In July 2000, George Villegas and several other plaintiffs, all of whom are members of the Top Hatters Motorcycle Club, attempted to attend the Gilroy Garlic Festival wearing vests that included an image of a skull with wings and a top hat with "Top Hatters" written above the hat and "Hollister" written below. Pursuant to an unwritten dress code of the Gilroy Garlic Festival Association, a private non-profit corporation, prohibiting "gang colors or other demonstrative insignia, including motorcycle club insignia, an on-duty Gilroy police officer was asked by the festival's chair of security (an off-duty Gilroy police officer) to remove the Top Hatters from the festival.
The Top Hatters then sued the City of Gilroy, the Gilroy Garlic Festival Association and the individual police officer under Section 1983 for violation of their civil rights. The District Court granted summary judgment in favor of the City and the Festival Association, concluding that wearing the Top Hatters vests was neither expressive conduct nor expressive association protected under the First Amendment and that the Festival Association was not a state actor. A three-judge panel of the Ninth Circuit affirmed, concluding that wearing the Top Hatters vests was subject to expressive conduct analysis but found no First Amendment violation. The panel did not reach the state action issue.
The Ninth Circuit then ordered the case to be heard en banc.
This time around, the Ninth Circuit again affirmed the grant of summary judgment but did so on the ground that the Festival Association was not a state actor and that "[b]ecause there is no constitutional violation, there can be no municipal liability." Unfortunately, the Ninth Circuit did not reach the question of whether wearing the Top Hatters vests and insignia constituted expressive conduct (and the three-judge panel's decision addressing that issue was withdrawn and designated non-precedential and non-citable).
You can find the Ninth Circuit's opinion, including two dissents, here.