Summary
The Fifth Circuit reviewed a preliminary injunction dispute involving a Kerrville ordinance regulating canvassing and soliciting. The court held that certain plaintiffs had standing to challenge the ordinance's hours, signage, streets, and permitting provisions, but lacked standing to challenge the minor permitting provision. It affirmed in part, reversed in part, and remanded for further proceedings concerning the First Amendment challenges.
Topics
Practice areas
Questions Presented
- Whether plaintiffs had Article III standing to bring pre-enforcement challenges to the ordinance's hours, signs, streets, permitting, and minor permitting provisions.
- Whether the ordinance's canvassing definition made the hours and signs provisions content-based and subject to strict scrutiny.
- Whether the City demonstrated a substantial likelihood that the streets and permitting provisions could satisfy intermediate scrutiny at the preliminary-injunction stage.
- Whether the district court's injunction prohibiting enforcement of the permitting provision was impermissibly overbroad because plaintiffs pursued an as-applied challenge.
- Whether the district court properly treated the facial and as-applied challenges under the preferred sequence of deciding the as-applied challenge first.
Holdings
- LIA and Hall have standing to challenge the hours, signs, streets, and permitting provisions, and Vickers has standing to challenge the signs and permitting provisions, because their intended protected speech is arguably proscribed and the City's refusal to disavow enforcement created a credible threat.
- No plaintiff has standing to challenge the minor permitting provision because no plaintiff is a minor and plaintiffs did not bring claims on behalf of a minor.
- The hours and signs provisions are content-based because the ordinance defines canvassing by reference to particular subjects, including religion, philosophy, ideology, political parties, issues, and candidates; therefore, strict scrutiny applies.
- The district court erred in finding that plaintiffs had not shown a substantial likelihood of success on their challenges to the hours and signs provisions; those issues must be reconsidered under strict scrutiny.
- Hall and LIA demonstrated a substantial likelihood of success on their as-applied challenge to the streets provision because the City failed to show that traffic safety was a genuine, actual interest supporting the provision or that a complete ban was narrowly tailored.
- Plaintiffs demonstrated a substantial likelihood of success on their as-applied challenge to the permitting provision because the City failed to show that mandatory permits, fees, fingerprinting, and background checks were narrowly tailored to its asserted privacy and crime-prevention interests.
- The district court's injunction barring all enforcement of the permitting provision was overbroad because the case was resolved only on as-applied grounds; the injunction must extend only as far as necessary to protect the plaintiffs.
Key quotations
“Simply put, this is not a case where Plaintiffs’ fear of enforcement is speculative or overcautious.” (9)
“Because the definition regulates speech regarding these six particular subjects, but no others, it creates exactly the type of “topic” based distinction that warrants strict scrutiny.” (18)
“Here, the City failed to make this showing because it presented no evidence whatsoever.” (22)
“The same reasoning appears true here, and the City does not distinguish these holdings.” (29)
Factual background
On March 26, 2024, the City of Kerrville enacted an ordinance regulating canvassing and soliciting, including political and religious canvassing, door-to-door activity, roadside solicitation, and solicitation requiring permits. LIA, Terri Hall, and Rachel Vickers alleged that they intended to engage in political canvassing, religious evangelism, charitable fundraising, commercial solicitation, and related speech covered by the ordinance, but feared fines and enforcement. The ordinance imposed restrictions on nighttime activity, homes displaying prohibitory signs, streets and medians, and solicitation without a permit involving fees, fingerprinting, and background checks.
Procedural history
Plaintiffs sued under 42 U.S.C. § 1983, asserting facial and as-applied First and Fourteenth Amendment challenges to five provisions of Kerrville's ordinance regulating canvassing and soliciting. The district court found standing for most challenged provisions, enjoined enforcement of the permitting provision, and denied preliminary relief as to the hours, signs, and streets provisions. Both sides appealed. The Fifth Circuit affirmed the standing rulings, reversed portions of the preliminary-injunction merits analysis, vacated the overbroad injunction concerning the permitting provision, and remanded.
Remand instructions
Reconsider plaintiffs' likelihood of success on the hours and signs provisions under strict scrutiny, addressing the as-applied challenge first and reaching facial challenges only if the provisions are valid as applied. Reconsider the remaining preliminary-injunction factors for the streets provision. Vacate and recraft the permitting-provision injunction so that it extends only as far as necessary to protect the plaintiffs. Plaintiffs' motion for an injunction pending appeal is denied as moot.