Sierra Club v. City of Boise

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SIERRA CLUB, Plaintiff, v. CITY OF BOISE, an Idaho municipal corporation, Defendant.

No. 1:24-cv-00169-DCN

United States District Court, D. Idaho

April 29, 2024

MEMORANDUM DECISION AND ORDER

David C. Nye Chief U.S. District Court Judge

I. INTRODUCTION

Before the Court is a Motion for Preliminary Injunction filed on April 2, 2024, by Plaintiff Sierra Club. Dkt. 3. Defendant City of Boise (the “City”) opposed the Motion (Dkt. 10), and Sierra Club replied (Dkt. 12). The Court held an expedited oral argument on the Motion on April 17, 2024. At the conclusion of the hearing, the Court GRANTED the Motion in part and DENIED the motion in part. This decision memorializes the Court's findings and provides its analysis.

II. BACKGROUND

Boise City Code (“BCC”) Section 5-7-3 prohibits the use of sound amplification devices where the sound emanating from such devices “[i]s plainly audible within any place of residence not the source of the sound; or . . . [i]s plainly audible upon a public right-of-way or street at a distance of one hundred feet (100') or more from the source of such sound” (the “Megaphone Restriction”). There are a variety of exemptions to the Megaphone Restriction, including “[s]ounds caused by activities upon any Municipal, school, religious or publicly owned property or facility; provided, that such activities have been authorized by the owner of such property or facility or its agent[.]” BCC § 5-7-4. The ordinance, and its exceptions, have been part of the Boise City Code for decades.

The City also regulates gatherings and noise in public parks. BCC Section 7-7A-5(D)(4) requires individuals hoping to “[c]onduct, sponsor, promote or publicly advertise any . . . public activity in a park; or any activities which include amplified sound” to obtain a permit before proceeding. Individual use of sound amplification devices is limited by BCC Section 7-7A-7(C), which forbids operation of such devices at a level greater than sixty-two decibels measured at a distance of twenty feet unless the operator has a permit. The Court will refer to these two ordinances together as the “Park Restrictions.”

The Sierra Club is a national environmental advocacy group that seeks, in part, to raise awareness about climate change and advocate for a general transition away from fossil fuels towards other, renewable sources of energy. The group regularly engages in rallies, marches, and other public demonstrations.

Recently, the Sierra Club's Climate Justice League (the “CJL”)-a group of high school and junior high students who feel strongly about the club's mission-resolved to participate in a Global Climate Strike, taking place on April 19, 2024. Members of the CJL planned to write letters to the City of Boise advocating for the adoption of climate-friendly policies. Then, they would march from the Idaho State Capitol Building to Boise City Hall, where they designed to read the letters aloud before delivering them to the City. Along the way, members planned to engage in climate-themed chanting.

Until recently, CJL members have used megaphones during their Boise-area demonstrations without permits. See Dkt. 3-4, at 2; Dkt. 3-5, at 3-4. However, due to a perceived uptick in the ticketing and arresting of protestors using megaphones under the Megaphone Restriction, members of the Sierra Club and its CJL have opted to conduct their recent demonstrations without megaphones. This, they allege, has hindered their ability to spread their message.

On April 2, 2024, the Sierra Club filed its Verified Complaint, challenging the Megaphone Restriction and the Park Restrictions. Dkt. 1. Specifically, Sierra Club argues that the ordinances infringe upon the speech and assembly rights guaranteed under the First Amendment and that the ordinances are impermissibly vague. Id. On the same day, Sierra Club filed the instant Motion for Preliminary Injunction, asking the court to prohibit enforcement of the ordinances until this case is decided. Dkt. 3.

III. LEGAL STANDARD

Generally, to obtain a preliminary injunction, a plaintiff must show “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Am. Beverage Ass'n v. City & Cnty. Of San Francisco, 916 F.3d 749, 754 (9th Cir. 2019) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). However, “the application of this standard in First Amendment cases involves an inherent tension ....” Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014) (cleaned up). The moving party must show likelihood of success on the merits, but such a showing requires the government to justify its restriction on speech. Id. The Ninth Circuit has resolved this tension by requiring the moving party to make an initial showing of “a colorable claim that its First Amendment rights have been infringed, or are threatened with infringement, at which point the burden shifts to the government to justify the restriction.” Id. (quoting Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011). Additionally, “[w]here, as here, the party opposing injunctive relief is a government entity, the third and fourth factors-the balance of equities and the public interest-merge.” Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. Of Educ., 82 F.4th 664, 695 (9th Cir. 2023) (cleaned up).

In ruling on the Motion, the Court is mindful of the Supreme Court's recent order in Labrador v. Poe, 144 S.Ct. 921 (2024). There, several members of the Supreme Court questioned the value of universal injunctions-injunctions that extend to non-parties-and urged that they be retired. Id. at 921-28 (Gorsuch, J. concurring); 928-34 (Kavanaugh, J. concurring). The Court agrees with the premise that emergency injunctions like the one requested here by Sierra Club should be tailored to the parties who bring them. The Court also notes that nothing in Labrador exempts First-Amendment challenges from its reasoning. Accordingly, to the extent the Court grants injunctive relief, it should be limited to the parties at the bar.

IV. ANALYSIS

The Court will first address Sierra Club's standing to challenge each of the ordinances. It will then separately analyze the ordinances under the preliminary-injunction framework set forth above.

A. Standing

To show standing, a party typically must have suffered an injury in fact that was caused by the defendant and that can be redressed by a favorable result. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). But the injury-in-fact requirement under Lujan is problematic in cases involving speech restrictions because “a chilling of the exercise of First Amendment rights is, itself, a constitutionally sufficient injury.” Libertarian Party of Los Angeles Cnty. V. Bowen, 709 F.3d 867, 870 (9th Cir. 2013). Thus, “in the First Amendment-protected speech context, the Supreme Court has dispensed with rigid standing requirements,” and has adopted instead, “what might be called a ‘hold your tongue and challenge now' approach.” Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th Cir. 2003).

Under this approach, the Ninth Circuit applies “a three-factor inquiry to help determine whether a threat of enforcement is genuine enough to confer an Article III injury.” Tingley v. Ferguson, 47 F.4th 1055, 1067 (9th Cir. 2022). The inquiry requires district courts to determine “(1) whether the plaintiff has a concrete plan to violate the law, (2) whether the enforcement authorities have communicated a specific warning or threat to initiate proceedings, and (3) whether there is a history of past prosecution or enforcement.” Id. (cleaned up).

When applying the first prong, courts do not require plaintiffs to specify when, where, or how they plan to violate the law or ordinance at issue if they have already violated the law or ordinance in the past. See Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 836 (9th Cir. 2012). Under the second prong, in addition to explicit threats of enforcement, courts should also consider “the government's failure to disavow enforcement of the law as weighing in favor of standing.” Tingley, 47 F.4th at 1068 (emphasis in original). Whether the threat of potential enforcement results in selfcensorship is another important consideration under this prong. Id.; see also Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 839 (9th Cir. 2014). Under the third prong, a lack of enforcement history carries “little weight when the challenged law is relatively new[.]” Tingley, 47 F.4th at 1069 (cleaned up).

1. Megaphone Restriction

Sierra Club has shown that its members have violated the Megaphone Restriction in the past and would like to violate the Megaphone Restriction in the future. For example, in its Complaint, Sierra Club cites to multiple demonstrations in which it used a megaphone that was “clearly audible 100 feet away or more.” Dkt. 1, ¶ 3. Members of the Sierra Club's CJL claim to have been involved in similar events in the past. See Dkt. 3-5, ¶ 6. Under Ninth Circuit caselaw, this showing is sufficient to establish that Sierra Club has a concrete plan to violate the Megaphone Restriction.

Under the second prong, Sierra Club has cited to no specific threat of enforcement issued by the City. However, the City has not disavowed enforcement of the Megaphone Restriction. Further Sierra Club members have shown that the Megaphone Restriction has led to self-censorship. See Dkt. 3-3, at ¶ 8 (“Solely because of the enforcement pattern [of the ordinances], the Sierra Club and its [C]L] chose out of fear of prosecution not to use a megaphone or PA...