A few years ago, Joshua Herridge was waiting outside of a ZZ Top concert in Montgomery County, Texas, but unlike most people gathering near the event hall, he was not there to see the band. He was spreading his religious message by preaching, holding signs, and leafletting near a right-of-way outside of the large pavilion. Herridge was eventually approached by officers and asked to relocate his activities to a corner across the street.

Herridge brought suit against Montgomery County and the County’s Fire Marshal in the U.S. District Court for the Southern District of Texas, claiming that the County’s attempt to relocate him from his street pulpit violated his rights under the First and Fourteenth Amendments. The district court found for the County, holding that Montgomery had a significant interest in removing people engaging in activities which entice people to stop and listen during crowded events, since these holdups can cause bottlenecks in foot traffic which redirect pedestrians into active roadways and increase their likelihood of being struck by cars. Because the County limited its policy to a single block, provided an alternative space for preaching across the street, and only enforced the policy during large events, the district court found that the County’s policy was narrowly tailored. Herridge appealed to the Fifth Circuit.

In a two-paragraph opinion, the Fifth Circuit affirmed the district court’s holding to the extent it allowed the County to prohibit Herridge from orally preaching in his spot outside of the crowded event center. However, since Montgomery also intended that its “unwritten policy” be enforced to prevent Herridge from holding signs and leafletting in that location, the Fifth Circuit vacated the district court’s order to the extent it allowed the County to stop the plaintiff from leafletting and holding signs outside of the pavilion, and remanded those issues back to the district court for a detailed analysis of whether a ban on leafletting and holding signs outside of the pavilion was also necessary to guard the publics’ safety. In a concurrence by Judge Ho, Ho noted that a complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately tailored evil.

In a separate concurrence by Judge Graves, Graves considered and rejected the parallels drawn by Herridge’s counsel to the Sixth Circuit’s 2011 decision Saieg v. The City of Dearborne, which struck down a prohibition on leafletting in a crowded area. Judge Graves differentiated Saieg by touching on three important points of comparison. First, in Saieg, the City restricted the act of leafletting in the interest of public safety, but permitted the arguably more disruptive operations of street vendors working crowded events; Montgomery, on the other hand, prohibited any pedestrian activity during major events at the pavilion, including those of vendors, booths, and leafletters alike. Second, in Saieg, the City’s policy was not narrowly tailored, as the City claimed to prohibit leafletting in order to address a previously uncited and tenuously related interest in channeling the flow of vehicular traffic. Montgomery’s policy, on the other hand, aligned with its well-documented interest in decreasing pedestrian congestion during large events to prevent the spillage of pedestrians into surrounding streets and motor traffic. Finally, Graves notes that in Saieg, the Sixth Circuit concluded that a policy permitting leafletting should be considered from the prospective of allowing everyone, not just one person, to leaflet; to the extent that Montgomery acknowledged it would not “remove someone waiting for a friend” from Herridge’s spot, Graves noted that the County’s approach toward the treatment of an individual was irrelevant.

Herridge v. Montgomery County, Texas, No. 21-20264, 2022 WL 989421 (5th Cir., Apr. 1, 2022).