271 F.3d 198 | 5th Cir. | 2001
Lead Opinion
Jesus De La 0 appeals an adverse summary judgment in his action challenging the El Paso Housing Authority’s enforcement of a trespassing regulation against candidates engaged in door-to-door campaigning. Concluding that the restriction, as applied to nonresident political volunteers, violates the first amendment, we reverse and remand.
BACKGROUND
De La 0 resides in the Sun Plaza Apartments, a housing unit owned by the Housing Authority of the City of El Paso (“HA-CEP”). Roberto Vasquez, a candidate for El Paso County Democratic Chair, sought to distribute literature and to engage in
The second regulation, entitled “Notices and Flyers,” prohibits the distribution of such materials without prior approval of the Development’s Housing Manager. It allows residents to distribute literature only between 9:00 a.m. and 8 p.m. and forbids the placing of leaflets on the doors of residents who do not answer.
The De La O and Vasquez action challenges the regulations restricting nonresident access. The trial court issued a Temporary Restraining Order enjoining HACEP from preventing Vasquez and other candidates from campaigning on HACEP’s property until a final hearing could be held. That hearing followed and the parties filed dispositive motions. HA-CEP moved to dismiss the action and, alternatively, for summary judgment. De La O and Vasquez responded by filing their own motions for summary judgment. The trial court entered final judgment granting HACEP’s motion for summary judgment. In its Memorandum Opinion and Order the court found that the housing development was a non-public forum and that the regulations were a reasonable response to relevant safety concerns. De La O appealed, asserting his constitutional right to receive oral and written presentations from political candidates or their representatives.
ANALYSIS
We review a summary judgment de novo, affirming if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
I. Right to Receive Information Protected Under First Amendment
We will address the question of the propriety of a challenged regulation, such as that at bar, if the activity at issue implicates the first amendment. HACEP
The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature, and necessarily protects the right to receive it.4
II. Forum Analysis
After finding that the activity at issue implicates the first amendment, “we must determine the level of scrutiny that applies to the regulation of protected speech at issue.”
We agree with the district court that the HACEP developments fall within the category of nonpublic fora.
We recognize that HACEP shares many similarities with the government town at issue in Tucker v. State of Texas,
III. Constitutionality of the Housing Authority Regulations
The determination that the HA-CEP developments are nonpublic fora does not end our inquiry. We must evaluate the regulations at issue under the standard established by the Court for restrictions on speech in nonpublic fora. The government may regulate expressive activities in a nonpublic forum “as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”
A. Viewpoint Neutrality
We agree with the district court that Rules D2 and D5 are viewpoint neutral because they apply to all nonresidents who
B. Reasonableness
With due pause and after careful consideration we disagree with trial court that Rules D2 and D5 constitute reasonable regulations when applied to political candidates and their campaign volunteers. The trespass regulation, as applied to political campaigning, strikes at the very core of our democratic system. “Mere legislative preferences or beliefs respecting matters of public convenience may well support, regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.”
As noted by the Court, “consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved.”
We note with some focus that the record reflects that HACEP does not ban all nonresidents, as the trespass regulation does not apply to certain individuals. These include members’ guests and visitors, and “such other persons who have legitimate business on the premises, e.g., law enforcement and other government personnel, utility service workers, HACEP contractors, and others as authorized by HA-CEP.” That the regulation lists certain groups as “examples” indicates to us that HACEP contemplates the existence of other groups, unmentioned in the regulation, who fall under the category of individuals with “legitimate business on the premises.” We are persuaded beyond peradventure that the wholesale exclusion of political candidates and their volunteers from this category unreasonably and unnecessarily interferes with what may well be the primary connection between many of HA-CEP’s residents and the democratic process.
Finally, “[i]n considering legislation which thus limits the dissemination of knowledge, we must ‘be astute to examine the effect of the challenged legislation’ ....”
We recognize that in Daniel v. City of Tampa, the Eleventh Circuit reached an opposite conclusion with respect to a nearly identical statute, Florida Statute Chapter 810.09.
“This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties.”28
IV. Conclusion
The nature of HACEP’s developments make an outright ban on door-to-door political campaigning by nonresidents an unreasonable restriction on the freedoms guaranteed by the first amendment. For the reasons assigned, we REVERSE and REMAND for further proceedings not inconsistent herewith.
.Housing Authority of the City' of El Paso, Community and Resident Rules for Public Housing and Section 8 New Construction Program, Rule D2.
. Id., Rule D5.
. Harris v. Rhodes, 94 F.3d 196 (5th Cir.1996).
. Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (citations omitted).
. United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion).
. Perry Educ. Ass'n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).
. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (quoting Perry, 460 U.S. at 45, 103 S.Ct. 948).
. Id. (citing Perry, 460 U.S. at 45-46 and n. 7, 103 S.Ct. 948).
. Perry, 460 U.S. at 46, 103 S.Ct. 948.
. See also Daniel v. City of Tampa, 38 F.3d 546 (11th Cir.1994) (finding that Florida's housing complexes are nonpublic fora).
. See, e.g., Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (finding university facilities a designated public forum with first amendment rights of equal access to students); City of Madison Joint Sch. Dist. No. 8 v. Wis. Employment Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (finding school board meeting a designated public forum with respect to issues relating to operation of district’s public schools).
. 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274 (1946).
. 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976).
. United States v. Kokinda, 497 U.S. 720, 727, 110 S.Ct.. 3115, 111 L.Ed.2d 571(1 990) (citing Greer v. Spock, 424 U.S. 828, 835-37, 96 S.Ct. 1211 (1976)).
. Id.
. Perry Educ. Ass'n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).
. United States Postal Serv. v. Greenburgh Civic Ass’ns, 453 U.S. 114, 129, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981).
. Kokinda, 497 U.S. at 725, 110 S.Ct. 3115.
. Schneider v. State (City of Irvington)), 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939).
. Martin v. City of Struthers, 319 U.S. 141, 146, 63 S.Ct. 862 (1943) (citations omitted).
. Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 650-51, 101 S.Ct. 2559 (1981).
. Specifically, getting prior permission to distribute any notices or flyers from the Housing Manager at Sun Plaza and going door-to-door between the hours of 9 a.m. and 8 p.m.
.We note that HACEP uses a system, the specifics of which are not contained in the record, by which law enforcement officers malee the determination of who to "warn” after asking for identification. The government personnel, utility service workers, etc., who qualify as having "legitimate business on the premises” must carry some type of identification to satisfy the officers that their presence on HACEP property is warranted. We can think of no reasonable explanation for barring political candidates from obtaining similar identification. If the checking of an individual's credentials by law enforcement officials serves as sufficient protection when allowing government personnel, contractors and others on to the premises, the same safeguards should provide ample security when dealing with political candidates and their representatives.
. Martin, 319 U.S. at 144, 63 S.Ct. 862 (quoting Schneider, 308 U.S. at 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939)).
. Id. at 145, 63 S.Ct. 862 (discussing crime prevention in context of city-wide regulation prohibiting door-to-door leafleting).
. 38 F.3d 546 (11th Cir.1994).
. Id. at 550.
. Schneider v. State (City of Irvington), 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939).
Dissenting Opinion
dissenting:
I agree with the majority that resident Jesus De La 0 has standing to challenge the regulations at issue and that Sun Plaza Apartments, owned by the Housing Authority of the City of El Paso (HACEP), is not a public forum. However, I must dissent from the majority’s holding that those regulations are not reasonable in the light of the purpose of the HACEP properties— providing affordable housing to its low income, primarily elderly residents.
I.
Jesus De La 0, a Sun Plaza Apartments resident, challenges two regulations— Rules D2 and D5 — promulgated by HA-CEP: “Trespass After Warning” (Rule D2) and “Notices and Flyers” (Rule D5). The “Trespass After Warning” regulation limits access to HACEP property to lawful residents, invited guests, and other persons with legitimate business on the property, such as law enforcement and government personnel, utility workers, HACEP contractors, and individuals authorized by HACEP. Housing Authority of the City of El Paso, Tex., Community and Residential Rules for Public Housing and Section 8 New Construction Program, Rule D2 (19 Aug. 1998). Persons who refuse to identify themselves, or who cannot prove authorization to be on the premises, receive a “trespass warning”, requiring them to leave the property or be arrested. Id.
The “Notices and Flyers” regulation limits distribution of literature by residents of HACEP properties to specified hours and prohibits leaving flyers “in plain view on a resident’s door” when a resident does not answer. Id., Rule D5 (as amended 1 Feb. 2000).
The HACEP Director of Housing Management stated that the purpose of Rules D2 and D5 is the protection and safety of tenants, because: most arrests on HACEP
II.
As the majority notes, when First Amendment claims are implicated, there are three types of government-owned property under the Supreme Court’s “forum analysis”: the traditional public forum, the designated forum, and the nonpublic forum. See United States v. Kokinda, 497 U.S. 720, 726-27, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). And, as the majority holds, Sun Plaza Apartments and other HACEP properties can be nothing other than nonpublic fora. Maj. Op. at 203. Consequently, “the state may reserve the forum for its intended purposes ... as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view”. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see also Cornelius v. NAACP Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Hobbs v. Hawkins, 968 F.2d 471, 481 (5th Cir.1992).
As the majority holds, Rules D2 and D5 are viewpoint neutral as written and as applied. Maj. Op. at 204. Considering the uncontradicted evidence concerning HA-CEP’s purpose for its properties, I would hold, however, that the regulations are “reasonable in light of the purpose served by the forum”. Hobbs, 968 F.2d at 481.
While the majority acknowledges the nonpublic forum reasonableness test, it ignores the Supreme Court’s explanation of how to evaluate the reasonableness of a regulation. “The Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S. at 808, 105 S.Ct. 3439 (emphasis in original and emphasis added). The majority incorrectly concludes that the regulations are not reasonable because there are other approaches that HACEP could have taken.
In contrast to the majority’s method of finding another approach that it deems reasonable, we should accept the uncontested explanation of the HACEP Director of Housing Management that the “Trespass After Warning” regulation (Rule D2) is a reasonable response to the problem of rampant crime in low-income housing developments. See Daniel v. City of Tampa, Florida, 38 F.3d 546, 550 (11th Cir.1994); see also Williams v. Nagel, 162 Ill.2d 542,
In fact, the majority ignores its own forum analysis. In deciding the HACEP properties are nonpublic, the majority correctly concludes that the purpose of the properties is not to provide a meeting place for the exchange of ideas but rather to provide affordable housing. Maj. Op. at 203. Once the majority reaches the reasonableness inquiry, however, it focuses on the importance of communication and access to information, which ignores that the reasonableness of the regulation should be judged by reference to the purpose of the forum.
Furthermore, while no one would disagree with the majority’s most commendable interest in promoting the democratic process, another factor that is integral to the evaluation of the reasonableness of a regulation is whether alternative channels of communication exist. Cornelius, 473 U.S. at 809, 105 S.Ct. 3439 (direct mail and in-person solicitation outside the forum as alternatives); Perry Educ. Ass’n, 460 U.S. at 53, 103 S.Ct. 948 (bulletin boards, meeting facilities, and United States mail available). The HACEP Director of Public Housing’s uncontradicted affidavit explained that all HACEP properties are adjacent to public streets and sidewalks, and that De La O’s complex, Sun Plaza Apartments, “is completely bounded by city streets and sidewalks” open to the public. De La O and others are free to hear the messages of various political candidates outside their complex and decide whether to invite them inside the development in compliance with HACEP’s safety regulation. Also (and obviously), there is no regulation preventing a direct mail campaign to HACEP residents.
Without addressing the readily available alternative channels of communication,
The majority also mistakenly focuses on the distinction between those allowed on the premises and those not. However, the Supreme Court has spoken to this point as well:
Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property.
Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. 948. Consequently, it is entirely appropriate for HACEP to make distinctions based on the identity of the speaker: residents, invited guests, and those with official business are allowed to remain, while others, such as political canvassers, uninvited solicitors, illegal aliens, and those intent on criminal activity, are required to leave.
III.
In contrast to the majority, I believe that the approach by the Eleventh Circuit seven years ago in addressing a nearly identical statute is correct. See Daniel, 38 F.3d at 550-51. As in Daniel, I would affirm the summary judgment. The two Rules at issue are reasonable because the purpose of the HACEP properties is to provide affordable housing and not a vehicle for political canvassing. Accordingly, I respectfully dissent.
. The majority suggests that political canvassers could obtain identification. Apart from ignoring that most of the individuals with "legitimate business on the premises” have a specific job that does not involve walking from door-to-door throughout a HACEP complex, the majority also does not address the myriad problems that would arise from this approach. For example, are there limits on the number of ID badges provided? How should HACEP determine who is a legitimate candidate? Would this authorization extend to political organizations and interest groups?
. Instead, the majority quotes from Martin v. City of Struthers, Ohio, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), a case decided prior to the Supreme Court's "forum analysis” approach and holding unconstitutional a city-wide ban on door-to-door solicitation at residential homes.