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Court Ruling Recommendation Favors City Against Board Game Maker  

By Jonathan Friedman
Lookout Staff

March 31, 2010 --A six-year legal battle involving free speech and a board game could be nearing an end, at least on the first level.

A magistrate judge last week recommended U.S. District Court Judge George H. King dismiss a lawsuit by board game maker Stewart Lamle claiming he is being denied First Amendment rights by not being allowed to sell his game Farook on the Third Street Promenade without a vending permit.

Lamle, who is pursuing the case as his own attorney, called the recommendation “an interim nastiness, not even a ruling.” He said if King accepts the recommendation, he will file an appeal with the 9th U.S. Circuit Court of Appeals.

“I have prepared this entire case to be ruled on by the Ninth Circuit,” Lamle said. He added, “It isn’t over till it’s over.”

Deputy City Attorney Anthony Serritella said of the recommendation, “The question is whether he is exempt from the rules that everybody else in the world has to follow if they want to sell something. And the answer is that he is not.”

Lamle describes Farook as a “philosophy” and the “first high-level strategy game since chess.”

He was denied a street performance permit to promote and sell the game because it was not considered a performance. And he was denied a vending permit because of a cap on types of vendors that can do business on the Promenade.

Ignoring the City’s decisions, Lamle continued to promote and sell Farook on the Promenade.

This earned him more than 30 criminal citations. A Santa Monica Superior Court judge dismissed all the criminal charges to allow Lamle to pursue the issue as a civil case.

 


Lamle took his case to the federal court system in 2004. He argued that he has the same rights as a person selling political bumper stickers or other written political materials. These people are exempt from the City’s Vending Ordinance, and do not need a permit. Magistrate Judge Steven J. Hillman disagreed with Lamle.

“It is plain from the foregoing, undisputed evidence of Plaintiff’s sales, inventory, and current negotiations, that Farook is not merely a message-bearing item used to convey the Farook philosophy,” Hillman wrote. “On the contrary, the evidence establishes that Farook is a commercial product and that Plaintiff’s predominant purpose in selling it is to make a living.”

He continued, “Plaintiff’s predominant purpose of making a living, combined with the fact that Farook is not inherently communicative, further support a finding that Plaintiff’s activities do not ‘inextricably intertwine’ protected speech with commercial activities.”

Serritella said this case is taking longer than usual to move its way through the court system. But he said this should be expected when the plaintiff represents himself. Lamle said he is representing himself because he did so when taking on toy making giant Mattel in a breach of contract suit over Farook. This concluded with an out-of-court settlement for an undisclosed sum. “I beat them to a pulp,” Lamle said.

That case also took many years to reach a conclusion. The 9th U.S. Circuit Court of Appeals ruled Lamle should get a jury trial in District Court. The two parties then reached the settlement.

 

“The question is whether he is exempt from the rules that everybody else in the world has to follow if they want to sell something. And the answer is that he is not.”
 
 
   Deputy City Attorney          Anthony Serritella

 


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