Doe v. City of Albuquerque

Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012). A city ordinance denying registered sex offenders access to public libraries burdens an offender's fundamental First Amendment right to receive information and cannot be upheld unless the government provides sufficient evidence that the ban is (1) a content-neutral time, place, and manner restriction in a designated public forum, and (2) narrowlytailored to further a substantial governmental interest. Plaintiff John Doe, a registered sex offender, held a library card from the City of Albuquerque, New Mexico, and often visited the public library to access materials or to attend meetings and lectures. In March 2008, the city issued an Administrative Instruction that banned all registered sex offenders from using the public libraries within the city. Doe sued the city stating that the ban was unconstitutional under the First Amendment and sought injunctive relief to allow sex offenders access to the public libraries. The United States District Court for the District of New Mexico denied the city's motion to dismiss and granted the sex offender's summary judgment motion. The United States Court of Appeals for the Tenth Circuit affirmed the district court's denial of the city's motion to dismiss because the right to receive information under the First Amendment is widely accepted in numerous contexts; since the sex offender alleged that the ban infringed on his First Amendment right to receive information, he therefore stated a plausible claim for relief. Although statutes and ordinances are given a presumption of constitutionality, the presumption does not apply in challenges involving First Amendment violations. The Tenth Circuit affirmed the district court's grant of summary judgment in favor of Doe because the city failed to meet its burden of proof to show that the ban satisfied the time, place, and manner restrictions set forth in Ward v. Rock Against Racism, 491 U.S. 781 (1989). The court rejected the city' s argument that the court must determine whether the ban could be validly applied in any hypothetical situation. The city mistakenly relied on United States v. Salerno, 481 U.S. 739 (1987), misunderstanding the language that the party bringing a facial challenge "must establish that no set of circumstances exists under which the Act would be valid." Instead, in order for a statute or ordinance limiting access to a designated public forum (the library) to pass constitutional scrutiny, the city must provide evidence that the ban on sex-offenders in the library is a content-neutral time, place, and manner restriction that is narrowly tailored to serve a significant government interest. Although both parties agreed that the ban was content-neutral, the court determined it was not narrowly tailored. According to Ward, to be narrowly tailored, the ban must (a) promote a substantial government interest that would be less effectively achieved without the ban, (b) not substantially burden more speech than is necessary, and (c) leave open ample alternative channels of communication. The ban met the first prong of the test because it furthered the substantial governmental interest of providing a safe environment for library patrons that would be less effectively achieved without it. The ban did not meet the second prong because the city failed to show that the ban is not substantially more restrictive than necessary since there are less restrictive alternatives to a blanket ban of sex offenders from libraries. It also failed to satisfy the third prong of the test because the city did not show that sex offenders have "ample alternative channels of receiving the speech that the ban prevents them from receiving via the library." The court noted that although this ban is unconstitutional, the holding does not mean that all bans of this nature would be unconstitutional. Had the city satisfied the Ward test and provided "adequate alternative channels of communication" to sex offenders, a ban such as this would pass constitutional muster. (Katy Garringer)