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Monday, May 13, 2024 | Back issues
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Gated Areas Must Admit Jehovah’s Witnesses

(CN) - Gated communities in Puerto Rico that include public roads must hand over their keys and access codes to the Jehovah's Witnesses, the 1st Circuit ruled.

"Unlike other jurisdictions, Puerto Rico allows private citizens to maintain gated residential communities that incorporate public streets," U.S. Circuit Judge Bruce Selya said, writing for the three-judge panel.

"This unorthodox configuration produces an awkward amalgam of the public and private sectors, which makes the task of applying traditional First Amendment jurisprudence something of an adventure," Selya said.

Puerto Rico's Controlled Access Law permitting these gated communities, called "urbanizations," was passed in response to rising drug violence, and an unusually high homicide rate.

The Jehovah's Witnesses challenged the law 10 years ago, arguing that it interfered with their First Amendment right to conduct missionary activities along public rights of way.

On a prior appeal, the 1st Circuit found that "a regime of locked, unmanned gates completely barring access to public streets will preclude all direct communicative activity by nonresidents in traditional public forums, and, absent a more specific showing, cannot be deemed 'narrowly tailored.'"

On remand, the district court ordered each municipal defendant to provide the Jehovah's Witnesses with "unfettered" access to every unmanned gated community in its borders by turning over keys, buzzers or access codes identical to those which would be given to a resident.

Manned gated communities were ordered to instruct their security guards to provide immediate access to Jehovah's Witnesses who identify themselves.

The judge also authorized the municipalities to impose sanctions on urbanizations that did not comply with the order.

The 1st Circuit upheld the decision last week over both parties' objections.

"Each municipality has an ongoing duty to ensure that the First Amendment is respected in the urbanizations founded under its auspices," Judge Selya said. "Here, the record amply demonstrates that the municipal defendants have had a policy and custom of issuing permits to urbanizations without attaching conditions sufficient to ensure public access. This policy and custom led directly to the infringement of the plaintiffs' First Amendment rights."

While security concerns "weigh heavily" against First Amendment considerations, there is no doubt that the Constitution protects access to public forums for door-to-door ministry, the panel said.

But the court also dismissed the Jehovah's Witnesses objections to the solution.

"We reject the plaintiffs' argument that the burden of sharing keys constitutes a prior restraint. Sharing keys is a reasonable restriction on the manner of affording access to public streets within the urbanizations," Selya said.

The Jehovah's Witnesses also asserted that the remedy is limited to the representative communities which they named as defendants to the complaint - not to all urbanizations on the island.

"This shortfall, however, is of the plaintiffs' own contrivance: it was their decision to sue only a representative sampling of municipalities that authorized unmanned urbanizations. Had they accepted the district court's invitation and sued all of the affected municipalities, the geographic breadth of the remedy would not be an issue," the court found.

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