Jehovah's Witnesses Can Proselytize in Gated Communities: 1st Cir.

By Mark Wilson, Esq. on November 20, 2014 | Last updated on March 21, 2019

In response to a series of violent crimes, Puerto Rico enacted a law allowing municipalities to erect gates enclosing public streets. The gates were manned by security guards, and those that weren't staffed by humans required a resident key to enter.

So, who's claiming that these gates infringe on their right to evangelize door-to-door? Drum roll, please ... it's Jehovah's Witnesses!

Knock, Knock

This opinion represents the second time the case has been on appeal to the First Circuit. After the first appeal, "the court below carefully balanced competing concerns and devised a practical solution. That solution satisfied no one," so everyone's back for another round.

The first time around, the First Circuit found the law allowing the security gates facially constitutional, as it doesn't expressly favor or disfavor any kind of speech. As applied, however, the court found that "the precedents on access to public places require fine tuning of the statute's local administration." The government was still authorizing restrictions on the public's use of a public sidewalk and road, which are traditional public forums.

Both the Jehovah's Witnesses and the municipalities appealed, however, each dissatisfied with the district court's solutions.

The Municipalities Are Unhappy

The municipalities were dissatisfied specifically with the court's solution to the problem of "unmanned urbanizations" -- those gated areas with keys or buzzers, not staffed by guards. The district court solution in this regard was to make municipalities "gather and turn over to the plaintiffs all means of access available to residents of unmanned urbanizations (such as keys, buzzers, or access codes)."

The municipalities claimed that the remediation scheme imposed undue administrative burdens on them. Yeah, not so much, said the First Circuit -- the alternative, manning every gate, would have been much costlier. The First Circuit did excise the requirement that, if the communities change their method of entry, they had to provide that new method to the Jehovah's Witnesses within 24 hours.

So Are the Jehovah's Witnesses

The Jehovah's Witnesses, on the other hand, insisted that forcing all of them to share a single key to a given urbanization infringes on their First Amendment rights. The First Circuit disagreed: The solution is practical, content-neutral, and the burden is minimal, especially in light of the benefits that accrue to the Jehovah's Witnesses, like "round-the-clock access to unmanned urbanizations, on a level equal to that of residents."

Nor was making them share keys a kind of prior restraint; the key sharing was "a reasonable restriction on the manner of affording access to public streets within the urbanizations" and certainly no more restraining than stopping at the guard booth was.

'Loose Ends'

After some more procedure, the First Circuit said that individual unmanned urbanizations could come to the district court directly to petition for an exception to the remedial scheme instead of going through a municipality.

After 10 years and two trips to the First Circuit, will this compromise finally hold?

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