OFW Vendor Sales Pitches Not Protected by the First Amendment

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From The Courthouse News Service, Tuesday, March 22, 2011:

Sales pitches from vendors along Los Angeles’ famed Venice Beach boardwalk are not protected by the First Amendment, the 9th Circuit ruled Tuesday, finding that a city ordinance properly limits the expression of the hawkers, performers and artists who crowd the colorful walkway.

After being arrested for illegal vending, Michael Hunt and Matthew Dowd challenged the city’s ordinances requiring Venice Beach peddlers to hold a “public expression participant permit” and to confine their sales to “merchandise constituting, carrying or making a religious, political, philosophical or ideological message or statement which is inextricably intertwined with the merchandise,” according to the ruling.

Hunt told passers-by that homemade shea butter he sold on the boardwalk had healing properties, and Dowd sold homemade incense and incense holders engraved with various religious and cultural symbols.

U.S. District Judge Dean Pregerson found that the city’s 2004 incarnation of the ordinance was unconstitutionally vague, but that a 2006 version clearly spelled out what a legal vendor could and could not sell on the boardwalk.

The judge ruled in the city’s favor on the challenge to the 2006 ordinance, finding that Hunt and Dowd had failed to show that they were engaged in the kind of speech that it protected.

A three-judge appellate panel in Pasadena agreed on Tuesday.

“Hunt and Dowd could easily sell their wares without reference to any religious, philosophical, and/or ideological element, and they could also express any noncommercial message without selling these wares,” U.S. District Judge J. Michael Seabright wrote for the 9th Circuit.

The panel also ruled that the city had failed to properly appeal a jury’s award of $264,286 in attorney’s fees to Hunt.

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