The Volokh Conspiracy
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Gabby Morrongiello (Washington Examiner) reported on West Hollywood Mayor Lindsey Horvath's statements, and was kind enough to pass along the mayor's email:
Thank you for your questions. My answers are below. Please let me know if there's any additional information I can share.
• Do you actually have the authority to ban Donald Trump from campaigning in West Hollywood?
As Mayor of West Hollywood, it is my primary responsibility to keep our community safe. So long as Mr. Trump and his campaign use, promote, and defend violent, hateful tactics—especially against marginalized and disenfranchised communities—they are not welcome. Historically, the City has welcomed political leaders from different sides of the aisle. Notably, City staff received requests to accommodate a McCain for President campaign event some years ago, including the issuance of special event permits. We accommodated those requests, recognizing and respecting the political differences that are present within our community. However, those same courtesies will not be extended to the Trump campaign, and I have already confirmed with our City staff that such actions are well within our right.
• As the mayor and someone extremely familiar with the West Hollywood community, how would you describe your constituents' feelings towards Donald Trump?
My constituents have consistently expressed to great distress and fear of what a Trump presidency would mean for all Americans, especially our diverse community. I have received tremendous support from residents and stakeholders in West Hollywood for the letter I issued to Mr. Trump and his campaign. I take that to mean they don't support or want his hate speech or violence in West Hollywood. Our City's voters consistently and overwhelmingly support Democratic candidates, and I happily expect the same in this election cycle.
I asked Horvath whether she had follow-up comments on the First Amendment issue, and she responded:
Thank you for your inquiry. In response to your questions, please allow me to clarify the comments you reference.
My comments reflect the City's core value of "Respect and Support for People." The City was founded more than three decades ago with a spirit of community activism based on ideals of inclusion—not exclusion—and respect for the dignity of all persons. Hate speech, while protected by the First Amendment, is abhorrent to those values and ideals. The City is acutely aware of and firmly committed to the principles of the United States Constitution, and in particular, the right of free expression. Neither I nor the City have not deprived any person of the right to free expression nor do we intend to.
When I then asked whether they would indeed deny special event permits to the Trump campaign, Horvath wrote:
To confirm, so long as Mr. Trump and his campaign use, promote, and defend violent, hateful tactics—especially against marginalized and disenfranchised communities—they are not welcome. However, to date, no one has asked for or has been denied permits. This concludes my comments on the matter.
But the First Amendment would bar the government from denying a candidate a special event permit because the candidate's speech "is abhorrent" to what the mayor sees as community "values and ideals." That's true whether or not the speech is "hate speech," and whether or not it is "hateful" "against marginalized and disenfranchised communities."
Cities may indeed impose content-neutral special event permit rules, to make sure that events don't unduly tie up traffic, cause noise late at night and the like. But the city may not discriminate against such events based on the content of the speaker's speech and certainly not based on the viewpoint of such speech.
That's basic First Amendment law, but the U.S. Court of Appeals for the 9th Circuit—the federal appellate court that handles federal cases from western states, including California—confirmed this in Long Beach Area Peace Network v. City of Long Beach (9th Cir. 2008). Indeed, in Long Beach Area Peace Network, the court held that even viewpoint-based refusals to waive special permit fees would be unconstitutional. Giving the government discretion as to whether to waive such fees, the court concluded, would violate the First Amendment, because
Vesting [government bodies] with this discretion permits the government to control the viewpoints that will be expressed…. [W]e believe that [such a power] runs afoul of the basic principle that "forbids the government from regulating speech in ways that favor some viewpoints or ideas at the expense of others."
(The court here was quoting and adopting the reasoning of a 10th Circuit decision.) And given that discretionary special event fee waiver decisions are unconstitutional, because they may be unconstitutionally viewpoint-based, viewpoint-based denials of special event permits are even more clearly unconstitutional.
Nor can the city defend its position on the grounds that it opposes Trump's statements suggesting violence against protesters. If Trump makes any such statements at a rally, and West Hollywood concludes that they are illegal, it can prosecute him; and it can make that clear to him up front. But it can't deny him a permit for a rally because it believes that he has made illegal statements in the past, and because it worries that he'll do so at the rally. And in any event, Horvath's statements make clear that her threat to deny the special event permit is based on Trump's ideological views more broadly, and not just on Trump's statements about protesters.
I don't support Donald Trump, and I agree with many criticisms of him. But no American city is allowed to deny him the right to hold political rallies on the same terms as any other political candidate.