Sunday, January 22, 2012
The City of Albuquerque issued an "Administrative Instruction" banning registered sex offenders from "all public libraries" and further that "Library staff shall send a letter to every sex offender who has a library card and inform them they are no longer allowed in our libraries." In its opinion in Doe v. City of Albuquerque, the Tenth Circuit affirmed the district judge's grant of a summary judgment in Doe's favor on the First Amendment claims.
Much of the 44 page opinion is devoted to standards: for summary judgment, for appellate review, and for facial constitutional challenges. The applicable First Amendment standard is from Ward v. Rock Against Racism, 491 U.S. 781 (1989): “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Yet is the interaction of these standards, and the procedural posture of the case, that leads the Tenth Circuit to affirm the district court's finding that the library policy is unconstitutional.
It seems that the City argued there was “no burden upon the City to prove anything,” so it did not submit any evidence as to the Ward factors in opposing Doe’s summary judgment motion," and continued to advance that same argument on appeal. Thus, the Tenth Circuit found that there was no satisfaction of the narrowly tailored prong or the ample alternative channels for communication prong under Ward.
The Tenth Circuit panel's conclusion stresses the narrowness of its holding and seems to encourage the City to "try again":
Our conclusion that the district court’s grant of summary judgment must be affirmed does not reflect a pronouncement on the ultimate legality or merit of the City’s ban. We are sympathetic to the City’s desire to ensure that its public libraries provide a safe, welcoming environment for its patrons, especially children. We therefore are especially mindful of concerns that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment.
Although we hold these concerns, as an appellate court we are constrained by the record. And this record shows that in response to a motion for summary judgment, the City provided no evidence as to two dispositive Ward factors as to which it had the burden on summary judgment. While we are perplexed by the City’s strategic decision here, it binds our hands in this case.
We note that our decision does not signal the death knell of the City’s efforts, if it wishes to pursue them, to restrict access of registered sex offenders to the City’s public libraries. We can imagine such an effort succeeding through a revised ordinance where it is shown that the restriction satisfies the three-prong time, place and manner Ward test.
Yet it may not be as easy to satisfy a rigorous application of the Ward test as the Tenth Circuit implies, at least if the narrowly tailored and alternative means of communication prongs are taken seriously.