[00:00:00] Speaker 02:
I'm sorry.

[00:00:02] Speaker 02:
Sorry.

[00:00:03] Speaker 02:
The case of Joshua Aaron Holloman and the City of Los Angeles is now submitted.

[00:00:09] Speaker 02:
We're now ready to proceed with the case of Stephen Hubbard and Amy Back versus the City of San Diego in Doe's 1 through 10.

[00:00:17] Speaker 03:
Thank you.

[00:00:53] Speaker 00:
Good morning.

[00:00:53] Speaker 00:
May it please the court.

[00:00:54] Speaker 00:
My name is Brian Pease.

[00:00:56] Speaker 00:
I represent plaintiffs and appellants, Stephen Hubbard and Amy Bach, both of whom were threatened with and in some cases actually issued citations for something that they said in a public park.

[00:01:14] Speaker 00:
And in order to reach the issue that the

[00:01:18] Speaker 00:
district court determined, which is that the words that were being spoken are not protected by the First Amendment, requires getting into the content of what they were actually saying.

[00:01:29] Speaker 00:
So the issue of whether teaching yoga is protected by the First Amendment, I believe that it should undergo just an ordinary constitutional analysis.

[00:01:41] Speaker 00:
You look at whether the ordinance is content-based, in which case you would apply strict scrutiny,

[00:01:46] Speaker 00:
Even if it's not content-based, you would still apply intermediate scrutiny.

[00:01:52] Speaker 00:
But the district court didn't even get to that stage because the judge felt that the words that were being spoken did not qualify for First Amendment protection.

[00:02:01] Speaker 00:
But in order to make that determination, you have to actually get into the content of what's being spoken.

[00:02:06] Speaker 00:
And the only type of words that convey an idea or can be understood by the listener that would not be protected by the First Amendment

[00:02:14] Speaker 00:
would be words that are categorically exempt.

[00:02:17] Speaker 00:
So things like fighting words or obscenity or threats, something that's just excluded from First Amendment protection.

[00:02:24] Speaker 03:
I don't know if you'll know the answer to this question.

[00:02:25] Speaker 03:
It's probably not relevant.

[00:02:27] Speaker 03:
But do you know how yoga ended up being sort of singled out in this ordinance?

[00:02:32] Speaker 03:
I mean, I'll ask the city this, too.

[00:02:35] Speaker 00:
Thank you, Judge Thomas.

[00:02:36] Speaker 00:
That is a great mystery to my clients as well as myself.

[00:02:39] Speaker 00:
And part of what we did here, I went through the legislative history.

[00:02:43] Speaker 00:
It was a shock to the community and to the plaintiffs and to others because the ordinance that was passed last year was to deal with the issue of sidewalk vending.

[00:02:52] Speaker 00:
That's what it was agendized as.

[00:02:55] Speaker 00:
That's what the public notices were all about.

[00:02:57] Speaker 00:
There was no comment.

[00:02:58] Speaker 00:
There was no notice.

[00:02:59] Speaker 00:
The community had no idea that yoga was going to be, teaching yoga was going to be singled out here.

[00:03:05] Speaker 00:
This was to do with commercial activity and sidewalk vending and then somewhere buried within

[00:03:11] Speaker 00:
The ordinance are these references to not only in the definition of what constitutes a quote unquote providing a service is defined specifically as yoga and then there are exceptions for expressive activity and there's an explicit exception for teaching yoga.

[00:03:29] Speaker 00:
So it's unclear how that got in there, but this has been a long running thing.

[00:03:33] Speaker 00:
So 11 years ago, Mr. Hubbard was cited for an earlier version of this ordinance.

[00:03:38] Speaker 00:
which does still exist.

[00:03:40] Speaker 00:
There is still the provision in the same ordinance that if you have 50 or more persons assembled without a permit, then that's a violation of this same ordinance under a separate section.

[00:03:51] Speaker 00:
And a San Diego spirit court commissioner ruled that that was unconstitutional as applied to the teaching of yoga and what Mr. Hubbard was doing.

[00:04:02] Speaker 00:
Then there was some kind of internal dynamic within the city, but over the years, eventually,

[00:04:08] Speaker 00:
The result was, well, first there was a memo issued by a then deputy city attorney, who is now our elected city attorney, wrote a memo opining that the commissioner was wrong and that yoga could be specifically, teaching of yoga could be specifically regulated or banned in a public forum in this case.

[00:04:30] Speaker 00:
And then that's exactly what ultimately ended up

[00:04:32] Speaker 04:
But it wasn't it wasn't it was never the intention that we can see and that the public was given notice of does the city does the city ban or or Not allow other types of teachings in the in the park So if it's not teaching yoga, but you know teaching philosophy or teaching something else is there anything comparable?

[00:04:53] Speaker 00:
Thank you honor That would definitely teaching philosophy would definitely fall under the definition of expressive activity

[00:05:02] Speaker 00:
So that would be exempted.

[00:05:03] Speaker 00:
But then because there's an exception to the exception for expected activity for teaching yoga, that's why the teaching of yoga doesn't fall under that.

[00:05:11] Speaker 00:
The district court analogized it to teaching fitness classes, which we're not here.

[00:05:19] Speaker 00:
Our position is that yoga is different than just exercise classes where you're just running through routines.

[00:05:23] Speaker 00:
There's a philosophical component.

[00:05:25] Speaker 00:
The poses actually mean something that's explained to the students.

[00:05:30] Speaker 02:
So it's but I had a question about are there are there ever instances of yoga instructors who do not intend to impart the philosophy of yoga and would that impact our analysis?

[00:05:46] Speaker 00:
Whether there are, that's not part of the record in this case, the yoga instructors in this case as well as some declarants have stated that there's always more than, it's more than just a physical practice, it's a meditation, it's a mental practice as well.

[00:05:59] Speaker 00:
But even, so if we were just talking about just going through, you know, to use the exercise class analogy, which is another thing that's in the ordinance which we're not

[00:06:08] Speaker 00:
challenging but maybe that's unconstitutional too.

[00:06:11] Speaker 00:
We're not here to quarrel with that part of it, but if you're just telling somebody to do a certain exercise and the district judge

[00:06:21] Speaker 00:
Analyze it more as an issue of expressive conduct rather than speech.

[00:06:25] Speaker 00:
So if you are, for instance, just pantomiming certain things, it's still communication because people are seeing what's being done and they're following it.

[00:06:33] Speaker 00:
How communicative that is, you go through the analysis of expressive conduct versus speech.

[00:06:37] Speaker 00:
But here we have actual speech, where it's the yoga instructors are actually saying things.

[00:06:41] Speaker 00:
They're not doing all these poses.

[00:06:43] Speaker 00:
They're actually instructing the students.

[00:06:44] Speaker 00:
They're saying things.

[00:06:45] Speaker 00:
And it is because of the words that are being spoken that they're being cited under this ordinance that

[00:06:51] Speaker 00:
prohibiting teaching of yoga.

[00:06:53] Speaker 00:
And it's only if there's more than four people assembled.

[00:06:58] Speaker 02:
I understand your argument that you think it's pure speech in addition to expressive conduct.

[00:07:05] Speaker 02:
But I'm just curious, what do you think is your best case for saying that it is expressive conduct?

[00:07:14] Speaker 00:
well best case that supports this is expressed certainly the same you completely rely on speech we're relying upon the speech but if if you were just talking about somebody engaging in uh...

[00:07:29] Speaker 00:
certain postures and some people started to happen to show up and start following those same postures and suddenly there's more than four people and now the person that's being followed by the people who show up is now suddenly, you know, violating the law because more than four people showed up to watch and clearly they're understanding something that's being conveyed, but it's much more in the teaching.

[00:07:48] Speaker 02:
What's your best case on expressive conduct?

[00:07:51] Speaker 00:
Well, certainly the San Diego Superior Court Commissioner ruling from 2011, I think it is persuasive,

[00:07:57] Speaker 00:
But the case that's cited within that, which is Long Beach Area Peace Network versus City of Long Beach, it doesn't get into, and that is cited within the Superior Court decision, and it's a Ninth Circuit case, 574 F.

[00:08:14] Speaker 00:
3rd, 1011, and that goes through a very extensive analysis about how the burden is

[00:08:21] Speaker 00:
Particularly in a public forum, it's automatically suspect when the government attempts to regulate speech and the burden is always on the government to show this not only substantial interest but the narrowly tailored means.

[00:08:34] Speaker 00:
In this case, we have a content-based ordinance because in order to even get into the inquiry of, okay, is what they're saying protected, you have to say, well, what are they saying?

[00:08:43] Speaker 00:
And that's a content-based distinction.

[00:08:45] Speaker 00:
So Ward v. Rock against racism is also, and we cited that extensively because it goes through the analysis, it's really just a general free speech analysis.

[00:08:56] Speaker 00:
The district judge kept asking, well, do you have a case that says teaching yoga is protected speech?

[00:09:01] Speaker 00:
And that, to me, sounded almost like a qualified immunity type argument that unless we can show a published case saying otherwise.

[00:09:07] Speaker 00:
But this is a Manila case.

[00:09:08] Speaker 00:
We're challenging the ordinance itself.

[00:09:11] Speaker 04:
We don't need to... And I wanted to ask you, because you're also raising a facial challenge.

[00:09:15] Speaker 00:
Right.

[00:09:15] Speaker 04:
And so in the service section of the of the ordinance it just talks about yoga not teaching yoga and So is it your view that the city can't regulate?

[00:09:28] Speaker 04:
Other forms of yoga, let's say a commercial type of yoga people Show up to to pay for a class a yoga class On the park is that is that encompass within your claim as well?

[00:09:42] Speaker 04:
and presumably because if it's a facial challenge that you're saying that

[00:09:46] Speaker 00:
Thank you, Judge Sanchez.

[00:09:49] Speaker 00:
That is correct that it does not say teaching yoga in the services definition.

[00:09:54] Speaker 00:
It states yoga, but it's the provision of

[00:09:59] Speaker 00:
intangible items.

[00:10:00] Speaker 00:
So I don't know how you provide yoga to somebody without teaching it.

[00:10:04] Speaker 00:
So it seems that that is what the ordinance is.

[00:10:06] Speaker 04:
Let's say people get together and just decide to do yoga together and no one's teaching.

[00:10:12] Speaker 04:
You know, like Tai Chi, which I'm going to ask your fellow on the opposite side about.

[00:10:16] Speaker 04:
But no one's teaching it, you're just going through the movements.

[00:10:19] Speaker 04:
Is that something that the city should not be allowed to regulate or regulate?

[00:10:28] Speaker 00:
Well, it should be treated like any other activity in the park.

[00:10:30] Speaker 00:
So if more than four people show up and start doing something, whether it's a picnic or Tai Chi or throwing a frisbee around, that's activity that's typically going to be permissible in a park.

[00:10:41] Speaker 00:
But then if there's somebody that's actually what the city has defined as providing that service, which I guess if somebody is explaining what the movements mean and they're leading people through it, then that's considered providing the service.

[00:10:54] Speaker 00:
But it's lumped in there

[00:10:55] Speaker 00:
you know, dog training.

[00:10:56] Speaker 04:
I'm just trying to understand what is the basis for your facial challenge, because it doesn't seem very clear.

[00:11:04] Speaker 02:
What evidence supports your facial challenge here?

[00:11:07] Speaker 00:
The evidence is that the plaintiffs were threatened and in some cases actually issued citations for teaching yoga under this ordinance, and it is a literal reading of the ordinance.

[00:11:16] Speaker 00:
In other words, the officers weren't, the rangers were not incorrectly applying the ordinance.

[00:11:20] Speaker 00:
The ordinance specifically calls out

[00:11:23] Speaker 00:
the teaching of yoga, it exempts it from expressive activity.

[00:11:28] Speaker 00:
And it's important to note that there's three separate categories.

[00:11:34] Speaker 00:
So in subsection 14 of the definitions, we have commercial activity and services.

[00:11:44] Speaker 00:
providing a service, so providing yoga or teaching yoga is a service separate and apart from a commercial activity.

[00:11:52] Speaker 00:
So one could be engaged in a commercial activity, and that's defined in here, and you could be cited for that.

[00:12:00] Speaker 00:
But even if it's not commercial and you're just merely the act of teaching yoga for free and there's no commercial activity involved, that's a separate element of the ordinance.

[00:12:11] Speaker 00:
So there's these three separate elements.

[00:12:13] Speaker 00:
There's commercial activity,

[00:12:14] Speaker 00:
There's service, and then there's solicit offers to purchase barter or require someone to negotiate, establish, or pay a fee before providing a service.

[00:12:21] Speaker 00:
So it's three separate things you could be cited for.

[00:12:26] Speaker 00:
So the remainder for rebuttal, unless the court has additional questions.

[00:12:28] Speaker 02:
Thank you.

[00:12:29] Speaker 00:
Thank you, Your Honors.

[00:12:40] Speaker 01:
Good morning, and may it please the court.

[00:12:42] Speaker 01:
Assistant City Attorney Manny Arambula here on behalf of the appellee, the city of San Diego.

[00:12:46] Speaker 01:
Chief Judge Murguia, thank you for clarifying that in fact our case wasn't submitted because although it's been a pleasant drive up here, I was looking forward to making this argument.

[00:12:54] Speaker 02:
I'm sorry about that.

[00:12:55] Speaker 01:
No worries, Judge.

[00:12:57] Speaker 01:
So the district court correctly found that the appellants failed to meet the high standard for the grant of a preliminary injunction in this case.

[00:13:04] Speaker 01:
The preliminary injunction was an effort by appellants

[00:13:08] Speaker 01:
to forestall the enforcement of San Diego Municipal Code Section 63.0102C14, which is services.

[00:13:16] Speaker 01:
So amongst the other things that it addresses is the provision of services on city property.

[00:13:24] Speaker 01:
In this particular instance, parks, although this is offered like in different types of scenarios such as,

[00:13:31] Speaker 01:
Recreation facilities things of that nature and the reason the district court in this particular instance Denied the request for a preliminary injunction is because it never moved beyond its inception because the the plaintiff appellants at this juncture failed to ultimately move beyond the issue of explaining to the court in a recognizable argument why a

[00:13:55] Speaker 01:
the teaching of yoga is a particularized message and exhibits the likelihood that would be understood.

[00:14:01] Speaker 03:
I think what there are... Can you answer the question that I asked at the outset, which is why is yoga singled out here of all the things that could be...

[00:14:09] Speaker 03:
taught in a park.

[00:14:10] Speaker 03:
You could teach Shakespeare.

[00:14:12] Speaker 03:
You could teach Tai Chi, as I think Judge Sanchez will ask you about.

[00:14:15] Speaker 03:
You know, you could teach anything, but what, so what's it with yoga?

[00:14:19] Speaker 01:
Well, I'll just answer it this way, Judge Thomas.

[00:14:21] Speaker 01:
It wasn't singled out in the sense that that's what is actually barred.

[00:14:25] Speaker 01:
It was provided as an example of the services that can't be provided without a permit.

[00:14:30] Speaker 01:
And in this particular instance, as a matter of fact, I'll point out to you right now that... But the statute doesn't say, for example, yoga.

[00:14:36] Speaker 02:
It specifically

[00:14:37] Speaker 02:
It looks like yoga is being targeted here in some way.

[00:14:41] Speaker 02:
I'm just curious.

[00:14:43] Speaker 02:
I think maybe we all are.

[00:14:45] Speaker 02:
What happened here?

[00:14:47] Speaker 01:
Well, the city of San Diego has numerous beautiful beaches.

[00:14:51] Speaker 01:
And obviously, engaging in activities such as yoga, other activities on the beach, it's a highly sought type of activity to do.

[00:15:00] Speaker 01:
But what the ordinance, it doesn't directly regulate yoga.

[00:15:06] Speaker 01:
What it does is it requires individuals who want to have

[00:15:10] Speaker 01:
Classes or any kind of commercial activity on the city's beaches to actually go and request a permit for a number of different reasons But it says that that teaching yoga is not an expressive activity.

[00:15:22] Speaker 03:
So it is directly targeting yoga.

[00:15:25] Speaker 03:
It doesn't talk about teaching anything

[00:15:28] Speaker 03:
anything else and there are, you know, there are a million things that you could teach.

[00:15:32] Speaker 01:
Right.

[00:15:32] Speaker 01:
But if that's even the case, Your Honor, let's assume here for a second that yoga is expressive activity.

[00:15:38] Speaker 01:
The city still has the right to regulate in an appropriate time manner and place restriction how that's taught.

[00:15:45] Speaker 01:
And that's actually a fairly straightforward analysis of any kind of business that the city can permit.

[00:15:52] Speaker 01:
And I just want to be clarified here.

[00:15:56] Speaker 01:
The clearest example that yoga is not in fact targeted is that they can teach it.

[00:16:03] Speaker 01:
And you can see even in a palance briefing that if there's three or less individuals, there's no permit required.

[00:16:12] Speaker 04:
Any activity but council that you know let's say you have eight individuals that are being taught tai chi For free is that something that someone would need to get a permit for from the city under your view of the ordinance?

[00:16:30] Speaker 01:
This specific one, no, because it doesn't fall within the strict language of subdivision C14.

[00:16:37] Speaker 04:
So then doesn't that illustrate that yoga is being singled out?

[00:16:40] Speaker 04:
Because, I mean, I think you've got a bit of an uphill climb to say that teaching a certain subject matter that involves movements

[00:16:50] Speaker 04:
and the history and philosophy behind it is not expressive.

[00:16:54] Speaker 04:
It seems, you know, as we've been coming up with examples, there are many instances where you're teaching something and you're speaking and you're expressing things about that subject area.

[00:17:08] Speaker 04:
And if you just said that Tai Chi would not be subject to it, I have a hard time seeing what the difference is between one type of activity versus another.

[00:17:16] Speaker 01:
Well, what I was pointing out is that your example for the Tai Chi isn't specifically addressed by that subsection, because there it's services.

[00:17:24] Speaker 01:
And it also requires that these services be provided with some economic benefit to the individual who's actually providing those services.

[00:17:31] Speaker 01:
There are other sections of the San Diego municipal code adjacent to that that describe situations where just Things as gatherings or things like that or so for example subdivision C15 which provides that services.

[00:17:46] Speaker 01:
I'm sorry a

[00:17:49] Speaker 01:
A class or a lecture that is above for individuals has to have some kind of permit.

[00:17:57] Speaker 01:
But the specific subdivision that was challenged in this specific case ties in both the provision of services plus some kind of economic remuneration for the individual who's providing it.

[00:18:11] Speaker 01:
And that's what

[00:18:12] Speaker 01:
this specific challenge was about.

[00:18:15] Speaker 04:
But the ordinance doesn't necessarily require someone to be charged money for it, right?

[00:18:24] Speaker 04:
It could be free and it would still be subject to the ordinance.

[00:18:27] Speaker 04:
If the yoga was taught for free, it would still be subject to the ordinance, would it not?

[00:18:30] Speaker 01:
Not this specific one.

[00:18:32] Speaker 02:
It would be subject to other ones because what it does, at the end of the day, the point... I'm sorry, before you start that, because even though the city says it will give permits, the record tells us that the city isn't granting planners permits to teach yoga.

[00:18:49] Speaker 01:
No, what's happening your honor is that there so the allegation here has been that the city has banned it on the city's beaches and the problem here is that None of the evidence adduced at trial and and I mean I'm sorry at the hearing or even Proposed by the appellants is that they've ever actually even applied for it So they haven't even applied for it, and so they're they're bait.

[00:19:09] Speaker 02:
They base their I think there's a provision that says they won't be granted

[00:19:16] Speaker 02:
I thought there was somewhere in the record that says they're not granting those to the yoga.

[00:19:24] Speaker 01:
No, that's their argument.

[00:19:26] Speaker 01:
They're arguing that in practice, none are handed out for the beach.

[00:19:31] Speaker 01:
That's what they're saying.

[00:19:32] Speaker 01:
Problem is, A, they've never applied for a permit, or at least as I understand it, Appellant Hubbard has never actually applied for a permit.

[00:19:41] Speaker 01:
They're just simply saying that we've asked individuals who may have this knowledge, and this is what we were told, but they never actually literally applied for an actual permit.

[00:19:50] Speaker 03:
Well, I was just going to ask if you could just clarify your answer to Judge Sanchez's questions a moment ago about it doesn't it seems C14 doesn't require that the person providing a service charge a fee before something is classified as a service.

[00:20:07] Speaker 03:
I mean that section talks about commercial activities

[00:20:11] Speaker 03:
Then it talks about services, and then it talks about bartering and donations, et cetera.

[00:20:15] Speaker 03:
So I just want to make sure I understand correctly that this is only about if fees are charged.

[00:20:21] Speaker 01:
Go ahead.

[00:20:23] Speaker 01:
So Judge Thomas, what it does here is essentially regulating commercial activity on city property because what it's doing is it's connecting the provision of commercial services with economic new remuneration for the individual who's holding them.

[00:20:39] Speaker 03:
But what if someone teaches yoga for free?

[00:20:42] Speaker 01:
That may be subject to another section of the municipal code, which wasn't the one that was challenged here.

[00:20:48] Speaker 04:
But in this instance... But can I just pause you?

[00:20:50] Speaker 04:
Because C14 says it is unlawful to carry on or conduct commercial activity, comma, to provide any service, comma, or to, and there's an ellipse here, require someone to pay a fee before providing a service.

[00:21:05] Speaker 04:
Those are in the disjunctives.

[00:21:07] Speaker 04:
And then later on it defines service as examples include yoga.

[00:21:12] Speaker 04:
So on the plain face of the ordinance, it doesn't require the charging of a fee in order to consider yoga as service that requires a permit.

[00:21:21] Speaker 01:
Right.

[00:21:21] Speaker 04:
So then that means you don't have to... You are also regulating yoga classes where there's no fee being charged to the people.

[00:21:32] Speaker 01:
That may be true, Your Honor, but... Under this, under this.

[00:21:34] Speaker 04:
Because you're saying under other ordinances, I'm saying under the challenged one, that seems to be the case here.

[00:21:39] Speaker 01:
Right.

[00:21:39] Speaker 01:
If you're calling it a service, that would be correct.

[00:21:43] Speaker 01:
Because if you're calling it simply a service that's being provided to that individual, it is regulated by this specific section.

[00:21:50] Speaker 01:
And what it's all, the gist of the challenge ordinance is that if you want to engage in commercial activity on city property, i.e.

[00:22:00] Speaker 01:
the beach in this particular instance or the city's parks, you have to seek a permit.

[00:22:04] Speaker 03:
Well, how can somebody teach yoga under the ordinance without it being considered a service?

[00:22:10] Speaker 01:
That possible right that that's correct And so that is by definition a service or if they so choose to challenge it in that fashion and I think that more after this specific hearing they've moved to the Argument that in fact it is a lecture because they're applying a slightly different

[00:22:31] Speaker 01:
Definition for it, but in this particular case they chose to challenge it as the provision of a service and the problem with the application of that to this is specifically that

[00:22:41] Speaker 01:
I think the problem with the initial preliminary injunction request was that it mentions any number of different types of First Amendment qualifications that have to be met in order for the ordinance to actually be considered.

[00:23:00] Speaker 01:
So for example, plaintiff appellants have actually claimed that it is

[00:23:07] Speaker 01:
due to that it should be subjected to strict scrutiny, they never actually addressed what this in all likelihood, which is commercial activity.

[00:23:17] Speaker 01:
Because if we were to move beyond the first prong of proving that, in fact, teaching yoga is subject to some kind of regulation as a commercial activity or as expressive activity,

[00:23:31] Speaker 01:
We just haven't gotten that far.

[00:23:33] Speaker 01:
And point of fact, in this specific case, the district court directly asked all the parties, do you have any type of authority that would suggest that a similar type of activity or yoga, and I looked as well, is

[00:23:50] Speaker 01:
any kind of expressive activity or anything of that nature?

[00:23:53] Speaker 01:
And the answer was clearly no.

[00:23:55] Speaker 01:
And I've been looking ever since and I've yet to find anything that even remotely suggests that teaching yoga or teaching meditation, teaching Tai Chi or something like that is expressive activity.

[00:24:07] Speaker 01:
It's not, if anything.

[00:24:09] Speaker 04:
But explain why, because I think that's at the heart of this case.

[00:24:13] Speaker 04:
If you're teaching Socrates or teaching Shakespeare, would you say that that's not expressive activity?

[00:24:23] Speaker 01:
Not under the circumstance of this.

[00:24:25] Speaker 02:
Why isn't it just pure speech?

[00:24:27] Speaker 02:
Why isn't it pure speech?

[00:24:28] Speaker 01:
Because pure speech, so what's happening here is that the speech that's being regulated is secondary to the actual regulation that the city intends, which is to say groups of individuals gathering for a certain purpose, i.e.

[00:24:43] Speaker 01:
here to hear a lecture or to get a yoga class in.

[00:24:49] Speaker 01:
That's incidental to the issue about what they're teaching.

[00:24:53] Speaker 01:
So this is exactly what Ward versus Rock against racism discussed when they were talking about if the ordinance itself has an incidental effect on speech because what its primary purpose is doing is

[00:25:06] Speaker 01:
Taking care of a or actually putting forth a priority that the city has it's different precisely because it's not And what do you say your best case is for why teaching yoga is not protected speech?

[00:25:21] Speaker 02:
Well, what's your best case?

[00:25:23] Speaker 01:
The best case scenario in this particular case, and the one argument that hasn't been made, is that it's commercial speech.

[00:25:29] Speaker 01:
And precisely because it is commercial speech because it is being done for remuneration.

[00:25:34] Speaker 01:
Any of the tips, however you want to frame them, that plaintiff appellants get, that's all taxable income.

[00:25:41] Speaker 03:
You're saying it's commercial speech even if it's not done for payment.

[00:25:45] Speaker 03:
I mean, even if it's done for free, you're saying it's still commercial speech.

[00:25:49] Speaker 03:
So I just don't...

[00:25:50] Speaker 02:
So if it's done for free, it's not commercial speech?

[00:25:54] Speaker 01:
It may not be, but it's also not also expressive conduct.

[00:26:00] Speaker 01:
So herein lies a problem.

[00:26:03] Speaker 03:
It's not commercial speech if it's free, but it's also not expressive conduct.

[00:26:10] Speaker 03:
Why?

[00:26:11] Speaker 01:
My argument is that it is commercial speech, because it meets the Hudson test, because it actually does those things that the central Hudson test or court requires, because it asks, does the activity propose a commercial transaction?

[00:26:26] Speaker 03:
Okay, but assume for purposes of the question that it is being taught for free.

[00:26:30] Speaker 01:
Okay, if we're assuming that it's being taught for free, it's still not, it, well, it, it may or, it's, that would may take it outside the realm of commercial speech.

[00:26:41] Speaker 01:
Does it put it in the realm of speech?

[00:26:45] Speaker 01:
No, because what's being regulated here at its core, the city isn't regulating what these instructors say, but rather the gathering of those individuals.

[00:26:55] Speaker 02:
Well, you're prohibiting them from saying it.

[00:26:57] Speaker 02:
As you're prohibiting the gathering, you're prohibiting the speech.

[00:27:01] Speaker 02:
Doesn't that matter?

[00:27:03] Speaker 01:
It does, but only secondarily, which is exactly what's permissible.

[00:27:06] Speaker 04:
I mean, our First Amendment case law very often talks about if the government requires permits before someone can speak, that is a regulation of speech.

[00:27:17] Speaker 04:
Right.

[00:27:17] Speaker 04:
Right.

[00:27:17] Speaker 04:
And so I think that's what we're trying to get at here.

[00:27:19] Speaker 01:
I think that this court's case, BL Productions, Inc.

[00:27:24] Speaker 01:
versus Newsom, is probably the closest analog we have to the situation here, precisely because

[00:27:31] Speaker 01:
There, what's happening is that there's the consummation of a business transaction.

[00:27:38] Speaker 01:
So appellants here, they don't claim that they're doing it.

[00:27:42] Speaker 01:
They say that the fees that they're getting are sub, you know,

[00:27:47] Speaker 01:
The individuals who attend can either offer them or not.

[00:27:50] Speaker 01:
But at the end of the day, the question is, but for that economic incentive, does the teacher show up?

[00:27:57] Speaker 01:
I think the obvious answer is no, precisely because if there was less than three individuals, there's no need for a permit.

[00:28:03] Speaker 01:
So I think there's that argument.

[00:28:04] Speaker 01:
And then secondly,

[00:28:06] Speaker 01:
Consummited that business transaction is non-expressive conduct unprotected by the First Amendment.

[00:28:11] Speaker 01:
That's from B and L. That argument there because the gun salesmen that wanted to have set up their set up shop and what is it the Delmar fairgrounds and your Orange County Fair.

[00:28:22] Speaker 01:
What they were arguing is their right to actually speak about guns and the second amendment is being infringed Because they're not being permitted to do so there We have a very similar situation here because what's going on is they're saying we want to gather Outside of any kind of regulation on the city's beaches in order to engage in this specific activity ask this

[00:28:44] Speaker 04:
one of your examples for expressive activity has a commercial quality to it and that's the sale of artwork and you can also solicit funds and donations and subscriptions for nonprofits and so there's a commercial aspect to other things that the city has decided is Expressive conduct itself and taking it out of the permitting requirement.

[00:29:04] Speaker 04:
What's the difference between those two things because?

[00:29:07] Speaker 04:
Obviously commercial isn't the be all end all to those things right right so

[00:29:14] Speaker 01:
Quite frankly, those particular activities have been found to have been expressive because they're communicating some kind of viewpoint.

[00:29:23] Speaker 01:
Whereas in this particular case, we're not talking about, unlike B&L, we're not talking about the yoga instructors actually showing up trying to convince somebody, please come to my class, here are the things that we offer.

[00:29:35] Speaker 01:
That's at the point of sale.

[00:29:37] Speaker 01:
What they're doing here, by the time these individuals go to the beach to attend the beach class, what's happened is they've already agreed to go there.

[00:29:45] Speaker 01:
And what's being taught is a course.

[00:29:48] Speaker 01:
Call it whatever you want.

[00:29:49] Speaker 01:
But it is a course in this specific instance in yoga.

[00:29:53] Speaker 01:
And then those individuals, after that,

[00:29:55] Speaker 01:
Make some kind of payment to these individuals there's and I think the pounds would tell you this they have a QR code They're paid.

[00:30:02] Speaker 01:
They're paid in tips which does which in of itself makes it a an actual economic activity whether or not everybody Donates or not and all the city's trying to do is literally

[00:30:15] Speaker 01:
They're simply trying to regulate this in a fashion, because some of the other mundane things that the city does with respect to this particular use of any specific park, but in this case, Sunset Cliff Park, or in this particular set, Palisades Park South, is they're trying to ensure that, for example, two individuals don't go.

[00:30:37] Speaker 01:
So one of the things that happens at this park is that there's weddings that are held, people go, they pay their good money, and then they set the park aside.

[00:30:45] Speaker 01:
Without the city's permitting process, what can happen is you can have a number of individuals there for a yoga class when somebody else has already planned a wedding there.

[00:30:54] Speaker 01:
And they've paid and they've set that aside.

[00:30:56] Speaker 01:
And that just begins to address all of the... Well, but you have the expressive activity areas.

[00:31:03] Speaker 03:
So, I mean, possibly yoga could... I mean, I don't know.

[00:31:06] Speaker 03:
That's not the question we're answering.

[00:31:07] Speaker 03:
But you do have areas set aside for that expression.

[00:31:09] Speaker 03:
It's not like this necessarily has to be happening.

[00:31:11] Speaker 03:
everywhere at any time, but the way that the ordinance is written, yoga is not an expressive activity.

[00:31:21] Speaker 01:
That is correct, Your Honor.

[00:31:22] Speaker 01:
And those expressive activities areas, those are first come, first served.

[00:31:26] Speaker 01:
Or if you reserve them, if they're reserved, they're reserved for the individual who goes in and says, I meet the criteria for expressive activity.

[00:31:33] Speaker 01:
I want to use it.

[00:31:34] Speaker 01:
And if they're unused, any individual can simply show up who meets the criteria for the city's expressive activity ordinances and say,

[00:31:41] Speaker 01:
I'm going to use it, and they're permitted to do so.

[00:31:43] Speaker 01:
But that's not what's happening here.

[00:31:45] Speaker 01:
Here what's happening is, spontaneously or at the direction of the appellants, they literally show up.

[00:31:52] Speaker 01:
They have a class with speakers and numerous individuals and overwhelm this area.

[00:31:57] Speaker 01:
And this is the kind of regulation that is common across the country.

[00:32:01] Speaker 01:
In other words, what we're doing is simply saying, if you want to engage in an activity of this nature or any other type, we want to know, because there's numerous situations that

[00:32:11] Speaker 01:
Maybe need to be addressed like I'll give you one last example.

[00:32:14] Speaker 01:
I know the courts has already indulged me quite a bit of time, but the park that is in the appellants Complaint and also appears in numerous other areas of the record is called Sunset Cliffs Park and

[00:32:31] Speaker 01:
The reason that's notable is that Sunset Cliffs Park itself is quite frankly known for its coastal erosion.

[00:32:38] Speaker 01:
This court can take judicial notice of the city's website and numerous areas where what happens is the city has to actually take care to make sure that the erosion there doesn't become an issue of public safety, which it has.

[00:32:50] Speaker 01:
As a matter of fact, Sunset Cliffs Park itself has been the site of numerous deaths and serious injuries over the years.

[00:32:58] Speaker 01:
So this is not only an issue of a mundane action such as making sure that two separate groups of individuals are not trying to use the one spot.

[00:33:08] Speaker 01:
This goes to the core governmental functions that the city engages in on a daily basis.

[00:33:15] Speaker 01:
So for example, Sunset Cliffs Park just had some remediation of some erosion, a fence was put up on, I believe,

[00:33:25] Speaker 01:
December 29th, just a couple of months ago, precisely because some of this was reported.

[00:33:31] Speaker 01:
And it's a 68-acre park.

[00:33:33] Speaker 01:
It takes a number of rangers to ensure that, in fact, what's happening there is safe for the people who want to do it.

[00:33:39] Speaker 01:
Because one of the things that happens is you apply for a permit.

[00:33:43] Speaker 01:
You tell the individuals, I want to have this many individuals.

[00:33:46] Speaker 01:
This is the activity I want to do.

[00:33:49] Speaker 01:
They have to have a permit.

[00:33:52] Speaker 01:
Insurance that covers any liability where the city is named as a added beneficiary So this regulation is meant to address not only what happens there in terms of issues related to public safety and other common issues But also just simply the orderly use and preservation of the city's parks.

[00:34:14] Speaker 02:
Thank you I just did want to note that the declaration of Amy Bach at 2 er 146

[00:34:20] Speaker 02:
Indicates that they have applied for permits and have been denied So I don't know if you know that I as well.

[00:34:28] Speaker 01:
I can tell your honor that that is absolutely not the case That's well, it's in the record at er 146.

[00:34:36] Speaker 01:
Yes I recognize that that's the case your honor, but I will I mean obviously this is not before the court, but I will cert I can certainly tell the court that I

[00:34:45] Speaker 02:
After that specific submission, I don't really want to hear if it's not on the record But I'm just telling you what's in the record before us because that's what we're going to have to rely on yes, okay?

[00:34:55] Speaker 02:
Thank you very much.

[00:34:56] Speaker 00:
Thank you Thank you your honors and yes judge Margie not only does it state that she attempted to get

[00:35:05] Speaker 00:
get a permit, but that the communication from the city and the ranger's office was that, in fact, no permits are issued for parks and shoreline beaches for teaching yoga.

[00:35:14] Speaker 00:
So that's in the record.

[00:35:15] Speaker 00:
That's unrefuted.

[00:35:16] Speaker 00:
This idea that somebody could apply or have a permit for a wedding or something like that, and then the yoga class is going to interfere with it, you would deal with that the same way you would with any other use of the park.

[00:35:26] Speaker 00:
Anybody that's in that space, if somebody has a permit for a wedding or some activity that's been permitted, the people that are not permitted are going to be excluded

[00:35:35] Speaker 00:
from the space, but the fact that the people are there practicing yoga should not just be on the grounds that somebody might apply for a permit for something else, just never allow that activity.

[00:35:45] Speaker 02:
So it seems like the city is just relying that this is commercial speech and doesn't constitute expressive conduct in any way that puts it outside the realm of commercial speech.

[00:36:00] Speaker 00:
Well, the declaration to make clear that the plaintiffs and others offer free as well as donation based yoga classes.

[00:36:06] Speaker 00:
The donations are secondary.

[00:36:08] Speaker 00:
These are professional yoga instructors.

[00:36:09] Speaker 00:
They teach in studios.

[00:36:11] Speaker 00:
They have jobs.

[00:36:11] Speaker 00:
This isn't their

[00:36:12] Speaker 00:
sole source of income.

[00:36:14] Speaker 00:
They state this in the declarations that they're teaching these classes or they were teaching these classes to give back to the community, to speak to a wider audience.

[00:36:22] Speaker 00:
They don't want to just spend their Saturday teaching yoga to three people.

[00:36:25] Speaker 00:
They want to offer it to the community, and it's a way for people.

[00:36:28] Speaker 02:
I guess if it's economically, there's some economic aspect to it.

[00:36:34] Speaker 02:
Does that matter here, even if it's commercial speech?

[00:36:38] Speaker 00:
That's not what they're being cited for.

[00:36:39] Speaker 00:
And we do go through the case on that, that even soliciting donations, that is protected.

[00:36:44] Speaker 00:
There are other activities in there that have some type of solicitation or donation purpose that are permissible or that are protected under the First Amendment.

[00:36:52] Speaker 00:
But that's also not what the plaintiffs are being cited for.

[00:36:54] Speaker 00:
They're being cited for the actual teaching of the yoga.

[00:36:57] Speaker 00:
And we have on 3ER 322 of the record, subsection C24 of the ordinance regulates large groups.

[00:37:06] Speaker 00:
So if you have more than 50 people showing up in unison and doing something, unless it's expressive activity, they need a permit.

[00:37:12] Speaker 00:
So if people are just spontaneously showing up and doing yoga without anybody leading them, or perhaps Tai Chi, if it's more than 50 people, it's going to fall under that.

[00:37:20] Speaker 00:
But if it's more than four people, if there's somebody leading them, just the mere fact that there's somebody that's actually speaking and leading the group, that person is going to be cited.

[00:37:29] Speaker 00:
And there's no agreement.

[00:37:30] Speaker 00:
There's no prior agreement for people to negotiating this in advance that they're going to show up.

[00:37:34] Speaker 00:
The instructors go out.

[00:37:36] Speaker 00:
And this is in the declarations.

[00:37:37] Speaker 00:
Anybody can set down their mat anywhere.

[00:37:39] Speaker 00:
It's just like any other use of the park.

[00:37:41] Speaker 00:
And the yoga instructor is simply offering instruction.

[00:37:43] Speaker 00:
People can show up or not show up.

[00:37:45] Speaker 00:
It's not arranged in advance.

[00:37:47] Speaker 00:
I don't know what Mr.

[00:37:48] Speaker 00:
The city was referring to with a QR code.

[00:37:51] Speaker 00:
That's not in the record.

[00:37:53] Speaker 00:
There is talk about coastal erosion on 2ER71 of the record.

[00:37:58] Speaker 00:
There's a photograph of the Rangers driving their two giant trucks right under the area where Ms.

[00:38:05] Speaker 00:
Bach had been teaching her classes.

[00:38:07] Speaker 00:
The idea that people practicing yoga on that area is going to somehow erode the cliff is also red herring.

[00:38:15] Speaker 00:
And it really does come down to the instructors are being targeted for the speech and the teaching.

[00:38:20] Speaker 00:
And you know that because if people are just spontaneously engaging in an activity, unless it's more than 50 people, it's not a violation of the ordinance.

[00:38:29] Speaker 00:
But if there's somebody teaching or leading or providing the service of actually speaking the words that people are following and understanding that suddenly that act of speaking in a park is what's being targeted here by the ordinance, not

[00:38:42] Speaker 00:
possible offsite acceptance of donations or if somebody sends a donation by Venmo or makes a donation in a donation box in Mr. Hubbard's front porch across the street, that's completely up to them.

[00:38:52] Speaker 00:
It's not what they're being, it's not what the instructors are being cited for.

[00:38:55] Speaker 00:
They're being cited for teaching yoga in a park.

[00:38:59] Speaker 02:
All right, thank you very much.

[00:39:01] Speaker 02:
We appreciate your oral argument presentations.

[00:39:05] Speaker 02:
The case of Stephen Hubbard and Amy Bach versus the City of San Diego in Does 1 through 10.

[00:39:12] Speaker 02:
now submitted.

[00:39:14] Speaker 02:
We are adjourned.

[00:39:15] Speaker 02:
Thank you.