Appeal from the United States District Courtfor the Northern District of CaliforniaMarilyn H. Patel, District Judge, PresidingArgued and SubmittedDecember 10, 1997--San Francisco, CaliforniaFiled May 1, 1998Before: James R. Browning, Harry Pregerson, andMichael Daly Hawkins, Circuit Judges.Opinion by Judge Hawkins
_____________________________COUNSEL Michael Millen, San Jose, California, for the plaintiffs-appellants.Kathleen M. Sullivan and John L. Flegel, Jorgenson, Siegel,McClure & Flegel, Menlo Park, California, for the defendant-appellee.
_____________________________OPINION HAWKINS, Circuit Judge:Rossi Foti ("Foti") and David Larsen ("Larsen") regularlypicket and leaflet on a public sidewalk in the City of MenloPark ("City") in front of a Planned Parenthood facility. Theychallenge the constitutionality of Menlo Park Ordinance No.877, which regulates picketing, leafletting, and posting or dis-playing signs on public property. The district court deniedtheir motion for a preliminary injunction, and this appeal fol-lowed. We have jurisdiction under 28 U.S.C. S 1292(a)(1),and we reverse in part and affirm in part.BACKGROUNDFoti and Larsen carry out their picketing on a public side-walk in Menlo Park several times a week. The sidewalk bor-ders a four-lane arterial roadway that accommodatesapproximately 23,000 cars per day. When Foti and Larsenfirst began their protest, they carried signs as large as threefeet by five feet. Some of these signs bore pictures of abortedfetuses; others displayed anti-abortion messages. In additionto carrying these signs, Foti and Larsen also placed numeroussigns around a public bus stop bench and attached as many asfourteen signs on Foti's car, which was legally parked in thestreet. Foti and Larsen's other activities included leaflettingand discussing abortion issues with passersby.In response to numerous citizen complaints about theseprotests, the City adopted Emergency Ordinance No. 876 andits successor Ordinance No. 877.1 The ordinance bans theposting of signs on public property or the displaying of signsin the public right-of-way.2 The ordinance contains severalexemptions.3 There are exemptions for temporary "openhouse" real estate signs, signs placed by government entities,and safety, traffic, and public informational signs. Other pro-visions exempt signs on vehicles that are not parked to attractattention and picket signs. The exemption for picketingimposes further requirements: each picketer is limited to car-rying a single sign no larger than three square feet, and thepicketer must actually move while carrying the sign.Foti and Larsen have continued their protests, mostly incompliance with the ordinance. They have also added crosses,American flags, and plastic babies to their demonstrations --props which the City concedes do not violate the ordinance.Foti was cited under the emergency ordinance for carrying asign larger than three square feet, and his sign was confis-cated. Foti also alleges that a police officer threatened to con-fiscate Foti's car if he placed any signs on it at the protest site.Foti and Larsen filed this civil rights action, seeking declar-atory and injunctive relief and alleging that the ordinance vio-lated their free speech rights "on-its-face" and "as-applied."4The district court denied their application for a temporaryrestraining order. Foti and Larsen then moved for a prelimi-nary injunction, which was denied. The district court foundthat the ordinance, although presenting serious constitutionalquestions, was facially constitutional. The district court alsoruled that the plaintiffs had presented inadequate evidence ofdiscriminatory enforcement of the ordinance to establish theunconstitutionality of the ordinance as applied.ANALYSISTo succeed on this interlocutory appeal, Foti and Larsenmust show a likelihood of success on the merits and the possi-bility of irreparable injury if denied the injunction or the exis-tence of serious questions going to the merits and the balanceof hardships tipping in their favor. See Gilder v. PGA Tour,936 F.2d 417, 422 (9th Cir. 1991). Although we review a dis-trict court's decision to deny a motion for a preliminaryinjunction for an abuse of discretion, see San Antonio Com-munity Hosp. v. Southern Cal. Dist. Council of Carpenters,125 F.3d 1230, 1233 (9th Cir. 1997), we review the legalissues underlying the district court's decision de novo, seeCrawford v. Lungren, 96 F.3d 380, 384 (9th Cir. 1996).A[1] At the outset, we address some apparent confusionregarding the meaning of a "facial" and an "as-applied" con-stitutional challenge. An ordinance may be facially unconsti-tutional in one of two ways: "either [ ] it is unconstitutionalin every conceivable application, or [ ] it seeks to prohibitsuch a broad range of protected conduct that it is unconstitu-tionally overbroad." See Members of City Council v. Taxpay-ers for Vincent,
466 U.S. 789, 796
(1984). In the first type offacial challenge, the plaintiff argues that the ordinance couldnever be applied in a valid manner because it is unconstitu-tionally vague or it impermissibly restricts a protected activ-ity. See N.A.A.C.P. v. City of Richmond, 743 F.2d 1346, 1352(9th Cir. 1984). In such a case, the litigant has standing to vin-dicate his own constitutional rights. See Vincent, 466 U.S. at786. The second type of facial challenge is an exception toour general standing requirements: the plaintiff argues that thestatute is written so broadly that it may inhibit the constitu-tionally protected speech of third parties, even if his ownspeech may be prohibited. See id. at 797. A successful chal-lenge to the facial constitutionality of a law invalidates thelaw itself.[2] An as-applied challenge contends that the law is uncon-stitutional as applied to the litigant's particular speech activ-ity, even though the law may be capable of valid applicationto others. See id. at 803 & n.22. An as-applied challenge doesnot implicate the enforcement of the law against third parties.Rather, a litigant may separately argue that discriminatoryenforcement of a speech restriction amounts to viewpoint dis-crimination in violation of the First Amendment. See I.N.S. v.Federal Labor Relations Auth., 855 F.2d 1454, 1467 (9th Cir.1988). As-applied challenges are the most common type ofchallenges to restrictions on speech activity and may be cou-pled with facial challenges. See, e.g., City of Richmond, 743F.2d at 1352. A successful as-applied challenge does not ren-der the law itself invalid but only the particular application ofthe law.[3] Here, Foti and Larsen bring the first type of facial chal-lenge -- any enforcement of the ordinance creates an unac-ceptable risk of the suppression of ideas -- and an as-appliedchallenge to Ordinance No. 877. Inadequate evidence of theCity's alleged discriminatory enforcement of the ordinancedoes not defeat their as-applied challenge. Thus, we considerboth the facial constitutionality of the ordinance as well as itsconstitutionality as applied to their activities.B[4] Public streets and sidewalks are "the archetype of a tra-ditional public forum." Frisby v. Schultz,
487 U.S. 474
, 480(1988).5 Regulation of speech in a traditional public forum "issubject to the highest scrutiny." International Soc. for KrishnaConsciousness, Inc. v. Lee,
505 U.S. 672, 678
(1992). Theappropriate level of scrutiny is tied to whether the statute dis-tinguishes between prohibited and permitted speech on thebasis of content. See Frisby,
487 U.S. at 481
. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of time, place, and manner of express which are content-neutral, are narrowly tai- lored to serve a significant government interest, and leave open ample alternative channels of communi- cation.Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.37, 45 (1983) (citation omitted). Also, a content-based regula-tion of constitutionally protected speech must use the leastrestrictive means to further the articulated interest. See SableCommuns. of California v. F.C.C.,
492 U.S. 115, 126
(1989).[5] It is undisputed that Foti and Larsen's speech activityis constitutionally protected. See Frisby,
487 U.S. at 479
(public issue picketing); Vincent,
466 U.S. at 803
(signs);Schneider v. State,
308 U.S. 147, 162
(1939) (leafletting).6Thus, our principal inquiry is whether the government hasadopted a regulation of speech "without reference to the con-tent of the regulated speech." Madsen v. Women's HealthCtr., Inc.,
512 U.S. 753, 763
(1994) (internal quotations omit-ted).1[6] "As a general rule, laws that by their terms distinguishfavored speech from disfavored speech on the basis of theideas or views expressed are content-based." Turner Broad.Sys. v. F.C.C.,
512 U.S. 622, 643
(1994). At first blush,Menlo Park's ordinance appears to be content-neutral; afterall, it bans all signs on all public property. But when"exceptions to the restriction on noncommercial speech arebased on content, the restriction itself is based on content."National Advertising Co. v. City of Orange, 861 F.2d 246,249 (9th Cir. 1988).[7] Here, the exemptions for "open house" real estate signsand safety, traffic, and public informational signs are content-based. See Menlo Park Municipal Code SS 8.44.020(3)(c), (e).To enforce the ordinance, a law enforcement officer must"examine the content of . . . signs to determine whether theexemption applies." Desert Outdoor Advertising v. City ofMoreno Valley, 103 F.3d 814, 820 (9th Cir. 1996) (applyingcontent-based test to exemptions for official notices, direc-tional, warning, or information structures, public utility signs,and structures erected near a city or county boundary whichcontain the name of the city, county, or civic, fraternal, orreligious organizations located therein); National Advertising,861 F.2d at 248 (applying content-based test to exemptionsfor memorial tablets or plaques, real estate and constructionsigns, open house signs, and traffic and safety signs).The City attempts to distinguish Desert Outdoor Advertis-ing and National Advertising by arguing that Menlo Park'sordinance applies only to public property while the ordinancesat issue in those cases regulated billboards on public and pri-vate property. We determine, however, whether a regulationis content-based or content-neutral in the first instance, with-out regard to the scope of the statute. Menlo Park's exemp-tions for open house signs and safety, traffic, and publicinformational signs are content-based because a law enforce-ment officer must read a sign's message to determine if thesign is exempted from the ordinance.7[8] Content-based regulations are presumptively unconsti-tutional. See R.A.V. v. City of St. Paul,
505 U.S. 377
, 382(1992). The City's content-based exemptions may pass consti-tutional muster only if they are the least restrictive means tofurther a compelling interest. See Sable Communs., 492 U.S.at 126. The City's asserted interests in the ordinance are theoft-invoked and well-worn interests of preventing visualblight and promoting traffic and pedestrian safety. 8 The Cityargues that the exemptions for open house signs and safety,traffic, or public informational signs also further its interest intraffic safety.[9] Cities do "have a substantial interest in protecting theaesthetic appearance of their communities by avoiding visualclutter . . . [and] in assuring safe and convenient circulationon their streets." See One World One Family Now v. City andCounty of Honolulu, 76 F.3d 1009, 1013 (9th Cir. 1996)(internal quotation and citations omitted). These substantialinterests, however, may not be compelling. See Metromedia,Inc. v. City of San Diego,
453 U.S. 490, 520
(1981) (pluralityopinion); National Advertising, 861 F.2d at 249. Because theCity has assumed before the district court and on appeal thatthe content-neutral test would apply, it has not proffered anyreasons why its interests in aesthetics and traffic safety arecompelling. Of course, it is difficult to imagine that the Citywould not have a compelling interest in traffic signs, forexample, which may be developed, or conceded, in furtherproceedings. However, on the record before us, we find thatFoti and Larsen are likely to succeed on the merits of thisclaim because the content-based exemptions are faciallyunconstitutional.2[10] Like the district court, we are troubled by the whole-sale exemption for government speech. See Menlo ParkMunicipal Code S 8.44.020(3)(d). The district court asked foradditional briefing on whether this exemption was content-based under a First Amendment analysis or speaker-basedunder an Equal Protection analysis. Specifically, the districtcourt questioned whether Police Dep't of Chicago v. Mosely,
408 U.S. 92, 95
(1972) and Carey v. Brown,
447 U.S. 455
,462-63 (1980), applied because those Equal Protection casesinvolved discrimination on the basis of speaker and content.The district court also noted that it needed fuller explanationsof the City's justifications for the wholesale governmentexemption. When Foti and Larsen failed to submit additionalbriefing, the district court ruled that they waived their right toa preliminary injunction based on an Equal Protectionargument.9[11] Generally, we do not "consider an issue not passedupon below." Golden Gate Hotel Ass'n v. City and County ofSan Francisco, 18 F.3d 1482, 1487 (9th Cir. 1994) (internalquotation omitted). This general rule has exceptions, but invo-cation of those exceptions is discretionary. See id. We choosenot to exercise our discretion to consider the merits of thisclaim. Because Foti and Larsen failed to present completearguments regarding this exemption to the district court, weaffirm the district court's order.3[12] A speech restriction is content-neutral if it is "justifiedwithout reference to the content of the regulated speech."Clark v. Community for Creative Non-Violence,
468 U.S. 288
,293 (1984). As the exemption for signs on parked vehiclesmerely regulates the time, place, or manner of speech, weapply the content-neutral test.The exemption pertaining to signs on vehicles is, quitefrankly, somewhat odd. See Menlo Park Municipal CodeS 8.44.020(3)(b). The ordinance exempts from the ban thosesigns on vehicles "provided [t]he vehicle is not parked inorder to . . . attract the attention of the public. . . ." (emphasisin original). This exception-within-an-exception really meansthat the ordinance prohibits signs on vehicles that are parkedto attract attention. For our purposes, we will consider this"exemption" a ban.[13] Even odder is the target of this ban. The ordinancedoes not prohibit signs on parked vehicles; it does not evenprohibit signs on parked vehicles that were placed on the carto attract attention. Rather, the target of the ban appears to bethe driver's subjective intent. If the driver intends to demon-strate or attract attention with a sign when parking a vehicle,the sign is banned. If the driver intends to demonstrate orattract attention with a sign when placing the sign on a vehiclebut not when parking, the sign is permitted. Thus, to enforcethe ordinance, a Menlo Park law enforcement officer mustdecipher the driver's subjective intent to communicate fromthe positioning of tires and the chosen parking spot.[14] Although creative, this ban runs afoul of the FirstAmendment in two important respects. First, it is unconstitu-tionally vague.10 "A fundamental requirement of due processis that a statute must clearly delineate the conduct itproscribes." Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1057(9th Cir. 1986) (citing Grayned v. City of Rockford, 408 U.S.104, 108 (1972)). A statute must be sufficiently clear so as toallow persons of "ordinary intelligence a reasonable opportu-nity to know what is prohibited." Grayned,
408 U.S. at 108
;see United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir.1995). Statutes that are insufficiently clear are void for threereasons: (1) to avoid punishing people for behavior that theycould not have known was illegal; (2) to avoid subjectiveenforcement of the laws based on "arbitrary and discrimina-tory enforcement" by government officers; and (3) to avoidsch, 84 F.3d 1110, 1119 (9th Cir. 1996); see also Chapman v. UnitedStates,
500 U.S. 453, 467
(1991) ("First Amendment freedoms are notinfringed by [the statute], so the vagueness claim must be evaluated as thestatute is applied to the facts of this case."); Village of Hoffman Estatesv. Flipside, Hoffman Estates, Inc.,
455 U.S. 489
, 495 n.7 (1982)("Vagueness challenges to statutes which do not involve First Amendmentfreedoms must be examined in the light of the facts of the case at hand.")(internal quotation and citations omitted).any chilling effect on the exercise of First Amendment free-doms. Grayned,
408 U.S. at 108
-09. Moreover, when FirstAmendment freedoms are at stake, an even greater degree ofspecificity and clarity of laws is required. See N.A.A.C.P. v.Button,
371 U.S. 415, 432
-33 (1963) ("[S]tandards of permis-sible statutory vagueness are strict in the area of free expres-sion. . . . Because First Amendment freedoms need breathingspace to survive, government may regulate in the area onlywith narrow specificity."); Kev, 793 F.2d at 1057.[15] Menlo Park's ban falls squarely into that class of stat-utes that "impermissibly delegates basic policy matters topolice[ ] . . . for resolution on an ad hoc and subjective basis,with the attendant dangers of arbitrary and discriminatoryapplication." Grayned,
408 U.S. at 108
-09. A Menlo Parkpolice officer attempting to enforce this ban must evaluate amyriad of factors: the driver's choice of a prominent orobscure parking space; the amount of vehicular and pedestriantraffic around the chosen parking space; the presence of anyother vehicles, trees, shrubs, or buildings that block the viewsof passersby; the size, color, design, and shape of the signs;and the placement of the signs on the car. With this range offactors to consider, there is the danger that a police officermight resort to enforcing the ordinance only against cars withsigns whose messages the officer or the public dislikes. Werecognize that we must read a statute with "flexibility and rea-sonable breadth," not "meticulous specificity. " Grayned, 408U.S. at 110 (internal quotation and citation omitted). Butgiven the gaps in this ordinance and Menlo Park having obvi-ously adopted the ordinance to specifically target Foti andLarsen's activities, we conclude that Ordinance No. 877 is "soimprecise that discriminatory enforcement is a realpossibility." Wunsch, 84 F.3d at 1119.The City argues that, in fulfilling our duty to fairly interpreta statute in a manner that renders it constitutionally valid, weshould read the ordinance to apply only to "temporary" signs.See Outdoor Syss., Inc. v. City of Mesa, 997 F.2d 604, 611(9th Cir. 1993); see also Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc.,
455 U.S. 489
, 494 n.5 (1982) ("Inevaluating a facial challenge to a state law, a federal courtmust . . . consider any limiting construction that a[n] . . .enforcement agency has proffered."). This reading, the citycontends, removes the vagueness in the ordinance.[16] Although we must consider the City's limiting con-struction of the ordinance, we are not required to insert miss-ing terms into the statute or adopt an interpretation precludedby the plain language of the ordinance. See National Advertis-ing, 861 F.2d at 247 (refusing to limit ordinance's ban to off-site commercial signs when plain language of ordinanceapplied to all speech in off-site signs). The plain language ofMenlo Park's ban applies to all signs on vehicles, not justtemporary signs. Moreover, the insertion of "temporary" intothe ordinance does not solve its vagueness problem. Again,the target of the ban is the subjective intent of the driver tocommunicate when parking a vehicle, not the presence oftemporary or permanent signs. A police officer would still berequired to decipher the driver's motivation in parking a vehi-cle that displays a temporary sign.[17] Menlo Park's ban on signs on parked cars offends theFirst Amendment in a second fundamental way. As the Cityhas continuously stressed, the ban only applies to those signson parked cars designed to function as a billboard. It does notapply to signs on parked cars when there is no intent to usethe vehicle as a billboard. The ordinance thus bans purposefulspeech and permits incidental speech.[18] This reasoning turns the First Amendment on its head.It is well-established that the First Amendment affords thegreatest protection to purposeful speech while allowing moreregulation of incidental speech. Compare United States v.O'Brien,
391 U.S. 376
(1968) (applying "intermediatescrutiny" to statute prohibiting conduct but incidentallyrestricting free speech), with United States v. Grace, 461 U.S.171 (1983) (applying "strict scrutiny" to statute specificallyprohibiting various forms of free speech activities in a publicforum). Government can assert no substantial interest in sup-pressing speech when the speaker intends to communicate butpermitting the same speech if incidental to another activity.[19] Also, "[e]xemptions from an otherwise legitimate reg-ulation of a medium of speech may be noteworthy for a rea-son quite apart from the risks of viewpoint and contentdiscrimination: they may diminish the credibility of the gov-ernment's rationale for restricting speech in the first place."City of Ladue v. Gilleo,
512 U.S. 43, 52
(1994). Here, theexemption from Menlo Park's ban on signs on parked carsdemonstrates that the City has concluded that its interest inallowing signs on cars that are not parked to attract attentionoutweighs its aesthetic and traffic safety interests. It is diffi-cult to understand why signs on parked cars will create traffichazards and cause visual blight only if the driver subjectivelyintends to communicate when parking the vehicle. 11 Thus, theordinance is facially unconstitutional because it targets thosepersons engaged in the core of First Amendment activity andis not supported by any valid government interest.4[20] The ordinance's content-neutral regulation of picket-ing controls the size and number of signs and manner of pick-eting. See Menlo Park Municipal Code S 8.44.020(3)(f). TheCity asserts that the regulation is designed to advance theCity's interests in keeping sidewalks clear and preventingvisual clutter. Foti and Larsen, arguing that such interests arenot valid reasons to justify restrictions on picketing on publicsidewalks, would have us hold the regulation of picketing toa higher standard than other forms of expressive conduct.[21] We decline to craft such a standard. "[P]icketing andparading . . . is subject to regulation even though intertwinedwith expression and association." Cox v. Louisiana, 379 U.S.559, 563 (1965). In Cameron v. Johnson,
390 U.S. 611
(1968), the Supreme Court upheld a statute that prohibitedpicketing "in such a manner as to obstruct or unreasonablyinterfere with free ingress or egress" to public premises orwith free use of public sidewalks. See id. at 612 n.1, 617(emphasis added). In Grace, the Supreme Court struck downa total ban on public sidewalk picketing around the SupremeCourt building but noted that those sidewalks were still sub-ject to reasonable time, place, and manner restrictions. 461U.S. at 181, 183-84. Thus, picketing may be regulated bygovernment and is subject to the same content-based andcontent-neutral tests that apply to other forms of expressiveactivity.First, we address the ordinance's restriction on the size andnumber of signs carried by a picketer. We have upheld restric-tions on the size and aggregate area of signs posted on privateproperty based on a city's interests in aesthetics. See Verrilliv. City of Concord, 548 F.2d 262, 265 (9th Cir. 1977);Baldwin v. Redwood City, 540 F.2d 1360, 1369 (9th Cir.1976); see also City of Ladue,
512 U.S. at 48
(governmentmay regulate the physical characteristics of signs). Thesecases do not provide a perfect analogy to the issue before us:whether a restriction on the size and number of signs carriedby protesters in a traditional public forum may be justified bya city's interest in reducing visual blight. There are obviousdifferences between a sign posted and left unattended for sev-eral weeks and a picket sign carried by a protestor. See Vin-cent,
446 U.S. at 809
(dozens of temporary signs posted onutility poles that remain unattended until removed); Baldwin,540 F.2d at 1369 (effects of wind and other weather elementson unreinforced signs posted on pole or lot). While we ques-tion whether a regulation of picketing could be justified basedsolely on a city's interest in aesthetics, we need not resolvethat issue here. The City also properly justifies its picketingrestriction based on its substantial interest in traffic safety.[22] Picketers generally use a public sidewalk to conducttheir protest. At the same time, pedestrians must use the pub-lic sidewalk to get around the city. Additionally, when a side-walk borders a busy street as here, city traffic may be affectedby a picket on a public sidewalk. For example, Foti and Lar-sen demonstrate within several yards of a bus stop. A busmust pull to the side of the street, allow passengers to boardand disembark, and safely merge with oncoming traffic.Extremely large or numerous picket signs nearby could wellinterfere with a bus's operation or with pedestrian circulationon the sidewalk. Therefore, Menlo Park has, on these facts,demonstrated a substantial interest in traffic safety by regulat-ing the size and number of picket signs.[23] At this early stage in the litigation, we find that theCity's picketing regulation is narrowly tailored. The City'srestrictions on the size and number of signs serve the City'sinterest in traffic safety, which "would be achieved less effec-tively absent the regulation." Ward v. Rock Against Racism,
491 U.S. 781, 799
(1989) (internal quotation omitted). Whileeach restriction may diminish the amount of speech that Fotiand Larsen individually may make on the abortion issue, theydo not "reduc[e] the total quantum of speech on a publicissue." Meyer v. Grant,
486 U.S. 414, 423
(1988) (prohibitionagainst paying circulators of initiative petitions unconstitu-tionally limited the number of persons who convey a messageand size of audience to be reached); see Baldwin, 540 F.2d at1369 (regulation of sign size remotely affected quantity ofspeech and did not significantly restrict total exposure ofpolitical candidate). The restrictions on the size and numberof picket signs are reasonable legislative judgments in light ofthe City's concern for traffic safety. A fifteen square foot signcarried by a protester on a public sidewalk, when comparedto a three square foot sign, may block drivers' views of roadsigns and traffic conditions, intimidate pedestrians, andobstruct the safe and convenient circulation of pedestrians onthe sidewalk. Numerous signs propped against a bus stop orcarried by one person on the sidewalk may impede pedestrianflow or create a safety hazard. Menlo Park's size and numberrestrictions are "not substantially broader than necessary toachieve the government's interest." Ward,
491 U.S. at 800
.[24] Menlo Park's regulation also leaves open ample alter-native channels of communication. Foti and Larsen couldconvey their message through leafletting or sidewalkspeeches. They are free to continue their picketing, whichoffers unique advantages to other forms of communication:immediate recognition by pedestrians and drivers, focusedmessage delivery, and minimal expense. See Baldwin, 540F.2d at 1368 (means of communication are not entirely fungi-ble). The City's ordinance does not seek to limit the numberof protesters or the times or frequency of their picket-ing.Therefore, we find that Foti and Larsen are not likely toprevail on the merits regarding the unconstitutionality of theordinance's restrictions on the size and number of picketsigns.Foti and Larsen argue they have a First Amendment right"not only to advocate their cause but also to select what theybelieve to the most effective means for so doing. " Meyer, 486U.S. at 424. They posit that this First Amendment right pro-tects their method of spreading their message -- that is, a fif-teen square foot sign with a picture of an aborted fetus andanother fifteen square foot sign with a written anti-abortionmessage. Combining both the picture and the written messageonto one smaller sign, they argue, violates their right to selectthe most effective way to advocate their cause.[25] In Meyer, the Supreme Court found that a prohibitionagainst paying circulators of initiative petitions violated theFirst Amendment. The state statute restricted access to the cir-culators' chosen avenue of speech -- direct one-on-one com-munication. See id. Likewise, the First Amendment protectsFoti and Larsen's right to choose a particular means or avenueof speech -- picketing -- to advocate their cause in lieu ofother avenues. This is not the same as saying that Foti andLarsen have a First Amendment right to dictate the manner inwhich they convey their message within their chosen avenue.Government may regulate the manner of speech in a content-neutral way but may not infringe on an individual's right toselect the means of speech.[26] Regulations of the size and number of picket signs arepermissible as long as they are "not so restrictive as to fore-close an effective exercise of First Amendment rights."Verrilli, 548 F.2d at 265. Clearly, there is a point at which arestriction on the size of a picket sign is so small that speechis no longer effective. We do not attempt to define the consti-tutional minimum, nor need we to decide this case. The dis-trict court had before it substantial evidence that pedestrians,a substantial portion of Foti and Larsen's intended audience,could see and read their three square foot signs. Drivers canalso see their protest in front of a Planned Parenthood clinicand understand their message. Drivers may be unable to readthe words of the smaller signs, but this result is permissiblein light of the City's substantial interest in requiring driversto devote greater attention to driving conditions and roadsigns. See Candidates' Outdoor Graphic Serv. v. City andCounty of San Francisco, 574 F. Supp. 1240, 1248 (N.D. Cal.1983). We conclude that while the City's regulation of thesize and number of picket signs does burden speech, it doesso in a minimal way, allowing for the effective exercise offree speech rights.12[27] The second part of the ordinance requiring a picketerto actually move while holding a sign is unconstitutionalbecause it is not narrowly tailored to the City's interest. TheCity argues that the "actually moving" requirement furthersits interest in the free flow of pedestrian traffic on publicsidewalks.13 Although the "actually moving" requirement mayserve this interest in some circumstances, the record before usdoes not establish a reasonable fit between the City's meansand ends. Requiring picketers to shuffle back and forth doesnot contribute to safe and convenient circulation on side-walks; presumably, pedestrians could better negotiate arounda stationary picketer than one who is walking back and forth.More importantly, the City offers no reason why only personsholding signs are required to keep moving. Protestors whoshout, leaflet, or carry various props may stand still; so toomay any large group of pedestrians on the sidewalk. A peace-ful picketer carrying a sign creates no more of an obstaclethan a picketer carrying a cross or a pedestrian waiting for abus.14[28] The City seeks to prevent permanent encampments onsidewalks that block pedestrian traffic and intimidate pas-sersby -- a legitimate objective that could be achievedthrough the normal application of its police powers withoutburdening the manner of picketing. If a picketer obstructspedestrians from using the sidewalk, he may be cited underanother provision of the existing ordinance.15 A picketer whouses a sign to block traffic or obscure drivers' views may alsobe cited under existing ordinances or other traffic laws. Apicketer who harasses or assaults passersby may be cited fordisturbing the peace or charged with assault. Obvious, lessburdensome means for achieving the City's aims are readilyand currently available by employing traditional legal meth-ods. See Schneider,
308 U.S. at 162
(an antilittering statutecould have addressed the substantive evil of littering withoutprohibiting leafletting). The movement requirement "fall[s]short of any reasonable requirement of necessity. " Project80's, Inc. v. City of Pocatello, 942 F.2d 635, 639 (9th Cir.1991) (quotation omitted).The City cites Frisby to support its movement requirementas a reasonable manner restriction on speech. In Frisby, theSupreme Court held that a ban on focused or targeted picket-ing in a residential area was facially constitutional. 487 U.S.at 488. First, Frisby did not involve the same type of"movement" at issue in this appeal. Frisby addressed an ordi-nance that banned picketing "before or about" a residence butpermitted general marching through a residential neighbor-hood or in front of a block of houses. Id. at 477, 483. It didnot address the type of movement -- picketers pacing in aline -- that Menlo Park seeks to impose on protestors. Sec-ond, Frisby's holding was explicitly based on the substantialand unique interest at stake: "the protection of residentialprivacy." Id. at 484. Frisby's concerns for the tranquility ofthe home and captivity of the picketers' target are not impli-cated here, see id. at 487; "the intrusion may be avoided at thewill of the observer." Baldwin, 540 F.2d at 1370. Frisby doesnot support Menlo Park's ordinance.C[29] As we have decided that Foti and Larsen have demon-strated probable success on the merits of some of their civilrights claims, we must consider whether they have demon-strated the possibility of irreparable harm. See Gilder, 936F.2d at 422. "[T]he loss of First Amendment freedoms, foreven minimal periods of time, unquestionably constitutesirreparable injury." Elrod v. Burns,
427 U.S. 347, 373
(1976);see Jacobsen v. U.S. Postal Serv., 812 F.2d 1151, 1154 (9thCir. 1987). Also, Foti has been cited for a violation of theordinance and has been threatened with the loss of his car.Plaintiffs have met the conditions necessary to secure a pre-liminary injunction.DBecause Foti and Larsen have prevailed on the merits ofmost of their claims and no special circumstances show other-wise, we award reasonable attorneys' fees to be determinedby the district court. See 42 U.S.C. S 1988.CONCLUSIONAccordingly, we remand to the district court with instruc-tions that it issue a preliminary injunction against the enforce-ment of Menlo Park Ordinance No. 877, except as toSS 8.44.020(3)(d) and (f)(1). On remand, the City may defendthis ordinance by explaining why it could not achieve its legit-imate interests through the normal application of its policepowers or may abandon the ordinance in favor of othernarrowly-tailored ordinances that further its interests.REVERSED IN PART AND REMANDED WITHINSTRUCTIONS; AFFIRMED IN PART. Each party to bearits own costs. the end
___________________________FOOTNOTES 1 There is no doubt that the City passed these ordinances in response toFoti and Larsen's activities or that the City specifically sought to restricttheir protests. Section 1 of the emergency ordinance states: Certain individuals have been causing a disturbance and creating a disruption of the public peace and health and safety within the City of Menlo Park by demonstrating in front of a facility with very large graphic signs that . . . have interfered with the use of the side walk, bus stop, and pedestrian and vehicular traffic."Whether the statute was based on an "alleged illicit legislative motive,"however, does not affect our determination of whether the statute wasenacted to suppress the content of speech or just its secondary effects. SeeCity of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 47
-48 (1986)(quoting United States v. O'Brien,
391 U.S. 367, 383
(1968)).2 Section 844.030(1) states: No sign may be posted, attached, painted, marked or written on, or otherwise affixed to or placed upon public property or dis- played in the public right-of-way. As used herein,"public property" includes, but is not limited to: highways, streets, road- ways, crosswalks, curbs, curbstones, sidewalks, utility poles or boxes, hydrants, street lights, public buildings and structures, parks, recreation areas or other landscaped grounds owned or maintained by a public agency.3 Section 8.44.020(3) provides: Nothing in this chapter shall apply to: . . . (b) Signs on vehicles of any kind, provided: (1) The vehicle is not parked in order to display, demon- strate, advertise, or attract the attention of the public, and (2) Such signs are not otherwise in violation of California Vehicle Code S 26708. (c) Two temporary "open house" real estate signs, each not exceeding four square feet in area, referring to any one open house event. (d) Signs installed, maintained, erected or placed on public property by government entities. (e) Safety, traffic, or other public informational signals, signs, banners or notices erected or maintained by a public officer or employee in performance of a public duty or by a con- tractor, utility company or other persons responsible for public safety, peace and welfare. (f) A single sign carried by an otherwise lawfully present per- son, provided: (1) The sign being carried does not exceed three square feet in area, and (2) The person carrying such a sign is actually moving, and not remaining stationed in one position.4 The First Amendment provides:"Congress shall make no law . . .abridging the freedom of speech . . . ." The Fourteenth Amendment makesthis limitation applicable to the States, see Gitlow v. New York, 268 U.S.652 (1925), and to their political subdivisions, see Lovell v. City of Griffin,
303 U.S. 444
(1938).5 Menlo Park's ordinance bans signs on all public property. Parks arequintessential public fora, see Hague v. Committee for Indus. Organiza-tion,
307 U.S. 496, 515
(1939), while utility poles and lampposts are not,see Vincent,
466 U.S. at 815
.6 Other forms of expressive conduct not at issue in Foti and Larsen's as-applied challenge are implicated in their facial challenge to the ordinance.Expressive conduct like marching in a parade is constitutionally protectedspeech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Groupof Boston,
515 U.S. 557, 568
(1995).7 In City of Ladue v. Gilleo,
512 U.S. 43, 46
-47 (1994), the SupremeCourt considered the constitutionality of an ordinance that banned anysigns on private property but exempted road and driveway signs, healthinspection signs, signs for churches, religious institutions, and schools,identification signs for non-profit organizations and public transportationstops, real estate sale or rental signs, and commercial signs. JusticeO'Connor noted: [I]t is quite true that regulations are occasionally struck down because of their content-based nature, even though common sense may suggest that they are entirely reasonable. The content distinctions present in this ordinance may, to some, be a good example of this. But though our rule has flaws, it has substantial merit as well. . . . [I]t reflects important insights into the meaning of the free speech principle -- for instance, that content-based speech restrictions are especially likely to be improper attempts to value some forms of speech over others, or are particularly susceptible to being used by the government to distort public debate.Id. at 60 (O'Connor, J., concurring) (internal citations omitted).Although Menlo Park's exemptions for open house signs and safety,traffic, and informational signs seem innocuous, we base our content-based determination on whether the ordinance singles out certain speechfor differential treatment based on the idea expressed. The reasonableness,harmlessness, or worthiness of the idea is irrelevant. See Hurley, 515 U.S.at 579 (1995).8 It would be difficult to list all the reported cases in which the govern-ment sought to justify its ban on expression with the interests of aestheticsand traffic safety. Here are just a few: City of Ladue,
512 U.S. at 47
;Metromedia, Inc. v. San Diego,
453 U.S. 490, 511
-12 (1981) (pluralityopinion); Ackerley Communs. of Northwest, Inc. v. Krochalis, 108 F.3d1095, 1097 (9th Cir. 1997); Outdoor Syss., Inc. v. City of Mesa, 997 F.2d604, 611 (9th Cir. 1993); National Advertising, 861 F.2d 246, 248 (9thCir. 1988); Baldwin v. Redwood City, 540 F.2d 1360, 1370 (9th Cir.1976).We are mindful of Justice Brennan's concern that"[t]he asserted inter-est in aesthetics may be only a facade for content-based suppression."Vincent,
466 U.S. at 822
(Brennan, J., dissenting). "[T]he inherent subjec-tivity of aesthetic judgments makes it all too easy for the government tofashion its justification for a law in a manner that impairs the ability of areviewing court meaningfully to make the required inquiries." Id.9 The district court also ruled that its order did not preclude Foti and Lar-sen from renewing their arguments in a summary judgment motion or attrial.10 Contrary to the City's assertion at oral argument, we are not confinedto examining the vagueness of the ordinance only as applied to Foti and11 Notably, the only reported accident causally related to Foti and Lar-sen's picketing activities occurred after the ordinance was passed. Adriver noticed that Foti's station wagon, parked in front of the clinic, wasdecorated "with various objects, including an American flag, and what Ibelieved to be a sign or poster." The driver admits that she took her eyesoff the road, "turned back" to look at the station wagon, and then rear-ended a truck in front of her.It does not appear that the City can blame the sign, instead of the flag,for creating a distraction for the driver. And obviously, reasonable drivingcare could have prevented this accident.12 Although Menlo Park's regulation is constitutional as applied to Fotiand Larsen's activities, we are not convinced that the restriction could passconstitutional muster in a different as-applied challenge. For example, therestrictions on the size and number of signs also apply to those personscarrying signs in a park or during a parade, areas in which the City's inter-est in traffic safety are more questionable.13 The City does not justify this provision by proffering its interest inaesthetics, and logically so -- it is difficult to imagine how this provisionreduces visual blight.14 The nonsense of this distinction is demonstrated by a declaration ofthe City's police commander: I have informed Rossi Foti and David Larsen that if they kneel and pray in the sidewalk while holding a cross with a sign attached to the cross that they will be in violation of [the ordi- nances]. I have also informed [Plaintiffs] that they may kneel and pray with the cross and/or the American flag as long as they are not displaying a sign while participating in those activities.15 "No sign shall be posted at a location which obstructs or interfereswith, or poses the threat of obstructing or interfering with, vehicular orpedestrian travel." Menlo Park Municipal CodeS 8.44.030(3). Presum-ably, the City could draft a parallel provision to apply to picket signs.