Vasquez v. Housing Auth. of El Paso

• Decision Date: 05 November 2001
• Docket Number: No. 00-50702,00-50702
• Citation: 271 F.3d 198
• Parties: (5th Cir. 2001) ROBERTO S. VASQUEZ; ET AL, Plaintiffs, JESUS DE LA O, Plaintiff-Appellant v. HOUSING AUTHORITY OF THE CITY OF EL PASO, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 198

271 F.3d 198 (5th Cir. 2001)

ROBERTO S. VASQUEZ; ET AL, Plaintiffs, JESUS DE LA O, Plaintiff-Appellant v. HOUSING AUTHORITY OF THE CITY OF EL PASO, Defendant-Appellee.

No. 00-50702

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

November 5, 2001

Revised November 15, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Western District of Texas

Before POLITZ and BARKSDALE, Circuit Judges, and FALLON,^* District Judge.

POLITZ, Circuit Judge:

Jesus De La O appeals an adverse summary judgment in his action challenging the El Paso Housing Authority's enforcement of a trespassing regulation against candidates engaged in door-to-door campaigning. Concluding that the restriction, as applied to nonresident political volunteers, violates the first amendment, we reverse and remand.

BACKGROUND

De La O resides in the Sun Plaza Apartments, a housing unit owned by the Housing Authority of the City of El Paso ("HACEP"). Roberto Vasquez, a candidate for El Paso County Democratic Chair, sought to distribute literature and to engage in door-to-door campaigning at Sherman Oaks, another HACEP development. Vasquez does not reside in any HACEP facility. HACEP informed Vasquez that he could not campaign on any housing authority property, citing two regulations. The first regulation, commonly known as a "trespass after warning" rule, limits access to HACEP property to "residents, members of their households, their guests and visitors, and such other persons who have legitimate business on the premises, e.g., law enforcement and other governmental personnel, utility service workers, HACEP contractors, and others as authorized by HACEP."¹ Persons refusing to identify themselves or those who cannot prove authority to be on the development premises are to receive a "trespass warning" ordering them to leave or face arrest.

The second regulation, entitled "Notices and Flyers," prohibits the distribution of such materials without prior approval of the Development's Housing Manager. It allows residents to distribute literature only between 9:00 a.m. and 8 p.m. and forbids the placing of leaflets on the doors of residents who do not answer.² Taken together, these regulations operate to allow residents to distribute literature, political or otherwise, but prevent nonresidents from doing so. The Director of Housing Management stated in his affidavit that the trespass after warning rule protects tenants in that most persons arrested on the premises are nonresidents.

The De La O and Vasquez action challenges the regulations restricting nonresident access. The trial court issued a Temporary Restraining Order enjoining HACEP from preventing Vasquez and other candidates from campaigning on HACEP's property until a final hearing could be held. That hearing followed and the parties filed dispositive motions. HACEP moved to dismiss the action and, alternatively, for summary judgment. De La O and Vasquez responded by filing their own motions for summary judgment. The trial court entered final judgment granting HACEP's motion for summary judgment. In its Memorandum Opinion and Order the court found that the housing development was a non-public forum and that the regulations were a reasonable response to relevant safety concerns. De La O appealed, asserting his constitutional right to receive oral and written presentations from political candidates or their representatives.

ANALYSIS

We review a summary judgment de novo, affirming if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.³ The parties do not dispute the facts and ask us to decide the purely legal issue whether the HACEP regulations violate the first amendment. We conclude that the regulations, as applied to political campaigners and their representatives, constitute an unreasonable restriction on De La O's first amendment right to receive political information.

I. Right to Receive Information Protected Under First Amendment

We will address the question of the propriety of a challenged regulation, such as that at bar, if the activity at issue implicates the first amendment. HACEP contends that the present dispute raises no first amendment concerns because De La O, the only remaining appellant, resides in the development and may proceed door-to-door espousing his political views. We are not persuaded; there is more to the inquiry. The first amendment guarantees the unrestricted flow of information into the market place of ideas. This first amendment protection extends not only to those who contribute to the market place of ideas, but necessarily extends to those who seek to benefit from the resultant dialogue. As stated by the Supreme Court:

The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature, and necessarily protects the right to receive it.⁴

II. Forum Analysis

After finding that the activity at issue implicates the first amendment, "we must determine the level of scrutiny that applies to the regulation of protected speech at issue."⁵ The Supreme Court recognizes three different categories of government owned property for purposes of the first amendment: the traditional public forum, the designated public forum, and the nonpublic forum.⁶ Traditional public fora include "those places which 'by long tradition or by government fiat have been devoted to assembly and debate,'" such as public streets and parks.⁷ Designated public fora encompass those places or channels of communication assigned by the government "for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects."⁸ Finally, nonpublic fora consist of those places "which [are] not by tradition or designation a forum for public communication."⁹

We agree with the district court that the HACEP developments fall within the category of nonpublic fora.¹⁰ Residency is limited to those who meet the financial qualifications and the developments lack public streets and parks. In addition, although the residents use the housing complex for myriad everyday life activities, including the discourse on ideas and the discussion of any topic they desire, the government did not create HACEP nor its developments for the purpose of providing a meeting place for the public to exchange ideas. Rather, the purpose of the HACEP development activity is to provide affordable housing to low income citizens who reside in El Paso. This necessarily mandates a finding that the HACEP developments differ in character from the areas previously categorized by the Court as designated public fora.¹¹

We recognize that HACEP shares many similarities with the government town at issue in Tucker v. State of Texas,¹² where the Court held that a village owned by the United States and designed to provide housing for persons engaged in National Defense activities could not ban religious activities within its boundaries. Unlike Tucker, however, HACEP operates only a small web of housing complexes within a large urban area, it does not control every building and walkway in the city of El Paso. A more telling comparison is the military base at issue in Greer v. Spock.¹³ The base permitted free civilian access to certain unrestricted areas, however, "[t]he presence of sidewalks and streets within the base did not require a finding that it was a public forum."¹⁴ Characterizing HACEP as a public forum simply because of its streets and sidewalks, as appellant urges, would be inconsistent with our understanding of the Court's forum analysis jurisprudence. As the Court clearly has noted: "The mere physical characteristics of the property cannot dictate forum analysis."¹⁵ The developments operated by HACEP, as we view them, fall within the category of nonpublic fora.

III. Constitutionality of the Housing Authority Regulations

The determination that the HACEP developments are nonpublic fora does not end our inquiry. We must evaluate the regulations at issue under the standard established by the Court for restrictions on speech in nonpublic fora. The government may regulate expressive activities in a nonpublic forum "as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view."¹⁶ We recognize that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government."¹⁷ An equally commanding principle, however, is that "[t]he Government, even when acting in its proprietary capacity, does not enjoy absolute freedom from First Amendment constraints."¹⁸ Applying the aforementioned standard to the present dispute, we conclude that the trespass after warning statute, as applied to political candidates, constitutes an unreasonable restriction on the residents' first amendment rights.

A. Viewpoint Neutrality

We agree with the district court that Rules D2 and D5 are viewpoint neutral because they apply to all nonresidents who seek to go door-to-door distributing literature. HACEP proscribes door-to-door campaigning regardless of party affiliation or the viewpoint espoused by the nonresident. Accordingly, the regulations are content-neutral in our constitutional evaluation.

B. Reasonableness

With due pause and after careful consideration we disagree with trial court that Rules D2 and D5 constitute reasonable regulations when applied to political candidates and their campaign volunteers. The trespass regulation, as applied to political campaigning, strikes at the very core of our democratic system. "Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities,...