Come Into Litigation Warrior Pose: Ninth Circuit Strikes Down Restriction on Teaching Yoga in San Diego Shoreline Parks or Beaches

From today’s decision by Ninth Circuit Judge Holly Thomas, joined by Chief Judge Mary Murguia and Judge Gabriel Sanchez, in Hubbard v. City of San Diego:

The City of San Diego prohibits teaching yoga to four or more persons at any of the City’s shoreline parks or beaches…. [But t]eaching yoga is protected speech. The City’s prohibition on teaching yoga in shoreline parks is content based and fails strict scrutiny….

[T]he First Amendment protects teaching yoga. “An individual’s right to speak is implicated when information he or she possesses is subjected to ‘restraints on the way in which the information’ [is] disseminated.” And the First Amendment’s protections for speech encompass situations where a teacher’s “speech to [students] imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge.’” Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer (9th Cir. 2020) (quoting Holder v. Humanitarian L. Project (2010)) (discussing vocational training).

Because the Ordinance targets teaching yoga, it plainly implicates Hubbard and Baack’s First Amendment right to speak. The practice and philosophy of yoga “date back thousands of years,” deriving “from ancient Hindu scriptures.” The practice of yoga “teaches students to attain spiritual fulfillment through control of the mind and body.” A person who teaches yoga is communicating and disseminating information about this philosophy and practice through speech and expressive movements. Like vocational training classes, Hubbard’s and Baack’s classes aim to impart a specific skill and communicate advice derived from specialized knowledge. {Indeed, the act of teaching is protected speech even if the subject matter lacks philosophical value. “Most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from government regulation.”} …

 ”[T]he First Amendment affords special protection to ‘places which by long tradition or by government fiat have been devoted to assembly and debate.’” The parties do not dispute that the City’s shoreline parks are traditional public forums….

“[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech.” But “[c]ontent-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” …

Here, the content-based nature of the Ordinance is “obvious.” The plain language of the Ordinance “defin[es] regulated speech by particular subject matter,” “draw[ing] distinctions based on the message a speaker conveys.” The Ordinance states that “it is unlawful … to provide any service, or to … require someone to … pay a fee before providing a service, even if characterized as a donation,” and specifically identifies “yoga” as an activity that constitutes a “service.” While the Ordinance excludes “expressive activity” from this prohibition, it specifically states that “[e]xpressive activity does not include … teaching yoga.” This is the very definition of a content-based restriction on speech. The City, moreover, made clear at oral argument that it views and treats the Ordinance as a content-based restriction, conceding that the Ordinance permits the teaching of subjects such as tai chi and Shakespeare at shoreline parks and beaches, while the teaching of yoga is prohibited.

{The City … argues that teaching yoga “is activity that is regulated because it is commercial activity that gathers large groups of people.” But the Ordinance defines yoga as a service, even if it is provided for free.}

Given the content-based nature of the Ordinance, we will uphold it only if the City meets its burden of proving that the Ordinance “furthers a compelling interest and is narrowly tailored to achieve that interest.” …

The Ordinance fails this analysis. To defend its prohibition on teaching yoga, the City cites its “important governmental interests” in “protecting the enjoyment and safety of the public in the use of” its shoreline parks. The City argues that allowing Hubbard and Baack to teach yoga at shoreline parks “would lead to harmful public consequences to the City’s safe and effective regulation of its parks and beaches.” Although public safety is a compelling interest—and even assuming for the sake of argument that public enjoyment is as well—the City has provided no explanation as to how teaching yoga would lead to harmful consequences to these interests, or even what those consequences might be. The City therefore cannot demonstrate that its prohibition against teaching yoga is narrowly tailored to meet its interests.

The Ordinance also “fail[s] as hopelessly underinclusive.” The Ordinance does not prohibit teaching various other subjects to four or more people in shoreline parks, including those that, like yoga, potentially involve physical movement. Nor does the City even attempt to explain how teaching yoga presents a greater threat to public safety and enjoyment than teaching other subjects.

The City cannot explain, moreover, why an outright ban on teaching yoga is the least restrictive means of meeting its interests. The City already has restrictions on large groups and on expressive activity that blocks the “safe flow of pedestrians or other traffic.” It has also designated “expressive activity areas” within parks, which appear to address the same concerns the City raises here. Yet the City offers no explanation for why teaching yoga cannot occur in these areas….

Bryan W. Pease and Parisa Ijadi-Maghsoodi (Pease Law APC) represent plaintiffs.

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