The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Denton v. City of El Paso, decided yesterday (correctly, I think) by Judge Stephen A. Higginson and joined by Judges Jacques Wiener and Jennifer Walker Elrod:
Ryan Denton is an evangelical Christian, and proselytizing is a tenet of his faith. When he arrived at the El Paso Art and Farmers Market to proselytize, City officials told Denton that City policy prohibited proselytizing within the Market's perimeter….
Established in 2011, the El Paso Art and Farmers Market … is a year-round, weekly outdoor event managed by the City of El Paso through its Museum and Cultural Affairs Department ("MCAD"). Farmers and merchants sell their wares from booths that they obtain through an application process with MCAD. The Market takes place on public streets and does not require a ticket for entry….
Whether the restriction on speech—here, the City's policy—is content based or content neutral turns on the scope and nature of the policy, which the parties dispute. Denton argues that the City's policy is to prohibit all religious proselytizing within the Market's perimeter. The City argues that its policy is to prohibit disruptive conduct within the Market's perimeter.
The district court agreed with the City, finding that the City's policy was not a categorical ban on proselytizing but rather that "the policy prevents only two things: 1) setting up at a fixed location without obtaining advance permission from MCAD and 2) calling out to passersby." Our review of the record, however, leaves us with the "definite and firm conviction" that the district court committed clear error in its factual finding as to the scope and nature of the City's policy.
According to the Statement of Undisputed Facts that the parties submitted to the district court, the City does not dispute that "El Paso rules list 'fundraising,' 'political campaigning,' and 'religious proselytizing' as First Amendment activities that are barred from the Market." The City, therefore, categorically disallows any proselytizing in the Market.
Indeed, the City's pre-litigation correspondence with Denton confirms this categorical exclusion. In a letter to Denton, the City stated that it "does not allow activities such as protesting, campaigning, lobbying, proselytizing, or any other activity that could cause a disruption of performances, vending, and/or operations, or pose a potential safety issue." Although the City asserts that its policy is merely one that prevents disruptive conduct, the policy is actually a categorical ban on proselytizing. As characterized by the City, the policy prohibits all proselytizing on the assumption that it will be disruptive, rather than prohibits conduct because it is disruptive.
Given the City's characterization of its policy in the Statement of Undisputed Facts and its letter to Denton, the district court clearly erred in finding that the City's policy is merely one that prohibits potentially disruptive speech. Accordingly, we find that the City's policy is content based because it "applies to particular speech because of the topic discussed or the idea or message expressed"—here pro-religious speech. Moreover, the City's policy is content based on its face because it "defin[es] regulated speech by particular subject matter"—religious proselytization. The City's "innocuous justification" of its policy—that it is merely trying to prevent disruptive speakers in the Market—does not save the policy. When a restriction is content based on its face, the government's purpose is irrelevant….
Because its policy is content based, El Paso "must show that its [restriction] is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Narrow tailoring requires that the regulation be the least restrictive means available to the government. El Paso fails to make this showing.
It is unclear whether the City has asserted a compelling government interest. We need not decide this issue because, even assuming that it did assert a compelling government interest, a prior restraint of speech based on a viewpoint is unlikely to be the least restrictive means of regulation available.
Courts disfavor wholesale bans on types of expression protected by the First Amendment, and such bans are usually invalidated on the ground that they clearly fail a "least restrictive means" analysis. [Citations omitted.-EV] For that reason, the City's policy is likely not narrowly tailored. In sum, Denton has demonstrated a substantial likelihood of success on the merits of his free speech claim.