Aptive Environmental v. Town of Castle Rock

959 F.3d 961

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 15, 2020
• Docket: 18-1166
• Status: Published

Opinion

FILED United States Court of Appeals Tenth Circuit

May 15, 2020 PUBLISH Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

APTIVE ENVIRONMENTAL, LLC,

Plaintiff-Appellee,

v. No. 18-1166

TOWN OF CASTLE ROCK, COLORADO,

Defendant-Appellant.

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INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; COLORADO MUNICIPAL LEAGUE,

Amici Curiae.

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-01545-MSK-MJW)

Brian J. Connolly, (J. Thomas Macdonald with him on the briefs), Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, Colorado, for Defendant-Appellant.

Jeremy A. Fielding, Lynn Pinker Cox & Hurst, LLP, Dallas, Texas (David S. Coale, Jonathan D. Kelley and Paulette C. Miniter, Lynn Pinker Cox & Hurst, LLP, Dallas Texas; and Steven J. Perfrement, Bryan Cave Leighton Paisner LLP, Denver Colorado, with him on the brief), for Plaintiff-Appellee. Laura K. Wendell and Susan L. Trevarthen, Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Florida, filed an amicus curiae brief on behalf of International Municipal Lawyers Association supporting Defendant-Appellant.

Todd G. Messenger, Fairfield and Woods, P.C., Denver, Colorado, filed an amicus curiae brief on behalf of The Colorado Municipal League supporting Defendant-Appellant.

Before HARTZ, HOLMES, and CARSON, Circuit Judges.

HOLMES, Circuit Judge.

The Town of Castle Rock, Colorado (“Castle Rock” or “Town”) enacted a

7:00 p.m. curfew on commercial door-to-door solicitation (the “Curfew”). Aptive

Environmental, LLC (“Aptive”) sells pest-control services through door-to-door

solicitation and encourages its salespeople to go door-to-door until dusk during

the traditional business week. When Aptive came to Castle Rock in 2017, it

struggled to sell its services as successfully as it had in other nearby markets.

Blaming the Curfew, Aptive sued Castle Rock for violating its First Amendment

rights and sought an injunction against the Curfew’s enforcement. After a bench

trial, the district court permanently enjoined Castle Rock from enforcing the

Curfew. Castle Rock appealed. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm the district court’s judgment, concluding that Castle Rock has failed to

demonstrate that the Curfew advances its substantial interests in a direct and

material way. In the following discussion, we summarize the relevant factual and

2 procedural background, assure ourselves that Aptive has standing to challenge the

Curfew, and explain why Castle Rock has failed to carry its burden of

demonstrating that its Curfew is constitutional.

I

A

On appeal, Aptive’s dispute with Castle Rock is based solely on Castle

Rock’s decision to enact the Curfew on commercial door-to-door solicitation.

Below, we discuss the purported impetus for the Curfew, the specific provisions

of Castle Rock’s laws that established the Curfew, and the Curfew’s impact on

Aptive.

Prior to 2008, Castle Rock did not have a curfew on door-to-door

solicitation. However, in 2007, a door-to-door solicitor approached a member of

Castle Rock’s elected town council while the council member was working in his

garage. The council member was startled by the interaction, and, at subsequent

town council meetings, he suggested that Castle Rock enact further restrictions on

door-to-door solicitation. At these meetings, the town council decided to

specifically target commercial door-to-door solicitation because Castle Rock’s

attorney had explained that regulation of noncommercial speech would raise

constitutional concerns. Meeting notes similarly reflect that council members

discussed the “fact that even if sales could be limited, religious and other groups

3 who went door to door to educate and inform citizens were protected by the First

Amendment.” Aplt.’s App., Vol. V, at A1321 (Town Council Study Session

Notes, dated Aug. 21, 2007).

With the focus on commercial door-to-door solicitors, Castle Rock

considered a monograph on door-to-door solicitation prepared by the Colorado

Municipal League, which summarized various ordinances existing elsewhere. Id.,

Vol. VI, at A1354 71 (Mem. re: Residential Door-to-Door Solicitation). Castle

Rock’s attorney also talked to other municipalities about ordinances that they had

enacted. Based on this research, Castle Rock’s attorney recommended adding a

curfew barring commercial door-to-door solicitation from 7:00 p.m. to 9:00 a.m.

because, in his view, such an ordinance “provide[d] a reasonable balance for

residents and [commercial] solicitors.” Id. at A1378 79 (Agenda Mem., dated

Mar. 25, 2008).

The town council and Castle Rock employees discussed the purported need

for such an ordinance with the Town’s police chief. The police chief reported

that the police had received eight “reports” concerning door-to-door solicitation

and twenty to thirty more informal solicitation “complaints,” some of which

involved door-to-door solicitation, so far that year. Id., Vol. V, at A1313 (Email

re: Proposed Memo on Door-to-Door Solicitation, dated Aug. 15, 2007). He

noted that several citizens reported feeling “harassed” or “intimidated” by

solicitors. Id. Castle Rock’s clerk circulated a memorandum that similarly stated

4 “the Police Department often receives calls from citizens concerned about various

salespersons wondering [sic] about their neighborhoods.” Id. at A1305 (Agenda

Mem., dated Aug. 21, 2007). And, more specifically, the clerk noted that the

Town had received one complaint about an individual soliciting at 9:45 p.m. Id.

at A1327 (Agenda Mem., dated Oct. 23, 2007).

Finally, in addition to this discussion with Castle Rock’s attorney and the

police department, a former council member and a former mayor later testified

that the ordinance including the Curfew was enacted in response to citizens’

privacy and safety concerns. As to privacy, the former town council member

testified that, before the ordinance’s enactment, he had discussed the ordinance

with his neighbors and that they had agreed that 7:00 p.m. was “a reasonable

time” for a curfew. Id. at A1081 82 (Trial Test. of Mitch Dulleck, dated Feb. 20,

2018). Some neighbors told him that they had negative experiences with

“aggressive” solicitors. Id. at A1084. Other council members had similar

conversations with constituents. And as for public safety, the former mayor of

Castle Rock testified that “when [the] Council was considering the Curfew, there

‘probably was [sic] some thoughts’ that ‘reasonable people would think that

people walking around their neighborhood or up to their home could potentially

be somebody that might create a crime in the town.’” Id., Vol. II, at A234 (Joint

Stipulation as to Facts, filed Jan. 10, 2018). The former council member echoed

these concerns, stating that he “definitely” thought that it “could be a possibility”

5 that individuals posing as door-to-door solicitors were engaging in criminal

activity. Id., Vol. V, at A1085 86.

Nevertheless, the former council member said that he was unaware of any

crimes that had been committed by commercial solicitors. And the former mayor

testified that

to the best of his recollection . . . prior to passing the . . . Ordinance there was no discussion or analysis by the Town Council of (a) crime in Castle Rock; (b) solicitation-related crime in Castle Rock; (c) crime committed by commercial solicitors in Castle Rock; (d) crime committed by commercial solicitors in Castle Rock after 7:00 p.m.; or (e) how a 7:00 p.m. curfew would protect public safety and privacy.

Id., Vol. II, at A228; see also id. at A228 29 (the former mayor noting that “there

was no discussion by the Town Council of specifically how a 7:00 p.m. curfew

that applied only to for-profit commercial solicitors would protect public safety

and privacy”).

The Castle Rock town council enacted an ordinance to address their

concerns regarding commercial door-to-door solicitation on April 8, 2008 (the

“2008 ordinance”). The 2008 ordinance included certain prefatory clauses stating

that the ordinance was being enacted to protect Castle Rock’s citizens’ privacy

and public safety. As to the latter, the prefatory clauses specifically stated that a

significant percentage of criminal activity involved trespass, that individuals

posed as door-to-door solicitors to commit crimes, that crime often occurs at

6 night, and that unregulated door-to-door solicitation posed a risk to citizens. But,

other than the anecdotal information summarized above, the town council did not

have evidentiary support for these prefatory statements. 1

1 Among the prefatory statements were the following:

WHEREAS, the Town of Castle Rock has an interest in protecting its citizens’ right to privacy in their own homes, in preserving the public peace and order, and in protecting the public safety and welfare; and

WHEREAS, the Town of Castle Rock is a largely residential community whose residents value the peace and quiet enjoyment of their private property; and

WHEREAS, the Town Counsel finds that unregulated door-to- door solicitation within the Town would degrade and adversely impact the peace and quiet enjoyment of private property; and

WHEREAS, a significant percentage of the reported criminal activity within the Town of Castle Rock during 2006 and 2007 involved uninvited access to private property, including theft, burglary, criminal mischief and trespass; and

WHEREAS, some persons are known to pose as door-to-door solicitors in an effort to engage in criminal activity and illegal entry onto private property; and

WHEREAS, criminal activity on private property often occurs during nighttime hours; and

...

WHEREAS, the Town Council finds and determines that unregulated door-to-door solicitation within the Town would present a danger to Town residents and their private property, especially where residents are alone or are absent when persons (continued...)

7 The 2008 ordinance required commercial solicitors to register with the

town clerk, pay a fee, and follow various requirements, including as most

relevant here the Curfew. Specifically, commercial solicitors were not to

“[e]nter upon any private property within the Town after seven o’clock P.M. (7:00

P.M.) and before nine o’clock A.M. (9:00 A.M.).” Id., Vol. VI, at A1450 51

(Ordinance No. 2008-15, dated Apr. 8, 2008). The 2008 ordinance also made it

unlawful for any business entity to “instruct, direct, command, order, organize, or

otherwise arrange for any person to engage in solicitation” in violation of the

ordinance’s provisions. Id. at A1451. The 2008 ordinance also included a

criminal penalty: those violating it would “be punished by a fine of not more than

one thousand dollars ($1,000.00) or by imprisonment not to exceed one (1) year,

or by both such fine and imprisonment.” Id. at A1452.

The 2008 ordinance expressly exempted noncommercial solicitors from its

registration requirements and the Curfew. Individuals falling into the

classification of noncommercial solicitors included those who engage in door-to-

door solicitation “for the primary purpose of”:

[a]ttempting to enlist support for or against a particular religion, philosophy, ideology, political party, issue or candidate,

1 (...continued) gain or seek to gain entrance onto their property or into their homes[.]

Aplt.’s App., Vol. VI, at A1445.

8 even if incidental to such purpose the canvasser accepts the donation or money for or against such cause; or ....

[a]ttempting to obtain a donation to a particular patriotic, philanthropic, social service, welfare, benevolent, educational, civic, fraternal, charitable, political or religious purpose, even if incidental to such purpose there is the sale of some good or service . . . .

Id. at A1447 48. 2

The Castle Rock town council considered a new ordinance addressing door-

to-door solicitors in the latter part of 2013 and ultimately approved it on January

7, 2014 (the “2014 ordinance”). 3 Castle Rock’s mayor testified that “to the best

of her recollection,” she “was unaware of any research, studies, investigation or

analysis performed by the Town prior to passing the 201[4] Ordinance,” other

than “non-specific complaints from residents and recommendations . . . from the

Town staff.” Id., Vol. II, at A231.

The 2014 ordinance primarily clarified and amplified certain definitions,

and it also “expanded the nature of the background check, the grounds for denial,

2 The 2008 ordinance referred to noncommercial solicitors whose primary purpose was to enlist supporters as “canvassers.” 3 Although this ordinance was approved and became effective at the beginning of 2014, in their initial factual stipulations, the parties referred to it as the “2013 Ordinance.” Aplt.’s App., Vol. II, at A230. However, in their amended factual stipulations filed about one month later, they referred to it as the “2014 Ordinance.” Id., Vol. III, at A640 (First Am. Joint Stipulation as to Facts, filed Feb. 9, 2018). Following the parties’ lead, we refer to the ordinance as the “2014 ordinance.”

9 and required solicitors to wear identifying badges.” Id., Vol. IV, at A851 (Oral

Ruling, filed Apr. 6, 2018). As relevant to our resolution of this appeal, the 2014

ordinance’s changes to the 2008 ordinance are largely immaterial. 4 Notably, the

2014 ordinance incorporated by reference the 2008 ordinance’s prefatory

statements that is, “the findings and recitals” “as support for continuation” of

its regulation of commercial door-to-door solicitors and continued to impose

registration requirements and the Curfew solely on commercial solicitors. Id.,

Vol. V, at A1295 (Ordinance No. 2013-43, dated Jan. 7, 2014).

In all material respects, the Curfew remained the same. See id., Vol. III, at

A640 (stipulating that “[t]he 7:00 p.m. solicitation curfew . . . has been in effect

since the Town Council’s approval of the 2008 Ordinance”). Like the 2008

ordinance, the 2014 ordinance provided that “[n]o [commercial] solicitor shall . . .

. [e]nter upon any private property within the Town after 7:00 p.m. and before

9:00 a.m.” Id., Vol. V, at A1300 01. Furthermore, it continued to make it

4 For example, the 2014 ordinance adopted different terminology in referring to noncommercial door-to-door solicitors (labeling all of them, as opposed to just some, “canvassers”) and to commercial door-to-door solicitors (labeling them all “solicitors,” and doing away with other labels for them). This revision is of no moment in our resolution of this appeal. The critical distinction drawn by both Castle Rock’s 2008 and 2014 ordinances is between commercial and noncommercial solicitors. And that distinction is a key focus of our discussion herein, including of relevant caselaw. Indeed, unless specifically quoting from the 2014 ordinance or other legal sources, for simplicity’s sake and to avoid confusion, we refrain from using labels like “canvassers.” Instead, we refer to solicitors throughout as falling into two general camps: noncommercial and commercial. Aptive’s solicitors of course fell into the latter category.

10 “unlawful for any person, organization, corporation, or business entity to instruct,

direct, command, order, organize, or otherwise arrange for any person to engage

in solicitation in violation” of the ordinance. Id. at A1301. Noncommercial

solicitors were again expressly exempted from the ordinance’s requirements;

notably, they could solicit door-to-door unimpeded by the Curfew.

Because Aptive’s conduct was regulated by Castle Rock’s 2014 ordinance,

we reference its terms below. We recognize, however, that we must carefully

examine the circumstances leading up to the enactment of the 2008 ordinance in

order to understand the legislative concerns that prompted Castle Rock to enact

the Curfew a curfew that carried over virtually verbatim from the 2008

ordinance to the 2014 ordinance.

Aptive engages in door-to-door sales of pest-control services. Aptive

ordinarily encourages its solicitors, who are employed as independent contractors,

to work during the traditional five-day business week “through dusk so as to

contact people” that were not home earlier in the day. Id., Vol. II, at A222. More

specifically, the independent contractors “set their own daily schedule,” but

Aptive encourages them “to work between 10:00 and 11:00 a.m., take a lunch

break between 2:30 and 4:00 p.m., and complete work at dark each day that they

worked.” Id. at A221 22. Aptive claims that “those [salespeople] that stay out”

until dusk “do better” than those that stop earlier in the day. Id. at A224. And

11 Aptive’s data confirm that, in the neighboring Denver area, some of its highest

rates of interaction with “decision makers” occur after 7:00 p.m. Id., Vol. V, at

A1293 (Company Stats).

On August 4, 2017, “Aptive applied for and received permits for its

representatives to conduct door-to-door solicitation activities” in Castle Rock. Id.,

Vol. I, at A87 (Scheduling Order, filed Aug. 29, 2017). Aptive complied with

Castle Rock’s Curfew and instructed its sales force to stop engaging in door-to-

door solicitation at 7:00 p.m., even though it would normally encourage them to

work through dusk. “In 2017, Aptive made 55 sales in [Castle Rock], which were

generally evenly distributed throughout the day, though none were sold after 7:00

pm.” Id., Vol. II, at A225. Aptive claimed that it was “half as effective in Castle

Rock as [it was] throughout the rest of the areas that didn’t require the curfew.”

Id., Vol. V, at A1197 (Trial Test. of Robert Hansen, dated Feb. 21, 2018). And

Aptive’s data confirm that it made fewer than half the average sales per hour in

Castle Rock than it did in the neighboring Denver area. After only a brief period,

Aptive ceased operations in Castle Rock.

B

Aptive filed suit alleging that the Curfew unconstitutionally burdened its

First Amendment right to engage in door-to-door solicitation. The district court

denied a pretrial motion to dismiss, in which Castle Rock had argued that Aptive

lacked standing to challenge the Curfew. The court then held a bench trial in

12 February 2018. In addition to presenting the above evidence about why Castle

Rock had originally enacted the Curfew, Castle Rock put on further evidence

about its present interests in maintaining the Curfew. Aptive also put on evidence

about its experience with the Curfew. We summarize this evidence as well as the

district court’s order enjoining enforcement of the Curfew.

At trial, Castle Rock sought to demonstrate that commercial door-to-door

solicitation after 7:00 p.m. was causing ongoing harm. But Castle Rock’s statistics

revealed that, while Castle Rock received twenty-five complaints relating

generally to solicitation in 2016, there was no evidence that any of these

concerned commercial solicitation after 7:00 p.m. Indeed, only a fraction of these

complaints involved solicitation after the Curfew at all: one complaint concerned a

noncommercial solicitor who was soliciting after 7:00 p.m.; there were no

complaints about commercial solicitation after 7:00 p.m. Expanding the focus

beyond the Curfew’s time window and looking at total complaints in 2016, there

was still no evidence of complaints about registered commercial solicitors like

Aptive’s. Two of the complaints involved noncommercial solicitors, six involved

commercial solicitors that had failed to register with the Town, and seventeen

involved individuals whose classification was unknown.

Likewise, Castle Rock’s statistics showed that while Castle Rock received

sixty-one solicitation-related complaints in 2017, ten of the complaints were about

13 noncommercial solicitors after 7:00 p.m., and none of the complaints were about

commercial solicitors after 7:00 p.m. And if we once again consider complaints

throughout the entire day, we find only one related to a registered commercial

solicitor. In contrast, there were fourteen complaints related to noncommercial

solicitors, sixteen related to unregistered commercial solicitors, and twenty-seven

related to individuals with an unknown classification.

Aside from these statistics, Castle Rock relied on testimony from individual

town members about the scope of ongoing problems caused by commercial door-

to-door solicitation. Castle Rock’s current town manager characterized

door-to-door solicitation as “a low-level, constant issue.” Id., Vol. IV, at A913

(Trial Test. of David Corliss, dated Feb. 20, 2018). Castle Rock introduced

testimony that its clerk received an average of about one complaint per week about

solicitors generally, i.e., without regard to whether they were commercial,

noncommercial, or registered. Some indeterminate number of these complaints

concerned solicitors that were coming after the Curfew and solicitors that were not

displaying their badges.

Castle Rock also presented testimony about the ostensible threat to public

safety posed by door-to-door solicitation. Castle Rock’s police chief stated that

door-to-door solicitation “gives somebody an opportunity to enter inside a home,

or even if they’re at the threshold of the doorway, to look inside the house, gather

information by talking to the individual.” Id., Vol. V, at A1126 (Trial Test. of

14 John Cauley, dated Feb. 21, 2018). He also stated “common sense tells us that as

it gets later in the evening, people are a little bit more anxious.” Id. at A1128,

A1153. In response to this anxiety, “the 7:00 p.m. curfew provides clarity . . . for

the community members.” Id. at A1125. The police chief, however, was unable to

point to a specific instance where a commercial solicitor was accused of any

solicitation-related crime or where an individual had posed as a door-to-door

solicitor to hide criminal intent. Indeed, much of the police chief’s testimony

effectively undermined Castle Rock’s safety rationale for the Curfew.

For example, he testified that “[m]ost crimes occur outside of the nighttime

hours” which is at odds with one of the prefatory statements of the 2008

ordinance (incorporated into the 2014 ordinance). Id. at A1132; see id. at A1150

(answering “No” to the question, “You don’t have any data that would reflect the

fact that for-profit commercial solicitors tend to commit crimes more frequently

between the hours of 7:00 p.m. [] and 10:00 in the evening, as opposed to some

other time, do you?”). But cf. id., Vol. VI, at A1445 (prefatory statement

providing, “WHEREAS, criminal activity on private property often occurs during

nighttime hours”). And he further testified that “a person is probably not more

likely to commit a crime to persons or property arising out of door-to-door

solicitation after 7:00 p.m. than before 7:00 p.m.,” and that “moving the Town’s

Curfew from 7:00 p.m. to dusk would not materially hamper the Castle Rock

Police Department’s ability to protect its residents from crime.” Id., Vol. II, at

15 A235. He admitted that he had seen no data suggesting that registered commercial

solicitors had been a problem.

And the chief testified that the data actually suggested that Castle Rock’s

problem was with unregistered solicitors (a group to which Aptive’s solicitors, of

course, did not belong). Similarly, Castle Rock’s current town manager testified

that he was unaware of Castle Rock ever receiving any complaints about crimes

committed by commercial solicitors who had registered with the town. Indeed,

Castle Rock stipulated that it “has no record of ever charging or convicting a

registered commercial solicitor for committing a crime to persons or property.”

Id., Vol. III, at A643.

Castle Rock also sought to justify the Curfew as a necessary response to

ongoing intrusions into privacy caused by commercial door-to-door solicitation.

Castle Rock’s current town manager testified that the Curfew “reflect[s] the

common sense view that as the hours get hours get later, past dinnertime, people

are moving toward more private activities within their home, and they’re not

wanting to be inconvenienced or bothered by an uninvited stranger on [sic] their

door.” Id., Vol. IV, at A940. He testified that some citizens had commented that

they want him to “keep the curfew the way that it is,” that they “value their time at

home,” and that “they have a problem with uninvited solicitations showing up on

their doorstep after 7 o’clock.” Id. at A920 21, A926.

16 Castle Rock’s mayor testified generally from her personal experiences that

commercial solicitors affected her family’s evening routines through “persistent”

and “aggressive” knocking. Id., Vol. V, at A1177 78 (Trial Test. of Jennifer

Green, dated Feb. 21, 2018). She testified about two particularly negative

experiences that she had with solicitors: one entered her garage to talk to her

without her permission, and the other rang her doorbell and opened her storm door,

apparently while her front door was open. Id. at A1176. She clearly identified the

one who entered the garage as a commercial solicitor but was not sure of the

intentions of the one who rang the doorbell. Id. She described the experiences as

“a little terrifying” and “very uncomfortable.” Id. However, both of these specific

experiences occurred during the daytime. See id. at A1182. In the mayor’s

experience, noncommercial solicitors were more respectful than commercial

solicitors. She additionally believed that Castle Rock’s residents supported the

Curfew. Finally, a former council member expressed that he personally thought

the Curfew helped give citizens privacy in their homes: “[b]y having a time when

people could and could not come to your door, that gives you an at least a time

period that you know you will you will have privacy.” Id. at A1080 81.

Aptive called one witness, a regional operations manager, as part of its case.

He testified as explained above that Aptive ordinarily encourages its

salespeople to solicit until dusk during the business week, but that Aptive had

17 instructed its salespeople to follow Castle Rock’s Curfew and that this had caused

the salespeople to be significantly less effective. Aptive’s salespeople ceased

soliciting in Castle Rock after only seven days. Aptive’s regional operations

manager testified that Aptive would “[p]robably not” return to Castle Rock if the

Curfew was kept in place, but that “[p]resumably, if things [i.e., the Curfew]

change, [Aptive will] be coming back to Castle Rock.” Id. at A1202, A1205 06.

After the trial concluded, the district court gave an oral ruling from the

bench. Id., Vol. IV, at A841. As in its pretrial ruling, the court rejected the

challenge to Aptive’s standing. Turning to the merits, the court found the record

to be “actually devoid of evidence showing that commercial solicitation after

7:00 p.m. causes a real harm in the form of increased crime or decreased public

safety.” Id. at A868. Likewise, the court concluded that “the curfew does not

materially advance the Town’s interest in protecting residents’ privacy after 7:00

p.m.” Id. at A866 67. It thus concluded that “the Town has not established that

the curfew materially impacts the legitimate objectives of reducing crime and

promoting public safety,” and that the Curfew thus unconstitutionally burdened

Aptive’s First Amendment rights. Id. at A870 71, A873. Consequently, the court

permanently enjoined the operation of the Curfew. Castle Rock timely appealed.

18 II

Castle Rock first argues that Aptive lacks standing to challenge the Curfew.

We briefly set out the three elements of constitutional standing before explaining

why each element is satisfied here.

Article III of the United States Constitution restricts the jurisdiction of

federal courts to the adjudication of “Cases” or “Controversies.” U.S. C ONST . art.

III, § 2, cl. 1. To satisfy Article III’s case-or-controversy requirement, a plaintiff

must demonstrate standing by establishing “(1) an ‘injury-in-fact,’ (2) a sufficient

‘causal connection between the injury and the conduct complained of,’ and (3) a

‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Susan

B. Anthony List v. Driehaus, 573 U.S. 149, 157 58 (2014) (alteration in original)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560S61 (1992)). “Put simply, a

plaintiff must establish three elements: an injury-in-fact, causation, and

redressability.” Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007).

“We . . . review the district court’s rulings on standing de novo.” Niemi v.

Lasshofer, 770 F.3d 1331, 1344 (10th Cir. 2014). “Because this case proceeded to

trial, we . . . look to the evidence presented there to determine whether the

plaintiffs carried their burden of proving standing.” Colo. Outfitters Ass’n v.

19 Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016); accord Glover River Org. v.

U.S. Dep’t of Interior, 675 F.2d 251, 254 n.3 (10th Cir. 1982). 5

5 Castle Rock objects to the district court’s consideration in its standing ruling of certain purported stipulations that Castle Rock made in the scheduling order, particularly Castle Rock’s assertion that the 2014 ordinance applied to Aptive (i.e., effectively an admission that Aptive fell into the ordinance’s category of commercial solicitors within the meaning of the 2014 ordinance and the Curfew). See Aplt.’s Opening Br. at 14 15, 15 n.11; Aplt.’s Reply Br. at 16. In this regard, Castle Rock stresses that “no action of the parties can confer subject-matter jurisdiction upon a federal court.” Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). While Castle Rock “correctly quotes Compagnie des Bauxites, it overlooks the distinction between an admission that federal subject matter jurisdiction exists, and an admission of facts serving in part to establish federal subject matter jurisdiction.” Ferguson v. Neighborhood Hous. Servs. of Cleveland, Inc., 780 F.2d 549, 551 (6th Cir. 1986). The Supreme Court has long held that while “[c]onsent of parties cannot give the courts of the United States jurisdiction, . . . the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such an admission.” Railway Co. v. Ramsey, 89 U.S. 322, 327 (1874); see Glover River Org., 675 F.2d at 253 (“We therefore turn to the stipulated evidence [of standing] in this case to evaluate the sufficiency of the proof under these [legal] standards.”); see also United States v. Obando, 891 F.3d 929, 938 (11th Cir. 2018) (“Parties may ‘stipulate to facts that bear on our jurisdictional inquiry.’” (quoting United States v. Iguaran, 821 F.3d 1335, 1337 (11th Cir. 2016))); E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323, 330 (5th Cir. 2012) (“Stipulations alone cannot confer jurisdiction, but they can form the factual basis for jurisdiction . . . .”); Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 265 (4th Cir. 2004) (“While it is axiomatic that ‘[c]onsent of parties cannot give the courts of the United States jurisdiction,’ it is also true that ‘the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such an admission.’” (alteration in original) (quoting Ferguson, 780 F.2d at 551)). Thus, we may consider certain factual stipulations in our jurisdictional inquiry. That said, we do not need to rely on Castle Rock’s effective stipulation that Aptive was a commercial solicitor within the meaning of the 2014 ordinance and its Curfew. Quite apart from that stipulation, consistent with our de novo review of constitutional standing questions, see, e.g., Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 792 (10th Cir. 2009), we have thoroughly and (continued...)

20 B

Castle Rock argues that Aptive did not suffer an injury-in-fact and that

Aptive cannot establish that the Curfew caused its injury. We address and reject

each argument before additionally assuring ourselves that the injury-in-fact is

redressable. See Frank v. Gaos, --- U.S. ----, 139 S. Ct. 1041, 1046 (2019) (“We

have an obligation to assure ourselves of litigants’ standing under Article III.”

(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006)).

“[A] plaintiff satisfies the injury-in-fact requirement where he alleges ‘an

intention to engage in a course of conduct arguably affected with a constitutional

interest, but proscribed by a statute, and there exists a credible threat of

prosecution thereunder.’” Susan B. Anthony List, 573 U.S. at 159 (quoting Babbitt

v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). For plaintiffs

seeking “prospective relief based on a ‘chilling effect’ on speech,” we have set

forth a three-part test that, if satisfied, would establish the injury-in-fact

requirement. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th

5 (...continued) independently considered the factual record, and, based on that review, have determined (as explicated infra) that Aptive has suffered an injury-in-fact because of the Curfew and otherwise meets the criteria for standing.

21 Cir. 2006) (en banc). Such a plaintiff satisfies the injury-in-fact requirement when

they present:

(1) evidence that in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced.

Id.; see Holder v. Humanitarian Law Project, 561 U.S. 1, 15 16 (2010)

(concluding plaintiffs had standing to bring pre-enforcement First Amendment

challenge to the statute because (1) they had engaged in covered conduct before

enactment of the statute, (2) they would engage in this conduct “again if the

statute’s allegedly unconstitutional bar were lifted,” (3) the government had

enforced the statute against other parties, and (4) the government had not argued it

would not enforce the statute against plaintiffs); Winsness v. Yocom, 433 F.3d 727,

732 (10th Cir. 2006) (“[T]o satisfy Article III, the plaintiff’s expressive activities

must be inhibited by ‘an objectively justified fear of real consequences, which can

be satisfied by showing a credible threat of prosecution or other consequences

following from the statute’s enforcement.’” (quoting D.L.S. v. Utah, 374 F.3d 971,

975 (10th Cir. 2004))); see also ACORN v. City of Tulsa, 835 F.2d 735, 739 (10th

Cir. 1987) (applying Babbitt’s standard when evaluating plaintiff’s standing to

challenge local ordinances under the First Amendment). Each of Initiative and

Referendum Institute’s three requirements is satisfied here.

22 First, Aptive has presented “evidence that in the past [it has] engaged in the

type of speech affected by the challenged government action.” Initiative &

Referendum Inst., 450 F.3d at 1089. Aptive established that it has engaged in

door-to-door solicitation after 7:00 p.m. in locations near Castle Rock. Indeed,

across its operating area, with the exception of Castle Rock, Aptive has

encouraged its salespeople to solicit during the business week “through dusk so as

to contact people who weren’t home” earlier in the day. Aplt.’s App., Vol. II, at

A221 22; see id., Vol. V, at A1194. And Aptive’s data show that, in the nearby

Denver area, some of its highest rates of interaction with “decision makers” occur

after 7:00 p.m. Id. at A1293; id., Vol. II, at A224. We have previously considered

similar evidence concerning conduct in “surrounding” localities in our standing

analysis. See Initiative & Referendum Inst., 450 F.3d at 1090 (considering

initiatives prepared or supported by plaintiffs in “surrounding states” when

determining whether plaintiffs had standing to challenge supermajority

requirement). We conclude that this evidence of Aptive’s solicitation after

7:00 p.m. in surrounding localities establishes that Aptive has a history of

engaging in the type of speech affected by the challenged government action.

Second, Aptive has demonstrated “a present desire . . . to engage in”

solicitation in the hours prohibited by the Curfew. Id. at 1089. Aptive desires to

solicit during the evening because for those salespeople “that stay out, they do

better.” Aplt.’s App., Vol. II, at A224. The Curfew had a “significant” effect on

23 Aptive’s business because it prevented solicitation during its “most effective

time.” Id., Vol. V, at A1194; id. at A1195 (“That’s the time when they normally

sell the most.”). As a result of the Curfew, Aptive’s salespeople were “a lot less

effective.” Id. at A1203. Aptive’s data show that it made less than half the

average sales per hour in Castle Rock than it did elsewhere. Additional evidence

that Aptive desired to solicit during these most profitable hours is intertwined with

the third element and therefore discussed below.

The third element requires that Aptive maintain that it “presently ha[s] no

intention to [engage in the speech affected by the challenged government action]

because of a credible threat that the statute will be enforced.” Initiative &

Referendum Inst., 450 F.3d at 1089. Although offering testimony concerning its

desire to follow its ordinary practice of encouraging its representatives to work

until dusk which they do in the Denver area near Castle Rock Aptive has

counseled its representatives not to work until dusk in Castle Rock because of the

threat of sanctions posed by the Curfew. And, after only a brief period of

solicitation in Castle Rock, Aptive ceased doing business there.

Aptive’s regional operations manager testified that Aptive will “[p]robably

not” return to Castle Rock if the Curfew is kept in place, but that “[p]resumably, if

things [i.e., the Curfew] change, [Aptive will] be coming back to Castle Rock.”

Aplt.’s App., Vol. V, at A1202, A1205 06. This testimony, when taken alongside

the above evidence, demonstrates Aptive’s desire to engage in speech affected by

24 the challenged government action, i.e., the second element. And it also

demonstrates that Aptive has no present intention to engage in that speech because

of a threat of enforcement, i.e., the third element.

And we are able to conclude that the threat of enforcement here is credible.

Castle Rock has not indicated that it would not enforce the Curfew against Aptive

if Aptive solicited after 7:00 p.m., and Castle Rock has vigorously sought to

uphold its Curfew in this litigation. Cf. Humanitarian Law Project, 561 U.S. at

15 16 (concluding plaintiffs had established standing when “[t]he Government

[told the Court] that it ha[d] charged about 150 persons with violating [the relevant

statute], and that several of those prosecutions involved the enforcement of the

statutory terms at issue,” and “[t]he Government ha[d] not argued to th[e] Court

that [the] plaintiffs w[ould] not be prosecuted if they d[id] what they sa[id] they

wish[ed] to do” (citation omitted)); Grant v. Meyer, 828 F.2d 1446, 1449 (10th

Cir. 1987) (en banc) (finding dispute justiciable after noting that “‘the State ha[d]

not disavowed any intention of invoking the criminal penalty provision . . .’

against the[] plaintiffs” and that “the State . . . [wa]s vigorously upholding the

statute in litigation with the[] plaintiffs” (quoting Babbitt, 442 U.S. at 302)), aff’d,

486 U.S. 414 (1988). And so we conclude that there is a credible threat of

enforcement. Aptive has demonstrated “an intention to engage in a course of

conduct arguably affected with a constitutional interest, but proscribed by a

statute, and there exists a credible threat of prosecution thereunder,” i.e., an

25 injury-in-fact. Susan B. Anthony List, 573 U.S. at 159 (quoting Babbitt, 442 U.S.

at 298).

Castle Rock has two primary arguments to the contrary, but neither is

persuasive. First, it argues that Aptive told its salespeople to follow the Curfew

and that this acquiescence means that Aptive does not have standing. But while

Aptive did not violate the law, it circumscribed its behavior to avoid criminal

sanctions; this is the precise sort of “chilling effect,” Initiative & Referendum

Inst., 450 F.3d at 1088, and “self-censorship,” Virginia v. Am. Booksellers Ass’n,

484 U.S. 383, 393 (1988), certified questions answered sub nom. Commonwealth

v. Am. Booksellers Ass’n, 372 S.E.2d 618 (Va. 1988), that demonstrates why the

Supreme Court has established the above tests for injury-in-fact in this context.

See Susan B. Anthony List, 573 U.S. at 163 (“Nothing in this Court’s decisions

requires a plaintiff who wishes to challenge the constitutionality of a law to

confess that he will in fact violate that law.”); cf. Am. Booksellers Ass’n, 484 U.S.

at 392 (“[T]he law is aimed directly at plaintiffs, who, if their interpretation of the

statute is correct, will have to take significant and costly compliance measures or

risk criminal prosecution.”). Aptive has sufficiently demonstrated that it suffered

an injury-in-fact under those standards and need do no more.

Second, Castle Rock argues that because Aptive uses independent

contractors as salespeople, it is those independent contractors and not Aptive itself

that face any threat of enforcement. But the 2014 ordinance applies to those who

26 “instruct, direct, command, order, organize or otherwise arrange for any person to

engage in solicitation in violation” of the Curfew. Aplt.’s App., Vol. V, at 1301.

Thus, even if we were to assume that Aptive could not rely on the Curfew’s

application to its independent contractors to establish standing for itself, Aptive’s

stated intention but for concerns regarding the Curfew’s enforcement to

encourage (i.e., “instruct” or “arrange for”) its independent contractors to solicit

until dusk directly implicates the Curfew’s express prohibitions and thus makes

the Curfew squarely applicable to Aptive.

Furthermore, in Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221

(10th Cir. 2005), in the First Amendment context, we held that a company had

standing to challenge a “solicitors licensing procedure” that was enforced against

its independent contractors viz., in determining that the company had standing

for its First Amendment claim, we effectively determined that it could rely on a

regulation’s application to its independent contractors. Id. at 1226, 1228 29.

While the injury-in-fact in Pacific Frontier was more concrete the independent

contractors in that case were arrested that does nothing to diminish Pacific

Frontier’s determination that an employing company can suffer a First

Amendment harm through the enforcement of an ordinance against its independent

contractors. Thus, Castle Rock’s two primary arguments fail, and we conclude

that Aptive suffered an injury-in-fact.

27 2

In addition to its arguments that Aptive did not suffer an injury-in-fact,

Castle Rock also argues that Aptive failed to demonstrate “a sufficient ‘causal

connection between the injury and the conduct complained of.’” Susan B. Anthony

List, 573 U.S. at 157 58 (quoting Lujan, 504 U.S. at 560 61). This objection is

based on the parties’ stipulations that the independent contractors “set their own

daily schedule” but Aptive encourages them “to work between 10:00 and 11:00

a.m., take a lunch break between 2:30 and 4:00 p.m., and complete work at dark

each day that they work[].” Aplt.’s App., Vol. II, at A221 22. Because the

independent contractors are free to set their own hours, Castle Rock argues that

any injury Aptive suffered was caused not by its Curfew but by the independent

contractors’ decisions about when to work. See Aplt.’s Opening Br. at 15 16

(“Aptive cannot show that the Curfew and not the individual decisions of the

Contractors with respect to when they solicited caused Aptive’s alleged harm.”).

“To satisfy the traceability requirement, the defendant’s conduct must have

caused the injury.” Benham v. Ozark Materials River Rock, LLC, 885 F.3d 1267,

1273 (10th Cir. 2018); see Bronson, 500 F.3d at 1109 10 (explaining that

Article III “require[s] proof of a substantial likelihood that the defendant’s

conduct caused plaintiff’s injury in fact” (quoting Nova Health Sys. v. Gandy, 416

F.3d 1149, 1156 (10th Cir. 2005))). We have already concluded above that Aptive

itself has suffered an injury-in-fact because Aptive and its independent contractors

28 are forced to limit their solicitation in accordance with the Curfew. And Aptive

has demonstrated, at the very least, that there is a “substantial likelihood” that the

Curfew is the reason why it and its independent contractors have not solicited until

dusk in Castle Rock, i.e., the reason why it suffered the injury-in-fact. Bronson,

500 F.3d at 1109 10 (quoting Nova Health Sys., 416 F.3d at 1156).

To be sure, the independent contractors set their own hours, but Aptive

ordinarily would encourage them to stay out until dusk, and there is concrete

evidence that the independent contractors have done so in neighboring

jurisdictions that had no similar curfew. Thus, we have no difficulty concluding

that Aptive’s injury-in-fact is “fairly . . . trace[able] to the challenged action of the

defendant,” i.e., Castle Rock’s enactment of its curfew, “and not . . . th[e] result

[of] the independent action of some third party not before the court.” Lujan, 504

U.S. at 560 61 (alterations in original) (quoting Simon v. E. Ky. Welfare Rights

Org., 426 U.S. 26, 41 42 (1976)). Underscoring this point, Pacific Frontier

recounted Lujan’s causation requirement before concluding that “consequences

following from the statute’s enforcement” against the independent contractors

were sufficient to establish standing and therefore the causation element for the

employer. 414 F.3d at 1228 29. As in Pacific Frontier, we conclude that even

though Aptive does not require its independent contractors to work certain

hours but instead simply urges them to stay out until dusk the consequences

emanating from the Curfew’s enforcement against its independent contractors is

29 sufficient under the circumstances here to establish a causal link between the

Curfew’s operation and Aptive’s injury.

While uncontested by Castle Rock, we also note that the “plaintiff[’s] injury

. . . would be redressed by a judicial conclusion that the Ordinance[’s Curfew] is

unconstitutional.” Id. at 1229. We come to this conclusion because an order that

enjoins Castle Rock from enforcing the Curfew would allow Aptive to solicit until

dusk its typical practice elsewhere removing the Curfew’s alleged violation of

Aptive’s First Amendment rights.

* * *

In sum, we conclude that Aptive has established an injury-in-fact, causation,

and redressability, and thus standing.

III

Turning to the merits, we recite our standard of review, reject Castle Rock’s

threshold argument that the First Amendment does not apply to the Curfew at issue

here, and explain why Castle Rock has failed to demonstrate that the Curfew

directly and materially advances its substantial interests.

“In a First Amendment case, we have ‘an obligation to make an independent

examination of the whole record in order to make sure that the judgment does not

constitute a forbidden intrusion on the field of free expression.’” Citizens for

30 Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1219 (10th Cir. 2007)

(quoting Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 499 (1984)); accord

Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 34 (10th Cir. 2013). Thus, we

have said that “[t]he factual findings, as well as the conclusions of law, are

reviewed ‘without deference to the trial court.’” Cressman v. Thompson, 798 F.3d

938, 946 (10th Cir. 2015) (quoting Citizens for Peace in Space, 477 F.3d at 1219).

However, the Supreme Court’s and our own cases make clear that this de

novo review of factual findings more precisely extends only to “crucial facts,”

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 567

(1995), or “constitutional facts,” Green, 568 F.3d at 795 96. That is to say, “our

searching review of the record with regard to ‘constitutional facts’ does not alter

our ordinary clearly-erroneous review of the district court’s other factual

findings.” Id. at 796; id. (“[T]he special Bose rule applies only to ‘constitutional

facts’ and not to the basic historical facts upon which the claim is grounded, which

are subject to the usual ‘clearly erroneous’ standard of review.” (alteration in

original) (quoting United States v. Friday, 525 F.3d 938, 950 (10th Cir. 2008)));

see also Bose Corp., 466 U.S. at 514 n.31 (“There are, of course, many findings of

fact in a defamation case that are irrelevant to the constitutional standard of New

York Times Co. v. Sullivan and to which the clearly-erroneous standard of Rule

52(a) is fully applicable.”).

31 B

The First Amendment’s Free Speech Clause provides that “Congress shall

make no law . . . abridging the freedom of speech.” U.S. C ONST . amend. I. By

incorporation through the Fourteenth Amendment, this prohibition applies to states

and their political subdivisions. Chaplinsky v. State of New Hampshire, 315 U.S.

568, 570 71 (1942). It additionally “applies not only to legislative enactments,

but also to less formal governmental acts, including city policies.” Evans v. Sandy

City, 944 F.3d 847, 852 (10th Cir. 2019) (quoting Hawkins v. City and Cty. of

Denver, 170 F.3d 1281, 1286 (10th Cir. 1999), petition for cert. filed, (U.S.

Mar. 5, 2020) (No. 19-1091)).

In a threshold challenge to the district court’s judgment, Castle Rock argues

that the Curfew at issue here does not “implicate[] protected speech” and thus does

not violate the First Amendment’s guarantee against abridgment of freedom of

speech; instead, Castle Rock argues that its Curfew “simply establishes parameters

on solicitors’ implied license to enter private property.” Aplt.’s Opening Br. at 16.

But this argument is at odds with our precedent. We explain why it is clear that

the Curfew does regulate speech and thereby implicates the First Amendment, and

then we reject Castle Rock’s three counter-arguments.

Castle Rock’s argument that the Curfew does not regulate speech is

foreclosed by our decision in Pacific Frontier v. Pleasant Grove City, supra.

32 There, the plaintiffs “individuals and entities engaged in selling Kirby vacuum

cleaners through door-to-door solicitations” claimed to be burdened by the

locality’s “ordinance establishing a solicitors licensing procedure.” 414 F.3d

at 1226. The ordinance “require[d] individuals to obtain a license before engaging

in door-to-door solicitation.” Id. The vacuum distributor declined to apply for

licenses for its salespeople. Id. at 1226 27. Some of the salespeople were

arrested for soliciting without a license. Id. The company sought a preliminary

injunction against enforcement of the ordinance, which it alleged violated its First

Amendment rights. Id. at 1230 31. The district court granted the preliminary

injunction after finding that there was a substantial likelihood that the ordinance

was unconstitutional. Id. On appeal, we applied the First Amendment test derived

from Central Hudson Gas & Electric Corporation. v. Public Service Commission,

447 U.S. 557 (1980), to evaluate the “First Amendment challenge” to the

regulation. Pac. Frontier, 414 F.3d at 1231. In doing so, we noted that “[t]he

Supreme Court has recognized that personal solicitation is imbued with important

First Amendment interests.” Id. at 1231 n.8 (citing Edenfield v. Fane, 507 U.S.

761, 766 (1993)). And, after applying the test, we concluded that there was a

substantial likelihood that the ordinance violated the First Amendment and

affirmed the preliminary injunction. Id. at 1235, 1238. Pacific Frontier and this

case are alike in all the ways that matter here: the localities in both cases enacted

ordinances restricting door-to-door commercial solicitation. And in Pacific

33 Frontier we clearly held that the First Amendment was implicated by the

ordinance at issue there; after all, we upheld the district court’s decision to

preliminarily enjoin aspects of the ordinance for being substantially likely to

contravene the plaintiffs’ First Amendment rights. That holding has strong cogent

force here and establishes that Castle Rock’s Curfew on commercial door-to-door

solicitation likewise implicates the First Amendment.

Were Pacific Frontier not enough, a multitude of other cases from the

Supreme Court and other courts would militate in favor of our conclusion that

Castle Rock’s Curfew relating to door-to-door commercial solicitation implicates

the First Amendment. See Ohio Citizen Action v. City of Englewood, 671 F.3d

564, 570 80 (6th Cir. 2012) (holding that 6:00 p.m. curfew on door-to-door

solicitation violated First Amendment); N.J. Citizen Action v. Edison Township

797 F.2d 1250, 1254, 1262 (3d Cir. 1986) (holding that 5:00 p.m., 6:00 p.m., and

sunset curfews on door-to-door solicitation violated First Amendment); City of

Watseka v. Ill. Pub. Action Council, 796 F.2d 1547, 1548 (7th Cir. 1986) (holding

that 5:00 p.m. curfew on door-to-door solicitation violated First Amendment),

aff’d, 479 U.S. 1048 (1987); Ass’n of Cmty. Orgs. for Reform Now v. City of

Frontenac, 714 F.2d 813, 815 (8th Cir. 1983) (holding that 6:00 p.m. curfew on

door-to-door solicitation violated the First Amendment); cf. Edenfield, 507 U.S. at

764 65 (holding that rule banning “direct, in-person, uninvited solicitation” from

certified public accountants violated the First Amendment and stating that “it is

34 clear that this type of personal solicitation is commercial expression to which the

protections of the First Amendment apply” (citation omitted)). We thus conclude

that Castle Rock’s Curfew implicates the First Amendment by regulating protected

commercial speech.

Castle Rock tries to distinguish this body of authority in three ways. None

is convincing.

First, Castle Rock attempts to distinguish these cases as “involv[ing]

noncommercial speech restrictions.” Aplt.’s Reply Br. at 15 16 (emphasis added);

see Aplt.’s Opening Br. at 19 20. But Pacific Frontier did involve commercial

speech, see 414 F.3d at 1226, and so this proffered distinction falters at the

starting blocks. Furthermore, while not involving commercial door-to-door

solicitation, the Supreme Court has clearly held that in-person commercial

solicitation is generally protected by the First Amendment. See Edenfield, 507

U.S. at 765 66 (“In the commercial context, solicitation may have considerable

value. Unlike many other forms of commercial expression, solicitation allows

direct and spontaneous communication between buyer and seller.”). In effect, “the

city’s argument attaches more importance to the distinction between commercial

and noncommercial speech than [the Supreme Court’s] cases warrant and seriously

underestimates the value of commercial speech.” City of Cincinnati v. Discovery

35 Network, Inc., 507 U.S. 410, 419 (1993). While the Supreme Court has indicated

that commercial speech is entitled to “lesser protection” than noncommercial

speech, Cent. Hudson, 447 U.S. at 562 63, this most certainly does not mean that

commercial speech is entitled to no protection, see, e.g., Discovery Network, 507

U.S. at 420 21 (“Speech likewise is protected . . . even though it may involve a

solicitation to purchase or otherwise pay or contribute money.” (citations

omitted)); cf. Pac. Frontier, 414 F.3d at 1236 (“Commercial speech merits First

Amendment protection not simply because it enables sellers to hawk their wares

and gain a profit, but because it equips consumers with valuable information and

because it contributes to the efficiency of a market economy.”). The commercial

nature of the speech is relevant to our analysis, but it does not remove the Curfew

from First Amendment scrutiny.

Castle Rock relatedly argues that Aptive’s challenge to its Curfew warrants

only “rational basis review” that is, review under a standard foreign to

restrictions on First Amendment protected speech. Aplt.’s Opening Br. at 20; see

id. at 20 21 (“While all commercial transactions involve the communication of

some message, regulating the places and manner in which these activities occur

does not implicate the First Amendment. . . . [T]he Curfew does not regulate

commercial actors’ speech; it regulates the act of stepping onto private property

without an invitation.” (citations omitted)). But the cases that Castle Rock cites

either undermine this assertion or are inapposite.

36 The first, Expressions Hair Design v. Schneiderman, --- U.S. ----, 137 S. Ct.

1144 (2017), held that the law at issue did “regulate[] speech” under the First

Amendment before remanding for the Second Circuit to analyze the law as a

restriction on commercial speech under the same Central Hudson test we apply

here. Expressions Hair Design, 137 S. Ct. at 1151. The second, Cash Inn of

Dade, Inc. v. Metropolitan Dade County, 938 F.2d 1239 (11th Cir. 1991),

reviewed an ordinance limiting pawnshop hours of operation under the rational-

basis standard but, critically for our purposes, the ordinance had not been

challenged under the First Amendment. Id. at 1241 (challenging the ordinance

under Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483 (1955)’s general

due-process standard). The case thus is irrelevant to the First Amendment

challenge before us. And the third, Wine and Spirits Retailers, Inc. v. Rhode

Island, 418 F.3d 36 (1st Cir. 2005), did reject a First Amendment challenge to a

law regulating the provision of business advice and advertising services. Id.

at 47 50. But that case acknowledged that “restrictions imped[ing] [a party’s]

right to communicate with its potential customers” would be within the heart of the

commercial-speech doctrine; such restrictions simply were not at issue there. Id.

at 49. Thus, none of the cases that Castle Rock relies on provides any reason to

question the authority squarely holding that commercial door-to-door solicitation

is subject to First Amendment scrutiny.

37 b

Castle Rock’s second proffered distinction is that the above cases that

applied First Amendment scrutiny to door-to-door solicitation “involved

regulations in which violations were premised upon the actual words used by a

speaker,” Aplt.’s Reply Br. at 15 16, i.e., they were “content based,” Aplt.’s

Opening Br. at 19. Castle Rock argues that, unlike those cases, its Curfew

“regulat[es] the places and manner in which [commercial] activities occur,” and

thus “does not implicate the First Amendment.” Aplt.’s Opening Br. at 20 21.

Castle Rock thus appears to argue that its Curfew is immune from First

Amendment scrutiny because the Curfew is a mere restriction on the time, place,

and manner of door-to-door solicitation.

This attempted distinction fails first and foremost because even content-

neutral ordinances e.g., ordinances that impose time, place, and manner

restrictions remain subject to First Amendment scrutiny; the scrutiny is simply

less rigorous than that traditionally attendant to regulations that are based on the

content of the speech. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781,

790 91 (1989) (analyzing a “reasonable restriction[] on the time, place, or manner

of protected speech” as “subject to the protections of the First Amendment”);

Evans, 944 F.3d at 856 (“Even though the [Ordinance] is content neutral, it still

must be ‘narrowly tailored to serve a significant governmental interest.’”

(alteration in original) (quoting McCullen v. Coakley, 573 U.S. 464, 486 (2014))).

38 Thus, even were the Curfew at issue here truly content-neutral, it still would not

escape First Amendment scrutiny.

Furthermore, this argument additionally fails because the Curfew is content-

based, at least insofar as the 2014 ordinance determines to whom the Curfew

applies by distinguishing between the commercial and noncommercial content of

the solicitors’ speech. Our conclusion in this regard is dictated by the Supreme

Court’s decision in Discovery Network. There, the Court struck down a law that

banned commercial but not noncommercial newsracks. See 507 U.S. at 412 13.

In so doing, the Court concluded that the regulation was not content-neutral

because “the very basis for the regulation is the difference in content between

ordinary newspapers and commercial speech.” Id. at 428 29. Because the 2014

ordinance (like the 2008 ordinance before it) facially makes the application of its

Curfew turn on whether the speech is commercial or not, the law is content-based.

See id. at 429. 6

6 Both before and after Discovery Network, in a variety of contexts, the Court has held true to this understanding of content-based regulations. See Reed v. Town of Gilbert, --- U.S. ----, 135 S. Ct. 2218, 2227 (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”); see also Bates v. State Bar of Ariz., 433 U.S. 350, 363 (1977) (“If commercial speech is to be distinguished, it ‘must be distinguished by its content.’” (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976)); cf. Reed, 135 S. Ct. at 2228 29 (relying on Discovery Network to reject the argument that “[a] law that is content based on its face” should be analyzed as a “content neutral” regulation because the distinctions drawn “can be ‘justified without reference to the content of the regulated speech’” (emphasis added) (quoting Br. (continued...)

39 Specifically, the ordinance treats civic, religious, philosophical, and

ideological solicitors who incidentally sell a good or service differently from those

who solicit with the “primary purpose” of selling a good or service. Compare

Aplt.’s App., Vol. V, at A1296 (defining noncommercial solicitors, inter alia, as

those “[a]ttempting to obtain a donation to a particular patriotic, philanthropic,

social service, welfare, benevolent, educational, civic, fraternal, charitable,

political or religious purpose, even if incidental to such purpose there is the sale of

some good or service”), with id. (defining commercial solicitors as those who

attempt to make personal contact at a resident’s home “for the primary purpose of

attempting to sell a good or service”). When an ordinance makes these sorts of

facial distinctions, e.g., between those soliciting for religious purposes and those

soliciting for commercial gain, not only the Supreme Court, but our court, has

expressly held that it “contemplates a distinction based on content.” Ass’n of

Cmty. Orgs. for Reform Now v. Municipality of Golden, 744 F.2d 739, 749 (10th

Cir. 1984); see id. at 750 (“[W]hether solicitation is for charitable, religious,

patriotic or philanthropic purposes, or otherwise provides a service necessary to

the general welfare of [the municipality]’s residents, clearly turns on the content

of the message.”). And so, because the 2014 ordinance creates a content-based

distinction which determines to which solicitors the Curfew applies between

6 (...continued) of United States as Amicus Curiae at 20, 24)).

40 commercial and noncommercial speech, we must reject any argument that the

Curfew is either not subject to First Amendment scrutiny at all or can be analyzed

merely as a content-neutral time, place, and manner restriction. 7

c

Third and finally, Castle Rock argues that its Curfew merely governs

trespass and thus does not implicate the First Amendment. Specifically, it argues

that “[w]hile solicitors may enjoy a license, the conduct of entering uninvited upon

private property used for private purposes is not itself protected speech.” Aplt.’s

Opening Br. at 17 (citing Lloyd Corp. v. Tanner, 407 U.S. 551, 568 (1972)). But

we rejected an analogous argument in Western Watersheds Project v. Michael, 869

F.3d 1189 (10th Cir. 2017). At issue in that case were statutes that imposed

penalties on anyone who crossed private land to access adjacent or proximate land

7 We note that content-neutral curfews on door-to-door solicitation, i.e., those that do not distinguish between commercial and noncommercial speech, have been analyzed as time, place, and manner restrictions in some circumstances. See Ohio Citizen Action, 671 F.3d at 566, 571, 580 (analyzing “ordinance banning all door-to-door canvassing and soliciting between 6 P.M. and 9 A.M.” as a time, place, and manner restriction after plaintiff conceded the ordinance was content neutral, but nevertheless concluding the curfew was unconstitutional); N.J. Citizen Action, 797 F.2d at 1255, 1262 (analyzing ordinance limiting hours of door-to-door solicitation as a time, place, and manner restriction after plaintiffs conceded the ordinance was content neutral, but nevertheless concluding that it was unconstitutional); Pa. All. for Jobs & Energy v. Council of Borough of Munhall, 743 F.2d 182, 187 88 (3d Cir. 1984) (analyzing, and upholding, ordinance imposing curfew on door-to-door solicitation as a time, place, and manner restriction). We have no occasion here to address whether a curfew similar to Castle Rock’s that applied to both commercial and noncommercial solicitors would be constitutional.

41 where that person would collect data about public lands. Id. at 1191. We said that

“[t]he fact that one aspect of the challenged statutes concerns private property

does not defeat the need for First Amendment scrutiny.” Id. at 1195. While we

acknowledged that “trespassing does not enjoy First Amendment protection,” id.

at 1192, we held “that the statutes regulate protected speech under the First

Amendment and that they are not shielded from constitutional scrutiny merely

because they touch upon access to private property,” id. We were able to conclude

that the statutes regulated protected speech because they “target[ed] the ‘creation’

of speech by imposing heightened penalties on those who collect resource data”

about public lands. Id. (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 570

(2011)).

In much the same way, the regulation at issue here also targets the creation

of speech that the Supreme Court has long categorized as protected by the First

Amendment. See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton,

536 U.S. 150, 160 (2002) (“For over 50 years, the Court has invalidated

restrictions on door-to-door canvassing and pamphleteering.”); Ill. Pub. Action

Council, 796 F.2d at 1550 (“The Supreme Court has recognized substantial First

Amendment protection for door-to-door solicitors.”). And, while we agree with

the general and uncontroversial principle that private parties may choose what

speech to allow on their property without violating the First Amendment, see, e.g.,

Tanner, 407 U.S. at 552, 570 (holding that a private shopping center did not

42 violate the First Amendment by prohibiting the distribution of handbills on its

property), Castle Rock fails to explain how that general principle interacts with the

above cases squarely holding that First Amendment interests are implicated when

municipalities attempt to restrict door-to-door solicitation. See, e.g., Martin v.

City of Struthers, 319 U.S. 141, 141 (1943) (“For centuries it has been a common

practice in this and other countries for persons not specifically invited to go from

home to home and knock on doors or ring doorbells to communicate ideas to the

occupants or to invite them to political, religious, or other kinds of public

meetings. Whether such visiting shall be permitted has in general been deemed to

depend upon the will of the individual master of each household, and not upon the

determination of the community.”); Ill. Pub. Action Council, 796 F.2d at 1556,

1558 (holding unconstitutional “5 p.m. to 9 p.m. ban [that was] essentially an

attempt by [the city] to substitute its judgment for that of its citizens”).

Moreover, we are unpersuaded by the cases that Castle Rock cites in support

of its argument that its Curfew “does not regulate speech” but rather “only

uninvited access onto private property.” Aplt.’s Opening Br. at 12. For example,

it is true that the Supreme Court in Cornelius v. NAACP Legal Defense and

Education Fund, Inc., 473 U.S. 788 (1985), generally observed that “a speaker

must seek access to public property or to private property dedicated to public use

to evoke First Amendment concerns.” Id. at 801. However, Cornelius is

inapposite. Its general observation concerning what is necessary to invoke First

43 Amendment protections was not made in the context of door-to-door solicitations,

and the Court consequently had no occasion to discuss much less undercut its

longstanding view that door-to-door solicitation is speech and is entitled to First

Amendment protection. See, e.g., Watchtower, 536 U.S. at 160; Ill. Pub. Action

Council, 796 F.2d at 1550.

Relatedly, there was never any question in Cornelius that private property

was not involved there; the federal charitable program at issue that plaintiffs

wanted to access in order to solicit contributions was a creature of the federal

government and regulated by the federal government. See 473 U.S. at 795 (noting

that the program “was designed to lessen the Government’s burden in meeting

human health and welfare needs by providing a convenient, nondisruptive channel

for federal employees to contribute to nonpartisan agencies that directly serve

those needs”). Thus, the Court did not have occasion to address any argument

remotely resembling the one that Castle Rock makes here, which turns on the

government’s authority to regulate uninvited access to private property. Cf. Ill.

Pub. Action Council, 796 F.2d at 1552 n.12 (“[The city] spent most of its oral

argument contending that this case is controlled by the public forum/private forum

standards in Cornelius[]. This argument is meritless. The Supreme Court’s

analysis of government property turns upon the public forum/private forum

distinction, but nothing in Cornelius suggests the Court intended to extend this

distinction to time, place, and manner restrictions on private property.” (citation

44 omitted)). Indeed, the government argued unsuccessfully in Cornelius that the

plaintiffs’ speech fell outside the bounds of the First Amendment not because the

charitable program was private, but rather because ostensibly “a First Amendment

forum necessarily consists of tangible government property.” 473 U.S. at 800; see

Koala v. Khosla, 931 F.3d 887, 901 (9th Cir. 2019) (noting that in Cornelius “[t]he

government argued that the fundraising program was not a forum at all, because it

was not a physical space”). Thus, we conclude that Cornelius is inapposite and

does not provide a basis for departing from the controlling precedent explicated

supra concerning the First Amendment protections accorded to door-to-door

solicitors.

Castle Rock also cites Frisby v. Schultz, 487 U.S. 474 (1988), where the

Supreme Court stated that it has “repeatedly held that individuals are not required

to welcome unwanted speech into their own homes and that the government may

protect this freedom.” Id. at 485. It then upheld an ordinance that banned

picketing outside residences. Id. at 476, 488. However, while the Court upheld

the ordinance, the Court clearly held that the picketing at issue was protected

speech. See id. at 479 (“The antipicketing ordinance operates at the core of the

First Amendment by prohibiting appellees from engaging in picketing on an issue

of public concern.”). An ordinance can both implicate the First Amendment and

ultimately survive the scrutiny mandated by its impingement on First Amendment

rights. Therefore, the fact that the government can permissibly impose certain

45 restrictions on the uninvited exercise of First Amendment rights on private

property does not mean as Castle Rock suggests that those First Amendment

rights somehow do not exist on private property. Castle Rock’s citation to Frisby

thus does not advance the argument it makes here. And other cases that Castle

Rock cites run into the same problem. See, e.g., Vill. of Schaumburg v. Citizens

for a Better Env’t, 444 U.S. 620, 633 (1980) (“The issue before us, then, is not

whether charitable solicitations in residential neighborhoods are within the

protections of the First Amendment. It is clear that they are.”). None of these

cases provides support for the idea that door-to-door solicitation does not

implicate the First Amendment. 8

8 Other cases cited by Castle Rock concern the scope of the implied license to approach a front door in other legal contexts. See, e.g., United States v. Crapser, 472 F.3d 1141, 1146 (9th Cir. 2007) (discussing implied license to approach a front door in the Fourth Amendment context); Moss v. Aaron’s, Inc., 140 F. Supp. 3d 441, 446 47 (E.D. Pa. 2015) (discussing implied license to approach a front door under Pennsylvania’s law of trespass). Castle Rock could be correct that “[c]ommunity disapproval of nighttime disruption can limit the implied license.” Aplt.’s Opening Br. at 17. But Castle Rock fails to explore how that principle, which it extracts from cases addressing the Fourth Amendment and state tort law, interacts with the Supreme Court’s and our own caselaw concerning First Amendment interests in door-to-door solicitation. And we will not construct an argument for Castle Rock, particularly when any such argument (if viable at all) would involve complicated and nuanced constitutional considerations. See Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (“Our reluctance [to opine on the issue] is heightened because [appellant]’s argument involves a complicated and little-explored area of constitutional law.”); United States v. Lamirand, 669 F.3d 1091, 1098 n.7 (10th Cir. 2012) (“Given the apparent complexity of th[e] issue . . . we are reluctant to definitively opine on its merits without a full adversarial framing of the relevant considerations.”).

46 For the first time in reply, Castle Rock has argued that the Curfew was

analogous to zoning regulations because “it simply prohibits uninvited access by

any commercial actor.” Aplt.’s Reply Br. at 15 16. At the outset, we note that

this late-blooming argument appearing for the first time in Castle Rock’s reply

brief is waived; therefore, we need not consider it. See, e.g., In re: Motor Fuel

Temperature Sales Practices Litig., 872 F.3d 1094, 1112 n.5 (10th Cir. 2017)

(noting that “arguments raised for the first time in a reply brief are waived”); Star

Fuel Marts, LLC v. Sam’s E., Inc., 362 F.3d 639, 647 (10th Cir. 2004) (“Generally,

arguments raised for the first time on appeal in an appellant’s reply brief are

waived.”). However, even if we were to consider it, we would not be persuaded.

In particular, neither of the cases Castle Rock cites for support are helpful to the

argument that it makes here. It specifically contends that “under Aptive’s theory,

the front porch of every home in America would be transformed into a public

forum.” Aplt.’s Reply Br. at 15. But Castle Rock relies on Cornelius, 473 U.S.

788, which we determined supra is inapposite. Castle Rock also argues that under

Aptive’s theory “any regulation of commercial activity, such as zoning laws

prohibiting commercial activities in residential areas, would be subjected to

intermediate scrutiny analysis.” Id. The only case cited in support of this

proposition is Expressions Hair Design, 137 S. Ct. at 1151. But, again, that case

held that the law at issue, which regulated how stores communicated the prices of

products, “regulates speech.” Id. That case thus does not support Castle Rock’s

47 argument that laws regulating door-to-door solicitation escape First Amendment

scrutiny. In sum, none of Castle Rock’s arguments discussed here that essentially

posit that the Curfew merely regulates trespass on private property give us any

reason to second-guess the ample controlling, as well as persuasive, authority

discussed supra holding that regulation of door-to-door solicitation implicates the

First Amendment.

In sum, we conclude that Castle Rock’s 2014 ordinance and, more

specifically, the Curfew regulates commercial speech protected by the First

Amendment, and we reject Castle Rock’s arguments to the contrary.

Our prior cases and the parties agree that assuming that the Curfew

implicates the First Amendment, as we have just decided our analysis is

governed by Central Hudson Gas & Electric Corporation v. Public Service

Commission, supra. We set out the substantive legal standards from Central

Hudson and then address in detail whether Castle Rock’s Curfew advances its

substantial interests in a direct and material way more specifically, whether “the

harms [Castle Rock] recites are real and that its restriction will in fact alleviate

48 them to a material degree.” Edenfield, 507 U.S. at 771. We conclude that Castle

Rock has failed to carry its burden under Central Hudson. 9

9 Notably, the parties have not addressed the import (if any) of the Supreme Court’s decision in Breard v. City of Alexandria, 341 U.S. 622 (1951), for the proper resolution of this appeal. In Breard, the Court upheld the constitutionality of an ordinance barring door-to-door commercial soliciting without the owner’s consent. Id. at 624, 641 45. It held that any First Amendment interests at stake were outweighed by “householders’ desire for privacy” and stated that “those communities that have found these methods of sale obnoxious may control them by ordinance.” Id. at 644 45. The Court distinguished cases striking down similar regulations because those cases had concerned noncommercial speech. Id. at 642 43. The Court has since explained that Breard held “that the ‘commercial feature’ of door-to-door solicitation of magazine subscriptions was a sufficient reason for denying First Amendment protection to that activity.” Discovery Network, 507 U.S. at 420. But in Virginia State Board of Pharmacy, the Court stated that Breard was decided in an era when the Court had “given some indication that commercial speech [was] unprotected.” 425 U.S. at 758. The Court labeled cases like Breard as taking a “simplistic approach,” which fell subject to “criticism,” “was regarded as of doubtful validity by Members of the Court,” and was later “avoided.” Id. at 759. “Since the decision in Breard, however, the Court has never [d]enied protection on the ground that the speech in issue was ‘commercial speech.’” Id.; see Discovery Network, 507 U.S. at 420 (noting that “[s]ubsequent opinions . . . recognized that important commercial attributes of various forms of communication” do not have the effect of limiting or restricting the speech’s “entitlement to constitutional protection”). The Court went further in Village of Schaumburg, stating that “[t]o the extent that any of the Court’s past decisions” expressly including Breard “hold or indicate that commercial speech is excluded from First Amendment protections, those decisions, to that extent, are no longer good law.” 444 U.S. at 632 n.7. Whether Breard has been rendered completely null as relevant here is not for us to say. We are sensitive to the fact that it is the Supreme Court’s “prerogative alone to overrule one of its precedents,” Bosse v. Oklahoma, --- U.S. ----, 137 S. Ct. 1, 2 (2016) (per curiam) (quoting United States v. Hatter, 532 U.S. 557, 567 (2001)). However, what we do know is that the parties agree that the Central Hudson test governs here and, on that basis alone, we could apply that framework. Moreover, very significantly, we never mentioned Breard in Pacific Frontier, and instead applied Central Hudson to invalidate a restriction on door-to-door commercial solicitation. Thus, (continued...)

49 1

The test enunciated in Central Hudson is a form of “intermediate standard

of review,” and, as well summarized in Edenfield, it provides that in determining

whether an ordinance regulating commercial speech may be proscribed,

we must ask [1] whether the State’s interests in proscribing it are substantial, [2] whether the challenged regulation advances these interests in a direct and material way, and [3] whether the extent of the restriction on protected speech is in reasonable proportion to the interests served.

Edenfield, 507 U.S. at 767; accord Cent. Hudson, 447 U.S. at 566; Pac. Frontier,

414 F.3d at 1231 32. 10 Castle Rock bears the burden on all three prongs. See

Edenfield, 507 U.S. at 770 (“It is well established that ‘[t]he party seeking to

uphold a restriction on commercial speech carries the burden of justifying it.’”

9 (...continued) even putting aside the parties’ agreement, we read Pacific Frontier as obliging us to analyze Castle Rock’s restriction on commercial door-to-door solicitation under Central Hudson. Other circuits agree that Central Hudson applies in circumstances such as these. See N.Y. State Ass’n of Realtors v. Shaffer, 27 F.3d 834, 835, 840S44 (2d Cir. 1994) (analyzing regulation on commercial door-to- door solicitation under Central Hudson); Project 80’s, Inc. v. City of Pocatello, 942 F.2d 635, 636 37 (9th Cir. 1991) (same); S.-Suburban Hous. Ctr. v. Greater S. Suburban Bd. of Realtors, 935 F.2d 868, 874 75, 894 (7th Cir. 1991) (same). 10 Sometimes the test is described as having a “threshold” step of whether the regulated speech is lawful and not misleading. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 367 (2002) (describing the “threshold matter” of “whether the commercial speech concerns unlawful activity or is misleading” and then the “latter three inquiries”). When that threshold step is not implicated, as here, we have referred to Central Hudson as “a three-part test.” Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d 1228, 1237 (10th Cir. 2004). We do so again here.

50 (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.20 (1983))); Pac.

Frontier, 414 F.3d at 1231 35 (“A municipality has the burden of justifying its

regulation even on a motion to enjoin enforcement of an ordinance.”). We

summarize each element, focusing on the second, which we find determinative.

First, “a municipality must assert ‘a substantial interest to be achieved by

restrictions on commercial speech.’” Id. at 1231 (quoting Cent. Hudson, 447 U.S.

at 564). “[W]e must identify with care the interests the State itself asserts. Unlike

rational-basis review, the Central Hudson standard does not permit us to supplant

the precise interests put forward by the State with other suppositions.” Edenfield,

507 U.S. at 768. Castle Rock asserts that the Curfew furthers its residents’

interests in privacy and safety from crime, and Aptive does not contest that these

interests are substantial. Cf. Pac. Frontier, 414 F.3d at 1232 n.10 (“Their

concession is appropriate given longstanding Supreme Court precedent

recognizing a municipality’s right to protect its residents’ peaceful enjoyment of

their homes and to prevent crime.”). Thus, we do not linger on this factor.

Second, “[t]hat [the government’s] asserted interests are substantial in the

abstract does not mean, however,” that its restriction on commercial speech

purporting to effectuate those interests is permissible under Central Hudson.

Edenfield, 507 U.S. at 770. “[T]he restriction must directly advance th[e]

substantial interest[s]” asserted by the municipality. Pac. Frontier, 414 F.3d

at 1231; accord Revo v. Disciplinary Bd. of the Supreme Court of N.M., 106 F.3d

51 929, 933 (10th Cir. 1997) (“The second element asks whether the ban directly and

materially advances the asserted state interest.”). This means that “[i]f the

regulation ‘provides only ineffective or remote support for the government’s

purpose,’ it will not be upheld.” Pac. Frontier, 414 F.3d at 1231 (quoting Cent.

Hudson, 447 U.S. at 564); accord Mainstream Mktg., 358 F.3d at 1237 (“[T]he

regulation must directly advance that governmental interest, meaning that it must

do more than provide ‘only ineffective or remote support for the government’s

purpose.’” (quoting Cent. Hudson, 447 U.S. at 564)). “This burden is not satisfied

by mere speculation or conjecture; rather, a governmental body seeking to sustain

a restriction on commercial speech must demonstrate that the harms it recites are

real and that its restriction will in fact alleviate them to a material degree.”

Edenfield, 507 U.S. at 770 71; accord Utah Licensed Beverage Ass’n v. Leavitt,

256 F.3d 1061, 1071 (10th Cir. 2001). This requirement is “critical; otherwise, ‘a

[governmental body] could with ease restrict commercial speech in the service of

other objectives that could not themselves justify a burden on commercial

expression.’” Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995) (quoting

Edenfield, 507 U.S. at 771).

The Supreme Court does “not, however, require that ‘empirical data come

. . . accompanied by a surfeit of background information.’” Lorillard Tobacco Co.

v. Reilly, 533 U.S. 525, 555 (2001) (quoting Fla. Bar v. Went For It, Inc., 515 U.S.

618, 628 (1995)). Instead, the Court “ha[s] permitted litigants to justify speech

52 restrictions by reference to studies and anecdotes pertaining to different locales

altogether, or even, in a case applying strict scrutiny, to justify restrictions based

solely on history, consensus, and ‘simple common sense.’” Id. (quoting Went For

It, 515 U.S. at 628). When evaluating whether a municipality has put forward

sufficient anecdotes, history, or common sense to demonstrate “that the harms it

recites are real and that its restriction will in fact alleviate them to a material

degree,” Edenfield, 507 U.S. at 771, we evaluate the evidence in light of the cases

where those categories of evidence have previously been invoked, see Pac.

Frontier, 414 F.3d at 1235 n.12 (“What constituted sufficient anecdotal evidence

in [Went For It] provides helpful guidance as we evaluate [the municipality]’s

[anecdotal and common-sense] evidence.”).

As for the third element of the Central Hudson test, “the regulation is

unconstitutional ‘if the governmental interest could be served as well by a more

limited restriction on commercial speech.’” Id. at 1231 32 (quoting Cent. Hudson,

447 U.S. at 564); Mainstream Mktg., 358 F.3d at 1238 (asking “if the government

did not suppress an excessive amount of speech when substantially narrower

restrictions would have worked just as well”). “[L]aws restricting commercial

speech, unlike laws burdening other forms of protected expression, need only be

tailored in a reasonable manner to serve a substantial state interest in order to

survive First Amendment scrutiny.” Edenfield, 507 U.S. at 767; see Bd. of Trs. of

State Univ. v. Fox, 492 U.S. 469, 477 (1989) (requiring “something short of a

53 least-restrictive-means standard”). However, because we conclude that Castle

Rock fails at the second step in demonstrating that its Curfew “advances [its

substantial] interests in a direct and material way,” Edenfield, 507 U.S. at 767, we

do not reach this third element.

We now apply Central Hudson’s second prong, i.e., whether Castle Rock’s

Curfew “directly advance[s]” in a material way its substantial interests. Pac.

Frontier, 414 F.3d at 1231. Castle Rock asserts that the Curfew “directly

advances” its interests in public safety and privacy. We conclude that for both

asserted interests Castle Rock has failed to carry its burden of demonstrating

“that the harms it recites are real and that its restriction will in fact alleviate them

to a material degree.” Edenfield, 507 U.S. at 770S71. We thus conclude that the

Curfew unconstitutionally burdens Aptive’s First Amendment rights.

Castle Rock first asserts that the Curfew “[d]irectly [a]dvances” its interests

in public safety. Aplt.’s Opening Br. at 26. While all agree this interest is

“substantial in the abstract,” Edenfield, 507 U.S. at 770; see Pac. Frontier, 414

F.3d at 1232 n.10 (noting “longstanding Supreme Court precedent recognizing a

municipality’s right . . . to prevent crime”), we conclude that Castle Rock has

failed to carry its burden of demonstrating “that the harms it recites are real and

54 that its restriction will in fact alleviate them to a material degree,” Edenfield, 507

U.S. at 770 71.

Castle Rock seeks to demonstrate the existence of a “real” threat to public

safety through both data and the testimony of various council members and town

employees. We start with the data. Castle Rock plainly concedes that it “retains

no data predating the Curfew’s enactment that correlates evening-hours solicitation

with serious crime issues or rampant invasions of privacy.” Aplt.’s Opening Br. at

24; see Aplt.’s App., Vol. III, at A639 (stipulating that “[t]he Town has no record

of any crimes committed by registered commercial solicitors in Castle Rock prior

to the passage of the 2008 Ordinance”); id. at A643 (stipulating that “[t]he Town

has no record of ever charging or convicting a registered commercial solicitor for

committing a crime to persons or property”). The record does contain evidence

that the police department received eight “reports” concerning door-to-door

solicitation and twenty to thirty more informal “complaints” concerning

solicitation, some of which concerned door-to-door solicitation, in the year

preceding the Curfew’s enactment. Id., Vol. V, at A1313. One of these

complaints evidently involved a solicitor who was going door-to-door at 9:45 p.m.

Id. at A1327. But Castle Rock is right to acknowledge that these complaints do

not “correlate[] evening-hours solicitation with serious crime issues.” Aplt.’s

Opening Br. at 24. Indeed, only the one complaint concerning the 9:45 p.m.

conduct related to evening hours solicitation and was thus relevant to the Curfew.

55 But even the existence of this complaint does not demonstrate that any solicitors

(let alone commercial solicitors) specifically threatened public safety, as the

record provides no detail about the complaint and whether it was public-safety

related. The record evidence thus does not demonstrate that a “concrete,

nonspeculative harm” to public safety existed before the Curfew’s enactment.

Went For It, 515 U.S. at 628 29.

The only remaining data are from 2016 and 2017, i.e., after the Curfew was

enacted. These data demonstrate that in 2016 and 2017 combined there were

only eleven complaints about doorbell interruptions after 7:00 p.m. and that none

of those complaints involved commercial solicitors. All eleven of the complaints

about interruptions after 7:00 p.m. concerned noncommercial solicitors. Under

this evidence, the Curfew is not crafted well to materially alleviate Castle Rock’s

posited threat to public safety because those causing the evening interruptions are

not covered by the Curfew noncommercial solicitors. Cf. Pac. Frontier, 414

F.3d at 1234 35 (noting that “[a]ny speculation that [the ordinance] would assist

with crime prevention is further undercut by evidence that residential burglaries

committed in [the city] by those posing as solicitors involved individuals who did

not apply for a license” and so “the [restrictions imposed by the ordinance] would

have been of no use in those investigations”). Furthermore, were we to look at all

of the complaints across both 2016 and 2017, i.e., not just those occurring after

7:00 p.m., there still would be only one complaint about a registered commercial

56 solicitor. And even this complaint tells us nothing about a purported threat to

public safety. The data thus provide no support for Castle Rock’s argument that

commercial solicitation after 7:00 p.m. has presented a threat to public

safety either before or after the Curfew’s enactment.

Castle Rock counters that the absence of post-enactment data showing that

commercial solicitors are a threat to public safety demonstrates that the Curfew “is

working.” Aplt.’s Opening Br. at 24 (emphasis omitted). But this unadorned

assertion is self-defeating. It is Castle Rock’s burden to demonstrate that the

Curfew directly advances its interest in public safety, Pac. Frontier, 414 F.3d at

1231, and, at least under these circumstances, the absence of data cannot carry that

burden.

As for testimonial evidence, the majority of Castle Rock’s remaining

evidence of commercial solicitors’ purported threat to public safety comes from

testimonial evidence from various council members and town employees

pertaining to the post-enactment time period. This testimonial evidence which

purports to demonstrate that commercial door-to-door solicitation after 7:00 p.m.

remains a threat to public safety is thoroughly eviscerated by the data above to

the contrary. Indeed, Castle Rock’s current police chief was unable to point to a

specific instance where a commercial solicitor was accused of any solicitation-

related crime or where an individual had posed as a door-to-door solicitor for

purposes of hiding criminal intent. He also stated that “[m]ost crimes occur

57 outside of the nighttime hours,” Aplt.’s App., Vol. V, at A1132, A1150 which

not only directly undercuts the public-safety rationale for Castle Rock’s Curfew

but also is at odds with one of the Castle Rock town council’s express prefatory

statements in justifying the Curfew’s original enactment viz., “criminal activity

on private property often occurs during nighttime hours,” id., Vol. VI, at A1445.

Indeed, the chief testified that “a person is probably not more likely to commit a

crime to persons or property arising out of door-to-door solicitation after 7:00 p.m.

than before 7:00 p.m.,” and that “moving the Town’s Curfew from 7:00 p.m. to

dusk would not materially hamper the Castle Rock Police Department’s ability to

protect its citizens from crime.” Id., Vol. II, at A235. Additionally, he testified

that the data suggest that Castle Rock’s problem is with unregistered solicitors,

not registered commercial solicitors like Aptive’s. In sum, all of this testimony

from Castle Rock’s own police chief “contradicts, rather than strengthens,” the

proffered public safety interest in the Curfew. Edenfield, 507 U.S. at 772.

The only additional pre-enactment indicators of the ostensible threat to

public safety from commercial door-to-door solicitation come from the 2008

ordinance’s prefatory clauses (which were incorporated into the 2014 ordinance)

and the testimony of a former mayor and town council member. But, as our

discussion of the police chief’s testimony firmly underscores, there was no factual

basis for the various prefatory statements to the ordinance, which purported to

connect Castle Rock’s public-safety interest to its Curfew restriction on

58 commercial door-to-door solicitation. And Castle Rock’s former mayor testified

that “prior to passing the 2008 Ordinance[,] there was no discussion or analysis by

the Town Council of . . . solicitation-related crime in Castle Rock,” “crime

committed by commercial solicitors in Castle Rock,” “crime committed by

commercial solicitors in Castle Rock after 7:00 p.m.,” or “how a 7:00 p.m. curfew

would protect public safety.” Aplt.’s App., Vol. II, at A228. The prefatory

clauses thus cannot serve as evidence of a real harm. See Edenfield, 507 U.S. at

770 71 (“This burden is not satisfied by mere speculation or conjecture; rather, a

governmental body seeking to sustain a restriction on commercial speech must

demonstrate that the harms it recites are real . . . .” (emphases added)).

To be sure, Castle Rock’s former mayor stated that “when [the] Council was

considering the Curfew, there ‘probably was [sic] some thoughts,’ that ‘reasonable

people would think that people walking around their neighborhood or up to their

home could potentially be somebody that might create a crime in the town.’”

Aplt.’s App., Vol. II, at A234. And a former council member echoed these

concerns, stating that he “definitely” thought that it “could be a possibility” that

individuals posing as door-to-door solicitors were engaging in criminal activity.

Id., Vol. V, at A1085 86 (emphasis added). But these sorts of equivocal and

hypothetical statements about the possibility of a connection between crime and

commercial door-to-door solicitation are insufficient to establish a “concrete,

nonspeculative harm” to public safety. Went For It, 515 U.S. at 628 29; cf. Ill.

59 Pub. Action Council, 796 F.2d at 1555 n.15 (“When a city . . . wants to pass an

ordinance that will substantially limit First Amendment rights, the city must

produce more than a few conclusory affidavits of city leaders which primarily

contain unsubstantiated opinions and allegations.”).

The insufficiency of Castle Rock’s evidence purporting to establish that the

Curfew “directly advances” Castle Rock’s interest in public safety is underscored

when we consider the analysis in Pacific Frontier. There, the city sought to

justify a fingerprint requirement for commercial solicitors “by arguing that it

further[ed] the city’s legitimate interests in assuring peaceful use of private

property and in protecting its citizens against crime.” 414 F.3d at 1233. More

specifically, the city argued that its fingerprint requirement “uniquely further[ed]

[the city’s] interest in crime prevention and investigation.” Id. at 1234. A police

officer and city attorney, respectively, testified that the fingerprinting requirement

allowed the city to “potentially” identify culprits and that the requirement deterred

crime. Id. But we determined that the city “provided no evidence other than

conjecture to support its argument that having solicitors’ fingerprints on file would

either deter crime or aid the investigation of a burglary.” Id. at 1235.

In arguing to the contrary, the city said that its evidence was the kind of

“anecdotes and common sense” that the Supreme Court had permitted to “justify”

restrictions concerning First Amendment speech like its ordinance. Id. at 1235

n.12. We acknowledged that the Court in Went For It had relied on “anecdotal

60 evidence” to uphold a lawyer “solicitation regulation” when applying the Central

Hudson test. Id. But we also noted that “[w]hat constituted sufficient anecdotal

evidence” in Went For It could provide “helpful guidance” in assessing the

adequacy of the anecdotal and common-sense evidence that the city advanced. Id.

We noted that, in Went For It, the defendant “Florida Bar conducted a two-year

study of the impact of lawyer advertising and solicitation, and compiled a

106-page summary of its findings including survey results, newspaper editorials,

and complaints filed by citizens.” Id. Considering the Went For It guidepost, we

concluded that the “anecdotes” and “common sense” that the city presented to

justify its fingerprint requirement were “wholly insufficient.” Id. In short, the

city’s evidence did not demonstrate “that the harms it recite[d] we[re] real,”

Edenfield, 507 U.S. at 770 71.

To be clear, we do not read Pacific Frontier’s focus on the evidentiary

showing in Went For It as establishing a floor or threshold showing for the

quantity or quality of the common-sense or anecdotal evidence that a municipality

must necessarily marshal in demonstrating that the harms that support its

restriction on commercial speech are based in reality. 11 Pacific Frontier used the

11 Indeed, in Evans, in the admittedly distinct context of a content- neutral time, place, and manner restriction, we rejected the argument that “the City did not meet its burden to justify the fit between the ends and the means” because “it failed to ‘compile any data, statistics, or accident reports.’” 944 F.3d at 857 58. We noted that Supreme Court has not “create[d] a new evidentiary requirement for governments to compile data or statistics.” Id. at 858. While (continued...)

61 showing in Went For It only as “helpful guidance” a useful example of a

circumstance where the government’s common-sense and anecdotal showing was

held to be sufficient. 414 F.3d at 1235 n.12. We had no occasion in Pacific

Frontier to opine on how much or what kind of common-sense or anecdotal

evidence would be necessary to satisfy the reality-based “standard elaborated in

Edenfield.” Id. (quoting Went For It, 515 U.S. at 628); see also United States v.

Burkholder, 816 F.3d 607, 620 n.10 (10th Cir. 2016) (“An event or condition is

sufficient if its existence means that another event or condition will occur. An

event or condition is necessary if, in its absence, another event or condition could

not occur.”). We are in a like situation here. Castle Rock’s anecdotal and

common-sense showing is woefully insufficient, when viewed through the

“helpful” prism of the showing in Went For It. Pac. Frontier, 414 F.3d at 1235

n.12. In support of its public-safety justification, Castle Rock has provided us no

studies, no supportive evidence-based findings, and no survey results. And, with

respect to citizen complaints, there is no evidence that commercial solicitors are

the source of any public-safety problems. Indeed, what common-sense and

11 (...continued) Evans was undertaking its analysis in a distinct First Amendment context, we reinforce that holding here. As noted infra, using the showing in Went For It as a helpful guidepost, we conclude that Castle Rock’s presentation of common sense and anecdotal evidence is woefully inadequate. However, in doing so, we do not suggest, for example, that it ordinarily would be necessary for municipalities to perform “a double-blind empirical study[] or a linear regression analysis” before they can legislate in the First Amendment area. Luce v. Town of Campbell, 872 F.3d 512, 517 (7th Cir. 2017).

62 anecdotal evidence that Castle Rock presents is contradicted by the police chief’s

testimony that there was no evidence that commercial solicitation posed a threat to

public safety and the accompanying data demonstrating that there have not been

any complaints about commercial solicitation after 7:00 p.m. In short, using as we

did in Pacific Frontier the “helpful guidance” of Went For It, id., we are able to

conclude that the common-sense and anecdotal evidence that Castle Rock has

advanced in support of its interest in public safety is woefully insufficient.

Castle Rock resists, but presents no persuasive argument to the contrary.

Castle Rock first argues that this result “would eviscerate a municipality’s ability

to address common sense concerns of residents,” Aplt.’s Reply Br. at 8 9, by

requiring it to perform “extensive, data-driven” research before legislating, Aplt.’s

Opening Br. at 27. But Castle Rock attacks a straw man. We have held no such

thing. The upshot of our decision here is only that, when burdening commercial

speech, a municipality must be able to demonstrate “that the harms it recites are

real and that its restriction will in fact alleviate them to a material degree.”

Edenfield, 507 U.S. at 770 71. It theoretically could do so by presenting many

different types of evidence: “[t]he government is not limited in the evidence it may

use to meet its burden.” Mainstream Mktg., 358 F.3d at 1237. Castle Rock cites

to Lorillard Tobacco Co. v. Reilly, supra, and Phillips v. Borough of Keyport, 107

F.3d 164 (3d Cir. 1997) (en banc), in further support of its argument on this point,

but neither leads to a contrary conclusion. Castle Rock only cites to Lorillard’s

63 recitation of the standard enunciated in Went For It; Lorillard neither adds to nor

subtracts from that standard. See Lorillard, 533 U.S. at 555. And we are bound to

follow Pacific Frontier’s interpretation of that standard, as we have done here.

So, Castle Rock’s reliance on Lorillard is unavailing.

In Phillips which did not apply the Central Hudson framework at all it is

true that the Third Circuit stated that “[w]hatever level of scrutiny we have applied

in a given case, we have always found it acceptable for individual legislators to

base their judgments on their own study of the subject matter of the legislation,

their communications with constituents, and their own life experience and common

sense.” 107 F.3d at 178. However, in making this statement, the Phillips court

was only rejecting appellants’ suggestion that the “factual basis for a legislative

judgment” regarding a First Amendment regulation had to “have been submitted to

the legislative body prior to the enactment of the legislative measure.” Id.

(emphasis added); see id. (“[I]n appellants’ view, a governmental entity may

successfully defend a First Amendment challenge of the kind here mounted only if

it can show that it was exposed, before taking action, to evidence from which one

could reasonably conclude that undesirable secondary effects would occur in the

absence of legislative action and that the particular action taken was narrowly

tailored to ameliorate those secondary effects.”). Yet the Phillips court left no

doubt that its position regarding pre-enactment evidence did not mean that there

was no “requirement that there be a factual basis for a legislative judgment

64 presented in court when that judgment is challenged.” Id. In fact, the Phillips

court required the municipality to put on a substantial showing indeed: “our First

Amendment jurisprudence requires that the Borough identify the justifying

secondary effects with some particularity, that they offer some record support for

the existence of those effects and for the Ordinance’s amelioration thereof . . . .”

Id. at 175. Castle Rock’s reliance on Phillips is thus unavailing. Even if we were

to adopt that court’s view concerning the lack of necessity for a sufficient pre-

enactment evidentiary showing a matter that is not before us and upon which we

do not opine that would not help Castle Rock because it still could not satisfy

Phillips’s “requirement that there be a factual basis for a legislative judgment

presented in court when that judgment is challenged.” Id. at 178. That is, as we

have demonstrated supra, both the pre- and post-enactment evidence Castle Rock

presented in district court in support of its public-safety justification was woefully

inadequate.

Castle Rock also endeavors (ultimately unsuccessfully) to make a viable

argument based on the factually dissimilar Supreme Court case City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986). There, the Supreme Court upheld a

zoning ordinance that applied to adult motion picture theaters. In doing so, it held

that the city “was entitled to rely on the experiences of Seattle and other cities . . .

in enacting its adult theater zoning ordinance.” Id. at 51. As most relevant here,

the Court stated, “[t]he First Amendment does not require a city, before enacting

65 such an ordinance, to conduct new studies or produce evidence independent of that

already generated by other cities, so long as whatever evidence the city relies upon

is reasonably believed to be relevant to the problem that the city addresses.” Id. at

51 52.

Castle Rock argues that it similarly could rely on other cities’ experiences.

Aplt.’s Reply Br. at 10 11. We have no quarrel with this unremarkable

proposition. See Lorillard, 533 U.S. at 555 (“[W]e have permitted litigants to

justify speech restrictions by reference to studies and anecdotes pertaining to

different locales altogether . . . .” (alteration in original) (quoting Went For It, 515

U.S. at 628)); Phillips, 107 F.3d at 175 (noting that “[i]t may well be that the

defendants here, by pointing [inter alia] to studies from other towns . . . will be

able to carry their burden of showing that the ordinance [which allegedly infringes

on First Amendment interests] is reasonably designed to address the reasonably

foreseeable secondary effect problems” of plaintiffs’ adult-entertainment

business).

However, in Playtime Theatres, the Court allowed Renton to rely on studies

that Seattle (a neighboring city) had commissioned that established the basis for

“detailed findings” concerning the “harmful effect on th[at] area” and

“neighborhood blight” caused by adult movie theaters. 475 U.S. at 50 51 (quoting

Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153, 1156 (Wash. 1978) (en

banc)). Castle Rock has presented no similar evidence here from other cities. It

66 does not even identify specific municipalities that have purportedly experienced

similar problems with commercial door-to-door solicitors, let alone why the

experience of those cities “is reasonably believed to be relevant to the problem

that [Castle Rock] addresses.” Id. at 51 52. It certainly has not presented any

evidence containing detailed findings concerning these matters. Instead, Castle

Rock only points to the fact that other municipalities have similar ordinances. But

the fact that other cities have similar ordinances cannot, standing alone, give us

any basis to infer that the public-safety “harms” that Castle Rock “recites are

real,” Edenfield, 507 U.S. at 770 71. The ordinances of those cities could very

well be grounded on the same sort of inadequate common-sense and anecdotal

evidence as Castle Rock’s. Or, conversely, their door-to-door solicitors may have

in fact presented local officials with real public-safety concerns for reasons unique

to those cities. Based on Castle Rock’s showing there is no way to tell, and that is

a problem for Castle Rock. That means that it has not carried its burden of proof

to demonstrate the reality of its claimed public-safety interest by reference to

evidence of such harms in other cities. Therefore, we reject Castle Rock’s

argument predicated on Playtime Theaters.

Castle Rock also notes that in Watchtower the Supreme Court “recognized

the interests a town may have in some form of regulation, particularly when the

solicitation of money is involved.” 536 U.S. at 162. Other cases note the

potential for safety issues even more specifically. See, e.g., Int’l Soc’y for

67 Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 684 (1992) (“[F]ace-to-face

solicitation presents risks of duress that are an appropriate target of regulation.”).

But no one disputes that Castle Rock’s interest in public safety is substantial in the

abstract or that certain forms of regulation might be necessary to limit commercial

solicitation. The problem here is a matter of proof or, in Pacific Frontier’s

language, of demonstrating that Castle Rock “faces real harms.” 414 F.3d at 1235;

see Edenfield, 507 U.S. at 770 (“That the Board’s asserted interests are substantial

in the abstract does not mean, however, that its blanket prohibition on solicitation

serves them.”). Castle Rock has not presented evidence of any risk of crime

associated with registered commercial solicitation after 7:00 p.m., and its police

chief’s testimony undermines any claim to the contrary. The fact that Castle

Rock’s interest in public safety is substantial in the abstract does not allow Castle

Rock to justify any regulation simply through talismanic invocation of that

interest.

Castle Rock makes the related argument that even if the regulations do not

advance its interest in public safety, they advance its interest in “ensuring that

Town residents feel safe in their community.” Aplt.’s Opening Br. at 27 (emphasis

added). But the primary connection between this interest and the Curfew that

Castle Rock makes is a citation to the following statement from its police chief:

I think that, you know, common sense tells us that as it gets later in the evening, people are a little bit more anxious about [opening their door to a stranger]. One reason is because they’re less likely

68 to be somebody, just a neighbor or a friend, show up at your door unannounced at the later evenings, as opposed to earlier in the day.

Aplt.’s App., Vol. V, at A1128. The chief continued to explain that the Curfew

helped to provide a “bright line” that has provided clarity to residents. Id. at

A1125, A1128. But this “common sense” rationalization is “wholly insufficient.”

Pac. Frontier, 414 F.3d at 1235 n.12. Castle Rock cannot infringe on Aptive’s

First Amendment interests in its commercial speech based on conjectural harms

and suppositions regarding how their citizens might feel about the removal of such

harms. See Went For It, 515 U.S. at 628 29 (noting that the regulation at issue

was adequately shown to “target[] a concrete, nonspeculative harm”); cf. Ill. Pub.

Action Council, 796 F.2d at 1553 (noting that “[t]he Supreme Court has . . .

emphasized the need for precision in the regulation of the exercise of First

Amendment rights”).

In particular, while the record does contain evidence about various citizen

complaints, many of these complaints are not relevant to the specific Curfew at

issue here in that they do not focus on interactions with commercial solicitors or

interactions after 7:00 p.m. and the remainder are undermined both by the

quantitative data that has been analyzed supra and by the police chief’s own

testimony. Without concrete evidence of relevant complaints, the fact that some of

Caste Rock’s citizens may feel “anxious” is woefully insufficient to demonstrate

69 that Castle Rock “faces real harms, which are materially palliated by the [Curfew]

requirements.” Pac. Frontier, 414 F.3d at 1235.

In sum, we hold that Castle Rock has failed to demonstrate that the Curfew

directly advances in a material way its substantial interest in public safety.

Castle Rock next argues that the Curfew directly advances its interest in its

citizens’ privacy. See Aplt.’s Opening Br. at 23 26. Like its interest in public

safety, Castle Rock’s interest in protecting the privacy of its citizens is in the

abstract an undisputedly substantial one. See Carey v. Brown, 447 U.S. 455, 471

(1980) (“Preserving the sanctity of the home, the one retreat to which men and

women can repair to escape from the tribulations of their daily pursuits, is surely

an important value.”); accord Pac. Frontier, 414 F.3d at 1232 n.10. However,

Castle Rock must again demonstrate that the harm it recites, i.e., the invasion of its

citizens’ privacy by commercial solicitors after 7:00 p.m., is “real” and that this

Curfew alleviates that harm “to a material degree.” Edenfield, 507 U.S. at 770 71.

It primarily attempts to carry this burden through a series of personal anecdotes.

While as discussed above we agree that ordinances can be justified by

anecdotes, we again conclude that Castle Rock’s evidence is wholly insufficient. 12

12 In a letter submitted under Federal Rule of Appellate Procedure 28(j), Castle Rock directs us to the Second Circuit’s decision in Vugo, Inc. v. City of New York, 931 F.3d 42 (2d Cir. 2019), cert. denied, No. 19-792, 2020 WL (continued...)

70 We start by recounting Castle Rock’s support for its assertion that the

Curfew directly advances its interest in protecting its citizens’ privacy. This

support comes primarily from the personal experiences of council members and

town employees and their discussions with constituents. Castle Rock argues

that before enactment of the Curfew in 2008 “the Town received complaints

regarding solicitors, and at least one related to evening-hours solicitation.” Aplt.’s

Opening Br. at 23 24. But the only pre-enactment evidentiary support relevant to

the Curfew is testimony concerning the single 9:45 p.m. solicitor. See Aplt.’s

App., Vol. V, at A1094 (Q: “[T]he only time-specific complaint that the Town

Council considered was one at 9:45, when it was dark; right?” A: “Yes.”). The

12 (...continued) 1978946, (Apr. 27, 2020). Castle Rock argues that Vugo “reaffirms the conclusion that the government may rely in part upon citizen complaints to establish the existence of a harm” under Central Hudson. Aplt.’s Suppl. Authority at 1, No. 18-1166 (10th Cir. July 26, 2019). But Vugo which applied Central Hudson to a distinct set of factual circumstances is consistent with the approach taken here. While Vugo relied on citizen complaints, those complaints were documented in the municipality’s “survey data” indicating that “nearly one- third of respondents” found the advertising at issue to be annoying, while others found that it was difficult to avoid and caused motion sickness. 931 F.3d at 52. There is no similar survey data here; only the ad hoc complaints discussed infra. Furthermore, Castle Rock argues that “Vugo rejects the proposition that an exception for noncommercial messaging renders a general restriction on commercial advertising unconstitutionally underinclusive.” Aplt.’s Supp. Authority at 1 (emphasis added). But Vugo involved a general restriction on commercial advertising with an exception for one specific form of advertising that was also commercial. See 931 F.3d at 46, 47 & n.3 (explaining that “Taxi TV” advertising allowed under the exception generates advertising revenue); id. at 48 (“The challenged rules affect only commercial advertising.”). Castle Rock thus seems to fundamentally misunderstand Vugo’s holding. In sum, we do not find Castle Rock’s discussion of this case convincing.

71 former town clerk did testify that after the Curfew was enacted in

2008 “[c]itizens would call and complain” about, as relevant here, “unregistered

solicitors at their door” and “solicitors at their door after the curfew time.” Id.,

Vol. IV, at A981 82.

In addition to this collection of anecdotes, Castle Rock also attempts to

support its privacy rationale for its Curfew requirement by relying on common

sense, which as noted is permissible as a general matter. A former town council

member testified about his personal belief that the Curfew “gives you . . . a time

period that you know you will . . . have privacy,” id., Vol. V, at A1080 81, and

about his conversations with neighbors who thought 7:00 p.m. was “a reasonable

time,” id. at A1082. The former police chief stated that community members felt

“uncomfortable” with having strangers come to their door. Id. at A1313. And the

town manager testified, based on conversations with several citizens, that citizens

wanted to “keep the curfew the way that it is” and had “a problem with uninvited

solicitations [sic] showing up on their doorstep after 7 o’clock.” Id., Vol. IV, at

A920, A926, A970. He thought the Curfew “reflect[ed] the common sense view

that as the hours . . . get later, past dinnertime, people are moving toward more

private activities within their home, and they’re not wanting to be inconvenienced

or bothered by an uninvited stranger on [sic] their door.” Id. at A940. The mayor

also testified that she believed that community members supported the Curfew.

Counsel asked the mayor whether, “based on the input [she] received from [her]

72 constituents, [she thought] there [was] sort of a community-wide concern about

commercial solicitors going door to door after 7:00 p.m. in the evening.” Id., Vol.

V, at A1183. She answered as follows: “There is [sic] concerns from residents

about that. Yes.” Id.

Castle Rock also points to “other municipalities’ experiences” with

evening-hours solicitation invading residents’ privacy. Aplt.’s Opening Br. at 24.

However, as we explained in connection with Castle Rock’s public-safety

justification, supra, Castle Rock’s citations on this point simply indicate that other

municipalities have similar ordinances. That fact, standing alone, provides us

with no basis to infer that the privacy “harms” that Castle Rock “recites are real,”

Edenfield, 507 U.S. at 770 71, or that Castle Rock seeks to address a “concrete,

nonspeculative harm” to its citizens’ privacy, Went For It, 515 U.S. at 628 29. Cf.

Playtime Theatres, 475 U.S. at 50 51 (allowing municipality to rely on studies

commissioned by neighboring municipality that established the basis for “detailed

findings” concerning the “harmful effect on th[at] area” and “neighborhood blight”

caused by the regulated activity (quoting Northend Cinema, 585 P.2d at 1156)).

Taken together, the record then shows a handful of complaints about

evening solicitation spread over approximately ten years and the representations of

Castle Rock officials and employees that at least some (unknown) number of

citizens thought the Curfew made sense and was a good idea. This evidence is

either irrelevant or undercut by contrary quantitative data.

73 As for lack of relevancy, the vast majority of this testimony tells us nothing

about whether commercial solicitation after 7:00 p.m. is a “real” harm to privacy.

As we have generally discussed supra, the evidence focuses on all i.e., not just

commercial door-to-door solicitation and it also includes incidents that definitely

or likely took place during the daytime, if the timing of the incidents may be

discerned at all. See, e.g., Aplt.’s App., Vol. IV, at A983, A1015 (describing

daytime incident between council member and solicitor); id., Vol. V, at A1082 83

(same); id. at A1084 (describing interactions with children selling candy and

magazines, without reference to time of day); id. at A1305 (describing complaints

about solicitors without reference to time of day); id. at A1313 (same); id. at

A1318 19 (Email re: Council Legislative Items for Aug. 21 Study Session, dated

Aug. 6, 2007) (same). Underscoring the lack of evidence relating to the period

after 7:00 p.m., remember that the 2008 ordinance and, more specifically, the

Curfew grew out of the daytime interaction between a solicitor and a council

member, and Castle Rock’s mayor described two daytime interactions she had with

solicitors. And while Castle Rock claims that “[c]omplainants reported

harassment, intimidation, and discomfort as a result of solicitation,” Aplt.’s

Opening Br. at 24, the only record support for this allegation makes no reference

to evening solicitation.

More specifically, there is no support for a finding that commercial

solicitation after 7:00 p.m. has intruded on the privacy of Castle Rock’s citizens.

74 At most, the general and undifferentiated evidence concerning complaints

demonstrates that some Castle Rock residents did not like door-to-door solicitation

in any form including during the day or by noncommercial solicitors. Cf. Vill. of

Schaumburg, 444 U.S. at 638 39 (noting that the local government’s “requirement

is related to the protection of privacy only in the most indirect of ways” given that

the government “concedes[ that] householders are equally disturbed by solicitation

on behalf of organizations satisfying the [requirement] as they are by solicitation

on behalf of other organizations”).

Lastly, we return to the data from 2016 and 2017 that established that there

were only eleven complaints about doorbell interruptions after 7:00 p.m., and none

of those complaints involved commercial solicitors. Instead, all eleven of the

complaints about interruptions after 7:00 p.m. concerned noncommercial solicitors.

But the Curfew, which only applies to commercial solicitors, does nothing to stop

such interruptions. Thus, even if Castle Rock had demonstrated that door-to-door

solicitation imposed a real harm to its citizens’ privacy, there is ample reason to

doubt that this particular Curfew “w[ould] in fact alleviate” it, let alone “to a

material degree,” because noncommercial solicitors the group of identified

offenders would be able to continue soliciting throughout the evening. Lorillard,

533 U.S. at 528; cf. Pac. Frontier, 414 F.3d at 1234 35.

In sum, our cases and the record demonstrate that, as to the privacy interest

it asserts, Castle Rock has not carried its burden of demonstrating “that the harms

75 it recites are real and that its restriction will in fact alleviate them to a material

degree.” Edenfield, 507 U.S. at 770 71.

Based on the record before us, we conclude that Castle Rock has not

demonstrated that the Curfew directly advanced to a material degree its interests in

public safety and privacy. Because Castle Rock has failed at this second step of

the Central Hudson analysis, we need not and do not proceed to the final step. See

Adolph Coors Co. v. Bentsen, 2 F.3d 355, 359 n.6 (10th Cir. 1993) (“Because we

conclude that the Government has failed to satisfy its burden under the third part

of the Central Hudson test, we need not proceed to the fourth part to determine

whether there is a reasonable fit between the prohibition and the Government’s

interest.” (framing Central Hudson as involving four prongs)), aff’d sub nom.

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995); see also People for Ethical

Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 1008

(10th Cir. 2017) (“[I]f it is not necessary to decide more, it is necessary not to

decide more.” (alteration in original) (quoting PDK Labs. Inc. v. DEA, 362 F.3d

786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the

judgment))). We thus conclude that Castle Rock’s Curfew does not withstand

First Amendment scrutiny.

76 IV

For the foregoing reasons, we conclude that Aptive has standing to sue and

that Castle Rock’s Curfew unconstitutionally burdens Aptive’s First Amendment

rights. Thus, we AFFIRM the district court’s judgment.

77 18-1166 – Aptive Environmental v. Town of Castle Rock

HARTZ, J., Circuit Judge, concurring

I concur in the judgment and join all of the majority opinion except § III(C)(2)(b),

which addresses Castle Rock’s argument that the curfew can be justified by its interest in

residents’ privacy. The privacy right at issue in the present context is the right to be left

alone. As the Supreme Court has said: “The unwilling listener’s interest in avoiding

unwanted communication . . . is an aspect of the broader ‘right to be let alone’ that one

of our wisest Justices characterized as ‘the most comprehensive of rights and the right

most valued by civilized men.’” Hill v. Colorado, 530 U.S. 703, 716–17 (2000) (quoting

dissent of Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478 (1928)). It

added, “The right to avoid unwelcome speech has special force in the privacy of the

home.” Id. at 717; see Frisby v. Schultz, 487 U.S. 474, 492 (1988) (Brennan, J.,

dissenting) (“I also agree with the Court that the town has a substantial interest in

protecting its residents’ right to be left alone in their homes.”). Castle Rock asserts that

its curfew ordinance is justified because residents do not want to be bothered by

commercial solicitors after 7:00 p.m. As I understand the majority opinion, it states that

the City has not shown that this justification—this harm to privacy interests—is “real.”

I am not sure what is meant by “real.” Perhaps if there were real doubt about

whether commercial solicitors would bother to contact residents after 7:00 p.m., one

could say there is insufficient evidence to show that the harm is “real.” But there is no

doubt that, absent the ordinance, Aptive’s independent contractors would be soliciting residents after 7:00 p.m. So I assume that the majority opinion is not complaining about

lack of evidence in that regard.

A second possibility is that there is no evidence that any resident would feel

bothered—would believe his or her privacy interests were offended—by being contacted

by a commercial solicitor after 7:00 p.m. But I do not think that the majority opinion is

saying that such evidence is totally absent. After all, if one of the city counselors who

voted for the ordinance did not want to be bothered by commercial solicitor after

7:00 p.m., that would be evidence regarding one resident. And conversations of

counselors with their constituents who express support for the ordinance would multiply

that evidence. I would also think, although the majority opinion rejects this, that the fact

that other municipalities had tried to justify evening curfews at various hours on the

ground that they protect the privacy of residents would serve as evidence that at least

some city dwellers of this era do not like to be bothered by commercial solicitors late in

the day.

I conclude that when the majority opinion states that Castle Rock “provides us

with no basis to infer that the privacy harms that [it] recites are real, or that [it] seeks to

address a concrete nonspeculative harm to its citizens’ privacy,” Maj. Op. at 72–73

(citation and internal quotation marks omitted), it means that the above evidence

mentioned by the majority does not show that the privacy harms have reached a minimal

threshold.

It is at this stage of the analysis that I become perplexed. Two questions need to

be answered. First, what is the standard that must be met by the City’s evidence? That

2 is, what is the threshold of harm? Is it enough that a few residents do not wish to be

bothered? Is it enough that a substantial portion of the City’s residents do not want to be

bothered? Does a majority of the City suffice, or must it be almost everyone? Second,

what kind of evidence will suffice to prove that the standard has been met? The extent to

which residents believe that their privacy has been invaded cannot be measured by

impersonal “hard” evidence, as when a law is justified as a protection of health or safety.

An individual is likely to measure public sentiment on the issue simply by recalling how

often such privacy concerns come up in casual conversation. Can city leaders rely on

their sense of what the community wants? Are complaints necessary; and if so, how

many? Or are vote tallies or survey results the only legally acceptable sources?

The majority opinion states that its analysis is consistent with the Second Circuit

opinion in Vugo, Inc. v. City of New York, 931 F.3d 42 (2019). In that opinion the court

said that the ban on Taxi TV in taxicabs and for-hire vehicles was justified by a survey

that substantiated the harm it sought to prevent. The survey showed that “nearly one-

third [33 1/3 %] of respondents indicated that Taxi TV is annoying.” Id. at 52 (internal

quotation marks omitted). Although an independent survey showed that 45% of

respondents thought Taxi TV was a “pleasant diversion” while 41% thought it annoying,

the court wrote that “[t]his single third-party survey does not provide a basis for us to

second guess the City’s conclusion that in-ride advertisements are annoying to its

citizens—a conclusion it reached based on its own survey results and first-hand

experience receiving complaints from customers.” Id. This sentence may suggest that

majority displeasure is necessary, but that a 41% survey result plus constituent

3 complaints and the personal experience of city officials could suffice to establish that the

threshold had been reached. A footnote, however, added: “Moreover, we see no reason

why the City may not seek to alleviate a harm when the harm is experienced by forty-one

percent of the population.” Id. at n.9. An explicit endorsement of this analysis in the

majority opinion would be helpful.

But it appears that the majority would not go so far. Applying Vugo to the present

context, I would think that there is sufficient evidence of “real” harm. The record

indicates that 30% of the households in Castle Rock had signed up for the do-not-knock

list, which prohibits commercial solicitors from bothering them at any time of the day.

See Aplt. App., Vol. 2 at 419 n.20 (list contains over 6300 addresses out of some 21,000

housing units in the town). Can we not infer that at least 30% of the households would

not want to be bothered after 7:00 p.m.? Does a commercial solicitation after 7:00 p.m.

not harm a resident who also would be upset by a solicitation at noon, or 6:00 p.m., or

6:30 p.m.? 1

I would hope that we could provide useful guidance to municipalities in this

circuit that would like to consider solicitation curfews. To be safe, a city may wish to

1 The majority opinion also suggests that a ban on commercial solicitation after 7:00 p.m. would not in fact alleviate the intrusion on privacy interests because noncommercial solicitation would still be permitted. But perhaps residents are not offended by noncommercial solicitation after 7:00 p.m. Or perhaps they are offended but believe it should still be tolerated. If, say, a curfew reduces solicitation by 50%, why is that not sufficient alleviation to justify the curfew? The Second Circuit in Vugo noted the recent Supreme Court reiteration of the proposition that “‘[a]lthough a law’s underinclusivity raises a red flag, the First Amendment imposes no freestanding underinclusiveness limitation.’” 931 F.3d at 53 (quoting Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015)). 4 pay for a resident survey before considering whether to enact an ordinance. But unless

the survey results are overwhelming in one direction or the other, city officials might well

be at a loss regarding the likelihood that an ordinance would pass constitutional muster.

City attorneys may find it difficult to provide advice based on the majority opinion.

I think it would have been preferable if this court had avoided those issues and

resolved this case on another component of the Central Hudson analysis that could

provide clear guidance. In my view, it is likely that no 7 PM curfew could survive

Central Hudson’s requirement that “it is not more extensive than is necessary to serve

[the government’s asserted] interest.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n, 447 U.S. 557, 566 (1980); see id. at 564 (“[I]f the governmental interest could

be served as well by a more limited restriction on commercial speech, the excessive

restrictions cannot survive.”); Edenfield v. Fane, 507 U.S. 761, 767 (1993) (describing

Central Hudson requirement as “whether the extent of the restriction on protected speech

is in reasonable proportion to the interests served”). The record indicates that with

relative ease Castle Rock could achieve its ends in a way that restricts commercial

solicitors from intruding on only those residents who are offended by the intrusion. The

Ordinance already contains a provision that prohibits solicitation of a home if the

homeowner requests to be put on a do-not-knock list. Commercial solicitors are required

to check the list and comply with it. The record indicates that the prohibition has been

violated only once, and in that case apparently inadvertently by a sight-impaired solicitor.

There is no reason to think that registered commercial solicitors would violate a provision

stating that they should not contact homes that are listed as not wanting commercial

5 solicitors after 7 PM. I would infer that banning all commercial solicitation after 7 PM,

which burdens solicitation of those who do not object to the practice (a substantial

additional constraint on the solicitors), is more burdensome than necessary to further the

City’s substantial interest in privacy. Thus, the reasoning that requires invalidating the 7

PM curfew in the present ordinance at the same time suggests a workable well-tailored

solution.