On August 24, 2019, Ryan Denton went to the El Paso Art and Farmers Market to proselytize. He regularly preaches and proselytizes in public spaces, but this time he was interrupted. Denton was located at the intersection of Western Street and Anthony Street, which was out of the way of vendors and pedestrian traffic. Despite this, he was approached by an MCAD (Museum and Cultural Affairs Department) employee and a law enforcement officer from the El Paso County Sheriff’s Department who told him he was not permitted to proselytize in this location. The officer told Denton that he would be arrested if he continued to proselytize, but he could continue his behavior directly outside the Market perimeter. As a result, Denton filed suit against the City of El Paso. He claimed that the City violated his First and Fourteenth Amendment rights by preventing him from engaging in religious proselytization at a traditional public forum.
The question arises whether the restriction on his free speech (his right to proselytize) was content based or content neutral. To understand this, we must conduct a content-neutral analysis. A prior case known as Ward v. Rock Against Racism defined a restriction as content neutral if it ‘serves purposes unrelated to the content of expression…even if it has an incidental effect on some speakers or messages but not others.’ A restriction that is content neutral faces slight scrutiny. Another case called Reed v. Town of Gilbert defined a restriction as content based if it is ‘based on the specific motivating ideology or the opinion or perspective of the speaker or prohibits public discussion of an entire topic.’ A restriction that is content based will face strict scrutiny unless it proves to have compelling state interest. In the present case we question whether the policy enacted by the City of El Paso employs content based restrictions on Ryan Denton, and therefore, violates the First and Fourteenth Amendments of the Constitution?
In order to understand this case to the fullest degree, we must first take the perspective of the City. The City Policy in question states that Farmers Markets are “pre-planned, permit required, ordinance authorized events that take place on certain public streets during certain specified times” (CaseText 2020). Further, the City doesn't allow protesting, lobbying, or proselytizing because they may cause disruptions to vending operations or pose safety concerns. The city claims that the policy is not intended to target the content of the speech, rather, it is to ensure public safety and well-being. The officer who approached Denton claimed that he had heard and seen videos of Denton disrupting other events at the University of El Paso, but this claim was not proven. It is also important to note that the officer and the city official did not intend to substantially burden Denton’s free exercise of religion, rather, they offered an alternative location for him to continue proselytizing. This alternative location was outside of the Market perimeter and would not disturb members of the community passing by.
Looking at this case from Denton’s perspective, this market took place on a traditional public forum. Knowing this, he assumed it was safe to proselytize. The City Policy does directly ban proselytizing, campaigning, protesting, and lobbying, but it does so under the assumption that these acts will be disruptive. As we saw in the case of Cantwell v. Connecticut, proselytizing may be offensive to some, but the ability to outwardly preach and express your religion in a safe manner is protected under the Constitution. There was no prior evidence that Denton was harming any individuals; rather, he was simply conducting his routine religious duty to spread his faith. Additionally, Denton argues that the City Policy was discriminatory toward religious speech, making this content based restrictions. While it may be perceived as facially content neutral, it has a disparate impact on only some groups. This is an act of viewpoint discrimination. The only permissible reason to restrict specific viewpoints is if there is compelling state interest, but the argument for public safety is not sufficient. It is also important to note that the officer told Denton that he could move one block down the road to where 'demonstrators were allowed to set up,’ but again, this was viewed as a way to prevent Denton’s words from being heard.
This case was especially tricky because it is very new. While reading the case document, there appeared to be a great deal of subjective accounts of what happened that day. Despite this, I believe that the City Policy in question is a content based restriction that displayed facial neutrality, but is unconstritutionally discriminatory in practice. Any policy that uses content based restrictions must be judged harshly on whether it can prove substantial governmental interest. Unfortunately, I think that the city failed to prove this. While the City claims that the policy was intended to prevent public harm, there was no prior evidence that proselytizing would cause danger. While other forms of public expression such as protesting or campaigning may have a potential to cause harm, I believe proselytizing is a safe and peaceful religious expression. We see this is Cantwell v. Connecticut. In this historic case and the present case, the individuals in question were not dangerous. While their words may have been perceived as offensive, there is no right to not be offended. Finally, allowing this policy to stand would continue to burden individuals free exercise because it limits them to one location that is far distant from any groups of people. The goal of proselytizing is to spread religious beliefs in an attempt to convert someone to one’s own religious faith, but this is impossible when placed in a distant part of the city. While it would have been easy for Denton to relocate to a different area, the restriction to proselytize in one specific location is a clear attempt to silence a particular religious belief which is impermissible under the United States Constitution.
https://casetext.com/case/denton-v-city-of-el-paso
https://www.ca5.uscourts.gov/opinions/unpub/20/20-50702.0.pdf
1 comment:
This is an interesting and complex case. Although I see both sides, and I often side with free speech and accommodationists, I agree with the City of El Paso. Although I agree that there is no right to not be offended, there is also no right to capitalize on a captive audience that is unrelated to his goal. Further, there is no right to risk the well-being of the farmers and artists that go to the market to make money to support themselves and their families for the sake of promoting a religious message. The vendors go through the process to plan and get a permit for the event specifically approved by the city. Further, the city clearly states that they don’t allow protesting, lobbying, and proselytizing because of the disruptions it would cause for the vendors. I agree with that policy and believe that it would disrupt the vendors. There’s a more compelling interest to allow the approved event to occur so the local vendors can make a living than to allow someone to disrupt and clearly go against the policy. Also, to your point that the claim that the officer had seen other disruptive videos of Denton was not proven, that does not affect the case in the slightest and does not need to be proven. The officers approached him because of his disruptive behavior at the Farmer’s Market. He was offered another location that was allowed by the city’s policy and would not disrupt the event that clearly requires permits.
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