The Ninth Circuit en banc today decided Villegas v. Gilroy Garlic Festival, No. 05-15725:

We must decide whether guests at the Gilroy Garlic Festival can hold the City of Gilroy in California and the Gilroy Garlic Festival Association liable in a civil rights action when they are escorted from the event by a City police officer for violating the Festival’s dress code.

The dress code was a prohibition of “gang colors or other demonstrative insignia, including motorcycle club insignia,” deemed to be violated by the Top Hatters' “image of a skull with wings and a top hat.”

The answer to the question posed above is no, because (1) the Gilroy Garlic Festival Association is a private entity, not a state actor, and they can have a dress code if they like, and (2) the city did not violate the Constitution by having one of its police officers escort people off the grounds, thereby enforcing a private entity's right to have its dress code.

Fortunately, the Garlic case does not involve the overbreath doctrine.