Aptive Environmental v. Town of Castle Rock ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
May 15, 2020
PUBLISH Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
APTIVE ENVIRONMENTAL, LLC,
Plaintiff-Appellee,
v. No. 18-1166
TOWN OF CASTLE ROCK,
COLORADO,
Defendant-Appellant.
---------------------------------------------
INTERNATIONAL MUNICIPAL
LAWYERS ASSOCIATION;
COLORADO MUNICIPAL LEAGUE,
Amici Curiae.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:17-CV-01545-MSK-MJW)
Brian J. Connolly, (J. Thomas Macdonald with him on the briefs), Otten, Johnson,
Robinson, Neff & Ragonetti, P.C., Denver, Colorado, for Defendant-Appellant.
Jeremy A. Fielding, Lynn Pinker Cox & Hurst, LLP, Dallas, Texas (David S.
Coale, Jonathan D. Kelley and Paulette C. Miniter, Lynn Pinker Cox & Hurst,
LLP, Dallas Texas; and Steven J. Perfrement, Bryan Cave Leighton Paisner LLP,
Denver Colorado, with him on the brief), for Plaintiff-Appellee.
Laura K. Wendell and Susan L. Trevarthen, Weiss Serota Helfman Cole &
Bierman, P.L., Coral Gables, Florida, filed an amicus curiae brief on behalf of
International Municipal Lawyers Association supporting Defendant-Appellant.
Todd G. Messenger, Fairfield and Woods, P.C., Denver, Colorado, filed an
amicus curiae brief on behalf of The Colorado Municipal League supporting
Defendant-Appellant.
Before HARTZ, HOLMES, and CARSON, Circuit Judges.
HOLMES, Circuit Judge.
The Town of Castle Rock, Colorado (“Castle Rock” or “Town”) enacted a
7:00 p.m. curfew on commercial door-to-door solicitation (the “Curfew”). Aptive
Environmental, LLC (“Aptive”) sells pest-control services through door-to-door
solicitation and encourages its salespeople to go door-to-door until dusk during
the traditional business week. When Aptive came to Castle Rock in 2017, it
struggled to sell its services as successfully as it had in other nearby markets.
Blaming the Curfew, Aptive sued Castle Rock for violating its First Amendment
rights and sought an injunction against the Curfew’s enforcement. After a bench
trial, the district court permanently enjoined Castle Rock from enforcing the
Curfew. Castle Rock appealed. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm the district court’s judgment, concluding that Castle Rock has failed to
demonstrate that the Curfew advances its substantial interests in a direct and
material way. In the following discussion, we summarize the relevant factual and
2
procedural background, assure ourselves that Aptive has standing to challenge the
Curfew, and explain why Castle Rock has failed to carry its burden of
demonstrating that its Curfew is constitutional.
I
A
On appeal, Aptive’s dispute with Castle Rock is based solely on Castle
Rock’s decision to enact the Curfew on commercial door-to-door solicitation.
Below, we discuss the purported impetus for the Curfew, the specific provisions
of Castle Rock’s laws that established the Curfew, and the Curfew’s impact on
Aptive.
1
Prior to 2008, Castle Rock did not have a curfew on door-to-door
solicitation. However, in 2007, a door-to-door solicitor approached a member of
Castle Rock’s elected town council while the council member was working in his
garage. The council member was startled by the interaction, and, at subsequent
town council meetings, he suggested that Castle Rock enact further restrictions on
door-to-door solicitation. At these meetings, the town council decided to
specifically target commercial door-to-door solicitation because Castle Rock’s
attorney had explained that regulation of noncommercial speech would raise
constitutional concerns. Meeting notes similarly reflect that council members
discussed the “fact that even if sales could be limited, religious and other groups
3
who went door to door to educate and inform citizens were protected by the First
Amendment.” Aplt.’s App., Vol. V, at A1321 (Town Council Study Session
Notes, dated Aug. 21, 2007).
With the focus on commercial door-to-door solicitors, Castle Rock
considered a monograph on door-to-door solicitation prepared by the Colorado
Municipal League, which summarized various ordinances existing elsewhere. Id.,
Vol. VI, at A1354 71 (Mem. re: Residential Door-to-Door Solicitation). Castle
Rock’s attorney also talked to other municipalities about ordinances that they had
enacted. Based on this research, Castle Rock’s attorney recommended adding a
curfew barring commercial door-to-door solicitation from 7:00 p.m. to 9:00 a.m.
because, in his view, such an ordinance “provide[d] a reasonable balance for
residents and [commercial] solicitors.” Id. at A1378 79 (Agenda Mem., dated
Mar. 25, 2008).
The town council and Castle Rock employees discussed the purported need
for such an ordinance with the Town’s police chief. The police chief reported
that the police had received eight “reports” concerning door-to-door solicitation
and twenty to thirty more informal solicitation “complaints,” some of which
involved door-to-door solicitation, so far that year. Id., Vol. V, at A1313 (Email
re: Proposed Memo on Door-to-Door Solicitation, dated Aug. 15, 2007). He
noted that several citizens reported feeling “harassed” or “intimidated” by
solicitors. Id. Castle Rock’s clerk circulated a memorandum that similarly stated
4
“the Police Department often receives calls from citizens concerned about various
salespersons wondering [sic] about their neighborhoods.” Id. at A1305 (Agenda
Mem., dated Aug. 21, 2007). And, more specifically, the clerk noted that the
Town had received one complaint about an individual soliciting at 9:45 p.m. Id.
at A1327 (Agenda Mem., dated Oct. 23, 2007).
Finally, in addition to this discussion with Castle Rock’s attorney and the
police department, a former council member and a former mayor later testified
that the ordinance including the Curfew was enacted in response to citizens’
privacy and safety concerns. As to privacy, the former town council member
testified that, before the ordinance’s enactment, he had discussed the ordinance
with his neighbors and that they had agreed that 7:00 p.m. was “a reasonable
time” for a curfew. Id. at A1081 82 (Trial Test. of Mitch Dulleck, dated Feb. 20,
2018). Some neighbors told him that they had negative experiences with
“aggressive” solicitors. Id. at A1084. Other council members had similar
conversations with constituents. And as for public safety, the former mayor of
Castle Rock testified that “when [the] Council was considering the Curfew, there
‘probably was [sic] some thoughts’ that ‘reasonable people would think that
people walking around their neighborhood or up to their home could potentially
be somebody that might create a crime in the town.’” Id., Vol. II, at A234 (Joint
Stipulation as to Facts, filed Jan. 10, 2018). The former council member echoed
these concerns, stating that he “definitely” thought that it “could be a possibility”
5
that individuals posing as door-to-door solicitors were engaging in criminal
activity. Id., Vol. V, at A1085 86.
Nevertheless, the former council member said that he was unaware of any
crimes that had been committed by commercial solicitors. And the former mayor
testified that
to the best of his recollection . . . prior to passing the . . .
Ordinance there was no discussion or analysis by the Town
Council of (a) crime in Castle Rock; (b) solicitation-related crime
in Castle Rock; (c) crime committed by commercial solicitors in
Castle Rock; (d) crime committed by commercial solicitors in
Castle Rock after 7:00 p.m.; or (e) how a 7:00 p.m. curfew would
protect public safety and privacy.
Id., Vol. II, at A228; see also id. at A228 29 (the former mayor noting that “there
was no discussion by the Town Council of specifically how a 7:00 p.m. curfew
that applied only to for-profit commercial solicitors would protect public safety
and privacy”).
2
The Castle Rock town council enacted an ordinance to address their
concerns regarding commercial door-to-door solicitation on April 8, 2008 (the
“2008 ordinance”). The 2008 ordinance included certain prefatory clauses stating
that the ordinance was being enacted to protect Castle Rock’s citizens’ privacy
and public safety. As to the latter, the prefatory clauses specifically stated that a
significant percentage of criminal activity involved trespass, that individuals
posed as door-to-door solicitors to commit crimes, that crime often occurs at
6
night, and that unregulated door-to-door solicitation posed a risk to citizens. But,
other than the anecdotal information summarized above, the town council did not
have evidentiary support for these prefatory statements. 1
1
Among the prefatory statements were the following:
WHEREAS, the Town of Castle Rock has an interest in
protecting its citizens’ right to privacy in their own homes, in
preserving the public peace and order, and in protecting the
public safety and welfare; and
WHEREAS, the Town of Castle Rock is a largely residential
community whose residents value the peace and quiet enjoyment
of their private property; and
WHEREAS, the Town Counsel finds that unregulated door-to-
door solicitation within the Town would degrade and adversely
impact the peace and quiet enjoyment of private property; and
WHEREAS, a significant percentage of the reported criminal
activity within the Town of Castle Rock during 2006 and 2007
involved uninvited access to private property, including theft,
burglary, criminal mischief and trespass; and
WHEREAS, some persons are known to pose as door-to-door
solicitors in an effort to engage in criminal activity and illegal
entry onto private property; and
WHEREAS, criminal activity on private property often occurs
during nighttime hours; and
...
WHEREAS, the Town Council finds and determines that
unregulated door-to-door solicitation within the Town would
present a danger to Town residents and their private property,
especially where residents are alone or are absent when persons
(continued...)
7
The 2008 ordinance required commercial solicitors to register with the
town clerk, pay a fee, and follow various requirements, including as most
relevant here the Curfew. Specifically, commercial solicitors were not to
“[e]nter upon any private property within the Town after seven o’clock P.M. (7:00
P.M.) and before nine o’clock A.M. (9:00 A.M.).” Id., Vol. VI, at A1450 51
(Ordinance No. 2008-15, dated Apr. 8, 2008). The 2008 ordinance also made it
unlawful for any business entity to “instruct, direct, command, order, organize, or
otherwise arrange for any person to engage in solicitation” in violation of the
ordinance’s provisions. Id. at A1451. The 2008 ordinance also included a
criminal penalty: those violating it would “be punished by a fine of not more than
one thousand dollars ($1,000.00) or by imprisonment not to exceed one (1) year,
or by both such fine and imprisonment.” Id. at A1452.
The 2008 ordinance expressly exempted noncommercial solicitors from its
registration requirements and the Curfew. Individuals falling into the
classification of noncommercial solicitors included those who engage in door-to-
door solicitation “for the primary purpose of”:
[a]ttempting to enlist support for or against a particular
religion, philosophy, ideology, political party, issue or candidate,
1
(...continued)
gain or seek to gain entrance onto their property or into their
homes[.]
Aplt.’s App., Vol. VI, at A1445.
8
even if incidental to such purpose the canvasser accepts the
donation or money for or against such cause; or
....
[a]ttempting to obtain a donation to a particular
patriotic, philanthropic, social service, welfare, benevolent,
educational, civic, fraternal, charitable, political or religious
purpose, even if incidental to such purpose there is the sale of
some good or service . . . .
Id. at A1447 48. 2
The Castle Rock town council considered a new ordinance addressing door-
to-door solicitors in the latter part of 2013 and ultimately approved it on January
7, 2014 (the “2014 ordinance”). 3 Castle Rock’s mayor testified that “to the best
of her recollection,” she “was unaware of any research, studies, investigation or
analysis performed by the Town prior to passing the 201[4] Ordinance,” other
than “non-specific complaints from residents and recommendations . . . from the
Town staff.” Id., Vol. II, at A231.
The 2014 ordinance primarily clarified and amplified certain definitions,
and it also “expanded the nature of the background check, the grounds for denial,
2
The 2008 ordinance referred to noncommercial solicitors whose
primary purpose was to enlist supporters as “canvassers.”
3
Although this ordinance was approved and became effective at the
beginning of 2014, in their initial factual stipulations, the parties referred to it as
the “2013 Ordinance.” Aplt.’s App., Vol. II, at A230. However, in their
amended factual stipulations filed about one month later, they referred to it as the
“2014 Ordinance.” Id., Vol. III, at A640 (First Am. Joint Stipulation as to Facts,
filed Feb. 9, 2018). Following the parties’ lead, we refer to the ordinance as the
“2014 ordinance.”
9
and required solicitors to wear identifying badges.” Id., Vol. IV, at A851 (Oral
Ruling, filed Apr. 6, 2018). As relevant to our resolution of this appeal, the 2014
ordinance’s changes to the 2008 ordinance are largely immaterial. 4 Notably, the
2014 ordinance incorporated by reference the 2008 ordinance’s prefatory
statements that is, “the findings and recitals” “as support for continuation” of
its regulation of commercial door-to-door solicitors and continued to impose
registration requirements and the Curfew solely on commercial solicitors. Id.,
Vol. V, at A1295 (Ordinance No. 2013-43, dated Jan. 7, 2014).
In all material respects, the Curfew remained the same. See id., Vol. III, at
A640 (stipulating that “[t]he 7:00 p.m. solicitation curfew . . . has been in effect
since the Town Council’s approval of the 2008 Ordinance”). Like the 2008
ordinance, the 2014 ordinance provided that “[n]o [commercial] solicitor shall . . .
. [e]nter upon any private property within the Town after 7:00 p.m. and before
9:00 a.m.” Id., Vol. V, at A1300 01. Furthermore, it continued to make it
4
For example, the 2014 ordinance adopted different terminology in
referring to noncommercial door-to-door solicitors (labeling all of them, as
opposed to just some, “canvassers”) and to commercial door-to-door solicitors
(labeling them all “solicitors,” and doing away with other labels for them). This
revision is of no moment in our resolution of this appeal. The critical distinction
drawn by both Castle Rock’s 2008 and 2014 ordinances is between commercial
and noncommercial solicitors. And that distinction is a key focus of our
discussion herein, including of relevant caselaw. Indeed, unless specifically
quoting from the 2014 ordinance or other legal sources, for simplicity’s sake and
to avoid confusion, we refrain from using labels like “canvassers.” Instead, we
refer to solicitors throughout as falling into two general camps: noncommercial
and commercial. Aptive’s solicitors of course fell into the latter category.
10
“unlawful for any person, organization, corporation, or business entity to instruct,
direct, command, order, organize, or otherwise arrange for any person to engage
in solicitation in violation” of the ordinance. Id. at A1301. Noncommercial
solicitors were again expressly exempted from the ordinance’s requirements;
notably, they could solicit door-to-door unimpeded by the Curfew.
Because Aptive’s conduct was regulated by Castle Rock’s 2014 ordinance,
we reference its terms below. We recognize, however, that we must carefully
examine the circumstances leading up to the enactment of the 2008 ordinance in
order to understand the legislative concerns that prompted Castle Rock to enact
the Curfew a curfew that carried over virtually verbatim from the 2008
ordinance to the 2014 ordinance.
3
Aptive engages in door-to-door sales of pest-control services. Aptive
ordinarily encourages its solicitors, who are employed as independent contractors,
to work during the traditional five-day business week “through dusk so as to
contact people” that were not home earlier in the day. Id., Vol. II, at A222. More
specifically, the independent contractors “set their own daily schedule,” but
Aptive encourages them “to work between 10:00 and 11:00 a.m., take a lunch
break between 2:30 and 4:00 p.m., and complete work at dark each day that they
worked.” Id. at A221 22. Aptive claims that “those [salespeople] that stay out”
until dusk “do better” than those that stop earlier in the day. Id. at A224. And
11
Aptive’s data confirm that, in the neighboring Denver area, some of its highest
rates of interaction with “decision makers” occur after 7:00 p.m. Id., Vol. V, at
A1293 (Company Stats).
On August 4, 2017, “Aptive applied for and received permits for its
representatives to conduct door-to-door solicitation activities” in Castle Rock. Id.,
Vol. I, at A87 (Scheduling Order, filed Aug. 29, 2017). Aptive complied with
Castle Rock’s Curfew and instructed its sales force to stop engaging in door-to-
door solicitation at 7:00 p.m., even though it would normally encourage them to
work through dusk. “In 2017, Aptive made 55 sales in [Castle Rock], which were
generally evenly distributed throughout the day, though none were sold after 7:00
pm.” Id., Vol. II, at A225. Aptive claimed that it was “half as effective in Castle
Rock as [it was] throughout the rest of the areas that didn’t require the curfew.”
Id., Vol. V, at A1197 (Trial Test. of Robert Hansen, dated Feb. 21, 2018). And
Aptive’s data confirm that it made fewer than half the average sales per hour in
Castle Rock than it did in the neighboring Denver area. After only a brief period,
Aptive ceased operations in Castle Rock.
B
Aptive filed suit alleging that the Curfew unconstitutionally burdened its
First Amendment right to engage in door-to-door solicitation. The district court
denied a pretrial motion to dismiss, in which Castle Rock had argued that Aptive
lacked standing to challenge the Curfew. The court then held a bench trial in
12
February 2018. In addition to presenting the above evidence about why Castle
Rock had originally enacted the Curfew, Castle Rock put on further evidence
about its present interests in maintaining the Curfew. Aptive also put on evidence
about its experience with the Curfew. We summarize this evidence as well as the
district court’s order enjoining enforcement of the Curfew.
1
At trial, Castle Rock sought to demonstrate that commercial door-to-door
solicitation after 7:00 p.m. was causing ongoing harm. But Castle Rock’s statistics
revealed that, while Castle Rock received twenty-five complaints relating
generally to solicitation in 2016, there was no evidence that any of these
concerned commercial solicitation after 7:00 p.m. Indeed, only a fraction of these
complaints involved solicitation after the Curfew at all: one complaint concerned a
noncommercial solicitor who was soliciting after 7:00 p.m.; there were no
complaints about commercial solicitation after 7:00 p.m. Expanding the focus
beyond the Curfew’s time window and looking at total complaints in 2016, there
was still no evidence of complaints about registered commercial solicitors like
Aptive’s. Two of the complaints involved noncommercial solicitors, six involved
commercial solicitors that had failed to register with the Town, and seventeen
involved individuals whose classification was unknown.
Likewise, Castle Rock’s statistics showed that while Castle Rock received
sixty-one solicitation-related complaints in 2017, ten of the complaints were about
13
noncommercial solicitors after 7:00 p.m., and none of the complaints were about
commercial solicitors after 7:00 p.m. And if we once again consider complaints
throughout the entire day, we find only one related to a registered commercial
solicitor. In contrast, there were fourteen complaints related to noncommercial
solicitors, sixteen related to unregistered commercial solicitors, and twenty-seven
related to individuals with an unknown classification.
Aside from these statistics, Castle Rock relied on testimony from individual
town members about the scope of ongoing problems caused by commercial door-
to-door solicitation. Castle Rock’s current town manager characterized
door-to-door solicitation as “a low-level, constant issue.” Id., Vol. IV, at A913
(Trial Test. of David Corliss, dated Feb. 20, 2018). Castle Rock introduced
testimony that its clerk received an average of about one complaint per week about
solicitors generally, i.e., without regard to whether they were commercial,
noncommercial, or registered. Some indeterminate number of these complaints
concerned solicitors that were coming after the Curfew and solicitors that were not
displaying their badges.
Castle Rock also presented testimony about the ostensible threat to public
safety posed by door-to-door solicitation. Castle Rock’s police chief stated that
door-to-door solicitation “gives somebody an opportunity to enter inside a home,
or even if they’re at the threshold of the doorway, to look inside the house, gather
information by talking to the individual.” Id., Vol. V, at A1126 (Trial Test. of
14
John Cauley, dated Feb. 21, 2018). He also stated “common sense tells us that as
it gets later in the evening, people are a little bit more anxious.” Id. at A1128,
A1153. In response to this anxiety, “the 7:00 p.m. curfew provides clarity . . . for
the community members.” Id. at A1125. The police chief, however, was unable to
point to a specific instance where a commercial solicitor was accused of any
solicitation-related crime or where an individual had posed as a door-to-door
solicitor to hide criminal intent. Indeed, much of the police chief’s testimony
effectively undermined Castle Rock’s safety rationale for the Curfew.
For example, he testified that “[m]ost crimes occur outside of the nighttime
hours” which is at odds with one of the prefatory statements of the 2008
ordinance (incorporated into the 2014 ordinance). Id. at A1132; see id. at A1150
(answering “No” to the question, “You don’t have any data that would reflect the
fact that for-profit commercial solicitors tend to commit crimes more frequently
between the hours of 7:00 p.m. [] and 10:00 in the evening, as opposed to some
other time, do you?”). But cf. id., Vol. VI, at A1445 (prefatory statement
providing, “WHEREAS, criminal activity on private property often occurs during
nighttime hours”). And he further testified that “a person is probably not more
likely to commit a crime to persons or property arising out of door-to-door
solicitation after 7:00 p.m. than before 7:00 p.m.,” and that “moving the Town’s
Curfew from 7:00 p.m. to dusk would not materially hamper the Castle Rock
Police Department’s ability to protect its residents from crime.” Id., Vol. II, at
15
A235. He admitted that he had seen no data suggesting that registered commercial
solicitors had been a problem.
And the chief testified that the data actually suggested that Castle Rock’s
problem was with unregistered solicitors (a group to which Aptive’s solicitors, of
course, did not belong). Similarly, Castle Rock’s current town manager testified
that he was unaware of Castle Rock ever receiving any complaints about crimes
committed by commercial solicitors who had registered with the town. Indeed,
Castle Rock stipulated that it “has no record of ever charging or convicting a
registered commercial solicitor for committing a crime to persons or property.”
Id., Vol. III, at A643.
Castle Rock also sought to justify the Curfew as a necessary response to
ongoing intrusions into privacy caused by commercial door-to-door solicitation.
Castle Rock’s current town manager testified that the Curfew “reflect[s] the
common sense view that as the hours get hours get later, past dinnertime, people
are moving toward more private activities within their home, and they’re not
wanting to be inconvenienced or bothered by an uninvited stranger on [sic] their
door.” Id., Vol. IV, at A940. He testified that some citizens had commented that
they want him to “keep the curfew the way that it is,” that they “value their time at
home,” and that “they have a problem with uninvited solicitations showing up on
their doorstep after 7 o’clock.” Id. at A920 21, A926.
16
Castle Rock’s mayor testified generally from her personal experiences that
commercial solicitors affected her family’s evening routines through “persistent”
and “aggressive” knocking. Id., Vol. V, at A1177 78 (Trial Test. of Jennifer
Green, dated Feb. 21, 2018). She testified about two particularly negative
experiences that she had with solicitors: one entered her garage to talk to her
without her permission, and the other rang her doorbell and opened her storm door,
apparently while her front door was open. Id. at A1176. She clearly identified the
one who entered the garage as a commercial solicitor but was not sure of the
intentions of the one who rang the doorbell. Id. She described the experiences as
“a little terrifying” and “very uncomfortable.” Id. However, both of these specific
experiences occurred during the daytime. See id. at A1182. In the mayor’s
experience, noncommercial solicitors were more respectful than commercial
solicitors. She additionally believed that Castle Rock’s residents supported the
Curfew. Finally, a former council member expressed that he personally thought
the Curfew helped give citizens privacy in their homes: “[b]y having a time when
people could and could not come to your door, that gives you an at least a time
period that you know you will you will have privacy.” Id. at A1080 81.
2
Aptive called one witness, a regional operations manager, as part of its case.
He testified as explained above that Aptive ordinarily encourages its
salespeople to solicit until dusk during the business week, but that Aptive had
17
instructed its salespeople to follow Castle Rock’s Curfew and that this had caused
the salespeople to be significantly less effective. Aptive’s salespeople ceased
soliciting in Castle Rock after only seven days. Aptive’s regional operations
manager testified that Aptive would “[p]robably not” return to Castle Rock if the
Curfew was kept in place, but that “[p]resumably, if things [i.e., the Curfew]
change, [Aptive will] be coming back to Castle Rock.” Id. at A1202, A1205 06.
3
After the trial concluded, the district court gave an oral ruling from the
bench. Id., Vol. IV, at A841. As in its pretrial ruling, the court rejected the
challenge to Aptive’s standing. Turning to the merits, the court found the record
to be “actually devoid of evidence showing that commercial solicitation after
7:00 p.m. causes a real harm in the form of increased crime or decreased public
safety.” Id. at A868. Likewise, the court concluded that “the curfew does not
materially advance the Town’s interest in protecting residents’ privacy after 7:00
p.m.” Id. at A866 67. It thus concluded that “the Town has not established that
the curfew materially impacts the legitimate objectives of reducing crime and
promoting public safety,” and that the Curfew thus unconstitutionally burdened
Aptive’s First Amendment rights. Id. at A870 71, A873. Consequently, the court
permanently enjoined the operation of the Curfew. Castle Rock timely appealed.
18
II
Castle Rock first argues that Aptive lacks standing to challenge the Curfew.
We briefly set out the three elements of constitutional standing before explaining
why each element is satisfied here.
A
Article III of the United States Constitution restricts the jurisdiction of
federal courts to the adjudication of “Cases” or “Controversies.” U.S. C ONST . art.
III, § 2, cl. 1. To satisfy Article III’s case-or-controversy requirement, a plaintiff
must demonstrate standing by establishing “(1) an ‘injury-in-fact,’ (2) a sufficient
‘causal connection between the injury and the conduct complained of,’ and (3) a
‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 157 58 (2014) (alteration in original)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560S61 (1992)). “Put simply, a
plaintiff must establish three elements: an injury-in-fact, causation, and
redressability.” Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007).
“We . . . review the district court’s rulings on standing de novo.” Niemi v.
Lasshofer, 770 F.3d 1331, 1344 (10th Cir. 2014). “Because this case proceeded to
trial, we . . . look to the evidence presented there to determine whether the
plaintiffs carried their burden of proving standing.” Colo. Outfitters Ass’n v.
19
Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016); accord Glover River Org. v.
U.S. Dep’t of Interior, 675 F.2d 251, 254 n.3 (10th Cir. 1982). 5
5
Castle Rock objects to the district court’s consideration in its
standing ruling of certain purported stipulations that Castle Rock made in the
scheduling order, particularly Castle Rock’s assertion that the 2014 ordinance
applied to Aptive (i.e., effectively an admission that Aptive fell into the
ordinance’s category of commercial solicitors within the meaning of the 2014
ordinance and the Curfew). See Aplt.’s Opening Br. at 14 15, 15 n.11; Aplt.’s
Reply Br. at 16. In this regard, Castle Rock stresses that “no action of the parties
can confer subject-matter jurisdiction upon a federal court.” Ins. Corp. of Ireland
v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). While Castle
Rock “correctly quotes Compagnie des Bauxites, it overlooks the distinction
between an admission that federal subject matter jurisdiction exists, and an
admission of facts serving in part to establish federal subject matter jurisdiction.”
Ferguson v. Neighborhood Hous. Servs. of Cleveland, Inc., 780 F.2d 549, 551
(6th Cir. 1986). The Supreme Court has long held that while “[c]onsent of parties
cannot give the courts of the United States jurisdiction, . . . the parties may admit
the existence of facts which show jurisdiction, and the courts may act judicially
upon such an admission.” Railway Co. v. Ramsey, 89 U.S. 322, 327 (1874); see
Glover River Org., 675 F.2d at 253 (“We therefore turn to the stipulated evidence
[of standing] in this case to evaluate the sufficiency of the proof under these
[legal] standards.”); see also United States v. Obando, 891 F.3d 929, 938 (11th
Cir. 2018) (“Parties may ‘stipulate to facts that bear on our jurisdictional
inquiry.’” (quoting United States v. Iguaran, 821 F.3d 1335, 1337 (11th Cir.
2016))); E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323, 330 (5th Cir. 2012)
(“Stipulations alone cannot confer jurisdiction, but they can form the factual basis
for jurisdiction . . . .”); Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 265 (4th
Cir. 2004) (“While it is axiomatic that ‘[c]onsent of parties cannot give the courts
of the United States jurisdiction,’ it is also true that ‘the parties may admit the
existence of facts which show jurisdiction, and the courts may act judicially upon
such an admission.’” (alteration in original) (quoting Ferguson, 780 F.2d at 551)).
Thus, we may consider certain factual stipulations in our jurisdictional inquiry.
That said, we do not need to rely on Castle Rock’s effective stipulation that
Aptive was a commercial solicitor within the meaning of the 2014 ordinance and
its Curfew. Quite apart from that stipulation, consistent with our de novo review
of constitutional standing questions, see, e.g., Green v. Haskell Cty. Bd. of
Comm’rs, 568 F.3d 784, 792 (10th Cir. 2009), we have thoroughly and
(continued...)
20
B
Castle Rock argues that Aptive did not suffer an injury-in-fact and that
Aptive cannot establish that the Curfew caused its injury. We address and reject
each argument before additionally assuring ourselves that the injury-in-fact is
redressable. See Frank v. Gaos, --- U.S. ----, 139 S. Ct. 1041, 1046 (2019) (“We
have an obligation to assure ourselves of litigants’ standing under Article III.”
(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006)).
1
“[A] plaintiff satisfies the injury-in-fact requirement where he alleges ‘an
intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a credible threat of
prosecution thereunder.’” Susan B. Anthony List, 573 U.S. at 159 (quoting Babbitt
v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). For plaintiffs
seeking “prospective relief based on a ‘chilling effect’ on speech,” we have set
forth a three-part test that, if satisfied, would establish the injury-in-fact
requirement. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th
5
(...continued)
independently considered the factual record, and, based on that review, have
determined (as explicated infra) that Aptive has suffered an injury-in-fact because
of the Curfew and otherwise meets the criteria for standing.
21
Cir. 2006) (en banc). Such a plaintiff satisfies the injury-in-fact requirement when
they present:
(1) evidence that in the past they have engaged in the type of
speech affected by the challenged government action; (2)
affidavits or testimony stating a present desire, though no specific
plans, to engage in such speech; and (3) a plausible claim that
they presently have no intention to do so because of a credible
threat that the statute will be enforced.
Id.; see Holder v. Humanitarian Law Project, 561 U.S. 1, 15 16 (2010)
(concluding plaintiffs had standing to bring pre-enforcement First Amendment
challenge to the statute because (1) they had engaged in covered conduct before
enactment of the statute, (2) they would engage in this conduct “again if the
statute’s allegedly unconstitutional bar were lifted,” (3) the government had
enforced the statute against other parties, and (4) the government had not argued it
would not enforce the statute against plaintiffs); Winsness v. Yocom, 433 F.3d 727,
732 (10th Cir. 2006) (“[T]o satisfy Article III, the plaintiff’s expressive activities
must be inhibited by ‘an objectively justified fear of real consequences, which can
be satisfied by showing a credible threat of prosecution or other consequences
following from the statute’s enforcement.’” (quoting D.L.S. v. Utah, 374 F.3d 971,
975 (10th Cir. 2004))); see also ACORN v. City of Tulsa, 835 F.2d 735, 739 (10th
Cir. 1987) (applying Babbitt’s standard when evaluating plaintiff’s standing to
challenge local ordinances under the First Amendment). Each of Initiative and
Referendum Institute’s three requirements is satisfied here.
22
First, Aptive has presented “evidence that in the past [it has] engaged in the
type of speech affected by the challenged government action.” Initiative &
Referendum Inst., 450 F.3d at 1089. Aptive established that it has engaged in
door-to-door solicitation after 7:00 p.m. in locations near Castle Rock. Indeed,
across its operating area, with the exception of Castle Rock, Aptive has
encouraged its salespeople to solicit during the business week “through dusk so as
to contact people who weren’t home” earlier in the day. Aplt.’s App., Vol. II, at
A221 22; see id., Vol. V, at A1194. And Aptive’s data show that, in the nearby
Denver area, some of its highest rates of interaction with “decision makers” occur
after 7:00 p.m. Id. at A1293; id., Vol. II, at A224. We have previously considered
similar evidence concerning conduct in “surrounding” localities in our standing
analysis. See Initiative & Referendum Inst., 450 F.3d at 1090 (considering
initiatives prepared or supported by plaintiffs in “surrounding states” when
determining whether plaintiffs had standing to challenge supermajority
requirement). We conclude that this evidence of Aptive’s solicitation after
7:00 p.m. in surrounding localities establishes that Aptive has a history of
engaging in the type of speech affected by the challenged government action.
Second, Aptive has demonstrated “a present desire . . . to engage in”
solicitation in the hours prohibited by the Curfew. Id. at 1089. Aptive desires to
solicit during the evening because for those salespeople “that stay out, they do
better.” Aplt.’s App., Vol. II, at A224. The Curfew had a “significant” effect on
23
Aptive’s business because it prevented solicitation during its “most effective
time.” Id., Vol. V, at A1194; id. at A1195 (“That’s the time when they normally
sell the most.”). As a result of the Curfew, Aptive’s salespeople were “a lot less
effective.” Id. at A1203. Aptive’s data show that it made less than half the
average sales per hour in Castle Rock than it did elsewhere. Additional evidence
that Aptive desired to solicit during these most profitable hours is intertwined with
the third element and therefore discussed below.
The third element requires that Aptive maintain that it “presently ha[s] no
intention to [engage in the speech affected by the challenged government action]
because of a credible threat that the statute will be enforced.” Initiative &
Referendum Inst., 450 F.3d at 1089. Although offering testimony concerning its
desire to follow its ordinary practice of encouraging its representatives to work
until dusk which they do in the Denver area near Castle Rock Aptive has
counseled its representatives not to work until dusk in Castle Rock because of the
threat of sanctions posed by the Curfew. And, after only a brief period of
solicitation in Castle Rock, Aptive ceased doing business there.
Aptive’s regional operations manager testified that Aptive will “[p]robably
not” return to Castle Rock if the Curfew is kept in place, but that “[p]resumably, if
things [i.e., the Curfew] change, [Aptive will] be coming back to Castle Rock.”
Aplt.’s App., Vol. V, at A1202, A1205 06. This testimony, when taken alongside
the above evidence, demonstrates Aptive’s desire to engage in speech affected by
24
the challenged government action, i.e., the second element. And it also
demonstrates that Aptive has no present intention to engage in that speech because
of a threat of enforcement, i.e., the third element.
And we are able to conclude that the threat of enforcement here is credible.
Castle Rock has not indicated that it would not enforce the Curfew against Aptive
if Aptive solicited after 7:00 p.m., and Castle Rock has vigorously sought to
uphold its Curfew in this litigation. Cf. Humanitarian Law Project, 561 U.S. at
15 16 (concluding plaintiffs had established standing when “[t]he Government
[told the Court] that it ha[d] charged about 150 persons with violating [the relevant
statute], and that several of those prosecutions involved the enforcement of the
statutory terms at issue,” and “[t]he Government ha[d] not argued to th[e] Court
that [the] plaintiffs w[ould] not be prosecuted if they d[id] what they sa[id] they
wish[ed] to do” (citation omitted)); Grant v. Meyer, 828 F.2d 1446, 1449 (10th
Cir. 1987) (en banc) (finding dispute justiciable after noting that “‘the State ha[d]
not disavowed any intention of invoking the criminal penalty provision . . .’
against the[] plaintiffs” and that “the State . . . [wa]s vigorously upholding the
statute in litigation with the[] plaintiffs” (quoting Babbitt, 442 U.S. at 302)), aff’d,
486 U.S. 414 (1988). And so we conclude that there is a credible threat of
enforcement. Aptive has demonstrated “an intention to engage in a course of
conduct arguably affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution thereunder,” i.e., an
25
injury-in-fact. Susan B. Anthony List, 573 U.S. at 159 (quoting Babbitt, 442 U.S.
at 298).
Castle Rock has two primary arguments to the contrary, but neither is
persuasive. First, it argues that Aptive told its salespeople to follow the Curfew
and that this acquiescence means that Aptive does not have standing. But while
Aptive did not violate the law, it circumscribed its behavior to avoid criminal
sanctions; this is the precise sort of “chilling effect,” Initiative & Referendum
Inst., 450 F.3d at 1088, and “self-censorship,” Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 393 (1988), certified questions answered sub nom. Commonwealth
v. Am. Booksellers Ass’n, 372 S.E.2d 618 (Va. 1988), that demonstrates why the
Supreme Court has established the above tests for injury-in-fact in this context.
See Susan B. Anthony List, 573 U.S. at 163 (“Nothing in this Court’s decisions
requires a plaintiff who wishes to challenge the constitutionality of a law to
confess that he will in fact violate that law.”); cf. Am. Booksellers Ass’n, 484 U.S.
at 392 (“[T]he law is aimed directly at plaintiffs, who, if their interpretation of the
statute is correct, will have to take significant and costly compliance measures or
risk criminal prosecution.”). Aptive has sufficiently demonstrated that it suffered
an injury-in-fact under those standards and need do no more.
Second, Castle Rock argues that because Aptive uses independent
contractors as salespeople, it is those independent contractors and not Aptive itself
that face any threat of enforcement. But the 2014 ordinance applies to those who
26
“instruct, direct, command, order, organize or otherwise arrange for any person to
engage in solicitation in violation” of the Curfew. Aplt.’s App., Vol. V, at 1301.
Thus, even if we were to assume that Aptive could not rely on the Curfew’s
application to its independent contractors to establish standing for itself, Aptive’s
stated intention but for concerns regarding the Curfew’s enforcement to
encourage (i.e., “instruct” or “arrange for”) its independent contractors to solicit
until dusk directly implicates the Curfew’s express prohibitions and thus makes
the Curfew squarely applicable to Aptive.
Furthermore, in Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221
(10th Cir. 2005), in the First Amendment context, we held that a company had
standing to challenge a “solicitors licensing procedure” that was enforced against
its independent contractors viz., in determining that the company had standing
for its First Amendment claim, we effectively determined that it could rely on a
regulation’s application to its independent contractors. Id. at 1226, 1228 29.
While the injury-in-fact in Pacific Frontier was more concrete the independent
contractors in that case were arrested that does nothing to diminish Pacific
Frontier’s determination that an employing company can suffer a First
Amendment harm through the enforcement of an ordinance against its independent
contractors. Thus, Castle Rock’s two primary arguments fail, and we conclude
that Aptive suffered an injury-in-fact.
27
2
In addition to its arguments that Aptive did not suffer an injury-in-fact,
Castle Rock also argues that Aptive failed to demonstrate “a sufficient ‘causal
connection between the injury and the conduct complained of.’” Susan B. Anthony
List, 573 U.S. at 157 58 (quoting Lujan, 504 U.S. at 560 61). This objection is
based on the parties’ stipulations that the independent contractors “set their own
daily schedule” but Aptive encourages them “to work between 10:00 and 11:00
a.m., take a lunch break between 2:30 and 4:00 p.m., and complete work at dark
each day that they work[].” Aplt.’s App., Vol. II, at A221 22. Because the
independent contractors are free to set their own hours, Castle Rock argues that
any injury Aptive suffered was caused not by its Curfew but by the independent
contractors’ decisions about when to work. See Aplt.’s Opening Br. at 15 16
(“Aptive cannot show that the Curfew and not the individual decisions of the
Contractors with respect to when they solicited caused Aptive’s alleged harm.”).
“To satisfy the traceability requirement, the defendant’s conduct must have
caused the injury.” Benham v. Ozark Materials River Rock, LLC, 885 F.3d 1267,
1273 (10th Cir. 2018); see Bronson, 500 F.3d at 1109 10 (explaining that
Article III “require[s] proof of a substantial likelihood that the defendant’s
conduct caused plaintiff’s injury in fact” (quoting Nova Health Sys. v. Gandy, 416
F.3d 1149, 1156 (10th Cir. 2005))). We have already concluded above that Aptive
itself has suffered an injury-in-fact because Aptive and its independent contractors
28
are forced to limit their solicitation in accordance with the Curfew. And Aptive
has demonstrated, at the very least, that there is a “substantial likelihood” that the
Curfew is the reason why it and its independent contractors have not solicited until
dusk in Castle Rock, i.e., the reason why it suffered the injury-in-fact. Bronson,
500 F.3d at 1109 10 (quoting Nova Health Sys., 416 F.3d at 1156).
To be sure, the independent contractors set their own hours, but Aptive
ordinarily would encourage them to stay out until dusk, and there is concrete
evidence that the independent contractors have done so in neighboring
jurisdictions that had no similar curfew. Thus, we have no difficulty concluding
that Aptive’s injury-in-fact is “fairly . . . trace[able] to the challenged action of the
defendant,” i.e., Castle Rock’s enactment of its curfew, “and not . . . th[e] result
[of] the independent action of some third party not before the court.” Lujan, 504
U.S. at 560 61 (alterations in original) (quoting Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 41 42 (1976)). Underscoring this point, Pacific Frontier
recounted Lujan’s causation requirement before concluding that “consequences
following from the statute’s enforcement” against the independent contractors
were sufficient to establish standing and therefore the causation element for the
employer. 414 F.3d at 1228 29. As in Pacific Frontier, we conclude that even
though Aptive does not require its independent contractors to work certain
hours but instead simply urges them to stay out until dusk the consequences
emanating from the Curfew’s enforcement against its independent contractors is
29
sufficient under the circumstances here to establish a causal link between the
Curfew’s operation and Aptive’s injury.
3
While uncontested by Castle Rock, we also note that the “plaintiff[’s] injury
. . . would be redressed by a judicial conclusion that the Ordinance[’s Curfew] is
unconstitutional.” Id. at 1229. We come to this conclusion because an order that
enjoins Castle Rock from enforcing the Curfew would allow Aptive to solicit until
dusk its typical practice elsewhere removing the Curfew’s alleged violation of
Aptive’s First Amendment rights.
* * *
In sum, we conclude that Aptive has established an injury-in-fact, causation,
and redressability, and thus standing.
III
Turning to the merits, we recite our standard of review, reject Castle Rock’s
threshold argument that the First Amendment does not apply to the Curfew at issue
here, and explain why Castle Rock has failed to demonstrate that the Curfew
directly and materially advances its substantial interests.
A
“In a First Amendment case, we have ‘an obligation to make an independent
examination of the whole record in order to make sure that the judgment does not
constitute a forbidden intrusion on the field of free expression.’” Citizens for
30
Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1219 (10th Cir. 2007)
(quoting Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 499 (1984)); accord
Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 34 (10th Cir. 2013). Thus, we
have said that “[t]he factual findings, as well as the conclusions of law, are
reviewed ‘without deference to the trial court.’” Cressman v. Thompson, 798 F.3d
938, 946 (10th Cir. 2015) (quoting Citizens for Peace in Space, 477 F.3d at 1219).
However, the Supreme Court’s and our own cases make clear that this de
novo review of factual findings more precisely extends only to “crucial facts,”
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 567
(1995), or “constitutional facts,” Green, 568 F.3d at 795 96. That is to say, “our
searching review of the record with regard to ‘constitutional facts’ does not alter
our ordinary clearly-erroneous review of the district court’s other factual
findings.” Id. at 796; id. (“[T]he special Bose rule applies only to ‘constitutional
facts’ and not to the basic historical facts upon which the claim is grounded, which
are subject to the usual ‘clearly erroneous’ standard of review.” (alteration in
original) (quoting United States v. Friday, 525 F.3d 938, 950 (10th Cir. 2008)));
see also Bose Corp., 466 U.S. at 514 n.31 (“There are, of course, many findings of
fact in a defamation case that are irrelevant to the constitutional standard of New
York Times Co. v. Sullivan and to which the clearly-erroneous standard of Rule
52(a) is fully applicable.”).
31
B
The First Amendment’s Free Speech Clause provides that “Congress shall
make no law . . . abridging the freedom of speech.” U.S. C ONST . amend. I. By
incorporation through the Fourteenth Amendment, this prohibition applies to states
and their political subdivisions. Chaplinsky v. State of New Hampshire, 315 U.S.
568, 570 71 (1942). It additionally “applies not only to legislative enactments,
but also to less formal governmental acts, including city policies.” Evans v. Sandy
City, 944 F.3d 847, 852 (10th Cir. 2019) (quoting Hawkins v. City and Cty. of
Denver, 170 F.3d 1281, 1286 (10th Cir. 1999), petition for cert. filed, (U.S.
Mar. 5, 2020) (No. 19-1091)).
In a threshold challenge to the district court’s judgment, Castle Rock argues
that the Curfew at issue here does not “implicate[] protected speech” and thus does
not violate the First Amendment’s guarantee against abridgment of freedom of
speech; instead, Castle Rock argues that its Curfew “simply establishes parameters
on solicitors’ implied license to enter private property.” Aplt.’s Opening Br. at 16.
But this argument is at odds with our precedent. We explain why it is clear that
the Curfew does regulate speech and thereby implicates the First Amendment, and
then we reject Castle Rock’s three counter-arguments.
1
Castle Rock’s argument that the Curfew does not regulate speech is
foreclosed by our decision in Pacific Frontier v. Pleasant Grove City, supra.
32
There, the plaintiffs “individuals and entities engaged in selling Kirby vacuum
cleaners through door-to-door solicitations” claimed to be burdened by the
locality’s “ordinance establishing a solicitors licensing procedure.” 414 F.3d
at 1226. The ordinance “require[d] individuals to obtain a license before engaging
in door-to-door solicitation.” Id. The vacuum distributor declined to apply for
licenses for its salespeople. Id. at 1226 27. Some of the salespeople were
arrested for soliciting without a license. Id. The company sought a preliminary
injunction against enforcement of the ordinance, which it alleged violated its First
Amendment rights. Id. at 1230 31. The district court granted the preliminary
injunction after finding that there was a substantial likelihood that the ordinance
was unconstitutional. Id. On appeal, we applied the First Amendment test derived
from Central Hudson Gas & Electric Corporation. v. Public Service Commission,
447 U.S. 557 (1980), to evaluate the “First Amendment challenge” to the
regulation. Pac. Frontier, 414 F.3d at 1231. In doing so, we noted that “[t]he
Supreme Court has recognized that personal solicitation is imbued with important
First Amendment interests.” Id. at 1231 n.8 (citing Edenfield v. Fane, 507 U.S.
761, 766 (1993)). And, after applying the test, we concluded that there was a
substantial likelihood that the ordinance violated the First Amendment and
affirmed the preliminary injunction. Id. at 1235, 1238. Pacific Frontier and this
case are alike in all the ways that matter here: the localities in both cases enacted
ordinances restricting door-to-door commercial solicitation. And in Pacific
33
Frontier we clearly held that the First Amendment was implicated by the
ordinance at issue there; after all, we upheld the district court’s decision to
preliminarily enjoin aspects of the ordinance for being substantially likely to
contravene the plaintiffs’ First Amendment rights. That holding has strong cogent
force here and establishes that Castle Rock’s Curfew on commercial door-to-door
solicitation likewise implicates the First Amendment.
Were Pacific Frontier not enough, a multitude of other cases from the
Supreme Court and other courts would militate in favor of our conclusion that
Castle Rock’s Curfew relating to door-to-door commercial solicitation implicates
the First Amendment. See Ohio Citizen Action v. City of Englewood, 671 F.3d
564, 570 80 (6th Cir. 2012) (holding that 6:00 p.m. curfew on door-to-door
solicitation violated First Amendment); N.J. Citizen Action v. Edison Township
797 F.2d 1250, 1254, 1262 (3d Cir. 1986) (holding that 5:00 p.m., 6:00 p.m., and
sunset curfews on door-to-door solicitation violated First Amendment); City of
Watseka v. Ill. Pub. Action Council, 796 F.2d 1547, 1548 (7th Cir. 1986) (holding
that 5:00 p.m. curfew on door-to-door solicitation violated First Amendment),
aff’d, 479 U.S. 1048 (1987); Ass’n of Cmty. Orgs. for Reform Now v. City of
Frontenac, 714 F.2d 813, 815 (8th Cir. 1983) (holding that 6:00 p.m. curfew on
door-to-door solicitation violated the First Amendment); cf. Edenfield, 507 U.S. at
764 65 (holding that rule banning “direct, in-person, uninvited solicitation” from
certified public accountants violated the First Amendment and stating that “it is
34
clear that this type of personal solicitation is commercial expression to which the
protections of the First Amendment apply” (citation omitted)). We thus conclude
that Castle Rock’s Curfew implicates the First Amendment by regulating protected
commercial speech.
2
Castle Rock tries to distinguish this body of authority in three ways. None
is convincing.
a
First, Castle Rock attempts to distinguish these cases as “involv[ing]
noncommercial speech restrictions.” Aplt.’s Reply Br. at 15 16 (emphasis added);
see Aplt.’s Opening Br. at 19 20. But Pacific Frontier did involve commercial
speech, see 414 F.3d at 1226, and so this proffered distinction falters at the
starting blocks. Furthermore, while not involving commercial door-to-door
solicitation, the Supreme Court has clearly held that in-person commercial
solicitation is generally protected by the First Amendment. See Edenfield, 507
U.S. at 765 66 (“In the commercial context, solicitation may have considerable
value. Unlike many other forms of commercial expression, solicitation allows
direct and spontaneous communication between buyer and seller.”). In effect, “the
city’s argument attaches more importance to the distinction between commercial
and noncommercial speech than [the Supreme Court’s] cases warrant and seriously
underestimates the value of commercial speech.” City of Cincinnati v. Discovery
35
Network, Inc., 507 U.S. 410, 419 (1993). While the Supreme Court has indicated
that commercial speech is entitled to “lesser protection” than noncommercial
speech, Cent. Hudson, 447 U.S. at 562 63, this most certainly does not mean that
commercial speech is entitled to no protection, see, e.g., Discovery Network, 507
U.S. at 420 21 (“Speech likewise is protected . . . even though it may involve a
solicitation to purchase or otherwise pay or contribute money.” (citations
omitted)); cf. Pac. Frontier, 414 F.3d at 1236 (“Commercial speech merits First
Amendment protection not simply because it enables sellers to hawk their wares
and gain a profit, but because it equips consumers with valuable information and
because it contributes to the efficiency of a market economy.”). The commercial
nature of the speech is relevant to our analysis, but it does not remove the Curfew
from First Amendment scrutiny.
Castle Rock relatedly argues that Aptive’s challenge to its Curfew warrants
only “rational basis review” that is, review under a standard foreign to
restrictions on First Amendment protected speech. Aplt.’s Opening Br. at 20; see
id. at 20 21 (“While all commercial transactions involve the communication of
some message, regulating the places and manner in which these activities occur
does not implicate the First Amendment. . . . [T]he Curfew does not regulate
commercial actors’ speech; it regulates the act of stepping onto private property
without an invitation.” (citations omitted)). But the cases that Castle Rock cites
either undermine this assertion or are inapposite.
36
The first, Expressions Hair Design v. Schneiderman, --- U.S. ----, 137 S. Ct.
1144 (2017), held that the law at issue did “regulate[] speech” under the First
Amendment before remanding for the Second Circuit to analyze the law as a
restriction on commercial speech under the same Central Hudson test we apply
here. Expressions Hair Design, 137 S. Ct. at 1151. The second, Cash Inn of
Dade, Inc. v. Metropolitan Dade County, 938 F.2d 1239 (11th Cir. 1991),
reviewed an ordinance limiting pawnshop hours of operation under the rational-
basis standard but, critically for our purposes, the ordinance had not been
challenged under the First Amendment. Id. at 1241 (challenging the ordinance
under Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483 (1955)’s general
due-process standard). The case thus is irrelevant to the First Amendment
challenge before us. And the third, Wine and Spirits Retailers, Inc. v. Rhode
Island, 418 F.3d 36 (1st Cir. 2005), did reject a First Amendment challenge to a
law regulating the provision of business advice and advertising services. Id.
at 47 50. But that case acknowledged that “restrictions imped[ing] [a party’s]
right to communicate with its potential customers” would be within the heart of the
commercial-speech doctrine; such restrictions simply were not at issue there. Id.
at 49. Thus, none of the cases that Castle Rock relies on provides any reason to
question the authority squarely holding that commercial door-to-door solicitation
is subject to First Amendment scrutiny.
37
b
Castle Rock’s second proffered distinction is that the above cases that
applied First Amendment scrutiny to door-to-door solicitation “involved
regulations in which violations were premised upon the actual words used by a
speaker,” Aplt.’s Reply Br. at 15 16, i.e., they were “content based,” Aplt.’s
Opening Br. at 19. Castle Rock argues that, unlike those cases, its Curfew
“regulat[es] the places and manner in which [commercial] activities occur,” and
thus “does not implicate the First Amendment.” Aplt.’s Opening Br. at 20 21.
Castle Rock thus appears to argue that its Curfew is immune from First
Amendment scrutiny because the Curfew is a mere restriction on the time, place,
and manner of door-to-door solicitation.
This attempted distinction fails first and foremost because even content-
neutral ordinances e.g., ordinances that impose time, place, and manner
restrictions remain subject to First Amendment scrutiny; the scrutiny is simply
less rigorous than that traditionally attendant to regulations that are based on the
content of the speech. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781,
790 91 (1989) (analyzing a “reasonable restriction[] on the time, place, or manner
of protected speech” as “subject to the protections of the First Amendment”);
Evans, 944 F.3d at 856 (“Even though the [Ordinance] is content neutral, it still
must be ‘narrowly tailored to serve a significant governmental interest.’”
(alteration in original) (quoting McCullen v. Coakley, 573 U.S. 464, 486 (2014))).
38
Thus, even were the Curfew at issue here truly content-neutral, it still would not
escape First Amendment scrutiny.
Furthermore, this argument additionally fails because the Curfew is content-
based, at least insofar as the 2014 ordinance determines to whom the Curfew
applies by distinguishing between the commercial and noncommercial content of
the solicitors’ speech. Our conclusion in this regard is dictated by the Supreme
Court’s decision in Discovery Network. There, the Court struck down a law that
banned commercial but not noncommercial newsracks. See 507 U.S. at 412 13.
In so doing, the Court concluded that the regulation was not content-neutral
because “the very basis for the regulation is the difference in content between
ordinary newspapers and commercial speech.” Id. at 428 29. Because the 2014
ordinance (like the 2008 ordinance before it) facially makes the application of its
Curfew turn on whether the speech is commercial or not, the law is content-based.
See id. at 429. 6
6
Both before and after Discovery Network, in a variety of contexts, the
Court has held true to this understanding of content-based regulations. See Reed
v. Town of Gilbert, --- U.S. ----, 135 S. Ct. 2218, 2227 (2015) (“Government
regulation of speech is content based if a law applies to particular speech because
of the topic discussed or the idea or message expressed.”); see also Bates v. State
Bar of Ariz., 433 U.S. 350, 363 (1977) (“If commercial speech is to be
distinguished, it ‘must be distinguished by its content.’” (quoting Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976)); cf.
Reed, 135 S. Ct. at 2228 29 (relying on Discovery Network to reject the argument
that “[a] law that is content based on its face” should be analyzed as a “content
neutral” regulation because the distinctions drawn “can be ‘justified without
reference to the content of the regulated speech’” (emphasis added) (quoting Br.
(continued...)
39
Specifically, the ordinance treats civic, religious, philosophical, and
ideological solicitors who incidentally sell a good or service differently from those
who solicit with the “primary purpose” of selling a good or service. Compare
Aplt.’s App., Vol. V, at A1296 (defining noncommercial solicitors, inter alia, as
those “[a]ttempting to obtain a donation to a particular patriotic, philanthropic,
social service, welfare, benevolent, educational, civic, fraternal, charitable,
political or religious purpose, even if incidental to such purpose there is the sale of
some good or service”), with id. (defining commercial solicitors as those who
attempt to make personal contact at a resident’s home “for the primary purpose of
attempting to sell a good or service”). When an ordinance makes these sorts of
facial distinctions, e.g., between those soliciting for religious purposes and those
soliciting for commercial gain, not only the Supreme Court, but our court, has
expressly held that it “contemplates a distinction based on content.” Ass’n of
Cmty. Orgs. for Reform Now v. Municipality of Golden, 744 F.2d 739, 749 (10th
Cir. 1984); see id. at 750 (“[W]hether solicitation is for charitable, religious,
patriotic or philanthropic purposes, or otherwise provides a service necessary to
the general welfare of [the municipality]’s residents, clearly turns on the content
of the message.”). And so, because the 2014 ordinance creates a content-based
distinction which determines to which solicitors the Curfew applies between
6
(...continued)
of United States as Amicus Curiae at 20, 24)).
40
commercial and noncommercial speech, we must reject any argument that the
Curfew is either not subject to First Amendment scrutiny at all or can be analyzed
merely as a content-neutral time, place, and manner restriction. 7
c
Third and finally, Castle Rock argues that its Curfew merely governs
trespass and thus does not implicate the First Amendment. Specifically, it argues
that “[w]hile solicitors may enjoy a license, the conduct of entering uninvited upon
private property used for private purposes is not itself protected speech.” Aplt.’s
Opening Br. at 17 (citing Lloyd Corp. v. Tanner, 407 U.S. 551, 568 (1972)). But
we rejected an analogous argument in Western Watersheds Project v. Michael, 869
F.3d 1189 (10th Cir. 2017). At issue in that case were statutes that imposed
penalties on anyone who crossed private land to access adjacent or proximate land
7
We note that content-neutral curfews on door-to-door solicitation,
i.e., those that do not distinguish between commercial and noncommercial speech,
have been analyzed as time, place, and manner restrictions in some circumstances.
See Ohio Citizen Action, 671 F.3d at 566, 571, 580 (analyzing “ordinance banning
all door-to-door canvassing and soliciting between 6 P.M. and 9 A.M.” as a time,
place, and manner restriction after plaintiff conceded the ordinance was content
neutral, but nevertheless concluding the curfew was unconstitutional); N.J.
Citizen Action, 797 F.2d at 1255, 1262 (analyzing ordinance limiting hours of
door-to-door solicitation as a time, place, and manner restriction after plaintiffs
conceded the ordinance was content neutral, but nevertheless concluding that it
was unconstitutional); Pa. All. for Jobs & Energy v. Council of Borough of
Munhall, 743 F.2d 182, 187 88 (3d Cir. 1984) (analyzing, and upholding,
ordinance imposing curfew on door-to-door solicitation as a time, place, and
manner restriction). We have no occasion here to address whether a curfew
similar to Castle Rock’s that applied to both commercial and noncommercial
solicitors would be constitutional.
41
where that person would collect data about public lands. Id. at 1191. We said that
“[t]he fact that one aspect of the challenged statutes concerns private property
does not defeat the need for First Amendment scrutiny.” Id. at 1195. While we
acknowledged that “trespassing does not enjoy First Amendment protection,” id.
at 1192, we held “that the statutes regulate protected speech under the First
Amendment and that they are not shielded from constitutional scrutiny merely
because they touch upon access to private property,” id. We were able to conclude
that the statutes regulated protected speech because they “target[ed] the ‘creation’
of speech by imposing heightened penalties on those who collect resource data”
about public lands. Id. (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 570
(2011)).
In much the same way, the regulation at issue here also targets the creation
of speech that the Supreme Court has long categorized as protected by the First
Amendment. See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton,
536 U.S. 150, 160 (2002) (“For over 50 years, the Court has invalidated
restrictions on door-to-door canvassing and pamphleteering.”); Ill. Pub. Action
Council, 796 F.2d at 1550 (“The Supreme Court has recognized substantial First
Amendment protection for door-to-door solicitors.”). And, while we agree with
the general and uncontroversial principle that private parties may choose what
speech to allow on their property without violating the First Amendment, see, e.g.,
Tanner, 407 U.S. at 552, 570 (holding that a private shopping center did not
42
violate the First Amendment by prohibiting the distribution of handbills on its
property), Castle Rock fails to explain how that general principle interacts with the
above cases squarely holding that First Amendment interests are implicated when
municipalities attempt to restrict door-to-door solicitation. See, e.g., Martin v.
City of Struthers, 319 U.S. 141, 141 (1943) (“For centuries it has been a common
practice in this and other countries for persons not specifically invited to go from
home to home and knock on doors or ring doorbells to communicate ideas to the
occupants or to invite them to political, religious, or other kinds of public
meetings. Whether such visiting shall be permitted has in general been deemed to
depend upon the will of the individual master of each household, and not upon the
determination of the community.”); Ill. Pub. Action Council, 796 F.2d at 1556,
1558 (holding unconstitutional “5 p.m. to 9 p.m. ban [that was] essentially an
attempt by [the city] to substitute its judgment for that of its citizens”).
Moreover, we are unpersuaded by the cases that Castle Rock cites in support
of its argument that its Curfew “does not regulate speech” but rather “only
uninvited access onto private property.” Aplt.’s Opening Br. at 12. For example,
it is true that the Supreme Court in Cornelius v. NAACP Legal Defense and
Education Fund, Inc., 473 U.S. 788 (1985), generally observed that “a speaker
must seek access to public property or to private property dedicated to public use
to evoke First Amendment concerns.” Id. at 801. However, Cornelius is
inapposite. Its general observation concerning what is necessary to invoke First
43
Amendment protections was not made in the context of door-to-door solicitations,
and the Court consequently had no occasion to discuss much less undercut its
longstanding view that door-to-door solicitation is speech and is entitled to First
Amendment protection. See, e.g., Watchtower, 536 U.S. at 160; Ill. Pub. Action
Council, 796 F.2d at 1550.
Relatedly, there was never any question in Cornelius that private property
was not involved there; the federal charitable program at issue that plaintiffs
wanted to access in order to solicit contributions was a creature of the federal
government and regulated by the federal government. See 473 U.S. at 795 (noting
that the program “was designed to lessen the Government’s burden in meeting
human health and welfare needs by providing a convenient, nondisruptive channel
for federal employees to contribute to nonpartisan agencies that directly serve
those needs”). Thus, the Court did not have occasion to address any argument
remotely resembling the one that Castle Rock makes here, which turns on the
government’s authority to regulate uninvited access to private property. Cf. Ill.
Pub. Action Council, 796 F.2d at 1552 n.12 (“[The city] spent most of its oral
argument contending that this case is controlled by the public forum/private forum
standards in Cornelius[]. This argument is meritless. The Supreme Court’s
analysis of government property turns upon the public forum/private forum
distinction, but nothing in Cornelius suggests the Court intended to extend this
distinction to time, place, and manner restrictions on private property.” (citation
44
omitted)). Indeed, the government argued unsuccessfully in Cornelius that the
plaintiffs’ speech fell outside the bounds of the First Amendment not because the
charitable program was private, but rather because ostensibly “a First Amendment
forum necessarily consists of tangible government property.” 473 U.S. at 800; see
Koala v. Khosla, 931 F.3d 887, 901 (9th Cir. 2019) (noting that in Cornelius “[t]he
government argued that the fundraising program was not a forum at all, because it
was not a physical space”). Thus, we conclude that Cornelius is inapposite and
does not provide a basis for departing from the controlling precedent explicated
supra concerning the First Amendment protections accorded to door-to-door
solicitors.
Castle Rock also cites Frisby v. Schultz, 487 U.S. 474 (1988), where the
Supreme Court stated that it has “repeatedly held that individuals are not required
to welcome unwanted speech into their own homes and that the government may
protect this freedom.” Id. at 485. It then upheld an ordinance that banned
picketing outside residences. Id. at 476, 488. However, while the Court upheld
the ordinance, the Court clearly held that the picketing at issue was protected
speech. See id. at 479 (“The antipicketing ordinance operates at the core of the
First Amendment by prohibiting appellees from engaging in picketing on an issue
of public concern.”). An ordinance can both implicate the First Amendment and
ultimately survive the scrutiny mandated by its impingement on First Amendment
rights. Therefore, the fact that the government can permissibly impose certain
45
restrictions on the uninvited exercise of First Amendment rights on private
property does not mean as Castle Rock suggests that those First Amendment
rights somehow do not exist on private property. Castle Rock’s citation to Frisby
thus does not advance the argument it makes here. And other cases that Castle
Rock cites run into the same problem. See, e.g., Vill. of Schaumburg v. Citizens
for a Better Env’t, 444 U.S. 620, 633 (1980) (“The issue before us, then, is not
whether charitable solicitations in residential neighborhoods are within the
protections of the First Amendment. It is clear that they are.”). None of these
cases provides support for the idea that door-to-door solicitation does not
implicate the First Amendment. 8
8
Other cases cited by Castle Rock concern the scope of the implied
license to approach a front door in other legal contexts. See, e.g., United States v.
Crapser, 472 F.3d 1141, 1146 (9th Cir. 2007) (discussing implied license to
approach a front door in the Fourth Amendment context); Moss v. Aaron’s, Inc.,
140 F. Supp. 3d 441, 446 47 (E.D. Pa. 2015) (discussing implied license to
approach a front door under Pennsylvania’s law of trespass). Castle Rock could
be correct that “[c]ommunity disapproval of nighttime disruption can limit the
implied license.” Aplt.’s Opening Br. at 17. But Castle Rock fails to explore
how that principle, which it extracts from cases addressing the Fourth Amendment
and state tort law, interacts with the Supreme Court’s and our own caselaw
concerning First Amendment interests in door-to-door solicitation. And we will
not construct an argument for Castle Rock, particularly when any such argument
(if viable at all) would involve complicated and nuanced constitutional
considerations. See Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013)
(“Our reluctance [to opine on the issue] is heightened because [appellant]’s
argument involves a complicated and little-explored area of constitutional law.”);
United States v. Lamirand, 669 F.3d 1091, 1098 n.7 (10th Cir. 2012) (“Given the
apparent complexity of th[e] issue . . . we are reluctant to definitively opine on its
merits without a full adversarial framing of the relevant considerations.”).
46
For the first time in reply, Castle Rock has argued that the Curfew was
analogous to zoning regulations because “it simply prohibits uninvited access by
any commercial actor.” Aplt.’s Reply Br. at 15 16. At the outset, we note that
this late-blooming argument appearing for the first time in Castle Rock’s reply
brief is waived; therefore, we need not consider it. See, e.g., In re: Motor Fuel
Temperature Sales Practices Litig., 872 F.3d 1094, 1112 n.5 (10th Cir. 2017)
(noting that “arguments raised for the first time in a reply brief are waived”); Star
Fuel Marts, LLC v. Sam’s E., Inc., 362 F.3d 639, 647 (10th Cir. 2004) (“Generally,
arguments raised for the first time on appeal in an appellant’s reply brief are
waived.”). However, even if we were to consider it, we would not be persuaded.
In particular, neither of the cases Castle Rock cites for support are helpful to the
argument that it makes here. It specifically contends that “under Aptive’s theory,
the front porch of every home in America would be transformed into a public
forum.” Aplt.’s Reply Br. at 15. But Castle Rock relies on Cornelius, 473 U.S.
788, which we determined supra is inapposite. Castle Rock also argues that under
Aptive’s theory “any regulation of commercial activity, such as zoning laws
prohibiting commercial activities in residential areas, would be subjected to
intermediate scrutiny analysis.” Id. The only case cited in support of this
proposition is Expressions Hair Design, 137 S. Ct. at 1151. But, again, that case
held that the law at issue, which regulated how stores communicated the prices of
products, “regulates speech.” Id. That case thus does not support Castle Rock’s
47
argument that laws regulating door-to-door solicitation escape First Amendment
scrutiny. In sum, none of Castle Rock’s arguments discussed here that essentially
posit that the Curfew merely regulates trespass on private property give us any
reason to second-guess the ample controlling, as well as persuasive, authority
discussed supra holding that regulation of door-to-door solicitation implicates the
First Amendment.
* * *
In sum, we conclude that Castle Rock’s 2014 ordinance and, more
specifically, the Curfew regulates commercial speech protected by the First
Amendment, and we reject Castle Rock’s arguments to the contrary.
C
Our prior cases and the parties agree that assuming that the Curfew
implicates the First Amendment, as we have just decided our analysis is
governed by Central Hudson Gas & Electric Corporation v. Public Service
Commission, supra. We set out the substantive legal standards from Central
Hudson and then address in detail whether Castle Rock’s Curfew advances its
substantial interests in a direct and material way more specifically, whether “the
harms [Castle Rock] recites are real and that its restriction will in fact alleviate
48
them to a material degree.” Edenfield, 507 U.S. at 771. We conclude that Castle
Rock has failed to carry its burden under Central Hudson. 9
9
Notably, the parties have not addressed the import (if any) of the
Supreme Court’s decision in Breard v. City of Alexandria, 341 U.S. 622 (1951),
for the proper resolution of this appeal. In Breard, the Court upheld the
constitutionality of an ordinance barring door-to-door commercial soliciting
without the owner’s consent. Id. at 624, 641 45. It held that any First
Amendment interests at stake were outweighed by “householders’ desire for
privacy” and stated that “those communities that have found these methods of sale
obnoxious may control them by ordinance.” Id. at 644 45. The Court
distinguished cases striking down similar regulations because those cases had
concerned noncommercial speech. Id. at 642 43. The Court has since explained
that Breard held “that the ‘commercial feature’ of door-to-door solicitation of
magazine subscriptions was a sufficient reason for denying First Amendment
protection to that activity.” Discovery Network, 507 U.S. at 420. But in Virginia
State Board of Pharmacy, the Court stated that Breard was decided in an era
when the Court had “given some indication that commercial speech [was]
unprotected.” 425 U.S. at 758. The Court labeled cases like Breard as taking a
“simplistic approach,” which fell subject to “criticism,” “was regarded as of
doubtful validity by Members of the Court,” and was later “avoided.” Id. at 759.
“Since the decision in Breard, however, the Court has never [d]enied protection
on the ground that the speech in issue was ‘commercial speech.’” Id.; see
Discovery Network, 507 U.S. at 420 (noting that “[s]ubsequent opinions . . .
recognized that important commercial attributes of various forms of
communication” do not have the effect of limiting or restricting the speech’s
“entitlement to constitutional protection”). The Court went further in Village of
Schaumburg, stating that “[t]o the extent that any of the Court’s past
decisions” expressly including Breard “hold or indicate that commercial
speech is excluded from First Amendment protections, those decisions, to that
extent, are no longer good law.” 444 U.S. at 632 n.7. Whether Breard has been
rendered completely null as relevant here is not for us to say. We are sensitive to
the fact that it is the Supreme Court’s “prerogative alone to overrule one of its
precedents,” Bosse v. Oklahoma, --- U.S. ----, 137 S. Ct. 1, 2 (2016) (per curiam)
(quoting United States v. Hatter, 532 U.S. 557, 567 (2001)). However, what we
do know is that the parties agree that the Central Hudson test governs here and,
on that basis alone, we could apply that framework. Moreover, very significantly,
we never mentioned Breard in Pacific Frontier, and instead applied Central
Hudson to invalidate a restriction on door-to-door commercial solicitation. Thus,
(continued...)
49
1
The test enunciated in Central Hudson is a form of “intermediate standard
of review,” and, as well summarized in Edenfield, it provides that in determining
whether an ordinance regulating commercial speech may be proscribed,
we must ask [1] whether the State’s interests in proscribing it are
substantial, [2] whether the challenged regulation advances these
interests in a direct and material way, and [3] whether the extent
of the restriction on protected speech is in reasonable proportion
to the interests served.
Edenfield, 507 U.S. at 767; accord Cent. Hudson, 447 U.S. at 566; Pac. Frontier,
414 F.3d at 1231 32. 10 Castle Rock bears the burden on all three prongs. See
Edenfield, 507 U.S. at 770 (“It is well established that ‘[t]he party seeking to
uphold a restriction on commercial speech carries the burden of justifying it.’”
9
(...continued)
even putting aside the parties’ agreement, we read Pacific Frontier as obliging us
to analyze Castle Rock’s restriction on commercial door-to-door solicitation
under Central Hudson. Other circuits agree that Central Hudson applies in
circumstances such as these. See N.Y. State Ass’n of Realtors v. Shaffer, 27 F.3d
834, 835, 840S44 (2d Cir. 1994) (analyzing regulation on commercial door-to-
door solicitation under Central Hudson); Project 80’s, Inc. v. City of Pocatello,
942 F.2d 635, 636 37 (9th Cir. 1991) (same); S.-Suburban Hous. Ctr. v. Greater
S. Suburban Bd. of Realtors, 935 F.2d 868, 874 75, 894 (7th Cir. 1991) (same).
10
Sometimes the test is described as having a “threshold” step of
whether the regulated speech is lawful and not misleading. See Thompson v. W.
States Med. Ctr., 535 U.S. 357, 367 (2002) (describing the “threshold matter” of
“whether the commercial speech concerns unlawful activity or is misleading” and
then the “latter three inquiries”). When that threshold step is not implicated, as
here, we have referred to Central Hudson as “a three-part test.” Mainstream
Mktg. Servs., Inc. v. F.T.C., 358 F.3d 1228, 1237 (10th Cir. 2004). We do so
again here.
50
(quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.20 (1983))); Pac.
Frontier, 414 F.3d at 1231 35 (“A municipality has the burden of justifying its
regulation even on a motion to enjoin enforcement of an ordinance.”). We
summarize each element, focusing on the second, which we find determinative.
First, “a municipality must assert ‘a substantial interest to be achieved by
restrictions on commercial speech.’” Id. at 1231 (quoting Cent. Hudson, 447 U.S.
at 564). “[W]e must identify with care the interests the State itself asserts. Unlike
rational-basis review, the Central Hudson standard does not permit us to supplant
the precise interests put forward by the State with other suppositions.” Edenfield,
507 U.S. at 768. Castle Rock asserts that the Curfew furthers its residents’
interests in privacy and safety from crime, and Aptive does not contest that these
interests are substantial. Cf. Pac. Frontier, 414 F.3d at 1232 n.10 (“Their
concession is appropriate given longstanding Supreme Court precedent
recognizing a municipality’s right to protect its residents’ peaceful enjoyment of
their homes and to prevent crime.”). Thus, we do not linger on this factor.
Second, “[t]hat [the government’s] asserted interests are substantial in the
abstract does not mean, however,” that its restriction on commercial speech
purporting to effectuate those interests is permissible under Central Hudson.
Edenfield, 507 U.S. at 770. “[T]he restriction must directly advance th[e]
substantial interest[s]” asserted by the municipality. Pac. Frontier, 414 F.3d
at 1231; accord Revo v. Disciplinary Bd. of the Supreme Court of N.M., 106 F.3d
51
929, 933 (10th Cir. 1997) (“The second element asks whether the ban directly and
materially advances the asserted state interest.”). This means that “[i]f the
regulation ‘provides only ineffective or remote support for the government’s
purpose,’ it will not be upheld.” Pac. Frontier, 414 F.3d at 1231 (quoting Cent.
Hudson, 447 U.S. at 564); accord Mainstream Mktg., 358 F.3d at 1237 (“[T]he
regulation must directly advance that governmental interest, meaning that it must
do more than provide ‘only ineffective or remote support for the government’s
purpose.’” (quoting Cent. Hudson, 447 U.S. at 564)). “This burden is not satisfied
by mere speculation or conjecture; rather, a governmental body seeking to sustain
a restriction on commercial speech must demonstrate that the harms it recites are
real and that its restriction will in fact alleviate them to a material degree.”
Edenfield, 507 U.S. at 770 71; accord Utah Licensed Beverage Ass’n v. Leavitt,
256 F.3d 1061, 1071 (10th Cir. 2001). This requirement is “critical; otherwise, ‘a
[governmental body] could with ease restrict commercial speech in the service of
other objectives that could not themselves justify a burden on commercial
expression.’” Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995) (quoting
Edenfield, 507 U.S. at 771).
The Supreme Court does “not, however, require that ‘empirical data come
. . . accompanied by a surfeit of background information.’” Lorillard Tobacco Co.
v. Reilly, 533 U.S. 525, 555 (2001) (quoting Fla. Bar v. Went For It, Inc., 515 U.S.
618, 628 (1995)). Instead, the Court “ha[s] permitted litigants to justify speech
52
restrictions by reference to studies and anecdotes pertaining to different locales
altogether, or even, in a case applying strict scrutiny, to justify restrictions based
solely on history, consensus, and ‘simple common sense.’” Id. (quoting Went For
It, 515 U.S. at 628). When evaluating whether a municipality has put forward
sufficient anecdotes, history, or common sense to demonstrate “that the harms it
recites are real and that its restriction will in fact alleviate them to a material
degree,” Edenfield, 507 U.S. at 771, we evaluate the evidence in light of the cases
where those categories of evidence have previously been invoked, see Pac.
Frontier, 414 F.3d at 1235 n.12 (“What constituted sufficient anecdotal evidence
in [Went For It] provides helpful guidance as we evaluate [the municipality]’s
[anecdotal and common-sense] evidence.”).
As for the third element of the Central Hudson test, “the regulation is
unconstitutional ‘if the governmental interest could be served as well by a more
limited restriction on commercial speech.’” Id. at 1231 32 (quoting Cent. Hudson,
447 U.S. at 564); Mainstream Mktg., 358 F.3d at 1238 (asking “if the government
did not suppress an excessive amount of speech when substantially narrower
restrictions would have worked just as well”). “[L]aws restricting commercial
speech, unlike laws burdening other forms of protected expression, need only be
tailored in a reasonable manner to serve a substantial state interest in order to
survive First Amendment scrutiny.” Edenfield, 507 U.S. at 767; see Bd. of Trs. of
State Univ. v. Fox, 492 U.S. 469, 477 (1989) (requiring “something short of a
53
least-restrictive-means standard”). However, because we conclude that Castle
Rock fails at the second step in demonstrating that its Curfew “advances [its
substantial] interests in a direct and material way,” Edenfield, 507 U.S. at 767, we
do not reach this third element.
2
We now apply Central Hudson’s second prong, i.e., whether Castle Rock’s
Curfew “directly advance[s]” in a material way its substantial interests. Pac.
Frontier, 414 F.3d at 1231. Castle Rock asserts that the Curfew “directly
advances” its interests in public safety and privacy. We conclude that for both
asserted interests Castle Rock has failed to carry its burden of demonstrating
“that the harms it recites are real and that its restriction will in fact alleviate them
to a material degree.” Edenfield, 507 U.S. at 770S71. We thus conclude that the
Curfew unconstitutionally burdens Aptive’s First Amendment rights.
a
Castle Rock first asserts that the Curfew “[d]irectly [a]dvances” its interests
in public safety. Aplt.’s Opening Br. at 26. While all agree this interest is
“substantial in the abstract,” Edenfield, 507 U.S. at 770; see Pac. Frontier, 414
F.3d at 1232 n.10 (noting “longstanding Supreme Court precedent recognizing a
municipality’s right . . . to prevent crime”), we conclude that Castle Rock has
failed to carry its burden of demonstrating “that the harms it recites are real and
54
that its restriction will in fact alleviate them to a material degree,” Edenfield, 507
U.S. at 770 71.
Castle Rock seeks to demonstrate the existence of a “real” threat to public
safety through both data and the testimony of various council members and town
employees. We start with the data. Castle Rock plainly concedes that it “retains
no data predating the Curfew’s enactment that correlates evening-hours solicitation
with serious crime issues or rampant invasions of privacy.” Aplt.’s Opening Br. at
24; see Aplt.’s App., Vol. III, at A639 (stipulating that “[t]he Town has no record
of any crimes committed by registered commercial solicitors in Castle Rock prior
to the passage of the 2008 Ordinance”); id. at A643 (stipulating that “[t]he Town
has no record of ever charging or convicting a registered commercial solicitor for
committing a crime to persons or property”). The record does contain evidence
that the police department received eight “reports” concerning door-to-door
solicitation and twenty to thirty more informal “complaints” concerning
solicitation, some of which concerned door-to-door solicitation, in the year
preceding the Curfew’s enactment. Id., Vol. V, at A1313. One of these
complaints evidently involved a solicitor who was going door-to-door at 9:45 p.m.
Id. at A1327. But Castle Rock is right to acknowledge that these complaints do
not “correlate[] evening-hours solicitation with serious crime issues.” Aplt.’s
Opening Br. at 24. Indeed, only the one complaint concerning the 9:45 p.m.
conduct related to evening hours solicitation and was thus relevant to the Curfew.
55
But even the existence of this complaint does not demonstrate that any solicitors
(let alone commercial solicitors) specifically threatened public safety, as the
record provides no detail about the complaint and whether it was public-safety
related. The record evidence thus does not demonstrate that a “concrete,
nonspeculative harm” to public safety existed before the Curfew’s enactment.
Went For It, 515 U.S. at 628 29.
The only remaining data are from 2016 and 2017, i.e., after the Curfew was
enacted. These data demonstrate that in 2016 and 2017 combined there were
only eleven complaints about doorbell interruptions after 7:00 p.m. and that none
of those complaints involved commercial solicitors. All eleven of the complaints
about interruptions after 7:00 p.m. concerned noncommercial solicitors. Under
this evidence, the Curfew is not crafted well to materially alleviate Castle Rock’s
posited threat to public safety because those causing the evening interruptions are
not covered by the Curfew noncommercial solicitors. Cf. Pac. Frontier, 414
F.3d at 1234 35 (noting that “[a]ny speculation that [the ordinance] would assist
with crime prevention is further undercut by evidence that residential burglaries
committed in [the city] by those posing as solicitors involved individuals who did
not apply for a license” and so “the [restrictions imposed by the ordinance] would
have been of no use in those investigations”). Furthermore, were we to look at all
of the complaints across both 2016 and 2017, i.e., not just those occurring after
7:00 p.m., there still would be only one complaint about a registered commercial
56
solicitor. And even this complaint tells us nothing about a purported threat to
public safety. The data thus provide no support for Castle Rock’s argument that
commercial solicitation after 7:00 p.m. has presented a threat to public
safety either before or after the Curfew’s enactment.
Castle Rock counters that the absence of post-enactment data showing that
commercial solicitors are a threat to public safety demonstrates that the Curfew “is
working.” Aplt.’s Opening Br. at 24 (emphasis omitted). But this unadorned
assertion is self-defeating. It is Castle Rock’s burden to demonstrate that the
Curfew directly advances its interest in public safety, Pac. Frontier, 414 F.3d at
1231, and, at least under these circumstances, the absence of data cannot carry that
burden.
As for testimonial evidence, the majority of Castle Rock’s remaining
evidence of commercial solicitors’ purported threat to public safety comes from
testimonial evidence from various council members and town employees
pertaining to the post-enactment time period. This testimonial evidence which
purports to demonstrate that commercial door-to-door solicitation after 7:00 p.m.
remains a threat to public safety is thoroughly eviscerated by the data above to
the contrary. Indeed, Castle Rock’s current police chief was unable to point to a
specific instance where a commercial solicitor was accused of any solicitation-
related crime or where an individual had posed as a door-to-door solicitor for
purposes of hiding criminal intent. He also stated that “[m]ost crimes occur
57
outside of the nighttime hours,” Aplt.’s App., Vol. V, at A1132, A1150 which
not only directly undercuts the public-safety rationale for Castle Rock’s Curfew
but also is at odds with one of the Castle Rock town council’s express prefatory
statements in justifying the Curfew’s original enactment viz., “criminal activity
on private property often occurs during nighttime hours,” id., Vol. VI, at A1445.
Indeed, the chief testified that “a person is probably not more likely to commit a
crime to persons or property arising out of door-to-door solicitation after 7:00 p.m.
than before 7:00 p.m.,” and that “moving the Town’s Curfew from 7:00 p.m. to
dusk would not materially hamper the Castle Rock Police Department’s ability to
protect its citizens from crime.” Id., Vol. II, at A235. Additionally, he testified
that the data suggest that Castle Rock’s problem is with unregistered solicitors,
not registered commercial solicitors like Aptive’s. In sum, all of this testimony
from Castle Rock’s own police chief “contradicts, rather than strengthens,” the
proffered public safety interest in the Curfew. Edenfield, 507 U.S. at 772.
The only additional pre-enactment indicators of the ostensible threat to
public safety from commercial door-to-door solicitation come from the 2008
ordinance’s prefatory clauses (which were incorporated into the 2014 ordinance)
and the testimony of a former mayor and town council member. But, as our
discussion of the police chief’s testimony firmly underscores, there was no factual
basis for the various prefatory statements to the ordinance, which purported to
connect Castle Rock’s public-safety interest to its Curfew restriction on
58
commercial door-to-door solicitation. And Castle Rock’s former mayor testified
that “prior to passing the 2008 Ordinance[,] there was no discussion or analysis by
the Town Council of . . . solicitation-related crime in Castle Rock,” “crime
committed by commercial solicitors in Castle Rock,” “crime committed by
commercial solicitors in Castle Rock after 7:00 p.m.,” or “how a 7:00 p.m. curfew
would protect public safety.” Aplt.’s App., Vol. II, at A228. The prefatory
clauses thus cannot serve as evidence of a real harm. See Edenfield, 507 U.S. at
770 71 (“This burden is not satisfied by mere speculation or conjecture; rather, a
governmental body seeking to sustain a restriction on commercial speech must
demonstrate that the harms it recites are real . . . .” (emphases added)).
To be sure, Castle Rock’s former mayor stated that “when [the] Council was
considering the Curfew, there ‘probably was [sic] some thoughts,’ that ‘reasonable
people would think that people walking around their neighborhood or up to their
home could potentially be somebody that might create a crime in the town.’”
Aplt.’s App., Vol. II, at A234. And a former council member echoed these
concerns, stating that he “definitely” thought that it “could be a possibility” that
individuals posing as door-to-door solicitors were engaging in criminal activity.
Id., Vol. V, at A1085 86 (emphasis added). But these sorts of equivocal and
hypothetical statements about the possibility of a connection between crime and
commercial door-to-door solicitation are insufficient to establish a “concrete,
nonspeculative harm” to public safety. Went For It, 515 U.S. at 628 29; cf. Ill.
59
Pub. Action Council, 796 F.2d at 1555 n.15 (“When a city . . . wants to pass an
ordinance that will substantially limit First Amendment rights, the city must
produce more than a few conclusory affidavits of city leaders which primarily
contain unsubstantiated opinions and allegations.”).
The insufficiency of Castle Rock’s evidence purporting to establish that the
Curfew “directly advances” Castle Rock’s interest in public safety is underscored
when we consider the analysis in Pacific Frontier. There, the city sought to
justify a fingerprint requirement for commercial solicitors “by arguing that it
further[ed] the city’s legitimate interests in assuring peaceful use of private
property and in protecting its citizens against crime.” 414 F.3d at 1233. More
specifically, the city argued that its fingerprint requirement “uniquely further[ed]
[the city’s] interest in crime prevention and investigation.” Id. at 1234. A police
officer and city attorney, respectively, testified that the fingerprinting requirement
allowed the city to “potentially” identify culprits and that the requirement deterred
crime. Id. But we determined that the city “provided no evidence other than
conjecture to support its argument that having solicitors’ fingerprints on file would
either deter crime or aid the investigation of a burglary.” Id. at 1235.
In arguing to the contrary, the city said that its evidence was the kind of
“anecdotes and common sense” that the Supreme Court had permitted to “justify”
restrictions concerning First Amendment speech like its ordinance. Id. at 1235
n.12. We acknowledged that the Court in Went For It had relied on “anecdotal
60
evidence” to uphold a lawyer “solicitation regulation” when applying the Central
Hudson test. Id. But we also noted that “[w]hat constituted sufficient anecdotal
evidence” in Went For It could provide “helpful guidance” in assessing the
adequacy of the anecdotal and common-sense evidence that the city advanced. Id.
We noted that, in Went For It, the defendant “Florida Bar conducted a two-year
study of the impact of lawyer advertising and solicitation, and compiled a
106-page summary of its findings including survey results, newspaper editorials,
and complaints filed by citizens.” Id. Considering the Went For It guidepost, we
concluded that the “anecdotes” and “common sense” that the city presented to
justify its fingerprint requirement were “wholly insufficient.” Id. In short, the
city’s evidence did not demonstrate “that the harms it recite[d] we[re] real,”
Edenfield, 507 U.S. at 770 71.
To be clear, we do not read Pacific Frontier’s focus on the evidentiary
showing in Went For It as establishing a floor or threshold showing for the
quantity or quality of the common-sense or anecdotal evidence that a municipality
must necessarily marshal in demonstrating that the harms that support its
restriction on commercial speech are based in reality. 11 Pacific Frontier used the
11
Indeed, in Evans, in the admittedly distinct context of a content-
neutral time, place, and manner restriction, we rejected the argument that “the
City did not meet its burden to justify the fit between the ends and the means”
because “it failed to ‘compile any data, statistics, or accident reports.’” 944 F.3d
at 857 58. We noted that Supreme Court has not “create[d] a new evidentiary
requirement for governments to compile data or statistics.” Id. at 858. While
(continued...)
61
showing in Went For It only as “helpful guidance” a useful example of a
circumstance where the government’s common-sense and anecdotal showing was
held to be sufficient. 414 F.3d at 1235 n.12. We had no occasion in Pacific
Frontier to opine on how much or what kind of common-sense or anecdotal
evidence would be necessary to satisfy the reality-based “standard elaborated in
Edenfield.” Id. (quoting Went For It, 515 U.S. at 628); see also United States v.
Burkholder, 816 F.3d 607, 620 n.10 (10th Cir. 2016) (“An event or condition is
sufficient if its existence means that another event or condition will occur. An
event or condition is necessary if, in its absence, another event or condition could
not occur.”). We are in a like situation here. Castle Rock’s anecdotal and
common-sense showing is woefully insufficient, when viewed through the
“helpful” prism of the showing in Went For It. Pac. Frontier, 414 F.3d at 1235
n.12. In support of its public-safety justification, Castle Rock has provided us no
studies, no supportive evidence-based findings, and no survey results. And, with
respect to citizen complaints, there is no evidence that commercial solicitors are
the source of any public-safety problems. Indeed, what common-sense and
11
(...continued)
Evans was undertaking its analysis in a distinct First Amendment context, we
reinforce that holding here. As noted infra, using the showing in Went For It as a
helpful guidepost, we conclude that Castle Rock’s presentation of common sense
and anecdotal evidence is woefully inadequate. However, in doing so, we do not
suggest, for example, that it ordinarily would be necessary for municipalities to
perform “a double-blind empirical study[] or a linear regression analysis” before
they can legislate in the First Amendment area. Luce v. Town of Campbell, 872
F.3d 512, 517 (7th Cir. 2017).
62
anecdotal evidence that Castle Rock presents is contradicted by the police chief’s
testimony that there was no evidence that commercial solicitation posed a threat to
public safety and the accompanying data demonstrating that there have not been
any complaints about commercial solicitation after 7:00 p.m. In short, using as we
did in Pacific Frontier the “helpful guidance” of Went For It, id., we are able to
conclude that the common-sense and anecdotal evidence that Castle Rock has
advanced in support of its interest in public safety is woefully insufficient.
Castle Rock resists, but presents no persuasive argument to the contrary.
Castle Rock first argues that this result “would eviscerate a municipality’s ability
to address common sense concerns of residents,” Aplt.’s Reply Br. at 8 9, by
requiring it to perform “extensive, data-driven” research before legislating, Aplt.’s
Opening Br. at 27. But Castle Rock attacks a straw man. We have held no such
thing. The upshot of our decision here is only that, when burdening commercial
speech, a municipality must be able to demonstrate “that the harms it recites are
real and that its restriction will in fact alleviate them to a material degree.”
Edenfield, 507 U.S. at 770 71. It theoretically could do so by presenting many
different types of evidence: “[t]he government is not limited in the evidence it may
use to meet its burden.” Mainstream Mktg., 358 F.3d at 1237. Castle Rock cites
to Lorillard Tobacco Co. v. Reilly, supra, and Phillips v. Borough of Keyport, 107
F.3d 164 (3d Cir. 1997) (en banc), in further support of its argument on this point,
but neither leads to a contrary conclusion. Castle Rock only cites to Lorillard’s
63
recitation of the standard enunciated in Went For It; Lorillard neither adds to nor
subtracts from that standard. See Lorillard, 533 U.S. at 555. And we are bound to
follow Pacific Frontier’s interpretation of that standard, as we have done here.
So, Castle Rock’s reliance on Lorillard is unavailing.
In Phillips which did not apply the Central Hudson framework at all it is
true that the Third Circuit stated that “[w]hatever level of scrutiny we have applied
in a given case, we have always found it acceptable for individual legislators to
base their judgments on their own study of the subject matter of the legislation,
their communications with constituents, and their own life experience and common
sense.” 107 F.3d at 178. However, in making this statement, the Phillips court
was only rejecting appellants’ suggestion that the “factual basis for a legislative
judgment” regarding a First Amendment regulation had to “have been submitted to
the legislative body prior to the enactment of the legislative measure.” Id.
(emphasis added); see id. (“[I]n appellants’ view, a governmental entity may
successfully defend a First Amendment challenge of the kind here mounted only if
it can show that it was exposed, before taking action, to evidence from which one
could reasonably conclude that undesirable secondary effects would occur in the
absence of legislative action and that the particular action taken was narrowly
tailored to ameliorate those secondary effects.”). Yet the Phillips court left no
doubt that its position regarding pre-enactment evidence did not mean that there
was no “requirement that there be a factual basis for a legislative judgment
64
presented in court when that judgment is challenged.” Id. In fact, the Phillips
court required the municipality to put on a substantial showing indeed: “our First
Amendment jurisprudence requires that the Borough identify the justifying
secondary effects with some particularity, that they offer some record support for
the existence of those effects and for the Ordinance’s amelioration thereof . . . .”
Id. at 175. Castle Rock’s reliance on Phillips is thus unavailing. Even if we were
to adopt that court’s view concerning the lack of necessity for a sufficient pre-
enactment evidentiary showing a matter that is not before us and upon which we
do not opine that would not help Castle Rock because it still could not satisfy
Phillips’s “requirement that there be a factual basis for a legislative judgment
presented in court when that judgment is challenged.” Id. at 178. That is, as we
have demonstrated supra, both the pre- and post-enactment evidence Castle Rock
presented in district court in support of its public-safety justification was woefully
inadequate.
Castle Rock also endeavors (ultimately unsuccessfully) to make a viable
argument based on the factually dissimilar Supreme Court case City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1986). There, the Supreme Court upheld a
zoning ordinance that applied to adult motion picture theaters. In doing so, it held
that the city “was entitled to rely on the experiences of Seattle and other cities . . .
in enacting its adult theater zoning ordinance.” Id. at 51. As most relevant here,
the Court stated, “[t]he First Amendment does not require a city, before enacting
65
such an ordinance, to conduct new studies or produce evidence independent of that
already generated by other cities, so long as whatever evidence the city relies upon
is reasonably believed to be relevant to the problem that the city addresses.” Id. at
51 52.
Castle Rock argues that it similarly could rely on other cities’ experiences.
Aplt.’s Reply Br. at 10 11. We have no quarrel with this unremarkable
proposition. See Lorillard, 533 U.S. at 555 (“[W]e have permitted litigants to
justify speech restrictions by reference to studies and anecdotes pertaining to
different locales altogether . . . .” (alteration in original) (quoting Went For It, 515
U.S. at 628)); Phillips, 107 F.3d at 175 (noting that “[i]t may well be that the
defendants here, by pointing [inter alia] to studies from other towns . . . will be
able to carry their burden of showing that the ordinance [which allegedly infringes
on First Amendment interests] is reasonably designed to address the reasonably
foreseeable secondary effect problems” of plaintiffs’ adult-entertainment
business).
However, in Playtime Theatres, the Court allowed Renton to rely on studies
that Seattle (a neighboring city) had commissioned that established the basis for
“detailed findings” concerning the “harmful effect on th[at] area” and
“neighborhood blight” caused by adult movie theaters. 475 U.S. at 50 51 (quoting
Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153, 1156 (Wash. 1978) (en
banc)). Castle Rock has presented no similar evidence here from other cities. It
66
does not even identify specific municipalities that have purportedly experienced
similar problems with commercial door-to-door solicitors, let alone why the
experience of those cities “is reasonably believed to be relevant to the problem
that [Castle Rock] addresses.” Id. at 51 52. It certainly has not presented any
evidence containing detailed findings concerning these matters. Instead, Castle
Rock only points to the fact that other municipalities have similar ordinances. But
the fact that other cities have similar ordinances cannot, standing alone, give us
any basis to infer that the public-safety “harms” that Castle Rock “recites are
real,” Edenfield, 507 U.S. at 770 71. The ordinances of those cities could very
well be grounded on the same sort of inadequate common-sense and anecdotal
evidence as Castle Rock’s. Or, conversely, their door-to-door solicitors may have
in fact presented local officials with real public-safety concerns for reasons unique
to those cities. Based on Castle Rock’s showing there is no way to tell, and that is
a problem for Castle Rock. That means that it has not carried its burden of proof
to demonstrate the reality of its claimed public-safety interest by reference to
evidence of such harms in other cities. Therefore, we reject Castle Rock’s
argument predicated on Playtime Theaters.
Castle Rock also notes that in Watchtower the Supreme Court “recognized
the interests a town may have in some form of regulation, particularly when the
solicitation of money is involved.” 536 U.S. at 162. Other cases note the
potential for safety issues even more specifically. See, e.g., Int’l Soc’y for
67
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 684 (1992) (“[F]ace-to-face
solicitation presents risks of duress that are an appropriate target of regulation.”).
But no one disputes that Castle Rock’s interest in public safety is substantial in the
abstract or that certain forms of regulation might be necessary to limit commercial
solicitation. The problem here is a matter of proof or, in Pacific Frontier’s
language, of demonstrating that Castle Rock “faces real harms.” 414 F.3d at 1235;
see Edenfield, 507 U.S. at 770 (“That the Board’s asserted interests are substantial
in the abstract does not mean, however, that its blanket prohibition on solicitation
serves them.”). Castle Rock has not presented evidence of any risk of crime
associated with registered commercial solicitation after 7:00 p.m., and its police
chief’s testimony undermines any claim to the contrary. The fact that Castle
Rock’s interest in public safety is substantial in the abstract does not allow Castle
Rock to justify any regulation simply through talismanic invocation of that
interest.
Castle Rock makes the related argument that even if the regulations do not
advance its interest in public safety, they advance its interest in “ensuring that
Town residents feel safe in their community.” Aplt.’s Opening Br. at 27 (emphasis
added). But the primary connection between this interest and the Curfew that
Castle Rock makes is a citation to the following statement from its police chief:
I think that, you know, common sense tells us that as it gets later
in the evening, people are a little bit more anxious about [opening
their door to a stranger]. One reason is because they’re less likely
68
to be somebody, just a neighbor or a friend, show up at your door
unannounced at the later evenings, as opposed to earlier in the
day.
Aplt.’s App., Vol. V, at A1128. The chief continued to explain that the Curfew
helped to provide a “bright line” that has provided clarity to residents. Id. at
A1125, A1128. But this “common sense” rationalization is “wholly insufficient.”
Pac. Frontier, 414 F.3d at 1235 n.12. Castle Rock cannot infringe on Aptive’s
First Amendment interests in its commercial speech based on conjectural harms
and suppositions regarding how their citizens might feel about the removal of such
harms. See Went For It, 515 U.S. at 628 29 (noting that the regulation at issue
was adequately shown to “target[] a concrete, nonspeculative harm”); cf. Ill. Pub.
Action Council, 796 F.2d at 1553 (noting that “[t]he Supreme Court has . . .
emphasized the need for precision in the regulation of the exercise of First
Amendment rights”).
In particular, while the record does contain evidence about various citizen
complaints, many of these complaints are not relevant to the specific Curfew at
issue here in that they do not focus on interactions with commercial solicitors or
interactions after 7:00 p.m. and the remainder are undermined both by the
quantitative data that has been analyzed supra and by the police chief’s own
testimony. Without concrete evidence of relevant complaints, the fact that some of
Caste Rock’s citizens may feel “anxious” is woefully insufficient to demonstrate
69
that Castle Rock “faces real harms, which are materially palliated by the [Curfew]
requirements.” Pac. Frontier, 414 F.3d at 1235.
In sum, we hold that Castle Rock has failed to demonstrate that the Curfew
directly advances in a material way its substantial interest in public safety.
b
Castle Rock next argues that the Curfew directly advances its interest in its
citizens’ privacy. See Aplt.’s Opening Br. at 23 26. Like its interest in public
safety, Castle Rock’s interest in protecting the privacy of its citizens is in the
abstract an undisputedly substantial one. See Carey v. Brown, 447 U.S. 455, 471
(1980) (“Preserving the sanctity of the home, the one retreat to which men and
women can repair to escape from the tribulations of their daily pursuits, is surely
an important value.”); accord Pac. Frontier, 414 F.3d at 1232 n.10. However,
Castle Rock must again demonstrate that the harm it recites, i.e., the invasion of its
citizens’ privacy by commercial solicitors after 7:00 p.m., is “real” and that this
Curfew alleviates that harm “to a material degree.” Edenfield, 507 U.S. at 770 71.
It primarily attempts to carry this burden through a series of personal anecdotes.
While as discussed above we agree that ordinances can be justified by
anecdotes, we again conclude that Castle Rock’s evidence is wholly insufficient. 12
12
In a letter submitted under Federal Rule of Appellate Procedure
28(j), Castle Rock directs us to the Second Circuit’s decision in Vugo, Inc. v. City
of New York, 931 F.3d 42 (2d Cir. 2019), cert. denied, No. 19-792, 2020 WL
(continued...)
70
We start by recounting Castle Rock’s support for its assertion that the
Curfew directly advances its interest in protecting its citizens’ privacy. This
support comes primarily from the personal experiences of council members and
town employees and their discussions with constituents. Castle Rock argues
that before enactment of the Curfew in 2008 “the Town received complaints
regarding solicitors, and at least one related to evening-hours solicitation.” Aplt.’s
Opening Br. at 23 24. But the only pre-enactment evidentiary support relevant to
the Curfew is testimony concerning the single 9:45 p.m. solicitor. See Aplt.’s
App., Vol. V, at A1094 (Q: “[T]he only time-specific complaint that the Town
Council considered was one at 9:45, when it was dark; right?” A: “Yes.”). The
12
(...continued)
1978946, (Apr. 27, 2020). Castle Rock argues that Vugo “reaffirms the
conclusion that the government may rely in part upon citizen complaints to
establish the existence of a harm” under Central Hudson. Aplt.’s Suppl.
Authority at 1, No. 18-1166 (10th Cir. July 26, 2019). But Vugo which applied
Central Hudson to a distinct set of factual circumstances is consistent with the
approach taken here. While Vugo relied on citizen complaints, those complaints
were documented in the municipality’s “survey data” indicating that “nearly one-
third of respondents” found the advertising at issue to be annoying, while others
found that it was difficult to avoid and caused motion sickness. 931 F.3d at 52.
There is no similar survey data here; only the ad hoc complaints discussed infra.
Furthermore, Castle Rock argues that “Vugo rejects the proposition that an
exception for noncommercial messaging renders a general restriction on
commercial advertising unconstitutionally underinclusive.” Aplt.’s Supp.
Authority at 1 (emphasis added). But Vugo involved a general restriction on
commercial advertising with an exception for one specific form of advertising
that was also commercial. See 931 F.3d at 46, 47 & n.3 (explaining that “Taxi
TV” advertising allowed under the exception generates advertising revenue); id.
at 48 (“The challenged rules affect only commercial advertising.”). Castle Rock
thus seems to fundamentally misunderstand Vugo’s holding. In sum, we do not
find Castle Rock’s discussion of this case convincing.
71
former town clerk did testify that after the Curfew was enacted in
2008 “[c]itizens would call and complain” about, as relevant here, “unregistered
solicitors at their door” and “solicitors at their door after the curfew time.” Id.,
Vol. IV, at A981 82.
In addition to this collection of anecdotes, Castle Rock also attempts to
support its privacy rationale for its Curfew requirement by relying on common
sense, which as noted is permissible as a general matter. A former town council
member testified about his personal belief that the Curfew “gives you . . . a time
period that you know you will . . . have privacy,” id., Vol. V, at A1080 81, and
about his conversations with neighbors who thought 7:00 p.m. was “a reasonable
time,” id. at A1082. The former police chief stated that community members felt
“uncomfortable” with having strangers come to their door. Id. at A1313. And the
town manager testified, based on conversations with several citizens, that citizens
wanted to “keep the curfew the way that it is” and had “a problem with uninvited
solicitations [sic] showing up on their doorstep after 7 o’clock.” Id., Vol. IV, at
A920, A926, A970. He thought the Curfew “reflect[ed] the common sense view
that as the hours . . . get later, past dinnertime, people are moving toward more
private activities within their home, and they’re not wanting to be inconvenienced
or bothered by an uninvited stranger on [sic] their door.” Id. at A940. The mayor
also testified that she believed that community members supported the Curfew.
Counsel asked the mayor whether, “based on the input [she] received from [her]
72
constituents, [she thought] there [was] sort of a community-wide concern about
commercial solicitors going door to door after 7:00 p.m. in the evening.” Id., Vol.
V, at A1183. She answered as follows: “There is [sic] concerns from residents
about that. Yes.” Id.
Castle Rock also points to “other municipalities’ experiences” with
evening-hours solicitation invading residents’ privacy. Aplt.’s Opening Br. at 24.
However, as we explained in connection with Castle Rock’s public-safety
justification, supra, Castle Rock’s citations on this point simply indicate that other
municipalities have similar ordinances. That fact, standing alone, provides us
with no basis to infer that the privacy “harms” that Castle Rock “recites are real,”
Edenfield, 507 U.S. at 770 71, or that Castle Rock seeks to address a “concrete,
nonspeculative harm” to its citizens’ privacy, Went For It, 515 U.S. at 628 29. Cf.
Playtime Theatres, 475 U.S. at 50 51 (allowing municipality to rely on studies
commissioned by neighboring municipality that established the basis for “detailed
findings” concerning the “harmful effect on th[at] area” and “neighborhood blight”
caused by the regulated activity (quoting Northend Cinema, 585 P.2d at 1156)).
Taken together, the record then shows a handful of complaints about
evening solicitation spread over approximately ten years and the representations of
Castle Rock officials and employees that at least some (unknown) number of
citizens thought the Curfew made sense and was a good idea. This evidence is
either irrelevant or undercut by contrary quantitative data.
73
As for lack of relevancy, the vast majority of this testimony tells us nothing
about whether commercial solicitation after 7:00 p.m. is a “real” harm to privacy.
As we have generally discussed supra, the evidence focuses on all i.e., not just
commercial door-to-door solicitation and it also includes incidents that definitely
or likely took place during the daytime, if the timing of the incidents may be
discerned at all. See, e.g., Aplt.’s App., Vol. IV, at A983, A1015 (describing
daytime incident between council member and solicitor); id., Vol. V, at A1082 83
(same); id. at A1084 (describing interactions with children selling candy and
magazines, without reference to time of day); id. at A1305 (describing complaints
about solicitors without reference to time of day); id. at A1313 (same); id. at
A1318 19 (Email re: Council Legislative Items for Aug. 21 Study Session, dated
Aug. 6, 2007) (same). Underscoring the lack of evidence relating to the period
after 7:00 p.m., remember that the 2008 ordinance and, more specifically, the
Curfew grew out of the daytime interaction between a solicitor and a council
member, and Castle Rock’s mayor described two daytime interactions she had with
solicitors. And while Castle Rock claims that “[c]omplainants reported
harassment, intimidation, and discomfort as a result of solicitation,” Aplt.’s
Opening Br. at 24, the only record support for this allegation makes no reference
to evening solicitation.
More specifically, there is no support for a finding that commercial
solicitation after 7:00 p.m. has intruded on the privacy of Castle Rock’s citizens.
74
At most, the general and undifferentiated evidence concerning complaints
demonstrates that some Castle Rock residents did not like door-to-door solicitation
in any form including during the day or by noncommercial solicitors. Cf. Vill. of
Schaumburg, 444 U.S. at 638 39 (noting that the local government’s “requirement
is related to the protection of privacy only in the most indirect of ways” given that
the government “concedes[ that] householders are equally disturbed by solicitation
on behalf of organizations satisfying the [requirement] as they are by solicitation
on behalf of other organizations”).
Lastly, we return to the data from 2016 and 2017 that established that there
were only eleven complaints about doorbell interruptions after 7:00 p.m., and none
of those complaints involved commercial solicitors. Instead, all eleven of the
complaints about interruptions after 7:00 p.m. concerned noncommercial solicitors.
But the Curfew, which only applies to commercial solicitors, does nothing to stop
such interruptions. Thus, even if Castle Rock had demonstrated that door-to-door
solicitation imposed a real harm to its citizens’ privacy, there is ample reason to
doubt that this particular Curfew “w[ould] in fact alleviate” it, let alone “to a
material degree,” because noncommercial solicitors the group of identified
offenders would be able to continue soliciting throughout the evening. Lorillard,
533 U.S. at 528; cf. Pac. Frontier, 414 F.3d at 1234 35.
In sum, our cases and the record demonstrate that, as to the privacy interest
it asserts, Castle Rock has not carried its burden of demonstrating “that the harms
75
it recites are real and that its restriction will in fact alleviate them to a material
degree.” Edenfield, 507 U.S. at 770 71.
* * *
Based on the record before us, we conclude that Castle Rock has not
demonstrated that the Curfew directly advanced to a material degree its interests in
public safety and privacy. Because Castle Rock has failed at this second step of
the Central Hudson analysis, we need not and do not proceed to the final step. See
Adolph Coors Co. v. Bentsen, 2 F.3d 355, 359 n.6 (10th Cir. 1993) (“Because we
conclude that the Government has failed to satisfy its burden under the third part
of the Central Hudson test, we need not proceed to the fourth part to determine
whether there is a reasonable fit between the prohibition and the Government’s
interest.” (framing Central Hudson as involving four prongs)), aff’d sub nom.
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995); see also People for Ethical
Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 1008
(10th Cir. 2017) (“[I]f it is not necessary to decide more, it is necessary not to
decide more.” (alteration in original) (quoting PDK Labs. Inc. v. DEA, 362 F.3d
786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the
judgment))). We thus conclude that Castle Rock’s Curfew does not withstand
First Amendment scrutiny.
76
IV
For the foregoing reasons, we conclude that Aptive has standing to sue and
that Castle Rock’s Curfew unconstitutionally burdens Aptive’s First Amendment
rights. Thus, we AFFIRM the district court’s judgment.
77
18-1166 – Aptive Environmental v. Town of Castle Rock
HARTZ, J., Circuit Judge, concurring
I concur in the judgment and join all of the majority opinion except § III(C)(2)(b),
which addresses Castle Rock’s argument that the curfew can be justified by its interest in
residents’ privacy. The privacy right at issue in the present context is the right to be left
alone. As the Supreme Court has said: “The unwilling listener’s interest in avoiding
unwanted communication . . . is an aspect of the broader ‘right to be let alone’ that one
of our wisest Justices characterized as ‘the most comprehensive of rights and the right
most valued by civilized men.’” Hill v. Colorado, 530 U.S. 703, 716–17 (2000) (quoting
dissent of Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478 (1928)). It
added, “The right to avoid unwelcome speech has special force in the privacy of the
home.” Id. at 717; see Frisby v. Schultz, 487 U.S. 474, 492 (1988) (Brennan, J.,
dissenting) (“I also agree with the Court that the town has a substantial interest in
protecting its residents’ right to be left alone in their homes.”). Castle Rock asserts that
its curfew ordinance is justified because residents do not want to be bothered by
commercial solicitors after 7:00 p.m. As I understand the majority opinion, it states that
the City has not shown that this justification—this harm to privacy interests—is “real.”
I am not sure what is meant by “real.” Perhaps if there were real doubt about
whether commercial solicitors would bother to contact residents after 7:00 p.m., one
could say there is insufficient evidence to show that the harm is “real.” But there is no
doubt that, absent the ordinance, Aptive’s independent contractors would be soliciting
residents after 7:00 p.m. So I assume that the majority opinion is not complaining about
lack of evidence in that regard.
A second possibility is that there is no evidence that any resident would feel
bothered—would believe his or her privacy interests were offended—by being contacted
by a commercial solicitor after 7:00 p.m. But I do not think that the majority opinion is
saying that such evidence is totally absent. After all, if one of the city counselors who
voted for the ordinance did not want to be bothered by commercial solicitor after
7:00 p.m., that would be evidence regarding one resident. And conversations of
counselors with their constituents who express support for the ordinance would multiply
that evidence. I would also think, although the majority opinion rejects this, that the fact
that other municipalities had tried to justify evening curfews at various hours on the
ground that they protect the privacy of residents would serve as evidence that at least
some city dwellers of this era do not like to be bothered by commercial solicitors late in
the day.
I conclude that when the majority opinion states that Castle Rock “provides us
with no basis to infer that the privacy harms that [it] recites are real, or that [it] seeks to
address a concrete nonspeculative harm to its citizens’ privacy,” Maj. Op. at 72–73
(citation and internal quotation marks omitted), it means that the above evidence
mentioned by the majority does not show that the privacy harms have reached a minimal
threshold.
It is at this stage of the analysis that I become perplexed. Two questions need to
be answered. First, what is the standard that must be met by the City’s evidence? That
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is, what is the threshold of harm? Is it enough that a few residents do not wish to be
bothered? Is it enough that a substantial portion of the City’s residents do not want to be
bothered? Does a majority of the City suffice, or must it be almost everyone? Second,
what kind of evidence will suffice to prove that the standard has been met? The extent to
which residents believe that their privacy has been invaded cannot be measured by
impersonal “hard” evidence, as when a law is justified as a protection of health or safety.
An individual is likely to measure public sentiment on the issue simply by recalling how
often such privacy concerns come up in casual conversation. Can city leaders rely on
their sense of what the community wants? Are complaints necessary; and if so, how
many? Or are vote tallies or survey results the only legally acceptable sources?
The majority opinion states that its analysis is consistent with the Second Circuit
opinion in Vugo, Inc. v. City of New York, 931 F.3d 42 (2019). In that opinion the court
said that the ban on Taxi TV in taxicabs and for-hire vehicles was justified by a survey
that substantiated the harm it sought to prevent. The survey showed that “nearly one-
third [33 1/3 %] of respondents indicated that Taxi TV is annoying.” Id. at 52 (internal
quotation marks omitted). Although an independent survey showed that 45% of
respondents thought Taxi TV was a “pleasant diversion” while 41% thought it annoying,
the court wrote that “[t]his single third-party survey does not provide a basis for us to
second guess the City’s conclusion that in-ride advertisements are annoying to its
citizens—a conclusion it reached based on its own survey results and first-hand
experience receiving complaints from customers.” Id. This sentence may suggest that
majority displeasure is necessary, but that a 41% survey result plus constituent
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complaints and the personal experience of city officials could suffice to establish that the
threshold had been reached. A footnote, however, added: “Moreover, we see no reason
why the City may not seek to alleviate a harm when the harm is experienced by forty-one
percent of the population.” Id. at n.9. An explicit endorsement of this analysis in the
majority opinion would be helpful.
But it appears that the majority would not go so far. Applying Vugo to the present
context, I would think that there is sufficient evidence of “real” harm. The record
indicates that 30% of the households in Castle Rock had signed up for the do-not-knock
list, which prohibits commercial solicitors from bothering them at any time of the day.
See Aplt. App., Vol. 2 at 419 n.20 (list contains over 6300 addresses out of some 21,000
housing units in the town). Can we not infer that at least 30% of the households would
not want to be bothered after 7:00 p.m.? Does a commercial solicitation after 7:00 p.m.
not harm a resident who also would be upset by a solicitation at noon, or 6:00 p.m., or
6:30 p.m.? 1
I would hope that we could provide useful guidance to municipalities in this
circuit that would like to consider solicitation curfews. To be safe, a city may wish to
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The majority opinion also suggests that a ban on commercial solicitation after
7:00 p.m. would not in fact alleviate the intrusion on privacy interests because
noncommercial solicitation would still be permitted. But perhaps residents are not
offended by noncommercial solicitation after 7:00 p.m. Or perhaps they are offended but
believe it should still be tolerated. If, say, a curfew reduces solicitation by 50%, why is
that not sufficient alleviation to justify the curfew? The Second Circuit in Vugo noted the
recent Supreme Court reiteration of the proposition that “‘[a]lthough a law’s
underinclusivity raises a red flag, the First Amendment imposes no freestanding
underinclusiveness limitation.’” 931 F.3d at 53 (quoting Williams-Yulee v. Fla. Bar, 135
S. Ct. 1656, 1668 (2015)).
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pay for a resident survey before considering whether to enact an ordinance. But unless
the survey results are overwhelming in one direction or the other, city officials might well
be at a loss regarding the likelihood that an ordinance would pass constitutional muster.
City attorneys may find it difficult to provide advice based on the majority opinion.
I think it would have been preferable if this court had avoided those issues and
resolved this case on another component of the Central Hudson analysis that could
provide clear guidance. In my view, it is likely that no 7 PM curfew could survive
Central Hudson’s requirement that “it is not more extensive than is necessary to serve
[the government’s asserted] interest.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n, 447 U.S. 557, 566 (1980); see id. at 564 (“[I]f the governmental interest could
be served as well by a more limited restriction on commercial speech, the excessive
restrictions cannot survive.”); Edenfield v. Fane, 507 U.S. 761, 767 (1993) (describing
Central Hudson requirement as “whether the extent of the restriction on protected speech
is in reasonable proportion to the interests served”). The record indicates that with
relative ease Castle Rock could achieve its ends in a way that restricts commercial
solicitors from intruding on only those residents who are offended by the intrusion. The
Ordinance already contains a provision that prohibits solicitation of a home if the
homeowner requests to be put on a do-not-knock list. Commercial solicitors are required
to check the list and comply with it. The record indicates that the prohibition has been
violated only once, and in that case apparently inadvertently by a sight-impaired solicitor.
There is no reason to think that registered commercial solicitors would violate a provision
stating that they should not contact homes that are listed as not wanting commercial
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solicitors after 7 PM. I would infer that banning all commercial solicitation after 7 PM,
which burdens solicitation of those who do not object to the practice (a substantial
additional constraint on the solicitors), is more burdensome than necessary to further the
City’s substantial interest in privacy. Thus, the reasoning that requires invalidating the 7
PM curfew in the present ordinance at the same time suggests a workable well-tailored
solution.
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