                Not for Publication in West's Federal Reporter

           United States Court of Appeals
                        For the First Circuit

No. 06-2534

      ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW,

                        Plaintiff, Appellant,

                                     v.

           TOWN OF EAST GREENWICH by and through its Town
        Council Members, Michael B. Isaacs, John M. McGurk,
      Mathias C. Wilkinson, Henry V. Boezi and Kelly A. Petti
         in their official capacities, its CHIEF OF POLICE
     David Desjarlais in his official capacity and its FINANCE
          DIRECTOR Thomas Mattos in his official capacity,

                        Defendants, Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Ernest C. Torres, U.S. District Judge]


                                  Before

               Torruella and Lynch, Circuit Judges,
                    and Fusté,* District Judge.


     Carolyn A. Mannis, for appellant.
     John J. Cloherty, III, with whom Pierce, Davis & Perritano,
LLP, was on brief, for appellees.



                              June 27, 2007




*
    Of the District of Puerto Rico, sitting by designation.
            TORRUELLA, Circuit Judge.        The Association of Community

Organizations for Reform Now ("ACORN") sued the Town of East

Greenwich, Rhode Island (the "Town"), seeking an injunction to

prohibit the Town from requiring parties who planned to engage in

door-to-door solicitation of money to obtain a permit, and barring

all solicitations of money from 7:00 P.M. until 9:00 P.M.1            After

a one-day evidentiary hearing, the district court denied ACORN's

request for a preliminary injunction.

            The only issue before us is whether the district court

abused its discretion in denying ACORN's request for a preliminary

injunction, which is an interlocutory order. See Diálogo, LLC v.

Santiago-Bauzá, 425 F.3d 1, 3 (1st Cir. 2005).         A district court's

decision whether to grant a preliminary injunction is guided by the

consideration of four factors: "(1) the likelihood of success on

the merits; (2) the potential for irreparable harm [to the movant]

if   the   injunction   is   denied;   (3)    the   balance   of   relevant

impositions, i.e., the hardship to the nonmovant if enjoined as

contrasted with the hardship to the movant if no injunction issues;

and (4) the effect (if any) of the court's ruling on the public

interest."    Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18




1
   The Town's ordinance actually extends the prohibition on door-
to-door soliciting until 9:00 A.M. However, ACORN challenged the
ordinance only inasmuch as it prohibited soliciting earlier than
9:00 P.M.

                                   -2-
(1st Cir. 2006) (alteration in original) (quoting Bl(a)ck Tea Soc'y

v. City of Boston, 378 F.3d 8, 10-11 (1st Cir. 2004)).

             We conclude that the district court did not abuse its

discretion in denying the preliminary injunction.                     The factual

record in this case is thin: the evidentiary hearing lasted only

one   day,   and    each   side   presented     the    testimony     of    only     two

witnesses.      While      we   recognize     that   the   quantum    of     evidence

necessary to prevail on a motion for a preliminary injunction may

vary, in this particular case, we conclude that the district court

did not abuse its discretion in determining that the evidence was

insufficient to show that ACORN would likely succeed on the merits.

See Bl(a)ck Tea Soc'y, 378 F.3d at 14 ("[T]his is a close and

difficult case. The district court, however, dealt with matters at

first hand and concluded that the appellant had not shown a

likelihood     of   success      on   the   merits.").        In    reaching       this

conclusion, we do not endorse the reasoning of the district court,

which appeared to reject ACORN's First Amendment claims on the

merits.      Cf. Asociación de Educación Privada de P.R., Inc. v.

Echevarría-Vargas, 385 F.3d 81, 86 (1st Cir. 2004) (explaining that

dismissal    was    inappropriate      in   light     of   "the    absence    of    any

evidence about the nature and weight of the burdens imposed and the

nature and strength of the government's justifications").                           On

remand, the court would be assisted by further development of the




                                        -3-
facts, both as to the justifications for the ordinance and the

burdens it imposes.

              The ordinance at issue in this case, by its own terms,

applies only to door-to-door solicitation of funds; it does not

appear   to    regulate    canvassers      who    simply     seek   to    advocate   a

position without seeking a donation.                 The Supreme Court's most

recent decision on this issue recognized the "historical importance

of door-to-door canvassing and pamphleteering as vehicles for the

dissemination of ideas," but also noted that a state may have some

interest      in   regulating      such   conduct,    "particularly        when   the

solicitation of money is involved." Watchtower Bible & Tract Soc'y

of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 162 (2002).                     The

Supreme Court expressly declined to elucidate a standard of review

to be applied to restrictions that apply to door-to-door canvassing

or   solicitation,      id.   at    164,    but    subsequent       decisions     have

suggested     that   the   appropriate      test     might    be    one   resembling

intermediate scrutiny.          See, e.g., Parks v. Finan, 385 F.3d 694,

703 (6th Cir. 2004) (requiring that a scheme requiring permits to

hand out pamphlets at the state capitol must be "narrowly tailored

to the government's interest"); SEIU, Local 3 v. Municipality of

Mt. Lebanon, 446 F.3d 419, 425 (3d Cir. 2006) ("[T]o the extent

that the ordinance 'is not tailored to the [municipality's] stated

interest,' there is a commensurate reduction in the municipality's

interest in its enforcement." (alteration in original) (quoting


                                          -4-
Watchtower, 536 U.S. at 168)).                 Of course, the application of

intermediate     scrutiny   is    dependent       on     whether   the     challenged

regulation is content-neutral, a fact that appears to be in dispute

in this case.     If the ordinance at issue is content-based, strict

scrutiny would likely apply.           See Turner Broad. Sys. v. FCC, 512

U.S. 622, 642 (1994) ("Our precedents . . . apply the most exacting

scrutiny to regulations that suppress, disadvantage, or impose

differential burdens upon speech because of its content.").

           The Town argues that the challenged ordinance satisfies

intermediate     scrutiny      because    it     helps    to   combat      fraudulent

solicitations, reduces overall crime rates, and protects residents'

privacy.        ACORN   argues    that     the     ordinance       fails    to     meet

intermediate scrutiny because it is not narrowly tailored to

achieve these goals, and that in any case, it excessively burdens

ACORN's ability to convey its message and solicit donations.

Whether the challenged ordinance advances the town's interests or

excessively burdens ACORN's ability to speak are questions that are

heavily dependent on factual determinations, and are therefore

difficult to answer at this stage in the litigation.                 At a minimum,

the Town has offered sufficient evidence to call into question the

plaintiff's likelihood of success on the merits.

           We    also   note    that     there    are     issues   that     were    not

expressly presented to the district court in the motion for a

preliminary injunction, but which may raise additional areas for


                                         -5-
inquiry on remand.     First, there may be discrepancies between what

the ordinance says on its face and how it is applied.         For example,

there was testimony at the hearing that it ordinarily takes only

two days to obtain a permit, which appears to be in conflict with

the ordinance's requirement that a permit be applied for five days

in advance of solicitation.         Whilst the ordinance provides for a

permit fee of $10 per day, testimony at the evidentiary hearing

indicates that groups were charged a one-time fee of $10.            These

discrepancies may bear on the ultimate question of whether the

ordinance is narrowly tailored to meet a legitimate state interest.

          Second,    there    was   some   evidence   presented   that   the

permitting scheme was enforced in a discriminatory manner based on

the identity of the speaker.2        There was testimony that religious

organizations may not need a permit even if they solicit donations.

Furthermore,   there    was    testimony    that   scouting   and   school

organizations have never applied for a permit, although there was

no testimony presented on whether such organizations had solicited

without permits.     These were not the primary bases for relief

sought at the preliminary injunction hearing, and we leave it to



2
   We express no opinion at this time as to the argument that
"solicitation speech," i.e., conveying a message that a donation is
requested, can be distinguished from the actual act of
solicitation, i.e., the conduct of receiving a monetary or in-kind
donation. Cf. ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 954
(D.C. Cir. 1995) (upholding a prohibition on solicitation in a park
where the National Park Service interpreted solicitation "to
include only an in-person request for immediate payment.").

                                     -6-
ACORN to decide whether to press such issues on a motion for a

permanent injunction.3

             The issues in this case are difficult, and the Supreme

Court has not provided clear guidance. Moreover, what guidance the

Supreme Court has provided suggests that this particular scenario,

of   mixed   political   speech   and   solicitation   of   donations,    is

precisely the sort that may turn on factual issues.           Under those

circumstances,    further   facts   should   be   developed   before     the

constitutional issues can be resolved.

             Affirmed.




3
    Cf. Association of Community Organizations for Reform Now,
("ACORN") v. Golden, 744 F.2d 739, 749 (10th Cir. 1984) ("Golden's
ordinance, however, is not content neutral. The ordinance permits
exemptions for organizations or individuals if the purpose of the
solicitation is for a charitable, religious, patriotic or
philanthropic purpose, or otherwise provides a service so necessary
for the resident's general welfare that it does not constitute a
nuisance. This approach contemplates a distinction based on
content.").

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