Case: 20-50702 Document: 00515927035 Page: 1 Date Filed: 07/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 6, 2021
No. 20-50702
Lyle W. Cayce
Clerk
Ryan Denton,
Plaintiff—Appellant,
versus
City of El Paso, Texas,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:20-CV-85
Before Wiener, Elrod, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
Ryan Denton is an evangelical Christian, and proselytizing is a tenet
of his faith. When he arrived at the El Paso Art and Farmers Market to
proselytize, City officials told Denton that City policy prohibited
proselytizing within the Market’s perimeter. Denton sued and moved for a
preliminary injunction to restrain the City and its agents from prohibiting
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-50702
proselytizing at the Market. The district court denied his motion, and
Denton filed this interlocutory appeal. For the reasons articulated herein, we
VACATE the district court’s order denying a preliminary injunction and
REMAND with directions to the district court to grant a preliminary
injunction enjoining El Paso from enforcing the City’s policy of prohibiting
religious proselytizing at the Market.
I.
Established in 2011, the El Paso Art and Farmers Market (“the
Market”) is a year-round, weekly outdoor event managed by the City of El
Paso through its Museum and Cultural Affairs Department (“MCAD”).
Farmers and merchants sell their wares from booths that they obtain through
an application process with MCAD. The Market takes place on public streets
and does not require a ticket for entry. Although the Market closed due to
the COVID-19 pandemic, it reopened on April 10, 2021.
Ryan Denton is an evangelical Christian. Proselytizing in public
places is a tenet of his faith. He proselytizes through literature distribution,
conversation, and unamplified preaching. On August 24, 2019, Denton went
to the Market to proselytize. Denton stood within the Market perimeter and
proselytized for a short time. Then a law enforcement officer with the
Sheriff’s Department and an MCAD employee approached Denton.
Invoking City policy, they told Denton that he could not proselytize within
the Market perimeter, that he would be arrested if he continued proselytizing
within the Market perimeter, and that he could continue his activities at any
area directly outside the Market perimeter. Denton declined to relocate and
left.
Subsequently, Denton, through counsel, sent a demand letter to El
Paso officials detailing the incident and requesting “written assurance . . .
that El Paso will allow him to speak on public streets inside the Farmer’s
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Market and other events that are free and open to the public.” The City
declined Denton’s demand, and this lawsuit followed. In his complaint,
Denton alleged that the City’s policy wrongfully prevented him from
proselytizing at the Market in violation of his constitutional rights, including
his rights to free speech, free exercise of religion, and due process. Denton
also moved for a preliminary injunction to restrain the City and its agents
from prohibiting religious proselytizing at the Market. After holding a
hearing and in a comprehensive order, the district court denied Denton’s
motion for a preliminary injunction. Denton v. City of El Paso, 475 F. Supp.
3d 620, 646 (W.D. Tex. 2020). Denton timely filed this interlocutory appeal.
II.
“In order to obtain a preliminary injunction, a movant must
demonstrate (1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable harm if the injunction does not issue; (3) that
the threatened injury outweighs any harm that will result if the injunction is
granted; and (4) that the grant of an injunction is in the public interest.”
Moore v. Brown, 868 F.3d 398, 402–03 (5th Cir. 2017).
This court reviews the denial of a preliminary injunction for abuse of
discretion. Robinson v. Hunt Cnty., 921 F.3d 440, 451 (5th Cir. 2019).
“Factual findings are reviewed for clear error, while legal conclusions are
reviewed de novo.” Moore, 868 F.3d at 403. “Under the clearly erroneous
standard, this court upholds findings by the district court that are plausible
in light of the record as a whole.” Id. “[A] district court clearly errs in its
factual findings if ‘an appellate court is left with the definite and firm
conviction that a mistake has been committed.’” Opulent Life Church v. City
of Holly Springs, 697 F.3d 279, 296 (5th Cir. 2012) (quoting Inwood Labs., Inc.
v. Ives Labs., Inc., 456 U.S. 844, 855 (1982)).
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A.
We first turn to Denton’s likelihood of success on the merits of his
free speech claim. Denton seeks to speak at the Market, which takes place
on El Paso’s public streets and which the parties agree is a traditional public
forum. The level of scrutiny with which we review a restriction on speech in
a traditional public forum turns on whether the restriction is content based
or content neutral.
A restriction is content neutral if it “serves purposes unrelated to the
content of expression . . . even if it has an incidental effect on some speakers
or messages but not others.” Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989). In contrast, a restriction is content based if it is “based on ‘the
specific motivating ideology or the opinion or perspective of the speaker’”
or “prohibit[s] . . . public discussion of an entire topic.” Reed v. Town of
Gilbert, 576 U.S. 155, 168–69 (2015) (first quoting Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); then quoting Consol. Edison
Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 537 (1980)).
“[T]he crucial first step in the content-neutrality analysis” is
determining whether the law is content neutral or content based on its face.
Id. at 165. A restriction on speech is content based “on its face” if it
“defin[es] regulated speech by particular subject matter.” Id. at 163. When
a restriction is content based on its face, the government’s purpose is
irrelevant. Id. at 166.
If the restriction is content based, it receives strict scrutiny: the
government “must show that its [restriction] is necessary to serve a
compelling state interest and that it is narrowly drawn to achieve that end.”
Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983).
Narrow tailoring requires that the regulation be the least restrictive means
available to the government. United States v. Playboy Ent. Grp., Inc., 529 U.S.
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803, 813 (2000). On the other hand, if the restriction is content neutral, it
receives intermediate scrutiny: the government must show that its restriction
is “narrowly tailored to serve a significant government interest, and leave
open ample alternative channels of communication.” Perry, 460 U.S. at 45;
see also Moore, 868 F.3d at 403–04.
Whether the restriction on speech—here, the City’s policy 1—is
content based or content neutral turns on the scope and nature of the policy,
which the parties dispute. Denton argues that the City’s policy is to prohibit
all religious proselytizing within the Market’s perimeter. The City argues
that its policy is to prohibit disruptive conduct within the Market’s
perimeter. The district court agreed with the City, finding that the City’s
policy was not a categorical ban on proselytizing but rather that “the policy
prevents only two things: 1) setting up at a fixed location without obtaining
advance permission from MCAD and 2) calling out to passersby.” Denton,
475 F. Supp. 3d at 639. Our review of the record, however, leaves us with the
“definite and firm conviction” that the district court committed clear error
in its factual finding as to the scope and nature of the City’s policy. Opulent
Life Church, 697 F.3d at 296; Moore, 868 F.3d at 403.
According to the Statement of Undisputed Facts that the parties
submitted to the district court, the City does not dispute that “El Paso rules
list ‘fundraising,’ ‘political campaigning,’ and ‘religious proselytizing’ as
1
The policy at issue in this case has not been formally enacted as a City ordinance.
An El Paso ordinance does, however, authorize the city manager or a designee “to create
an outdoor artist market permitting vendors to sell handmade or hand assembled
merchandise” and “to establish artist market procedures . . . for its operation.” El Paso,
Tex. Mun. Code § 2.40.100(B), available at https://bit.ly/2T55H4T (last visited May
24, 2021). The ordinance also authorizes MCAD “to temporarily close the public right-
of-way in the Union Plaza Area for the purpose of any artist market.” Id. § 2.40.100(D)(3).
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First Amendment activities that are barred from the Market.” The City,
therefore, categorically disallows any proselytizing in the Market.
Indeed, the City’s pre-litigation correspondence with Denton
confirms this categorical exclusion. In a letter to Denton, the City stated that
it “does not allow activities such as protesting, campaigning, lobbying,
proselytizing, or any other activity that could cause a disruption of
performances, vending, and/or operations, or pose a potential safety issue.”
Although the City asserts that its policy is merely one that prevents
disruptive conduct, the policy is actually a categorical ban on proselytizing.
As characterized by the City, the policy prohibits all proselytizing on the
assumption that it will be disruptive, rather than prohibits conduct because it
is disruptive.
Given the City’s characterization of its policy in the Statement of Un-
disputed Facts and its letter to Denton, the district court clearly erred in find-
ing that the City’s policy is merely one that prohibits potentially disruptive
speech. Denton, 475 F. Supp. 3d at 639. Accordingly, we find that the City’s
policy is content based because it “applies to particular speech because of the
topic discussed or the idea or message expressed”—here pro-religious
speech. Reed, 576 U.S. at 163. Moreover, the City’s policy is content based
on its face because it “defin[es] regulated speech by particular subject mat-
ter”—religious proselytization. Id. The City’s “innocuous justification” of
its policy—that it is merely trying to prevent disruptive speakers in the Mar-
ket—does not save the policy. Id. at 166. When a restriction is content based
on its face, the government’s purpose is irrelevant. Id.
Because its policy is content based, El Paso “must show that its [re-
striction] is necessary to serve a compelling state interest and that it is nar-
rowly drawn to achieve that end.” Perry, 460 U.S. at 45. Narrow tailoring
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requires that the regulation be the least restrictive means available to the gov-
ernment. Playboy Ent., 529 U.S. at 813. El Paso fails to make this showing.
It is unclear whether the City has asserted a compelling government
interest. We need not decide this issue because, even assuming that it did
assert a compelling government interest, a prior restraint of speech based on
a viewpoint is unlikely to be the least restrictive means of regulation available.
Courts disfavor wholesale bans on types of expression protected by
the First Amendment, and such bans are usually invalidated on the ground
that they clearly fail a “least restrictive means” analysis. See, e.g., Schneider
v. Town of Irvington, 308 U.S. 147, 160–65 (1939) (invalidating a ban on hand-
bill distribution on public streets because laws penalizing littering and fraud
were less intrusive means of serving the government’s interests); Martin v.
City of Struthers, 319 U.S. 141, 145–46 (1943) (invalidating a ban on door-to-
door handbill distribution because laws penalizing trespass and fraudulent so-
licitation were less intrusive means of serving the government’s interest);
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430 (1993) (invali-
dating an ordinance prohibiting newsracks dispensing commercial handbills
that amounted to a “sweeping ban that bars from its sidewalks a whole class
of constitutionally protected speech”); Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 337 (2010) (invaliding an “outright ban” on specific
types of corporate political speech); Ward, 491 U.S. at 799 n.7 (upholding a
sound amplification ordinance because it was not a ban on “all concerts, or
even all rock concerts, but instead focuse[d] on the source of the evils the city
s[ought] to eliminate—excessive and inadequate sound amplification—and
eliminate[d] them without at the same time banning or significantly restrict-
ing a substantial quantity of speech that does not create the same evils”); cf.
Ali v. Stephens, 822 F.3d 776, 786–94 (5th Cir. 2016) (holding that a correc-
tional facility’s outright ban on four-inch beards violated RLUIPA because it
was not the least restrictive means of furthering the government’s
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compelling interest). For that reason, the City’s policy is likely not narrowly
tailored. See Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S.
640, 662 (1981) (Brennan, J., concurring in part and dissenting in part) (ar-
guing that the State’s wholesale prohibition on literature distribution outside
of state fair booths was not narrowly tailored because the State, to advance
its asserted interest of preventing disorder, could have prohibited distribu-
tion at just entrance and exit points or limited the number of persons distrib-
uting an organization’s literature).
In sum, Denton has demonstrated a substantial likelihood of success
on the merits of his free speech claim. See Moore, 868 F.3d at 402–03.
B.
We now turn to the remaining three preliminary injunction
requirements: Denton must show “a substantial threat of irreparable harm if
the injunction does not issue,” “that the threatened injury outweighs any
harm that will result if the injunction is granted,” and “that the grant of an
injunction is in the public interest.” Moore, 868 F.3d at 402–03.
First, Denton has satisfied the irreparable harm requirement because
“[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Opulent Life Church, 697
F.3d at 295 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
Next, because we conclude that Denton’s harm is irreparable, El Paso
“would need to present powerful evidence of harm to its interests to
prevent” Denton from showing that the threatened injury outweighs any
harm El Paso would suffer as a result of the injunction. Id. at 297. El Paso
does not present such evidence. It argues that it has met its burden through
the MCAD Assistant Director’s affidavit that “recites past instances of
disruptive conduct having caused problems at the market.” But vague
assertions of “maintaining public safety” and “preserving the character of a
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public space for the enjoyment of its citizens” do not constitute “powerful
evidence of harm to its interests.” Id.
Finally, Denton has satisfied the fourth preliminary injunction
requirement because “[i]njunctions protecting First Amendment freedoms
are always in the public interest.” Id. at 298 (quoting Christian Legal Soc’y v.
Walker, 453 F.3d 853, 859 (7th Cir. 2006)).
III.
Because Denton has demonstrated that he is entitled to immediate
injunctive relief based on his free speech claim, we do not reach his free
exercise or due process claims. We VACATE the judgment of the district
court denying Denton’s request for a preliminary injunction and REMAND
for entry of relief.
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