Denton v. City of El Paso

D
Case: 20-50702     Document: 00515927035         Page: 1     Date Filed: 07/06/2021




              United States Court of Appeals
                   for the Fifth Circuit                              United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                          July 6, 2021
                                  No. 20-50702
                                                                        Lyle W. Cayce
                                                                             Clerk
   Ryan Denton,

                                                           Plaintiff—Appellant,

                                       versus

   City of El Paso, Texas,

                                                           Defendant—Appellee.


                  Appeal from the United States District Court
                       for the Western District of Texas
                            USDC No. 3:20-CV-85


   Before Wiener, Elrod, and Higginson, Circuit Judges.
   Stephen A. Higginson, Circuit Judge:*
          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. Denton sued and moved for a
   preliminary injunction to restrain the City and its agents from prohibiting


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
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                                    No. 20-50702


   proselytizing at the Market. The district court denied his motion, and
   Denton filed this interlocutory appeal. For the reasons articulated herein, we
   VACATE the district court’s order denying a preliminary injunction and
   REMAND with directions to the district court to grant a preliminary
   injunction enjoining El Paso from enforcing the City’s policy of prohibiting
   religious proselytizing at the Market.
                                            I.
           Established in 2011, the El Paso Art and Farmers Market (“the
   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. Although the Market closed due to
   the COVID-19 pandemic, it reopened on April 10, 2021.
           Ryan Denton is an evangelical Christian. Proselytizing in public
   places is a tenet of his faith. He proselytizes through literature distribution,
   conversation, and unamplified preaching. On August 24, 2019, Denton went
   to the Market to proselytize. Denton stood within the Market perimeter and
   proselytized for a short time. Then a law enforcement officer with the
   Sheriff’s Department and an MCAD employee approached Denton.
   Invoking City policy, they told Denton that he could not proselytize within
   the Market perimeter, that he would be arrested if he continued proselytizing
   within the Market perimeter, and that he could continue his activities at any
   area directly outside the Market perimeter. Denton declined to relocate and
   left.
           Subsequently, Denton, through counsel, sent a demand letter to El
   Paso officials detailing the incident and requesting “written assurance . . .
   that El Paso will allow him to speak on public streets inside the Farmer’s




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                                     No. 20-50702


   Market and other events that are free and open to the public.” The City
   declined Denton’s demand, and this lawsuit followed. In his complaint,
   Denton alleged that the City’s policy wrongfully prevented him from
   proselytizing at the Market in violation of his constitutional rights, including
   his rights to free speech, free exercise of religion, and due process. Denton
   also moved for a preliminary injunction to restrain the City and its agents
   from prohibiting religious proselytizing at the Market. After holding a
   hearing and in a comprehensive order, the district court denied Denton’s
   motion for a preliminary injunction. Denton v. City of El Paso, 

475 F. Supp.
3d 620

, 646 (W.D. Tex. 2020). Denton timely filed this interlocutory appeal.
                                          II.
          “In order to obtain a preliminary injunction, a movant must
   demonstrate (1) a substantial likelihood of success on the merits; (2) a
   substantial threat of irreparable harm if the injunction does not issue; (3) that
   the threatened injury outweighs any harm that will result if the injunction is
   granted; and (4) that the grant of an injunction is in the public interest.”
   Moore v. Brown, 

868 F.3d 398

, 402–03 (5th Cir. 2017).
          This court reviews the denial of a preliminary injunction for abuse of
   discretion. Robinson v. Hunt Cnty., 

921 F.3d 440

, 451 (5th Cir. 2019).
   “Factual findings are reviewed for clear error, while legal conclusions are
   reviewed de novo.” Moore, 868 F.3d at 403. “Under the clearly erroneous
   standard, this court upholds findings by the district court that are plausible
   in light of the record as a whole.” Id. “[A] district court clearly errs in its
   factual findings if ‘an appellate court is left with the definite and firm
   conviction that a mistake has been committed.’” Opulent Life Church v. City
   of Holly Springs, 

697 F.3d 279

, 296 (5th Cir. 2012) (quoting Inwood Labs., Inc.
   v. Ives Labs., Inc., 

456 U.S. 844

, 855 (1982)).




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                                         A.
          We first turn to Denton’s likelihood of success on the merits of his
   free speech claim. Denton seeks to speak at the Market, which takes place
   on El Paso’s public streets and which the parties agree is a traditional public
   forum. The level of scrutiny with which we review a restriction on speech in
   a traditional public forum turns on whether the restriction is content based
   or content neutral.
          A restriction is content neutral if it “serves purposes unrelated to the
   content of expression . . . even if it has an incidental effect on some speakers
   or messages but not others.” Ward v. Rock Against Racism, 

491 U.S. 781

, 791
   (1989). In contrast, a restriction is content based if it is “based on ‘the
   specific motivating ideology or the opinion or perspective of the speaker’”
   or “prohibit[s] . . . public discussion of an entire topic.” Reed v. Town of
   Gilbert, 

576 U.S. 155

, 168–69 (2015) (first quoting Rosenberger v. Rector &
   Visitors of Univ. of Va., 

515 U.S. 819

, 829 (1995); then quoting Consol. Edison
   Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 

447 U.S. 530

, 537 (1980)).
          “[T]he crucial first step in the content-neutrality analysis” is
   determining whether the law is content neutral or content based on its face.
   

Id. at 165

. A restriction on speech is content based “on its face” if it
   “defin[es] regulated speech by particular subject matter.” 

Id. at 163

. When
   a restriction is content based on its face, the government’s purpose is
   irrelevant. 

Id. at 166

.
          If the restriction is content based, it receives strict scrutiny: the
   government “must show that its [restriction] is necessary to serve a
   compelling state interest and that it is narrowly drawn to achieve that end.”
   Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 

460 U.S. 37

, 45 (1983).
   Narrow tailoring requires that the regulation be the least restrictive means
   available to the government. United States v. Playboy Ent. Grp., Inc., 

529 U.S.

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                                         No. 20-50702


   803, 813 (2000). On the other hand, if the restriction is content neutral, it
   receives intermediate scrutiny: the government must show that its restriction
   is “narrowly tailored to serve a significant government interest, and leave
   open ample alternative channels of communication.” Perry, 

460 U.S. at 45

;
   see also Moore, 868 F.3d at 403–04.
           Whether the restriction on speech—here, the City’s policy 1—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.” Denton,
   475 F. Supp. 3d at 639. 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. Opulent
   Life Church, 697 F.3d at 296; Moore, 868 F.3d at 403.
           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




           1
            The policy at issue in this case has not been formally enacted as a City ordinance.
   An El Paso ordinance does, however, authorize the city manager or a designee “to create
   an outdoor artist market permitting vendors to sell handmade or hand assembled
   merchandise” and “to establish artist market procedures . . . for its operation.” El Paso,
   Tex. Mun. Code § 2.40.100(B), available at https://bit.ly/2T55H4T (last visited May
   24, 2021). The ordinance also authorizes MCAD “to temporarily close the public right-
   of-way in the Union Plaza Area for the purpose of any artist market.” Id. § 2.40.100(D)(3).




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                                     No. 20-50702


   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 Un-
   disputed Facts and its letter to Denton, the district court clearly erred in find-
   ing that the City’s policy is merely one that prohibits potentially disruptive
   speech. Denton, 475 F. Supp. 3d at 639. 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. Reed, 576 U.S. at 163. Moreover, the City’s policy is content based
   on its face because it “defin[es] regulated speech by particular subject mat-
   ter”—religious proselytization. Id. The City’s “innocuous justification” of
   its policy—that it is merely trying to prevent disruptive speakers in the Mar-
   ket—does not save the policy. Id. at 166. When a restriction is content based
   on its face, the government’s purpose is irrelevant. Id.
          Because its policy is content based, El Paso “must show that its [re-
   striction] is necessary to serve a compelling state interest and that it is nar-
   rowly drawn to achieve that end.” Perry, 

460 U.S. at 45

. Narrow tailoring




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                                     No. 20-50702


   requires that the regulation be the least restrictive means available to the gov-
   ernment. Playboy Ent., 529 U.S. at 813. 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. See, e.g., Schneider
   v. Town of Irvington, 

308 U.S. 147

, 160–65 (1939) (invalidating a ban on hand-
   bill distribution on public streets because laws penalizing littering and fraud
   were less intrusive means of serving the government’s interests); Martin v.
   City of Struthers, 

319 U.S. 141

, 145–46 (1943) (invalidating a ban on door-to-
   door handbill distribution because laws penalizing trespass and fraudulent so-
   licitation were less intrusive means of serving the government’s interest);
   City of Cincinnati v. Discovery Network, Inc., 

507 U.S. 410

, 430 (1993) (invali-
   dating an ordinance prohibiting newsracks dispensing commercial handbills
   that amounted to a “sweeping ban that bars from its sidewalks a whole class
   of constitutionally protected speech”); Citizens United v. Fed. Election
   Comm’n, 

558 U.S. 310

, 337 (2010) (invaliding an “outright ban” on specific
   types of corporate political speech); Ward, 

491 U.S. at 799 n.7

 (upholding a
   sound amplification ordinance because it was not a ban on “all concerts, or
   even all rock concerts, but instead focuse[d] on the source of the evils the city
   s[ought] to eliminate—excessive and inadequate sound amplification—and
   eliminate[d] them without at the same time banning or significantly restrict-
   ing a substantial quantity of speech that does not create the same evils”); cf.
   Ali v. Stephens, 

822 F.3d 776

, 786–94 (5th Cir. 2016) (holding that a correc-
   tional facility’s outright ban on four-inch beards violated RLUIPA because it
   was not the least restrictive means of furthering the government’s



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                                    No. 20-50702


   compelling interest). For that reason, the City’s policy is likely not narrowly
   tailored. See Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 

452 U.S.
640

, 662 (1981) (Brennan, J., concurring in part and dissenting in part) (ar-
   guing that the State’s wholesale prohibition on literature distribution outside
   of state fair booths was not narrowly tailored because the State, to advance
   its asserted interest of preventing disorder, could have prohibited distribu-
   tion at just entrance and exit points or limited the number of persons distrib-
   uting an organization’s literature).
          In sum, Denton has demonstrated a substantial likelihood of success
   on the merits of his free speech claim. See Moore, 868 F.3d at 402–03.
                                          B.
          We now turn to the remaining three preliminary injunction
   requirements: Denton must show “a substantial threat of irreparable harm if
   the injunction does not issue,” “that the threatened injury outweighs any
   harm that will result if the injunction is granted,” and “that the grant of an
   injunction is in the public interest.” Moore, 868 F.3d at 402–03.
          First, Denton has satisfied the irreparable harm requirement because
   “[t]he loss of First Amendment freedoms, for even minimal periods of time,
   unquestionably constitutes irreparable injury.” Opulent Life Church, 697
   F.3d at 295 (quoting Elrod v. Burns, 

427 U.S. 347

, 373 (1976)).
          Next, because we conclude that Denton’s harm is irreparable, El Paso
   “would need to present powerful evidence of harm to its interests to
   prevent” Denton from showing that the threatened injury outweighs any
   harm El Paso would suffer as a result of the injunction. 

Id. at 297

. El Paso
   does not present such evidence. It argues that it has met its burden through
   the MCAD Assistant Director’s affidavit that “recites past instances of
   disruptive conduct having caused problems at the market.” But vague
   assertions of “maintaining public safety” and “preserving the character of a




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                                    No. 20-50702


   public space for the enjoyment of its citizens” do not constitute “powerful
   evidence of harm to its interests.” 

Id.

          Finally, Denton has satisfied the fourth preliminary injunction
   requirement because “[i]njunctions protecting First Amendment freedoms
   are always in the public interest.” 

Id. at 298

 (quoting Christian Legal Soc’y v.
   Walker, 

453 F.3d 853

, 859 (7th Cir. 2006)).
                                         III.
          Because Denton has demonstrated that he is entitled to immediate
   injunctive relief based on his free speech claim, we do not reach his free
   exercise or due process claims. We VACATE the judgment of the district
   court denying Denton’s request for a preliminary injunction and REMAND
   for entry of relief.




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