Doe v. City of Albuquerque, 667 F.3d 1111

Background

Doe is a registered sex offender who previously held a City library card and visited City libraries before March 2008.
On March 4, 2008, the City issued an Administrative Instruction banning all registered sex offenders from City libraries.
Doe received a letter informing him he could not enter the City libraries under the ban.
Doe sued in federal court asserting First Amendment right to receive information and Fourteenth Amendment equal protection claims, among others.
The district court granted summary judgment for Doe, concluding the ban violated the First Amendment in a designated public forum and was not narrowly tailored under Ward v. Rock Against Racism; the City appealed.
The appeal held that the City failed to present evidence on the Ward three-prong test, and the panel affirmed the district court’s judgment against the ban.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court properly analyzed the ban under First Amendment forum doctrine	Doe argued libraries are designated public fora; the ban must satisfy Ward's test.	City argued facial challenge eliminates need to show tailoring or alternatives; Ward test not required.	Yes; the libraries are designated public fora and Ward three-part test applies.
Whether the City bore the burden to justify tailoring and alternatives in a facial challenge	City did not present tailoring or alternatives evidence; constitutional invalidity follows.	City claimed no burden to prove anything in a facial challenge.	The City failed to meet Ward's tailoring and alternatives prongs; judgment for Doe affirmed.
Whether the ban is narrowly tailored to serve a significant government interest	Ban unconstitutionally overbroad; cannot be narrowly tailored without less restrictive means.	Ban serves safety interests; could be tailored in hypothetical ways; no actual evidence required in facial challenge.	City failed to show narrow tailoring; not permissible.
Whether the City left open alternative channels of communication for speech restricted by the ban	There were no adequate alternatives demonstrated by the City.	Assurance of alternative channels is unnecessary in facial challenge.	City did not prove ample alternative channels; restriction invalid on face.

Key Cases Cited

Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time, place, and manner restrictions require tailoring and alternatives)
Stanley v. Georgia, 394 U.S. 557 (U.S. 1969) (right to receive information is fundamental)
Martin v. City of Struthers, 319 U.S. 141 (U.S. 1943) (right to receive information includes right to obtain it)
Lamont v. Postmaster General, 381 U.S. 301 (U.S. 1965) (right to receive information recognized in mail/publication context)
Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992) (library access implicated in First Amendment right to receive information)
Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585 (6th Cir. 2003) ( First Amendment right to receive information case in library context)
Armstrong v. D.C. Pub. Library, 154 F. Supp. 2d 67 (D.D.C. 2001) (library access and First Amendment considerations)
Perry v. Perry Local Educators’ Ass’n, 460 U.S. 37 (U.S. 1983) (forum analysis framework for public property)
Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788 (U.S. 1985) (designated public forum framework)
Hawkins v. City & Cnty. of Denver, 170 F.3d 1281 (10th Cir. 1999) (libraries as designated public forum)
Callaghan v. Martinez, 130 F.3d 916 (10th Cir. 1997) (factors for determining designated public forum in libraries)
Martinez v. Martinez, 130 S. Ct. 2971 (2010) (designated public forum / membership considerations in policy)
United States v. Salerno, 481 U.S. 739 (U.S. 1987) (facial challenges standard discussion; no set of circumstances)