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Doe v City of Albuquerque

1-20-2012 New Mexico:

Doe v City of Albuquerque
(667 F.3d 1111 (2012)
From Google Scholar

This appeal presents us with a difficult issue of first impression. John Doe, a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City's public libraries. The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of Doe. The court concluded that the ban burdened Doe's fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe's contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum. The City appeals both the denial of its motion to dismiss and the grant of Doe's summary judgment motion.

Complicating our inquiry is the fact that the City, relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to Doe's summary judgment motion. Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information. Had the City done so, it is not difficult to imagine that the ban might have survived Doe's challenge, for we recognize the City's significant interest in providing a safe environment for its library patrons, especially children. As an appellate court, however, we are bound by the record and the law. And in this case they require us to affirm the district court.


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. Like the Supreme Court, we "generally will not strike down a governmental action" for failure to leave open adequate alternative channels of communication "unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting." Citizens for Peace in Space, 477 F.3d at 1225 (internal quotation marks omitted).

However, this evidence is not before us in this case, and therefore we must AFFIRM.

10th Circuit rejects library ban on sex offenders

January 26, 2012

An Albuquerque, N.M., ban on registered sex offenders’ visiting public libraries violates the First Amendment, a federal appeals court has ruled.

The 10th U.S. Circuit Court of Appeals panel emphasized that the city had failed to show that its ban was narrowly tailored and that it left other avenues for sex offenders to receive information and ideas from the library.

In March 2008, the city issued a one-paragraph “administrative instruction” that began: “Registered sex offenders are not allowed in public libraries in the City of Albuquerque.” The city wanted to protect children in the libraries from a group of offenders that the city feared may reoffend.

In October 2008, a sex offender using the pseudonym “John Doe” sued in New Mexico state court. The lawsuit moved to federal court and in September 2009, a federal district court denied the city’s motion to dismiss it. In the meantime, Doe filed a motion for summary judgment, contending that the ban violated his First Amendment right to receive information and ideas.

The district court granted Doe’s motion for summary judgment in March 2010. Albuquerque did not show that the ban was narrowly tailored, the district court said. Examples of a narrower ban would include limiting when sex offenders could go to the library or confining them to a certain room. The city also failed to show that sex offenders would have ample other ways to receive information from libraries, the court said.

On appeal, a three-judge panel of the 10th Circuit affirmed the lower court in its Jan. 20 decision in Doe v. City of Albuquerque. The appeals court affirmed both the denial of the city’s motion to dismiss and the granting of Doe’s summary-judgment motion by the lower court.

The appeals panel noted that “the right to receive information and ideas has been recognized in numerous contexts other than censorship cases.” It then examined the constitutionality of the ban. It said a public library was a designated public forum in part because it was a “forum for all of the City’s residents to engage in the receipt of information.”

In a designated public forum, a government can impose such restrictions if they are content-neutral, serve a significant government interest, are narrowly tailored and leave open ample alternative means of communication.

The city contended there was “no burden upon the City to prove anything” because Doe had challenged the ban as unconstitutional on its face and that he had to show there was no set of circumstances under which the ban would be constitutional.

The 10th Circuit criticized this litigation strategy and ruled that the city indeed did have the burden of proof to justify its restriction on First Amendment freedoms. Proceeding to the test, the panel agreed that the city did have a substantial government interest in protecting children. However, the city “did not present any evidence that its ban was narrowly tailored to serve its interest in providing a safe environment for library patrons.”

The appellate panel noted that the city could have considered less-restrictive alternatives, such as “establishing designated hours during which sex offenders are permitted to use the libraries, requiring sex offenders to check into the libraries, or designating certain areas of the libraries for use by registered sex offenders.” The city also did not show how sex offenders could receive information from libraries in light of the ban.

“While we are perplexed by the City’s strategic decision here, it binds our hands in this case,” the appeals court concluded. “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.”

The appeals court said that a less restrictive alternative to a flat ban might pass constitutional muster. by David L. Hudson Jr., First Amendment Scholar

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