Aptive Environmental v. Town of Castle Rock ( 2020 )


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  •                                                                      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 47
    6, 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 770
    S71. 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
    2
    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
    3
    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
    1
    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)).
    4
    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
    5
    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.
    6