Denton v. City of El Paso, 861 F. App’x 836

Background

The El Paso Art and Farmers Market is a year‑round weekly event on public streets; parties agree it is a traditional public forum.
The City’s Market rules (as represented in pre‑litigation correspondence and the parties’ Statement of Undisputed Facts) list “religious proselytizing” among First Amendment activities barred from the Market.
Ryan Denton, an evangelical proselytizer, was told on August 24, 2019 that he could not proselytize inside the Market perimeter and was directed to move outside the perimeter; he declined and left.
Denton sued the City and sought a preliminary injunction to enjoin enforcement of the Market policy against religious proselytizing; the district court denied the motion.
The Fifth Circuit reviewed the denial, concluded the City’s policy is a content‑based, facial ban on proselytizing (not merely a disruption rule), and held Denton showed a substantial likelihood of success and entitlement to a preliminary injunction.
The court vacated the district court’s denial and remanded with directions to enter a preliminary injunction on free speech grounds; it did not decide Denton’s free exercise or due process claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
What forum and level of scrutiny apply to the Market restriction?	Market is on public streets (traditional public forum); policy is a categorical ban on religious proselytizing → content‑based → strict scrutiny.	Policy targets disruptive conduct, not content → content‑neutral → intermediate scrutiny.	Market is a traditional public forum; the City’s rule is content‑based on its face; strict scrutiny applies.
Does the policy satisfy strict scrutiny / is it narrowly tailored (least restrictive means)?	Policy is a wholesale ban on proselytizing and not the least restrictive means; less intrusive alternatives exist.	City asserts interests in preventing disruption, preserving market operations, and safety.	City failed to show the policy is narrowly tailored or the least restrictive means; categorical ban likely unconstitutional.
Do the preliminary‑injunction equity factors favor relief (irreparable harm; balance of harms; public interest)?	Loss of First Amendment rights is irreparable; public interest favors protecting speech; balance favors plaintiff absent strong evidence of City harm.	City points to past disruptive incidents and general public‑safety/operation concerns.	Denton showed irreparable harm; City offered no “powerful” evidence of countervailing harm; public interest favors injunction.
Scope of relief / other claims to be resolved?	Requests injunction against enforcement of the proselytizing ban; also pleads free exercise and due process claims.	N/A	Court granted relief on free speech grounds, vacated district denial, remanded to enter preliminary injunction; did not reach free exercise or due process.

Key Cases Cited

Reed v. Town of Gilbert, 576 U.S. 155 (2015) (defines content‑based restriction; strict scrutiny on its face).
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content‑neutral time/place/manner standard; intermediate scrutiny).
Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37 (1983) (forum analysis and standards for public fora).
United States v. Playboy Ent. Grp., Inc., 529 U.S. 803 (2000) (narrow tailoring and least restrictive means requirement).
Schneider v. Town of Irvington, 308 U.S. 147 (1939) (invalidating broad ban on handbill distribution; less restrictive means).
Martin v. City of Struthers, 319 U.S. 141 (1943) (struck down ban on door‑to‑door handbills).
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (invalidating sweeping ban that excludes a whole class of protected speech).
Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury).
Opulent Life Church v. City of Holly Springs, 697 F.3d 279 (5th Cir. 2012) (preliminary‑injunction standards and irreparable‑harm discussion).
Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (literature distribution restrictions and tailoring considerations).