From today's Ninth Circuit decision in Garcia v. County of Alameda, by Judge Holly Thomas, joined by Judges John Owens and Mark Bennett; Alameda County contains Berkeley and Oakland:
Driven by concerns over unmanageable crowds, property damage, noise pollution, garbage, firearms use, and reckless driving under the influence of drugs and alcohol, … the County of Alameda … adopted an ordinance prohibiting any person from knowingly spectating a sideshow event conducted on a public street or highway from within 200 feet of that event. Possible penalties include both imprisonment and a monetary fine.
In this pre-enforcement suit, Jose Antonio Garcia, a reporter who writes about sideshows for The Oaklandside under the pen name Jose Fermoso, raises a First Amendment challenge to the County's prohibition as applied to his reporting activities….
The First Amendment protects Garcia's newsgathering and reporting activities. And the County's prohibition on knowingly spectating a sideshow is content based and fails strict scrutiny. Garcia has clearly demonstrated that he is likely to succeed on the merits of his as-applied challenge, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that the issuance of an injunction is in the public interest….
"The Supreme Court has recognized that newsgathering is an activity protected by the First Amendment." And we have determined both that the First Amendment protects recording and photographing "matters of public interest," and that an organization's "recording of conversations in connection with its newsgathering activities is protected speech within the meaning of the First Amendment." These holdings compel the conclusion that Garcia's newsgathering activities—the "quintessential function of a reporter"—are protected by the First Amendment.
