Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DON BLYTHE, an individual, Case No.: 24-cv-02211-GPC-DDL 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT, GRANTING 14 City of San Diego, DEFENDANT’S MOTION FOR 15 Defendant. SUMMARY JUDGMENT 16 [ECF Nos. 42, 43] 17 18 In this case, Plaintiff Don Blythe challenges the constitutionality of City of San 19 Diego Ordinance O-21822 (“the Ordinance”), which requires protestors—when within 100 20 feet of health care facilities, places of worship, and school grounds (the “Covered 21 Facilities”)—to ask for consent before coming within eight feet of a person entering or 22 exiting a Covered Facility for the purpose of providing that person with a leaflet, displaying 23 a sign, or engaging in oral protest. ECF No. 43-4, at 9-10. Before the Court are Plaintiff’s 24 and Defendant’s cross-motions for summary judgment. ECF No. 42, 43. For the reasons 25 set for the below, the Court GRANTS Defendant’s motion for summary judgment and 26 DENIES Plaintiff’s motion for summary judgment. 27 1 BACKGROUND 2 I. Factual Background 3 Plaintiff Don Blythe regularly engages in pro-life, anti-abortion speech activities in 4 California. ECF No. 42-1, ¶ 2. Specifically, several times a year, Plaintiff hands out anti- 5 abortion leaflets to high school students as they leave school. Id. ¶ 3. 6 On November 25, 2024, he filed this lawsuit against the City of San Diego (“the 7 City”), challenging City of San Diego Ordinance O-21822 (“the Ordinance”) as 8 unconstitutional. See ECF No. 1. Plaintiff amended his complaint on January 27, 2025. 9 ECF No. 18. 10 The City passed the challenged Ordinance on June 11, 2024. ECF No. 43-4. Plaintiff 11 specifically challenges subsection c of the ordinance, which reads in relevant part: 12 (c) Consent Required. Within a radius of 100 feet of a health care facility, place of worship, or school grounds, unless 13 the person or motor vehicle occupant consents, no person 14 shall: (1) knowingly and willfully approach within eight feet 15 of a person in the public right-of-way or sidewalk 16 area who is seeking to enter or exit a health care facility, place of worship, or school grounds, to: 17 (i) pass a leaflet or handbill to that person; 18 (ii) display a sign to that person; (iii) engage in oral protest, education, or 19 counseling. 20 ECF No. 43-4, at 9–10 (emphasis added). 21 The Ordinance is based on the statute upheld by the Supreme Court in Hill v. 22 Colorado, 530 U.S. 703 (2000). See ECF No. 43-4, at 32. In Hill, the Supreme Court 23 considered a First Amendment challenge to a nearly identical ordinance which made it 24 unlawful to, within 100 feet of the entrance to a health care facility, “‘knowingly approach’ 25 within eight feet of another person, without that person’s consent, ‘for the purpose of 26 passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, 27 1 or counseling with such other person[.]’” Hill v. Colorado, 530 U.S. 703, 707 (2000) 2 (citation omitted). The San Diego Ordinance adopts the consent requirement and buffer 3 zones present in the Hill statute, but extends their application to include places of worship 4 and school grounds in addition to health care facilities. ECF No. 43-4, at 24. 5 The Ordinance was adopted “to balance often competing rights: to freely gain access 6 to health care and educational services . . . and to freely exercise constitutionally protected 7 speech.” ECF No. 43-4, at 4. In support of this purpose, the Ordinance states that 8 “demonstration activities around Covered Facilities have subjected students, teachers, 9 [and] parents . . . to harassment and abuse from people who attempt to block entrances and 10 exits to Covered Facilities and parking lots used to access these locations.” Id. at 5. The 11 Ordinance further states that “aggressive demonstration activities pose significant public 12 safety threats” and that “schools are increasingly exposed to demonstration activities.” Id. 13 Plaintiff filed this lawsuit alleging that “[o]btaining consent is an unrealistic 14 requirement for distributing literature to multiple people arriving in waves and leaves 15 Plaintiff unable to engage in the critical literature distribution aspect of his free speech 16 activity.” ECF No. 18, ¶ 30. Plaintiff further alleged that, because of the ordinance, he is 17 refraining from engaging in free-speech activity outside high schools. Id. 18 II. Procedural History 19 On December 13, 2024, Plaintiff filed a motion for preliminary injunction, seeking 20 to enjoin enforcement of the Ordinance. ECF No. 9-1. This Court determined that Plaintiff 21 had not shown a likelihood of success on the merits and denied the motion. ECF No. 17; 22 Blythe v. City of San Diego, No. 24-CV-02211-GPC-DDL, 2025 WL 108185, at *7 (S.D. 23 Cal. Jan. 14, 2025). 24 The City then moved to dismiss Plaintiff’s complaint for failure to state a claim. ECF 25 No. 20. The Court granted the City’s motion to dismiss as to Plaintiff’s facial challenges 26 to the statute as overbroad and vague. ECF No. 28; Blythe v. City of San Diego, No. 24- 27 1 CV-02211-GPC-DDL, 2025 WL 1570528, at *15 (S.D. Cal. June 2, 2025). Dismissal of 2 these claims was without leave to amend. Id. The Court also dismissed Plaintiff’s facial 3 free speech claim. While the dismissal of the facial free speech claim was with leave to 4 amend, Plaintiff did not amend. The Court denied the City’s motion to dismiss only as to 5 Plaintiff’s as-applied free speech claim. Id. 6 In ruling on the motion to dismiss, the Court drew several legal conclusions. First, 7 the Court found the Ordinance to be a content neutral regulation on speech. Blythe, 2025 8 WL 1570528, at *4–*7. Next, the Court found that “ensuring students can attend school 9 free from harassment, obstruction, or intimidation is a significant government interest.” Id. 10 at *9 (cleaned up). The Court also concluded that the Ordinance provides ample alternative 11 channels of communication. Id. at *13. The Court denied the City’s motion to dismiss 12 based only on the question of narrow tailoring. Specifically, the Cout found Plaintiff had 13 cast doubt on whether the Ordinance was reasonably related to the City’s asserted interest 14 in protecting students leaving schools from harassment, obstruction, and intimidation. Id. 15 at *12. 16 REQUEST FOR JUDICIAL NOTICE 17 Plaintiff requests judicial notice of City of San Diego Ordinances O-18452 and O- 18 21822.1 ECF No. 42-3, at 2. Under Federal Rule of Evidence 201, a Court may take judicial 19 notice of facts that are not subject to reasonable dispute because they “can be accurately 20 and readily determined from sources whose accuracy cannot reasonably be 21 questioned.” Fed. R. Evid. 201(b)(2). 22 As the Court acknowledged in its previous order on the City’s motion to dismiss, 23 ECF No. 28; Blythe v. City of San Diego, No. 24-CV-02211-GPC-DDL, 2025 WL 1570528 24 (S.D. Cal. June 2, 2025), “[m]unicipal ordinances are proper subjects for judicial 25 26 1 City of San Diego Ordinance O-18452 is an earlier version of O-21822, which is the Ordinance at issue in this lawsuit. ECF No. 42, at 8-9. 27 1 notice.” Tollis, Inc. v. County of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007). The 2 Court therefore takes judicial notice of the ordinances. 3 LEGAL STANDARD 4 Per Federal Rule of Civil Procedure 56, summary judgment is appropriate when the 5 evidence in the record demonstrates “that there is no genuine dispute as to any material 6 fact and the movement is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 7 An issue is “genuine” when there is sufficient evidence such that a reasonable trier of fact 8 could resolve the issue in the non-movant’s favor, and a fact is “material” when it affects 9 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 10 The moving party bears the initial burden of demonstrating the absence of any 11 genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the 12 moving party satisfies its burden, the nonmoving party must “go beyond the pleadings and 13 by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 14 file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324 15 (quoting Fed. R. Civ. P. 56 (1963)). If the non-moving party fails to make a sufficient 16 showing of an element of its case, the moving party is entitled to judgment as a matter of 17 law. Id. at 325. In deciding a motion for summary judgment, a court must view the evidence 18 in the light most favorable to the non-moving party and draw all justifiable inferences in 19 its favor. Anderson, 477 U.S. at 255. The Court does not engage in credibility 20 determinations or the weighing of evidence; these functions are for the trier of fact. Id. 21 “[W]hen parties submit cross-motions for summary judgment, each motion must be 22 considered on its merits.” Fair Hous. Council of Riverside Cnty, Inc. v. Riverside Two, 249 23 F.3d 1132, 1136 (9th Cir. 2001) (internal citations and quotation marks omitted). 24 Moreover, courts must “evaluate each motion separately, giving the nonmoving party in 25 each instance the benefit of all reasonable inferences.” ACLU of Nevada v. City of Las 26 Vegas, 333 F.3d 1092 (9th Cir. 2003). 27 1 DISCUSSION 2 Plaintiff argues that Subdivision (c) of the Ordinance is an unconstitutional 3 restriction on free speech in a public forum. ECF No. 42, at 6. Specifically, Plaintiff argues 4 that the Ordinance does not satisfy intermediate scrutiny because it is not narrowly tailored 5 to further the City’s asserted interests and fails to leave speakers with ample alternative 6 channels of communication. ECF No. 42, at 11–18. Plaintiff also argues that Subdivision 7 (c) of the Ordinance is unconstitutionally content-based. Id. at 19–20. 8 I. The Ordinance is Content Neutral 9 The Court begins by noting that it has already determined that the Ordinance is 10 content neutral. Plaintiff acknowledges this, and states that he reiterates his arguments out 11 of an “abundance of caution” to preserve the issue for appeal. ECF No. 42, at 16 n.2. Thus, 12 the Court will not reassess Plaintiff’s argument that the Ordinance is content-based and 13 adopts it prior reasoning and conclusion that the Ordinance is content neutral. ECF No. 28; 14 Blythe v. City of San Diego, No. 24-CV-02211-GPC-DDL, 2025 WL 1570528, at *4–*7 15 (S.D. Cal. June 2, 2025). The Court so finds because the Ordinance does not regulate 16 speech based on topics, ideas or viewpoints expressed, but applies to all leafleting, signage, 17 oral protest, education, and counselling equally. Id. Further, the Ordinance applies evenly 18 to all who wish to handbill, display signs, or engage in oral protest or counseling. Id. In 19 short, the Court agrees with the Supreme Court’s analysis in Hill v. Colorado in 20 determining that the Ordinance “places no restrictions on—and clearly does not prohibit— 21 either a particular viewpoint or any subject matter that may be discussed by a speaker. 22 Rather, it simply establishes a minor place restriction on an extremely broad category of 23 communications with unwilling listeners.” 530 U.S. at 723. Thus, the Ordinance is not a 24 content-based restriction on speech. 25 // 26 // 27 1 II. Intermediate Scrutiny 2 A content neutral regulation is valid if it is a “reasonable time, place, and manner 3 restriction[] on speech.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 4 2006); McCullen v. Coakley, 573 U.S. 464, 477 (2014) (quoting Ward v. Rock Against 5 Racism, 491 U.S. 781, 791 (1989)). Such regulations must survive intermediate 6 scrutiny. City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 67 (2022). 7 Under intermediate scrutiny, content neutral regulations must be “narrowly tailored to 8 serve a significant governmental interest” and “leave open ample alternative channels for 9 communication of the information.” McCullen, 573 U.S. at 477 (quoting Ward, 491 U.S. 10 at 791). 11 Having again concluded that the Ordinance is content neutral, the Court now revisits 12 the question of whether it satisfies intermediate scrutiny. Thus, the Court considers whether 13 (1) there is a significant government interest; (2) whether the Ordinance is narrowly 14 tailored to serve that significant interest; and (3) whether the Ordinance leaves open ample 15 alternative channels for communication. See, e.g., Ctr. For Fair Pub. Pol'y v. Maricopa 16 Cnty., Arizona, 336 F.3d 1153, 1166 (9th Cir. 2003) (“The statute will be upheld if it is 17 designed to serve a substantial government interest, is narrowly tailored to serve that 18 interest, and does not unreasonably limit alternative avenues of communication.”). 19 A. The City Asserts a Significant Government Interest 20 The Ordinance’s asserted purpose is “prevent[ing] the obstruction, harassment, and 21 intimidation of people entering and exiting Covered Facilities.” ECF No. 43-4, at 6. At the 22 motion to dismiss stage, the City argued that it had a “significant interest in protecting 23 students entering and exiting” schools. ECF No. 20-1, at 16. In this Court’s order on the 24 City’s motion to dismiss, the Court agreed that “ensuring students can attend school free 25 from harassment, obstruction, or intimidation is a significant government interest.” Blythe, 26 2025 WL 1570528, at *9. 27 1 Now, in its motion for summary judgment, the City argues that it has “significant 2 interests in protecting access to covered facilities and protecting students entering and 3 exiting school grounds from harassment, obstruction, intimidation, and unwanted close 4 physical approaches.” ECF No. 43-1, at 4. The City reiterates its “significant interest[] in 5 maintaining orderly ingress and egress” to schools. ECF No. 46, at 18. Plaintiff argues that 6 this is an “entirely new purported interest,” beyond that initially raised by the City. ECF 7 No. 45, at 13. The Court disagrees. 8 As noted by the Supreme Court in Hill, “municipalities plainly have a substantial 9 interest in controlling the activity around certain public and private places,” including 10 “schools.” 530 U.S. at 728. Further, many courts have recognized a significant government 11 interest in protecting students in and around schools, including on public roads, see 12 Knowles v. City of Waco, Tex., 462 F.3d 430, 434 (5th Cir. 2006), and while students are 13 leaving school after classes end, see PeTA v. Rasmussen, 298 F.3d 1198, 1205 (10th Cir. 14 2002). Other courts have consistently identified significant government interests where 15 municipalities seek to minimize disruptions to the learning environment and protect 16 students’ safety and well-being at school. See Grayned v. City of Rockford, 408 U.S. 104, 17 119 (1972) (finding city had a “compelling interest in having an undisrupted school session 18 conducive to the students’ learning[.]”); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 19 435–36 (9th Cir. 2008) (“[I]t is hard to think of a government interest more important than 20 the interest in fostering a conducive learning environment for our nation's children”); 21 Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38 (10th Cir. 2013) (noting the “special 22 characteristics of the school environment, where the government has a compelling interest 23 in protecting the educational mission of the school and ensuring student safety”) (cleaned 24 up); Klein v. City of Laguna Beach, 594 F. Supp. 2d 1142, 1145 (C.D. Cal. 2009) (finding 25 amplified sound buffer around school to be narrowly tailored to “the City's important 26 27 1 interests in maintaining a productive learning environment, tranquility, and, most 2 importantly, safety”). 3 As applied to schools—the Covered Facility at issue here—the City’s purported 4 interest has always centered on the safety of students and others as they enter and exit 5 school buildings. The San Diego City Attorney’s May 7, 2024, Staff Report—which the 6 legislature considered when passing the Ordinance—specifically stated that the Ordinance 7 aimed to “protect the public’s health and safety,” by “protecting safe and peaceful access” 8 to schools. ECF No. 43-4, at 32–33. The City’s interest in protecting safe and peaceful 9 access includes an interest in protecting students from “obstruction, harassment, and 10 intimidation,” but it is not so limited. ECF No. 43-4, at 6. Rather, an interest in safe access 11 to schools inherently includes an interest in maintaining safe and orderly entry and exit 12 conditions. Accordingly, the Court again concludes that the City’s interest in protecting 13 students while entering and exiting schools—including protecting them from harassment, 14 intimidation, and obstruction—is significant. 15 B. The Ordinance is Narrowly Tailored to Serve the City’s Interest 16 Having determined that the City’s interests are significant, the next question is 17 whether the Ordinance is “narrowly tailored to serve” that interest. McCullen v. Coakley, 18 573 U.S. 464, 477 (2014) (quoting Ward, 481 U.S. at 791). 19 Plaintiff raises several arguments that the Ordinance is not narrowly tailored. 20 Plaintiffs’ main argument is that the City has produced no evidence that the Ordinance will 21 actually advance the government’s asserted interest. ECF No. 42, at 12. Specifically, 22 Plaintiff notes that the City has no evidence of any harassment, intimidation, or obstruction 23 arising from expressive activity outside San Diego high schools. Id. Thus, the City cannot 24 show that the Ordinance is needed to address such a problem. 25 // 26 // 27 1 1. The City Has Sufficiently Shown That the Ordinance Will Advance Its Significant Interests 2 The key question in this case is whether the City has shown that the Ordinance 3 furthers its asserted interest. See Clark v. City of Lakewood, 259 F.3d 996, 1015 (9th Cir. 4 2001), as amended (Aug. 15, 2001) (“These interests are indeed significant. . . . The crucial 5 question on which our decision turns, however, is whether these regulations further those 6 significant interests.”). To do so, the City must “com[e] forward with evidence that 7 ‘demonstrate[s] a connection between the speech regulated . . . and the secondary effects 8 that motivated the adoption of the ordinance.” Ctr. for Fair Pub. Pol’y, 336 F.3d at 1166 9 (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 426 (2002)). 10 When assessing whether a municipality has met its burden to demonstrate a 11 connection between a policy and a government interest, the Court turns to the burden- 12 shifting framework outlined by the Supreme Court in City of Los Angeles v. Alameda 13 Books, Inc., 535 U.S. 425, 426 (2002). At the outset, a municipality may rely on any 14 evidence “reasonably believed to be relevant to the problem that the city addresses.” City 15 of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 51–52 (1986); see also Alameda Books, 16 535 U.S. at 426. Such evidence must “fairly support its rationale for the ordinance.” 17 Alameda Books, 535 U.S. at 426. The City’s initial burden is not a “high bar.” Id. Indeed, 18 the Supreme Court has held that “very little evidence” is required to support a city’s 19 justification for an ordinance, as “cit[ies] must have latitude to experiment.” Id. at 451 20 (Kennedy, J., concurring). The burden then shifts to a plaintiff to cast doubt on a city’s 21 rationale by “demonstrating that the municipality’s evidence does not support its rationale 22 or by furnishing evidence that disputes the municipality’s factual findings.” Id. at 426. If a 23 plaintiff sufficiently casts doubt on a city’s rationale, “the burden shifts back to the 24 municipality to supplement the record with evidence renewing support for a theory that 25 justifies its ordinance.” Id. The Court walks through the Alameda Books framework step- 26 by-step. 27 1 a. Considering the Pre-Enactment Evidentiary Record, Plaintiff Has Cast Doubt on the City’s Rationale for Enacting the Ordinance 2 The Court first considers the pre-enactment record regarding what the City relied 3 upon when enacting the Ordinance. 4 Here, the City has relied on the City of San Diego Staff Report drafted by the San 5 Diego City Attorney and dated May 7, 2024. ECF No. 43-4, at 32. The Staff Report states 6 that “[e]lementary, middle, and high schools have become assembly places for people to 7 express positions on LGBTQ+ issues in schools, among others, and given proposed budget 8 cuts statewide, further demonstration activity is anticipated.” ECF No. 43-4, at 34. In 9 support of its claims, the Staff Report cites a brawl between protestors at Glendale Unified 10 School District Headquarters and a high school walkout in Temecula regarding a school 11 district’s anti-LGBTQ policies. Id. The Report also cites a disruptive protest that led the 12 Poway school district’s board of directors to adjourn a meeting. Id. Lastly, the Report cited 13 “School Board Member Sabrina Bazzo’s testimony to the Public Safety Committee 14 supporting these amendments,” which allegedly referenced disruptive anti-vaccine protests 15 at schools. Id. 16 As an initial matter, Plaintiff claims that the statements within the Staff Report are 17 “all founded in hearsay.” ECF No. 45, at 20. However, Plaintiff’s hearsay objection lacks 18 merit. To the extent that Plaintiff takes issue with the City’s consideration of hearsay, the 19 City was entitled to rely on “any evidence that is reasonably believed to be relevant for 20 demonstrating a connection between speech and a substantial . . . government interest.” 21 Alameda Books, 525 U.S. at 426 (internal quotation marks and citation omitted). Indeed, it 22 is well understood that “[a] legislative choice is not subject to courtroom factfinding” nor 23 all of the accompanying evidentiary constraints. Heller v. Doe by Doe, 509 U.S. 312, 320 24 (1993) (citation omitted). As to this Court’s consideration of the statements within the Staff 25 Report, the Court does not consider the statements for their truth. Rather, the Court 26 considers the statements for their impact on the legislature and whether the City reasonably 27 1 could have relied upon them to demonstrate a connection between the speech regulated by 2 the Ordinance and the harm the City sought to address. 3 Next, the Court turns to the content of the Staff Report and whether it reasonably 4 supports the City’s asserted rationale for enacting the Ordinance. At the motion to dismiss 5 stage, the Court found that certain incidents referenced in the Staff Report—namely, the 6 brawl, walk-out, and school board protest—did not deal with leafleting or one-on-one 7 conversations and were therefore not “reasonably relevant to whether a restriction on 8 leafleting or one-on-one oral protest near schools would further the City’s interests in 9 protecting students form disruption.” Blythe, 2025 WL 1570528, at *11. At the same time, 10 the Court acknowledged that the evidence shows that schools have increasingly become 11 forums for First Amendment activity. Id. The Court also notes that “[n]o precedent requires 12 the City to obtain research targeting the exact activity that it wishes to regulate.” Gammoh 13 v. City of La Habra, 395 F.3d 1114, 1127 (9th Cir.), amended on denial of reh'g, 402 F.3d 14 875 (9th Cir. 2005). Thus, the Court did not, as Plaintiff argues, “firmly reject[] the 15 statements in the staff report as evidence of the problem sought to be addressed by the 16 law.” ECF No. 45, at 20. Rather, the Court concluded only that reliance on these three 17 instances alone was insufficient for the City to carry its burden under Alameda Books. 18 The Staff Report also recounts statements made by School Board Member Sabrina 19 Bazzo at a hearing before the Public Safety Committee. At the motion to dismiss stage, the 20 Court declined to consider this evidence because it was disputed and the Court is required 21 interpret the allegations and factual disputes in favor of the plaintiff at the pleading stage. 22 See Blythe, 2025 WL 1570528, at *11. However, at the summary judgment stage, the 23 evidence is admissible and may be given the weight that it deserves. The Staff Report 24 informed the City Council that (1) School Board Member Sabrina Bazzo testified before 25 the Public Safety Committee in support of the amendments and (2) during such testimony, 26 Ms. Bazzo referenced instances of anti-vaccine protestors blocking school operations. ECF 27 1 No. 43-4. Unlike the other incidents referenced by the Staff Report, this statement speaks 2 more directly to the issue of individual protestors creating disruptions and obstructions at 3 school buildings. Thus, it is evidence that the City could have reasonably believed to be 4 relevant to the problem the City seeks to address through the Ordinance. 5 While the evidence regarding Ms. Bazzo’s testimony brings the City closer to 6 meeting its evidentiary burden, Plaintiff has disputed its factual basis. Specifically, Plaintiff 7 argues that the Staff Report mischaracterizes Ms. Bazzo’s statements, which did not 8 reference any specific protest activity blocking school operations during the pandemic.2 9 ECF No. 45-1, at 4. However, Plaintiff does not dispute that the City of San Diego Public 10 Safety Committee held a hearing on the proposed Ordinance and solicited public comment 11 on the issue. 12 In sum, the pre-enactment record in this case is slim. Per the evidence before the 13 Court, the City relied on a written report by the City Attorney—which cited various 14 incidents showing that schools are increasingly forums for First Amendment Activity— 15 and public testimony at a Public Safety Committee hearing. Though “the record here is 16 17 2 Plaintiff does so by directing the Court to the video of the City Council’s Public Safety 18 Committee’s March 20, 2024, hearing regarding the Ordinance. ECF No. 45-1, at 4. However, Plaintiff has made no effort to properly include the hearing testimony as 19 evidence in support of his Opposition to the City’s motion, thus it is not clearly part of the 20 record before the Court.

21 The public hearing is a matter of public record, and therefore a proper subject for judicial 22 notice. Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Additionally, a court “may take judicial notice on its own.” Fed. R. Evid. 201(c). Therefore, 23 the Court sua sponte takes judicial notice of Sabrina Bazzo’s testimony at the City of San 24 Diego Public Safety Committee hearing—accessible at https://sandiego.granicus.com/player/clip/8869?view_id=52&redirect=true—only for the 25 fact that the content of Ms. Bazzo’s testimony differs from the testimony described in the 26 Staff Report.

27 1 hardly overwhelming . . . it does not have to be.” See Ctr. for Fair Pub. Pol’y, 336 F.3d at 2 1168. See also Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring) (“very little 3 evidence is required” to justify a secondary effects ordinance). Indeed, this quantum of 4 evidence may be sufficient for the City to carry its initial burden under the Alameda Books 5 framework. See, e.g., Mitchell v. Comm'n on Adult Enter. Est. of the State of Delaware, 10 6 F.3d 123, 133 (3d Cir. 1993) (finding state met its evidentiary burden where lawmakers 7 received no documents and did not conduct public hearings). However, the Court must 8 acknowledge that Plaintiff has cast doubt on the City’s rationale for the Ordinance by both 9 (1) demonstrating that aspects of the City’s evidence are not clearly relevant to the City’s 10 rationale, and (2) furnishing evidence that disputes that City’s depiction of Ms. Bazzo’s 11 statements. Given Plaintiff’s challenges, the Court finds that the burden has shifted to the 12 City to “supplement the record with evidence renewing support for a theory that justifies 13 its ordinance.” Alameda Books, 535 U.S. at 426. 14 b. The Supplemented Record Supports the City’s Rationale for Enacting the Ordinance 15 The Court now looks to how the City has supplemented the record. Notably, this 16 evidence need not have been before the legislature at the time it considered its Ordinance. 17 Indeed, “if [a] plaintiff[] succeed[s] in casting doubt on the state’s rationale,” then a 18 municipality can “rely on post-enactment evidence”—or, evidence that was “not before the 19 legislature prior to [an ordinance’s] enactment”—in “support of its position.” Ctr. For Fair 20 Pub. Pol'y v. Maricopa Cnty., Arizona, 336 F.3d 1153, 1166 n.3 (9th Cir. 2003). 21 First, the City calls the Court’s attention to a case from the District of Columbia 22 Court of Appeals, which concerned conduct by protestors leafleting in opposition to the 23 construction of an abortion clinic next to a school. Nicdao v. Two Rivers Pub. Charter Sch., 24 Inc., 275 A.3d 1287, 1290 (D.C. 2022). The protestors followed students and parents onto 25 school property and forced leaflets into students’ hands as they departed the school. Id. 26 Plaintiff argues that the facts of Nicdao are far removed from the conduct at issue here. 27 1 However, the Court agrees with the City that this case offers support for the proposition 2 that unconsented close approaches to leaflet within the direct vicinity of school grounds 3 can reasonably give rise to student intimidation, harassment, or obstruction. See G.K. Ltd. 4 Travel v. City of Lake Oswego, 436 F.3d 1064, 1073 (9th Cir. 2006) (a city may rely on the 5 “experience of other cities” in enacting policies). 6 Next, the City has produced “records from the San Diego Police Department 7 concerning demonstration-related calls at or near schools and school-related facilities . . . 8 for the period 2021 through 2025.” ECF No. 43-3, at 1-2. The exhibit is accompanied by 9 an affidavit from the investigator at the San Diego City Attorney’s office who requested 10 and received the records. Id. Plaintiff argues that the investigator’s affidavit is inadequate 11 to authenticate the call records. ECF No. 45, at 16. However, the Court notes that the 12 investigator has personal knowledge of both (1) the request made of the San Diego Police 13 and (2) that the exhibit is what he received from the San Diego Police. See Fed. R. Evid. 14 901(a) (to authenticate a document, “the proponent must produce evidence sufficient to 15 support a finding that the item is what the proponent claims it is.”). Further, Plaintiff does 16 not actually dispute the authenticity of the call records, and “[w]hether the authentication 17 requirement should be applied to bar evidence when its authenticity is not actually 18 disputed, is . . . questionable.” Burch v. Regents of Univ. of California, 433 F. Supp. 2d 19 1110, 1120 (E.D. Cal. 2006). Lastly, the Court finds that the call records could be 20 authenticated at trial. See Adams v. Kraft, 828 F. Supp. 2d 1090, 1108 n.5 (N.D. Cal. 21 2011) (“On summary judgment, unauthenticated documents may be considered where it is 22 apparent that they are capable of being reduced to admissible evidence at trial.”). Thus, 23 Plaintiff’s authentication challenge is not well-taken at this juncture. 24 Plaintiff also argues that the call records are hearsay. The Court agrees that the 25 individual narrative statements within the call records, if considered for their truth, are 26 hearsay. Further, the City has not argued that any hearsay exception applies. However, to 27 1 the extent the City offers the call logs to demonstrate that the existence of a robust record 2 of 911 calls concerning school-related demonstration activity, this is not a hearsay use. The 3 presence of a significant log of 911 calls concerning school and school-related 4 demonstration activity offers some support for the City’s theory that limiting certain 5 demonstration-related conduct immediately outside schools—namely, unconsented close 6 approaches—will advance student tranquility and safety. 7 The City next points to Plaintiff Blythe’s own testimony regarding his intended 8 conduct as evidence supporting the City’s theory that the Ordinance advances the goal of 9 reducing student obstruction. Plaintiff challenges the Ordinance as unconstitutional as 10 applied to his specific conduct. When describing the specific activity Plaintiff seeks to 11 engage in, Plaintiff acknowledged that he hopes to approach and speak to students leaving 12 schools at dismissal who are “walking in clusters, often in quick succession with little space 13 or time in between.” ECF No. 43-4, at 40. Plaintiff argues that the consent exchange 14 required by the Ordinance would be impracticable, because “it is difficult for a student to 15 simultaneously stay in the mobile group and also engage in a brief conversation to give 16 consent without either leaving the group or impeding the entire group’s progress which 17 blocks traffic.” Id. at 41. Plaintiff asserts that these challenges arise only because of the 18 Ordinance’s consent exchange requirement. However, common sense dictates that the 19 same obstruction concerns that Plaintiff attributes to the consent exchange apply equally 20 to Plaintiff’s own proposed activity of closely approaching individual students—who are 21 walking in groups and in quick succession—to proffer a leaflet. Consequently, Plaintiff’s 22 own discovery responses and common sense support the City’s proffered justification for 23 the Ordinance. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (noting that 24 litigants may justify speech restrictions by references to “simple common sense”) (citations 25 omitted). 26 27 1 Lastly, common sense demands that the Court review the Ordinance with an 2 appreciation for the times in which we live. The City enacted this Ordinance in an 3 extraordinarily polarized political environment, wherein issues impacting students are 4 subject to immense and impassioned public debate, protest, and opposition. These are no 5 longer the times contemplated by the Supreme Court in Grayned v. City of Rockford, 6 wherein the Court mused that “it would be highly unusual if the classic expressive gesture 7 of solitary picket disrupts anything related to the school.” 408 U.S. 104, 119 (1972). The 8 Court cannot ignore this evolving societal context and finds that it lends support to the 9 City’s theory that the well-being of students is enhanced and protected by limiting 10 protestors’ ability to closely approach students entering and exiting schools without 11 consent. 12 Plaintiff laments the City’s lack of specific evidence of “harassment obstruction or 13 intimidation resulting from leafletting, conversing, or displaying signs on the public 14 sidewalks adjacent to San Diego high schools.” ECF No. 42, at 14. However, Plaintiff asks 15 the Court to impose an “unnecessarily rigid burden of proof.” City of Renton v. Playtime 16 Theatres, Inc., 475 U.S. 41, 50 (1986) (so finding where the appellate court required 17 evidence relating to “the particular problems or needs of Renton.”). A municipality is not 18 required to produce specific evidence of an exact issue in an exact context in order to justify 19 legislation relating to the issue. Rather, the standard is evidence “reasonably believed to be 20 relevant to the problem that the city addresses.” Id. (finding city could rely on the 21 experiences of other cities); Gammoh v. City of La Habra, 395 F.3d 1114, 1127 (9th Cir. 22 2005) (“No precedent requires the City to obtain research targeting the exact activity that 23 it wishes to regulate: the City is only required to rely on evidence ‘reasonably believed to 24 be relevant’ to the problem being addressed.”) (quoting Alameda Books, Inc., 535 U.S. at 25 438). Indeed, “very little evidence is required” for a city to satisfy its evidentiary burden in 26 justifying an ordinance’s connection to a given interest. Ctr. For Fair Pub. Pol'y v. 27 1 Maricopa Cnty., Arizona, 336 F.3d 1153, 1162 (9th Cir. 2003) (quoting Alameda Books, 2 535 U.S. at 428). Further, precedent requires courts to treat legislative decisions 3 deferentially, “even when First Amendment rights are implicated through secondary 4 effects.” Charter Comm's, Inc. v. County of Santa Cruz, 304 F.3d 927, 932 (9th Cir. 2002). 5 Though Plaintiff initially cast doubt on the City’s reasoning, the City has 6 demonstrated—by reference to the incidents detailed in the Staff Report, public hearing on 7 the Ordinance, the experiences of other jurisdictions, 911 call logs related to demonstration 8 activity at schools, common sense, and Plaintiff Blythe’s own description of his desired 9 conduct—support for its theory that the Ordinance will protect students from intimidation, 10 harassment, and obstruction while entering and exiting schools. This evidence has also 11 demonstrated that the Ordinance was not premised, as Plaintiff argues, on “mere 12 speculation about danger,” but rather tailored to address a real governmental concern. Bay 13 Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th Cir. 1990). Because the City 14 has produced evidence “reasonably believed to be relevant” to its proffered interest, the 15 Court finds that it has met its evidentiary burden. See Ctr. For Fair Pub. Pol'y, 336 F.3d at 16 1169 (quoting Renton, 475 U.S. at 51). 17 2. The Ordinance is Otherwise Narrowly Tailored 18 Plaintiff further argues that the Ordinance is not narrowly tailored because the City 19 cannot show that the version of the law that preceded the Ordinance was insufficient to 20 handle the problem identified by the City. However, to be narrowly tailored, a contested 21 law “need not be the least restrictive or least intrusive means” of advancing the 22 government’s interest. Ward v. Rock Against Racism, 491 U.S. 781, 798–99 (1989). 23 Indeed, the requirement is satisfied “so long as the . . . regulation promotes a substantial 24 government interest that would be achieved less effectively absent the regulation.” Id. at 25 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). Additionally, the 26 27 1 narrowly tailored regulation must not “burden substantially more speech than is 2 necessary.” Id. 3 Here, “[i]t appears self-evidant that the government’s asserted interest”—protecting 4 students from intimidation, harassment, and obstruction while entering and leaving 5 school—“would be achieved less effectively in the absence of the [Ordinance].” Ctr. for 6 Fair Pub. Pol’y, 336 F.3d at 1169. The Ordinance narrowly limits Plaintiff’s capacity to 7 knowingly approach individuals entering and exiting schools without consent. This 8 limitation on only unconsented close approaches directly bears on the government’s 9 interest in protecting students from harassment, intimidation, and obstruction outside 10 schools. Further, it does not burden Plaintiff’s speech beyond the act of approaching 11 without consent. The Ordinance leaves Plaintiff free to stand within 100 feet of schools, 12 display signs, pass leaflets, and speak to students. Accordingly, the Court finds that the 13 City’s interest would be advanced less effectively without the Ordinance and that the 14 Ordinance does not burden substantially more speech than necessary. 15 C. The Ordinance Leaves Open Ample Alternative Channels for Communication 16 Plaintiff next argues that the Ordinance fails to leave speakers with ample 17 alternatives for Communication. The Court has already held that the Ordinance does leave 18 open ample alternative channels for communication. Blythe, 2025 WL 1570528, at *12– 19 *13. Plaintiff acknowledges this and reasserts his argument primarily “out of an abundance 20 of caution about inadvertent waiver.” ECF No. 42, at 16. The crux of Plaintiff’s argument 21 on this point is that, “[w]here the goal is to get someone to accept a leaflet (or, in Blythe’s 22 case, a 16-page magazine), there is . . . no substitute for being able to approach a step or 23 two towards an individual in order to hand it to him or her without the encumbrance of 24 seeking consent first.” Id. at 16–17. 25 The Court again finds that the Ordinance leaves open ample alternative channels for 26 communication and adopts its prior reasoning in its opinion on the City’s motion to dismiss. 27 1 Blythe, 2025 WL 1570528, at *12–*13. The Court is informed by the Supreme Court’s 2 reasoning in Hill v. Colorado, where the Court found ample alternative channels of 3 communication were available when dealing with a substantially similar ordinance. 530 4 U.S. at 726–27. Even while acknowledging that the statute had a “more serious” impact on 5 leafleting than other types of speech, the Court reasoned that the ordinance did not “prevent 6 a leafletter from simply standing near the path of oncoming pedestrians and proffering his 7 or her material, which the pedestrians can easily accept.” Id. at 727. 8 The reasoning in Hill leads the Court here to similarly conclude that there are ample 9 alternative channels for Plaintiff to communicate his message. The Ordinance does not 10 hinder the readability of signs and oral communication, nor does it prevent Plaintiff from 11 standing in students’ paths and distributing leaflets to willing recipients. Id. at 726–27. 12 Therefore, even accepting Plaintiff’s claims regarding the impracticability of leafleting in 13 his preferred manner under the Ordinance, the Court finds that he still has ample 14 alternatives for communicating his message to students near schools without disrupting 15 unwilling listeners. See Edwards v. City of Santa Barbara, 150 F.3d 1213, 1217 (9th Cir. 16 1998) (finding that driveway buffer zone at health care facilities “permits ample alternative 17 avenues of communication[] by placing no limit on speech or expressive activity outside a 18 narrow zone”). After all, “an alternative channel need not be ideal, but merely 19 adequate.” Project Veritas v. Schmidt, 125 F. 4th 929, 940 (9th Cir. 2025) (en banc) 20 (citing Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 21 654–55 (1981)). Because the Ordinance does not “eliminate[] the only method of 22 communication by which [Plaintiff] can convey [his] message to a particular audience,” 23 and in fact leaves open ample alternative methods, Plaintiff’s argument 24 fails. Id. (citing Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229–30 (9th Cir. 25 1990)). 26 27 ] To the extent that Plaintiff argues that Hi/l’s reasoning does not apply to his 2 || circumstances because Hill considered a facial challenge to a law while he challenges the 3 || Ordinance as applied to his own activities, the Court is not convinced. Even in considering 4 || an as applied challenge, the Ninth Circuit has found an alternative channel to be adequate 5 || if it “permits the more general dissemination of a message.” Project Veritas, 125 F. 4th at 6 || 958 (citation omitted). The Ordinance protects Plaintiff's right to generally disseminate his 7 ||message. Accordingly, the Court finds that the Ordinance provides ample alternative 8 || channels of communication. 9 In sum, the Court concludes that the Ordinance is constitutional as applied to 10 || Plaintiff's expressive conduct. The law passes intermediate scrutiny—it (1) advances a 11 || significant government interest; (2) is narrowly tailored to serve that interest; (3) and leaves 12 || open ample alternative channels for communication of the information, see Ward v. Rock 13 || Against Racism, 491 U.S. 781, 791 (1989)—and is therefore an appropriate regulation on 14 || the time, place, or manner of the protected speech and expression. 15 CONCLUSION 16 For the reasons set out above, the Court GRANTS Defendant the City of San Diego’s 17 |) motion for summary judgment, ECF No. 43, and DENIES Plaintiff Don Blythe’s motion 18 || for summary judgment. ECF No. 42. As none of Plaintiffs claims against the City survive 19 || summary judgment, the Clerk of Court is directed to close the case. 20 Dated: September 11, 2026 2 sf 21 Hon. athe Cae 22 United States District Judge 23 24 25 26 27 21 28 24-cv-02211-GPC-DDL