10th Circuit Blocks Castle Rock’s Solicitation Curfew

Case was the latest of several First Amendment challenges from pest control company, but the first to reach appellate court

The 10th Circuit Court of Appeals building in Denver, also known as the Byron White building.

Castle Rock residents might not like getting visits from door-to-door salespeople after dinner, but the town can’t enforce its 7 p.m. curfew for solicitors, the 10th Circuit Court of Appeals held in a May 15 decision finding the restriction unconstitutional.

The federal appellate court upheld a 2018 district court decision blocking a Castle Rock ordinance that prohibited commercial solicitors from visiting homes between the hours of 7 p.m. and 9 a.m. The 10th Circuit said the town failed to show the curfew “directly and materially” advances its substantial interests, and, therefore, the ordinance doesn’t stand up to First Amendment scrutiny.

Castle Rock’s town council passed the ordinance in 2008 with the stated purpose of protecting Castle Rock residents’ privacy and public safety. It also required commercial solicitors to register with the town clerk, pay a fee and follow various other rules. Another ordinance, passed in 2014, maintained the curfew and tightened requirements for solicitor registration and identification.

Aptive Environmental, a Utah-based pest control company, received permits in 2017 to sell its services door to door in Castle Rock. The company said its representatives obeyed the 7 p.m. curfew, but its sales attempts were “half as effective in Castle Rock as [they were] throughout the rest of the areas that didn’t require the curfew,” a claim borne out by Aptive’s data on average sales per hour in Castle Rock compared to neighboring municipalities in the Denver metro area. Aptive quickly ceased operations in the town. 

Aptive sued Castle Rock in 2017, alleging its curfew violated its First Amendment free speech rights, among other things, and asked for an injunction. The district court ruled in favor of Aptive and permanently enjoined Castle Rock from enforcing the curfew, and the town appealed the decision.

On appeal, the 10th Circuit applied the Central Hudson test for restrictions on commercial speech, which requires a regulation to directly and materially advance the government’s substantial interests and to be narrowly tailored. The court found that while the town’s interest in protecting the safety and privacy of residents is substantial, Castle Rock failed to show the curfew would directly help in alleviating crime or safety problems. 

According to the court, the town didn’t provide data linking commercial solicitation to criminal activity, and, during testimony, Castle Rock’s police chief couldn’t point to a specific instance of a commercial solicitor accused of crime or of someone posing as a solicitor in order to commit a crime. The police chief also testified that “most crimes occur outside of the nighttime hours,” contradicting the public safety rationale and one of the reasons given by the town council for the curfew, the opinion said. The court was similarly unconvinced by anecdotal evidence from town residents and officials and ultimately concluded that Castle Rock “has not demonstrated that the curfew directly advanced to a material degree its interests in public safety and privacy.”

Jeremy Fielding, a partner at Kirkland & Ellis in Dallas, represented Aptive in the lawsuit against Castle Rock. It’s one of over a dozen First Amendment suits he’s filed around the country on behalf of Aptive and another company, Moxie Pest Control, over curfews and other restrictions on commercial solicitation. 

“We’ve never lost one of these,” he said, adding that the Castle Rock case is the first to make it to the appellate level. Many more challenges to solicitation curfews have been resolved without litigation through cease and desist letters to city attorneys, Fielding added.  

Aptive is “very supportive of regulatory structures that are designed to protect and ensure the safety of residents and respect their privacy,” Fielding said. He recommended cities pursue those ends by adopting measures such as background checks, permitting requirements and do-not-knock registries for solicitors as alternatives to more onerous restrictions like curfews.

“What the curfew is saying is we’re just going to make the decision for all of the residents of our city that none of them want to receive solicitors after… seven o’clock,” he said. “Well Aptive knows that’s not true, because Aptive sells thousands and thousands of accounts every single day after seven o’clock, including all over the Denver metropolitan area.”

Fairfield and Woods director Todd Messenger filed an amicus brief in the case on behalf of the Colorado Municipal League and in support of Castle Rock. 

He said the 10th Circuit’s decision builds on a trend in case law in which “courts are more and more skeptical about local government ordinances, in particular, that implicate First Amendment rights.” 

“What the court did was it affirmed a trend in the law that the Central Hudson test has teeth,” Messenger added. 

Fielding echoed that interpretation. “I think what these cases stand for is the proposition that the Central Hudson test has real bite, and the courts are going to hold cities to that burden,” he said, adding that the “real acid test” for a community’s commitment to free speech is whether it tolerates speech deemed unpopular. “And I think solicitation certainly meets that definition there.”

Messenger said rather than creating “any major explosion in First Amendment law,” the decision is just the latest in a recent string of cases on judicial skepticism. “I think it did provide at least the notion that the courts are going to be looking deeper,” he said, “and that municipalities need to be finding the facts in support of the ordinances and preserving those records.”

Castle Rock residents who don’t want salespeople ringing their doorbells after 7:00 p.m. still have options, according to Fielding, including posting “No Soliciting” signs or signing up for the town’s “No Knock” list, which was created as part of the 2008 solicitation ordinance.

“Our problem has always been the curfew is using a missile to cure the proverbial mosquito,” he said. “Oftentimes— and Castle Rock really struggled with this, too — there isn’t a mosquito in the first place. They don’t have a crime problem with solicitors.”

—Jessica Folker

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