Verlo v. Martinez , 820 F.3d 1113 ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 8, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ERIC VERLO; JANET MATZEN; and
FULLY INFORMED JURY
ASSOCIATION,
Plaintiffs - Appellees,
v.
THE HONORABLE MICHAEL
MARTINEZ, in his official capacity as No. 15-1319
Chief Judge of the Second Judicial District,
Defendant - Appellant,
v.
THE CITY AND COUNTY OF DENVER,
COLORADO, a municipality; ROBERT C.
WHITE, in his official capacity as Denver
Chief of Police,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-01775-WJM-MJW)
_________________________________
Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney
General for the State of Colorado, Denver, Colorado (Cynthia H. Coffman, Attorney
General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor
General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the
briefs) for Defendant - Appellant.
David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs -
Appellees.
Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City
Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City
Attorney, Denver City Attorney's Office, Denver, Colorado, filed a brief on behalf of
Defendants - Appellees.
_________________________________
Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
This is an interlocutory appeal challenging the district court’s grant of a
preliminary injunction, enjoining in part the enforcement of an administrative order
(Order) issued by Defendant-Appellant Judge Michael Martinez, acting in his official
capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District).
The Order prohibits all expressive activities within an area immediately surrounding the
Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo,
Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought
the preliminary injunction to stop enforcement of the Order against their expressive
activities. Following an evidentiary hearing, the district court enjoined enforcement of a
portion of the Order as against Plaintiffs. The Judicial District now appeals.
Based on the arguments made and evidence presented at the preliminary
injunction hearing, we hold the district court did not abuse its discretion in granting
Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited
preliminary injunction, we express no opinion as to whether a permanent injunction
2
should issue. Instead, we provide guidance to the district court and the parties regarding
the factual inquiry and the applicable legal standard relevant to that question on remand.
I. BACKGROUND
The genesis of this case is an incident involving nonparties. On July 27, 2015, two
men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The
pamphlets contained information about jury nullification, a practice in which a jury
refuses to convict a defendant despite legal evidence of guilt because the jury members
believe the law at issue is immoral.1 Both men were arrested and charged with jury
tampering in violation of Colorado law. See Colo. Rev. Stat. § 18-8-609(1) (“A person
commits jury-tampering if, with intent to influence a jury’s vote, opinion, decision, or
other action in a case, he attempts directly or indirectly to communicate with a juror other
than as a part of the proceedings in the trial of the case.”).
Plaintiffs, like the men who were arrested, wish to distribute literature relating to
and advocating for jury nullification to individuals approaching the Courthouse who
might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs
brought suit against the City and County of Denver and Robert C. White, Denver’s police
chief, in his official capacity (collectively, Denver) to establish their First Amendment
right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for
a preliminary injunction, seeking to restrain Defendants from taking action to prevent
1
Jury nullification has been defined as “[a] jury’s knowing and deliberate
rejection of the evidence or refusal to apply the law either because the jury wants to send
a message about some social issue that is larger than the case itself or because the result
dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury
Nullification, Black’s Law Dictionary (10th ed. 2014).
3
Plaintiffs from distributing jury nullification literature on the Plaza. Two days later,
Plaintiffs amended their complaint to also challenge the Order issued by the Judicial
District.
That Order, entitled Chief Judge Order Regarding Expressive Activities at the
Lindsey-Flanigan Courthouse, states in relevant part:
The Court has the responsibility and authority to ensure the safe and
orderly use of the facilities of the Second Judicial District; to minimize
activities which unreasonably disrupt, interrupt, or interfere with the
orderly and peaceful conduct of court business in a neutral forum free of
actual or perceived partiality, bias, prejudice, or favoritism; to provide for
the fair and orderly conduct of hearings and trials; to promote the free flow
of pedestrian and vehicular traffic on sidewalks and streets; and to maintain
proper judicial decorum. Those having business with the courts must be
able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and
orderly fashion and unhindered by threats, confrontation, interference, or
harassment. Accordingly, the Court hereby prohibits certain expressive
activities on the grounds of the Courthouse, without regard to the content of
any particular message, idea, or form of speech.
Prohibited Activities: The activities listed below shall be prohibited
in the following areas: anywhere inside the Lindsey-Flanigan Courthouse,
including courtrooms, corridors, hallways, and lobbies; the areas, lawns,
walkways, or roadways between the Courthouse and public sidewalks and
roads; and any areas, walkways, or roadways that connect public sidewalks
and roads to Courthouse entrances or exits. This includes, but is not limited
to, the Courthouse entrance plaza areas on the east and west sides of the
Courthouse as depicted in the highlighted areas of the attached map.
1. Demonstrating; picketing; protesting; marching; parading;
holding vigils or religious services; proselytizing or
preaching; distributing literature or other materials, or
engaging in similar conduct that involves the communication
or expression of views or grievances; soliciting sales or
donations; or engaging in any commercial activity; unless
specifically authorized in writing by administration;
2. Obstructing the clear passage, entry, or exit of law
enforcement and emergency vehicles and personnel,
4
Courthouse personnel, and other persons having business
with the courts through Courthouse parking areas,
entrances, and roadways to and from Courthouse and
Courthouse grounds;
3. Erecting structures or other facilities, whether for a single
proceeding or intended to remain in place until the
conclusion of a matter; or placing tents, chairs, tables, or
similar items on Courthouse grounds; except as specifically
authorized in writing by administration; and
4. Using sound amplification equipment in a manner that
harasses or interferes with persons entering or leaving
Courthouse grounds or persons waiting in line to enter the
Courthouse.
The Order was accompanied by an image depicting an aerial view of the Courthouse and
its grounds, with the areas in which the Order prohibited expressive activity highlighted
in yellow (Restricted Areas).
5
6
The Courthouse is bordered on its north side by Colfax Avenue and on its west
side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running
along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the
Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police
vehicles. Elati Street runs through a large circular area (Main Plaza) between the
Courthouse and the Van Cise-Simonet Detention Center (Detention Center), which
houses pretrial detainees. The Main Plaza contains planters, benches, public artwork,
sidewalks, and gravel areas and is suitable for public gatherings.
Of relevance to this appeal are the Restricted Areas, which include an arc-shaped
walkway and planter area immediately to the east of the Courthouse. The arced walkway
runs from the corner of Elati Street and Colfax Avenue in a curved path across the front
of the Courthouse and ends where it intersects with an open area in front of the
Courthouse containing planters and benches (the Patio), which also forms part of the
Restricted Areas. The Patio provides access to the main entrance on the east side of the
Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest
to the Courthouse.
The Judicial District opposed Plaintiffs’ motion for a preliminary injunction and,
in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the
Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the
Courthouse and the Detention Center—specifically including the Restricted Areas—was
“a public forum and any content-based regulations must be narrowly drawn to effectuate
a compelling state interest and reasonable time, place and manner regulations.” It further
7
acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the
Plaza and pledged that Denver would not “arrest or otherwise charge Plaintiffs for
handing out literature regarding jury nullification so long as Plaintiffs do not violate
Colorado law or Denver’s Revised Municipal Code when they are handing out their
literature.” The Stipulation specifically referenced the Judicial District’s Order, indicating
Denver did not “intend to enforce [the Order] as written and will only impose content and
viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza,
and/or other exterior areas surrounding the Plaza if Denver determines that a compelling
need exists to do so.”
At the preliminary injunction hearing, the parties called only two witnesses.
Plaintiffs called Commander Antonio Lopez of the Denver Police Department.
Commander Lopez described the Plaza as a public “open space” much like the city’s
various parks. He testified that in the five years since the Courthouse opened he has
witnessed “more First Amendment activity take place in [the Plaza] than [he] can recall.”
Specifically, Commander Lopez described a variety of protest activities “at one point . . .
averaging about two or three a week” in the Plaza. He further testified that the Denver
Police Department had never taken steps to stop protest activity in the Plaza, other than
intervening if protesters became violent or otherwise broke the law. Relevant to this
appeal, Commander Lopez testified that in his experience, the entire Plaza—including the
Restricted Areas—has traditionally been used for First Amendment protest activities. On
cross-examination, Commander Lopez acknowledged that the “majority” of the protests
8
in the Plaza occurred closer to the Detention Center, but that he had also seen protests
directed at the Courthouse.
The Judicial District called Steven Steadman, administrator of judicial security for
Colorado. Mr. Steadman testified that the Order was motivated by concern about
anticipated protests of a verdict in a death penalty case being tried at the Courthouse.
Mr. Steadman explained that he met with Chief Judge Martinez to discuss security
concerns relating to that verdict and recommended the Judicial District adopt a policy
similar to one recently implemented in Arapahoe County during another high-profile
capital trial.
Mr. Steadman also testified about the design of the Plaza, including the Restricted
Areas. He indicated that the planters, gravel areas, and sidewalks were intentionally
designed to “signal to the average user how to find their way, and where you should go
and what the main travel ways are.” Mr. Steadman explained that the Patio and arced
walkway’s “sole purpose is to allow people, the public, to enter and exit the [Courthouse]
without being interfered with.” But Mr. Steadman also stated that, prior to imposition of
the Order, protestors—including pamphleteers—were allowed to protest immediately in
front of the doors to the Courthouse, provided they did not interfere with ingress or egress
from the Courthouse. He explained that the “general response” of protestors was to cease
their activities when requested by Courthouse security not to interfere with public access
to the Courthouse. Mr. Steadman further testified that no person had ever been arrested
for blocking ingress or egress from the Courthouse since it opened in 2010. Important to
this appeal, Mr. Steadman acknowledged that Plaintiffs’ activities of passing out jury
9
nullification literature did not present “any security risk” beyond what had previously
been tolerated without incident throughout the time the Courthouse had been open.
The district court also accepted a proffer of Plaintiffs’ testimony, indicating that
their intent was to approach people entering the Courthouse to discuss quietly the concept
of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to
the front door of the Courthouse was key to their message because otherwise their
intended audience—“people who are going to serve or are in fact serving on juries”—will
“very frequently just bypass them” in the designated free speech zone by “walking on one
of the sidewalks that is part of the [Restricted Areas].” By contrast, positioning
themselves near the front door would allow Plaintiffs “to pass out literature to anyone
who wants it” and “if people want to stop and talk about [it], they can then explain to
them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order
effectively prevented them from reaching their target audience. Finally, the district court
accepted the parties’ jointly stipulated exhibits, which consisted of a series of images of
the Plaza and Restricted Areas, as well as a copy of the Order.
Following the evidentiary hearing, the district court granted Plaintiffs’ request for
a preliminary injunction. In doing so, the district court relied on Denver’s Stipulation that
the Plaza was a public forum and the Judicial District’s position that resolving the forum
status was not necessary because the Order “would satisfy even the strictest test.” The
district court concluded Plaintiffs had demonstrated a likelihood of success on the merits
because, treating the Restricted Areas as public fora, the Order’s complete ban on
10
expressive activity was not narrowly tailored to accomplish a significant government
interest.
Accordingly, the district court entered a carefully circumscribed preliminary
injunction in favor of Plaintiffs. Specifically, the district court enjoined enforcement of
Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully
seeking to distribute and/or orally advocate the message contained in [Plaintiffs’
pamphlets]” in the Restricted Areas. But the district court expressly left the remainder of
the Order in place.
Following entry of the preliminary injunction, the Judicial District moved to stay
the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil
Procedure. In its motion to stay, the Judicial District introduced evidence that—
subsequent to entry of the preliminary injunction—protesters had “descended on the
Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior,
including erecting canopies, harassing citizens seeking to enter the Courthouse, damaging
the Courthouse landscaping, yelling and taunting court personnel, and posting signs in the
planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the
injunction was appropriate because protesters had been “emboldened” by the injunction
to violate even the portions of the Order not subject to the injunction, thereby irreparably
harming the Judicial District. The district court declined to stay the injunction, finding the
Judicial District had not demonstrated a likelihood of success on appeal because the harm
identified was not caused by the injunction. The district court reasoned the Judicial
District and Denver were free to enforce the Order against the parties engaging in the
11
complained-of disruptive behavior because such behavior was unlawful and not protected
by the narrow injunction issued by the court with respect to Plaintiffs’ activities only.
The Judicial District now appeals. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1), we affirm.
II. DISCUSSION
On appeal, the Judicial District raises two arguments. First, it asserts the district
court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in
establishing the Restricted Areas are public fora. Second, the Judicial District argues the
district court incorrectly applied strict scrutiny when evaluating the Order. As a result, the
Judicial District asks this court to reverse the district court’s entry of the preliminary
injunction and remand for further proceedings.
We review the district court’s grant of a preliminary injunction for abuse of
discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th
Cir. 2014). “A district court abuses its discretion when it commits an error of law or
makes clearly erroneous factual findings.” Id.A. Scope of Review
Before addressing the merits of the parties’ arguments, we pause to clarify the
scope of our review. The district court granted a narrow preliminary injunction drafted to
address Plaintiffs’ First Amendment concerns related to their specific expressive
activities. Although Plaintiffs asked the district court to prohibit enforcement of the entire
Order, the court enjoined only the first paragraph, which imposes a complete ban on First
Amendment activities—picketing, pamphleteering, protesting—within the Restricted
12
Areas. The district court left in place the rest of the Order, including the prohibitions
against obstructing Courthouse entrances, erecting structures, and using sound
amplification equipment in the Restricted Areas.
The district court further limited the scope of the preliminary injunction by
enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering
activities. In fact, the court enjoined enforcement of the Order only as to Plaintiffs’
distribution and discussion of two specifically identified pamphlets. The Judicial District
remains free to enforce the first paragraph of the Order—even against Plaintiffs—for all
other First Amendment activities within the Restricted Areas.
Finally, the district court limited the geographic scope of the injunction. Although
the Order prohibits First Amendment activity both inside and outside the Courthouse, the
district court enjoined enforcement of Paragraph 1 as to Plaintiffs only outside the
Courthouse, leaving the entirety of the Order intact within the Courthouse. And the
district court did not enjoin enforcement of any part of the Order within those portions of
the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the
Order continues to prohibit all expressive activity in the planter boxes or other
landscaping and in the gravel security areas. Accordingly, the features of the Restricted
Area to which the preliminary injunction applies are limited to (1) the arced walkway
running south from Colfax Avenue between the gravel security area (to the west of the
walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at
13
the main entrance on the east side of the Courthouse;2 and (2) the Patio area at the main
entrance. 3
Our task in this appeal is to determine whether the district court abused its
discretion when, based on the record before it at the preliminary injunction hearing, it
issued this narrow, targeted injunction. But the Judicial District asks us to consider events
occurring after the preliminary injunction hearing to determine whether the district court
abused its discretion in issuing the preliminary injunction. Specifically, the Judicial
District points to evidence introduced during the Rule 62(c) hearing on the motion to stay
the injunction pending appeal, which indicated that following the injunction, protestors
had engaged in a series of inappropriate and disruptive behaviors. Some of these
behaviors included harassing court personnel seeking to enter the Courthouse, erecting
canopies and signs, and trampling Courthouse landscaping. According to the Judicial
District, these post-injunction events demonstrate the “concrete concerns” motivating the
creation of the Restricted Areas and therefore should have been considered by the district
court.
2
As discussed, the Order’s prohibition on expressive activities in the planter and
gravel security areas were not enjoined by the district court.
3
The evidence presented about the geographic layout and physical features of the
Restricted Area consisted primarily of approximately fifteen photographs. Because the
record contains little testimony about the photographs, we rely on our own review of
them to describe the Restricted Areas. In particular, it is unclear whether and to what
extent the Restricted Areas include the sidewalk running along Fox Street on the west
side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but
counsel for the Judicial District conceded at oral argument that it would be
“constitutionally questionable” to prevent speech on a public sidewalk, and then indicated
“[t]hat is precisely why the order here does not extend that far.” Therefore, we do not
treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.
14
Although we share the Judicial District’s concern about the disruptions created by
some protestors following issuance of the injunction, these post-injunction events are not
relevant to our resolution of this interlocutory appeal for two reasons. First, this evidence
relates to events occurring after the preliminary injunction issued, and therefore none of it
was presented to the district court at the hearing. We will not hold that the district court
abused its discretion based on evidence not before it when it ruled. See Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (noting the general principle, in the
context of de novo review of a summary judgment disposition, that we conduct our
review “from the perspective of the district court at the time it made its ruling, ordinarily
limiting our review to the materials adequately brought to the attention of the district
court by the parties”); Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999)
(“An appellate court may not consider . . . facts which were not before the district court at
the time of the challenged ruling.”). Cf. Ambus v. Granite Bd. of Educ., 975 F.2d 1555,
1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based
on evidence not before the district court.”). Accordingly, our review is limited to the
evidence before the district court at the time of the preliminary injunction hearing, and
we will not consider post-injunction events.
Second, even if we were to consider the post-decision evidence, it would not alter
our analysis. The evidence the Judicial District relies on to demonstrate the negative
effects of the preliminary injunction, in fact, does not implicate the injunction at all. As
discussed, the preliminary injunction enjoins enforcement of Paragraph 1 of the Order
specifically against Plaintiffs’ pamphleteering activities in certain parts of the Restricted
15
Areas. The district court expressly allowed the Judicial District to continue enforcing the
entire Order as to all other parties and all other First Amendment activities in the
Restricted Areas. Importantly, the preliminary injunction does not affect the Judicial
District’s ability to enforce the Order against any protestors, including the Plaintiffs, who
engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial
District from taking action against protestors who obstruct Courthouse entrances, damage
the Courthouse landscaping, or erect structures. All of this behavior remained prohibited
by the Order after issuance of the injunction. In short, nothing in the preliminary
injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to
enforce the Order against anyone, including Plaintiffs, engaging in such behavior.
The evidence of post-injunction bad behavior of some protestors may be relevant
on remand to a motion to modify the injunction4 or to the district court’s ultimate
decision on whether to issue a permanent injunction. But for the purposes of this appeal,
we limit our review to the evidence before the district court at the time it issued the
preliminary injunction.
B. Abuse of Discretion
We now turn our attention to the question of whether the district court abused its
discretion when it issued the preliminary injunction.
4
As the district court noted, the Judicial District did not move to modify the
preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5)
(allowing a party to obtain relief from a judgment or order when “applying [the judgment
or order] prospectively is no longer equitable”); Horne v. Flores, 557 U.S. 433, 447
(2009) (noting that under Rule 60(b)(5) “[t]he party seeking relief bears the burden of
establishing that changed circumstances warrant relief”).
16
To obtain a preliminary injunction the moving party must demonstrate: (1)
a likelihood of success on the merits; (2) a likelihood that the moving party
will suffer irreparable harm if the injunction is not granted; (3) the balance
of equities is in the moving party’s favor; and (4) the preliminary injunction
is in the public interest.
Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). In the First
Amendment context, “the likelihood of success on the merits will often be the
determinative factor” because of the seminal importance of the interests at stake. Hobby
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation
marks omitted); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir.
2003) (“[T]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”).
1. The district court did not abuse its discretion in finding the second, third, and
fourth factors weighed in Plaintiffs’ favor.
Here, the district court found the second (irreparable harm), third (balance of
equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the
important First Amendment interests at stake. As an initial matter, the Judicial District
has not challenged the district court’s determination as to these factors beyond a single
footnote in its opening brief stating it had challenged them before the district court. A
party’s offhand reference to an issue in a footnote, without citation to legal authority or
reasoned argument, is insufficient to present the issue for our consideration. See San Juan
Citizens All. v. Stiles, 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial
District has waived any challenge to the district court’s findings related to the elements of
irreparable harm, the balance of equities, and the public interest. But even if the Judicial
17
District had properly challenged these factors on appeal, we would nevertheless affirm
the district court’s conclusion that they weigh in Plaintiffs’ favor.
The Supreme Court has instructed that “[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.
Burns, 427 U.S. 347, 373 (1976); see also Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.
2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no
further showing of irreparable injury is necessary.”). There is no dispute that Plaintiffs’
pamphleteering constitutes First Amendment activity. See McCullen v. Coakley, 134 S.
Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are
First Amendment-protected activities). And the Judicial District does not dispute that the
Order would bar Plaintiffs from engaging in their pamphleteering in the Restricted Areas.
Accordingly, the district court did not abuse its discretion in finding that the factor of
irreparable harm weighs in Plaintiffs’ favor.
The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the
district court, Plaintiffs proffered testimony that the Order would substantially impair
their ability to convey their intended message to their target audience because it would
prevent Plaintiffs from approaching potential jurors and engaging in a meaningful
discussion of jury nullification. The district court also heard testimony from Mr.
Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one
discussions with potential jurors did not present a security risk. And the Judicial District
presented no evidence that Plaintiffs’ activities otherwise interfered with Courthouse
functions. On this record, the district court did not abuse its discretion in finding the
18
balance of equities weighed in favor of Plaintiffs. See Awad, 670 F.3d at 1132 (“Delayed
implementation of a [governmental] measure that does not appear to address any
immediate problem will generally not cause material harm, even if the measure were
eventually found to be constitutional and enforceable.”).
As to whether the preliminary injunction is in the public interest, we agree with
the district court that “it is always in the public interest to prevent the violation of a
party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v.
Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First
Amendment freedoms is clearly in the public interest.”). The district court did not abuse
its discretion in finding the public interest was served by issuing the preliminary
injunction to prevent the violation of Plaintiffs’ First Amendment rights.
Thus, we agree the second, third, and fourth factors weigh in Plaintiffs’ favor. The
only remaining question, then, is whether the district court abused its discretion in finding
Plaintiffs demonstrated a likelihood of success on the merits.5 Specifically, we must
determine whether the Order violated Plaintiffs’ First Amendment right to distribute jury
5
The Tenth Circuit has modified the preliminary injunction test when the moving
party demonstrates that the second, third, and fourth factors “tip strongly” in its favor.
See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107,
1113 (10th Cir. 2006). “In such situations, the moving party may meet the requirement
for showing success on the merits by showing that questions going to the merits are so
serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and
deserving of more deliberate investigation.” Id. (internal quotation marks omitted). But
because we conclude the district court did not abuse its discretion in finding Plaintiffs
demonstrated a likelihood of success on the merits, we need not decide whether this more
lenient test applies.
19
nullification pamphlets and engage in one-on-one conversations with individuals entering
and leaving the Courthouse.
2. On this record, the district court did not abuse its discretion in finding
Plaintiffs demonstrated a likelihood of success on the merits.
To demonstrate a violation of their First Amendment rights, Plaintiffs must first
establish that their activities are protected by the First Amendment. See Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If so, a court must
identify whether the challenged restrictions impact a public or nonpublic forum, because
that determination dictates the extent to which the government can restrict First
Amendment activities within the forum. See id. Finally, courts must determine whether
the proffered justifications for prohibiting speech in the forum satisfy the requisite
standard of review. Id. We address each element in turn.
a. Plaintiffs’ activities are protected by the First Amendment
The Supreme Court recently reaffirmed that pamphleteering and one-on-one
communications are First-Amendment-protected activities. See McCullen, 134 S. Ct. at
2536. The Court “observed that one-on-one communication is the most effective,
fundamental, and perhaps economical avenue of political discourse” and that “no form of
speech is entitled to greater constitutional protection” than leafletting. Id. (internal
quotation marks and alteration omitted). The Court went on to state, “[w]hen the
government makes it more difficult to engage in these modes of communication, it
imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’
activities are protected by the First Amendment.
20
b. The district court did not abuse its discretion by assuming for purposes of
analysis that the Restricted Areas are public fora
To properly place the district court’s decision in context, we begin with a brief
discussion of the significance of forum status to the protection afforded under the First
Amendment to public speech on government property. We then review the argument
presented by the Judicial District to the district court regarding the forum status of the
Restricted Areas here. Because the Judicial District either made a strategic decision to
forgo any argument that the Restricted Areas are nonpublic fora, or inadequately
presented that argument to the district court, we conclude the argument is waived. As a
result, the district court did not abuse its discretion by scrutinizing the Order under public
forum analysis for purposes of the preliminary injunction motion.
Turning now to the constitutional restrictions on speech, our analysis is guided by
Plaintiffs’ wish to engage in First Amendment-protected activity on government
property. “Nothing in the Constitution requires the Government freely to grant access to
all who wish to exercise their right to free speech on every type of Government property
without regard to the nature of the property or to the disruption that might be caused by
the speaker’s activities.” Cornelius, 473 U.S. at 799–800. But in some instances, the
public may have acquired by tradition or prior permission the right to use government
property for expressive purposes. See id. at 802. To determine when and to what extent
the Government may properly limit expressive activity on its property, the Supreme
Court has adopted a range of constitutional protections that varies depending on the
nature of the government property, or forum. Id. at 800.
21
The Court has identified three types of speech fora: the traditional public forum,
the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora
are places that by long tradition have been open to public assembly and debate. See id.;
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“At one end
of the spectrum are streets and parks which ‘have immemorially been held in trust for the
use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.’” (quoting
Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939))). In these traditional public
fora, the government’s right to “limit expressive activity [is] sharply circumscribed.” Id.A designated public forum is public property, not constituting a traditional public forum,
which the government has intentionally opened to the public for expressive activity. Id.The government is not required to retain the open character of the property indefinitely,
but “as long as it does so, it is bound by the same standards as apply in a traditional
public forum.” Id. at 46. If the property is not a traditional public forum and it has not
been designated as a public forum, it is a nonpublic forum. “Access to a nonpublic forum
. . . can be restricted as long as the restrictions are ‘reasonable and are not an effort to
suppress expression merely because public officials oppose the speaker’s view.’”6
Cornelius, 473 U.S. at 800 (brackets omitted) (quoting Perry Educ., 460 U.S. at 46).
6
Not relevant to this appeal, the Supreme Court has also recognized that the
government can create a “limited public forum” by allowing “selective access to some
speakers or some types of speech in a nonpublic forum,” while not opening “the property
sufficiently to become a designated public forum.” Summum v. Callaghan, 130 F.3d 906,
916 (10th Cir. 1997) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515
U.S. 819, 829–30 (1995)).
22
Because the nature of the forum dictates the standard of scrutiny with which
restrictions on speech are reviewed, courts typically begin the analysis of a challenge to
restrictions on speech involving government property by identifying the nature of the
forum involved. See, e.g., Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir.
2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is,
we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora
to resolve this interlocutory appeal. Rather, our task is to determine whether the district
court abused its discretion when it found, based on the evidence and arguments
presented, that Plaintiffs had demonstrated a likelihood of success on the merits. See
Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (“It
is only necessary that plaintiffs establish a reasonable probability of success, and not an
‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.”).
Because the Judicial District waived any argument that the Restricted Areas are
nonpublic fora, we conclude the district court did not abuse its discretion by evaluating
the Plaintiffs’ likelihood of success under the scrutiny applicable to public fora.
To explain our rationale for this conclusion, we track the evolution of the Judicial
District’s arguments in the district court regarding the forum status of the Restricted
Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza,
including the Restricted Areas, constitutes a traditional public forum. Denver also
stipulated with Plaintiffs that the Plaza is a public forum.
In response to the motion for preliminary injunction, the Judicial District claimed
Plaintiffs were unlikely to prevail on the merits of their First Amendment claim because
23
“[i]rrespective of Denver’s view of the courthouse plaza, it is not a traditional public
forum. And even if it were, the [Order] comes nowhere near banning all expressive
activity in that area. To the contrary, it is a reasonable time, place, and manner
restriction.” But the Judicial District did not then provide any support for its assertion that
the Plaza is not a public forum. Rather, it first claimed that Plaintiffs lacked standing to
challenge the Order and then continued its argument under the heading, “This Court need
not decide whether the plaza is a traditional public forum for the purposes of this
proceeding.” Under that heading, the Judicial District asserted that the Stipulation
between the Plaintiffs and Denver did not bind the Judicial District or the district court
and that therefore “[t]he status of the plaza is an open question.” But, again, rather than
present argument on the correct forum status of the Plaza or ask the district court to reach
a contrary conclusion, the Judicial District stated the district court need not identify the
precise forum status of the Restricted Areas “because [the Order] would satisfy even the
strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct
that the entire plaza is a traditional public forum,” and thus subject to a higher standard of
review, the Order was constitutional as a reasonable time, place, and manner restriction.
The Judicial District maintained this tactical approach through oral argument on the
motion for a preliminary injunction.
After the close of evidence at the hearing on Plaintiffs’ motion for a preliminary
injunction, the district court attempted to clarify the Judicial District’s position:
THE COURT: In your briefing the Attorney General took the position that it
doesn’t matter whether the area in question is a public forum
or a non-public forum area, because the Attorney General
24
believes that you can establish the grounds necessary under
the standards to apply in either case.
JUDICIAL DIST.: To be clear, our position is that this is not a public forum.
However, that is a factually intensive question that I don’t
think the Court has been presented with sufficient evidence to
decide today.
THE COURT: Well, I have a stipulation from the owner of the property that
it is a public forum area.
JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial
District] or this Court.
THE COURT: Well, that’s something I need to decide, right?
JUDICIAL DIST.: Not necessarily.
THE COURT: Okay. But here’s what I am getting at. Your position is,
whether it’s public or non-public, you believe that the . . .
Plaza Order . . . is sufficiently narrowly tailored to meet the
concerns of ingress and egress to the courthouse and threat to
the public safety. Is that your position?
JUDICIAL DIST.: Yes. Our position is that the order satisfies time, place, and
manner requirements. . . .
The discussion then proceeded under the assumption that the Order impacted a
public forum and therefore had to be narrowly tailored. Recall that the government has
broad discretion to restrict expressive activity in a nonpublic forum, irrespective of
whether the restrictions are narrowly tailored. Perry Educ., 460 U.S. at 46. But, as will be
discussed in more detail below, even content-neutral restrictions on speech in a public
forum—whether a traditional public forum or a designated public forum—must be
narrowly tailored to advance a significant government interest. See id. at 45–46.
25
Consistent with its acquiescence to the district court’s application of a public
forum analysis at the preliminary injunction stage, the Judicial District limited its oral
argument on the motion for preliminary injunction to the proper definition of “narrowly-
tailored.” Tellingly, the Judicial District provided no argument relevant to whether the
Restricted Area was, in fact, a public forum, or that the restrictions did not have to be
narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial
District conceded that the evidence was insufficient to allow the district court to
determine the forum status of the Restricted Areas. But it claimed the district court could
proceed to the merits under a public forum analysis nevertheless, because the result
would be the same whether the Restricted Areas were public or nonpublic fora. That is,
the Judicial District argued the district court could assume for purposes of analysis that
the Restricted Areas are public fora. And the district court did as suggested in its Order
Granting Motion for Preliminary Injunction.
In the Preliminary Injunction Order’s discussion of the likelihood that Plaintiffs
will succeed on the merits, the district court discussed forum in a section titled, “Is the
Courthouse Plaza a Public Forum?” In this section, the district court considered the
significance of the nature of the forum, the disagreement between Denver and the Judicial
District on that issue, and the Stipulation between Denver and Plaintiffs that the
Restricted Areas are public fora. Relying in part on the Stipulation, the district court
concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at
least a designated public forum, if not a traditional public forum.” But the district court
also notes “the Second Judicial District has not specifically argued for a finding that the
26
Courthouse Plaza is a nonpublic forum. Rather, it says that ‘resolving [the type of forum
at issue] is not necessary for the purposes of this proceeding because the [Plaza Order]
would satisfy even the strictest test.’”
Our review of the record is consistent with the district court’s assessment of the
Judicial District’s argument. During the briefing and argument to the district court in
opposition to Plaintiffs’ motion for preliminary injunction, the Judicial District never
provided legal argument supporting its conclusory statement that the Restricted Areas are
nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open
question the district court need not decide, and further conceded it was a question the
district court could not decide based on the evidence presented. In sum, the Judicial
District made the strategic decision to accept Plaintiffs’ characterization of the Restricted
Areas as a public forum for purposes of analysis and to present only an argument that the
Order is constitutional under the scrutiny applicable to restrictions of speech in public
fora. And the Judicial District maintained that position throughout the district court
proceedings.
The Judicial District filed a motion in the district court to stay the injunction
pending appeal, in which it stated “courthouse plazas are not traditional public fora,” and
cited, without further analysis, Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), a new
decision at the time holding the plaza of the Supreme Court building is not a public
forum. But again, the Judicial District did not seek a ruling that the Restricted Areas are
nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its
earlier strategy, the Judicial District argued that “even if the [Courthouse Plaza] were a
27
traditional public forum,” the district court applied the wrong level of scrutiny.
Significantly, the Judicial District never claimed it could bar or reasonably restrict speech
in the Restricted Areas because they were nonpublic fora; it argued the district court had
erred because “[s]trict scrutiny applies only to content-based restrictions on speech in a
public forum.”
For the first time on appeal, the Judicial District provides substantive argument for
the claim that the Restricted Areas are nonpublic fora and, therefore, the district court
should have considered only whether the content-neutral restrictions contained in the
Order were reasonable. When a party pursues a new legal theory for the first time on
appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,
1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am., 851 F.2d
1239, 1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one
theory of the case, and then prevail on appeal on a different theory.”).
As noted, the Judicial District was aware of the “open question” with respect to
the forum status of the Restricted Areas but made the strategic decision to forgo
presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion
for preliminary injunction filed with the district court, the Judicial District cited three
cases in support of its statement that the forum question remains open. But it provided no
argument incorporating those decisions into a cogent legal analysis of the Restricted
Areas as nonpublic fora. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir.
2004) (“The court will not consider such issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation.” (internal quotation marks
28
omitted)). And although forum status is a fact-intensive inquiry, the Judicial District
failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P.
28(a)(8)(A) (providing that appellant’s opening brief must contain an argument section
that includes “appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies”).
Thus, the Judicial District has waived this issue, at least for purposes of our review
of the preliminary injunction order. Richison, 634 F.3d at 1127 (explaining that if a party
intentionally chooses not to pursue an argument before the district court, “we usually
deem it waived and refuse to consider it”).7 And the forum status issue is not properly
before us even if we generously conclude the Judicial District presented alternative
arguments to the district court that (1) the Restricted Areas are not public fora; or (2)
even if the Restricted Areas are public fora, the Order can survive the applicable level of
scrutiny. Although the Judicial District presented cogent legal argument on the second
issue, it failed to present reasoned argument on the first to the district court. See Ark
Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the
7
Even if this argument had been merely forfeited, it would nevertheless be an
inappropriate basis for reversal because the Judicial District has not argued plain error.
See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure
to do so—the failure to argue for plain error and its application on appeal—surely marks
the end of the road for an argument for reversal not first presented to the district court.”).
Nor are we inclined to exercise our discretion to consider the forum status issue despite
the failure to raise it to the district court because we agree with the Judicial District that
the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz, 800
F.3d 1231, 1244–45 (10th Cir. 2015) (exercising discretion to consider forfeited
argument on “clearly established” prong of qualified immunity).
29
“scant discussion” of an issue in the district court “appear[ed] as an afterthought, and
[did] not meet the standard for preserving an issue for review”).
Our conclusion that the Judicial District failed to adequately present this issue to
the district court is further supported by the district court’s view that “the Second Judicial
District ha[d] not specifically argued for a finding that the Courthouse Plaza is a
nonpublic forum.” Id. (“Not surprisingly, the district court never addressed” the issue.).
Accordingly, the argument that the Restricted Areas are nonpublic fora was waived either
by the Judicial District’s strategic decision not to present it, or by the Judicial District’s
failure to adequately brief the issue. As such, the district court’s application of a public
forum analysis is not a legitimate ground on which to reverse the preliminary injunction
order.
We now address the only other challenge the Judicial District makes to the
preliminary injunction: that the district court abused its discretion by applying the wrong
test, even if the Restricted Areas are public fora.
c. The district court did not apply the wrong standard to the content-neutral
restrictions imposed by the Order
Having determined the district court did not abuse its discretion by treating the
Restricted Areas as public fora for purposes of analysis, we next consider whether the
district court abused its discretion when it found Plaintiffs had demonstrated a likelihood
of success on the question of whether the Order violated their constitutional rights under
30
the relevant First Amendment standards.8 In a public forum, the government cannot ban
all expressive activity. Perry Educ., 460 U.S. at 45. But even in a public forum, the
government can restrict speech through “content-neutral time, place, and manner
restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to
advance that interest; and (c) leave open ample alternative channels of communication.”
Doe, 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict
scrutiny, that is, the restriction must be narrowly tailored to serve a compelling
government interest.” Summum, 555 U.S. at 469.
The Judicial District argues the district court abused its discretion by applying an
incorrect legal standard. Specifically, the Judicial District contends the district court
applied the stringent strict scrutiny analysis reserved for content-based restrictions. And
because the Order imposes only content-neutral restrictions, the Judicial District claims
this was an abuse of discretion. Although we agree the restrictions are content-neutral, we
are not convinced the district court applied the more stringent standard applicable to
content-based restrictions.
The district court explained that under the relevant standard, “[t]he state may . . .
enforce regulations of the time, place, and manner of expression which [1] are content-
neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave
open ample alternative channels of communication.” On its face, then, the district court
8
“Government restrictions on speech in a designated public forum are subject to
the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City
v. Summum, 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the
Restricted Areas are considered traditional or designated public fora.
31
appears to have invoked the correct legal standard. Cf. Doe, 667 F.3d at 1130–31 (same).
Nevertheless, the Judicial District argues that in considering whether the restrictions are
“narrowly tailored,” the district court inappropriately applied the more demanding
standard applicable to content-based regulations.
The term “narrowly tailored” appears in the tests for both content-based and
content-neutral regulations on speech. See Doe, 667 F.3d at 1130–31 (indicating a
content-neutral regulation must be “narrowly tailored” to advance a significant
government interest); Pleasant Grove, 555 U.S. at 469 (stating that content-based
restrictions “must be narrowly tailored to serve a compelling government interest”)
(emphasis added)). And, as the Judicial District correctly notes, there are subtle
differences in the way courts apply the concept of narrow tailoring in the two contexts.
For the purposes of a content-neutral regulation, “the requirement of narrow tailoring is
satisfied so long as the regulation promotes a substantial government interest that would
be achieved less effectively absent the regulation, and does not burden substantially more
speech than is necessary to further the government’s legitimate interests.” Wells v. City &
Cty. of Denver, 257 F.3d 1132, 1148 (10th Cir. 2001) (ellipsis and internal quotation
marks omitted). In contrast, a content-based restriction is narrowly tailored only if it is
the least restrictive means of achieving the government’s compelling objective. See
Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803, 813 (2000).
According to the Judicial District, the district court considered alternatives to the
Order that might have been employed to achieve the Judicial District’s objectives, and
32
such consideration proves the district court applied the “least restrictive means” standard.
In the Judicial District’s view, any inquiry into alternative means of achieving the
government objective is inappropriate where, like here, the restrictions are content-
neutral, rather than content-based, and thus not subject to the least restrictive alternative
form of narrow tailoring. We disagree.
The Supreme Court has not discouraged courts from considering alternative
approaches to achieving the government’s goals when determining whether a content-
neutral regulation is narrowly tailored to advance a significant government interest.
Although the Court has held that a content-neutral regulation “need not be the least
restrictive or least intrusive means of serving the government’s interests,” it has also
explained that “the government still may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to advance its goals.”
McCullen, 134 S. Ct. at 2535 (internal quotation marks omitted). And when considering
content-neutral regulations, the Court itself has examined possible alternative approaches
to achieving the government’s objective to determine whether the government’s chosen
approach burdens substantially more speech than necessary. Id. at 2537–39. That is, the
government may not “forgo[] options that could serve its interests just as well,” if those
options would avoid “substantially burdening the kind of speech in which [Plaintiffs’]
wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must
enact all or even any of the proposed [alternative approaches]. The point is instead that
the [government] has available to it a variety of approaches that appear capable of serving
its interests, without excluding individuals from areas historically open for speech and
33
debate.”). Thus, “[t]o meet the requirement of narrow tailoring [in the context of content-
neutral regulations], the government must demonstrate that alternative measures that
burden substantially less speech would fail to achieve the government’s interests, not
simply that the chosen route is easier.” Id. at 2540.
As a result, we cannot conclude the district court applied the wrong legal standard
merely because it considered whether the Judicial District had options other than the
complete ban on speech contained in Paragraph 1 of the Order that would equally serve
its interests. We now turn our attention to whether, under the standard applicable to
content-neutral regulations in a public forum, the district court abused its discretion when
it found Plaintiffs had demonstrated a likelihood of success on the question of whether
the Order survives constitutional scrutiny.
d. The district court did not abuse its discretion by concluding that Plaintiffs were
likely to succeed on the merits
As discussed, for purposes of the preliminary injunction analysis, the Judicial
District acquiesced in the district court’s acceptance of Plaintiffs’ characterization, and
Denver’s Stipulation, that the Restricted Areas are public fora. Under that assumption, we
can easily conclude the district court did not abuse its discretion in finding Plaintiffs were
likely to succeed on their claim that a complete ban of their expressive activities violates
the First Amendment. Our resolution of this issue is informed by the Supreme Court’s
recent decision in McCullen, which is highly analogous.
In McCullen, the Supreme Court considered the constitutionality of a state law
creating thirty-five-foot buffer zones around the entrances of facilities where abortions
34
are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to
women outside such facilities—to engage in “sidewalk counseling”—in an attempt to
dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the
McCullen plaintiffs away from their preferred positions outside the clinics’ entrances,
thereby hampering their sidewalk counseling efforts. Id. at 2527–28. The McCullen
plaintiffs brought suit, arguing the buffer zones restricted their First Amendment rights
and seeking to enjoin enforcement of the statute creating the buffer zones. Id. at 2528.
After the First Circuit upheld the statute as a reasonable content-neutral time, place, and
manner restriction, the Supreme Court granted certiorari. Id.The Court began its analysis by recognizing that the buffer-zone statute operated
to restrict speech in traditional public fora: streets and sidewalks. Id. at 2529. It then held
the buffer-zone statute was a content-neutral restriction because violations of the act
depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed,
petitioners can violate the Act merely by standing in a buffer zone, without displaying a
sign or uttering a word.”). The Court then proceeded to apply the test for content-neutral
restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly
tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs
had not challenged the significance of the government’s asserted interests, the Court’s
analysis largely focused on the question of whether the statute was narrowly tailored to
serve that interest.
The Court noted the buffer zones placed serious burdens on the plaintiffs’ speech
activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet,
35
one-on-one conversations about abortion and distributing literature, the buffer zones
“operate[d] to deprive petitioners of their two primary methods of communicating with
patients.” Id. at 2536. Although the First Amendment does not guarantee a right to any
particular form of speech, the Supreme Court explained that some forms of speech—one-
on-one conversation and leafletting on public sidewalks—“have historically been more
closely associated with the transmission of ideas than others.” Id. The Court held that
“[w]hen the government makes it more difficult to engage in [one-on-one communication
and leafletting], it imposes an especially significant First Amendment burden.” Id.The Court also rejected the idea that the buffer zones were constitutional because
they left ample alternative channels for communication. Id. at 2536–37. In McCullen, the
size of the buffer zone made it difficult to distinguish persons headed to the clinic from
passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at
2535. As a result, the plaintiffs were often forced to raise their voices from outside the
buffer zone once they identified the clinic patients, thereby forcing a mode of
communication contrary to their compassionate message and preventing them from
distributing pamphlets. Id. at 2535-36. Where the plaintiffs wished to engage in quiet
conversations with women seeking abortions and not in noisy protest speech, the Court
held it was “no answer to say that petitioners can still be ‘seen and heard’ by women
within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirty-
five foot buffer zones had “effectively stifled petitioners’ message” by prohibiting the
plaintiffs’ chosen means of communication. Id.36
Finally, the Court held the buffer zones burdened substantially more speech than
necessary to achieve the state’s asserted interests in public safety, preventing harassment
of women and clinic staff seeking entrance to clinics, and preventing deliberate
obstruction of clinic entrances. Id. Although the Court acknowledged the importance of
these interests, it determined the state’s chosen method of achieving them—categorically
excluding most individuals from the buffer zones—was not narrowly tailored. Id. at
2537–41. That is, the Court held the government had not demonstrated “that alternative
measures that burden substantially less speech would fail to achieve the government’s
interests.” Id. at 2540. In so doing, the Court expressly rejected the argument that the
government could choose a particular means of achieving its interests merely because
that method was easier to administer. Id.Here, the Order imposes substantially similar restrictions on Plaintiffs’ First
Amendment activities as the buffer-zone statute did in McCullen. Specifically, the Order
imposes a categorical ban on First Amendment activity within the Restricted Areas. This
ban effectively destroys Plaintiffs’ ability to engage in one-on-one communication and
leafletting within the Restricted Areas. And the record is silent on whether Plaintiff could
adequately identify and thereby engage in their preferred method of communication
before the public entered the Restricted Areas. Where the district court’s preliminary
injunction analysis was based on a public forum analysis and the record does not contain
facts to distinguish McCullen, we cannot conclude that the district court abused its
discretion in finding that the Plaintiffs are likely to succeed on the merits of their First
Amendment claim.
37
Moreover, the Judicial District’s asserted interests in banning First Amendment
activity in the Restricted Areas are largely identical to the government interests asserted
in McCullen: unhindered ingress and egress and public safety. See id. We agree these
interests are legitimate. But on this record at least, the district court did not abuse its
discretion in concluding the means chosen to achieve those interests—a total ban on
expressive activity—is not narrowly tailored, as even content-neutral regulations in a
public forum must be.9
In summary, the district court did not abuse its discretion by analyzing the issues
at the preliminary injunction stage as if the Restricted Areas were public fora, or by
considering alternative means of achieving the governmental interests in determining
whether the Order is narrowly tailored to serve a significant government interest.
Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to
prevail on their claim that the complete prohibition of Plaintiffs’ plans to distribute
pamphlets to people in a public forum is unconstitutional. See United States v. Apel, __
U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the
Government permits the public onto part of its property, in either a traditional or
designated public forum, its ‘ability to permissibly restrict expressive conduct is very
limited.’” (quoting United States v. Grace, 461 U.S. 171, 177 (1983)).
9
This is not to say that the Judicial District cannot impose content-neutral time,
place, and manner restrictions that are narrowly-tailored to advance the significant
interests it identifies. Indeed, several of the provisions contained in the Order were not
enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use
of sound amplification equipment. This type of content-neutral restriction has long been
upheld. See Ward v. Rock Against Racism, 491 U.S. 781, 796–97 (1989).
38
Nevertheless, because the question of the forum status of the Restricted Areas will
remain central to the district court’s permanent injunction analysis on remand, we now
address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l
Corp., 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions
of law raised in this appeal that are certain to arise again . . . in order to guide the district
court on remand.”). In doing so, we express no opinion as to the merits of that question.
C. Issues on Remand
To determine whether a permanent injunction should be granted, the district court
must reach a final decision on the First Amendment issues in this case. Because the
relevant First Amendment test varies according to the nature of the forum involved and
because the Judicial District will presumably contest Plaintiffs’ characterization of the
Restricted Areas as public fora, the district court is required to first determine the forum
status of the Restricted Areas. In resolving this question, the parties must present
evidence, and the district court must enter factual findings supporting its conclusion, that
each of the Restricted Areas constitutes a traditional public forum, a designated public
forum, or a nonpublic forum. See, e.g., Huminski v. Corsones, 396 F.3d 53, 90–92 (2d
Cir. 2004) (separately considering the forum status of state courthouses, court
lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959,
966–68 (9th Cir. 2002) (concluding plaintiffs were likely to succeed on First Amendment
challenge to rule restricting expressive clothing in municipal complex, including
courtrooms, because the rule “does not differentiate between courtrooms and other public
areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 739
(2008); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (Gilbert I) (holding
portions of courthouse grounds were designated public fora, while other parts of the
grounds were nonpublic fora). We summarize the relevant precedent on these issues now
in an attempt to aid the district court and the parties in this task on remand. In addition,
we provide some limited guidance to the district court and the parties on the tension
between the Judicial District and Denver over the appropriate use of the Restricted Areas.
1. Traditional Public Fora
The Supreme Court has long recognized “that public places historically associated
with the free exercise of expressive activities, such as streets, sidewalks, and parks, are
considered, without more, to be public forums.” United States v. Grace, 461 U.S. 171,
177 (1983) (internal quotation marks omitted); see also Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora
those spaces that “time out of mind[] have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions”). Here, the
Restricted Areas include the arced walkway that runs from the corner of Elati Street and
Colfax Avenue in a curved path across the front of the Courthouse to the Patio in front of
the main entrance to the Courthouse. The inclusion of this area raises at least a question
concerning its status as traditional a public forum.
The Supreme Court has also cautioned, however, that not all streets and sidewalks
are traditional public fora. See United States v. Kokinda, 497 U.S. 720, 727 (1990)
(discussing a postal sidewalk “constructed solely to provide for the passage of individuals
engaged in postal business” from the parking area to the post office door); Greer v.
40
Spock, 424 U.S. 828, 835–37 (1976) (speech restrictions on a military reservation that
contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are
highly relevant to the inquiry. See Grace, 461 U.S. at 179–80. “The mere physical
characteristics of the property cannot dictate” the outcome of the forum analysis.
Kokinda, 497 U.S. at 727. Rather, “the location and purpose of a publicly owned
sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”
Id. at 728–29.
The Supreme Court’s discussion in Grace is likely to be of particular relevance on
remand. In Grace, the Court considered whether a federal statute prohibiting expressive
activities on the Supreme Court’s grounds could be constitutionally applied to the
adjacent public sidewalks. 461 U.S. at 172–73. The Court found the public sidewalks
along the perimeter of the grounds were physically indistinguishable from other public
sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no
indication whatever to persons stepping from the street to the curb and sidewalks that
serve as the perimeter of the Court grounds that they have entered some special type of
enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.
672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing
[on whether it is a traditional public forum] because separation from acknowledged
public areas may serve to indicate that the separated property is a special enclave, subject
to greater restriction.”). In the absence of some physical distinction between typical
public sidewalks and the sidewalks making up the perimeter of the Court grounds, the
Court in Grace held the perimeter sidewalks were traditional public fora, subject only to
41
those restrictions normally allowed in such spaces. 461 U.S. at 180. Thus, on remand
here, the district court must determine whether the evidence supports a finding that the
arced walkway is physically distinguishable from other public sidewalks.
But the physical similarity to public sidewalks is not alone determinative of these
sidewalks’ forum status. In Kokinda, the Supreme Court held that a sidewalk owned by
and in front of a United States Post Office was not a traditional public forum, despite the
fact that it was physically identical to a public sidewalk across the parking lot from the
post office entrance. 497 U.S. at 727. The Court reasoned the post office sidewalk did not
share the characteristics of a sidewalk open to the public at large. Although the public
sidewalk formed a public passageway that served as a general thoroughfare, in contrast,
“the postal sidewalk was constructed solely to provide for the passage of individuals
engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a
traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on
remand should be focused on the physical characteristics and the intended and actual use
of any sidewalks included in the Restricted Areas.
Importantly, the mere fact a sidewalk abuts a courthouse or its grounds is not
determinative of the forum status of the sidewalk.10 The Grace Court expressly rejected
10
The cases relied on by the Judicial District do not support the blanket
proposition that all courthouse grounds are automatically nonpublic fora merely because
they physically abut a courthouse. Rather, these cases first conclude the grounds are not a
traditional public forum and then carefully consider the physical characteristics of the
government property, as well as the prior use of that property for expressive activities, to
determine its forum status. See Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004)
(holding courthouses were nonpublic fora where buildings housing the courts had not
been traditionally open to the public for expressive activities and such activities inside the
42
the idea that a traditional public forum could be transformed into a nonpublic forum
merely because of its physical proximity to government property. 461 U.S. at 180. The
Court stated
[t]raditional public forum property occupies a special position in terms of
First Amendment protection and will not lose its historically recognized
character for the reason that it abuts government property that has been
dedicated to a use other than as a forum for public expression. Nor may the
government transform the character of the property by the expedient of
including it within the statutory definition of what might be considered a
non-public forum parcel of property.
Id.; see also Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:32
(“With the development of modern public forum doctrine, courts increasingly have come
to recognize that they are not immune from the rules set down for other public
property.”). In Grace, the Supreme Court concluded, “[w]e are convinced . . . that the
[statute], which totally bans the specified communicative activity on the public sidewalks
around the Court grounds, cannot be justified as a reasonable place restriction primarily
because it has an insufficient nexus with any of the public interests [asserted].” 461 U.S.
at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not
determinative alone of its forum status.
courthouse would likely be incompatible with the purposes the courthouse serves);
Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002) (holding civil
complex, including courts and public offices had not “by long tradition or by government
fiat” been open to public expression and agreeing with parties that it was a nonpublic
forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7(2008). See also United States v. Gilbert (Gilbert I), 920 F.2d 878, 884–85 (11th Cir.
1991) (considering prior expressive activities on different areas of court grounds and
holding some portions had been designated as public fora, while other parts of the
grounds were nonpublic fora).
43
The district court will also be required to decide the forum status of the Patio
before it can apply the proper standard to restrictions on expressive activity in that
Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to
the question of whether the plaza in front of the Supreme Court was a traditional public
forum. See Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), petition for cert. filed,
84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The court’s analysis focused on the
plaza’s physical characteristics, emphasizing the architectural integration of the plaza
with the Supreme Court building itself, as well as the physical separation between the
plaza and the perimeter sidewalks. Id. at 1158–59. In particular, the D.C. Circuit relied on
evidence that the Supreme Court plaza is elevated from the public sidewalk by a set of
marble steps that contrast with the public sidewalk, but match the steps leading to the
entrance of the Supreme Court building. It also relied on evidence that the plaza is
surrounded by a low wall that matches the wall surrounding the Supreme Court building.
Id. at 1158. According to the court, a visitor would be on notice that the pathway to the
Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza
indicated an intentional separation from the surrounding sidewalks and because the plaza
had not traditionally been a space open for expressive activities, the D.C. Circuit held the
Supreme Court plaza was a nonpublic forum. Id. at 1159–60.
Here, the parties should present evidence and the district court should make
findings about the physical characteristics of the arced walkway and Patio, with attention
to the ways in which each is distinguished from public sidewalks and the public areas of
the Plaza. Specifically, the district court should consider whether it would be apparent to
44
a visitor that by entering the Patio he is entering an enclave connected with the
Courthouse and whether the use of the arced walkway is limited to courthouse ingress
and egress.
2. Designated Public Fora
If the district court finds that one or more of the Restricted Areas is not a
traditional public forum, it must next consider whether the Restricted Area has been
nevertheless designated as public fora. The Supreme Court has explained that “a
government entity may create ‘a designated public forum’ if government property that
has not traditionally been regarded as a public forum is intentionally opened up for that
purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (holding that
placement of certain privately donated permanent monuments in public park while
rejecting others constituted government, not public, speech). To create a designated
public forum, “the government must make an affirmative choice to open up its property
for use as a public forum.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 206
(2003) (holding that library’s provision of internet access did not open a designated
public forum, but was offered as a technological extension of its book collection). The
Court has further cautioned that “[t]he government does not create a public forum by
inaction or by permitting limited discourse, but only by intentionally opening a
nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ.
Fund, 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate
Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239, 2249–50 (2015) (holding that Texas did
not intentionally open its license plates to public discourse). Thus, the government’s
45
intent is the focus of this inquiry. See Cornelius, 473 U.S. at 802; see also Gen. Media
Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said
to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App.
LEXIS 40571, *15 (March 25, 1998).
The Supreme Court has further instructed that it “will not find that a public forum
has been created in the face of clear evidence of a contrary intent, nor will [it] infer that
the government intended to create a public forum when the nature of the property is
inconsistent with expressive activity.” Cornelius, 473 U.S. at 803. If the “principal
function of the property would be disrupted by expressive activity,” the Supreme Court is
“particularly reluctant” to conclude the government designated it as a public forum. Id. at
804. Consequently, prohibitions on speech within a courthouse have been routinely
upheld.11 See, e.g., Hodge, 799 F.3d at 1158 (upholding statute banning expressive
activities within Supreme Court building); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir.
2005) (“The courtroom is a nonpublic forum.”); Huminski, 396 F.3d at 91 (collecting
cases and holding that the interior of a courthouse is not a public forum); Sefick v.
Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a
traditional public forum or a designated public forum, not a place open to the public for
the presentation of views. No one can hold a political rally in the lobby of a federal
courthouse.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding that
courtroom is a nonpublic forum).
11
The preliminary injunction here does not enjoin the Order’s restrictions on
speech within the Courthouse.
46
Under facts similar to those here, the Seventh Circuit held the plaintiffs had no
First Amendment right to distribute jury nullification pamphlets in the lobby of the
county courthouse. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs]
have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to
disobey the judge’s instructions.” (emphasis added)). See also United States v. Ogle, 613
F.2d 233 (10th Cir. 1979) (upholding conviction for jury tampering where the defendant,
who did not raise a First Amendment defense, attempted to have jury nullification
literature delivered to a juror in a pending case).
Although there is little doubt the interior of a courthouse is a nonpublic forum, the
forum status of a courthouse’s exterior is dependent upon the unique facts involved.
Compare Grace, 461 U.S. at 182 (acknowledging “necessity to protect persons and
property or to maintain proper order and decorum within the Supreme Court grounds,”
but striking as unconstitutional a ban on expressive activities on abutting sidewalks), with
Cox v. Louisiana, 379 U.S. 559, 562–64, 572–74 (1965) (upholding statute prohibiting
demonstration outside a courthouse intended to affect the outcome of pending criminal
charges, but reversing defendant’s conviction pursuant to the statute under the
circumstances). In determining whether the government “intended to designate a place
not traditionally open to assembly and debate as a public forum,” the Supreme Court “has
looked to the policy and practice of the government and to the nature of the property and
its compatibility with expressive activity.” Walker, 135 S. Ct. at 2250 (internal quotation
marks omitted).
47
Applying these principles, the Eleventh Circuit reached contrary conclusions
regarding different portions of the grounds of a federal building housing a federal district
court and federal agencies. Gilbert I, 902 F.2d at 884. In Gilbert I, the plaintiff
challenged an injunction prohibiting him from using the federal building as his home and
from engaging in certain expressive activities in and around the building. The ground
level of the federal building included an interior lobby and, outside the lobby doors, a
covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations
had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered
plaza had been designated as a public forum. In contrast, it determined the covered
portico area was not a public forum. In reaching that conclusion, the court relied in part
on the district court’s finding that the Government Services Agency (GSA) had an
unwritten policy of excluding demonstrators from the covered portico. Although there
was evidence demonstrators had occasionally used the portico during protest activities,
the Eleventh Circuit relied on the district court’s finding that these were “isolated
instances of undiscovered violations” of the GSA policy and not the intentional “opening
of a nontraditional forum for public discourse.”12 Id. at 884–85.
12
After the Eleventh Circuit issued this decision, an unrelated security issue caused
the GSA to place a row of planters across the uncovered plaza and to issue a statement
limiting the public forum to the area between the planters and the public street. Mr.
Gilbert again sued and the circuit court upheld the district court’s ruling that the GSA had
effectively withdrawn the area between the planters and the building previously
designated as a public forum. See United States v. Gilbert (Gilbert III), 130 F.3d 1458,
1461 (11th Cir. 1997) (“The government is not required to retain indefinitely the open
character of a facility.”). Between Gilbert I and Gilbert III, the Eleventh Circuit upheld
Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States
v. Gilbert (Gilbert II), 47 F.3d 1116, 1117 (11th Cir. 1995).
48
As the decision in Gilbert I demonstrates, the issue of whether an area associated
with a courthouse has been designated as a public or nonpublic forum is highly dependent
on the evidence of the government’s intent to open the area to public speech. That intent
can be established by the government’s policy statements,13 affirmative actions by the
government to designate the area as a public forum,14 stipulation,15 the compatibility of
expressive activity with the principal function of the property,16 and whether and the
frequency with which public speech has been permitted in the forum.17 To avoid post hoc
13
Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1276-77 (10th Cir.
1996) (relying on senior citizen center policies to determine forum status of senior
centers); Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (relying on county
charter and local law as indicia of county’s intent to dedicate coliseum to a broad array of
public and expressive purposes); Gilbert I, 920 F.2d at 884 (relying on unwritten GSA
policy banning demonstrations from the covered portico).
14
Church on the Rock, 84 F.3d at 1278 (holding that senior centers were
designated as public fora because the city had “permitted lectures and classes on a broad
range of subjects by both members and non-members”); Huminski, 396 F.3d at 91
(holding courthouse parking lot is not a public forum because there was no evidence the
government did anything to designate it as such).
15
Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on
stipulation of the parties that courthouse steps are a public forum).
16
Paulsen, 925 F.3d at 70 (holding that coliseum grounds are a public forum, in
part, because the property can accommodate a wide variety of expressive activity without
threatening the government function of the facility); Greer v. Spock, 424 U.S. 828, 835–
37 (1976) (holding military reservation is not a public forum); Adderley v. Florida, 385
U.S. 39, 47 (1966) (same as to jailhouse).
17
Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (holding university’s policy of
accommodating student meetings created a forum generally open for student use);
Paulsen, 925 F.3d at 70 (“The grounds of the Coliseum have been used for parades,
political rallies and speeches, religious weddings and circuses. . . . Routinely, banners
have been displayed by patrons . . . . Significantly, . . . many groups, including war
veterans, the Christian Joy Fellowship and the Salvation Army, were regularly permitted
to solicit contributions or distribute literature.”); Gilbert I, 920 F.2d at 884 (holding that
unenclosed plaza of a federal building that houses courtrooms has been opened by the
government as a public forum because “[d]emonstrations occur there on a frequent
49
justification for a desire to suppress a particular message, courts have considered the
government’s statement of policy in light of the government’s actual practice. Air Line
Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1153–54 (7th Cir.
1995) (“[A] court must examine the actual policy—as gleaned from the consistent
practice with regard to various speakers—to determine whether a state intended to create
a designated public forum.”); Hays Cty. Guardian v. Supple, 969 F.2d 111, 117–18 (5th
Cir. 1992) (“[T]he government’s policy is indicated by its consistent practice, not each
exceptional regulation that departs from the consistent practice.”). Accordingly, forum
status is an inherently factual inquiry about the government’s intent and the surrounding
circumstances that requires the district court to make detailed factual findings. See
Stewart v. D. C. Armory Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that
“identifying the government’s intent . . . raises inherently factual issues that cannot be
resolved on a Rule 12(b)(6) motion”); Air Line Pilots, 45 F.3d at 1154 (same). And the
ultimate question is whether the facts indicate the government intended to open a
nontraditional forum to expressive activity. See Cornelius, 473 U.S. at 802 (“The
government does not create a public forum by inaction or by permitting limited discourse,
but only by intentionally opening a nontraditional forum for public discourse.”).
3. Disagreement Over Opening the Restricted Areas as Public Fora
Here, the issue of the government’s intent is complicated by the disagreement
between Denver and the Judicial District about the forum status of the Restricted Areas.
basis,” but holding covered portico was not opened as a public forum because occasional
demonstrations there were undetected violations of GSA policy).
50
According to Denver, it intended to and did open all areas of the Plaza, including those
within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of
the Defendants) entered into a Stipulation to this effect with Plaintiffs. Cf. Grider v.
Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that
courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s
Stipulation that the entire Plaza is a public forum cannot control the status of the
Restricted Areas because Colorado law vests the judicial branch with inherent authority
to regulate state courthouses. As such, the Judicial District asserts that its intent—not
Denver’s—should control the forum status of the Restricted Areas.
This argument between Defendants raises difficult and novel questions about the
intersection between a government property owner’s power to designate its property as a
public forum and the rights of the occupant of the government property—in this case
another governmental entity—to use that property without interference. The parties have
not directed us to any authority addressing the question of whose intent controls when
two governmental entities disagree about the status of the same forum, and our own
research has not revealed any decision precisely on point. But a review of the evolution
of the Supreme Court’s doctrine on speech forums reveals some fundamental principles
that may guide resolution of this difficult question.
The Supreme Court has not always recognized a First Amendment right of the
public to use publicly owned property for expressive purposes. Indeed, the Court’s early
jurisprudence recognized the absolute right of the government to exclude the public from
using its property. See Davis v. Massachusetts, 167 U.S. 43, 46–47 (1897); see also
51
Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233,
236–37 (discussing the Supreme Court’s early forum jurisprudence). In Davis, the Court
considered a First Amendment challenge to a Boston city ordinance forbidding “any
public address” on public property “except in accordance with a permit from the mayor.”
167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s
conviction for violating the ordinance by preaching on Boston Common without first
obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or
conditionally to forbid public speaking in a highway or public park is no more an
infringement of the rights of a member of the public than for the owner of a private house
to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis, 39 N.E. 113, 113
(Mass. 1895) (Holmes, J.)). The Supreme Court unanimously affirmed, concluding that
“[t]he right to absolutely exclude all right to use necessarily includes the authority to
determine under what circumstances such use may be availed of, as the greater power
contains the lesser.” Id. at 48. Under the Supreme Court’s jurisprudence at the time, the
government—as the owner of public property—retained an absolute right to exclude the
public from that property, just as any private property owner would have the right to
exclude others. See Stone, supra, at 237 (“[T]he state possessed the power absolutely to
prohibit the exercise of First Amendment rights of speech on public property simply by
asserting the prerogatives traditionally associated with the private ownership of land. The
complex and difficult problem of the public forum had been ‘solved’ by resort to
common law concepts of private property.”).
52
Later, the Supreme Court revisited the question of the public’s use of government
property for expressive purposes and again relied on traditional notions of private
property ownership. See Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). In
Hague, the Court considered the constitutionality of city ordinances prohibiting all public
meetings and leafletting in streets and other public places without a permit. Id. at 501–03.
Departing from its analysis in Davis, Justice Roberts, writing for a plurality of the Court,
stated:
Wherever the title of streets and parks may rest, they have immemorially
been held in trust for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions. Such use of the streets and public places
has, from ancient times, been a part of the privileges, immunities, rights,
and liberties of citizens. The privilege of a citizen of the United States to
use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in the guise
of regulation, be abridged or denied.
Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis—that
the owner of government property enjoyed the same prerogatives as any private property
owner—but then extended that premise to predicate a “public forum right upon
established common law notions of adverse possession and public trust.” Stone, supra, at
238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana,
1965 Sup. Ct. Rev. 1, 13 (describing Justice Roberts’s analysis in Hague as establishing
“a kind of First-Amendment easement” in which the public, through long use and
tradition, has acquired a right to use certain types of public property for First Amendment
purposes).
53
Although Justice Roberts spoke only for a plurality of the Hague Court, his
formulation has since been accepted by the Supreme Court as the prevailing rationale
underlying the concept of traditional public fora. See, e.g., Perry Educ., 460 U.S. at 45(defining traditional public fora by adopting Justice Roberts’s “time out of mind”
description). Even in the context of a traditional public forum in which the government
property owner’s power to exclude and curtail use is sharply circumscribed, the
underlying rationale is premised on traditional notions of private property ownership.
Indeed, the government’s power to control speech in a traditional public forum is
circumscribed precisely because the public has, through the extent and nature of its use of
these types of government property, acquired, in effect, a “speech easement” that the
government property owner must now honor.
The Supreme Court has continued to rely on traditional notions of property
ownership to describe the government’s ability to control the use of its property. For
example, the Supreme Court has recognized that the government, “no less than a private
owner of property, has power to preserve the property under its control for the use to
which it is lawfully dedicated.” Greer, 424 U.S. at 836 (emphasis added). This includes
the ability to designate portions of government property for expressive purposes. See
Perry Educ., 460 U.S. at 45. But the underlying rationale of a designated public forum is
that the governmental entity with control over the property can decide whether and to
what extent to open nontraditional fora to public speech. See Christian Legal Soc’y
Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010)
(“[I]n a progression of cases, this Court has employed forum analysis to determine when
54
a governmental entity, in regulating property in its charge, may place limitations on
speech.”) (emphasis added)).
In this case, the record before the district court at the preliminary injunction
hearing indicated that Denver is the owner of the Courthouse and its surrounding
grounds. It was also undisputed that there is no lease agreement between Denver and the
Judicial District that could have transferred some of Denver’s property interests to the
Judicial District. And the Judicial District is not the only occupant of the building; the
county also has courtrooms in the building. As a result, Denver’s intent will be
particularly relevant to a determination of whether the Restricted Areas were designated
as a public forum.
Nevertheless, the Judicial District argues Denver may not unilaterally designate
the Restricted Areas as public fora because, under Colorado law, the state judicial branch
is endowed with inherent authority as an independent and co-equal branch of government
to regulate state courthouses. The first problem with this argument is that it ignores the
limits of that inherent authority. Although Colorado permits its courts to do all that is
“reasonably required to enable a court to perform efficiently its judicial functions, to
protect its dignity, independence, and integrity, and to make its lawful actions effective,”
the Colorado Supreme Court has recognized that this inherent authority is not without its
limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545,
547–48 (Colo. 1995) (quoting Pena v. District Ct., 681 P.2d 953, 956 (Colo.1984)).
Specifically, the “court’s inherent authority terminates when its ability to carry out its
constitutional duty to administer justice is no longer threatened.” Id. at 549.
55
On the existing record, the Judicial District has not demonstrated that Plaintiffs’
First Amendment activities interfered with the ability of the Judicial District to carry out
its essential functions. Mr. Steadman testified that Plaintiffs’ pamphleteering presented
no security risk to the Courthouse. And the Judicial District presented no evidence
indicating that the narrow preliminary injunction issued by the district court would
interfere with its judicial functions. On the record before us, therefore, the Judicial
District has not demonstrated that the preliminary injunction issued by the district court
implicates the court’s inherent authority.
But it is also true that Denver’s statement of its intent is only one factor to be
considered by the district court in determining whether a permanent injunction should
issue. Recall that the government’s statement of policy should be weighed against the
evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots, 45 F.3d
at 1153; Hays Cty. Guardian, 969 F.2d at 117–18. Denver’s concession in the Stipulation
and its expressions of past intent could be motivated by fiscal or other considerations that
are inconsistent with its actual practice.
For example, although the evidence indicated that some expressive activity has
occurred in the Restricted Areas, those occasions may have been “isolated incidents of
undiscovered violations,” rather than evidence of affirmative acts to open the Restricted
Areas as public fora. Gilbert I, 920 F.2d at 885. And a contrary intent might be gleaned
from the design of the Restricted Areas and the extent to which public and private areas
are clearly separated. See Grace, 461 U.S. at 179–80. Also of importance in assessing
whether the Restricted Areas have been designated as public fora is the extent to which
56
doing so is incompatible with the primary use of the Courthouse. See Cornelius, 473 U.S.
at 803. That is, it would be strong evidence that Denver did not intend to designate all of
the Restricted Areas as public fora if to do so would destroy the primary function of the
Courthouse. Or in different terms, the district court must assess whether it is credible that
a governmental owner would construct a courthouse and install state and county judicial
operations within it, only to designate public fora so intrusively that the essential function
of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on
the question of whether the Restricted Areas have been designated as public fora, it is not
alone determinative of that question.
III. CONCLUSION
Based on the record before it, the district court did not abuse its discretion in
granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order
entering a limited preliminary injunction in favor of Plaintiffs, and REMAND for further
proceedings consistent with this decision.
57