Recently, the U.S. District Court for the District of Puerto Rico, in Watchtower Bible Tract Society of New York v. Municipality of Ponce, decided that streets built and maintained by a small, gated community and never deeded to the local municipality, were a public forum. The court prohibited the neighborhood and its guards from excluding the plaintiffs, Jehovah’s Witnesses, and ordered the municipality to affirmatively ensure that the plaintiffs’ constitutional rights would be protected.
Prior to its decision, the district court certified a question to the Puerto Rico Supreme Court, asking if private roads could exist under the constitution and laws of Puerto Rico. The Supreme Court determined that private residential roads could exist in Puerto Rico, but that the existence of private roads did not “invalidate existing statutes, case law and legal presumptions.”
Based on this conclusion, the federal court determined that the roads in controversy were public because they were dedicated to a public purpose. The court noted that even though the roads were privately owned and maintained, all of the permitting and approvals that allowed the development of the neighborhood was done under laws requiring the local municipality to serve the public and the approved development plan contemplated dedicating the streets to the municipality. In fact, until this litigation began in 2012, “the residents of [the neighborhood] went above and beyond to complete the last steps of the transfer of their streets to the [m]unicipality.” According to the court, all of this evidence pointed to a public purpose.
Because it found that the roads were public in purpose, the district court concluded that they constituted a public forum where restrictions on First Amendment rights are subject to heightened scrutiny. Without further analysis, the court said that although it has become “common for [neighborhoods] and some of their residents to believe it is unacceptable to have non-residents walk the streets within their gated communities,” “[t]his constitutes a discriminatory pattern that our Constitution forbids.” The court announced that it would not allow the First Amendment to be “held hostage by the whim of residents associations within gated communities.”
This case is merely the latest in a long battle over access rights for Jehovah’s Witnesses under Puerto Rico’s Controlled Access Law of 1987. While this case represents a departure from case law holding that private streets in U.S. states are private property and thus not subject to First Amendment limitations, the decision is reflective of the unique intersection of Puerto Rico law and the First Amendment.
Watchtower Bible Tract Soc’y of New York, Inc. v. Municipality of Ponce, No. 04-1452 (GAG), 2016 WL 3688428, at *1 (D.P.R. July 6, 2016).
This post was authored by Otten Johnson summer law clerk Matt Bender. Matt is a rising third-year law student at the University of Denver Sturm College of Law.