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finding no constitutional defect in a similar city ordinance
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EP-20-CV-85-KC
07-28-2020
Ryan DENTON, Plaintiff, v. CITY OF EL PASO, TEXAS, Defendant.
Nathan W. Kellum, Center for Religious Expression, Memphis, TN, Michael D. Paul, Michael D. Paul, PLLC, San Antonio, TX, for Plaintiff. Evan Daine Reed, Maria Guadalupe Martinez, El Paso City Attorney's Office, El Paso, TX, for Defendant.
Nathan W. Kellum, Center for Religious Expression, Memphis, TN, Michael D. Paul, Michael D. Paul, PLLC, San Antonio, TX, for Plaintiff.
Evan Daine Reed, Maria Guadalupe Martinez, El Paso City Attorney's Office, El Paso, TX, for Defendant.
ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE On this day, the Court considered Plaintiff Ryan Denton's Corrected Motion for Preliminary Injunction (the "Motion"), ECF No. 6. For the reasons set forth below, the Motion is DENIED .
I. BACKGROUND
On March 27, 2020, Plaintiff filed this lawsuit against the City of El Paso, Texas (the "City"), complaining that the City's policies have wrongfully prevented him from engaging in religious proselytization at the weekly El Paso Art and Farmers Market (the "Market"), in violation of his First and Fourteenth Amendment rights. Compl. ¶¶ 1, 3, 83–92, ECF No. 1. The City has filed an Answer, ECF No. 9.
On April 3, 2020, Plaintiff filed the instant Motion, seeking a preliminary injunction to restrain the City and its agents from prohibiting religious proselytization during the Market. Mot. 1. The City filed a Response, ECF No. 11, and Plaintiff filed a Reply, ECF No. 12. On July 7, 2020, the Court held a Hearing on the Motion (the "Hearing"). See Audio Recording of Hr'g, ECF No. 23. Plaintiff did not appear or testify at the Hearing, and Plaintiff's counsel notified the Court that he would rely on the written submissions in support of the Motion. Id. The City presented two employees of the City's Museums and Cultural Affairs Department ("MCAD") as witnesses, only one of whom testified. Id.
The following facts are drawn together from the pleadings, the affidavits and other documentary evidence submitted by the parties, the testimony adduced at the Hearing, and the stipulations of fact made in two of the parties' joint filings, see Joint Report of the Parties' Meet and Confer (the "Joint Report"), ECF No. 15; Joint Report of the Parties' Planning Meeting (the "RPPM"), ECF No. 20. See Jackson Women's Health Org. v. Currier , 760 F.3d 448, 451 (5th Cir. 2014) (quoting Sierra Club v. FDIC , 992 F.2d 545, 551 (5th Cir. 1993) ) ("[T]he district court may employ informal procedures and rely on generally inadmissible evidence [to adjudicate a motion for a preliminary injunction.]").
1. The August 24, 2019, Incident at the Market
Plaintiff is an evangelical Christian who regularly preaches and proselytizes in public spaces. Compl. ¶¶ 10–16. On August 24, 2019, he went to the Market and found a spot out of the way of vendors and the flow of pedestrian traffic, at the intersection of Western Street and Anthony Street. Id. ¶¶ 35–43. Plaintiff alleges that he then began to preach in a voice only slightly louder than an ordinary conversational volume. Id. ¶ 44. Plaintiff further alleges that, in less than one minute, he was approached by Ismael Acosta, an MCAD employee, together with an unnamed law enforcement officer with the El Paso County Sheriff's Department. Id. ¶¶ 45–46.
During the Hearing, Acosta recounted the incident somewhat differently. Acosta testified that Plaintiff had just arrived and begun to set up a "pedestal" across from the MCAD informational booth when Acosta recognized Plaintiff. Audio Recording of Hr'g. Acosta testified that he knew of Plaintiff from videos that he had seen on social media of Plaintiff "disrupt[ing] other events" at the University of Texas at El Paso campus and elsewhere. Id. Acosta testified that, before Plaintiff even began to speak, he approached Plaintiff and told him that he would have to leave the Market premises if he intended to proselytize. Id. While the parties dispute whether Plaintiff had yet begun to speak, it is undisputed that Acosta approached Plaintiff shortly after he arrived at the Market and told him that he could not proselytize within the Market's premises. Id. ; Mot. Ex. A ("Denton Aff.") ¶ 37, ECF No. 4-4; Compl. ¶ 46; Ans. ¶¶ 45, 58; RPPM 3.
Acosta and Plaintiff debated whether the property—which consists of public roadways and a park—was technically public or private during the time that it was reserved for use by the Market. Compl. ¶¶ 47–55. During the course of their discussion, Acosta and the law enforcement officer told Plaintiff that he would be arrested "if he did not refrain from proselytizing in any part of Union Plaza Area." Id. ¶¶ 56, 59; Denton Aff. ¶¶ 47, 50. Acosta further told Plaintiff "that [he] could speak as long as [he] did it outside of the Union Plaza Area." Denton Aff. ¶ 51; see also Ans. ¶ 58 ("Plaintiff was informed he could move to virtually any area directly outside of the events footprint to continue his activity."); RPPM 3 ("The City did not prohibit the Plaintiff from utilizing alternative avenues immediately outside of the event space for him to freely engage in his protected speech."). Acosta offered to retrieve a copy of an ordinance supporting his position that the property was private during the Market, if Plaintiff would wait for an hour and a half. Compl. ¶¶ 46, 49. Plaintiff declined and left the area. Id. ¶ 53.
The City provided a map as demonstrative evidence of where Acosta encountered Plaintiff and where Acosta told Plaintiff he could move in order to freely proselytize. Resp. Ex. 2 ("Map"), ECF No. 11. Among the locations marked "demonstrators allowed to set up" is the intersection of Anthony Street and West San Antonio Avenue, which forms the southwest corner of the Market footprint and is one block to the south of where Plaintiff intended to proselytize when he was confronted by Acosta. See id.
2. Correspondence with the City
Approximately three months later, Plaintiff sent a letter, through his attorney, to the Mayor of El Paso, the El Paso City Attorney, and the El Paso County Sheriff's Department. Compl. ¶ 56. The letter recounted the August 24 incident, alleged that the City unconstitutionally expelled Plaintiff from the Market, and sought assurances that the City would not prevent him from proselytizing at the Market in the future. Mot. Ex. E ("November 15, 2019, Letter"), ECF No. 4-4. After a series of delays and follow-ups, the City responded with a letter, signed by Assistant City Attorney Evan Reed, on February 17, 2020. Denton Aff. ¶¶ 57–64. The City's letter asserted that Acosta had properly applied municipal policy and that Plaintiff would again be excluded from the Market if he returned to preach. Mot. Ex. H ("February 17, 2020, Letter"), ECF No. 4-4. The City provided the following characterization of its policy:
Plaintiff has not sought to return to the Market since the incident, and the Market is indefinitely closed due to the COVID-19 pandemic. Resp. 10.
These Farmers Markets are pre-planned, permit required, ordinance authorized events that take place on certain public streets during certain specified times. Permit based events, such as the Farmers Market have boundaries and footprints that are controlled by the organizer during the event. While the event remains open to the public, the organizer may control access and activity within that footprint during the event, in order to ensure the event is not disrupted. Accordingly, the City 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. This policy is not targeted towards the content of the speech, it is targeted toward preventing disruptive conduct.
Id.
3. The policy
The policy that Plaintiff refers to throughout his Complaint, and that Assistant City Attorney Reed refers to in the February 17, 2020, Letter, has not been formally enacted as a City ordinance. The parties dispute what the policy entails, and each party has submitted evidence that is probative of its content.
An El Paso City ordinance does authorize the city manager or designee—presumably MCAD and its employees—to "create" the Market and "establish artist market procedures ... for its operation." Mot. Ex. B ("City Ordinance") § 2.40.100(B), ECF No. 4-4. The City Ordinance also allows the manager or designee "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).
In addition to the February 17, 2020, Letter, Plaintiff also provided an MCAD-produced document entitled "About the Downtown Artist and Farmers Market." Mot. Ex. D ("About the Market"), ECF No. 4-4. Under the sub-heading of "Organizations," the document states: "We encourage organizations to participate in the [Market] to promote local events and share information with the community. Non-profit organizations can apply to participate, free of cost. The [Market] is NOT a venue for fundraising, political campaigning, or religious proselytizing." Id. at 8. The document further states that "[o]rganizations may not approach or shout to customers passing by and information be only be [sic] distributed at the designated booth space." Id.
Elsewhere, the "About the Market" document notes that the City permits street musicians—"buskers"—who successfully audition to perform during the Market. Id. at 8–9. Buskers must "[p]erform without any amplification," are "required to move locations throughout the market every 30 minutes," and "[c]an be moved at the discretion of the Market Coordinator." Id. at 9.
During the Hearing, the City called the Court's attention to one additional provision in the "About the Market" document. Audio Recording of Hr'g. Under the sub-heading of "Market Operations," the document states that "[v]endors will conduct themselves courteously to all visitors, customers, fellow vendors and Market staff. Vendors may not verbally call attention to their space by calling out beyond the borders of their space. Violations of Market Vendor Guidelines may result in suspension or revocation of [permission to participate in the Market]." About the Market 10–11.
The City also submits the Affidavit of Benjamin E. Fyffe, the Assistant Director of MCAD. Resp. Ex. 1 ("Fyffe Aff."). Fyffe describes the relevant policy:
In order to manage pedestrian traffic flow and also to make sure that permitted vendors are able to engage with customers easily (without their vending areas being blocked, or having to have to shout over someone), any group/individual who has not prearranged to have space at the Market is asked to move outside of Market footprint and allowed to set up at any of the entry points to the area.
Id. at 1.
Fyffe avers that this policy has been applied to a diverse array of individuals and groups in the past, including "pro-life protestors, vegan protestors, pro-choice protestors, roving theatre troupes, politicians campaigning, death penalty protestors, environmental protestors, and marketers for offsite businesses or services." Id. Fyffe provides two rationales for this policy: 1) preventing disruption of Market commerce and 2) ensuring safety. Id. "[U]nscheduled" groups and individuals have, in the past, "blocked access to vendors' tents" and "been loud or unruly," resulting in reduced sales. Id. Furthermore, "[m]arket spaces for vendors and scheduled performances are also carefully and deliberately placed to allow pedestrian foot traffic and wide enough space for emergency vehicles. Unscheduled/non-approved groups or individuals disrupt that flow and cause operational problems for the already crowded market." Id.
Finally, the City's admissions and the parties' factual stipulations also help to define the scope of the policy. The City "admits ... that fundraising, political campaigning and religious speech are some of the activities prohibited within the markets footprint." Ans. ¶ 34. The City also "admits ... that it does not allow non-farmers market related activity, such as public speech or literature distribution, on the farmers market footprint, during the farmers market event." Id. ¶ 65. Additionally, the parties jointly stipulated as follows:
[T]he City of El Paso maintains a policy prohibiting First Amendment activities outside of booths that can cause a disruption inside the Market footprint, regardless of content, and requires such expression go outside the Market perimeter during the Market's operating times. In its stated description of the policy, the City of El Paso lists "fundraising," "political campaigning," and "religious proselytizing" as First Amendment activities that are barred from the Market, and such speech is barred from booths as well.
Joint Report 1; see also RPPM 3 (stipulating that "El Paso policy prohibits First Amendment activities outside of booths at the Market," and that "El Paso rules list ‘fundraising,’ ‘political campaigning,’ and ‘religious proselytizing’ as First Amendment activities that are barred from the Market.").
II. DISCUSSION
A. Standard
"A preliminary injunction is an ‘extraordinary remedy.’ " Google, Inc. v. Hood , 822 F.3d 212, 220 (5th Cir. 2016) (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp. , 328 F.3d 192, 196 (5th Cir. 2003) ); Holland Am. Ins. Co. v. Succession of Roy , 777 F.2d 992, 997 (5th Cir. 1985) ("Injunctive relief is an extraordinary and drastic remedy, not to be granted routinely."). A preliminary injunction should not be granted unless the movant has "clearly carried the burden of persuasion" as to the following four elements:
(1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.
Hood , 822 F.3d at 220 ; accord Planned Parenthood of Gulf Coast, Inc. v. Gee , 862 F.3d 445, 457 (5th Cir. 2017).
In the context of a First Amendment challenge to a state or local policy, "when considering the likelihood of success, the district court should [ ] inquire[ ] whether there is a sufficient likelihood the [state or municipality] will ultimately fail to prove its regulation constitutional." Byrum v. Landreth , 566 F.3d 442, 446 (5th Cir. 2009) (citing Ashcroft v. ACLU , 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) ). Moreover, in the First Amendment context, the other three elements ordinarily rise and fall together with Plaintiff's likelihood of success on the merits. See Opulent Life Church v. City of Holly Springs , 697 F.3d 279, 295–98 (5th Cir. 2012). "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. at 295 (quoting Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ). And, a municipality "would need to present powerful evidence of harm to its interests" to show that the potential negative effects of an injunction would outweigh the infringement of a plaintiff's First Amendment rights. Id. at 297. Finally, "injunctions 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) ).
Even so, "invocation of the First Amendment cannot substitute for the presence of an imminent, non-speculative irreparable injury." Hood , 822 F.3d at 228. That is, "[a] preliminary injunction is not appropriate ... unless the party seeking it can demonstrate that First Amendment interests are either threatened or in fact being impaired at the time relief is sought." Id. (quoting Nat'l Treasury Emp. Union v. United States , 927 F.2d 1253, 1254 (D.C. Cir. 1991) ) (citations and quotation marks omitted).
B. Analysis
Plaintiff argues that he is likely to succeed on the merits of each of his three constitutional claims: free speech, due process, and free exercise of religion. Mot. 4–14. Plaintiff further argues that he faces an imminent threat of irreparable injury, because he will be excluded from the Market when it reopens. Id. at 14–15. He argues that this injury outweighs any harm to the City that will arise from an injunction, and that an injunction would serve the public interest. Id. at 15.
1. Likelihood of success on the merits: free speech
The Court first considers whether Plaintiff has made a clear showing that he is likely to succeed on the merits, taking each of Plaintiff's constitutional claims in turn. See Hood , 822 F.3d at 220. Plaintiff's first claim is that the policy violates his First Amendment right to freedom of speech.
A municipal policy does not run afoul of the First Amendment simply because it has not been enacted as an official ordinance. Powell v. Ryan , 855 F.3d 899, 904 (8th Cir. 2017). Even entirely customary, unwritten policies are susceptible to constitutional challenges under the same standards applied to formally enacted laws and do not violate the First Amendment merely because they are unwritten. Id. (quoting Families Achieving Indep. & Respect v. Neb. Dep't of Social Servs. , 111 F.3d 1408, 1415 (8th Cir. 1997) ) ("So long as a policy is made explicit by well-established practice, the fact that a policy is not committed to writing does not of itself constitute a First Amendment violation."); Wells v. City & County of Denver , 257 F.3d 1132, 1150 (10th Cir. 2001) (quoting Lebron v. Nat'l R.R. Passenger Corp. , 69 F.3d 650, 658 (2d Cir. 1995) ) ("The fact that a policy is not committed to writing does not of itself constitute a First Amendment violation."); see also Cook v. Hudson , 511 F.2d 744, 744–45 (5th Cir. 1975) (analyzing a First Amendment challenge to an "unwritten" policy).
The breadth of the constitutional protection accorded to speech principally depends on the forum in which it is spoken. Fairchild v. Liberty Indep. Sch. Dist. , 597 F.3d 747, 757–58 (5th Cir. 2010). Public forums include sidewalks, parks, and other places traditionally used for public assembly and speech, as well as places officially designated for public speech. Id. "Traditional public fora ‘are defined by the objective characteristics of the property.’ " Brister v. Faulkner , 214 F.3d 675, 681 (5th Cir. 2000) (quoting Ark. Educ. Television Comm'n v. Forbes , 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) ). A municipality cannot pass a law to render a traditionally public forum non-public. United States v. Grace , 461 U.S. 171, 180, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (quoting United States Postal Serv. v. Greenburgh Civic Ass'ns , 453 U.S. 114, 133, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981) ) ("Congress ... may not by its own ipse dixit destroy the ‘public forum’ status of streets and parks which have historically been public forums.").
As a threshold matter, courts must also consider the nature of the speech at issue. Commercial speech, for instance, is "less valuable" and subject to different standards. Pruett v. Harris Cty. Bail Bond Bd. , 499 F.3d 403, 409 (5th Cir. 2007). But, "private religious speech ... is as fully protected under the Free Speech Clause as secular private expression." Capitol Square Review & Advisory Bd. v. Pinette , 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). First Amendment speech protection extends even to "religious proselytizing" and "acts of worship." Id. Therefore, Plaintiff's speech is fully protected, and the level of scrutiny with which the Court assesses any restrictions that the City has placed on that speech will depend upon the forum in which Plaintiff speaks. See id.
In so-called limited public forums, which are set aside "for public expression of particular kinds or by particular groups," restrictions are permissible so long as they do not discriminate on the basis of viewpoint and are reasonable in light of the forum's limited purpose. Id. at 758, 115 S.Ct. 2440 (quoting Chiu v. Plano Indep. Sch. Dist. , 260 F.3d 330, 345 (5th Cir. 2001) ). Non-public forums are "public property that is not by tradition or designation open for public communication." Chiu , 260 F.3d at 347 (citing Estiverne v. La. St. Bar Ass'n , 863 F.2d 371, 376 (5th Cir. 1989) ). As with limited public forums, the regulation of speech in non-public forums must be reasonable and viewpoint neutral. Perry Educ. Ass'n v. Perry Local Educs.' Ass'n , 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ; San Antonio Firefighters' Ass'n, Local 624 v. City of San Antonio , 404 F. Supp. 3d 1045, 1058 (W.D. Tex. 2019).
When a governmental entity regulates protected speech in a traditional public forum, their policies are subject to exacting scrutiny. Justice For All v. Faulkner , 410 F.3d 760, 765 (5th Cir. 2005) (citing Carey v. Brown , 447 U.S. 455, 461, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) ) ("Restrictions on speech in traditional public forums, such as streets and parks, receive the strictest scrutiny."). In conducting that scrutiny, the law discerns policies that are content-based from those that are content-neutral. Barr v. Am. Ass'n of Pol. Consultants, Inc. , ––– U.S. ––––, 140 S. Ct. 2335, 2345-47, 207 L.Ed.2d 784 (2020) ; Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ; Frisby v. Schultz , 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) ; Hous. Chronicle Publ'g Co. v. City of League City , 488 F.3d 613, 622 (5th Cir. 2007).
"[A] content-based regulation must be ‘necessary to serve a compelling state interest and ... narrowly drawn to achieve that end.’ " Hous. Chronicle Publ'g Co. , 488 F.3d at 622 (quoting Perry Educ. Ass'n v. Perry Local Educs.' Ass'n , 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ). In the context of content-based restrictions, narrow tailoring requires that the regulation be "the least restrictive alternative available to the government." Justice For All , 410 F.3d at 769 n.14 (citing United States v. Playboy Entm't Grp., Inc. , 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ). "It is rare that a regulation restricting speech because of its content will ever be permissible." Brown v. Entm't Merchs. Ass'n , 564 U.S. 786, 799, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) ; see also Am. Ass'n of Pol. Consultants , 140 S.Ct. at 2345-46 (quoting Police Dep't of Chicago v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ) ("Above ‘all else, the First Amendment means that government’ generally ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ").
"By contrast, content-neutral laws are subject to a lower level of scrutiny." Am. Ass'n of Pol. Consultants , 140 S.Ct. at 2346 (citing Reed v. Town of Gilbert , 576 U.S. 155, 163–64, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015) ). "[A] regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but [ ] it need not be the least restrictive or least intrusive means of doing so." Doe I v. Landry , 909 F.3d 99, 111 (5th Cir. 2018) (quoting Ward , 491 U.S. at 798, 109 S.Ct. 2746 ). Stated differently, "[t]o pass constitutional muster, a time, place, and manner regulation must be ‘content-neutral, ... narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’ " Encore Videos, Inc. v. City of San Antonio , 330 F.3d 288, 291 (5th Cir. 2003) (quoting Frisby , 487 U.S. at 481, 108 S.Ct. 2495 ). The Fifth Circuit has described this inquiry as a four-element test, requiring 1) content neutrality, 2) narrow tailoring, 3) a significant or substantial government interest, and 4) the ample availability of alternative channels of communication. Id. at 291–95.
a. Content neutrality
It is undisputed that the Market, which takes place on the City's public streets, is a traditional public forum. See Resp. 6; Grace , 461 U.S. at 180, 103 S.Ct. 1702 ; Brister , 214 F.3d at 681. To determine which level of heightened scrutiny applies, it is necessary to assess whether the policy is content-based or content-neutral. Am. Ass'n of Pol. Consultants , 140 S.Ct. at 2346-47.
"Deciding whether a particular regulation is content-based or content-neutral is not always a simple task." Fairchild , 597 F.3d at 761 n.49. "The principal inquiry in determining content-neutrality, in speech cases generally and in time, place, and manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Encore Videos , 330 F.3d at 292 (quoting Hill v. Colorado , 530 U.S. 703, 719, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) ). Even so, Supreme Court precedent stresses that "an innocuous justification cannot transform a facially content-based law into one that is content neutral." Reed , 576 U.S. at 166, 135 S.Ct. 2218. "A court must evaluate each question"—whether a law is content based on its face and whether the purpose and justification for the law are content based—"before it concludes that the law is content neutral and thus subject to a lower level of scrutiny." Id.
"[T]he crucial first step in the content-neutrality analysis[ is] determining whether the law is content neutral on its face." Id. at 165, 135 S.Ct. 2218. By insisting that the policy be analyzed "on its face," Reed requires the Court to look at what distinctions are drawn, without regard to why those distinctions are drawn. See id. at 165–66, 135 S.Ct. 2218. Stated differently, this initial inquiry eschews any consideration of the City's motivations for issuing the policy, id. at 165–66, 135 S.Ct. 2218, and focuses only on whether the policy "singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter," id. at 169, 135 S.Ct. 2218 ; accord Horton v. City of Houston , 179 F.3d 188, 193 (5th Cir. 1999) (quoting Turner Broad. Sys. v. FCC , 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ) ("Regulations that ‘by their terms distinguish favored speech from disfavored speech on the basis of ideas or views expressed are content based.’ "). Ordinarily, a policy will be deemed "content based if it require[s] ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred." McCullen v. Coakley , 573 U.S. 464, 479, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014) (quoting FCC v. League of Women Voters , 468 U.S. 364, 383, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) ).
Plaintiff argues that the policy at hand is a content-based prohibition on religious speech. Specifically, Plaintiff argues that the statement in the About the Market document that the Market is "NOT a venue for fundraising, political campaigning, or religious proselytizing," targets religious content, by singling out religious proselytizing from other forms of proselytization. See Mot. 8. The City responds that the About the Market document is only a part of the City's policy, and its mention of "fundraising, political campaigning, or religious proselytizing" is a non-exhaustive list of examples, intended to illustrate its content-neutral policy of prohibiting speech that is disruptive. See Resp. 4–7.
As an initial matter, unlike the formal town ordinance at issue in Reed , the About the Market document is not an enactment that comprehensively embodies the City's policy in this case. See Reed , 576 U.S. at 161, 135 S.Ct. 2218. The Court is mindful that "[it may] not rewrite a state law to conform it to constitutional requirements." Virginia v. Am. Booksellers Ass'n, Inc. , 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). But in this case, there is no formal law to rewrite. The City excluded Plaintiff from the Market on August 24, 2019, and avers that it will exclude him again in the future, on the basis of a somewhat more informal policy that exists across a number of collected materials. Thus, in conducting the first step of the Reed content neutrality analysis, the Court considers not only the About the Market document, but also the other evidence in the record that indicates whether the policy "draws distinctions based on the message a speaker conveys." See Reed , 576 U.S. at 163, 135 S.Ct. 2218.
Indeed, if the line in the About the Market document that refers to religious proselytizing were an encapsulation of the entire policy, it would seem not to apply to Plaintiff. That line appears under the sub-heading "Organizations" and provides standards for the issuance of permits to non-profit organizations that apply in advance to set up space at the Market. About the Market 8. Plaintiff has neither alleged nor evinced that he is the representative of a non-profit organization, and Plaintiff's counsel acknowledged during the Hearing that Plaintiff did not apply in advance to participate in the Market. Audio Recording of Hr'g. Taken in context, the reference to religious proselytizing in the About the Market document would not apply to exclude Plaintiff, a private individual who wishes to speak at the Market without applying for a booth in advance.
Taken together, this evidence reveals that the City's policy has two dimensions. First, any group or individual that wishes to set up at a fixed location at the Market in order to convey a message or sell a product must apply in advance and obtain a permit. About the Market 1, 8; Fyffe Aff. 1. Second, the City requires that even permitted vendors or speakers must sell their wares or convey their message passively, without affirmatively calling out to Market-goers. About the Market 8, 10–11; Fyffe Aff. 1. Unpermitted speakers who arrive at the Market must move just beyond the boundary of the Market footprint, where they are subject to neither requirement and may freely solicit and call out to passersby. Fyffe Aff. 1; Ans. ¶ 58; Joint Report 1.
Those who wish to perform at the Market as "buskers" are also subject to regulations: they must audition in advance, they must move every thirty minutes, and they may not use amplification. About the Market 8–9. Denton has not alleged that he is a musician or other street performer, and he did not audition or otherwise apply in advance for space at the Market.
While the City "admits ... that fundraising, political campaigning and religious speech are some of the activities prohibited within the markets footprint," Ans. ¶ 34, the policy has been applied to exclude a number of other groups and individuals as well. Fyffe Aff. 1 (including "pro-life protestors, vegan protestors, pro-choice protestors, roving theatre troupes, politicians campaigning, death penalty protestors, environmental protestors, and marketers for offsite businesses or services"). Far from singling out and distinguishing certain types of speech because of their content, the City's policy applies to political, social, religious, commercial, and entertaining speech alike. Id. Indeed, the parties have stipulated that the policy prohibits potentially disruptive speech, "regardless of content." Joint Report 1.
Certainly, the groups and individuals that have been excluded from the Market are drawn together by a common thread. But what they have in common is not the content of their speech. It is the manner of their speech. Protesting, trouping, campaigning, fundraising, proselytizing, and marketing all involve the proactive solicitation of an audience—whether that be a potential donor, a potential customer, or a potential convert. The City does not permit vendors—irrespective of what they are selling—to call out to passersby in order to hawk their wares. About the Market 10–11 ("Vendors may not verbally call attention to their space by calling out beyond the borders of their space"). Nor does the City allow permitted non-profit groups—irrespective of their mission or message—to "approach or shout to customers passing by" or distribute information outside of "the designated booth space." Id. The evidence indicates that those same standards have been applied to groups and individuals that appear at the Market in order to convey a message, whatever that message may be. Fyffe Aff. 1; Ans. ¶ 58; Joint Report 1.
And, those same standards were applied to Plaintiff on August 24, 2019. As Acosta testified during the hearing, he saw Plaintiff setting up a "pedestal" and recognized Plaintiff from videos he had seen of him "disrupt[ing] other events." Audio Recording of Hr'g. Proselytizing from a pedestal in a disruptive manner is violative of the City's policy, not because it imparts a religious message, but because it "call[s] out" to its audience. About the Market 10; see also Fyffe Aff. 1. Indeed, Plaintiff himself avers that he desires to "proselytize" at the Market, in order to "draw people in." Compl. ¶¶ 11, 16, 21. The City has applied its policy evenhandedly to environmental protestors and politicians who seek to proselytize others to their respective secular causes, just as the policy was applied to Plaintiff's attempt to proselytize others to his religious one. See Fyffe Aff. 1. Because it does not "single[ ] out specific subject matter for differential treatment," the policy is content neutral. See Reed , 576 U.S. at 169, 135 S.Ct. 2218
The cases referenced by Plaintiff are inapposite. In Reed , a church and its pastor were cited for violating a municipal sign code after they placed signs around town advertising the time and location of their church services. 576 U.S. at 161, 135 S.Ct. 2218. The sign code divided signs into some two dozen categories, including temporary directional signs, political signs, and ideological signs. Id. at 159–61, 164, 135 S.Ct. 2218. The categories were defined by their communicative content, and every subject fell into one category or another: ideological signs were defined to encompass signs that "communicat[ed] a message or ideas that do not fit within the Code's other categories." Id. at 164, 135 S.Ct. 2218. The code was content based because the determination of which regulations would pertain to any given sign "depend[ed] entirely on the communicative content of the sign." Id. "Ideological messages [we]re given more favorable treatment than messages concerning a political candidate, which [we]re themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination." Id. at 169, 135 S.Ct. 2218.
The critical distinction is that in Reed , unlike here, the applicable regulations varied based on the content of the signs. Id. at 161, 135 S.Ct. 2218. It is true that the Fyffe Affidavit and the About the Market document both set out examples of types of speech that are excluded from the Market. But, neither the Fyffe Affidavit nor the About the Market document show that the content of the speech informs the decision to require the speakers to relocate beyond the Market's footprint. Quite the opposite. Whereas in Reed , different categories of speech were carefully parsed and assigned different rules depending on their content; here, a diverse array of examples of speech that could disrupt the Market are all listed together and given the same treatment: relocation to the Market's perimeter. See id. at 159–61, 169, 135 S.Ct. 2218.
Plaintiff also references Capitol Square Review & Advisory Bd. v. Pinette , 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995), in which the local authority "concede[d]—indeed it [was] the essence of their case—that the[y] rejected the display precisely because its content was religious." Id. at 761, 115 S.Ct. 2440. The only justification for the policy was content based: "the State's interest in avoiding official endorsement of Christianity." Id. Here, by contrast, the City denies that the religious content of Plaintiff's speech informed its decision to exclude him from the Market, and the Court finds that assertion credible. The City does not express a concern that it will be perceived as endorsing Christianity. The City's justifications for its policy are not content based; they are grounded in ensuring public safety and providing for the orderly operation of the Market.
Plaintiff also relies on two decisions from other Courts of Appeals, which are similarly distinguishable. In McGlone v. Metro. Gov't of Nashville , 749 F. App'x 402 (6th Cir. 2018), as in Pinette , the municipality offered an explicitly content-based rationale for its policy. Id. at 406 ("Nashville's explanation leaves no doubt that but for the anti-homosexuality message that [two preachers] were advancing as they stood on the sidewalk, they would not have been excluded."). Next, in Orin v. Barclay , 272 F.3d 1207, 1215 (9th Cir. 2001), a university's dean told student-protestors that they could continue with an un-permitted demonstration on the campus quad as long as they abided by three conditions. Id. at 1212. The Ninth Circuit found the third condition, that they not "engage in religious worship or instruction," to be content based. Id. at 1215. Just as in Reed , this condition expressly tied the permission to speak to the content of the speech. The condition in Orin is very different from the City's policy in this case, which applies broadly to many different types of speech, rather than singling out just one for exclusion.
Finally, Plaintiff references Mahgerefteh v. City of Torrance , 324 F. Supp. 3d 1121 (C.D. Cal. 2018), in which the plaintiffs—veganism advocates—sought to engage in expressive conduct at a farmers market. Id. at 1126. There, the district court held that a municipal policy singling out "initiative or referendum petition[s]" and "advertising brochures" and banning them from the market was a content-based restriction on speech. Id. at 1135–36. The court explained: "Petitions relating to initiatives or referendums are prohibited, but petitions relating to any other subject are not. Similarly, a patron could circulate an informational brochure, as long as it is not an advertisement." Id. at 1135. In Mahgerefteh , one would be permitted to circulate a religious petition, whether they did so aggressively or passively, but they would not be permitted to circulate a political referendum petition, no matter the manner in which they circulated it. See id. Here, by contrast, whether one's speech is political or religious or something else, it is prohibited if the speaker disruptively calls out to other Market-goers and permitted if he does not.
Elsewhere in the Motion, Plaintiff cites Heffron v. Int'l Soc. for Krishna Consciousness, Inc. , 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), which provides a much better analogue for the policy at hand. Heffron involved a challenge to a rule that during the Minnesota Fair, "[n]o person or organization, whether commercial or charitable, is permitted to [distribute or sell written materials or to solicit funds] except from a booth rented for those purposes." Id. at 649, 101 S.Ct. 2559. The Court upheld the policy over the challenge of "religious organizations" who sought to "spread their views, whether by soliciting funds or by distributing literature." Id. at 652–53, 101 S.Ct. 2559. Finding that the policy was content neutral, the Court noted that religious speakers were not singled out by the policy, and that they do not enjoy rights "to communicate, distribute, and solicit on the fairgrounds superior to those of other organizations having social, political, or other ideological messages to proselytize." Id. at 648–49, 652–53, 101 S.Ct. 2559. Here, too, Plaintiff's religious proselytizing receives neither preferential nor disfavored treatment. The City's policy applies equally to those "having social, political, or other ideological messages to proselytize." See id. Because the evidence before the Court demonstrates that the content of a speaker's message has no bearing on the enforcement of the City's policy, the policy is content neutral "on its face." Reed , 576 U.S. at 156, 135 S.Ct. 2218 ; McCullen , 573 U.S. at 479, 134 S.Ct. 2518.
Even so, the Court must separately evaluate "whether the purpose and justification for the law are content based." Reed , 576 U.S. at 156, 135 S.Ct. 2218. Plaintiff has submitted no evidence that the City disfavors Christianity or religious speech or that it has adopted the policy in order to target evangelical Christians or other religious speakers from the market. Plaintiff references, with little explanation, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). In that case, while the ordinance at issue was content-neutral on its face, there was strong evidence that the law was passed in order to discriminate against the practice of the Santeria faith. See id. at 534–35, 113 S.Ct. 2217. In the course of passing the ordinance, the city council had published a statement that "certain religions may propose to engage in practices which are inconsistent with public morals, peace, or safety." Id. This evidence, together with the observation that "almost the only conduct subject to [the ordinance] is the religious exercise of Santeria church members," led the Court to conclude that the ostensibly content-neutral policy was content-based. Id. at 535–36, 113 S.Ct. 2217. Here, by contrast, there is no evidence that MCAD or other City policymakers harbor any discriminatory animus against Plaintiff's religion or any other. Moreover, there is no evidence that "almost the only conduct subject to" the policy at issue is religious speech. See id. On the contrary, the record reflects that the policy has been widely applied to exclude people engaged in a wide variety of secular speech as well. See Fyffe Aff. 1.
In sum, considering the evidence in the record thus far, Plaintiff has not carried his burden to demonstrate a clear likelihood that the City's policy is content based. Instead, the evidence strongly suggests that the policy is content neutral.
b. Significant or substantial government interest
Plaintiff argues that even if the policy is content neutral, it still fails on the narrow tailoring and ample alternatives prongs of the time, place, and manner analysis. Mot. 9–13. Plaintiff also indirectly challenges whether the City's policy serves a significant or substantial government interest. See id. Because the question of whether the City has asserted a valid interest is logically antecedent to the question of whether the City's policy is narrowly tailored to that interest, the Court considers the interest prong first.
Whatever interest a governmental entity asserts, it "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broad. Sys., Inc. v. FCC , 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (collecting cases). Public safety is not only a substantial government interest, but a compelling one "at the heart of government's function." Hous. Chronicle Publ'g , 488 F.3d at 622 (citing Int'l Soc'y for Krishna Consciousness v. City of Baton Rouge , 876 F.2d 494, 496 (5th Cir. 1989) ). And, the Supreme Court has long recognized that the reduction of noise is a substantial government interest, not only in residential neighborhoods, but also in traditional public fora. Ward , 491 U.S. at 796–97, 109 S.Ct. 2746 (collecting cases) ("[T]he government may act to protect even such traditional public forums as city streets and parks from excessive noise.").
Additionally, a number of federal courts have held that economic development or revitalization are substantial local government interests. See, e.g., McLaughlin v. City of Lowell , 140 F. Supp. 3d 177, 188–89 (D. Mass. 2015) ; Friendly House v. Whiting , 846 F. Supp. 2d 1053, 1058 (D. Ariz. 2012) ; Chad v. City of Fort Lauderdale , 861 F. Supp. 1057, 1063 (S.D. Fla. 1994) (citing Resort Dev. Int'l, Inc. v. City of Panama City Beach , 636 F. Supp. 1078, 1083 (N.D. Fla. 1986) ); Pottinger v. City of Miami , 810 F. Supp. 1551, 1581 (S.D. Fla. 1992) ; cf. Edwards v. District of Columbia , 755 F.3d 996, 1002–03 (D.C. Cir. 2014) (citing Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu , 455 F.3d 910, 922 (9th Cir. 2006) ; Smith v. City of Fort Lauderdale , 177 F.3d 954, 955–56 (11th Cir. 1999) ) ("Undoubtedly, promoting a major industry [tourism] that contributes to the economic vitality of the District is a substantial government interest.").
The City asserts different interests to justify each of the two principle aspects of its policy. First, the City provides a public safety justification. The City notes that the Market is often crowded, so it does not allow activities that could "pose a potential safety issue" or "obstruct the flow of pedestrian traffic." Feb. 17, 2020, Letter. "Market spaces for vendors and scheduled performances are also carefully and deliberately placed to allow pedestrian foot traffic and wide enough space for emergency vehicles. Unscheduled/non-approved groups or individuals disrupt that flow and cause operational problems for the already crowded market." Fyffe Aff. 1. Because public safety is not only a significant interest but a compelling one, the City has adequately identified an interest in support of its policy of requiring those who wish to set up at a fixed location to engage in expressive conduct to apply in advance for a designated space. See Hous. Chronicle Publ'g , 488 F.3d at 622.
While public safety explains the City's requirement that vendors and speakers obtain a permit and operate from a designated booth, it does not explain the policy of prohibiting "calling out" to Market-goers. For that policy, the City asserts an interest in the minimization of noise and disruption. The Supreme Court has held that cities have a substantial interest in keeping noise levels down in order to preserve public spaces for multiple uses. Ward , 491 U.S. at 797, 109 S.Ct. 2746 ("The city enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benefits the city parks have to offer, from amplified music to silent meditation."). Because the City seeks to preserve the Market as a space for its visitors to converse with each other and local artisans and enjoy buskers' performances, it has a substantial interest in eliminating disruptive noise. See id.
Moreover, the City also asserts a related economic interest in promoting vendors' ability to sell their wares without "having to shout over someone," noting that some vendors "rely on this event for a primary source of income." Fyffe Aff. 1. Indeed, a chief purpose of the Market is to facilitate "the sale of locally made" goods and crafts. See Mot. Ex. B ("City Ordinance") § 2.40.100(A)(1), ECF No. 4-4. Many courts have recognized that local governments have a substantial interest in "[f]ostering economic revitalization." See, e.g., McLaughlin , 140 F. Supp. 3d at 188–89. That local governments in "challenging urban area[s]" have a substantial interest in the "critical task" of promoting their local economy is axiomatic and supported by case law. See, e.g., id. Therefore, the City has asserted substantial interests in support of both essential aspects of the policy at hand.
c. Narrow tailoring
Plaintiff argues that even if the City's policy serves substantial government interests, it does not withstand scrutiny because it is not narrowly tailored to those interests. In the context of time, place, and manner restrictions, "narrow tailoring" does not require that the policy be the "least restrictive means" of achieving the government's interest. Doe I , 909 F.3d at 111 (quoting Ward , 491 U.S. at 798, 109 S.Ct. 2746 ). Hence, time, place, and manner restrictions are justified where "a substantial governmental interest [ ] would be achieved less effectively absent the regulation." Horton , 179 F.3d at 194 (citing United States v. Albertini , 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) ; Chicago Cable Commc'ns v. Chicago Cable Comm'n , 879 F.2d 1540, 1550 (7th Cir. 1989) ). Yet, narrow tailoring demands that the government "may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Encore Videos , 330 F.3d at 293 (quoting Ward , 491 U.S. at 799, 109 S.Ct. 2746 ); see also McCullen , 573 U.S. at 486, 134 S.Ct. 2518 (quoting Ward , 491 U.S. at 799, 109 S.Ct. 2746 ) (holding that, ultimately, the court must consider whether the restriction "burden[s] substantially more speech than is necessary to further the government's legitimate interests."). Plaintiff argues that "the imposition of a flat ban—eliminating every conceivable form of religious proselytizing—is not narrowly drawn" because it "burdens considerably more speech than needed ...." Mot. 11. This argument rests on a characterization of the City's policy which is not supported by the evidence. The evidence before the Court at this stage indicates 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. As an alternative, Plaintiff suggests that "[i]f the speech is disruptively loud, the City could require the speaker to lower their volume." Id. (citing Saia v. New York , 334 U.S. 558, 562, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948) ). But that is, in essence, what the City has done by prohibiting calling out. Plaintiff further suggests that "[i]f traffic is blocked, the City could require people to move along." Id. (citing Johnson v. Minneapolis Park & Rec. Bd. , 729 F.3d 1094, 1101 (8th Cir. 2013) ). That, too, is essentially what the City requires: that un-permitted or disruptive speakers of any sort "move along" just beyond the Market's footprint, where they are free to set up on the sidewalk at one of the Market's entrances.
Plaintiff next asserts that the application of the policy to him illustrates its overbreadth: "With Denton, in particular, he stands out of the way of the vendors and speaks and hands out literature without drawing a crowd around him." Id. (citing Compl. ¶ 17; Denton Aff. ¶ 12). Again, this contention is unsupported by the record. At the Hearing, Acosta testified that he recognized Plaintiff from videos showing him disrupting other public events. Audio Recording of Hr'g. Acosta also testified that Plaintiff was setting up a "pedestal" when Acosta confronted him. Id. A pedestal hardly marks the trappings of quiet literature distribution. Acosta further testified that Plaintiff was setting up directly across from the MCAD informational booth, in the heart of the Market and at a location that does not appear to have been "out of the way of vendors." Id.
Plaintiff did not appear at the Hearing, nor did he call any other witnesses to provide controverting testimony.
Moreover, Plaintiff's own allegations and statements belie the notion that he sought to passively hand out literature without drawing a crowd. Compl. ¶¶ 13, 16 ("[Plaintiff] likes to publicly proclaim (preach) his beliefs .... preaching can draw people in ...."); Denton Aff. ¶ 34 ("I began to speak without using amplification. I only spoke slightly louder than I would in ordinary conversation. Through my preaching, I was hoping to draw some attention and hand out tracts and have some conversations."). By speaking louder than conversational volume and seeking to "draw some attention," Plaintiff's conduct would interfere with the City's interest in mitigating noise in order to preserve the Market space for vendors and other market attendees who wanted to freely converse or listen to buskers.
That he was allegedly standing "a few feet into Western Street" also implicates the City's compelling public safety interest in confining those who set up at a fixed location to designated booth spaces in order to maintain a clear path for emergency vehicles. See Denton Aff. ¶ 32.
Further, the evidence does not indicate that Plaintiff only sought to mingle with the crowd and have quiet personal conversations, or to passively offer tracts to those who wanted them. Nor does the evidence suggest that Plaintiff would be prevented from engaging in such behavior. Indeed, such a policy could violate the First Amendment. See McCullen , 573 U.S. at 488-97, 134 S.Ct. 2518 ; Bays v. City of Fairborn , 668 F.3d 814, 823-24 (6th Cir. 2012) (holding policy not narrowly tailored where its plain text and the manner of enforcement indicated a "prohibition of one-on-one conversations"). Instead, the record indicates that Plaintiff sought to make proclamations from a pedestal and was asked to relocate to the Market's perimeter so as not to cause a disruption.
During the Hearing, Plaintiff's counsel argued that Plaintiff did not apply for a booth at the Market because he would not be allowed a booth. Audio Recording of Hr'g. Certainly, if Plaintiff intended to call out to Market-goers as they walked past his booth, it is likely that the City would deny this request for a booth because his proposed activity would violate the content neutral policy against calling out. But, the evidence does not show that Plaintiff would be denied if he sought permission to set up a booth in order to display signs and converse with and distribute religious tracts to those who choose to enter his booth space.
Moreover, case law supports the notion that the two restrictions actually imposed by the City are narrowly tailored to its asserted interests. First, the Supreme Court has held that a noise-level restriction is narrowly tailored to a local government's interest in preventing noise that disrupts the ability of others to use a shared public space. Ward , 491 U.S. at 803, 109 S.Ct. 2746. While a prohibition on calling out is less scientific than regulating decibel levels, Plaintiff has not explained how it burdens substantially more speech. Moreover, at least one district court has held that a municipality's outright ban on solicitation in certain public areas vital to the local economy is narrowly tailored to the municipality's interest in promoting that economy. Chad , 861 F. Supp. at 1063–64. The City's policy of excluding solicitation that calls out—as opposed to excluding all solicitation—from the Market, thus appears to be narrowly tailored to its interest in promoting the local artisan economy.
Second, the Supreme Court has held that a policy of requiring groups to solicit from designated booth spaces within a crowded fairground is narrowly drawn to the government's interest in public safety. Heffron , 452 U.S. at 653–54, 101 S.Ct. 2559. At least one district court has applied Heffron to the context of a farmers market and reached the same conclusion. Mahgerefteh , 324 F. Supp. 3d at 1136 ("A regulation confining solicitation activities to booths and areas adjacent to the [m]arket is reasonable and is narrowly tailored to regulating the flow of the resulting crowd within the [m]arket."). Because the City seeks to achieve similar public safety interests in a similar manner to the governmental entities in Heffron and Mahgerefteh , the Court finds it likely that the City's policy of requiring applications in advance for designated booth spaces is narrowly tailored.
In sum, Plaintiff's arguments for why the policy burdens substantially more speech than necessary to achieve the City's goals rely on characterizations of the policy that are factually unsupported. And, the policy that the City has, in fact, adopted is in line with the sort of policies that the Supreme Court and other federal courts have found to be narrowly tailored to significant interests. Considering all of the evidence in the record, it is likely that the City will be able to justify its policies as narrowly tailored to its public safety, noise mitigation, and economic development interests. See Byrum , 566 F.3d at 446.
d. Alternative channels
Finally, Plaintiff argues that the City's policy fails to leave open sufficient alternatives for him to engage in proselytization. A time, place, and manner restriction must "leave open ample alternative channels of communication." Encore Videos , 330 F.3d at 291 (quoting Frisby , 487 U.S. at 481, 108 S.Ct. 2495 ). "The First Amendment protects the right of every citizen to ‘reach the minds of willing listeners and to do so there must be opportunity to win their attention.’ " Heffron , 452 U.S. at 655, 101 S.Ct. 2559 (quoting Kovacs v. Cooper , 336 U.S. 77, 87, 69 S.Ct. 448, 93 L.Ed. 513 (1949) ).
Plaintiff argues that the City fails to leave open adequate alternative channels because it tells him to take his speech elsewhere. Mot. 12–13 (quoting Schneider v. New Jersey , 308 U.S. 147, 163, 60 S.Ct. 146, 84 L.Ed. 155 (1939) ) ("[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place."). In Schneider , the Supreme Court rejected the argument that two municipal policies that only prohibited the distribution of handbills in streets and alleys, but not other public places, reserved ample alternative spaces for expression. 308 U.S. at 163, 60 S.Ct. 146. Such a far-reaching prohibition, the Court reasoned, failed to preserve the cities' public arteries as the "natural and proper places for the dissemination of information and opinion." Id.
A prohibition on speech at all times throughout all public streets and alleys in a city is far different from the policy at hand, which restricts speech within a few city blocks for a few hours each Saturday. To the extent that Plaintiff argues that a policy that requires someone to speak "in some other place" can never be valid, that is not the law. See id. "The guarantees of the First Amendment have never meant ‘that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.’ " Greer v. Spock , 424 U.S. 828, 836, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (quoting Adderley v. Florida , 385 U.S. 39, 48, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) ). Indeed, the doctrine at hand expressly contemplates the validity of reasonable "time, place , and manner restrictions" in traditional public forums. Encore Videos , 330 F.3d at 291 (quoting Frisby , 487 U.S. at 481, 108 S.Ct. 2495 ).
The touchstone is whether the alternative spaces allow the speaker to reach a similar audience. Heffron , 452 U.S. at 655, 101 S.Ct. 2559. Courts have thus held that policies applying only to a small area of a municipality, which leave open similar nearby locations for the desired speech, are valid. For instance, in Chad , the court found that a policy prohibiting panhandling, soliciting, and begging on Fort Lauderdale's beachfront left open ample alternative channels of communication because it "affect[ed] a mere fraction of the City's public sidewalks." 861 F. Supp. at 1059, 1063. Similarly, in Grisham v. City of Fort Worth , No. 4:15-CV-324-A, 2015 WL 3901612 (N.D. Tex. June 24, 2015), the city required speakers with a message that they wished to share with participants in a festival to do so at a location immediately across the street from the festival's footprint. Id. at *4. The court found that the speakers could "effectively convey their views to participants in the festival" from the other side of the road. Id. And, even more apt, in Mahgerefteh , the court noted that the farmers market was "surrounded on all four sides by public property—public streets, a public parking lot, and a public park—and the rules regarding solicitation [did] not preclude any person or organization from conducting [expressive] activities during [m]arket hours on sidewalks or other public property adjacent to the [m]arket." 324 F. Supp. 3d at 1137.
Here, similarly, because Plaintiff sought to set up at a fixed location within the Market and call out to passersby, he was asked to move immediately outside the Market footprint. See Map. Unlike in Grisham , Plaintiff was not even asked to relocate across the street from the Market footprint, just to the perimeter. See 2015 WL 3901612, at *4. And, as in Mahgerefteh , the Market is surrounded on all four sides by public property, where Plaintiff would be able to speak unfettered. See 324 F. Supp. 3d at 1137. Plaintiff has not explained how, standing within mere feet of the Market's entrance, he could not reach substantially the same audience of Market-goers. See Heffron , 452 U.S. at 655, 101 S.Ct. 2559. Therefore, the policy leaves open ample alternative channels of communication. And, because the evidence before the Court demonstrates a likelihood that the City's policy is also content neutral and narrowly tailored to significant governmental interests, Plaintiff has not shown a clear likelihood of success on the merits of his free speech claim. See Encore Videos , 330 F.3d at 291–95.
2. Likelihood of success on the merits: due process / unbridled discretion doctrine
Plaintiff frames his second claim as a due process claim. See Compl. ¶¶ 87–89. However, the description of this claim and the case law upon which Plaintiff relies to support it suggest that it is a First Amendment unbridled discretion claim. The "Due Process" section of Plaintiff's Motion, which is less than one page in length, references only two cases. Mot. 13 (citing Grayned v. City of Rockford , 408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ; Dallas Ass'n of Cmty. Orgs. for Reform Now v. Dallas Cty. Hosp. Dist. , 670 F.2d 629, 632–33 (5th Cir. 1982) ). Each of these decisions mentions "due process" exactly once. Grayned , 408 U.S. at 108, 92 S.Ct. 2294 ; Dallas Ass'n , 670 F.2d at 633 n.5 (quoting Grayned , 408 U.S. at 108, 92 S.Ct. 2294 ). However, they do so only in the course of providing a background discussion of constitutional vagueness principles—principles which are then distilled to the First Amendment claims at hand. See Grayned , 408 U.S. at 108–09, 92 S.Ct. 2294 (quoting Baggett v. Bullitt , 377 U.S. 360, 372, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) ; Cramp v. Bd. of Pub. Instruction , 368 U.S. 278, 287, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961) ) ("Vague laws offend several important values.... [W]here a vague statute ‘abut(s) upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of (those) freedoms.’ "); Dallas Ass'n , 670 F.2d at 632 (citing Shuttlesworth v. City of Birmingham , 394 U.S. 147, 150–51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) ) ("The First Amendment is violated by ... the delegation of authority to a single person to determine who may use public property for free speech.").
The text of Plaintiff's argument also warrants the conclusion that the claim is better recast and analyzed under First Amendment principles. Plaintiff laments MCAD's allegedly "unconstrained" or "limitless authority" and "unfettered discretion" to exclude people from the Market, language which clearly evokes the unbridled discretion doctrine. Compare Mot. 13, with, e.g., Shuttlesworth , 394 U.S. at 154, 89 S.Ct. 935 (discussing whether an ordinance conferred "unfettered discretion" to determine whether it violated the First Amendment). Therefore, the Court analyzes Plaintiff's second claim through the lens of the First Amendment unbridled discretion doctrine.
To the extent that Plaintiff brings a separate due process challenge to the constitutionality of the City's policy, Plaintiff has provided no authority in support of such a claim, much less demonstrated a clear likelihood of success on the merits.
Under the unbridled discretion doctrine, "law[s] subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, [are] unconstitutional." Freedom From Religion Found. v. Abbott , 955 F.3d 417, 427 (5th Cir. 2020) (quoting Shuttlesworth , 394 U.S. at 150–51, 89 S.Ct. 935 ). "[T]he constitution requires ... neutral criteria to [e]nsure that the licensing decision is not based on the content or viewpoint of the speech being considered." Id. (quoting City of Lakewood v. Plain Dealer Publ'g Co. , 486 U.S. 750, 760, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) ); see also Thomas v. Chicago Park Dist. , 534 U.S. 316, 321–25, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (quoting Forsyth County v. Nationalist Movement , 505 U.S. 123, 133, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ) (holding that criteria must be "reasonably specific and objective, and [ ] not leave the decision ‘to the whim of the administrator.’ "). These criteria may appear through "textual incorporation, binding judicial or administrative construction, or well-established practice." City of Lakewood v. Plain Dealer Publ'g Co. , 486 U.S. 750, 770, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Even a policy with facially clear criteria may violate the First Amendment if it is enforced capriciously in practice. Dallas Ass'n , 670 F.2d at 633 ("The present ‘no solicitation rule’ ... is not vague–no solicitation at all is permitted. However, in application, it is clear that some literature is allowed on the premises of Parkland. Thus it becomes vague ....").
The policy at hand is very different from the policies that have been struck down under the unbridled discretion doctrine. Impermissible policies base the prohibition of speech on vague criteria that necessarily require the permitting authority to make some judgment about the content or viewpoint of the speech. See, e.g., Shuttlesworth , 394 U.S. at 149–50, 89 S.Ct. 935 (striking down policy limiting public demonstrations on city streets to only those that benefit "public welfare, peace, safety, health, decency, good order, morals or convenience"). Or, they provide no criteria whatsoever, leaving the decision up to the caprice of a government employee. See, e.g., Toga Soc., Inc. v. Lee , 323 F. Supp. 2d 779, 792 (E.D. La. 2004) (holding that ordinance imposing a fee to participate in parade, but providing no criteria for the sheriff's discretion in setting the fee amount, was unconstitutional under the unbridled discretion doctrine). But here, the evidence before the Court suggests that the City has a "well-established practice" of applying the policy at hand in a content-neutral manner, looking to two concrete criteria: whether the speaker has reserved a booth space in advance, and whether the speaker calls out to passersby. See Plain Dealer Publ'g , 486 U.S. at 770, 108 S.Ct. 2138. Plaintiff has not shown a likelihood that these criteria "leave the decision ‘to the whim of the administrator.’ " Thomas , 534 U.S. at 321–25, 122 S.Ct. 775 (quoting Nationalist Movement , 505 U.S. at 133, 112 S.Ct. 2395 ).
That this practice is "well-established" is evinced by the large number of different individuals and groups to whom Fyffe avers that it has been applied. See Fyffe Aff. 1.
On the contrary, these content-neutral criteria are "reasonably specific and objective," as illustrated by the way in which they were applied on August 24, 2019. See id. Plaintiff appeared without a permit and began to set up at a fixed location. Thus, Acosta was able to apply the policy of requiring that individuals and groups who wish to set up a site at the Market obtain advance permission and do so at a designated location. Furthermore, according to Plaintiff's own allegations, he began to speak "slightly louder than ordinary conversation," hoping to "draw people in." Compl. ¶¶ 16, 44. Or, according to Acosta's testimony, Plaintiff had not yet begun to speak but was setting up a pedestal. Audio Recording of Hr'g. Moreover, Acosta testified that he recognized Plaintiff from previous instances in which he had disrupted public events. Id. Thus, Acosta either witnessed Plaintiff calling out to passersby, or he had other objective criteria from which to conclude that Plaintiff was about to start calling out to passersby—the pedestal and his own recollection of Plaintiff's manner of speaking at public events. Either way, Acosta had clear, objective reasons to exclude Plaintiff under the no-calling-out policy.
Plaintiff does not explicitly challenge whether the City maintains sufficiently concrete criteria for determining whether to award a booth permit to an applicant. See Compl. ¶¶ 87–89; Mot. 13. To the extent that Plaintiff brings such a claim implicitly, the evidence does not suggest that the City's criteria for awarding booth permits are unconstitutionally vague. Plaintiff did not apply for a booth. Audio Recording of Hr'g. But, as discussed previously, if Plaintiff sought a permit to set up a pedestal from which he intended to proselytize, he would likely be denied pursuant to the City's clear, content-neutral ban on calling out. If, on the contrary, Plaintiff sought a permit to set up an informational booth, from which to distribute literature and have unobtrusive conversations with willing Market-goers, there is nothing in the record to indicate that his application would be, or should be, denied.
Finally, Plaintiff's counsel posited that the City would not prevent two people from casually conversing about their church as they walked around the Market. Id. And, he argued that there is no clear basis upon which the City could permit that speech but exclude Plaintiff for religious proselytizing. Id. But as explained above, that is simply not the City policy. Plaintiff has not shown a likelihood of success on the merits of his unbridled discretion claim.
3. Likelihood of success on the merits: free exercise
Plaintiff's third and final claim is that the City violated his First Amendment right to freely exercise his religion. The First Amendment Free Exercise Clause protects individuals "against the government's imposition of ‘special disabilities on the basis of religious views or religious status.’ " Trinity Lutheran Church of Columbia, Inc. v. Comer , ––– U.S. ––––, 137 S. Ct. 2012, 2021, 198 L.Ed.2d 551 (2017) (quoting Dep't of Human Res. v. Smith , 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) ). If a "policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character .... such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." Id. (citing Church of the Lukumi Babalu Aye , 508 U.S. at 546, 113 S.Ct. 2217 ). For instance, policies that single out religious proselytization from other forms of solicitation run afoul of the free exercise clause. See Espinoza v. Mont. Dep't of Revenue , 207 U.S. 679, 140 S. Ct. 2246, 2275-76, ––– L.Ed.2d –––– (2020) (Gorsuch, J., concurring) (citing Cantwell v. Connecticut , 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) ); Smith , 494 U.S. at 877, 110 S.Ct. 1595. Only a state interest "of the highest order" can justify a policy that imposes penalties on the free exercise of religion. Id. at 2024 (quoting McDaniel v. Paty , 435 U.S. 618, 628, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) ).
On the other hand, neutral policies that incidentally burden the exercise of religion are not subject to heightened scrutiny. Comer , 137 S. Ct. at 2020. "In recent years, when [the Supreme] Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. [The Court has] been careful to distinguish such laws from those that single out the religious for disfavored treatment." Id.
Plaintiff argues that the City's policy violates his right to free exercise because it targets religious proselytizing, while permitting other sorts of proselytizing and solicitation to occur. But, as discussed previously, the policy does not single out religious proselytizing. The inclusion of "religious proselytizing" in the About the Market document provides a plain-language, non-exhaustive list of examples in an informational publication. The record at this stage shows that the City's content-neutral policy has been applied to exclude many secular speakers from the Market. Fyffe Aff. 1. The City's policy appears to be precisely the sort of "neutral and generally applicable" policy that the Supreme Court consistently distinguishes from laws that "single out the religious for disfavored treatment." See Comer , 137 S. Ct. at 2020. While the policy in this case has incidentally burdened Plaintiff's religious speech, that alone does not constitute a free exercise violation. See id. For essentially the same reasons that Plaintiff has not shown a clear likelihood that the City's policy is content based with respect to his free speech claim, Plaintiff has not shown a clear likelihood of success on his free exercise claim. See id.
4. Irreparable harm
The party seeking a preliminary injunction bears the burden of making a clear showing on each of the four elements. Defense Distrib. v. United States Dep't of State , 838 F.3d 451, 456–58 (5th Cir. 2016) ; Hood , 822 F.3d at 220. Because Plaintiff has not shown a likelihood of success on the merits of his claims, the Court denies his request for a preliminary injunction for that reason alone. Yet, the Court's conclusion that a preliminary injunction should not issue is further bolstered by an analysis of irreparable harm.
"Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered." 11A Wright et al., Federal Practice & Procedure § 2948.1 (3d ed. 2020) ; see also Winter v. Nat. Res. Defense Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (quoting 11A Wright et al., Federal Practice & Procedure § 2948.1 (2d. ed. 1995) ); Texas v. United States , 86 F. Supp.3d 591, 674 (S.D. Tex. 2015) (same).
Even in the First Amendment context, the issuance of a preliminary injunction requires an injury that is imminent or ongoing. Hood , 822 F.3d at 228. In support of his irreparable injury argument, Plaintiff references Opulent Life Church , 697 F.3d 279. In that case, a church leased a property but was unable to occupy it because of a zoning ordinance that prevented it from using the building for religious services. Id. at 295–97. Each day that passed without an injunction was another day that the church could not occupy the property, and another day of potential First Amendment violation. See id. Here, by contrast, the Market is indefinitely closed. While the parties hazard that the Market may reopen this coming fall, the uncertainties of the COVID-19 pandemic have precluded a fixed reopening date. Because there is no Market from which Plaintiff could be excluded, he is not experiencing any ongoing or imminent harm at this time or in the near future. Plaintiff has not shown a clear likelihood that he will be unable to obtain a final ruling on the merits of his claims before the Market reopens. Therefore, even if Plaintiff could establish a clear likelihood of success on the merits, the injunction request would still be denied because he has not shown a likelihood of imminent, irreparable harm. See Hood , 822 F.3d at 228. III. CONCLUSION
Finding Plaintiff has failed to satisfy the first two requirements for issuance of a preliminary injunction, likelihood of success and irreparable harm, the Court does not consider the other requirements, the balance of the equities or whether an injunction would serve the public interest. See Defense Distrib. , 838 F.3d at 456–58.
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In conclusion, Plaintiff has not made a clear showing of his likelihood of success on the merits of any of his claims, nor has he made a clear showing of imminent, irreparable harm. Accordingly, Plaintiff is not entitled to the extraordinary remedy of a preliminary injunction, and the Motion, ECF No. 6, is DENIED .
SO ORDERED .