Revised November 15, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50702
ROBERTO S. VASQUEZ; ET AL,
Plaintiffs,
JESUS DE LA O,
Plaintiff-Appellant
versus
HOUSING AUTHORITY OF THE
CITY OF EL PASO,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
November 5, 2001
Before POLITZ and BARKSDALE, Circuit Judges, and FALLON,* District Judge.
POLITZ, Circuit Judge:
*
Honorable Eldon E. Fallon, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
Jesus De La O appeals an adverse summary judgment in his action challenging
the El Paso Housing Authority’s enforcement of a trespassing regulation against
candidates engaged in door-to-door campaigning. Concluding that the restriction, as
applied to nonresident political volunteers, violates the first amendment, we reverse and
remand.
BACKGROUND
De La O resides in the Sun Plaza Apartments, a housing unit owned by the
Housing Authority of the City of El Paso (“HACEP”). Roberto Vasquez, a candidate
for El Paso County Democratic Chair, sought to distribute literature and to engage in
door-to-door campaigning at Sherman Oaks, another HACEP development. Vasquez
does not reside in any HACEP facility. HACEP informed Vasquez that he could not
campaign on any housing authority property, citing two regulations. The first
regulation, commonly known as a “trespass after warning” rule, limits access to
HACEP property to “residents, members of their households, their guests and visitors,
and such other persons who have legitimate business on the premises, e.g., law
enforcement and other governmental personnel, utility service workers, HACEP
2
contractors, and others as authorized by HACEP.”1 Persons refusing to identify
themselves or those who cannot prove authority to be on the development premises are
to receive a “trespass warning” ordering them to leave or face arrest.
The second regulation, entitled “Notices and Flyers,” prohibits the distribution
of such materials without prior approval of the Development’s Housing Manager. It
allows residents to distribute literature only between 9:00 a.m. and 8 p.m. and forbids
the placing of leaflets on the doors of residents who do not answer.2 Taken together,
these regulations operate to allow residents to distribute literature, political or
otherwise, but prevent nonresidents from doing so. The Director of Housing
Management stated in his affidavit that the trespass after warning rule protects tenants
in that most persons arrested on the premises are nonresidents.
The De La O and Vasquez action challenges the regulations restricting
nonresident access. The trial court issued a Temporary Restraining Order enjoining
HACEP from preventing Vasquez and other candidates from campaigning on HACEP’s
property until a final hearing could be held. That hearing followed and the parties filed
dispositive motions. HACEP moved to dismiss the action and, alternatively, for
1
Housing Authority of the City of El Paso, Community and Resident Rules for
Public Housing and Section 8 New Construction Program, Rule D2.
2
Id., Rule D5.
3
summary judgment. De La O and Vasquez responded by filing their own motions for
summary judgment. The trial court entered final judgment granting HACEP’s motion
for summary judgment. In its Memorandum Opinion and Order the court found that the
housing development was a non-public forum and that the regulations were a
reasonable response to relevant safety concerns. De La O appealed, asserting his
constitutional right to receive oral and written presentations from political candidates
or their representatives.
ANALYSIS
We review a summary judgment de novo, affirming if there is no genuine issue
of material fact and the movant is entitled to judgment as a matter of law.3 The parties
do not dispute the facts and ask us to decide the purely legal issue whether the HACEP
regulations violate the first amendment. We conclude that the regulations, as applied
to political campaigners and their representatives, constitute an unreasonable restriction
on De La O’s first amendment right to receive political information.
I. Right to Receive Information Protected Under First Amendment
We will address the question of the propriety of a challenged regulation, such as
that at bar, if the activity at issue implicates the first amendment. HACEP contends that
the present dispute raises no first amendment concerns because De La O, the only
3
Harris v. Rhodes, 94 F.3d 196 (5th Cir. 1996).
4
remaining appellant, resides in the development and may proceed door-to-door
espousing his political views. We are not persuaded; there is more to the inquiry. The
first amendment guarantees the unrestricted flow of information into the market place
of ideas. This first amendment protection extends not only to those who contribute to
the market place of ideas, but necessarily extends to those who seek to benefit from the
resultant dialogue. As stated by the Supreme Court:
The authors of the First Amendment knew that novel and
unconventional ideas might disturb the complacent, but they
chose to encourage a freedom which they believed essential
if vigorous enlightenment was ever to triumph over slothful
ignorance. This freedom embraces the right to distribute
literature, and necessarily protects the right to receive it.4
II. Forum Analysis
After finding that the activity at issue implicates the first amendment, “we must
determine the level of scrutiny that applies to the regulation of protected speech at
issue.”5 The Supreme Court recognizes three different categories of government owned
property for purposes of the first amendment: the traditional public forum, the
designated public forum, and the nonpublic forum.6 Traditional public fora include
4
Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (citations omitted).
5
United States v. Kokinda, 497 U.S. 720, 725 (1990) (plurality opinion).
6
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983).
5
“those places which ‘by long tradition or by government fiat have been devoted to
assembly and debate,’” such as public streets and parks.7 Designated public fora
encompass those places or channels of communication assigned by the government “for
use by the public at large for assembly and speech, for use by certain speakers, or for
the discussion of certain subjects.”8 Finally, nonpublic fora consist of those places
“which [are] not by tradition or designation a forum for public communication.”9
We agree with the district court that the HACEP developments fall within the
category of nonpublic fora.10 Residency is limited to those who meet the financial
qualifications and the developments lack public streets and parks. In addition, although
the residents use the housing complex for myriad everyday life activities, including the
discourse on ideas and the discussion of any topic they desire, the government did not
create HACEP nor its developments for the purpose of providing a meeting place for
the public to exchange ideas. Rather, the purpose of the HACEP development activity
is to provide affordable housing to low income citizens who reside in El Paso. This
7
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)
(quoting Perry, 460 U.S. at 45)).
8
Id. (citing Perry, 460 U.S. at 45-46 and n.7).
9
Perry, 460 U.S. at 46.
10
See also Daniel v. City of Tampa, 38 F.3d 546 (11th Cir. 1994) (finding that
Florida’s housing complexes are nonpublic fora).
6
necessarily mandates a finding that the HACEP developments differ in character from
the areas previously categorized by the Court as designated public fora.11
We recognize that HACEP shares many similarities with the government town
at issue in Tucker v. State of Texas,12 where the Court held that a village owned by the
United States and designed to provide housing for persons engaged in National Defense
activities could not ban religious activities within its boundaries. Unlike Tucker,
however, HACEP operates only a small web of housing complexes within a large urban
area, it does not control every building and walkway in the city of El Paso. A more
telling comparison is the military base at issue in Greer v. Spock.13 The base permitted
free civilian access to certain unrestricted areas, however, “[t]he presence of sidewalks
and streets within the base did not require a finding that it was a public forum.”14
Characterizing HACEP as a public forum simply because of its streets and sidewalks,
as appellant urges, would be inconsistent with our understanding of the Court’s forum
11
See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981) (finding university facilities
a designated public forum with first amendment rights of equal access to students); City
of Madison Joint Sch. Dist. No. 8 v. Wis. Employment Relations Comm’n, 429 U.S.
167 (1976) (finding school board meeting a designated public forum with respect to
issues relating to operation of district’s public schools).
12
326 U.S. 517 (1946).
13
424 U.S. 828 (1976).
14
United States v. Kokinda, 497 U.S. 720, 727 (1990) (citing Greer v. Spock, 424
U.S. 828, 835-37 (1976)).
7
analysis jurisprudence. As the Court clearly has noted: “The mere physical
characteristics of the property cannot dictate forum analysis.”15 The developments
operated by HACEP, as we view them, fall within the category of nonpublic fora.
III. Constitutionality of the Housing Authority Regulations
The determination that the HACEP developments are nonpublic fora does not
end our inquiry. We must evaluate the regulations at issue under the standard
established by the Court for restrictions on speech in nonpublic fora. The government
may regulate expressive activities in a nonpublic forum “as long as the regulation on
speech is reasonable and not an effort to suppress expression merely because public
officials oppose the speaker’s view.”16 We recognize that the “First Amendment does
not guarantee access to property simply because it is owned or controlled by the
government.”17 An equally commanding principle, however, is that “[t]he Government,
even when acting in its proprietary capacity, does not enjoy absolute freedom from
First Amendment constraints.”18 Applying the aforementioned standard to the present
dispute, we conclude that the trespass after warning statute, as applied to political
15
Id.
16
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983).
17
United States Postal Serv. v. Greenburgh Civic Ass'ns, 453 U.S. 114, 129
(1981).
18
Kokinda, 497 U.S. at 725.
8
candidates, constitutes an unreasonable restriction on the residents’ first amendment
rights.
A. Viewpoint Neutrality
We agree with the district court that Rules D2 and D5 are viewpoint neutral
because they apply to all nonresidents who seek to go door-to-door distributing
literature. HACEP proscribes door-to-door campaigning regardless of party affiliation
or the viewpoint espoused by the nonresident. Accordingly, the regulations are
content-neutral in our constitutional evaluation.
B. Reasonableness
With due pause and after careful consideration we disagree with trial court that
Rules D2 and D5 constitute reasonable regulations when applied to political candidates
and their campaign volunteers. The trespass regulation, as applied to political
campaigning, strikes at the very core of our democratic system. “Mere legislative
preferences or beliefs respecting matters of public convenience may well support
regulation directed at other personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of democratic
institutions.”19 For many individuals, door-to-door political volunteers provide the main
or only link to the election process, especially with respect to local elections where
19
Schneider v. State (City of Irvington), 308 U.S. 147, 161 (1943).
9
candidates may lack the resources for extensive media campaigns. In recognizing the
importance of political canvassing, the Supreme Court stated: “Of course, as every
person acquainted with political life knows, door to door campaigning is one of the
most accepted techniques of seeking popular support, while the circulation of
nominating papers would be greatly handicapped if they could not be taken to the
citizens in their homes. Door to door distribution of circulars is essential to the poorly
financed causes of little people.”20 We do not reject HACEP’s concern that non-
residents commit the majority of crimes on development property, nor its belief that
combating crime is a legitimate purpose for the trespass after warning regulation. We
conclude, however, that the manner in which HACEP seeks to accomplish its goal of
crime prevention is unreasonable under the circumstances herein presented.
As noted by the Court, “consideration of a forum’s special attributes is relevant
to the constitutionality of a regulation since the significance of the governmental
interest must be assessed in light of the characteristic nature and function of the
particular forum involved.”21 HACEP operates housing developments, where people
walk to and from their residences, talk with their neighbors, and generally conduct
themselves like individuals in any other neighborhood in El Paso. As such, the citizens
20
Martin v. City of Struthers, 319 U.S. 141, 146 (citations omitted).
21
Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 650-51 (1981).
10
who reside in the HACEP developments deserve access to political information in the
same manner as other citizens of El Paso. HACEP apparently acknowledges the
importance of allowing political discourse because it concedes that De La O, a resident,
can walk door-to-door expressing his views and distributing literature in support of any
candidate. The sole qualification, compliance with the strictures in Rule D5,22 poses
a requirement that, if placed upon nonresident political candidates or volunteers, likely
would remedy any safety concerns caused by unknown individuals campaigning at
inappropriate hours.
We note with some focus that the record reflects that HACEP does not ban all
nonresidents, as the trespass regulation does not apply to certain individuals. These
include members’ guests and visitors, and “such other persons who have legitimate
business on the premises, e.g., law enforcement and other government personnel, utility
service workers, HACEP contractors, and others as authorized by HACEP.” That the
regulation lists certain groups as “examples” indicates to us that HACEP contemplates
the existence of other groups, unmentioned in the regulation, who fall under the
category of individuals with “legitimate business on the premises.” We are persuaded
beyond peradventure that the wholesale exclusion of political candidates and their
22
Specifically, getting prior permission to distribute any notices or flyers from the
Housing Manager at Sun Plaza and going door-to-door between the hours of 9 a.m. and
8 p.m.
11
volunteers from this category unreasonably and unnecessarily interferes with what may
well be the primary connection between many of HACEP’s residents and the
democratic process. 23
Finally, “[i]n considering legislation which thus limits the dissemination of
knowledge, we must ‘be astute to examine the effect of the challenged legislation’. .
..”24 The effect of the trespass regulation, as applied in the matter before us, is to
isolate a significant portion of the El Paso community from one of the most time-
honored and effective means of political discourse. Although HACEP’s outright ban
on door-to-door campaigning by nonresidents is unreasonable, requiring political
campaigners to seek the same authorization as other individuals that have “legitimate
business on the premises” would be reasonable in light of HACEP’s goals of preventing
crime by nonresidents. HACEP’s Housing Managers need merely check to ensure that
23
We note that HACEP uses a system, the specifics of which are not contained in
the record, by which law enforcement officers make the determination of who to
“warn” after asking for identification. The government personnel, utility service
workers, etc., who qualify as having “legitimate business on the premises” must carry
some type of identification to satisfy the officers that their presence on HACEP
property is warranted. We can think of no reasonable explanation for barring political
candidates from obtaining similar identification. If the checking of an individual’s
credentials by law enforcement officials serves as sufficient protection when allowing
government personnel, contractors and others on to the premises, the same safeguards
should provide ample security when dealing with political candidates and their
representatives.
24
Martin, 319 U.S. at 144 (quoting Schneider, 308 U.S. at 161 (1939)).
12
the campaign volunteer’s credentials are valid. Such identification might properly be
denied if the volunteer reasonably lacked sufficient credentials. This would provide an
adequate balance between protecting residents from dangerous imposters and
promoting political discourse: “While door to door distributors of literature may be
either a nuisance or a blind for criminal activities, they may also be useful members of
society engaged in the dissemination of ideas in accordance with the best tradition of
free discussion.”25
We recognize that in Daniel v. City of Tampa, the Eleventh Circuit reached an
opposite conclusion with respect to a nearly identical statute, Florida Statute Chapter
810.09.26 Our brethren concluded that Florida’s housing authority complexes are
nonpublic fora and that “enforcement of the statute is a reasonable means of combating
the rampant drug and crime problems within the Housing Authority property.”27 While
not unmindful of the conflict created by our differing interpretation of the first
amendment issues implicated herein, the nature of the injustice inflicted by enforcement
of the regulation in this case warrants reversal of the summary judgment before us.
25
Id. at 145 (discussing crime prevention in context of citywide regulation
prohibiting door-to-door leafleting).
26
38 F.3d 546 (11th Cir. 1994).
27
Id. at 550.
13
While not a public forum, Sun Plaza houses citizens of El Paso who deserve access to
political information and an unfettered role in the democratic process. The values at
stake are a precious cornerstone in our nation’s political foundation.
“This court has characterized the freedom of speech and that
of the press as fundamental personal rights and liberties.
The phrase is not an empty one and was not lightly used. It
reflects the belief of the framers of the Constitution that
exercise of the rights lies at the foundation of free
government by free men. It stresses, as do many opinions
of this court, the importance of preventing the restriction of
enjoyment of these liberties.”28
IV. Conclusion
The nature of HACEP’s developments make an outright ban on door-to-door
political campaigning by nonresidents an unreasonable restriction on the freedoms
guaranteed by the first amendment. For the reasons assigned, we REVERSE and
REMAND for further proceedings not inconsistent herewith.
28
Schneider v. State (City of Irvington), 308 U.S. 147, 161 (1939).
14
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
I agree with the majority that resident Jesus De La O has standing to challenge
the regulations at issue and that Sun Plaza Apartments, owned by the Housing
Authority of the City of El Paso (HACEP), is not a public forum. However, I must
dissent from the majority’s holding that those regulations are not reasonable in the light
of the purpose of the HACEP properties – providing affordable housing to its low
income, primarily elderly residents.
I.
Jesus De La O, a Sun Plaza Apartments resident, challenges two regulations —
Rules D2 and D5 — promulgated by HACEP: “Trespass After Warning” (Rule D2)
and “Notices and Flyers” (Rule D5). The “Trespass After Warning” regulation limits
access to HACEP property to lawful residents, invited guests, and other persons with
legitimate business on the property, such as law enforcement and government
personnel, utility workers, HACEP contractors, and individuals authorized by HACEP.
Housing Authority of the City of El Paso, Tex., Community and Residential Rules for
Public Housing and Section 8 New Construction Program, Rule D2 (19 Aug. 1998).
Persons who refuse to identify themselves, or who cannot prove authorization to be on
the premises, receive a “trespass warning”, requiring them to leave the property or be
arrested. Id.
The “Notices and Flyers” regulation limits distribution of literature by residents
of HACEP properties to specified hours and prohibits leaving flyers “in plain view on
a resident’s door” when a resident does not answer. Id., Rule D5 (as amended 1 Feb.
2000).
The HACEP Director of Housing Management stated that the purpose of Rules
D2 and D5 is the protection and safety of tenants, because: most arrests on HACEP
properties involve nonresidents; nonresidents sell drugs on HACEP property; and large
numbers of undocumented aliens pass through HACEP property. At Sun Plaza
Apartments in particular, nonresident walk-through is especially high, and the
Immigration and Naturalization Service operates a surveillance station there to combat
illegal immigration. Also, because Sun Plaza Apartments is primarily inhabited by
elderly residents, many in the complex are fearful of door-to-door solicitation.
Furthermore, the Director explained to staff and De La O that leaving a flyer at an
unanswered door would advertise to thieves that no one is at, or in, that apartment.
II.
As the majority notes, when First Amendment claims are implicated, there are
three types of government-owned property under the Supreme Court’s “forum
analysis”: the traditional public forum, the designated forum, and the nonpublic forum.
16
See United States v. Kokinda, 497 U.S. 720, 726-27 (1990). And, as the majority
holds, Sun Plaza Apartments and other HACEP properties can be nothing other than
nonpublic fora. Maj. Op. at 6. Consequently, “the state may reserve the forum for its
intended purposes ... as long as the regulation on speech is reasonable and not an effort
to suppress expression merely because public officials oppose the speaker’s view”.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983); see also
Cornelius v. NAACP Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985); Hobbs
v. Hawkins, 968 F.2d 471, 481 (5th Cir. 1992).
As the majority holds, Rules D2 and D5 are viewpoint neutral as written and as
applied. Maj. Op. at 9. Considering the uncontradicted evidence concerning HACEP’s
purpose for its properties, I would hold, however, that the regulations are “reasonable
in light of the purpose served by the forum”. Hobbs, 968 F.2d at 481.
While the majority acknowledges the nonpublic forum reasonableness test, it
ignores the Supreme Court’s explanation of how to evaluate the reasonableness of a
regulation. “The Government’s decision to restrict access to a nonpublic forum need
only be reasonable; it need not be the most reasonable or the only reasonable
limitation.” Cornelius, 473 U.S. at 808 (emphasis in original and emphasis added).
The majority incorrectly concludes that the regulations are not reasonable because there
17
are other approaches that HACEP could have taken.29
In contrast to the majority’s method of finding another approach that it deems
reasonable, we should accept the uncontested explanation of the HACEP Director of
Housing Management that the “Trespass After Warning” regulation (Rule D2) is a
reasonable response to the problem of rampant crime in low-income housing
developments. See Daniel v. City of Tampa, Florida, 38 F.3d 546, 550 (11th Cir.
1994); see also Williams v. Nagel, 643 N.E.2d 816, 817-18 (Ill. 1994), cert. denied,
514 U.S. 1064 (1995) (police-issued “barred notice” authorized complexes to compile
“no trespass” lists); People v. Kojac, 671 N.Y.S.2d 949, 950 (N.Y. Sup. Ct. 1998)
(building management authorized police to arrest those on the premises without
legitimate business); State v. Newell, 639 N.E.2d 513, 514 (Ohio Ct. App. 1994) (off-
duty police officers authorized to issue trespass warnings for public housing); City of
Dayton v. Williams, 1994 WL 37263 (Ohio Ct. App. 1994) (public housing authority
policy allowed police to issue trespass notices and arrest those who previously received
29
The majority suggests that political canvassers could obtain identification. Apart
from ignoring that most of the individuals with “legitimate business on the premises”
have a specific job that does not involve walking from door-to-door throughout a
HACEP complex, the majority also does not address the myriad problems that would
arise from this approach. For example, are there limits on the number of ID badges
provided? How should HACEP determine who is a legitimate candidate? Would this
authorization extend to political organizations and interest groups?
18
warnings). Rule D2 allows residents to have guests and visitors on the premises;
therefore, De La O may invite political campaigners to his apartment without restriction.
The regulation merely provides HACEP with a way to deal with unauthorized
individuals on the premises.
In fact, the majority ignores its own forum analysis. In deciding the HACEP
properties are nonpublic, the majority correctly concludes that the purpose of the
properties is not to provide a meeting place for the exchange of ideas but rather to
provide affordable housing. Maj. Op. at 6. Once the majority reaches the
reasonableness inquiry, however, it focuses on the importance of communication and
access to information, which ignores that the reasonableness of the regulation should be
judged by reference to the purpose of the forum.
Furthermore, while no one would disagree with the majority’s most commendable
interest in promoting the democratic process, another factor that is integral to the
evaluation of the reasonableness of a regulation is whether alternative channels of
communication exist. Cornelius, 473 U.S. at 809 (direct mail and in-person solicitation
outside the forum as alternatives); Perry Educ. Ass’n, 460 U.S. at 53 (bulletin boards,
meeting facilities, and United States mail available). The HACEP Director of Public
Housing’s uncontradicted affidavit explained that all HACEP properties are adjacent to
public streets and sidewalks, and that De La O’s complex, Sun Plaza Apartments, “is
19
completely bounded by city streets and sidewalks” open to the public. De La O and
others are free to hear the messages of various political candidates outside their complex
and decide whether to invite them inside the development in compliance with HACEP’s
safety regulation. Also (and obviously), there is no regulation preventing a direct mail
campaign to HACEP residents.
Without addressing the readily available alternative channels of communication,30
the majority chooses to focus on the utility of political canvassing in local elections,
ignoring further guidance by the Supreme Court: “The First Amendment does not
demand unrestricted access to a nonpublic forum merely because use of that forum may
be the most efficient means of delivering the speaker’s message”. Cornelius, 473 U.S.
809; United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114,
129 (1981). While door-to-door canvassing may be a more efficient means for
candidates to communicate their political views, the regulations, of course, do not
prevent them from speaking to residents outside the HACEP properties on the public
streets and sidewalks.
The majority also mistakenly focuses on the distinction between those allowed
30
Instead, the majority quotes from Martin v. City of Struthers, Ohio, 319 U.S. 141
(1943), a case decided prior to the Supreme Court’s “forum analysis” approach and
holding unconstitutional a city-wide ban on door-to-door solicitation at residential
homes.
20
on the premises and those not. However, the Supreme Court has spoken to this point
as well:
Implicit in the concept of the nonpublic forum is the right to
make distinctions in access on the basis of subject matter and
speaker identity. These distinctions may be impermissible in
a public forum but are inherent and inescapable in the
process of limiting a nonpublic forum to activities compatible
with the intended purpose of the property.
Perry Educ. Ass’n, 460 U.S. at 49. Consequently, it is entirely appropriate for HACEP
to make distinctions based on the identity of the speaker: residents, invited guests, and
those with official business are allowed to remain, while others, such as political
canvassers, uninvited solicitors, illegal aliens, and those intent on criminal activity, are
required to leave.
III.
In contrast to the majority, I believe that the approach by the Eleventh Circuit
seven years ago in addressing a nearly identical statute is correct. See Daniel, 38 F.3d
at 550-51. As in Daniel, I would affirm the summary judgment. The two Rules at
issue are reasonable because the purpose of the HACEP properties is to provide
affordable housing and not a vehicle for political canvassing. Accordingly, I respectfully
dissent.
21