No. CITY OF SEATTLE; R. GIL  CV-04-00860-RSL KERLIKOWSKE, Chief of Seattle

Police Department; SERGEANT DOE, OPINION

a Seattle Police Sergeant;

LIEUTENANT DOE, a Seattle Police

Lieutenant; OFFICER DOE, a Seattle

Police Officer; ERIC SANO; STEVEN

PAULSEN,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted

February 5, 2008—Seattle, Washington

Filed December 12, 2008

Before: Raymond C. Fisher, Ronald M. Gould and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge Ikuta

16369
COUNSEL

Michael K. Ryan (argued), Ryan Drew Redekopp and Alex

Wagner, Preston Gates & Ellis LLP, Seattle, Washington, and

Aaron H. Caplan, American Civil Liberties Union of Washington, Seattle, Washington, for the plaintiff-appellant. 

Carlton W. M. Seu (argued), Assistant City Attorney, and

Thomas A. Carr, City Attorney, Seattle, Washington, for the

defendants-appellees. 

OPINION

FISHER, Circuit Judge: 

We are presented with a conflict between those who wish

to conduct a parade on Seattle’s city streets — a forum historically preferred by people who want to demonstrate their messages of honor, celebration or, as in this case, protest — and

the city’s interests in traffic safety. The City of Seattle by

ordinance gives its police chief, when issuing a parade permit,

the discretion to require marchers to use the sidewalks instead

of the city streets. The issue is whether the ordinance violates

the free speech guarantees of the First Amendment because

on its face it impermissibly grants “the licensing official . . .

unduly broad discretion.” Thomas v. Chi. Park Dist., 534 U.S.

316, 323 (2002). We conclude that the ordinance by its terms

gives the Chief of Police unbridled discretion to force marchers off the streets and onto the sidewalks, unchecked by any

requirement to explain the reasons for doing so or to provide

some forum for appealing the chief’s decision. We therefore

hold that the parade ordinance is facially unconstitutional.

I. Factual and Procedural Background

The Seattle affiliate of the October 22nd Coalition to Stop

Police Brutality, Repression and the Criminalization of a GenSEATTLE AFFILIATE v. CITY OF SEATTLE 16373
eration (“Coalition”) is an unincorporated association dedicated to raising awareness of the problem of police brutality.

It is part of a national coalition with 40 affiliates in cities

throughout the United States; the focus of these affiliates’

efforts is holding a coordinated annual day of protest on October 22. Every year since 1996, the Coalition’s Seattle members have held parades, rallies and speeches on this day in

order to publicly commemorate their “National Day of Protest

to Stop Police Brutality.” The Coalition intends to continue

holding these events annually in the future. 

The City of Seattle requires anyone wishing to conduct a

parade in Seattle to first obtain a permit from the Seattle Chief

of Police. The relevant ordinance states: 

No person shall conduct or participate in a parade

upon any street or alley in the City without first submitting a written notification to the Chief of Police

and obtaining a permit from the Chief of Police to do

so. Upon written notification to the Chief of Police,

the Chief of Police shall grant a permit. So that preparations for traffic regulation can be made, the written notification for permit shall state the place and

hour of formation, the proposed line of movement or

march, the scheduled starting time, and the names of

the persons having charge or control . . . . The Chief

of Police may modify the place and hour of formation, the proposed line of movement or march, and

the scheduled starting time in the interest of vehicular or pedestrian traffic safety.

Seattle Mun. Code Ord. 11.25.020 (hereinafter “Parade Ordinance”).1

 Another Seattle ordinance defines a “parade” as

“any organized movement or march of persons and/or things

which requires the closure of streets to prevent a conflict with

the regular flow of vehicular traffic.” SMC 11.14.410. A

1Hereinafter, all citations to “SMC” refer to the Seattle Municipal Code.

16374 SEATTLE AFFILIATE v. CITY OF SEATTLE
group wishing to hold a parade must apply for a permit at

least 48 hours in advance. See SMC 11.25.020. 

The Coalition has applied for and received a parade permit

from the Seattle Chief of Police every year since 2001. Over

the course of several years, however, these permits have been

subjected to conditions that the Coalition found objectionable.

In both 2002 and 2004, the Seattle Chief of Police issued

parade permits requiring the Coalition’s marchers to “use the

sidewalk and obey traffic control signals” if there were fewer

than 200 marchers present.2 The Coalition’s 2003 parade permit did not contain any minimum numbers requirement, but

on the day of the march, Seattle police officers instructed the

Coalition to use the sidewalks. Coalition members protested

that the permit gave them the right to march on the streets, but

one of the police officers present told group members that the

parade permit had been “rescinded” and that the decision to

rescind was “based on the number” of marchers, which was

estimated to be between 80 and 100. Under protest, the Coalition’s 2003 parade proceeded on the sidewalk along the designated route, with police escorting the marchers on foot and

bicycle. 

Seattle does not include a minimum numbers requirement

in all — or even most — parade permits as a condition of

allowing marchers to utilize the streets, nor does it set the

minimum requirement at a consistent number when it does

impose one. Seattle issued 279 parade permits between January 1999 and July 2005, of which 25, or approximately nine

percent, imposed some form of a minimum numbers requirement as a prerequisite to marching in the street. Twenty-one

of these permits required a minimum of 200 participants,

while the remaining set limits that varied between 50 and 500

participants. The Coalition maintains that Seattle’s permitting

practices reveal that political or protest marches were more

2Seattle ultimately agreed to reduce this minimum numbers requirement

in the 2004 permit to 100, after negotiations with the Coalition’s attorney.

SEATTLE AFFILIATE v. CITY OF SEATTLE 16375
likely than other parades to have their permission to use the

streets conditioned on gathering a minimum number of

marchers. The district court agreed, noting that “a review of

defendants’ permitting decisions over the last few years

shows that applications for political and/or protest marches

are more likely to garner a minimum participant requirement

than are community or sports-related events.” This conclusion

is borne out by the record, which shows that while not all

expressly political or protest marches received such conditional permits, a minimum numbers requirement was disproportionately likely to be imposed on political, as opposed to

community or religious, events. 

The Coalition brought this action in federal district court,

contending that the conduct of Seattle’s police officers at the

Coalition’s 2003 parade violated their free speech and due

process rights and that Seattle’s Parade Ordinance on its face

violates the First Amendment to the U.S. constitution, as well

as provisions of the Washington state constitution. On crossmotions for summary judgment, the district court held that the

Parade Ordinance does not violate the First Amendment on its

face. The parties agreed to settle the Coalition’s free speech

claim as applied to the officers’ conduct during the 2003

parade, and so all that remains before us on appeal is the

facial challenge. We review the district court’s decision on

cross-motions for summary judgment de novo. Arakakai v.

Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002). We reverse. 

II. Seattle’s Parade Ordinance

Before we consider the Coalition’s First Amendment challenge to the Parade Ordinance, we address the extent of the

authority the Ordinance confers. The Parade Ordinance is

fairly terse, but the scope of the Chief of Police’s authority is

clear. First, the Chief of Police has no authority to deny a

parade permit. See SMC 11.25.020 (“Upon written notification . . . the Chief of Police shall grant a permit.” (emphasis

added)). Second, the permitting requirement applies to any

16376 SEATTLE AFFILIATE v. CITY OF SEATTLE
“parade upon any street or alley.” Id. Elsewhere, Seattle

defines a “parade” to include “any organized movement or

march of persons and/or things which requires the closure of

streets to prevent a conflict with the regular flow of vehicular

traffic.” SMC 11.14.410. Third, the Parade Ordinance gives

the Chief of Police the discretion to modify the parade in various ways, including by changing the “proposed line of movement or march.” SMC 11.25.020. Although Washington

courts have not provided any authoritative interpretation of

the Parade Ordinance, the Seattle Chief of Police has interpreted his authority to alter the “proposed line of movement

or march” to include the authority to require marchers to use

the sidewalks in lieu of the streets and to require marchers to

obey traffic signals. 

The Coalition suggests that we may avoid the constitutional

question if we conclude that placing marchers on the sidewalks, whether the marchers are required to obey traffic signals or not, amounts to a constructive and impermissible

denial of a parade permit because a “parade” under Seattle

law occurs only when there is a “closure of the streets.”

Because Seattle law requires parade permits to be conferred

as of right, the Coalition contends, the Chief of Police has no

authority to place parades onto sidewalks. Seattle responds

that sidewalk marches can also be parades under Seattle law

because they may require some closure of the streets, such as

when police provide traffic control at intersections or close a

lane of traffic so that they can safely escort marchers. Thus,

Seattle argues, sidewalk marches are merely rerouted parades,

not complete denials of parades. The Coalition conceded that

during the Coalition’s 2003 march, when the marchers were

compelled to remain on the sidewalk, police officers occupied

a lane of traffic throughout the march and marchers were

required to obey some traffic signals, but not others. 

We agree with the Coalition that a constructive denial of a

permit could occur if police officials confined marchers to the

sidewalk without providing a street escort or other police serSEATTLE AFFILIATE v. CITY OF SEATTLE 16377
vices, and that such a denial would be open to challenge on

an as-applied basis. We agree with Seattle, however, that the

Parade Ordinance on its face does not limit the Chief of

Police’s authority to “modify . . . the proposed line of movement” of the march by placing marchers on sidewalks. If

police close a lane of traffic for safety reasons or otherwise

provide traffic control during the march, then marchers

receive a privilege not accorded to non-marching pedestrians.

Therefore, the Chief of Police has authority under the Parade

Ordinance to alter the parade route by requiring marchers to

use sidewalks instead of streets. 

III. Facial Challenge Under the First Amendment

To determine whether the Parade Ordinance complies with

the requirements of the First Amendment, we must first

decide whether the Coalition may properly bring a facial challenge to the Ordinance. We conclude that it may. 

The Coalition does not question Seattle’s authority to

require parade organizers to obtain a permit in advance of

holding a street parade, and the constitutionality of such permitting schemes is well established. See Forsyth County v.

Nationalist Movement, 505 U.S. 123, 130 (1992) (“[The] government, in order to regulate competing uses of public

forums, may impose a permit requirement on those wishing

to hold a march, parade, or rally.” (citations omitted)). The

Coalition also does not dispute that Seattle may issue such

permits subject to reasonable time, place and manner restrictions, including restrictions on the start time or route of the

march. Rather, the Coalition principally argues that the Parade

Ordinance violates the First Amendment because it fails to

provide sufficient guidance to the police as to when they may

require marchers to use the sidewalks and deny them access

to the streets. This lack of guidance, in the Coalition’s view,

is compounded by the absence of any requirement that the

police officials articulate their reasons and the absence of any

administrative or judicial review mechanism. This, the Coali16378 SEATTLE AFFILIATE v. CITY OF SEATTLE
tion contends, creates an unacceptable risk that officers will

arbitrarily modify certain groups’ permits by prohibiting them

from marching in the streets based on the content of their

speech. 

[1] Facial challenges are generally disfavored, both because

they may require us to pass judgment on a statute that has not

been implemented and because a ruling of unconstitutionality

undermines the democratically expressed will of the people.

See Wash. State Grange v. Wash. State Republican Party, 128

S. Ct. 1184, 1191 (2008). The Supreme Court, however, has

“long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law

may challenge it facially,” even when that person has neither

applied for nor been denied a license. City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 755-56 (1988). This

is so for two reasons. First, the Court has recognized that,

even as to permitting schemes that are content neutral on their

face, “the mere existence of the licensor’s unfettered discretion” may intimidate parties into self-censoring their speech,

and such self-censoring effects are incapable of redress

through an as-applied challenge. Id. at 757-58. Second, and

particularly relevant here, “the absence of express standards

makes it difficult to distinguish, ‘as applied,’ between a licensor’s legitimate denial of a permit and its illegitimate abuse of

censorial power.” Id. at 758. 

[2] The Parade Ordinance is susceptible to the Coalition’s

facial challenge because the Ordinance would be similarly

subject to abuse and the attendant dangers of self-censorship

if it confers unfettered discretion on the Seattle Chief of

Police or his subordinates. The exclusive purpose of the Ordinance is to regulate constitutionally protected expressive

activity, thereby creating a greater danger of both censorship

and self-censorship than laws of general applicability that

may incidentally be misused to burden expression. See id. at

760-61. The danger of abuse is acutely presented in this case,

SEATTLE AFFILIATE v. CITY OF SEATTLE 16379
where the speech the Coalition seeks to engage in — protesting police brutality — is directly critical of the governmental

body that administers Seattle’s permit scheme. Recognizing

such kinds of risks, both the Supreme Court and we have

repeatedly allowed plaintiffs to bring facial challenges to permitting schemes that regulate expressive activity. See, e.g.,

Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002)

(park permit scheme); Forsyth County, 505 U.S. at 131

(assembly and parade fee scheme); Plain Dealer, 486 U.S. at

755 (newspaper rack permit scheme); Long Beach Area Peace

Network v. City of Long Beach, 522 F.3d 1010, 1019 (9th Cir.

2008) (event permit scheme); Santa Monica Food Not Bombs

v. City of Santa Monica, 450 F.3d 1022, 1025 (9th Cir. 2006)

(community event permit scheme); G.K. Ltd. Travel v. City of

Lake Oswego, 436 F.3d 1064, 1068-70 (9th Cir. 2006) (sign

permit scheme). 

[3] That the Ordinance authorizes only a “modification” of

a parade permit by rerouting marchers from the streets to the

sidewalk, not an outright denial of a permit, does not preclude

a facial challenge. We must look to the implementation of the

Ordinance to ascertain whether the City has in practice narrowed the Ordinance in a way that remedies any potential

overbreadth and precludes constitutional challenge. See Forsyth County, 505 U.S. at 131; Ward v. Rock Against Racism,

491 U.S. 781, 795-96 (1989); Foti v. City of Menlo Park, 146

F.3d 629, 639 (9th Cir. 1998). Upon examination, not only

has the City failed to narrow the Ordinance’s scope in practice, but it has implemented the Ordinance at times in a way

that expands it even beyond what the City now claims its

scope to be. Significantly, the Seattle police have been enforcing the Ordinance as though it authorized denying permits

(relegating marchers to the sidewalks as normal pedestrians),

although the City has repeatedly claimed that all permits must

be granted. For example, the police department has issued

permits with the following kinds of restrictions: “If there are

less than 200 participants, the participants will use sidewalks

and obey traffic control signals.” “Permit on condition of

16380 SEATTLE AFFILIATE v. CITY OF SEATTLE
500+ participants.” “If event organizers are unable to have

200+ participants, the Field Incident Commander has the ability to re[s]cind this permit and have the group utilize the sidewalk.”(emphasis added). By their own description, therefore,

the Seattle police have rescinded permits if minimum numbers determined by the police — not conditions in the Ordinance itself — are not met. When such permits are

“rescinded,” the marchers are required to proceed on the sidewalk rather than the street and to follow all traffic signals, just

like regular pedestrians, an activity the City has conceded

does not require a permit. The effect of such a rescission,

therefore, is tantamount to a constructive denial of a parade

permit.3

[4] The implementation of the Ordinance by the Seattle

police thus demonstrates the appropriateness of a facial challenge in two ways: First, as applied the Ordinance seems to

be more akin to a permit scheme that allows the deciding official to grant or deny a permit for speech than to a system

allowing mere modifications to the conditions under which

speech is allowed. Second, taking the City at its word that the

intention of the Ordinance was to guarantee “parade” permits

to all applicants, the fact that the police believed themselves

authorized to transform a parade into a group walk on the

sidewalks illustrates that the Ordinance contains no readily

apparent guidelines. 

[5] Furthermore, by routing marchers onto sidewalks, Seattle undoubtedly “den[ies] use of a forum in advance of actual

expression,” namely, the streets. See Ward, 491 U.S. at 795

n.5 (quoting Se. Promotions, Ltd. v. Conrad, 420 U.S. 546,

553 (1975)); see also Long Beach Area Peace Network, 522

F.3d at 1027 (considering facial challenge to ordinance that

allowed officials to “restrict[ ] events to city sidewalks, por3The Dissent, at footnote 3, misses the point of our citation of these

examples, which simply demonstrate that the City does in fact constructively deny parade permits. 

SEATTLE AFFILIATE v. CITY OF SEATTLE 16381
tions of a city street, or other public right-of-way” (internal

quotation marks omitted)). The public streets are “the quintessential traditional public fora,” as the Supreme Court has long

recognized. Int’l Soc’y for Krishna Consciousness, Inc. v.

Lee, 505 U.S. 672, 676 (1992); see also Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, 515

U.S. 557, 579 (1995) (“Having availed itself of the public

thoroughfares for purposes of assembly [and] communicating

thoughts between citizens, the [petitioner] is engaged in a use

of the streets that has from ancient times, been a part of the

privileges, immunities, rights, and liberties of citizens.” (internal quotation marks omitted) (first alteration in original)). We

have accordingly held that streets and sidewalks are distinct

forums for speech. See ACORN v. City of Phoenix, 798 F.2d

1260, 1266 (9th Cir. 1986) (noting that the Supreme Court has

“listed ‘sidewalks’ separately as an additional example of traditional public fora, rather than as wrapped up in a broad definition of the word ‘streets’ ”). Therefore, even if the

Ordinance does not give the Chief of Police the discretion to

permit or deny a permit, it clearly does give the Chief of

Police the discretion to “permit or deny expressive activity,”

namely, a street march. Plain Dealer, 486 U.S. at 755

(emphasis added). 

We therefore disagree with the dissent’s suggestion that the

Coalition should not be permitted to bring a facial challenge

because Seattle’s permit scheme requires officials to make

available another public forum — the sidewalks — at the

same time they deny access to the streets. This would ignore

that both the message and the ability to reach an audience are

sensitive to the place and method of communication. See, e.g.,

City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (noting that

“[d]isplaying a sign from one’s own residence often carries a

message quite distinct from placing the sign somewhere else,

or conveying the same text or picture by other means”); Santa

Monica Food Not Bombs, 450 F.3d at 1047 (“The ability to

communicate a particular message in a particular location can

significantly contribute to the effectiveness of that communi16382 SEATTLE AFFILIATE v. CITY OF SEATTLE
cation.”). Street parades afford greater visibility to the marchers than parading down the sidewalk, and may also allow

marchers to proceed abreast, march behind a horizontal banner and more easily distribute materials to pedestrians on both

sides of the street. A group such as the Coalition that wishes

to claim for itself the unique message of a street march, and

that believes a sidewalk parade minimizes its ability to communicate with its audience, therefore might easily be intimidated into censoring its message so as to avoid being rerouted

to the sidewalk — for example, by toning down its critique of

police brutality so as to avoid unfavorable treatment by the

police officials who administer the permits.4

If all speech permit schemes were immune from facial

challenge simply because they required officials to permit

access to some forum for speech, legislatures would simply be

encouraged to draft their regulations more broadly, sweeping

up a broad class of speech and then leaving administrators a

free hand to make extensive “modifications” within that class.5

This would lead to the anomalous result that a statute confer4Further, the Supreme Court has allowed facial challenges to statutes

that did not themselves actually give officials discretion to deny a permit,

but rather allowed officials the discretion to burden a group’s speech differently depending on its message. See, e.g., Forsyth County, 505 U.S. at

133 (striking down a statute on a facial challenge where “nothing in the

law or its application prevents the official from encouraging some views

and discouraging others through arbitrary application of fees” (emphasis

added)). Thus the complete and explicit denial of any right to speak is not,

as the dissent suggests, the sine qua non of the right to bring a facial challenge. 

5For example, if we adhered to the dissent’s proposed distinction, then

an ordinance requiring a permit for “a billboard” would be subject to facial

challenge, whereas an ordinance requiring officials to issue a permit for

“any sign,” but allowed officials to “modify” a request for a billboard by

approving a two-foot lawn sign instead, would not. Subjecting these two

statutes to two different constitutional tests, on the theory that one denies

speech whereas the other allows only “modifications” to speech, would

hang too much on an inconsequential distinction. In both cases, the individual has been denied permission to put up a billboard. 

SEATTLE AFFILIATE v. CITY OF SEATTLE 16383
ring more discretion on administrators would be less susceptible to facial challenge. The danger, moreover, of such a free

hand to modify the conditions under which speech is allowed

has been demonstrated here: even though the City believes

that every permit must be granted, the Chief of Police has

interpreted his authority to modify to do so in such a way that

it is no longer a parade at all. Without adequate standards to

guide official discretion in applying the Ordinance, the risk of

such censorship — and self-censorship — is real. Accordingly, we hold that the Coalition may bring a facial challenge

to the Parade Ordinance. 

IV. The First Amendment

Having concluded that the Coalition may bring a facial

challenge to the Parade Ordinance under the First Amendment, we turn to whether the way in which the Ordinance regulates marchers’ access to the streets satisfies the

requirements of the First Amendment. We hold that it does

not.

A. Legal Framework

The Supreme Court has emphasized in a long line of cases

that robust political discourse within a traditional public

forum is the lifeblood of a democracy. See, e.g., Garrison v.

Louisiana, 379 U.S. 64, 74-75 (1964) (“[S]peech concerning

public affairs is more than self-expression; it is the essence of

self-government.”). The First Amendment “applies with particular force” to a “march and other protest activities,” such

as the Coalition seeks to engage in here. United States v.

Baugh, 187 F.3d 1037, 1042 (9th Cir. 1999). This is particularly true where the march takes place in the streets, which

“have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. Comm. for Indus. Org.,

307 U.S. 496, 515 (1939); see also Frisby v. Schultz, 487 U.S.

16384 SEATTLE AFFILIATE v. CITY OF SEATTLE
474, 481 (1988) (“[A]ll public streets are held in the public

trust and are properly considered traditional public fora.”).

When the government seeks to regulate access to the streets,

“First Amendment protections are at their strongest and regulation is most suspect.” Long Beach Area Peace Network, 522

F.3d at 1021. Because of the special status of traditional public fora in our First Amendment tradition, “the government

must bear an extraordinarily heavy burden to regulate speech

in such locales.” NAACP, Western Region v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir. 1984). 

The Supreme Court has traditionally referred to any permitting scheme as a “prior restraint on speech” that faces a

“heavy presumption against validity.” See Forsyth County,

505 U.S. at 130 (internal quotation marks omitted). The

Court, however, has more recently distinguished between

schemes that “authorize a licensor to pass judgment on the

content of speech” and those whose purpose “is not to exclude

communication of a particular content, but to coordinate multiple uses of limited space” on a content-neutral basis.

Thomas, 534 U.S. at 322. A permit scheme that regulates

competing uses of space on a content-neutral basis “differs

toto coelo” from a traditional censorship regime. Id. at 322-23

(internal quotation marks omitted). It therefore “bear[s] a

somewhat lighter burden,” including that it is not required to

meet the extraordinary procedural requirements governing traditional prior restraints. Santa Monica Food Not Bombs, 450

F.3d at 1036; see also G.K. Ltd. Travel, 436 F.3d at 1082.

Licensing regimes whose sole purpose is to regulate competing uses of public space are evaluated “as a content-neutral

time, place, and manner permitting scheme.” Santa Monica

Food Not Bombs, 450 F.3d at 1036-37. 

The Coalition does not seriously dispute that the Parade

Ordinance is a content-neutral time, place and manner regulation, and in fact concedes that the Ordinance is content neutral

on its face. Although the Coalition argues that the Ordinance

has been used by officials to discriminate on the basis of conSEATTLE AFFILIATE v. CITY OF SEATTLE 16385
tent in the past, the reasons for the differential treatment are

not sufficiently developed in the record for us to infer they

were content based. Further, the Ordinance itself does not

instruct the Chief of Police to differentiate speech on the basis

of content, and so any content-based discrimination, if it

occurred, happened because the Ordinance failed to prevent it,

not because the Ordinance required it. We shall therefore take

the Ordinance at face value for purposes of our analysis. See

G.K. Ltd. Travel, 436 F.3d at 1071 (“[W]hether a statute is

content neutral or content based is something that can be

determined on the face of it; if the statute describes speech by

content then it is content based.” (internal quotation marks

omitted)). 

[6] The only question before us, therefore, is whether the

Ordinance satisfies the requirements of a valid time, place and

manner restriction on speech. To be valid under the First

Amendment, “[s]uch restrictions (1) must not delegate overly

broad discretion to a government official; (2) must not be

based on the content of the message; (3) must be narrowly tailored to serve a significant governmental interest; and (4)

must leave open ample alternatives for communication.”

Santa Monica Food Not Bombs, 450 F.3d at 1037; see also

Long Beach Area Peace Network, 522 F.3d at 1022. We have

already accepted the Ordinance as being content neutral, so

we focus on the first component: overbroad discretion. If the

Ordinance delegates overly broad discretion to police officials, we need not determine whether it satisfies the remaining

components of the test. See Thomas, 534 U.S. at 323 n.3. 

B. Overly Broad Discretion

[7] To determine whether the Ordinance impermissibly

grants “the licensing official . . . unduly broad discretion,” we

consider whether the language of the Ordinance “contain[s]

adequate standards to guide the official’s decision and render

it subject to effective judicial review.” Thomas, 534 U.S. at

323; see also G.K. Ltd. Travel, 436 F.3d at 1082. Such guide16386 SEATTLE AFFILIATE v. CITY OF SEATTLE
lines mitigate the “risk that [the licensor] will favor or disfavor speech based on its content.” Thomas, 534 U.S. at 323.

Among the factors we consider is whether the Ordinance contains “narrowly drawn, reasonable and definite standards” that

guide the hand of the administrator. Forsyth County, 505 U.S.

at 133 (internal quotation marks omitted). The Supreme Court

has expressed particular concern about statutes that do not

require the licensor to “provide any explanation for his decision, and [where] that decision is unreviewable.” Id.; see also

Thomas, 534 U.S. at 324 (holding that ordinance did not confer excess discretion where the licensor “must clearly explain

its reasons for any denial,” and where the statute’s standards

are “enforceable on review” by appeal to an administrative

board and then to the state courts). None of these factors is

itself necessarily determinative of whether a statute confers

excess discretion. Instead, we look to the totality of the factors

to assess whether this Ordinance contains adequate safeguards

to protect against official abuse. 

[8] Starting with the language of the Parade Ordinance

itself, the Chief of Police may modify parade permits for only

one reason: “in the interest of vehicular or pedestrian traffic

safety.” SMC 11.25.020. Seattle’s Chief of Police and the

police lieutenant in charge of administering parade permits

testified to a variety of circumstances that officials might consider when deciding to place a parade on the sidewalk, including the lighting and weather conditions at the time of the

march, the proposed route, any construction or roadway problems along the route, emergency vehicle access, sidewalk

widths, the size of the proposed march and whether the march

would include vehicles or floats. The articulated list of relevant factors both changed and grew during the course of litigation in the district court, however; at various points, the list

ranged from whether “normal citizens [are] trying to spend

money and have a meal” on the sidewalk to the dangers a

street march would pose to marchers and drivers. Moreover,

Seattle never claimed that these factors were enumerated in

any official policy; in fact, the police officer responsible for

SEATTLE AFFILIATE v. CITY OF SEATTLE 16387
issuing parade permits said that to his knowledge, these factors were “not spelled out anywhere, [or] written down.” 

[9] In evaluating the facial challenge to the Parade Ordinance, we consider “the [City’s] authoritative constructions of

the ordinance, including its own implementation and interpretation of it.” Forsyth County, 505 U.S. at 131. The various

factors listed by Seattle’s police officials do not restrict their

discretion, however, unless “the limits the city claims are

implicit in its law [are] made explicit by textual incorporation,

binding judicial or administrative construction, or wellestablished practice.” Plain Dealer, 486 U.S. at 770. We

decline to elevate any of the various decisional principles

offered by Seattle’s officials to the realm of “well-established

practice,” when no consistent set of factors was ever articulated. Further, some of these principles actually appear to

broaden official discretion rather than restrain it, such as one

officer’s understanding that he could place marchers on

streets or sidewalks depending on the extent to which their

presence would inconvenience customers of sidewalk cafes.

These factors, therefore, appear simply to follow from police

officials’ general belief that they should exercise their duties

in a “reasonable” and “good faith” manner. Because Seattle

has neither a binding interpretation of the Parade Ordinance

nor any well-established practices governing the exercise of

official discretion, the only question before us is whether the

Ordinance, on its face, provides sufficient guidance to these

officials. 

Seattle argues that the language of the Ordinance — which

states that the Chief of Police may move marchers onto sidewalks only “in the interest of vehicular or pedestrian safety”

— provides an adequate standard to guide official discretion.

Seattle asserts that this standard confers no more discretion on

its face than the standards the Supreme Court approved in

Thomas and Cox v. New Hampshire, 312 U.S. 569 (1941),

and that it is narrower than the standard the Supreme Court

criticized in Shuttlesworth v. City of Birmingham, 394 U.S.

16388 SEATTLE AFFILIATE v. CITY OF SEATTLE
147 (1969). The Coalition argues that this language in fact

confers wide discretion, because it allows Seattle to deny a

group access to the streets whenever police officials determine it is in the “interest of vehicular or pedestrian safety.”

SMC 11.25.020 (emphasis added). Because nearly every

street parade creates potential safety concerns for participants,

pedestrians and vehicular traffic, the Coalition contends that

virtually any denial of a street parade could be said to be in

the “interest of” safety. 

[10] We agree with the Coalition that the Parade Ordinance’s language provides less guidance to officials than the

standards considered in Cox and Thomas. In Thomas, the

ordinance allowed the city to deny a permit to use the park if,

among other reasons, the activity “would present an unreasonable danger to the health or safety” of the public or park

employees. 534 U.S. at 319 n.1 (emphasis added). The statute

in Cox, as interpreted by the state’s supreme court, instructed

the municipality to license a march, provided “the convenience of the public in the use of the streets would not thereby

be unduly disturbed.” 312 U.S. at 576 (emphasis added). The

Parade Ordinance, however, allows officials to restrict marchers’ access to the streets whenever such a restriction is in the

undefined “interest of” traffic and pedestrian safety. This language gives officials less guidance and more leeway than

those standards the Supreme Court and we have previously

approved. See Long Beach Area Peace Network, 522 F.3d at

1027 (approving statute giving officials the discretion to “restrict[ ] events to city sidewalks, portions of a city street, or

other public right-of-way,” but only when such restrictions

are “necessary to . . . protect the safety of persons and property and to control vehicular and pedestrian traffic” (internal

quotation marks omitted) (emphasis altered)); City of Richmond, 743 F.2d at 1349 n.1 (approving statute that required

approval of parade permits unless they would place an “undue

burden upon the movement of vehicular traffic” (emphasis

added)); see also Field Day, LLC v. County of Suffolk, 463

F.3d 167, 180 (2d Cir. 2006) (approving statute that, as conSEATTLE AFFILIATE v. CITY OF SEATTLE 16389
strued, “allows the official only to consider whether a proposed mass gathering presents unreasonable risks to life or

health”); cf. Shuttlesworth, 394 U.S. at 149-50 (holding that

statute granted excessive discretion in allowing the city to

deny a parade permit if “in its judgment the public welfare,

peace, safety, health, decency, good order, morals or convenience require that it be refused”). 

[11] The breadth of the Ordinance becomes particularly

troublesome when we consider its failure to require officials

to articulate their reasons for denying permission to march in

the streets and the absence of any mechanism for direct

administrative or judicial review.6 The Supreme Court’s decision in Thomas is instructive in this regard. The Court made

it quite plain that its acceptance of the standard governing the

Chicago Park District’s discretion — that the activity “would

present an unreasonable danger to the health or safety” of the

public or park employees, a standard itself more limiting than

Seattle’s — rested on two important procedural checks on that

discretion missing here: (1) the officials had to state their specific reasons for concluding that there was an unreasonable

danger, and (2) their decision was subject to both administrative and judicial review. See Thomas, 534 U.S. at 323 (“We

have thus required that a time, place, and manner regulation

contain adequate standards to guide the official’s decision and

6Seattle suggested for the first time on appeal that parade permits could

be reviewed on appeal through a separate permitting system that exists for

“special events.” See SMC 15.52.060(D). Special events are events

involving more than 50 people that are likely to have a substantial impact

on the public place where they are held and require the provision of substantial public services. SMC 15.52.005(A). Special events permits, unlike

parade permits, must be sought three months in advance. SMC

11.15.060(A). There is no basis for concluding that parades and special

events are synonymous under Seattle law, and Seattle presented no evidence that the terms of parade permits could be appealed under the Special

Events Ordinance. 

16390 SEATTLE AFFILIATE v. CITY OF SEATTLE
render it subject to effective judicial review.” (emphasis

added)).7

Both the Supreme Court and this court have repeatedly recognized that requiring officials to state the reasons for a

license denial provides an important check on official discretion by “facilitat[ing] effective review of the official’s determination” and “ensur[ing] that the . . . determination is

properly limited in scope.” G.K. Ltd. Travel, 436 F.3d at 1083

(citing Thomas, 534 U.S. at 324). We have consistently

emphasized the importance of these two checks together,

which ensure that officials do not abuse the authority conferred on them by statute. See, e.g., Thomas, 534 U.S. at 324;

Forsyth County, 505 U.S. at 133 (holding parade fee ordinance unconstitutional where the administrator “need not provide any explanation for his decision, and [where] that

decision is unreviewable”); Plain Dealer, 486 U.S. at 769

(holding a news-rack permitting ordinance unconstitutional in

part because “nothing in the law as written requires the mayor

to do more than make the statement ‘it is not in the public

interest’ when denying a permit application”); cf. Long Beach

Area Peace Network, 522 F.3d at 1027 (permitting scheme

not unconstitutional where officials must “provide . . . a written explanation for a decision that imposes conditions on the

permit” and where that decision can be appealed to the city

council or state court). 

[12] Requiring officials to state their reasons for restricting

speech is particularly important because without a written

explanation it is “difficult to distinguish, ‘as applied,’ between

7The procedural checks of Thomas are quite different from the procedural requirements rejected in Southern Oregon Barter Fair v. Jackson

County, 372 F.3d 1128 (9th Cir. 2004). See Dissent at 16400. In Southern

Oregon, we held that the three specific procedural safeguards placed upon

content-based “explicit censorship schemes,” established in Freedman v.

Maryland, 380 U.S. 51 (1965), are not required of content-neutral licensing schemes, but we did not exonerate all such schemes from any procedural checks. See Southern Oregon, 372 F.3d at 1137. 

SEATTLE AFFILIATE v. CITY OF SEATTLE 16391
a licensor’s legitimate denial of a permit and its illegitimate

abuse of censorial power.” See Plain Dealer, 486 U.S. at 758.

The Parade Ordinance allows the officials who administer

Seattle’s permit scheme to deny marchers access to the streets

without even the barest expression as to why their march

needed to be placed on the sidewalk in the interest of pedestrian and traffic safety. The dissent emphasizes that some of

these decisions are made by police on the ground during the

parade and suggests it would be impracticable to ask officials

to provide a written decision and an appeal right. See Dissent

at 16399. However, police officers routinely explain discretionary decisions after they occur, and even a requirement of

after-action justification would provide an important check on

police abuse. Further, and more importantly, the Parade Ordinance also gives this same unfettered discretion to the permitting officials who review and grant applications well in

advance of parade day. Permitting officials who review, grant

and restrict permits could easily produce a written record to

enable judicial (and administrative) review and provide disgruntled applicants with the right to appeal.8

 This lack of a

written record is a critical defect, because without any record

of the rationale for the decision, “post hoc rationalizations by

the licensing official and the use of shifting or illegitimate

criteria are far too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting

8We agree with the dissent that wider discretion may be more appropriate for the police on the scene than the officials who grant permits,

because officers on the ground may be confronted with unexpected conditions at the time of the parade and be required to make instantaneous decisions. The officials who grant permits in advance, however, do not face

these exigencies. The dissent does not contend that the Ordinance can or

should be construed to apply only to the police on the ground, and the

Ordinance cannot be saved from facial invalidity when it confers excess

discretion on administrators who face no obstacles to providing a written

explanation with an appeal right. We express no opinion as to whether a

revised ordinance conferring discretion solely on the police officers escorting the parade would need to meet the same requirements as those governing the initial permitting decision in order to satisfy the First Amendment.

16392 SEATTLE AFFILIATE v. CITY OF SEATTLE
favorable, and suppressing unfavorable, expression.” Plain

Dealer, 486 U.S. at 758. It is therefore no answer to say that

any abuse of the police officials’ authority can be remedied on

a case-by-case, as-applied basis, when the Ordinance itself

makes such after-the-fact review ineffectual if not impossible.9

[13] This problem is highlighted here, where the Coalition

presented evidence that political and protest marches disproportionately received parade permits that conditioned their

use of the streets on the appearance of a certain number of

marchers. See Long Beach Area Peace Network, 522 F.3d at

1043 (noting that evidence suggesting favoritism is “a manifestation of the very dangers inherent in unbridled discretion”). We need not decide whether any of these decisions to

place marchers on the sidewalk was an abuse of the police

chief’s discretion. See Forsyth County, 505 U.S. at 133 n.10

(“Facial attacks on discretion granted a decisionmaker are not

dependent on the facts surrounding any particular permit decision . . . . [T]he success of a facial challenge on the grounds

that an ordinance delegates overly broad discretion to the

decisionmaker rests not on whether the administrator has

exercised his discretion in a content-based manner, but

whether there is anything in the ordinance preventing him

from doing so.” (emphasis added)). It is entirely possible that

each of these decisions was dictated by an articulable interest

of traffic and pedestrian safety, and that there exists a neutral

and non-content-based explanation for this pattern of permitting decisions. However, the very absence of clear standards

in the Parade Ordinance, the lack of any decision-making trail

for us to review and the absence of any administrative appeals

9The dissent argues that the Coalition’s now-settled as-applied challenge that Seattle modified parade permits for parades with a political

message demonstrates that as-applied challenges are enough to remedy

any potential violations of discretion. We believe the lawsuit demonstrates

the precise opposite, that only a systemic pattern of discrimination against

political groups, shown by cataloguing hundreds of marches to uncover a

recognizable pattern, can weigh against so vague a standard as “in the

interest of vehicular and pedestrian safety.” 

SEATTLE AFFILIATE v. CITY OF SEATTLE 16393
process underscore the obvious risk that officials could

engage in content-based discrimination that would be effectively immune from judicial scrutiny. It is this very risk of

abuse that is intolerable under the First Amendment.

CONCLUSION

[14] The Parade Ordinance’s open-ended standard, combined with the absence of a requirement that officials articulate their reasons or an administrative-judicial review process,

vests the Seattle Chief of Police with sweeping authority to

determine whether or not a parade may utilize the forum of

the streets to broadcast its message. The First Amendment

prohibits placing such unfettered discretion in the hands of

licensing officials and renders the Parade Ordinance constitutionally defective on its face. See, e.g., Thomas, 534 U.S. at

324. We therefore need not resolve the other questions presented by the Coalition, such as whether the Ordinance otherwise satisfies the requirements of a valid time, place and

manner restriction and whether it is also invalid under the

Washington state constitution. We reverse the grant of summary judgment to Seattle. 

REVERSED. 

IKUTA, Circuit Judge, dissenting: 

Seattle requires the Chief of Police to grant a parade permit

to anyone who applies for one. SMC 11.25.020.1 The Chief of

1The ordinance states: 

No person shall conduct or participate in a parade upon any street

or alley in the City without first submitting a written notification

to the Chief of Police and obtaining a permit from the Chief of

Police to do so. Upon written notification to the Chief of Police,

the Chief of Police shall grant a permit. So that preparations for

16394 SEATTLE AFFILIATE v. CITY OF SEATTLE
Police has authority only to modify the parade’s place, time,

and proposed line of movement or march “in the interest of

vehicular or pedestrian traffic safety.” Id. Because Seattle

defines “parade” as always involving some “closure of streets

to prevent a conflict with the regular flow of vehicular traffic,” SMC 11.14.410, anyone with a parade permit is entitled

to some use of the city streets. Seattle’s routine effort to coordinate parade activities with public safety concerns is a

garden-variety content-neutral time, place and manner restriction. And yet the majority holds that the routine authority to

reroute a march for vehicular and pedestrian safety is actually

a grant of standardless discretion to deny First Amendment

rights which must be struck down as facially unconstitutional.2

traffic regulation can be made, the written notification for permit

shall state the place and hour of formation, the proposed line of

movement or march, the scheduled starting time, and the names

of the persons having charge or control of the parade, and the

name of the sponsoring agency, if any. Such written notification

shall be delivered to the Chief of Police at least forty-eight (48)

hours before the parade is scheduled to begin: Provided, that the

forty-eight (48) hour time limit for written notification may be

waived by the Chief of Police if, at the time the written notice is

submitted, the Chief of Police anticipates being able to make reasonable preparations for the parade within less time than fortyeight (48) hours. The Chief of Police may modify the place and

hour of formation, the proposed line of movement or march, and

the scheduled starting time in the interest of vehicular or pedestrian traffic safety. 

2As a threshold matter, I doubt the Coalition may properly bring a facial

challenge against the ordinance. Because the ordinance does not give the

Chief of Police the discretion to permit or deny parade licenses, it does not

grant the type of unbridled discretion that has previously caused the

Supreme Court to make an exception to its general disapproval of facial

challenges. See City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750,

757 (1988). Rather, the Seattle ordinance grants the Chief of Police limited discretion which “is of an entirely different, and lesser, order of magnitude,” Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989), and

which does not give rise to the twin evils of self-censorship and inadequate judicial review that are at the center of the Court’s rationale for

allowing facial challenges on an unbridled discretion theory. See Plain

Dealer, 486 U.S. at 757. However, even assuming the majority is correct

in allowing a facial challenge to go forward, I would hold that the Coalition’s challenge fails on the merits. See Ward, 491 U.S. at 794. 

SEATTLE AFFILIATE v. CITY OF SEATTLE 16395
Maj. Op. at 16392-94. Because this conclusion is not supported by Supreme Court precedent or our case law, I must

respectfully dissent. 

A

“[I]n order to regulate competing uses of public forums,

[local governments] may impose a permit requirement on

those wishing to hold a march, parade, or rally.” Forsyth

County v. Nationalist Movement, 505 U.S. 123, 130 (1992);

see also Santa Monica Food Not Bombs v. Santa Monica, 450

F.3d 1022, 1036 (9th Cir. 2006). 

[E]ven in a public forum the government may

impose reasonable restrictions on the time, place, or

manner of protected speech, provided the restrictions

are justified without reference to the content of the

regulated speech, that they are narrowly tailored to

serve a significant governmental interest, and that

they leave open ample alternative channels for communication of the information. 

Ward 491 U.S. at 791 (internal quotation marks omitted). In

addition, a licensing scheme “must not delegate overly broad

discretion to a government official.” Santa Monica Food Not

Bombs, 450 F.3d at 1036. A licensing scheme does not vest

unbridled discretion in government officials when it is guided

by “narrowly drawn, reasonable and definite standards,” Forsyth County, 505 U.S. at 133 (internal quotation marks omitted), that render an official’s decision “subject to effective

judicial review.” Thomas v. Chicago Park Dist., 534 U.S.

316, 323 (2002). 

The Coalition contends the Seattle ordinance is facially

unconstitutional because it grants the city “unbridled discretion” to deny expressive activity. On its face, the Seattle ordinance gives the Chief of Police no discretion to deny, or even

to condition, a permit. Rather, the ordinance requires the

16396 SEATTLE AFFILIATE v. CITY OF SEATTLE
Chief of Police to grant every permit request. The Coalition

bases its claim that the ordinance is facially invalid on the

seemingly modest amount of discretion granted to the Chief

of Police: the authority to modify only “the place and hour of

formation, the proposed line of movement or march, and the

scheduled starting time” and only “in the interest of vehicular

or pedestrian traffic safety.” SMC 11.25.020.3 According to

the Coalition, the ordinance’s traffic safety standard does not

meet the Supreme Court’s requirements that a licensing

scheme contain adequate standards to constrain an official’s

discretion. 

In my view, the Seattle ordinance is far removed from a

grant of unbridled discretion. As noted above, the Chief of

Police must grant all parade permits and may modify the

direction of a parade only on the ground of traffic safety. This

ground is “reasonably specific and objective, and do[es] not

leave the decision to the whim of the administrator.” Thomas,

534 U.S. at 324 (internal quotation marks omitted). A court

or jury is capable of evaluating whether police officers based

traffic safety decisions on objective factors such as the officer’s prior experience with such situations or on-the-ground

observations of emergent conditions, or were swayed by their

3The majority has extracted from the record several examples of occasions when the Seattle police rerouted marches to the sidewalk based on

the size of the march. There has been no finding that such incidents are

representative of Seattle’s implementation of the ordinance. Nevertheless,

even assuming it is proper to consider such isolated examples in a facial

challenge, these incidents support Seattle’s position that its ordinance does

not grant police unbridled discretion to deny expressive activity for illegitimate reasons. Regardless of the terminology the police informally used

in describing their decision to reroute certain marches, the evidence identified by the majority demonstrates that the police allowed each of the proposed marches at issue to go forward. Moreover, the police rerouted

marchers to the sidewalk based on the size of the march, a content-neutral

criterion that is reasonably related to vehicular and pedestrian safety concerns (i.e., a police officer could reasonably determine that a small number

of marchers is less visible to oncoming traffic) and which would be readily

subject to review and challenge in court. 

SEATTLE AFFILIATE v. CITY OF SEATTLE 16397
personal feelings or prejudices. In an as-applied challenge to

discriminatory enforcement of the Seattle ordinance, a plaintiff may introduce evidence and testimony as to the absence

of objectively based traffic safety concerns and raise the inference that the officials modified a parade permit for illegitimate discriminatory reasons. Indeed, this point is illustrated

by the history of this litigation. The Coalition brought an asapplied challenge to the Seattle ordinance in district court,

arguing that Seattle was making modifications to the permit

based on the messages of the marchers, rather than “in the

interest of vehicular or pedestrian traffic.” SMC 11.25.020.

Although the parties ultimately settled the as-applied challenge, the record provides no indication that the Coalition was

hampered in making its case by a lack of objective and

defined standards against which to test the constitutionality of

the city’s conduct. Given that the traffic safety standard in the

Seattle ordinance is sufficiently objective and defined to render city officials’ decisions “subject to effective judicial

review,” Thomas, 534 U.S. at 323, the ordinance does not vest

unbridled discretion in the Chief of Police. 

The majority’s conclusion to the contrary is not supported

by the Supreme Court decisions that have invalidated permit

schemes on a facial unbridled discretion theory. In Forsyth

County, for instance, the Supreme Court invalidated an ordinance requiring a parade permit applicant to pay a fee for certain costs prior to the issuance of a permit, where “[t]he

decision how much to charge for police protection or administrative time—or even whether to charge at all—[was] left to

the whim of the administrator.” 505 U.S. at 133. Similarly, in

Plain Dealer, the Court struck down a city ordinance that

allowed the mayor to condition the grant of a permit on,

among other things, “any other terms and conditions deemed

necessary and reasonable by the Mayor.” 486 U.S. at 753-54

(internal quotation marks omitted). Finally, in Shuttlesworth

v. City of Birmingham, the Supreme Court determined that an

ordinance was unconstitutional as written because it lacked

any measurable, objective standard to guide official discre16398 SEATTLE AFFILIATE v. CITY OF SEATTLE
tion. 394 U.S. 147, 150-51 (1969). Members of the governing

body “were to be guided only by their own ideas of ‘public

welfare, peace, safety, health, decency, good order, morals or

convenience.’ ” Id. at 150. All of these cases involved broad

and subjective standards that made officials’ decisions essentially unchallengeable. By contrast, the standard in the Seattle

ordinance, “vehicular or pedestrian traffic safety,” is considerably more objective and defined. Indeed, it more closely

resembles the ordinance upheld in Thomas, which granted

park officials authority to deny access to the park only for a

limited number of reasons, including that the use “would present an unreasonable danger to the health or safety of the

applicant, or other users of the park, of Park District Employees or of the public.” 534 U.S. at 319 n.1. 

The majority asserts that the Seattle ordinance vests too

much discretion in government officials because the ordinance lacks two procedural safeguards: First, the ordinance

does not require administering officials to state their reasons

for undertaking a modification; and second, the ordinance

does not provide an administrative review process to challenge modifications on a case-by-case basis. Maj. Op. at

16390-91. While these procedures were included in ordinances the Supreme Court upheld against unbridled discretion

challenges, see Thomas, 534 U.S. at 324, the Court has never

suggested that such requirements are necessary components

of a licensing scheme. In Southern Oregon Barter Fair v.

Jackson County, we explicitly rejected the argument that specific procedural safeguards, such as provisions for prompt

judicial review of permit denials, were required in order for

a licensing scheme to withstand a facial challenge. 372 F.3d

1128, 1136-38 (9th Cir. 2004). 

Nor would a requirement that a content-neutral time, place

and manner restriction contain specific procedural safeguards

be reasonable, because such procedures may not make sense

in every context. Here, for example, decisions regarding permit modifications often occur on the ground, where police are

SEATTLE AFFILIATE v. CITY OF SEATTLE 16399
forced to rapidly respond to emergent and unpredictable conditions such as traffic and weather. Officers at the scene of a

parade cannot do their jobs properly and at the same time be

obliged to provide an explanation for every tactical decision

or an opportunity for administrative appeal. 

Indeed, Thomas itself does not place any special weight on

the procedures included in the ordinance at issue in that case,

but rather focuses on whether the standards guiding government officials’ exercise of discretion are sufficiently narrow.

In analyzing the provisions of the specific ordinance at issue,

Thomas mentions the procedures relied upon by the majority,

but focuses on the grounds on which officials could deny a

permit, concluding that the standards “are reasonably specific

and objective, and do not leave the decision to the whim of

the administrator.” 534 U.S. at 324; see also Ward, 491 U.S.

at 794 (upholding an ordinance that allowed technicians at a

concert to adjust the volume of the amplification without

requiring a post hoc justification, despite the Court’s recognition that the “officials implementing [the ordinance] will exercise considerable discretion”); S. Or. Barter Fair, 372 F.3d at

1138-39 (holding that an ordinance requiring permits for certain mass gatherings was facially valid even without a provision for prompt judicial review of permit denials or other

procedural safeguards, because the ordinance contained adequate standards to render the administrators’ decisions subject

to effective judicial review). 

In sum, neither Supreme Court precedent nor our own case

law supports the majority’s elevation of procedural safeguards

to central importance in determining whether an ordinance

grants officials unfettered discretion. In striking down the

Seattle ordinance for failing to incorporate procedural measures, the majority has lost sight of the Court’s ultimate question: whether the Seattle ordinance “contain[s] adequate

standards to guide the official’s decision and render it subject

to effective judicial review.” Thomas, 534 U.S. at 323.

Because the traffic safety standard in the Seattle ordinance is

16400 SEATTLE AFFILIATE v. CITY OF SEATTLE
sufficiently defined and objective—certainly as objective as

the “unreasonable danger to health or safety” standard upheld

in Thomas—the ordinance does not vest unbridled discretion

in the Chief of Police. The presence or absence of additional

procedural safeguards cannot change this conclusion.

B

The Seattle ordinance not only adequately constrains the

Chief of Police’s discretion, but easily meets the other

requirements for a valid time, place, and manner restriction.

First, the Coalition does not dispute that the Seattle ordinance is content-neutral. See Maj. Op. at 16385. Second, the

ordinance is “narrowly tailored to serve the government’s

legitimate content-neutral interests,” Ward, 491 U.S. at 798,

namely traffic safety. To be narrowly tailored, the regulation

“need not be the least restrictive or least intrusive means” of

serving the government interest. Id. Instead, it must “promote[ ] a substantial government interest that would be

achieved less effectively absent the regulation.” Id. at 799

(internal quotation marks omitted). There is no doubt that the

government has a significant interest in promoting vehicular

and pedestrian safety. See Heffron v. Int’l Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640, 650 (1981) (“[I]t is clear

that a State’s interest in protecting the safety and convenience

of persons using a public forum is a valid governmental

objective.” (internal quotation marks omitted)); ACORN v.

City of Phoenix, 798 F.2d 1260, 1267 (9th Cir. 1986)

(“[M]ore so than with sidewalks or parks, courts have recognized a greater governmental interest in regulating the use of

city streets.” (internal quotation marks omitted)). Seattle’s

ordinance requires officials to issue permits to all applicants

subject to modifications necessary to protect this substantial

interest in pedestrian and vehicular safety. Because the ordinance addresses traffic safety issues “without . . . significantly

restricting a substantial quantity of speech,” One World, One

Family Now v. Honolulu, 76 F.3d 1009, 1014 (9th Cir. 1996)

SEATTLE AFFILIATE v. CITY OF SEATTLE 16401
(alteration in original) (internal quotation marks omitted), that

does not implicate traffic safety issues, it meets the narrow

tailoring requirement. 

Finally, the ordinance “leaves open ample alternatives for

communication.” Santa Monica Food Not Bombs, 450 F.3d at

1037. The Coalition asserts that by allowing police to reroute

parades from the street to the sidewalk, Seattle does not leave

open ample alternatives for communication. The majority

similarly asserts that the Chief of Police’s authority to change

the direction of a parade or march gives the Chief of Police

“the discretion to ‘permit or deny expressive activity,’namely,

a street march.” Maj. Op. at 16382 (quoting Plain Dealer, 486

U.S. at 755). I disagree. In my view, the ordinance leaves

open ample alternatives for communication even though the

Chief of Police may require the parade to march partially on

the sidewalk. “[T]he First Amendment does not guarantee the

right to communicate one’s views at all times and places or

in any manner that may be desired.” Menotti v. City of Seattle,

409 F.3d 1113, 1138 (9th Cir. 2005) (internal quotation marks

omitted). Instead, “[t]he First Amendment requires only that

the government refrain from denying a reasonable opportunity

for communication.” Id. (internal quotation marks omitted).

Here, the Seattle ordinance allows marchers to “reach[ ] their

intended audience,” One World One Family Now, 76 F.3d at

1014, because, whether they are on streets or on the sidewalks, marchers are still visible from the streets. Although the

marchers may prefer complete access to the streets because it

makes their message more visible, the constitution does not

require that speakers have access to the most effective mode

of expression. Id.; see also Menotti, 409 F.3d at 1138 (holding

that an ordinance prohibiting protests against the World Trade

Organization in an area with greatest access to conference

delegates left open ample alternative channels of communication because the protestors could make their protests “visible

and audible to delegates, even if not as proximate as the protestors might have liked”). 

16402 SEATTLE AFFILIATE v. CITY OF SEATTLE
This conclusion is consistent with the rulings of two of our

sister circuits, which have held that sidewalks can be a reasonable alternative to the streets. In Stonewall Union v. City

of Columbus, the Sixth Circuit upheld the constitutionality of

a Columbus parade ordinance that imposed a fee on applicants for a parade permit. 931 F.2d 1130, 1137 (6th Cir.

1991). In rejecting the claim that the ordinance violated the

constitutional rights of protesters who could not afford the

fee, the court held that “the availability of the sidewalks and

parks provides a constitutionally acceptable alternative for

indigent paraders.” Id.; see also Sullivan v. City of Augusta,

511 F.3d 16, 43-45 (1st Cir. 2007) (upholding an Augusta

licensing scheme that imposed a fee for parades because

although a sidewalk march might “seem less appealing to

some protestors than a street march, it nonetheless provides a

prominent route along major thoroughfares for dissemination

of a message”).

C

In sum, the Seattle ordinance requires the Chief of Police

to grant a permit, subject only to modifications based on “objective,” “narrowly drawn, reasonable and definite standards,”

Forsyth, 505 U.S. at 133 (internal quotation marks omitted).

Because Seattle’s parade-friendly ordinance is an ordinary

content-neutral time, place, and manner restriction that does

not vest unbridled discretion in the Chief of Police, I respectfully dissent from the majority’s determination that it is

facially invalid under the First Amendment. 

SEATTLE AFFILIATE v. CITY OF SEATTLE 16403