Fifth Circuit Strikes Down Ban on Religious Proselytizing at El Paso Art & Farmers Market
From Denton v. City of El Paso, decided yesterday (correctly, I think) by Judge Stephen A. Higginson and joined by Judges Jacques Wiener and Jennifer Walker Elrod:
Ryan Denton is an evangelical Christian, and proselytizing is a tenet of his faith. When he arrived at the El Paso Art and Farmers Market to proselytize, City officials told Denton that City policy prohibited proselytizing within the Market’s perimeter….
Established in 2011, the El Paso Art and Farmers Market … is a year-round, weekly outdoor event managed by the City of El Paso through its Museum and Cultural Affairs Department (“MCAD”). Farmers and merchants sell their wares from booths that they obtain through an application process with MCAD. The Market takes place on public streets and does not require a ticket for entry….
Whether the restriction on speech—here, the City’s policy—is content based or content neutral turns on the scope and nature of the policy, which the parties dispute. Denton argues that the City’s policy is to prohibit all religious proselytizing within the Market’s perimeter. The City argues that its policy is to prohibit disruptive conduct within the Market’s perimeter.
The district court agreed with the
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