SECOND STREET — A Santa Monica resident is asking the Ninth Circuit Court of Appeal to reconsider its November ruling denying him the right to sell a board game on the Third Street Promenade, claiming that Santa Monica’s ordinances governing sales and performance on the street are unconstitutional.
In his petition for rehearing, Stewart Lamle argued that the ordinances violate his First Amendment rights to spread the Farook philosophy of non-violence and negotiation, traits described in the rules and play of the game, which he now calls Wizdom.
The Ninth Circuit judges held in November that Lamle had failed to show how either ordinance restricted his rights to free speech by discriminating against a specific viewpoint or that the local laws were unconstitutionally vague or over-broad.
Lamle called the decision “disturbing” and said that he believed the court was wrong in its analysis of the case.
If the Ninth Circuit refuses to take up the matter again, he will go to the U.S. Supreme Court. The Supreme Court takes roughly one-tenth of the cases referred to it by the Courts of Appeal.
“I am not stopping,” Lamle said. “I do not stop.”
City Attorney Anthony Serritella said that he would not comment on the lawsuit except to say that he felt the petition lacked merit.
Lamle originally took City Hall to court in 2004 after City Hall denied him both a business license and a performer’s permit, either of which would have allowed him to conduct some form of business on the public street.
Only certain kinds of businesses are allowed to operate on the promenade, specifically carts, sidewalk cafes and Farmers’ Market retailers. Board game sales didn’t make the cut.
In his suit, Lamle held that the vending law should have included his game just as it did leaflets, bumper stickers, cassette tapes, paintings and other accepted forms of speech.
That left the court with a fundamental question: Did the board game have enough communication to constitute a protected form of speech?
A lower court magistrate thought no, saying in his decision that Lamle’s primary purpose was to profit off of the games, which brought in up to $500 in sales a day, according to Lamle’s own deposition.
The judge also held that the board game was not inherently expressive, and that you could play the game without ever internalizing deeper messages of conflict resolution and non-violence.
Lamle called it a “straw man” argument based on the fact that unlike video games which use plot, images and music to get their points across — and have been protected in Supreme Court rulings — his game relied on glass jewels and the board.
“The instructions do communicate, and my verbal instructions also communicate,” Lamle said.
The game is supposed to demonstrate fundamental lessons about power and freedom, which are further explored in the instructions, Lamle said.
“That’s where the communication occurs. This is an abstraction of politics,” he said.
He might have a shot, said David Hudson, an attorney with the First Amendment Law Center.
“It could qualify as commercial speech,” Hudson said. “The larger issue is if the city ordinance is a reasonable time, place and manner restriction on speech. Two is whether the law or ordinance has an exception for books and newspapers. If it does, is it discriminatory to treat the sale of the board games differently?”
According to the petition, Lamle began selling the game on the promenade in 1996. Between that time and August 2004, Lamle was cited 29 times for violating Santa Monica ordinances.
Of those, 25 were misdemeanors and Lamle was arrested and removed from the promenade twice.
All of the citations were eventually dismissed from court on First Amendment grounds, and Lamle followed up with a lawsuit attacking the performance and vending ordinances.
Lamle hopes that by continuing to fight he will be able to prove that the two city ordinances governing sales and performance on the promenade are unconstitutional, and will need to be revised or abandoned.
He also wants to change the rules so that the employee that monitors those activities is hired by the performers and vendors rather than Downtown Santa Monica Inc., a private-public partnership that manages the promenade for City Hall.
Finally, Lamle wants to change the very way that City Hall approaches the promenade, which he feels has been transformed from a place to practice free speech into one usurped by commercial business practices.
“It’s different from a mall because Third Street is a public street,” Lamle said. “Traditionally, they have been places for First Amendment speech. A lot of those places have been usurped by the city where they placed the ugly green (vending) carts.”
Lamle faces an uphill battle.
He will represent himself in court as he has through the course of the lawsuit, despite the fact that he has no formal legal training outside of a class he took to get a business degree.
He liked it, saying that the legal world was “set up very much like a game.”
The inventor and game-maker was also a journalist covering Vietnam in 1970, and he learned a thing or two about tenacity.
“How did that poor country win?” Lamle asked. “The Vietnamese people refused to quit.”