Tenth Circuit Holds Curfew on Door-to-Door Commercial Solicitors Violation of First Amendment

On May 15, the Tenth Circuit Court of Appeals struck down a 7:00 p.m. curfew for door-to-door commercial solicitors because it did not survive First Amendment scrutiny under the Central Hudson test, affirming the district court’s judgment, which concluded that Castle Rock has failed to demonstrate that the curfew advances its substantial interests in a direct and material way. CML filed an amicus brief in support of Castle Rock in this case.

The Town of Castle Rock adopted ordinances in 2008 and 2014 which enacted a curfew that prevented commercial solicitors from entering private property between 7:00 p.m. and 9:00 a.m. In formulating the 2008 ordinance, the Town relied upon research on door-to-door solicitation ordinances collected by CML, as well as research on like-ordinances from neighboring municipalities, data collected from official reports and informal complaints made to the Town’s police department concerning door-to-door solicitation, anecdotal evidence, personal experiences of council members, and community sentiment regarding privacy and safety concerns. The 2014 ordinance primarily clarified and amplified certain definitions; no fact-based data was utilized in forming the 2014 ordinance.

In 2017 Aptive secured the proper permitting to conduct door-to-door sales in Castle Rock and instructed their sales team to comply with the Town’s curfew. Aptive’s sales data supports that in neighboring communities, some of its highest rates of interaction occurred after 7:00 p.m. and that it made fewer than half the average sales per hour in Castle Rock than it did elsewhere. Presuming their sales were negatively impacted by the 7:00 p.m. curfew, Aptive ceased operations in Castle Rock.

Aptive then filed suit alleging that the curfew unconstitutionally burdened its First Amendment right to engage in door-to-door solicitation. Interestingly, in overcoming challenges made to their standing, the Court held standing could be proven though the data-backed evidence of their sales history and success in neighboring communities.

The Court’s decision in this case extends far beyond curfews and informs our understanding of the quantum of “proof” a municipality must demonstrate that an ordinance regulating commercial speech will serve its ostensible purpose. Here, even in striking down this particular ordinance, the Court reaffirmed that municipal regulation of door-to-door solicitation in the interest of deterring crime and preserving privacy is a valid "substantial interest," however, municipalities must take care in formulating this type of ordinance.

First, any data utilized must directly correlate to the municipality’s purported interest, and moreover, a discernable change in that data, before and after enactment, will serve to bolster the assertion. Next, testimonial and anecdotal evidence must be supported by data and evidentiary showings must be concrete and non-speculative. Additionally, evidence of real harm stemming from prefatory statements must have a demonstrable, factual basis. Further, citing similar ordinances utilized in neighboring communities is insufficient as they could grounded in inadequate common-sense and anecdotal evidence. However, calling on detailed studies performed by those municipalities could be acceptable. A municipality may also provide sufficient proof through studies conducted in their city, evidence-based findings, and survey results.