Association of Community Organizations for Reform Now v. Town of East Greenwich

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2534
ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW,
Plaintiff, Appellant,
v.
TOWN OF EAST GREENWICH by and through its Town
Council Members, Michael B. Isaacs, John M. McGurk,
Mathias C. Wilkinson, Henry V. Boezi and Kelly A. Petti
in their official capacities, its CHIEF OF POLICE
David Desjarlais in his official capacity and its FINANCE
DIRECTOR Thomas Mattos in his official capacity,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella and Lynch, Circuit Judges,
and Fusté,* District Judge.
Carolyn A. Mannis, for appellant.
John J. Cloherty, III, with whom Pierce, Davis & Perritano,
LLP, was on brief, for appellees.
June 27, 2007
*
Of the District of Puerto Rico, sitting by designation.
TORRUELLA, Circuit Judge. The Association of Community
Organizations for Reform Now ("ACORN") sued the Town of East
Greenwich, Rhode Island (the "Town"), seeking an injunction to
prohibit the Town from requiring parties who planned to engage in
door-to-door solicitation of money to obtain a permit, and barring
all solicitations of money from 7:00 P.M. until 9:00 P.M.1 After
a one-day evidentiary hearing, the district court denied ACORN's
request for a preliminary injunction.
The only issue before us is whether the district court
abused its discretion in denying ACORN's request for a preliminary
injunction, which is an interlocutory order. See Diálogo, LLC v.
Santiago-Bauzá, 425 F.3d 1, 3 (1st Cir. 2005). A district court's
decision whether to grant a preliminary injunction is guided by the
consideration of four factors: "(1) the likelihood of success on
the merits; (2) the potential for irreparable harm [to the movant]
if the injunction is denied; (3) the balance of relevant
impositions, i.e., the hardship to the nonmovant if enjoined as
contrasted with the hardship to the movant if no injunction issues;
and (4) the effect (if any) of the court's ruling on the public
interest." Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18
1
The Town's ordinance actually extends the prohibition on door-
to-door soliciting until 9:00 A.M. However, ACORN challenged the
ordinance only inasmuch as it prohibited soliciting earlier than
9:00 P.M.
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(1st Cir. 2006) (alteration in original) (quoting Bl(a)ck Tea Soc'y
v. City of Boston, 378 F.3d 8, 10-11 (1st Cir. 2004)).
We conclude that the district court did not abuse its
discretion in denying the preliminary injunction. The factual
record in this case is thin: the evidentiary hearing lasted only
one day, and each side presented the testimony of only two
witnesses. While we recognize that the quantum of evidence
necessary to prevail on a motion for a preliminary injunction may
vary, in this particular case, we conclude that the district court
did not abuse its discretion in determining that the evidence was
insufficient to show that ACORN would likely succeed on the merits.
See Bl(a)ck Tea Soc'y, 378 F.3d at 14 ("[T]his is a close and
difficult case. The district court, however, dealt with matters at
first hand and concluded that the appellant had not shown a
likelihood of success on the merits."). In reaching this
conclusion, we do not endorse the reasoning of the district court,
which appeared to reject ACORN's First Amendment claims on the
merits. Cf. Asociación de Educación Privada de P.R., Inc. v.
Echevarría-Vargas, 385 F.3d 81, 86 (1st Cir. 2004) (explaining that
dismissal was inappropriate in light of "the absence of any
evidence about the nature and weight of the burdens imposed and the
nature and strength of the government's justifications"). On
remand, the court would be assisted by further development of the
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facts, both as to the justifications for the ordinance and the
burdens it imposes.
The ordinance at issue in this case, by its own terms,
applies only to door-to-door solicitation of funds; it does not
appear to regulate canvassers who simply seek to advocate a
position without seeking a donation. The Supreme Court's most
recent decision on this issue recognized the "historical importance
of door-to-door canvassing and pamphleteering as vehicles for the
dissemination of ideas," but also noted that a state may have some
interest in regulating such conduct, "particularly when the
solicitation of money is involved." Watchtower Bible & Tract Soc'y
of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 162 (2002). The
Supreme Court expressly declined to elucidate a standard of review
to be applied to restrictions that apply to door-to-door canvassing
or solicitation, id. at 164, but subsequent decisions have
suggested that the appropriate test might be one resembling
intermediate scrutiny. See, e.g., Parks v. Finan, 385 F.3d 694,
703 (6th Cir. 2004) (requiring that a scheme requiring permits to
hand out pamphlets at the state capitol must be "narrowly tailored
to the government's interest"); SEIU, Local 3 v. Municipality of
Mt. Lebanon, 446 F.3d 419, 425 (3d Cir. 2006) ("[T]o the extent
that the ordinance 'is not tailored to the [municipality's] stated
interest,' there is a commensurate reduction in the municipality's
interest in its enforcement." (alteration in original) (quoting
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Watchtower, 536 U.S. at 168)). Of course, the application of
intermediate scrutiny is dependent on whether the challenged
regulation is content-neutral, a fact that appears to be in dispute
in this case. If the ordinance at issue is content-based, strict
scrutiny would likely apply. See Turner Broad. Sys. v. FCC, 512
U.S. 622, 642 (1994) ("Our precedents . . . apply the most exacting
scrutiny to regulations that suppress, disadvantage, or impose
differential burdens upon speech because of its content.").
The Town argues that the challenged ordinance satisfies
intermediate scrutiny because it helps to combat fraudulent
solicitations, reduces overall crime rates, and protects residents'
privacy. ACORN argues that the ordinance fails to meet
intermediate scrutiny because it is not narrowly tailored to
achieve these goals, and that in any case, it excessively burdens
ACORN's ability to convey its message and solicit donations.
Whether the challenged ordinance advances the town's interests or
excessively burdens ACORN's ability to speak are questions that are
heavily dependent on factual determinations, and are therefore
difficult to answer at this stage in the litigation. At a minimum,
the Town has offered sufficient evidence to call into question the
plaintiff's likelihood of success on the merits.
We also note that there are issues that were not
expressly presented to the district court in the motion for a
preliminary injunction, but which may raise additional areas for
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inquiry on remand. First, there may be discrepancies between what
the ordinance says on its face and how it is applied. For example,
there was testimony at the hearing that it ordinarily takes only
two days to obtain a permit, which appears to be in conflict with
the ordinance's requirement that a permit be applied for five days
in advance of solicitation. Whilst the ordinance provides for a
permit fee of $10 per day, testimony at the evidentiary hearing
indicates that groups were charged a one-time fee of $10. These
discrepancies may bear on the ultimate question of whether the
ordinance is narrowly tailored to meet a legitimate state interest.
Second, there was some evidence presented that the
permitting scheme was enforced in a discriminatory manner based on
the identity of the speaker.2 There was testimony that religious
organizations may not need a permit even if they solicit donations.
Furthermore, there was testimony that scouting and school
organizations have never applied for a permit, although there was
no testimony presented on whether such organizations had solicited
without permits. These were not the primary bases for relief
sought at the preliminary injunction hearing, and we leave it to
2
We express no opinion at this time as to the argument that
"solicitation speech," i.e., conveying a message that a donation is
requested, can be distinguished from the actual act of
solicitation, i.e., the conduct of receiving a monetary or in-kind
donation. Cf. ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 954
(D.C. Cir. 1995) (upholding a prohibition on solicitation in a park
where the National Park Service interpreted solicitation "to
include only an in-person request for immediate payment.").
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ACORN to decide whether to press such issues on a motion for a
permanent injunction.3
The issues in this case are difficult, and the Supreme
Court has not provided clear guidance. Moreover, what guidance the
Supreme Court has provided suggests that this particular scenario,
of mixed political speech and solicitation of donations, is
precisely the sort that may turn on factual issues. Under those
circumstances, further facts should be developed before the
constitutional issues can be resolved.
Affirmed.
3
Cf. Association of Community Organizations for Reform Now,
("ACORN") v. Golden, 744 F.2d 739, 749 (10th Cir. 1984) ("Golden's
ordinance, however, is not content neutral. The ordinance permits
exemptions for organizations or individuals if the purpose of the
solicitation is for a charitable, religious, patriotic or
philanthropic purpose, or otherwise provides a service so necessary
for the resident's general welfare that it does not constitute a
nuisance. This approach contemplates a distinction based on
content.").
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