United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 18, 2005
July 18, 2005
In the
United States Court of Appeals Charles R. Fulbruge III
Clerk
for the Fifth Circuit
_______________
m 04-50363
_______________
ROSALINA DE LA O AND
MARIA CHRISTINA RIVERA,
Plaintiffs-Appellants,
VERSUS
HOUSING AUTHORITY OF THE CITY OF EL PASO, TEXAS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 3:02-CV-456-DB
______________________________
Before SMITH, DENNIS, and PRADO, any HACEP facility, was a candidate for chair
Circuit Judges. of the El Paso County Democratic Party and
sought to distribute literature and to campaign
JERRY E. SMITH, Circuit Judge: door-to-door at Sherman Oaks, a HACEP
facility. De la O resided at the Sun Plaza
I. Apartments (a HACEP-operated subsidized
In 2000, Jesus de la O and Roberto Vas- housing facility) and complained that the re-
quez sued to challenge certain regulations of strictions on political campaigning infringed on
the Housing Authority of the City of El Paso his First Amendment rights.
(“HACEP”). Vasquez, who did not reside in
The challenged regulations included a “tres- ident desires to distribute notices or flyers
pass after warning” policy and a policy re- in his development, the resident must obtain
stricting the distribution of flyers. These advance approval of the Development’s
regulations were as follows: Housing Manager and provide the Housing
Manager with a copy of the proposed
Rule D.2. Trespassing. The development notice or flyer. A resident may not distrib-
premises are for the exclusive use and en- ute a notice or flyer before 9:00 a.m. or
joyment of the residents, members of their after 8:00 p.m. Under no circumstances
households, their guests and visitors, and will a notice or a flyer be left in plain view
such other persons who have legitimate on a resident’s door if a resident of the unit
business on the premises, e.g., law enforce- is not at home or declines to answer the
ment and other governmental personnel, door. A resident distributing such flyers or
utility service workers, HACEP contrac- notices must do nothing to allow the flyers
tors, and others as authorized by HACEP. or notices to become litter or which would
All other persons will be regarded as tres- disrupt the peaceful use and enjoyment of
passers subject to prosecution as allowed the other residents in the development or
by state or municipal ordinance. the residents’ use of common areas.
Any person who desires access to any de- De la O v. HACEP, No. 02-CV-456, at 2 n.3
velopment premises and any person found (W.D. Tex. Mar. 24, 2004).1
on the walks, ways, playgrounds, parking
lots, drives and other common areas of the The district court dismissed on summary
development premises will be required by judgment, holding the challenged regulations
any law enforcement or HACEP personnel constitutional. On appeal, a panel of this court
to identify himself or herself and to prove reversed, holding that “the manner in which
authority to be on the development prem- HACEP seeks to accomplish its goal of crime
ises. Any person who refuses to provide prevention is unreasonable under the circum-
personal identification or cannot show au- stances herein presented,” and the regulations
thority to be on the development premises were therefore unconstitutional.2 The case,
will receive a ‘trespass warning’ ordering however, was voted en banc, and after briefing
the person to leave the development pre-
mises or be subject to arrest and prosecu-
tion to the extent permitted by state law or 1
The text excerpted above constitutes the rules
municipal ordinance. in effect at the time of the district court’s decision
in the present action. Nevertheless, the rules in
Any person observed by law enforcement effect at the time of the first de la O (Vasquez)
or HACEP personnel violating any HACEP action appear to have been substantially identical.
rule, or federal, state or municipal law,
regulation, or ordinance will be ordered by 2
law enforcement or HACEP personnel to Vasquez v. HACEP, 271 F.3d 198, 204 (5th
Cir. 2001), vacated for reh’g en banc, 289 F.3d
leave the development premises.
350 (5th Cir. 2002), order denying motion to sub-
stitute party and granting motion to dismiss ap-
Rule D.5. Notices and Flyers. HACEP peal as moot, No. 00-50702 (5th Cir. Sept. 23,
does not allow door-to-door sales. If a res- 2002), cert. denied, 536 U.S. 904 (2003).
2
and argument had concluded, de la O died. cle III to hear “cases and controversies.” U.S.
Because Vasquez had not filed an appeal, the CONST. art. III, § 2. Accordingly, an actual,
absence of a living plaintiff rendered the case live controversy must remain “at all stages of
moot, and it was dismissed. federal court proceedings, both at the trial and
appellate levels.”3 That is, “[t]he requisite per-
In 2002, de la O’s widow, Rosalina de la O, sonal interest that must exist at the commence-
and Maria Christina Rivera brought the current ment of the litigation (standing) must continue
suit challenging HACEP’s trespass and distri- throughout its existence (mootness).’”4
bution rules. On HACEP’s motion for sum- Therefore, a request for injunctive relief re-
mary judgment, the district court concluded mains live only so long as there is some pres-
that (1) no genuine issue of material fact ent harm left to enjoin. HACEP contends that
remained for trial, (2) the HACEP facilities its amendment to the regulations renders de la
constitute non-public fora, (3) the rules were O’s claims moot.
viewpoint neutral, and (4) the rules were
reasonable. As a consequence, the court held A.
that the rules did not violate the First Amend- This logic is valid only insofar as it pertains
ment and dismissed the plaintiffs’ claims. to the claims for injunctive relief. It is well-
established that “[c]laims for damages or other
After this appeal was filed, HACEP volun- monetary relief automatically avoid mootness,”
tarily amended the rules, which now allow for so long as the underlying claim remains valid
non-residents to enter facilities to engage in on its merits.5 If, on the other hand, the defen-
political and religious activities door-to-door. dants were immune from a damages award, it
The trespassing regulation now contains a sec- would be unnecessary for us to consider the
tion entitled “Political and Religious Activi- constitutionality of the un-amended regula-
ties,” which explicitly allows any person to en- tions.6 Although such a result would allow us
ter a HACEP development to engage in po-
litical campaigning and/or religious proselytiz-
ing. To take advantage of this new policy, a
non-resident must provide advance notice to
the development’s management. Additionally, 3
ERWIN CHEMERINSKY, FEDERAL JURISDIC-
the policy no longer requires management’s
TION § 2.5.1, at 125 (4th ed. 2003).
approval of a copy of a flyer in advance of its
distribution. One must still give advance 4
United States Parole Comm’n v. Geraghty,
notice that he will be distributing literature. 445 U.S. 388, 397 (1980) (quoting Henry Mona-
ghan, Constitutional Adjudication: The Who and
At this court’s request, the parties submit- When, 82 YALE L.J. 1363, 1384 (1973)).
ted supplemental briefing on the question
5
whether these amendments render the case 13A CHARLES A. WRIGHT, ARTHUR R. MIL-
moot. HACEP contends the case is moot, and LER & EDWARD H. COOPER, FEDERAL PRACTICE
plaintiffs argue that their claims survive the AND PROCEDURE: JURISDICTION 2D § 3533.3, at
amendments. text accompanying n.2.
6
See Chase v. McMasters, 573 F.2d 1011,
II. 1015 (8th Cir. 1978) (dismissing an otherwise vi-
The federal courts are empowered by Arti- able claim for damages on immunity grounds).
3
to avoid a constitutional question,7 HACEP, with our policy that the court of appeals will
the sole defendant, is an entity comprised not normally consider evidence or arguments
wholly of members appointed by the mayor of not presented to the district court.10
El Paso. As an arm of local government, not
an instrument of the state, it is not entitled to On the other hand, remanding the case po-
sovereign immunity under the Eleventh tentially creates further difficulties. For exam-
Amendment.8 The doctrine of qualified im- ple, if we were to remand and the district court
munity, furthermore, is applicable only to gov- proceeded again to uphold the regulations as
ernment officials, not municipal entities.9 The valid, HACEP could again amend its regula-
pleading of a colorable claim for damages thus tions while an appeal was pending. Such a cir-
precludes a finding of mootness. cumstance necessarily would deprive the
plaintiffs of any possibility of appellate review.
B. Similar concerns have motivated the courts to
The existence of the claim for damages, recognize an exception to the mootness doc-
however, does not end our inquiry. That is, al- trine where a challenged behavior is voluntarily
though we must consider the constitutionality ceased by the defendant but the defendant is
of the rules (pre-amendment) for purposes of capable of resuming the practice at any time.
the damages claim, the plaintiffs continue to See, e.g., United States v. W.T. Grant Co., 345
press their claim for injunctive relief against U.S. 629, 632 (1953).
the amended rules. Neither side’s brief ad-
dresses the problem of our court’s reviewing, Furthermore, were we to remand, the out-
in the first instance, the constitutionality of come in the district court is certain. Although
regulations that, in their current form, have not the current regulations differ from those at is-
been evaluated by the district court. sue before the district court, the new regula-
tions are less restrictive than their predeces-
One possible option for dealing with this sors. Given that the district court deemed the
dilemma would be to remand for the district prior rules constitutionally permissible, that
court to have the first opportunity to consider court presumably would find that the amended
the constitutionality of the amended regula- rules also pass constitutional muster. Under
tions. Such an approach would be consistent such circumstances, the decision to remand,
aside from allowing for the evasion-of-review
situation set forth above, would be inefficient.
7
See Ashwander v. Tenn. Valley Auth., 297 Consequently, the constitutionality of both sets
U.S. 288, 346-47 (1936) (Brandeis, J., concurring) of regulations is properly before us.
(describing the doctrine of constitutional avoid-
ance). III.
De la O contends that the district court im-
8
See Bd. of Trustees v. Garrett, 531 U.S. 356,
368-69 (2001).
10
See Nisso-Iwai Am. Corp. v. Kline, 845 F.2d
9
See Owen v. City of Independence, Mo., 445 1300, 1307 (5th Cir. 1988) (“[O]ur review is con-
U.S. 622, 653 n.37 (1980) (“[T]he justifications fined to an examination of materials before the
for immunizing officials from personal liability lower court at the time the ruling was made; sub-
have little force when suit is brought against the sequent materials are irrelevant.”).
governmental entity itself.”).
4
properly disposed of the case on summary court’s above-stated conclusion of content-
judgment despite the existence of issues of neutrality.
material fact. We review a summary judgment
de novo. Harris v. Rhodes, 94 F.3d 196, 197 With respect to the facts underlying the
(5th Cir. 1996). Where, as here, we are con- court’s reasonableness conclusion, on the oth-
sidering a First Amendment challenge to a er hand, de la O asserts that affidavits in the
government regulation of speech in a non-pub- record contradict the evidence proffered by
lic forum, the relevant question is whether the HACEP, and accepted by the district court, in
regulation is viewpoint-neutral and reasonable support of the reasonableness of the restric-
in light of the forum’s purpose.11 Therefore, tions. Specifically, in holding that the rules
summary judgments are appropriate only were reasonable, the district court relied on the
where there is no factual issue relating to the affidavit testimony of Ned Beman, HACEP’s
neutrality of a regulation (on its face or as Director of Housing Management, who stated
applied) or with respect to the government’s that the proffered purpose of the challenged
proffered support for the restriction’s reason- rules is
ableness.
the protection and safety of HACEP’s ten-
The district court found that the restrictions ants, many of which are elderly residents
are content- and viewpoint-neutral, facially and are frightened by door-to-door solici-
and as applied. In its opinion granting sum- tors due to the fact that the majority of
mary judgment, the district court noted, those arrested on HACEP property are
non-residents engaged in narcotics distribu-
Plaintiffs have not presented one scintilla of tion. Additionally, Beman’s uncontradicted
evidence that suggests that any political testimony reveals that the [INS] operates a
candidates were denied access to HACEP’s surveillance station in at least one of its
complexes because HACEP disagreed with complexes, the Sun Plaza, because of the
a particular political message. Moreover, large number of undocumented aliens who
Plaintiffs have not presented any evidence pass through that complex.
to suggest Rules D.2 and D.5 were en-
acted, or are being applied, to censor those Id. at 3.
messages with which HACEP disagrees.
Attempting to demonstrate that Beman’s
De la O, No. 02-CV-456, at 9. Although, in assertions are in fact in controversy, plaintiffs
their supplemental brief on the mootness ques- point to the affidavit of David Marquez, the
tion, the plaintiffs reference their “challenge . former head of security at HACEP. In the first
. . as to application by selective enforcement,” place, de la O makes no attempt to suggest
they point to little evidence in the record that which elements of Marquez’s affidavit specifi-
could serve as the basis for disturbing the cally raise factual issues. We review summary
judgments de novo, using the same standard as
that employed by the district court. Namely,
11 once the moving party has demonstrated that
Both our conclusion that the relevant forum
the non-moving party has no evidence such
is non-public in nature, and the relevant constitu-
tional inquiry, will be discussed in much greater
that a reasonable jury could support a verdict
detail in part IV, infra. in its favor, the non-moving party must put
5
forth specific facts that demonstrate a genuine under rule 56(e). Bolen v. Daniel, 340 F.3d
factual issue for trial. Brennan v. Mercedes 300, 313 (5th Cir. 2003).
Benz, 388 F.3d 133, 135 (5th Cir. 2004).
For example, in response to Beman’s asser-
That is, once HACEP satisfied its burden by tion that elderly residents are fearful of door-
proffering Beman’s testimony, the burden to-door solicitors, Marquez stated that Be-
shifted to de la O to demonstrate a remaining man’s position is “at best an exaggeration.”
factual controversy. The perfunctory and con- This conclusion is not apparently based on any
clusional assertion that a particular affidavit specific personal knowledge on the part of
creates such a conflict normally will not suf- Marquez, but rather on an unsubstantiated be-
fice. “Judges are not like pigs, hunting for lief. Similarly, Marquez puts forth that it is his
truffles buried in briefs.” United States v. “understanding” that the local police chief and
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). sheriff have declared El Paso among the coun-
try’s safest cities. In addition to being patently
The shortcomings of plaintiffs’ briefing not based on personal knowledge, this state-
aside, however, Marquez’s affidavit creates no ment does little to refute Beman’s assertions.
genuine issues of fact, but instead alleges that
Marquez’s experience did not indicate that In sum, Marquez adds some facts to the
door-to-door solicitation had ever yielded record that the district court could easily con-
criminal activity. As HACEP ably points out, sider when making its reasonableness conclu-
however, Beman never asserted anything to sion as a matter of law. On the other hand,
the contrary. Marquez’s affidavit does not squarely cast into
doubt any of Beman’s material assertions. To
Rather, Beman asserted that allowing door- the extent that some aspects of the Marquez
to-door solicitation might permit criminals to affidavit do attempt to refute Beman’s posi-
pose as legitimate visitors. He urged that a tions, those passages do not constitute proper
purpose of the regulation was to prevent summary judgment evidence. Marquez does
crime. Marquez’s observation does not raise nothing to refute the premise that the rules in
a factual issue as to whether that purpose is question are advanced for the purpose of the
factually correct. At best, his assertions pro- protection and safety of the HACEP residents.
duce competing factual evidence for the court With the exception of the prior-approval
to weigh in determining, as a matter of law, provision in Rule D.5, which we address infra,
whether the alleged purposes are served by the the district court therefore did not err by
regulations, a determination that is necessary resolving the case on summary judgment.
to its eventual reasonableness conclusion. No
direct factual disputes, however, are raised. IV.
As discussed above, the restrictions now in
Marquez’s other statements that might pos- place require that (1) there be no distribution
sibly be construed as raising a genuine issue of of flyers or notices between 8:00 p.m. and
fact also fail, because they do not appear to be 9:00 a.m.; (2) a tenant wishing to distribute
based on personal knowledge, but rather on flyers during the permitted hours must give
speculation. See FED. R. CIV. P. 56(e). State- advance notice to the Housing Manager;
ments made on information and belief do not (3) no flyers may be left on a tenant’s door if
constitute proper summary judgment evidence no one answers; (4) non-residents may enter a
6
HACEP facility for political and/or religious thoughts between citizens, and discussing
activities if they provide advance notice to the public questions.’” Perry, 460 U.S. at 44
complex’s manager, in writing or by telephone; (quoting Hague v. CIO, 307 U.S. 496, 515
(5) if a non-resident wishes to enter for reli- (1939)).
gious or political purposes on a weekend, he
must be certain to have given notice before the The next category encompasses those areas
close of business on Friday; and (6) any door- that, although not traditionally places reserved
to-door activities by non-residents must be for public expression, have been opened by the
carried out between 9:00 a.m. and 8:00 p.m. state for expressive activity. These designated
public fora can include university meeting halls
A. and municipal theaters. See Widmar v. Vin-
Although de la O is not claiming that she cent, 454 U.S. 263, 277 (1981); Southeastern
has been prevented from engaging in any ac- Prods., Ltd. v. Conrad, 420 U.S. 546, 555
tivities, such as political campaigning, the right (1975). The remaining public property is
to receive information is as equally protected classified as non-public fora, a sweeping cate-
as is the right to convey it. See Martin v. City gory that includes a wide range of places such
of Struthers, 319 U.S. 141, 143 (1943) (strik- as jails, military bases, and interstate highway
ing down ordinance prohibiting door-to-door rest stops.12
distribution of handbills). Where regulations
restricting speech touch only activities to be Although restrictions on speech in public
carried out on government property, however, fora and designated public fora are closely
we review their validity under a framework scrutinized and are valid only if content-neutral
different from the one we would use if the and necessary to serve a compelling govern-
restriction swept more broadly. ment interest, restrictions on the use of non-
public fora are reviewed with far greater de-
“The existence of a right of access to public ference to policymakers. Perry, 460 U.S. at
property and the standard by which limitations 46. In such fora, the state may enforce time,
upon such a right must be evaluated differ place, and manner restrictions and regulations
depending on the character of the property at intended to reserve the forum for its intended
issue.” Perry Educ. Ass’n v. Perry Local purpose “as long as the regulation on speech is
Educators Ass’n, 460 U.S. 37, 44 (1983). reasonable and not an effort to suppress ex-
There are three distinct categories of govern- pression merely because public officials op-
ment property. pose the speaker’s view.” Id.
The first category, traditional public fora, Because HACEP complexes are govern-
consists of those locations that “by long tradi- ment-owned property, analysis of the validity
tion or by government fiat have been devoted of HACEP’s restrictions on First Amendment
to assembly and debate.” Cornelius v. NAACP
Legal Defense & Educ. Fund, Inc., 473 U.S.
788, 802 (1985). Traditional public fora 12
See Adderley v. Florida, 385 U.S. 39, 47-48
include public streets and parks, “which ‘have
(1966); M.N.C., Inc. v. United States Dep’t of De-
immemorially been held in trust for the use of
fense, 791 F.2d 1466, 1473 (11th Cir. 1986); Sen-
the public, and, time out of mind, have been tinel Communications Co. v. Watts, 936 F.2d
used for purposes of assembly, communicating 1189, 1204 (11th Cir. 1991).
7
activity requires us first to determine the type U.S. at 46. There is no evidence in the record
of forum these complexes constitute. Public even suggesting that HACEP has discrimi-
housing facilities such as those which HACEP nated among speech on the basis of the view-
operates have repeatedly been held to consti- point of the speaker, either on the face of the
tute non-public fora.13 rules or in the manner in which they have been
applied. Because the regulations are therefore
It is beyond dispute that the primary pur- viewpoint- neutral, they survive scrutiny so
pose for the very existence of HACEP’s fa- long as they are “reasonable in light of the
cilities is to provide affordable housing to purpose served by the forum.” Good News
those in El Paso needing financial assistance. Club v. Millford Cent. Sch., 533 U.S. 98, 107
Certainly, the complexes are used for social (2001).
interaction, but HACEP was not created to fa-
cilitate the expression of ideas or serve as a It is difficult to see how, in light of the re-
meeting place for citizens. Other than making cent amendments, de la O can claim that the
a cursory assertion that this case is distinguish- rules are unreasonable. A local government’s
able from Daniel, 38 F.3d at 550 (holding that proffered interestSScrime preventionSSis obvi-
housing projects are non-public fora), plaintiffs ously a weighty one.15 Furthermore, Beman’s
make no real attempt to explain how the affidavit speaking to the presence of an INS
complexes could be considered even desig- surveillance operation onsite at one of the
nated public fora.14 It seems obvious, there- complexes demonstrates that an additional
fore, that for purposes of our further analysis, purpose of the trespassing regulation is to limit
HACEP’s facilities are non-public fora. use of the complexes as havens for undocu-
mented aliens.16
B.
Even in non-public fora, the state may re- When examining the reasonableness of re-
strict speech only in such a manner as is rea- strictions on speech, the existence of alterna-
sonable and viewpoint-neutral. See Perry, 460 tive channels of communication is integral.17
Obviously a number of alternative channels
exist here. Though one cannot, under the
13 amended regulations, distribute flyers between
See Daniel v. City of Tampa, Fla., 38 F.3d
546, 550 (11th Cir. 1994); Crowder v. Housing 8:00 p.m. and 9:00 a.m., the vast majority of
Auth., 990 F.2d 586, 591 (11th Cir. 1993) (delin- most residents’ waking hours are within the
eating library of housing project as non-public
forum); Daily v. New York City Housing Auth.,
221 F. Supp.2d 390, 399 (S.D.N.Y. 2002) (hold- 15
See, e.g., City of Renton v. Playtime The-
ing that community center at housing project was aters, Inc., 475 U.S. 41, 47 (1986) (upholding zon-
non-public forum by default and a designated pub- ing restrictions on nude dancing where restriction
lic forum “at times other than during the regularly was designed to curtail crime).
scheduled educational activities”); see also Vas-
16
quez, 271 F.3d at 202 (holding that the HACEP See INS v. Delgado, 466 U.S. 210, 223
facilities are non-public fora). (1984) (describing government’s interest in enforc-
ing immigration laws as “enormous”).
14
Indeed, at oral argument, appellants’ counsel
17
seemed to concede that the complexes at issue are See Vasquez, 271 F.3d at 208 (Barksdale, J.,
non-public fora. dissenting).
8
times when such distribution is permitted. of Stratton, 536 U.S. 150 (2002), in which the
Court struck down a municipal ordinance that
Further, it is true that non-residents seeking required the requisition of a permit before an
to engage in political activities, spontaneously, individual could engage in door-to-door activi-
on a weekend would be unable to do so. Nev- ties. Inasmuch as the ordinance applied to re-
ertheless, spontaneous activity during weekday ligious proselytizing, anonymous political
business hours (when advance notice could be speech, and the distribution of handbills, rather
given to the housing manager) is permissible. than commercial solicitation, the Court held
that its restrictions were invalid. Id. at 165.
Additionally, it is not that weekend activi- As much as de la O wishes to liken her case
ties are prohibited; rather, non-residents must to Watchtower, it is inapposite. The ordinance
only have the foresight to notify management, at stake in Watchtower applied to the entire
by the close of business on Friday, of their in- municipality and was not limited to non-public
tention to go door-to-door over the weekend. fora such as the HACEP facilities. Tellingly,
Although this undoubt edly constitutes a bur- the Court did not even discuss forum analysis
den, it can hardly be dubbed a constitutionally in its opinion. Consequently, it is obvious that
unreasonable one in light of the alternatives Watchtower was decided under an entirely
presented to potential speakers. different rubric and is not controlling here.
In Daniel, 38 F.3d at 550, the court consid- Secondly, de la O argues that the HACEP
ered a trespass statute that was nearly identical regulations must be struck down because of
to the restrictions used by HACEP before the their alleged overbreadth. It seems that de la
recent amendments and concluded that the O misconstrues the nature and function of the
trespass statute was perfectly constitutional, overbreadth doctrine. According to de la O,
partly in light of the alternative means of com-
munication left open to speakers. That is, [T]he regulations sweep broadly, covering
even if denied access to the entire complex, unpopular causes unrelated to commercial
speakers would have access to adjacent streets transactions or to any special interest in
and sidewalks to disseminate their messages. protecting the residents. Secondly, requir-
Under the amended regulations, the burdens ing a permit as a prior condition on the ex-
on potential speakers are significantly lessened ercise of the right to speak imposes here a
and are constitutionally permissible. burden on the speech of citizens holding re-
ligious or patriotic views. Third, there is a
The plaintiffs’ brief does not distinguish significant amount of spontaneous speech
between arguments focused on the regulations that is effectively banned by the regulations.
pre-amendment and those attacking the cur- Even a spontaneous decision to go across
rent regulations. Regardless of which set of the street, with a flyer, and urge a neighbor
regulations are being attacked, the plaintiffs to vote against the mayor who appoints the
make two, ultimately unavailing, arguments HACEP board, could not lawfully be imple-
that nevertheless warrant brief discussion. mented without first obtaining permission
from those who work for the board that is
First, de la O places great emphasis on appointed by the Mayor. This kind of re-
Watchtower Bible & Tract Society v. Village strictions and inhibitions [sic] cannot with-
9
stand constitutional muster and must fail. edly unconstitutional restrictions.
Although the above-quoted excerpt might In reality, however, de la O already has
serve as a persuasive argument for the unrea- such standing. Her claim is predicated on her
sonableness of the statute under the applicable own supposed injury resulting from the alleged
rubric of forum analysis, it has little to do with unconstitutionality of the HACEP regula-
the doctrine of overbreadth. “[O]verbreadth tionsSSthat is, she is unable, for example, to
challenges call for relaxing familiar require- receive unsolicited flyers and notices from
ments of standing, to allow a determination non-residents who have not given advance no-
that the law would be unconstitutionally ap- tice to housing management. The overbreadth
plied to different parties and different circum- argument, therefore, is inapplicable to de la
stances from those at hand.” Sabri v. United O’s case. The new regulations do not run
States, 541 U.S. 600, 609 (2004). For exam- afoul of the First Amendment, and the plain-
ple, in Virginia v. Hicks, 539 U.S. 113, 118 tiffs are not entitled to injunctive relief.
(2003), the defendant sought to avoid convic-
tion by invoking the overbreadth doctrine and V.
challenging the constitutionality of a Virginia Even though HACEP has voluntarily
trespass statute. amended the challenged regulations, de la O’s
complaint seeks not only injunctive relief, but
Hicks [did] not contend that he was en- also damages. Consequently, as discussed
gaged in constitutionally protected conduct above, HACEP’s voluntary amendment of the
when arrested; nor [did] he challenge the rules does not render moot the plaintiffs’ ob-
validity of the trespass statute under which jections to the prior regulations, so we must
he was convicted. Instead he claim[ed] that consider, in addition to the constitutionality of
the RRHA policy barring him from the amended regulations, the propriety of the
Whitcomb Court [was] overbroad under regulations as they existed at the time of the
the First Amendment, and cannot be ap- district court’s decision.
plied to himSSor anyone else.
The changes in the regulations certainly
Id. have no effect on the nature of the forum in
question. That is, HACEP facilities have been
In this case, therefore, overbreadth analysis non-public fora both before and after the
might be helpful to de la O were she, say, a amendments to the regulations. Similarly,
trespasser who was arrested pursuant to the there is no indication in the record that the
HACEP regulations and yet was not on previous regulations were anything but com-
HACEP property to engage in First Amend- pletely neutral as to content and viewpoint,
ment-protected conduct, but instead was pres- both on their face and as applied. The relevant
ent merely to loiter. In such a circumstance, inquiry, therefore, goes to the “reasonable-
normal standing requirements would preclude ness” of those regulations with reference to the
her from challenging the constitutionality of purpose of the forum. See Good News Club,
the regulations. Invoking overbreadth, how- 533 U.S. at 107.
ever, would enable her to benefit from the
same First Amendment arguments available to Before their amendment, the regulations re-
those who are legitimately burdened by alleg- stricted access to the HACEP complexes by
10
uninvited non-residents to those “persons who the issue, the exchange between the majority
have legitimate business on the premises, e.g., and the dissent in Vasquez omitted a key as-
law enforcement and other governmental per- pect of the issue. Rule D.5, before amend-
sonnel, utility service workers, HACEP con- ment, required that “[i]f a resident desires to
tractors, and others as authorized by HACEP.” distribute notices or flyers in his development,
All others found on the property would receive the resident must obtain advance approval of
a trespass warning and would be forced to the Development’s Housing Manager and pro-
leave or face arrest. Before the amendments, vide the Housing Manager with a copy of the
this regulation had no provision excepting proposed notice or flyer.” De la O argues now
those wishing to enter the property to engage on appeal that “[t]he Court has held that a
in political campaigning or religious proselytiz- requirement that one must register before he
ing. Additionally, residents wishing to distrib- undertakes to make a speech to enlist support
ute notices or flyers, door-to-door, were for a lawful movement is quite incompatible
forced to submit a copy, to management, of with the requirements of the First Amend-
the literature to be distributed and to receive ment.” See Thomas v. Collins, 323 U.S. 516,
prior approval. 539-40 (1945). The Supreme Court has
repeatedly reaffirmed that prior registration
Considering the constitutionality of the for- requirements are troubling in the free speech
mer regulations, in Vasquez, 271 F.3d at 206, context.18
the panel majority concluded that the pre-
amendment regulations were “an unreasonable The district court, in its otherwise compre-
restriction on the freedoms guaranteed by the hensive and persuasive order, gave scant atten-
First Amendment.” In reaching its decision, tion to the specific advance-approval require-
the panel relied heavily on the importance of ment of Rule D.5. The court did, however,
door-to-door campaigning in our democratic make the blanket statement (which we have
system. Because HACEP residents “generally previously noted) that “Plaintiffs have not pre-
conduct themselves like individuals in any oth- sented any evidence to suggest Rules D.2 and
er neighborhood in El Paso . . . the citizens D.5 were enacted, or are being applied, to cen-
who reside in the HACEP developments de- sor those messages with which HACEP dis-
serve access to political information in the agrees.”
same manner as other citizens of El Paso.” Id.
at 204. That statement is somewhat called into
question by summary judgment evidence from
In response, Judge Barksdale dissented, an affiant named Valverde, alleging that she
emphasizing that the purpose of the HACEP had a falling out with HACEP management
facilities is to provide housing, not a “meeting and certain fellow residents regarding her
place for the exchange of ideas.” Id. at 208. presidency of the residents’ association, stating
Additionally, the fact that there are a multitude that “I as a courtesy advised Linda Pena,
of alternative channels of communication, such
as the streets and sidewalks surrounding
HACEP complexes, provides further evidence 18
See Watchtower, 536 U.S. at 164; Hynes v.
of the reasonableness of the restrictions.
Mayor & Council, 425 U.S. 610, 629 n.4 (1976);
Eisenstadt v. Baird, 405 U.S. 438, 455 (1972)
Despite an otherwise exhaustive analysis of (Douglas, J., concurring).
11
Assistant Project Manager that I was going to portion of the judgment that blesses the former
leaflet the flyer herein contained as Exhibit ‘B.’ Rule D.5 is VACATED and REMANDED for
I did so in order to in order [sic] defend my any further proceedings that may be needed.
name. Later that day I was instructed by
Linda Pena, to stop leafleting. She said that
the order came from Bernie Rodriguez, Pro-
ject Manager.”
It is undeniable that the Constitution forbids
the use of a leafleting policy to quell certain
points of view. It is therefore necessary to
vacate and remand, but only as to the former
version of Rule D.5, so the district court can
determine whether it was used to discriminate
on the basis of viewpoint, and if so, whether
there was compensable injury. It may be that,
given the remainder of our determinations
regarding the past and present rules, the plain-
tiffs will no longer find it advisable to pursue
this very small portion of the case, but that is
for the district court and parties to resolve.
VI.
In summary, despite HACEP’s voluntary
decision to amend the challenged regulations,
a live controversy remains. With the exception
of the former Rule D.5 regarding prior ap-
proval, the present and past regulations pass
constitutional muster because the housing fa-
cilities are public fora.
The HACEP facilities are non-public fora
and, thus, restrictions on speech within their
confines are valid so long as they are view-
point-neutral and reasonable in light of the
purpose of the forum. The amended regula-
tions dispense with most of the problems to
which the Vasquez majority pointed. Under
the deferential “reasonableness” standard, they
are constitutional. The prior regulations pre-
sent a closer question but, in light of the over-
riding need to provide safe housing, they are
constitutional with the exception noted above.
The judgment is AFFIRMED, except that the
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