First Amendment Attorney in San Fransisco Serving the Bay Area

Motorcycle Rider Rights Under California and Federal Law

On July 30, 2000, four members of the Hollister chapter of the Top Hatters motorcycle club attended the Gilroy Garlic festival in Gilroy, California. While at the festival, they were approached by an off-duty police officer in uniform, who was serving as security for the festival. The officer escorted them to the front gate where they were told that they must remove their vests in order to remain at the festival. The “problem” was that the festival had adopted an unwritten dress code that forbade anybody attending the festival from wearing “gang colors or other demonstrative insignia, including motorcycle club insignia.” Apparently, festival organizers felt that the depiction of a skull and wings in a top hat below the words “Top Hatters” posed a danger. The Top Hatters, however, are not classified as a criminal gang, and their only purpose is to “ride motorcycles, promote good will among disparate community groups, and raise money for charities.” The members who wanted to attend the festival were asked to leave when they refused to remove their vests.

The next year, the Hollister Top Hatters filed suit against the festival and the City of Gilroy under the federal Civil Rights Act (42 U.S.C. Section 1983), claiming that the festival and the city violated their First Amendment rights to freedom of expression and expressive association. The case has reached the 9th Circuit Court of Appeals where it is scheduled for rehearing by the entire 9th Circuit after a three-judge panel ruled against the Top Hatters. Although the court agreed with the Top Hatters that asking them to leave was, in fact, state action, it held that the Top Hatter’s patch was not protectable speech and ruled in favor of the festival and the city.

Although the 9th Circuit will rehear the case, a review of the court’s reasoning can help understand when such conduct is protectable expression and when it is not. In this case, the court relied on Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). In Spence, the Supreme Court ruled that expressive conduct worthy of First Amendment protection exists when there is “[a]n intent to convey a particularized message was present and [whether] the likelihood was great that the message would be understood by those who viewed it.”

The Court’s analysis can be broken into two elements—(1) an intent to convey a particular message, and (2) a great likelihood that the message would be understood.

One of the problems encountered by the Top Hatters is that the members could not agree on what the symbol depicted on their patch meant. The court reasoned that if you do not even know what the symbol means, how could you be intending to convey a message? When asked at a deposition if the Top Hatters advocated any “political, religious, or other viewpoints,” one of the Top Hatters said, “No.” Another problem was that the court thought that any message conveyed by the patch would not be understood by the other people attending the festival—that is, garlic lovers and families.

Does the court’s ruling hold bad news for patch holders and motorcycle clubs in general? Not necessarily. In telling us why they ruled against the Top Hatters, the court also told us how to win next time. Let’s take it step by step.

Remember that to be protected expression under the First Amendment, the expression must be intended to convey a particular message. The court considered advocating a “political, religious, or other viewpoint” to be evidence of having a message to convey. As bikers, we have no shortage of political viewpoints to advocate, such as repeal of the helmet laws and protecting bikers’ rights. A club may adopt the purpose of “educating the public about motorcycles and protecting the rights of all motorcycle riders including the repeal of the helmet law.” That is certainly a political viewpoint. Second, the patch must somehow convey that message. An image of a motorcycle whose rider is not wearing a helmet might convey the club’s support of repealing California’s helmet law. The Top Hatters may have had better luck in court if they had a single message behind their patch.

UNRUH and the Hessians Case

The First Amendment will not protect people from discrimination by private entities. For example, it does not prevent a bar owner from banning patch holders displaying their colors from his bar. However, California law, Sections 51 through 51.3 of the California Civil Code (the UNRUH Civil Rights Act (the “Act”)) may provide some protection when business owners discriminate against patch holders. Section 51(b) of the Act reads:

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

The California Supreme Court has ruled that UNRUH protections are not limited to those listed in the statutes. The protections are available for discrimination based on personal characteristics similar to those listed in the statute. This means that a bar owner cannot discriminate against you because you are wearing leathers, have long hair, or are displaying tattoos. Under the Act, businesses cannot discriminate because of one’s “unconventional appearance.”

Businesses covered under the Act include:

• Hotels and Motels
• Non-Profit Organizations
• Restaurants
• Theaters
• Hospitals
• Barber and Beauty Shops
• Housing Accommodations
• Public Agencies
• Retail Establishments

However, UNRUH does not protect discrimination based on the wearing of colors. In The Hessians Motorcycle Club v. J.C. Flannigans, the California Court of Appeal ruled that a business owner may ban wearing colors in his establishment as long as he applies the ban equally to all people and the ban serves a “legitimate business interest.” The bottom line is that a business may ban all colors but may not ban, for example, the Top Hatters and allow the Hessians.

Civil rights laws and First Amendment issues are complicated. If you feel that you have been discriminated against because you are a biker, call first amendment attorney experienced in both civil rights and motorcycle issues – William E. Weiss at 1-888-622-7274 or e-mail William for a free evaluation of your case.