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Federal court orders El Paso to allow public proselytizing

proselytizing

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John Burger - published on 07/10/21

The city had stopped evangelical Christian Ryan Denton from exercising his right to constitutionally protected speech.

A federal court has ordered that the City of El Paso, Texas, must allow a Christian man to proselytize at a city farmer’s market. 

In Denton v. City of El Paso, the U.S. Court of Appeals for the Fifth Circuit remanded a case to a Texas federal district court ordering it to grant a preliminary injunction barring El Paso from prohibiting religious proselytizing at the weekly outdoor El Paso Art and Farmers Market. 

The plaintiff, Ryan Denton, is an evangelical Christian, who said his faith compels him to engage in proselytization. He proselytizes through literature distribution, conversation, and unamplified preaching.

When he tried to do this at the El Paso Art and Farmers Market, a weekly event that takes place year round, El Paso officials told him that city policy prohibited proselytizing within the market’s perimeter. Denton sued, saying the policy violates his constitutional rights, including free speech, free exercise of religion, and due process. He moved for a preliminary injunction to restrain the city and its agents from prohibiting proselytizing at the market. The district court denied his motion. 

In its opinion, the New Orleans-based Fifth Circuit Court, quoting several precedents, explained that a restriction is content-based if it is “based on ‘the specific motivating ideology or the opinion or perspective of the speaker’” or “prohibit[s] . . . public discussion of an entire topic.”

A restriction on speech is content-based “on its face,” the court continued, if it “defin[es] regulated speech by particular subject matter.” 

“If the restriction is content based, it receives strict scrutiny: the government ‘must show that its [restriction] is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end,’” the court wrote, again citing precedent. “Narrow tailoring requires that the regulation be the least restrictive means available to the government.”

The court noted that Denton argues that the city’s policy is to prohibit all religious proselytizing within the market’s perimeter. The city argues that its policy is to prohibit disruptive conduct within the market’s perimeter.

Significantly, both Denton and El Paso submitted to the district court a Statement of Undisputed Facts. In it, the city did not dispute that “El Paso rules list ‘fundraising,’ ‘political campaigning,’ and ‘religious proselytizing’ as First Amendment activities that are barred from the Market.” 

“The City, therefore, categorically disallows any proselytizing in the Market,” the Fifth Circuit concluded.

Indeed, the City’s pre-litigation correspondence with Denton confirms this categorical exclusion. In a letter to Denton, the City stated that it “does not allow activities such as protesting, campaigning, lobbying, proselytizing, or any other activity that could cause a disruption of performances, vending, and/or operations, or pose a potential safety issue.” Although the City asserts that its policy is merely one that prevents disruptive conduct, the policy is actually a categorical ban on proselytizing. As characterized by the City, the policy prohibits all proselytizing on the assumption that it will be disruptive, rather than prohibits conduct because it is disruptive.

“Accordingly, we find that the City’s policy is content based because it ‘applies to particular speech because of the topic discussed or the idea or message expressed’ — here pro-religious speech,” the court concluded. “Moreover, the City’s policy is content based on its face because it “defin[es] regulated speech by particular subject matter” — religious proselytization.

“Because its policy is content based, El Paso ‘must show that its [restriction] is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end,’” the court concluded. “Narrow tailoring requires that the regulation be the least restrictive means available to the government. … El Paso fails to make this showing.”

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Religious Freedom
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