Herridge v. Montgomery County
21-20264
| 5th Cir. | Apr 1, 2022Background
- Joshua Herridge, a Christian, was stopped by officers while attempting to preach, leaflet, and hold signs near the Cynthia Woods Mitchell Pavilion during a ZZ Top concert; officers directed him to relocate to a different corner where such activity would be allowed.
- Montgomery County enforces an unwritten policy banning pedestrian activities (vendors, leafleting, sign-holding, preaching) in the Pavilion perimeter during large events, citing pedestrian–vehicular safety concerns and prior vendor-caused congestion.
- Herridge sued under the First and Fourteenth Amendments challenging the policy as an unconstitutional time/place/manner restriction on religious speech.
- The district court granted summary judgment for the County, and the Fifth Circuit affirmed insofar as the policy barred oral preaching but found the district court had not addressed whether banning leafleting and sign-holding was necessary to protect public safety.
- The panel vacated the portion of the judgment that allowed prohibition of leafleting and sign-holding and remanded for the district court to analyze narrow tailoring for those activities; concurring opinions emphasized factual distinctions between preaching and leaflet/sign distribution and criticized reliance on vendor-related evidence to justify prohibiting leafleting.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the unwritten policy’s prohibition on oral preaching in the Pavilion perimeter violates the First Amendment | Herridge: preaching is protected religious speech on public property | County: policy is necessary to protect pedestrian and vehicular safety during large events | Affirmed for preaching — district court correctly granted summary judgment for County on preaching ban |
| Whether banning leafleting and sign-holding is narrowly tailored to serve a significant public‑safety interest | Herridge: leafleting/signs are less obstructive than vendors and do not create the asserted dangers | County: a full ban on pedestrian activities during events prevents congestion that risks spillover into streets | Vacated and remanded — appellate court requires district court to analyze narrow tailoring as to leafleting/signs |
| Whether evidence about commercial vendors and vendor-related congestion can justify prohibiting leafleting | Herridge: vendor harms do not show leafleting presents similar obstructions; distinct activities require distinct treatment | County: prior vendor problems support a full prohibition on pedestrian activities to protect safety | Panel (concurring opinions): vendor evidence alone is insufficient to justify banning leafleting absent record evidence that leafleting causes comparable hazards; remand directed |
| Scope of remedy and next steps | Herridge sought permission to leaflet/hold signs (and earlier referenced preaching) | County contends enforcement against multiple activities under policy | Court: affirmed in part, vacated in part, remanded for detailed factual and narrow‑tailoring analysis regarding leafleting and sign‑holding |
Key Cases Cited
- Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (upheld regulation of speech at events while recognizing literature distribution from fixed positions could be permitted)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner restrictions must be narrowly tailored to serve a significant governmental interest)
- Frisby v. Schultz, 487 U.S. 474 (1988) (complete bans may be narrowly tailored only if each proscribed activity is an appropriately targeted evil)
- Saieg v. City of Dearborn, 641 F.3d 727 (6th Cir. 2011) (distinguishes leafletting from more obstructive vendor activity and analyzes narrow tailoring in event perimeters)
- United States v. Belsky, 799 F.2d 1485 (11th Cir. 1986) (distinguishes literature distribution from solicitation/sales for crowd‑control and intrusion concerns)