SAN DIEGO (CN) — San Diego’s efforts to ban the hawking of goods in city parks without permits does not violate the First Amendment rights of people who taught park yoga classes, but the reason park rangers gave for ticketing them does appear to violate their constitutional rights, a federal judge ruled Friday.
In 2024, yoga instructor Amy Baack arrived at her usual spot at Sunset Cliffs — an affluent neighborhood with a popular recreation park that has a picturesque view overlooking the Pacific Ocean in San Diego — to start her donation-based Sunset Slow Flow class.
But instead of seeing her yogis eager to salute the approaching sunset, Baack found barricades blocking the shoreline park and rangers ready to enforce the city’s new law banning commercial activity and services, including yoga, in city parks without a permit.
Another local yoga instructor named Steven Hubbard received a ticket from park rangers for violating the law.
Baack and Hubbard sued the city, claiming the law targeted First Amendment rights to freedom of speech and assembly.
What separated their yoga classes from other commercial activities, they claim, is that their classes didn’t charge students and are instead funded through donations.
Baack and Hubbard failed to show how the law limits their ability to talk about yoga’s philosophical or spiritual beliefs, U.S. District Judge Cathy Ann Bencivengo, a Barack Obama appointee, wrote in an order issued Friday. The plaintiffs only challenged the law’s restriction on their ability to teach yoga classes.
The law regulates “plaintiffs’ conduct, not their speech, because it does not regulate what plaintiffs say — i.e. explaining yoga’s philosophies to a seated audience at a park — but what plaintiffs do — i.e. hosting and teaching yoga exercise classes without a permit on public parks. As plaintiffs contest a restriction on their conduct, they must be engaged in expressive conduct in order to be entitled to First Amendment protection,” Bencivengo wrote, granting the city’s motion to dismiss part of yoga teachers’ claims.
A prior Ninth Circuit ruling on a similar restriction to commercial activity on Hawaiian beaches delineated the difference between a municipality restricting commercial activity — in that case, hosting wedding ceremonies on the beach — with restricting free speech. Yoga classes are not speech or expressive conduct, they’re a commercial activity and a service, Bencivengo wrote.
When park rangers ticketed Hubbard, they cited a provision of San Diego’s new regulation that makes it “unlawful to set up, maintain, or give any exhibition, show, performance, lecture, concert, place of amusement, or concert hall without the written consent of the city manager.”
The ticket for lecturing about yoga does appear to target Hubbard for his speech, which is entitled to First Amendment protection, Bencivengo found.
San Diego wants to allow people to enjoy the city’s parks and beaches by requiring people selling goods and services and giving lectures to apply for a permit, but one of the purposes of traditional public parks is for people to have a place to communicate and discuss their thoughts and questions of public interest, Bencivengo found.
And the regulation burdens speech more than is necessary to achieve the city’s state reason for passing the law, Bencivengo found.
Bryan Pease of Pease Law APC, the yoga teachers’ attorney, said “not a huge surprise” about the ruling.
Pease said he was interested in a picture of one of the instructors teaching her class that was included in Bencivengo’s order. It seemed to suggest to him that the court was emphasizing that the plaintiffs were engaging in conduct, but the plaintiffs still argue that the city is going after their speech.
“We’ll see what the Ninth Circuit will do with it,” Pease said. “There’s something there that needs to be further developed.”
Hubbard and Baack appealed a previous ruling denying their request for preliminary injunction against the city’s regulations. The Ninth Circuit will hear oral arguments on their appeal on March 15.
Bencivengo also dismissed the Doe defendant park rangers from the case because the plaintiffs didn’t provide sufficient facts to show a connection between their supervisors’ wrongful conduct and the violation of the instructors’ constitutional rights.
She also dismissed the instructors’ request for declaratory relief because they did not properly identify an appropriate legal statute to seek remedy by.
San Diego’s attorneys did not respond to requests for comment.