Rita Warren v. Fairfax County ( 1999 )

Affirmed by published opinion. Chief Judge BULLOCK wrote the majority opinion, in which Judge WILLIAMS joined. Judge MURNAGHAN wrote a dissenting opinion.

OPINION

BULLOCK, Chief District Judge.

Appellant, Rita Warren (Warren), seeks to mount religious displays in a landscaped median located in front of the Fairfax County Government Center Complex (the Complex). Appellee, Fairfax County (the County), has adopted a regulation which designates the Complex, including the landscaped median, for use by County citizens, employees, and certain nonprofit organizations. The County has refused to issue Warren a permit to erect her displays because she is not within the class of speakers identified in the County’s regulation. The issue before this court is whether the County’s regulation violates Warren’s rights under the First and Fourteenth Amendments. Finding that the County’s regulation is viewpoint neutral and reasonable, we affirm.

I.

Warren, who is a devout Christian but is not a member of an organized religion, seeks to spread a message of love, hope, and peace by mounting religious displays at the Complex at certain times of the year. Specifically, she wants to erect a creche and a cross outside the Complex during the Christmas and Easter seasons. Warren is not a resident of Fairfax County, but is a resident of Fairfax City.¹

The Complex comprises three buildings in which over 2,500 County employees work, and adjacent grounds. The largest of the buildings is the Government Center building, which is the site of county government offices. A horseshoe-shaped driveway runs in front of the Government Center building. This driveway includes a landscaped median area known as the “Center Island.” Warren seeks to erect her displays in this Center Island.

The County’s Procedural Memorandum # 08-05 (the Memorandum) governs the use of all County common areas at the Complex, including the Center Island. The Memorandum declares that the County’s policy is to encourage “use of the common areas of the Government Center Complex by Fairfax County nonprofit organizations and individual citizens of Fairfax County for civic, cultural, educational, religious, recreational, and similar activities.” J.A. at 56. To that end, the Memorandum establishes procedures for obtaining a use permit. Significantly, the Memorandum specifically identifies the following groups as being allowed to use the Complex, including the Center Island: County residents, County employees, and County nonprofit groups. Based on this provision, the County has declined to issue Warren a permit to display her creche and cross in the Center Island area.

Warren instituted this suit in response to the County’s actions. Warren alleged the County, in enforcing the use provision, has violated and will continue to violate her First Amendment rights to free speech and to petition the government. Warren also maintained that the County has violated and will continue to violate her Fourteenth Amendment equal protection rights.² Warren sought a permanent injunction prohibiting the County from enforcing the use provision.

On cross-motions for summary judgment, the district court granted summary judgment in favor of the County. The district court, applying the standard of constitutional scrutiny applicable to nonpublic fora under established Supreme Court precedents, first found the use provision did not violate Warren’s First Amendment rights. The district court then found that, because the use provision did not violate the First Amendment, Warren’s Fourteenth Amendment claim also failed.

On appeal, Warren argues that the district court improperly analyzed the County’s use provision under the more lenient nonpublic-forum standard, as opposed to the more strict, traditional public-forum standard. Warren further argues that the use provision violates the First Amendment under the traditional public-forum standard and that the district court therefore erred in dismissing her claims under the First and Fourteenth Amendments.

II.

The standard of review in this case is de novo. Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.1995).

It is well settled that “the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981). Rather, an individual’s right to express herself on government property depends upon the type of property involved. In this regard, the Supreme Court has “ ‘identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum.’ ” Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875 (1998) (quoting Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). “Traditional public fora are defined by the objective characteristics of the property, such as whether, ‘by long tradition or by government fiat,’ the property has been ‘devoted to assembly and debate.’” Id. (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45,103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). Traditional public fora include areas such as streets, sidewalks, and parks, areas which have been used historically as locations for free expression. See United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Use of traditional public fora may be regulated only by content-neutral time, manner, and place restrictions, or by content-based restrictions which are tailored narrowly to serve a compelling government interest. Perry, 460 U.S. at 45, 103 S.Ct. 948.

Designated public fora are areas which the government has purposefully opened to the public for free expression. Arkansas Educ., 118 S.Ct. at 1641. Government regulations restricting speech in a designated public forum are scrutinized under the same standards as a traditional public forum. Perry, 460 U.S. at 46, 103 S.Ct. 948.

Government properties other than traditional or designated public fora are “either nonpublic fora or not fora at all.” Arkansas Educ., 118 S.Ct. at 1641. “Control over access to a nonpublic forum can be based on subject matter and subject identity so long as the distinctions drawn are reasonable in light of the purposes served by the forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806, 105 S.Ct. 3439.

Within this tripartite framework the Supreme Court has recognized that “[a] [designated] public forum may be created for a limited purpose such as use by certain groups, e.g., Widmar v. Vincent, [454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981)] (student groups), or for the discussion of certain subjects, e.g., City of Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm’n, [429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976)] (school board business).” Perry, 460 U.S. at 46 n. 7, 103 S.Ct. 948. Where the speaker comes within the class or purpose for which a designated public forum is made generally available, the government is bound by the same standards which apply in a traditional public forum. Arkansas Educ., 118 S.Ct. at 1641. Where, however, the speaker does not come within the class or purpose of the forum, the nonpublic forum standard applies. See Perry, 460 U.S. at 48, 103 S.Ct. 948 (in a nonpublic forum or even in a designated public forum “the constitutional right of access ... extend[s] only to entities of similar character” to which the government has permitted access); see also Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991) (“in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre”).

Warren first contends that the district court erred in concluding that the Center Island was not a traditional public forum. We disagree. Initially, we note that the Supreme Court has “rejected the view that traditional public forum status extends beyond its historic confines.” Arkansas Educ., 118 S.Ct. at 1641. The Center Island is not a street, sidewalk, or a park. Instead, it is a median dividing a u-shaped driveway. As the district court correctly noted, landscaped medians such as the Center Island are designed primarily for aesthetic purposes such as plantings and have not been used historically as a location for public expressive activity. As such, the Center Island is not a traditional public forum.³

Next, Warren argues that the County, in its Memorandum, has expressly designated the Center Island as an unlimited public forum. Again, we disagree. “The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse.” Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. Thus, to ascertain whether the Center Island is a designated public forum as to Warren, we must look to the County’s policies and practices to determine whether the County intended to designate the Center Island as a public forum. Id. If the government’s intent remains unclear, we should then look to the “nature of the property and its compatibility with expressive activity to discern the government’s intent.” Id. However, we will not find that “a public forum has been created in the face of clear evidence of contrary intent.” Id. at 803, 105 S.Ct. 3439.

To support her position that the County has designated the Center Island as a public forum, Warren relies principally on the Memorandum, which provides that it is the County’s “policy ... to encourage the use of common areas of the Government Center Complex by Fairfax County nonprofit organizations and individual citizens of Fairfax County for civic, cultural, educational, religious, recreational, and similar activities of a nonprofit nature.” J.A. at 56. The next section of the Memorandum, “Who May Reserve the Facilities of the Government Center Complex,” expressly opens the Complex for use by county residents, county employees, and any nonprofit organization which has an office in or serves the citizens of the county. J.A. at 58. Thus, while the Memorandum undoubtedly evidences the County’s intent to open the Complex and the Center Island to a broad spectrum of topics, it also provides clear evidence the County did not intend to open this forum to speakers such as Warren, who is neither a county resident nor an employee. As noted above, we cannot find that the County intended to designate the Center Island as a public forum for speakers such as Warren in the face of a clear indication from the County that it did not intend to do so. See Cornelius, 473 U.S. at 803,105 S.Ct. 3439.

At most then, the County’s Memorandum designates the Complex, including the Center Island, as a limited public forum. We do not need to decide, however, whether the Center Island is a limited public forum or a nonpublic forum in this case because, as Warren falls outside the class to whom the County has opened the Center Island, the level of scrutiny to be applied to the County’s regulation remains the same. See Perry, 460 U.S. at 48, 103 S.Ct. 948.⁴ That is, the County may exclude Warren from the Center Island so long as the restriction is viewpoint neutral and reasonable in light of the purposes served by the forum. See id.; Cornelius, 473 U.S. at 806,105 S.Ct. 3439.

First, it is undisputed that the use provision is viewpoint neutral. By its express terms, the Memorandum does not seek to restrict or limit the viewpoints of any speaker. Instead, as the district court correctly noted, it simply does not open the Complex to speakers who do not have the requisite connection with the County, regardless of the views that they may hold. Indeed, if Warren was a county resident or employee or represented a nonprofit organization serving the county, she could erect a religious creche in the Center Island.

At this point, then, the use provision “ ‘need only be reasonable; it need not be the most reasonable or the only reasonable limitation.’ ” United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion) (quoting Cornelius, 473 U.S. at 808, 105 S.Ct. 3439). The reasonableness of the restriction “must be assessed in light of the purpose of the forum and all the surrounding circumstances.” Cornelius; 473 U.S. at 809, 105 S.Ct. 3439. As the district court noted, the Complex, including the Center Island, was presumably built with funds provided by the citizens of the county and their tax dollars support the maintenance of the Center Island. Given that the Center Island is adjacent to a government center which has the purpose of conducting county business and serving county citizens, the Memorandum reasonably opens the Complex and Center Island to those citizens as well as to individuals or organizations who serve the County. See Multimedia Pub. Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 160 (4th Cir.1993) (restriction may be justified by “appeals to common sense and logic”). Moreover, it is reasonable for the County to conclude that limiting the use of the Center Island to County-related persons and entities will save the County money in maintenance and supervision expenses.

III.

We also agree with the district court’s conclusion that, because Warren has no First Amendment right to speak in the Center Island, Warren’s claim under the Fourteenth Amendment must also fail. This is because, in the absence of a First Amendment violation, the County’s use provision does not burden a fundamental right. This means that the provision need only rationally further a legitimate state interest. See Perry, 460 U.S. at 54, 103 S.Ct. 948. For the same reasons that the use provision is reasonable, it also rationally furthers legitimate interests of the County. See id.

IV.

Because the County’s use provision is reasonable and viewpoint neutral and because it rationally furthers a legitimate state purpose, Warren’s claims under the First and Fourteenth Amendments must fail. We therefore affirm the district court’s order granting summary judgment in favor of the County.

AFFIRMED.

1 . Fairfax City, Virginia, is a separate and distinct jurisdiction from Fairfax County, Virginia. J.A. at 50.

2 . In her complaint, Warren also asserted that the County’s use provision violated the Religious Freedom and Restoration Act (RFRA). The district court dismissed this claim in view of the Supreme Court’s holding in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), that the RFRA was unconstitutional. J.A. at 21. Warren also challenged an attendance requirement in the Memorandum which required that any display be attended by an adult at all times. The district court upheld this restriction as a content-neutral, reasonable time/place/manner restriction. Warren does not challenge these findings of the district court on appeal.

3 . The dissent argues that the Center Island is a traditional public forum because it shares the physical characteristics of a park or mall and is part of a class of property which, by history and tradition, has been opened and used for expressive activity. Alternatively, the dissent argues that the Center Island is a traditional public forum because it is "part and parcel” of a street or sidewalk. With respect to its latter argument, the dissent relies on a number of cases from other circuits which have treated median strips as part of a street or sidewalk. See, e.g., Sloman v. Tadlock, 21 F.3d 1462, 1465 (9th Cir.1994); Ater v. Armstrong, 961 F.2d 1224, 1225 (6th Cir.1992). We did not consider this argument because the district court specifically found that the Center Island was not a sidewalk or street, J.A. at 24, and Warren did not raise this argument on appeal.

Indeed, in the three questions presented for review and in the majority of her brief, Warren argues that the Center Island should be characterized as a designated public forum. In only one and one-half pages of her forty-seven page brief does Warren address the traditional public forum issue, and she cites only two cases, ACT-UP v. Walp, 755 F.Supp. 1281 (M.D.Pa.1991), and Women Strike for Peace v. Morton, 472 F.2d 1273(D.C.Cir.1972). While it is clear that certain parts of tlie grounds of capítol complexes have been held to be traditional public fora, see Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), the court in ACT-UP itself recognized that this does not mean that the entire area at a government center is a traditional public forum. See ACT-UP, 755 F.Supp. at 1287 (holding that the gallery of a state legislative chamber was not a traditional public forum); cf. United States v. Grace, 461 U.S. 171, 175, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (where regulation at issue related to the United States Supreme Court building and its grounds, including plaza and surrounding promenade, lawn area, steps and sidewalks, the Supreme Court expressly limited its consideration to the sidewalk area). Similarly, Warren’s reliance on Women Strike for Peace is misplaced because that case involved a national park, not a median area comparable to the Center Island. In this case, there is no evidence that the Center Island or similar median areas have been used historically as a location for speech activity. In the absence of such evidence, we cannot conclude that the Center Island is a traditional public forum. See International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (holding that airport terminal was not a traditional public forum because "the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity”).

4 . The district court concluded the Center Island was a limited public forum and, in so doing, relied upon a line of cases from the Second Circuit, which have characterized the limited public forum as a "subspecies” of the designated public forum. J.A. at 9-12 & n. 9; see, e.g., Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991); Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 229 (2d Cir.1996); Calash v. City of Bridgeport, 788 F.2d 80 (2d Cir.1986). Because we do not need to decide whether the Center Island is a limited public forum or nonpublic forum in this case, we express no view as to tire Second Circuit’s approach to limited public fora in this case.