South Central Conference of Seventh-Day Adventists et al v. City of Alabaster, Alabama
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 3/19/13. (SAC )
2013 Mar-19 PM 02:48
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
OF SEVENTH DAY ADVENTISTS, et
CITY OF ALABASTER,
“Situations will arise where it will be difficult to determine whether a particular activity is
religious or purely commercial. The distinction at times is vital.” Murdock v. Pennsylvania, 319
U.S. 105, 110 (1943). The distinction between religious and commercial speech has never been
more central than in this case.
This matter comes before the court on the parties’ cross motions for summary judgment.
(Docs. 29 & 34). The individual Plaintiffs to this action are Seventh-Day Adventist “Literature
Evangelists” who canvass door-to-door in the summer in various pre-determined locations, and
Plaintiff South Central Conference of Seventh-Day Adventists (“SCCSDA”) represents the
interests of many Literature Evangelists who do the same across the country. The SCCSDA and
the individual Plaintiffs brought this action to challenge Defendant City of Alabaster’s Business
License and Solicitation Permit Ordinances, which require the Literature Evangelists, among
others, to obtain a license and permit before soliciting door-to-door in the City.
Both parties have filed motions for summary judgment claiming that no genuine issues of
material fact exist and that they are entitled to judgment as a matter of law. The court finds that
genuine issues of material fact do exist as to whether the Plaintiffs were engaging in commercial
or religious speech, and those genuine issues preclude the court from granting summary
judgment for either party. For the following reasons, the court will DENY summary judgment for
STATEMENT OF FACTS
Seventh-Day Adventist (“SDA”) church members communicate their religious views
through door-to-door witnessing, prayer and pastoral counseling, solicitation of contributions,
and the sale and free distribution of literature about the SDA faith. The Plaintiffs concede for
summary judgment purposes that the church members’ evangelistic activities at issue in this
lawsuit include the sale of books. (Doc. 30, at 8). The City of Alabaster (“the City”) contends
that the SDA canvassers at issue in this lawsuit were only selling books door-to-door and were
not ministering or proselytizing to its citizens. The issue of what exactly the Literature
Evangelists did when they approached homes in the City is hotly contested, and the evidence
before the court does nothing to clarify the contradictory narratives of what the City’s citizens
observed when they answered the door for a Literature Evangelist.
June 27, 2012 Citation
The Plaintiffs contend that they informed the City of the Literature Evangelists’ intended
canvassing during the summer of 2012 on at least two occasions: by a letter from Java Mattison,
a SCCSDA employee, to Alabaster Chief of Police Stanley Oliver (doc. 31-6, at 2) and by a letter
from Mr. DeCanal to City Clerk Ms. Massey (doc. 31-20, at 34). The City never responded to
either of these letters, and the Literature Evangelists began going door-to-door in the summer of
2012 without obtaining a Business License or Solicitation Permit. The City disputes that either of
these letters accurately described the Literature Evangelists’ activities within the City. The letter
from Ms. Mattison specifically said that the Plaintiffs would be engaging in “its annual door-todoor ministry” in Alabaster from May 20 through August 12, 2012 (doc. 31-4, at 1-2), but the
letter did not mention the sale of books.
On the night of June 27, 2012, the Alabaster Police Department received multiple calls
from citizens complaining of individuals going door-to-door selling books, often late into the
evening. The City contends that many of these citizens, particularly the elderly, were worried and
frightened by having individuals knock on their door late into the evening. At approximately 7:57
p.m. the Alabaster Police Department dispatched an officer to 1140 Tribe Trail in response to a
citizen’s complaint about an individual selling books door-to-door. When the Officer went to that
address, he did not see anyone but he patrolled the area until he located an individual matching
the description reported by the citizen.
Around 8:07 p.m., City of Alabaster Police Officer Steve Hataway stopped Stephen
Douglas, one of the Literature Evangelists who was canvassing door-to-door, at 1032 Arrowhead
Trail. The City contends that Mr. Douglas stated he worked for Family Education Services as
part of a scholarship program, and the parties agree that at some point in the conversation Mr.
Douglas told Officer Hataway that he was a spiritual evangelist. Police Officer Crocker joined
Officer Hataway at the scene, and Mr. DeCanal, Mr. Douglas’ team leader, was also called to the
scene. Mr. DeCanal stated that he was with a church organization, did not need a permit, and
operated on a donation basis. The Plaintiffs contend that Mr. DeCanal explained the evangelistic
purpose of his team’s action to the Officer, but the City disputes that Mr. DeCanal offered any
explanation. The Officer criminally charged Mr. Douglas with “selling books door-to-door
without a City of Alabaster permit” in violation of Ordinance No. 78-33. (Doc. 31-9, at 2). The
Officers told Mr. DeCanal that he could not sell books door-to-door without a permit and that if
he was found going door-to-door again without a business license or permit, he could go to jail.
The parties dispute whether the Officers told Mr. DeCanal that he could not minister or
Literature Evangelist Program
The Summer Student Missionary Program sponsored by SCCSDA and operated by
Family Health Education Services, an organization associated with SCCSDA, supports Literature
Evangelists, like the ones who went from door-to-door in Alabaster in the summer of 2012. In
the Program, SDA church members, typically college students, travel in teams to various predetermined locations and go door-to-door. The Plaintiffs claim that the Literature Evangelists
canvass door-to-door distributing books about the SDA faith, engaging in verbal evangelism, and
soliciting donations to support the Program and further its evangelistic purpose.
The City, however, contends that the Literature Evangelists do not minister or proselytize
and instead exclusively sell books door-to-door for a pre-determined price and that the books are
also offered for sale on the Family Health Education Services website for a pre-determined price.
The City contends that many of the books focus on non-religious matters and that the Literature
Evangelists describe and try to sell the books to citizens in non-religious terms.
Marsha Massey, a citizen of the City and City Clerk of the City of Alabaster, stated in a
sworn affidavit that when the Literature Evangelists approached her door to sell books, “There
was no discussion about religion and there were no offers of free material or requests for
donations to any church or religious institution.” (Doc. 39-1, at 5). Ms. Massey also testified
under oath at a hearing held by the court on July 18, 2012,1 about her interactions with Plaintiff
Joshua Desire, the Literature Evangelist that approached her door and sold her four books:
Q: When Mr. Desire came to your door, did you express any desire to talk
about religion with him or ask him what church he was from or you might
be interested in Bible stories or engage him in any conversation like that?
Ms. Massey: No.
Q: Did he offer any of that kind of conversation?
Ms. Massey: No, sir. . .
Q: As I understand it from your perspective, the young man was selling
magazines [sic] for his college fund; is that right?
Ms. Massey: Correct
Q: And is that the reason, the only reason that you bought the books?
Ms. Massey: Yes, sir.
Q: No mention of any religious principles, precepts, thoughts or ideas,
there was no preaching to you or anything of that sort, was there?
Ms. Massey: No, sir, He did not minister to me, testify to me in any way
Q: So no question it was a commercial transaction?
Ms. Massey: Not to me . . .
Ms. Massey: So then I spoke with the young man and that was the only
information that I received, was that he was selling the books in order to
help pay for his –as a matter of fact, he said he was going to a private
college and he was trying to save for college. So this was to help with his
college fund . . .
Q: Was there any mention at all about a church involvement or a religious,
anything about religion at all?
Ms. Massey: No, ma’am.
As discussed later, the court held a hearing on the City’s motion for a temporary
restraining order and a preliminary injunction, but the parties reached an agreement on the
motion for temporary restraining order, rendering the motion moot.
(Doc. 22, at 105, 110, 11, 112, and 113).
James Kelly, a citizen of the City, also stated in a sworn affidavit that the young female
who approached his door to sell books did not “minister, proselytize, or speak to [him] about
religion.” (Doc. 39-2, at 1). The City contends that the Literature Evangelists represented to the
citizens they were trying to sell books to raise money for their education. (Doc. 39-1, at 5).
At the hearing held before this court on July 18, 2012, Stephen Douglas, one of the
Literature Evangelists who went door-to-door in the City in the summer of 2012, testified that he
and the other students going door-to-door “weren’t selling books” and were “evangelists.” (Doc.
31-18, at 7, 24-25). Although at the hearing, Mr. Douglas also responded “No” to the questions,
“[W]ere there – other than the books, were there anything else that you offered for donations,
sold, or any other way dealt with the occupants of the house that you were going door-to-door
on?” and “[T]here were no records, there was no tape recordings, anything of that sort that you
presented?”(Doc. 22, at 8, 10). In an affidavit, Mr. Douglas also stated that in response to a
police officer’s questioning about what he was doing going door-to-door, he responded, “[W]e
were distributing free religious literature and asking for and accepting donations to support the
program.” (Doc. 8, at 14).
Nathanael DeCanal, the Literature Evangelist team leader for the City of Alabaster,
testified that his team does not “sell books.” (Doc. 31-18, at 29). At the hearing before this court
he testified that, “The reason why our group is involved in what we’re doing is to evangelize.”
(Doc. 22, at 34). Joshua Desire, the Literature Evangelist who visited Ms. Massey, testified in a
deposition that he and the other Literature Evangelists were not selling books but were leaving
them for donations with people and that when he approached people’s doors, he didn’t “want
people to see [him] as a salesman. [He] want[ed] people to see [him] as a missionary.” (Doc. 3119, at 45-46, 67).
The Plaintiffs allege that the Literature Evangelists only distribute books with a religious
message and content. (Excerpts at Docs. 32-3–32-13). Mr. Douglas testified in his deposition that
the books he presented when he went door-to-door were religiously based, with names like “Real
Heroes: Amazing Stories from the Bible” and “The Prince of Peace: the Amazing Story of
Jesus.” (Doc. 31-18, at 20-21). In his deposition, Joshua Desire recited a typical speech he would
make when going door-to-door, and the books he named and described were religiously based.
(Doc. 38-19, at 76-81). The City disputes that all of the books at issue contain religious material
and contend that, even if they do contain some religious content, the Literature Evangelists do
not promote the books as religious when they go door-to-door.
The Plaintiffs concede that three of the books “designed for family use” encourage the
reader and his or her family to follow aspects of the SDA Church’s fundamental beliefs regarding
Christian behavior with very few explicit evangelistic references. The Plaintiffs contend that
these books are distributed as an alternative method of evangelism to people who may not be
interested in explicit religious messages. (Excerpts at Docs. 32-15–32-16). While the City
contends that according to the Plaintiffs’ training materials, Literature Evangelists are trained to
focus their efforts on promoting cookbooks and health, the evidence shows that the training
materials simply provide the appropriate questions to attract a varied audience who may not
necessarily be interested in the SDA’s evangelistic literature. (Doc. 39-5).
The Plaintiffs claim that the Literature Evangelists’ door-to-door evangelism is “an
integral part of their following of Church doctrine and personal religious belief.” (Doc. 30, at 11).
The Plaintiffs also contend that monetary solicitations are integral to the religious message
presented by the Literature Evangelists because “the simple act of making a donation or a
purchase is often the first step toward religious conversion.” Id. The City disputes that the
Literature Evangelists’ activities have any impact on their religion or larger church community
because the Literature Evangelists simply sell books door-to-door and do not minister or
proselytize about their faith.
The City’s Ordinances
The City requires both a Business License and a Solicitation Permit before the Plaintiffs
may lawfully engage in what they characterize as “evangelistic activity” and what the City
characterizes as selling books door-to-door. (Doc. 30, at 12). On August 20, 2012, after this suit
was filed, the City repealed the Solicitation Permit Ordinance that was in effect at the time Mr.
Douglas was charged and has enacted a new Solicitation Permit Ordinance. The Business
License Ordinance, however, has not changed.
The Business License Ordinance
The Business License Ordinance makes it unlawful for any person to engage in “[a]ny
commercial or industrial activity or any enterprise, trade, profession, occupation, or livelihood
. . . whether or not carried on for gain or profit, and whether or not engaged in as a principal or as
an independent contractor, which is engaged in, or caused to be engaged in, within a
municipality” without first obtaining a Business License, providing the required information, and
paying a fee. (City of Alabaster Ordinance No. 07-007, § 2; Doc. 31-14, at 2).
The Business License application requires the disclosure of some personal information,
and failure to provide the information allows the City to assess taxes based upon “the most
accurate and complete information reasonably obtainable.” (Ordinance No. 07-007, § 8; Doc. 3114, at 7). In cases of non-payment of the licensing fee, the City may place a lien on all real and
personal property of the business to account for the tax liability. (Ordinance No. 07-007, § 13;
Doc. 31-14, at 10). Under the Ordinance, the City can also inspect a business’ premises and
records to determine the proper license classification and/or fee and/or tax. (Ordinance No. 07007, § 9; Doc. 31-14, at 8).
The City applies the Business License Ordinance to all sales, including those by
charitable and non-profit organizations, within the City, except those exempted by state statute or
ordinance. The City does not exempt the Plaintiffs from the Business License requirement, and
the Plaintiffs’ activities are subject to taxation and fees under Schedule A of the Business License
The Business License must be renewed annually and violations of the Ordinance are
punishable with the imposition of a fine or imprisonment for willful violations. (Ordinance No.
07-007, § 6 Doc. 31-14, at 6). Violations of the Ordinance are commonly prosecuted by the City.
The Plaintiffs contend that the City has “unfettered discretion to determine whether to grant or
deny a Business License.” (Doc. 30, at 15). The City disputes this characterization of its
discretion and points to the procedures for denial of an application for a business license
contained in the Ordinance. (Ordinance No. 07-007, § 18; Doc. 31-14, at 11). The first available
appeal of the denial of an application for a business license is to the “municipal governing body.”
The Amended Solicitation Permit Ordinance
The Amended Solicitation Permit Ordinance allows for two alternative permits: one for
“for profit sales” and one for “charitable solicitations.” (City of Alabaster Ordinance No. 12008, § 8, 18; Doc. 39-8, at 6, 8). “For profit sales” are defined as “any Sale, as defined herein,
offered or performed for the pecuniary benefit of any Person not affiliated with a Charitable
Organization,” and “Sale” is defined as “the exchange of goods or services for an amount of
money or its equivalent.” (City of Alabaster Ordinance No. 12-008, § 3; Doc. 39-8, at 3). The
definition of “Charitable Organization” includes “a person or nonprofit corporation who is or
holds himself or herself out to be established for a . . . religious purpose.” (City of Alabaster
Ordinance No. 12-008, § 3; Doc. 39-8, at 2).
“Charitable or Religious Purposes” are defined as “[a]ny charitable, benevolent,
philanthropic, humane, patriotic, scientific, artistic, public health, social welfare, advocacy,
environmental, conservation, civic, religious or other eleemosynary purpose. . . .” (City of
Alabaster Ordinance No. 12-008, § 3; Doc. 39-8, at 2-3). Finally, “solicit or solicitation” is
[T]he request directly or indirectly of money, credit, property, financial assistance
or other things of value on the plea of representation that such money, credit,
property, financial assistance or other things of value will be used for a charitable
or religious purpose as those purposes are defined in this article. Those words
shall also mean and include the following methods of securing money, credit,
property, financial assistance, or other thing of value on the plea or representation
that it will be used for a charitable or religious purpose as herein defined:
(1) Any oral or written request; . . .
(4) The sale of, offer or attempt to sell, any advertisement, advertising
space, book, card, chance, coupon, device, magazine, membership,
merchandise, subscription, ticket or other thing in connection with which
any appeal is made for any charitable or religious purpose or where the
name of any charitable or religious person is used or referred to in any
such appeal as an inducement or reason for making any such sale, or when
or where in connection with any such sale, any statement is made that the
whole or any part of the proceeds from any such sale will go or be donated
to any charitable or religious purpose.
(City of Alabaster Ordinance No. 12-008, § 3; Doc. 39-8, at 4).
The Ordinance carves out some specific exemptions for organizations that do not have to
obtain a charitable solicitation certificate: “1) any established person organized and operated
exclusively for religious purposes and not operated for the pecuniary profit of any person, if the
solicitations by such person are conducted among the members thereof by other members or
officers thereof voluntarily, or if the solicitations are in the form of collections or contributions at
the regular assemblies of any such established person; . . . 6) religious persons advancing a
religious message, provided that such persons is not seeking, nor requesting donations,
contributions, or sales. . . .” (City of Alabaster Ordinance No. 12-008, § 18; Doc. 39-8, at 10).
The Plaintiffs contend that they do not satisfy any of these content-based exceptions whose
speech is not subject to the solicitation permit requirement.
The Plaintiffs contend that the City exercises discretion to determine which type of permit
applies, but the City argues that the definitions in the Ordinance preclude any discretion in
deciding which type of permit applies to a particular applicant. The Plaintiffs also argue that the
City intends to enforce the Ordinance against its activities, but the City’s representative stated
that the City intended to enforce the Ordinance in the future, not that it specifically would or
would not enforce the Ordinance against the Plaintiffs. The Plaintiffs contend that under the
Ordinance, the City requires a permit before the Plaintiffs can engage in any protected religious
speech anywhere within the City, but the City disputes this contention and argues that the
Ordinance only requires a certificate for door-to-door sales or solicitation as defined in the
Ordinance. The Plaintiffs contend that under the Ordinance, the door-to-door distribution of free
literature would require a charitable solicitation certificate, but the City argues that the Ordinance
only requires a certificate to solicit contributions or donations or to make sales.
The Ordinance imposes substantial informational requirements upon applicants, who
must fill out the application under oath. (City of Alabaster Ordinance No. 12-008, § 14; 18; Doc.
39-8, at 6, 8-9). For-profit sales certificate applicants must provide twelve categories of
information, and applicants for charitable solicitation certificates must provide seventeen
categories of information. Both types of permits require the applicant to furnish “[s]uch other
information as may be submitted to the revenue department in order to determine the kind and
character of the proposed solicitation.” Id. The Plaintiffs argue that this discretion retained by the
City has been exercised in the past to require, among other things, descriptions of all vehicles
used for solicitation in the Program. The Ordinance requires a $50 application fee for for-profit
sales certificates, but “no cost” for charitable solicitation certificates. The certificate is valid for
six months after its issuance date and can be renewed by filing a new application.
The Ordinance allows the City the discretion to determine whether the applicant seeking
to obtain a certificate is actually engaged in a charitable purpose and to investigate “all books,
records or other information reasonably necessary to enable the revenue department to fully and
fairly inform the public of all facts necessary to a full understanding by the public of the work
and methods of operation” of the solicitors and their sponsoring organization. (City of Alabaster
Ordinance No. 12-008, § 19; Doc. 39-8, at 10). The City contends that the Ordinance defines
“charitable” and “charitable organization” so any discretion retained by the City is simply to
determine whether an applicant’s activities fall within those definitions. The Plaintiffs point to
the testimony of Rebecca Byrd, a City employee, who stated that people reading the Ordinance
are unable to determine what information actually needs to be included in an application and that
the City sometimes imposes additional informational requirements upon applicants. (Doc. 30-21,
at 207-08; 267-68).
Under the Ordinance, the City must issue the applicant a certificate within ten days of
application and any denial “shall be in writing, and shall set forth the reasons therefor.” (City of
Alabaster Ordinance No. 12-008, § 18; Doc. 39-8, at 9). Any denial may be appealed to the City
Council by written statement within ten days of the issuance of the denial. (City of Alabaster
Ordinance No. 12-008, § 18; Doc. 39-8, at 10). The appeal will be heard at the regularly
scheduled City Council meeting within twenty days of the notice of appeal, and a decision will be
made at the City Council meeting. Id. The Plaintiffs claim that the Ordinance provides no
remedy if the permit is not issued but not denied outright either and that the Ordinance provides
no guidance on the appeal. The Plaintiffs also contend that the Ordinance does not contain any
mechanism for judicial review of the denial of an application and, further, no time limits to
assure timely judicial review of a denial. The City concedes that the Ordinance does not
specifically provide a mechanism for judicial review but contends that the Ordinance does not
prohibit or inhibit an applicant from seeking judicial review. The parties agree that the Ordinance
does not permit the conduct to proceed in the absence of a judicial determination or pending a
The Plaintiffs claim that the City could not identify any relation between the information
required by the applications and any legitimate government purpose, but the City cites the
purposes as laid out in the Ordinance as its legitimate government purposes for enacting the
Ordinance: “The entering into residential property by peddlers, canvassers, solicitors, and
itinerant vendors of goods and services is a matter of public concern, necessitating the reasonable
regulations of this chapter for such conduct for the preservation of the privacy and safety of the
citizens of the city, alleviate public annoyance and alarm, and the detection and prevention of
fraud . . . and charitable solicitations as fraud . . . .” (City of Alabaster Ordinance No. 12-008, §
2; Doc. 39-8, at 1).
The Plaintiffs claim that the Ordinance requires a bond to be posted before any certificate
holder may engage in any solicitation or sales, but the City disputes this contention because the
sections the Plaintiffs refer to only apply to a “peddler, hawker, itinerant vendor or solicitor . . .
[engaged] in the business of selling tangible personal property at retail on a public street.” (City
of Alabaster Ordinance No. 12-008, § 16; Doc. 39-8, at 7). The definition of “itinerant or
transient vendor or peddler” explicitly excludes “individuals going in or upon private property
for religious, charitable, governmental, educational, or political purposes,” and thus this bond
requirement does not apply to the Plaintiffs’ activities. (City of Alabaster Ordinance No. 12-008,
§ 13; Doc. 39-8, at 15).
On July 13, 2012, the Plaintiffs filed their Complaint against the City and filed a motion
for a temporary restraining order and a preliminary injunction prohibiting the City from enforcing
its Ordinance against the Plaintiffs. (Docs. 1 & 2). The court held a hearing on July 18, 2012, and
the parties reached an agreement on the motion for a temporary restraining order, rendering the
motion moot. (Doc. 13). The City agreed not to require a Business License or Solicitation Permit
from the Plaintiffs until this court issued a ruling on the constitutionality of the Ordinances. Id.
On November 21, 2012, the Plaintiffs filed an Amended Complaint addressing the City’s
Amended Solicitation Ordinance. (Doc. 25). The Complaint seeks injunctive relief enjoining the
City and its agents from enforcing the Ordinances against the Plaintiffs or other participants in
the Summer Student Missionary Program and a declaratory judgment that the Ordinances are
unconstitutional on their face and as applied. Id. The City filed a motion to dismiss for lack of
standing based on the Amended Complaint. (Doc. 27). On March 5, 2013, court denied the
motion to dismiss and ruled that the Plaintiffs do have standing to challenge the Amended
Ordinance. (Doc. 52). After engaging in expedited discovery, the parties filed cross-motions for
summary judgment, and the court considers both motions now.
STANDARD OF REVIEW
Summary judgment allows a trial court to decide cases when no genuine issues of
material fact are present and the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56. When a district court reviews a motion for summary judgment, it must
determine two things: (1) whether any genuine issues of material fact exist; and if not, (2)
whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56©.
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56). The moving party can meet this burden by offering
evidence showing no dispute of material fact or by showing that the non-moving party’s evidence
fails to prove an essential element of its case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322–23. Rule 56, however, does not require “that the moving party support
its motion with affidavits or other similar materials negating the opponent’s claim.” Id.
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not
significant unless the disagreement presents a “genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986) In responding to a motion for summary
judgment, the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The non-moving party must “go beyond the pleadings and by [its]
own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’
designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324
(quoting Fed. R. Civ. P. 56(e)) (emphasis added); see also Advisory Committee Note to 1963
Amendment of Fed. R. Civ. P. 56(e) (“The very mission of summary judgment procedure is to
pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
trial.”). The moving party need not present evidence in a form admissible at trial; “however, he
may not merely rest on [the] pleadings.” Celotex, 477 U.S. at 324. If the evidence is “merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249–50 (citations omitted).
In reviewing the evidence submitted, the court must “view the evidence presented
through the prism of the substantive evidentiary burden,” to determine whether the nonmoving
party presented sufficient evidence on which a jury could reasonably find for the nonmoving
party. Anderson, 477 U.S. at 254; Cottle v. Storer Commc’n, Inc., 849 F.2d 570, 575 (11th Cir.
1988). The court must refrain from weighing the evidence and making credibility
determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S.
at 255; Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir. 2000); Graham v.
State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). “Even if a district court
‘believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant
summary judgment on the basis of credibility choices.’” Feliciano v. City of Miami Beach, ____
F.3d ____, 2013 WL 425445, at *16 (11th Cir. Feb. 5, 2013) (citing Miller v. Harget, 458 F.3d
1251, 1256 (11th Cir. 2006)). The court should not disregard self-serving statements made in
sworn testimony simply because they are self-serving at the summary judgment stage, and if the
self-serving statements create a genuine issue of material fact, the court should deny summary
judgment on that basis. Id. * 18.
Furthermore, all evidence and inferences drawn from the underlying facts must be viewed
in the light most favorable to the non-moving party. Graham, 193 F.3d at 1282. The nonmoving
party “need not be given the benefit of every inference but only of every reasonable inference.”
Id. The evidence of the non-moving party “is to be believed and all justifiable inferences are to
be drawn in [its] favor.” Anderson, 477 U.S. at 255. After both parties have addressed the
motion for summary judgment, the court must grant the motion only if no genuine issues of
material fact exist and if the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
On cross-motions for summary judgment, “a court may discover questions of material
fact even though both parties . . . have asserted that no such questions exist.” Griffis v. Delta
Family-Care Disability, 723 F.2d 822, 824 (11th Cir. 1984) (citing Donovan v. District Lodge
No. 100, International Ass'n of Machinists, 666 F.2d 883, 886-87 (5th Cir.1982); Wright and
Miller, Federal Practice and Procedure: Civil, § 2720). “[B]efore the court can consider the legal
issues raised by the parties on cross-motions for summary judgment, it must have no doubt as to
the relevant facts that are beyond dispute.”Griffis, 723 F.2d at 824.
Although both parties raise other issues in their respective briefs, the validity of the
Ordinances depends on whether the City can constitutionally restrict the Plaintiffs’ speech. The
parties’ other arguments about the constitutionality of the specific aspects of the Ordinances are
irrelevant if the Ordinances are unconstitutional in their entirety. Therefore, the court first
addresses the validity of the Ordinances under the First Amendment. To determine whether the
Ordinances are valid restrictions on First Amendment speech, the court must first determine
whether the speech at issue is commercial or non-commercial because “the Constitution accords
less protection to commercial speech than to other constitutionally safeguarded forms of
expression.” Bolger v. Youngs Drugs Prods. Corp., 463 U.S. 60, 64-65 (1983).
In Board of Trustees of State University of New York v. Fox, the Supreme Court
confronted the question of whether Tupperware parties held in University dorms were
commercial speech. 492 U.S. 469 (1989). In determining whether the speech was commercial,
the Court first asked whether the speech “‘propose[d] a commercial transaction.’” Id. at 473
(quoting Va. Pharm. Board v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976)).
In determining that the Tupperware parties clearly met this test, the Court then asked whether the
other aspects of the parties, such as lessons in financial responsibility and efficient ways to run a
home, dictated that the commercial speech was inextricably intertwined with the pure speech so
that the entire transaction needed to be classified as noncommercial. Id. at 474. The Court stated
that “communications can ‘constitute commercial speech notwithstanding the fact that they
contain discussions of important public issues. . . .’” Id. at 475 (quoting Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 67-68 (1983)). The Court ultimately determined that the home
economics elements of the Tupperware parties “no more converted [the] presentations into
educational speech, than opening sales presentations with a prayer or a Pledge of Allegiance
would convert them into religious or political speech.” Fox, 492 U.S. at 474-75.
In Bolger, the Court considered whether informational pamphlets promoting
prophylactics and the defendant’s products in particular were commercial speech. Bolger, 463
U.S. at 62. The Court concluded that the presence of three factors provided strong support for the
District Court’s conclusion that the pamphlets were commercial speech: (1) the speech was a
form of advertisement; (2) the speech referenced a specific product; and (3) the defendant had an
economic motivation for distributing the pamphlets. Id. at 66-67. The court determined that the
pamphlets were commercial speech “notwithstanding the fact that they contain[ed] discussion of
important public issues.” Id. at 67.
The Supreme Court has also faced the issue of determining what is commercial speech in
the religious context. In Murdock v. Pennsylvania, the city of Jeanette, Pennsylvania, enacted an
Ordinance requiring “all persons canvassing for or soliciting within said Borough, orders for
goods, paintings, pictures, wares, or merchandise of any kind, or persons delivering such articles
under orders so obtained or solicited, shall be required to procure from the burgess a license to
transact said business and shall pay to the Treasurer of said Borough therefore the following
sums . . . .” Murdock v. Pennsylvania, 319 U.S. 105, 106 (1943). The petitioners in that case
were Jehovah’s Witnesses who canvassed door-to-door “distributing literature, . . . soliciting
people to purchase certain religious books and pamphlets,” and playing a phonograph, which
expounded their views on religion. Id. at 106-107. “It was [the Jehovah’s Witnesses’] practice
in making these solicitations to request a ‘contribution’ of twenty-five cents for each of the books
and five cents for each of the pamphlets but to accept lesser sums or even donate the volumes in
case an interested person was without funds.” Id. The petitioners did not obtain a license and
were subsequently convicted and fined for a violation of the ordinance for selling books door-todoor. Id.
The Court noted that Jehovah’s Witnesses “spread their interpretations of the Bible and
their religious beliefs largely through the hand distribution of literature by full or part time
workers” and that “hand distribution of religious tracts is an age-old form of missionary
evangelism—as old as the history of printing presses.” Id. at 108. The Court described the
petitioners’ activities as “more than preaching . . . more than distribution of religious literature. It
is a combination of both. Its purpose is as evangelical as the revival meeting.” Id. at 109
(emphasis added). The Court discussed what makes otherwise religious speech commercial in
[T]he state can prohibit the use of the street for the distribution of purely commercial
leaflets, even though such leaflets may have a civil appeal, or a moral platitude
appended. They may not prohibit the distribution of handbills in the pursuit of a
clearly religious activity merely because the handbills invite the purchase of books
for the improved understanding of the religion or because the handbills seek in a
lawful fashion to promote the raising of funds for religious purposes. But the mere
fact that the religious literature is ‘sold’ by itinerant preachers rather than ‘donated’
does not transform evangelism into a commercial enterprise.
Id. at 111. (internal quotations omitted) (emphasis added). The Court held that the petitioner’s
speech was not commercial and that the city’s license tax was a “restriction of the free exercise
of those freedoms which are protected by the First Amendment.” Id. at 114.
Similarly, in Follett v. Town of McCormick, S.C., the town enacted an ordinance that
required individuals to pay for a license to sell books within its town limits. 321 U.S. 573, 574
(1944). The appellant, an ordained Jehovah’s Witness minister, went door-to-door “distributing
certain books” and earned his livelihood from the money he received. The minister claimed that
he merely offered the books for a donation along with his evangelizing, but evidence showed that
he offered to sell and did sell the books door-to-door. Id. He did not obtain a license and was
found guilty of violating the ordinance. The Court ruled that although the preacher in this
instance was not itinerant, as in Murdock, the same holding applied. Because he was preaching
door-to-door, requiring the minister to obtain a license for his religious and non-commercial
speech was unconstitutional. Id. at 577-78.
Most recently in Watchtower Bible & Tract Society of New York, Inc. v. Village of
Stratton, the Court addressed whether “a municipal ordinance that requires one to obtain a permit
prior to engaging in the door-to-door advocacy of a political cause and to display upon demand
the permit, which contains one’s name, violates the First Amendment protection accorded to
anonymous pamphleteering or discourse.” 536 U.S. 150, 160 (2002). The petitioners in this case
were Jehovah’s Witnesses who “offer religious literature without cost to anyone interested in
reading it [and] . . . do not solicit contributions or orders for the sale of merchandise or services,
but . . . do accept donations.” Id. at 153. The petitioners did not apply for a permit under the
Village’s ordinance requiring canvassers to obtain a permit before going on private residential
property for the purpose of promoting any cause. Id. at 154.
The Court noted its fifty-year history of invalidating restrictions on door-to-door
canvassing and pamphleteering, cases mainly involving Jehovah’s Witnesses because door-to-
door canvassing is mandated by their religion. Id. at 161. The ordinance at issue in that case was
broadly applied to all canvassers from Camp Fire Girls and Jehovah’s Witnesses to political
candidates and trick-or-treaters. Id. at 165. The Court stated that “Had [the ordinance] been
construed to apply only to commercial activities and the solicitation of funds, arguably the
ordinance would have been tailored to the Village’s interest in protecting the privacy of its
residents and preventing fraud.” Id. at 165. Thus, the issue was whether the ordinance was aimed
at all speech or commercial speech. The Court determined that the ordinance, as broadly
construed to apply to all speech, was unconstitutional. Id. at 169.
In this case, the facts before the court do not place this controversy squarely in line with
any of the above Supreme Court cases. The evidence and the parties’ characterization of the
evidence create very contrasting pictures of what exactly happened when the Plaintiffs canvassed
door-to-door in the City during the summer of 2012. Because the court cannot make credibility
determinations, even when exclusively self-serving evidence is at issue, the court finds it
impossible to determine whether the speech at issue rose to the higher level of protection
afforded non-commercial, or religious speech.
In all of the Supreme Court cases cited above, the religious organizations canvassing
door-to-door were indisputably engaged in some type of religious speech by ministering or
proselyting. In Murdock, the canvassers played a phonograph with a religious message and in
Follett, the ordained minister who went door-to-door sold literature but also preached. Here, no
conclusive evidence exists that the Literature Evangelists preached or evangelized or made any
mention of religion when they went door-to-door; nor does any conclusive evidence exist that
they absolutely never evangelized or proselytized when going door-to-door. The parties do not
dispute that the Literature Evangelists sold books, but what the court cannot determine is whether
that commercial activity was intertwined with religious speech as in Murdock. Without knowing
whether any evangelizing or religious speech actually took place, the court cannot determine
whether the speech was religious or commercial and thus cannot determine the validity of the
Ordinances regulating that speech.
The cross-motions for summary judgment create an interesting procedural puzzle in this
case. If the court takes the facts in the light most favorable to the Plaintiffs on the City’s motion
for summary judgment by assuming that the Literature Evangelists were evangelizing and selling
books, then the court cannot grant summary judgment for the City because the Plaintiffs’ speech
would be religious in nature, and the Ordinances would be invalid as restricting First
Amendment protected speech invalid under Murdock and Follett.
However, if the court takes the facts in the light most favorable to the City on the
Plaintiffs’ motion for summary judgment by assuming that the Literature Evangelists were
exclusively selling books and not evangelizing in any way, then the court cannot grant summary
judgment for the Plaintiffs because the Plaintiffs’ speech would be commercial in nature, and the
City could presumably regulate it under the Fox analysis. As the Supreme Court implied in
Village of Stratton, if a municipality enacts an ordinance that regulates only commercial
activities, then it is arguably narrowly tailored to its interest in protecting its citizens from
fraudulent door-to-door sales. Village of Stratton, 536 U.S. at 165. The court will engage in a
brief and cursory analysis of the City’s Ordinances as valid regulations of commercial speech for
the purpose of illustrating why the court cannot grant summary judgment for the Plaintiffs.
Once the court determines that the speech at issue is commercial in nature, then the
ordinance regulating the speech is subject to a less stringent standard than if the speech at issue
were religious or otherwise not commercial. The Supreme Court described the standard used to
determine whether an ordinance regulating commercial speech is constitutional:
At the outset, we must determine whether the expression is protected by the First
Amendment. For commercial speech to come within that provision, it at least must
concern lawful activity and not be misleading. Next, we ask whether the asserted
governmental interest is substantial. If both inquiries yield positive answers, we must
determine whether the regulation directly advances the governmental interest
asserted, and whether it is not more extensive than is necessary to serve that interest.
Fox, 492 U.S. at 475 (quoting Central Hudson Gas & Electric Corp. v. Pub. Service Comm’n of
New York, 447 U.S. 557, 566 (1980)). In this case, the Plaintiffs’ speech proposes a lawful
transaction—selling books—and is not misleading, and thus is entitled to First Amendment
Next, the court must determine whether the City has a substantial interest in regulating
door-to-door sales and solicitations within its city limits. The City explicitly lists its
justifications for the Ordinance in the Ordinance itself: “The entering into residential property by
peddlers, canvassers, solicitors, and itinerant vendors of goods and services is a matter of public
concern, necessitating the reasonable regulations of this chapter for such conduct for the
preservation of the privacy and safety of the citizens of the city, alleviate public annoyance and
alarm, and the detection and prevention of fraud . . . and charitable solicitations as fraud . . . .”
(Doc. 39-8, at 1). In Church of Scientology Flag Service Org., Inc. v. City of Clearwater, the
Eleventh Circuit stated that the municipality had a compelling interest in “‘protecting its citizens
from abusive practices in the solicitation of funds for charity.’” 2 F.3d 1514, 1544 (1993)
(quoting Larson v. Valente, 456 U.S. 228, 247 (1982)). If the Eleventh Circuit held that the
state’s interest was compelling in that case, certainly the same interest qualifies as substantial in
the case at hand.
Finally, the court must determine whether the government’s regulation on commercial
speech is “no more broad or no more expansive than ‘necessary’ to serve its substantial interest.”
Fox, 492 U.S. at 476 (quoting Central Hudson, 447 U.S. at 566)). The Court elaborated on this
standard by saying
In sum, while we have insisted that the free flow of commercial information is
valuable enough to justify imposing on would-be regulators the costs of
distinguishing . . . the harmless from the harmful, we have not gone so far as to
impose upon them the burden of demonstrating that the distinguishment is 100%
complete, or that the manner of restriction is absolutely the least severe that will
achieve the desired end. What our decisions require is a fit between the legislature’s
ends and the means chosen to accomplish those ends—a fit that is not necessarily
perfect, but reasonable; that represents not necessarily the single best disposition but
one whose scope is in proportion to the interest served; that employs not necessarily
the least restrictive means but, as we have put it in the other contexts discussed
above, a means narrowly tailored to achieve the desired objective. Within those
bounds we leave it to governmental decisionmakers to judge what manner of
regulation may best be employed.
Fox, 492 U.S. at 480 (internal quotations and citations omitted) (emphasis added).
Under this approach, the City’s Amended Ordinance should be upheld as narrowly
tailored to achieve the objectives it specifically lays out in the Ordinance itself. The City attempts
to reasonably regulate the door-to-door solicitation of its citizens and tax the door-to-door
commercial enterprises who benefit from the business of its citizens, while exempting purely
religious speech made by individuals or groups who are not seeking to solicit donations.
If the court took the facts in the light most favorable to the City and considered the
Literature Evangelists’ speech commercial for purposes of the Plaintiffs’ motion for summary
judgment, the court cannot grant summary judgment for the Plaintiffs because the Ordinance is
valid as a reasonable regulation of commercial speech. Because even when taking the facts in the
light most favorable to the non-moving party, neither motion for summary judgment can be
granted as a matter of law, the court cannot grant either parties’ motion.
All one must do is read the Literature Evangelists’ and City citizens’ divergent
explanations of what occurred when the citizens purchased books from the Literature Evangelists
to realize that the two distinct narratives that emerge cannot be reconciled. Because the court
cannot resolve these differing accounts of the Plaintiffs’ activities without making some
credibility and factual determinations, the court must deny summary judgment for both parties.
Because genuine issues of material fact exist as to whether the Plaintiffs were engaging in
commercial or religious/ non-commercial speech, the court must DENY the parties’ motions for
summary judgment and will simultaneously enter an order to that effect.
DONE and ORDERED this 19th day of March, 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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