Warren v. Fairfax County

Rehearing en banc granted by order filed 4/21/99;
published opinion filed 2/19/99 is vacated.
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RITA WARREN,
Plaintiff-Appellant,
v. No. 98-1059
FAIRFAX COUNTY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CA-97-119-A)
Argued: September 23, 1998
Decided: February 19, 1999
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BULLOCK, Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Bullock wrote the major-
ity opinion, in which Judge Williams joined. Judge Murnaghan wrote
a dissenting opinion.
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COUNSEL
ARGUED: Victor Michael Glasberg, VICTOR M. GLASBERG &
ASSOCIATES, Alexandria, Virginia, for Appellant. James Patrick
Taves, Senior Assistant County Attorney, Fairfax, Virginia, for
Appellee. ON BRIEF: Jeanne Goldberg, VICTOR M. GLASBERG
& ASSOCIATES, Alexandria, Virginia; Mary Bauer, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Rich-
mond, Virginia, for Appellant. David P. Bobzien, County Attorney,
Karen L. Gibbons, Assistant County Attorney, Fairfax, Virginia, for
Appellee.
_________________________________________________________________
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 Gov-
ernment 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, employ-
ees, 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 orga-
nized 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
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1 Fairfax City, Virginia, is a separate and distinct jurisdiction from Fair-
fax County, Virginia. J.A. at 50.
2
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 Memoran-
dum) 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 organiza-
tions and individual citizens of Fairfax County for civic, cultural, edu-
cational, 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 fol-
lowing groups as being allowed to use the Complex, including the
Center Island: County residents, County employees, and County non-
profit 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 vio-
lated 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, apply-
ing the standard of constitutional scrutiny applicable to nonpublic fora
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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 (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
under established Supreme Court precedents, first found the use pro-
vision 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 ana-
lyzed 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 (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 cre-
ated by government designation, and the nonpublic forum.'" Arkansas
Educ. Television Comm'n v. Forbes, 523 U.S. ___, 118 S. Ct. 1633,
1641 (1998) (quoting Cornelius v. NAACP Legal Defense and Educ.
Fund, Inc., 473 U.S. 788, 802 (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 (1983)). Tra-
ditional 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 (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 govern-
ment interest. Perry, 460 U.S. at 45.
4
Designated public fora are areas which the government has pur-
posefully 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.
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 at 806.
Within this tripartite framework the Supreme Court has recognized
that "[a] [designated] public forum may be created for a limited pur-
pose such as use by certain groups, e.g., Widmar v. Vincent, [454 U.S.
263 (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 (1976)] (school board business)."
Perry, 460 U.S. at 46 n.7. 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 (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. Ini-
tially, we note that the Supreme Court has "rejected the view that tra-
ditional 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 drive-
5
way. 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 tradi-
tional public forum.3
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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 dis-
trict 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 the grounds of cap-
itol complexes have been held to be traditional public fora, see Edwards
v. South Carolina, 379 U.S. 229 (1963), the court in Act-Up itself recog-
nized 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 (1983) (where reg-
ulation 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 evi-
dence that the Center Island or similar median areas have been used his-
torically as a location for speech activity. In the absence of such
evidence, we cannot conclude that the Center Island is a traditional pub-
lic forum. See International Soc'y for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672, 680 (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").
6
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 dis-
course." Cornelius, 473 U.S. at 802. 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.
To support her position that the County has designated the Center
Island as a public forum, Warren relies principally on the Memoran-
dum, which provides that it is the County's "policy . . . to encourage
the use of common areas of the Government Center Complex by Fair-
fax 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 Govern-
ment 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.
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 out-
side the class to whom the County has opened the Center Island, the
7
level of scrutiny to be applied to the County's regulation remains the
same. See Perry, 460 U.S. at 48.4 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.
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 cor-
rectly 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 (1990) (plurality opin-
ion) (quoting Cornelius, 473 U.S. at 808). 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. 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 cit-
izens, 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.
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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 Cir-
cuit 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 the Second Circuit's
approach to limited public fora in this case.
8
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 Coun-
ty's use provision does not burden a fundamental right. This means
that the provision need only rationally further a legitimate state inter-
est. See Perry, 460 U.S. at 54. For the same reasons that the use pro-
vision 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
MURNAGHAN, Circuit Judge, dissenting:
I respectfully dissent from the majority. I would hold that the Cen-
ter Island mall is a traditional public forum since it shares the objec-
tive characteristics of such fora. Alternatively, I would hold that
Fairfax County (the "County") designated the Center Island area a
public forum and that the County's attempt to limit the class of those
who may benefit from that designation to residents and employees is
unreasonable in light of the objective characteristics and purposes of
the property.
9
I.
Fairfax County seeks to privilege the residents of the County,
County employees, and County non-profits1 (hereinafter collectively
referred to as "residents" or "qualified persons") by allowing only
these groups to use the facilities and grounds of the Fairfax County
Government Center Complex for personal or private use. The County
issued a Memorandum in November, 1996, which states that it is
County policy "to encourage use of the common areas of the Govern-
ment Center Complex by [qualified persons] for civic, cultural, edu-
cational, religious, recreational and similar activities ...." Fairfax
County Procedural Memorandum No. 08-05 at 2 (Nov. 18, 1996) (the
"Memorandum"). The Government Center Complex serves as the
capitol of the County, housing various County executive employees,
as well as the meeting place of the County Board of Supervisors. At
issue before us is the constitutionality of the Memorandum as applied
to the exterior grounds of the Government Complex, specifically a
wide, landscaped mall lying directly in front of the County seat
known as the "Center Island".
Rita Warren lives in Fairfax City, an independent jurisdiction from
Fairfax County, but one entirely surrounded by the County.2 In
November, 1996, Ms. Warren filed for a permit to erect a holiday dis-
play on the Center Island mall. The County, acknowledging that a
qualified person would be able to mount exactly the same display,
denied Ms. Warren a permit because she was not a County resident.
Believing the basis for this denial to be contrary to the spirit of our
country and its constitutive document, Ms. Warren brought this lawsuit.3
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1 Defined as "[a]ny nonprofit organization which has an office in Fair-
fax County and/or serves the citizens of Fairfax County ...." Fairfax
County Procedural Memorandum No. 08-05 at 4 (Nov. 18, 1996).
2 Until 10 years ago, the Fairfax County seat of government was
located in Fairfax City.
3 Although at oral argument Warren cited to the Privileges and Immu-
nities clause, U.S. Const. art. IV, § 2, cl. 1, she did not base her claim
on the Privileges and Immunities clause. Nor could she have done so
since she is a citizen of Virginia. See United Building and Construction
Trades Council of Camden County and Vicinity v. Mayor and Council of
the City of Camden, 465 U.S. 208, 217 (1984). A citizen from another
state could bring a Privileges and Immunities clause challenge against
the Memorandum, however. See id. at 215-18. I make no comment as to
the validity of such a claim.
10
II.
The Supreme Court recently confirmed that courts should evaluate
First Amendment rights on government-owned property under a pub-
lic forum analysis. See Arkansas Educ. Television Comm'n v. Forbes,
523 U.S. ___, ___, 118 S. Ct. 1633, 1641 (1998). The public forum
analysis was created to recognize that the government must be able
to limit the use of its property to the intended purpose for which the
property was created, see, e.g., Cornelius v. NAACP Legal Defense
and Educ. Fund, Inc., 473 U.S. 788, 800 (1985); Adderley v. Florida,
385 U.S. 39, 48 (1966), and to limit access to those rightfully con-
ducting business there, see, e.g., Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 53 (1983). Toward that end, the Court
has identified at least three types of fora for First Amendment pur-
poses, each subject to a different regime of constitutional scrutiny: the
traditional public forum, the designated public forum, and the non-
public forum. Ark. Educ., 523 U.S. at #6D 6D6D#, 118 S. Ct. at 1641 (quoting
Cornelius, 473 U.S. at 802). The Court distinguishes between these
fora based upon the physical characteristics of the property, including
its location, see, e.g., Frisby v. Schultz, 487 U.S. 474, 480-481 (1988);
United States v. Grace, 461 U.S. 171, 177, 179 (1983); the objective4
use and purposes of the property, see, e.g., Ark. Educ., 523 U.S. at
___, 118 S. Ct. at 1641; Cornelius, 473 U.S. at 800, 805, 809; and
government intent and policy with respect to the property, which may
be evidenced by its historic and traditional treatment, see, e.g., Int'l
Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680-
681 (1992). None of these factors is dispositive. See United States v.
Kokinda, 497 U.S. 720, 727 (1990) (plurality opinion) (physical char-
acteristics of property not dispositive); Grace , 461 U.S. at 177 (fact
that property is subject to use by general public is not dispositive);
Lee v. Int'l Society for Krishna Consciousness, Inc. , 505 U.S. 830
(1992) (government policy prohibiting distribution of literature on
_________________________________________________________________
4 The term "objective" in this context means, "without reference to the
attempted restriction on speech". The restriction on speech cannot be
used to justify itself, but must be justified by reference to some non-
speech-restrictive aspect of the forum. See, e.g., Int'l Society for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 691 (1992) (O'Connor, J., con-
curring in ISKCON v. Lee and concurring in the judgment in Lee v.
ISKCON, 505 U.S. 830 (1992)).
11
property struck down); Cornelius, 473 U.S. at 805 (government's
decision to limit access is not itself dispositive).
Traditional public fora have objective characteristics which "re-
quire the government to accommodate private speakers." Ark Educ.,
523 U.S. at ___, 118 S. Ct. at 1641. See also ISKCON v. Lee, 505
U.S. at 686 (O'Connor, J., concurring in ISKCON v. Lee and concur-
ring in the judgment in Lee v. ISKCON) (Public access to traditional
public fora is "`inherent in the open nature of the locations'") (quoting
Kokinda, 497 U.S. at 743 (Brennan, J., dissenting)). The typical tradi-
tional public forum is property which has the physical characteristics
of a public thoroughfare, see, e.g., Kokinda, 497 U.S. at 727 (plurality
opinion), which has the objective use and purpose of open public
access or some other objective use and purpose inherently compatible
with expressive conduct, see, e.g., Ark. Educ., 523 U.S. at ___, 118
S. Ct. at 1641, and which by history and tradition has been used for
expressive conduct, see, e.g., Perry, 460 U.S. at 45. The archetypical
examples of traditional public fora are streets, sidewalks, and parks:
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 pub-
lic places has, from ancient times, been a part of the privi-
leges, immunities, rights, and liberties of citizens.
Hague v. C.I.O., 307 U.S. 496, 515-16 (1939). See also Grace, 461
U.S. at 177. Since it is so likely that any given street, sidewalk, or
park meets all three characteristics of a traditional public forum a
court can generally treat a street, sidewalk, or park as a traditional
public forum without making a "particularized inquiry". See Frisby v.
Schultz, 478 U.S. at 481; Grace, 461 U.S. at 179-180; ISKCON v.
Lee, 505 U.S. at 697 (Kennedy, J., concurring in the judgments in
ISKCON v. Lee and Lee v. ISKCON). Occasionally, further inquiry
may be necessary even when property has the physical characteristics
of a traditional public forum and is generally open to public traffic.
For instance, neither a sidewalk on a military base over which the
military has retained control, compare Greer v. Spock, 424 U.S. 828
(1976), with Flower v. United States, 407 U.S. 197 (1972) (per
12
curiam), cited with approval in Greer, 424 U.S. at 835, nor a single-
purpose sidewalk physically separated from the rest of municipal
sidewalks and part of a class historically subject to restrictions, see
Kokinda, 497 U.S. 720 (plurality opinion),5 are traditional public fora.
The Supreme Court has recently stated that traditional public forum
status does not "extend[ ] beyond its historic confines ...." Ark. Educ.,
523 U.S. at ___, 118 S. Ct. at 1641. The Court has never precisely
stated what those confines are, however. For instance, the Court has
never defined the terms "street," "sidewalk," or "park." Nor has the
Court strictly limited the traditional public forum category to streets,
sidewalks, and parks. See Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975) (leased municipal theater is a public forum);
Heffron v. Int'l Society for Krishna Consciousness, Inc., 452 U.S. 640
(1981) (state fair is a public forum); Edwards v. South Carolina, 372
U.S. 229 (1963) (grounds of state capitol are a traditional public
forum).
Access to traditional public fora may be limited only by content-
neutral and "reasonable restrictions on the time, place, or manner of
protected speech, provided the restrictions ...`are narrowly tailored to
serve a significant governmental interest, and that they leave open
ample alternative channels for communication of the information.'"
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting
Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293
(1984)). Exclusion on the basis of speaker-identity is valid only where
the exclusion is necessary to serve a compelling state interest and the
exclusion is narrowly drawn to achieve that interest. Ark. Educ., 523
U.S. at ___, 118 S. Ct. at 1641 (quoting Cornelius, 473 U.S. at 800).
The second category is the nonpublic forum. Some Supreme Court
precedent indicates that all government properties which are not tradi-
tional public fora and which the government has not intentionally
opened to expressive conduct are nonpublic fora. See ISKCON v. Lee,
_________________________________________________________________
5 It is notable, though, that five Justices evaluated the restriction at
issue in Kokinda under the traditional public forum standard. See
Kokinda, 497 U.S. at 737 (Kennedy, J., concurring in the judgment); id.
at 740 (Brennan, J., dissenting, joined by Marshall, Stevens, and, in part,
Blackmun).
13
505 U.S. at 680. But see Kokinda, 497 U.S. at 738-39 (Kennedy, J.,
concurring in the judgment) (objective characteristics and customary
use by the public may control forum designation over government
intent). Accord ISKCON v. Lee, 505 U.S. at 693 (Kennedy, J., concur-
ring in the judgments in ISKCON v. Lee and Lee v. ISKCON). Cover-
ing such a wide variety of property, it is difficult to narrow the exact
physical characteristics,6 objective uses and purposes, and govern-
ment intent that must characterize nonpublic fora. One characteristic
has been assumed in all of the Supreme Court cases that address the
issue, however: opening the nonpublic forum to expressive conduct
will somehow interfere with the objective use and purpose to which
the property has been dedicated.7 See, e.g., Ark. Educ., 523 U.S. at
___, ___, 118 S. Ct. at 1641, 1643; ISKCON v. Lee, 505 U.S. at 681;
id. at 699 (Kennedy, J., concurring in the judgments in ISKCON v.
Lee and Lee v. ISKCON); Kokinda, 497 U.S. at 728-29, 733 (plurality
opinion) (designation as nonpublic forum depends, in part, on purpose
of property; solicitation disrupts purpose); Cornelius, 473 U.S. at 800;
United States Postal Service v. Council of Greenburgh Civic Ass'ns,
453 U.S. 114, 130 n.6 (1981); Greer v. Spock, 424 U.S. at 838;
Adderley v. Florida, 385 U.S. at 47-48. The Supreme Court has
addressed this characteristic in evaluating the types of speech restric-
tions that are permissible in nonpublic fora. Restrictions on speech in
nonpublic fora must be viewpoint neutral and reasonable "in light of
the purpose of the forum and all the surrounding circumstances".
Cornelius, 473 at 809. Therefore, restrictions on speech in public fora
are justified to the extent that the speech at issue would interfere with
the objective purposes and use of the forum. See , e.g., ISKCON v.
Lee, 505 U.S. at 688, 692 (O'Connor, J., concurring in ISKCON v.
Lee and concurring in the judgment in Lee v. ISKCON) (quoting
Perry, 460 U.S. at 50-51, itself quoting U.S.P.S. v. Greenburgh, 453
U.S. at 129-130) (reasonableness justified by "lawfully dedicated"
_________________________________________________________________
6 A forum need not have a physicalexistence. See, e.g., Ark. Educ., 523
U.S. ___, 118 S. Ct. 1633 (public access debate); Rosenberger v. Rector
and Visitors of the Univ. of Va., 515 U.S. 819 (1995) (student activities
fund).
7 There are actually two assumptions here: First, that the property has
been dedicated to some objective use or purpose (i.e., a use or purpose
independent of any speech restrictions); and second, that the objective
use or purpose is somehow inconsistent with free and open speech.
14
intended use of the property). See also Multimedia Pub. Co. v.
Greenville-Spartanburg Airport District, 991 F.2d 154, 159 (4th Cir.
1993) ("the overall assessment [as to reasonableness] must be
undertaken with an eye to the `intended purposes,' of [the property]
and of the ways in which the regulated conduct ... might actually
interfere with the carrying out of those purposes.").
The final category is actually a hybrid of the other two. So-called
"designated public fora" (often called "limited public fora") are those
properties which the government has opened for expressive activity
to the public, or some segment of the public. Ark. Educ., 523 U.S. at
___. A designated public forum can be opened only to a limited class
of speakers or for limited topics. Perry, 460 U.S. at 46 n.7. Merely
allowing some speech on property that is not a traditional public
forum does not automatically create a designated public forum. The
Supreme Court recently clarified the distinction. The government
creates a designated public forum when it purposefully makes prop-
erty "generally available" to a class of speakers. See Ark. Educ., 523
U.S. at ___, 118 S. Ct. at 1642 (quoting Widmar v. Vincent, 454 U.S.
263, 264 (1981)). By contrast, the government may retain nonpublic
forum status by allowing selective, permission-only access to the
forum. See id. The granting of such permission must be contingent
upon non-ministerial judgments. See id.; Cornelius, 473 U.S. at 804.
Two levels of First Amendment analysis are applicable to limited
public fora. First, is the "internal standard" -- "[i]f the government
excludes a speaker who falls within the class to which a designated
[limited] public forum is made generally available, its action is sub-
ject to strict scrutiny." Ark. Educ., 523 U.S. at ___, 118 S. Ct. at 1641.
That is, as regards the class for which the forum has been designated,
a limited public forum is treated as a traditional public forum. So, for
instance, a University may not exclude certain student speakers from
meeting space or university funding otherwise available on a general-
ized basis to students and student groups. See Widmar, 454 U.S. 263.
Cf. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S.
819 (1995) (exclusion was viewpoint-based).
The second standard, the "external standard", places restrictions on
the government's ability to designate the class for whose especial
benefit the forum has been opened. The Supreme Court has not yet
15
clearly stated what these external limitations are, except to say that
once a limited forum has been created, entities of a"similar character"
to those allowed access may not be excluded. Perry, 460 U.S. at 48.
Cf. also id. at 55 ("the state may draw distinctions which relate to the
special purpose for which the property is used"); Ark. Educ., 523 U.S.
at ___, 118 S. Ct. at 1647 (Stevens, J., dissenting) ("the First Amend-
ment will not tolerate arbitrary definitions of the scope of the
forum."); Cornelius, 473 U.S. at 825-27 (Blackmun, J., dissenting)
(discussing limits, if any, placed on government's ability to define the
scope of a limited public forum). Initially, since designated public
fora, in the absence of an affirmative governmental designation,
would be treated as nonpublic fora, it would seem logical that the
selection of the class would be subject only to the standards applica-
ble to restrictions on speakers in a nonpublic forum. That is, the selec-
tion of a class by the government must only be viewpoint neutral and
reasonable in light of the objective purposes served by the forum.8 See
ante at 7.
III.
A.
The Center Island mall is a traditional public forum. The Center
Island mall has the physical characteristics of a public thoroughfare
like a park or a mall; it has the objective use and purposes of open
public access and its use is eminently compatible with expressive
activity; and it is part of a class of property which by history and tra-
dition has been open and used for expressive activity.
The Center Island mall has the physical characteristics of a public
thoroughfare like a park or a mall. The district court and the majority
disagree. They describe the Center Island mall as merely a landscaped
"median dividing a u-shaped driveway" and they argue that land-
_________________________________________________________________
8 As Justice Blackmun has pointed out, see Cornelius, 473 U.S. at 825-
27, this in effect makes the limited public forum analytically indistinct
from a nonpublic forum. If it is reasonable (or unreasonable) to exclude
a speaker from a nonpublic forum, then it must also be reasonable (or
unreasonable) to exclude the speaker from the class of speakers to which
the forum has been opened on a limited basis.
16
scaped medians are not traditional public fora. Both contentions are
wrong.
The Center Island mall is not merely a landscaped median strip.
We have not been given the exact dimensions of the Center Island
mall, but the aerial photos indicate that it is at least 30 yards wide and
approximately two hundred yards long (i.e., it has more square foot-
age than a football field), divided into three sections of roughly equal
size by street intersections. Sidewalks circumnavigate the mall and
traverse a center landscaped area, inviting pedestrians to stroll along
the mall and explore the landscaping further. The section of the mall
closest to the Government Center features a circular landscaped area
with additional walkways. A "mall" is defined as "a usu[ally] public
area (typically a lane or similar strip) often set with trees or bushes
or flowers and designed as a promenade for leisurely strolling or as
a pedestrian walk." Webster's Third New International Dictionary
1367 (unabr. 1993). A park is "a tract of land maintained by a city or
town as a place of beauty or of public recreation." Id. at 1642. The
Center Island mall fits neatly into these definitions.
The majority tries to avoid these common sense designations of the
Center Island mall by focusing on the fact that the Center Island mall
is surrounded by a "driveway". The fact that the Center Island mall
is surrounded by streets or a "driveway" does not suggest that it is not
a public forum. Municipal parks and malls are always surrounded by
streets. Because of limited space in municipalities, parks and malls
must be squeezed between streets, serving both as destinations for
park-type activities and as traffic control mechanisms. See, e.g.,
Flamer v. City of White Plains, New York, 841 F. Supp. 1365, 1368
(S.D.N.Y. 1993) (noting that municipal park was merely a median
between two streets, only 15 feet wide at its narrowest end). Under
the majority's approach, one could argue that the National Mall is
merely a median dividing Independence Avenue from Constitution
Avenue, or, more to scale, that the Mount Vernon park in Baltimore,
housing the nation's first Washington monument, is merely a median
dividing traffic on Charles Street.
In fact, that the Center Island mall is an open area surrounded by
a "U-shaped driveway" lying directly in front of a seat of government
provides support for the idea that the Center Island mall is a tradi-
17
tional public forum. The physical characteristics of the Center Island
mall are strikingly similar to the government center grounds in
Edwards v. South Carolina, 372 U.S. 229. There the Supreme Court
described the grounds on and around which the protesters were
marching as the "horseshoe," a fairly large open area, surrounded by
sidewalks. Edwards, 372 U.S. at 230. The"horseshoe" received its
name because it was defined by a U-shaped driveway. See id. at 230-
32, 240 & n.3 (majority opinion and Clark, J., dissenting). The
Supreme Court had no trouble treating the horseshoe-- an open area
surrounded by a U-shaped driveway -- as a traditional public forum.
See id. at 235-236. I would follow the Supreme Court's lead.
The Center Island mall has the objective use and purpose of open
access to the general public, which is eminently compatible with the
widest scope of expressive activity. The majority argues that areas
like the Center Island mall do not have the objective purpose and use
to promote expressive activity because they are"designed primarily
for aesthetic purposes such as plantings". Ante, at 6. This is irrelevant,
however; the fact that the Center Island mall may have been designed
primarily for "aesthetic purposes, such as plantings" does not provide
support for the majority's position. First, the primary purpose for
which a particular piece of property was created is not dispositive.
One cannot seriously argue with Justice Kennedy's observation that
the traditional public fora of streets, sidewalks, and parks are not pri-
marily designed for expressive purposes. See ISKCON v. Lee, 505
U.S. at 696-97 (Kennedy, J., concurring in the judgments in ISKCON
v. Lee and Lee v. ISKCON). Sidewalks are designed for safer and
more convenient walking; the Supreme Court has noted that "the pri-
mary purpose to which the streets are dedicated" is "the movement of
people and property." Schneider v. State of New Jersey, 308 U.S. 147,
160 (1939). As the definitions quoted above indicate, and any stroll
will confirm, parks and malls are often designed merely for aesthetic
purposes, including plantings. The test is not whether the property
was designed for expressive activity, but whether the objective uses
and purposes of the property are compatible with the wide measure
of expressive conduct characterizing public fora. See Grayned v. City
of Rockford, 408 U.S. 104, 116 (1972) ("The crucial question is
whether the manner of expression is basically incompatible with the
normal activity of a particular place at a particular time."). There is
no doubt that the objective use and purpose of the Center Island mall
18
is compatible with expressive activity. The Center Island is an out-
door, non-enclosed area, open to the public. The County has admitted
that speech is compatible with the Center Island mall by "encourag-
ing" qualified persons (who number close to one million people) to
use it for all manner of expressive activity. The district court agreed
with the County's assessment:
Because it is close to the seat of government and yet far
enough away that activity there would cause no disruption,
it is a particularly apt location in which to engage in politi-
cal or otherwise protected speech.
988 F. Supp. 957, 963. In fact, up until November 1996, access to the
Center Island was apparently open to all speakers via a licensing pro-
cedure. Ms. Warren was actually allowed to mount a Christmas dis-
play on the grounds of the Government Center Complex in 1995.
Finally, the Center Island is part of a class of property which, by
history and tradition, has been treated as a public forum. It is a part
of the grounds of a seat of legislative and executive power. "In gen-
eral, the grounds ... of state and federal capitol complexes ... have
consistently been held to be public fora." ACT-UP v. Walp, 755 F.
Supp. 1281, 1287 (M.D. Pa. 1991) (citing, inter alia, Grace, 461 U.S.
171). See also Edwards, 372 U.S. 229; Adderley v. Florida, 385 U.S.
at 41 (distinguishing Edwards by stating,"[t]raditionally, state capitol
grounds are open to the public. Jails ... are not."); Women Strike for
Peace v. Morton, 472 F.2d 1273, 1287 (D.C. Cir. 1972) (Wright, J.,
concurring) ("Parks are much more like state capitol grounds ....
[they] have long been regarded as `a particular kind of community
area that, under the Anglo-American tradition, are available, at least
to some extent and on a reasonable basis, for groups of citizens con-
cerned with the expression of ideas.'") (quoting Women Strike for
Peace v. Hickel, 420 F.2d 597, 600 (1969)).
Thus, we are faced with a park or a mall, strikingly similar to prop-
erty already determined by the Supreme Court to be a traditional pub-
lic forum, which is open to the public, which is suitable and actually
used for expressive activity, and which, lying directly in front of a
seat of government power, is part of a class of property traditionally
19
open to expressive activity. I cannot fathom how the majority main-
tains that the Center Island mall is not a public forum.
B.
Even if I was to agree with the majority that the Center Island mall
is only a landscaped median strip, I would disagree with the majori-
ty's conclusion that median strips are not traditional public fora.9 Nei-
ther the district court nor the majority cited to any authority
supporting their novel attempt to carve out an exception from the pub-
lic forum doctrine for property that, quite literally, lies at the heart of
the Supreme Court's quintessential example of the traditional public
forum. If streets, sidewalks and parks are traditional public fora, then
a court bears a heavy burden in explaining why property which is
merely a combination of all three from the standpoint of physical
characteristics, objective uses and purposes, and traditional and his-
toric treatment, is not. Median strips, like sidewalks, are integral parts
of the public thoroughfares that constitute the traditional public fora.10
In many cases, median strips house sidewalks.11 If a person who is
rightfully on a street or sidewalk left open to the public "carries with
him there as elsewhere the constitutional right to express his views in
an orderly fashion," Jamison v. Texas, 318 U.S. 413, 416 (1943), I do
_________________________________________________________________
9 I note that I am not referring to median strips on interstates and simi-
larly cordoned off expressways, which by their nature are not generally
accessible to pedestrians. The Center Island mall is not such a median
strip, as evidenced by the sidewalks around its circumference. For a dis-
cussion of the great variety of median strip shapes, sizes, and characteris-
tics, see ACORN v. City of New Orleans, 606 F. Supp. 16, 19 n.6, and
22-24 (E.D. La. 1984).
10 Many jurisdictions even include median strips and sidewalks in their
definition of the term "street". See, e.g., Central American Refugee
Center-Carecen (N.Y.) v. City of Glen Cove, 753 F. Supp. 437, 443
(E.D.N.Y. 1990); ISKCON of New Orleans, Inc. v. City of Baton Rouge,
668 F. Supp. 527, 530 n.3 (M.D. La. 1987), aff'd 876 F.2d 494 (5th Cir.
1989).
11 The majority's approach would force courts in the future to try and
distinguish when a sidewalk is a public forum because it is a sidewalk
and when a sidewalk is a nonpublic forum because it is actually a median
strip.
20
not see how the person loses that right merely by stepping onto the
median. Nor does the general public. Consistent with the median
strip's function as part of the public thoroughfares traditionally open
to the public for expressive activities, people have been engaging in
such activity on median strips for as long as median strips have been
in existence. Newspaper criers, local civic fundraisers, members of
political campaigns, religious groups, and people with a message have
often chosen median strips, with their ready access to the bustle of
undifferentiated humanity, as their preferred launching point for
expressive conduct.
In fact, given that streets and sidewalks are the prototypical exam-
ples of traditional public fora, I am perplexed at the majority's con-
clusory, one-sentence dismissal of the idea that medians are not part
of these traditional public fora. Especially so, since every other court
that has addressed the matter has treated medians for First Amend-
ment purposes as part and parcel of the streets and sidewalks of which
they form an integral part, including the Ninth Circuit, the Sixth Cir-
cuit, the Fifth Circuit, the Eighth Circuit, and a court in the Eleventh
Circuit. See Sloman v. Tadlock, 21 F.3d 1462, 1465, 1469 (9th Cir.
1994); ACORN v. City of Phoenix, 798 F.2d 1260, 1267 (9th Cir.
1986); Ater v. Armstrong, 961 F.2d 1224, 1225, 1227 (6th Cir. 1992);
Int'l Society for Krishna Consciousness of New Orleans, Inc. v. City
of Baton Rouge, 876 F.2d 494, 497 (5th Cir. 1989); ACORN v. City
of New Orleans, 606 F. Supp. 16, 19-20 (E.D. La. 1984); Ass'n of
Community Organizations for Reform Now v. St. Louis County, 930
F.2d 591, 593, 594 (8th Cir. 1991); News & Sentinel Co. v. Cox, 702
F. Supp. 891, 899 (S.D. Fla. 1988). The majority does not cite to even
one of these cases. In each of these cases, restrictions that affected an
individual's use of medians for expressive purposes were analyzed
under the traditional public forum analysis.12
_________________________________________________________________
12 Several of these courts reserved the question of whether streets that
have been opened to traffic still constitute traditional public fora. See,
e.g., ACORN v. City of Phoenix, 798 F.2d at 1267; News & Sentinel Co.
v. Cox, 702 F. Supp. at 899 n.21. Even if streets opened to traffic are not
traditional public fora, this would not necessarily indicate that median
strips, especially those housing sidewalks, also lose their traditional pub-
lic fora status.
21
C.
Therefore, no matter whether the Center Island mall is a park or a
mall or a landscaped median strip, it is still a traditional public forum.
Content-neutral regulation of speech in the Center Island mall is thus
limited to "reasonable restrictions on the time, place, or manner ...
provided the restrictions ... `are narrowly tailored to serve a signifi-
cant governmental interest, and that they leave open ample alternative
channels for communication of the information.'" Ward v. Rock
Against Racism, 491 U.S. at 791 (quoting Clark v. Community for
Creative Nonviolence, 468 U.S. at 293). The County cannot exclude
a speaker from the Center Island unless "`the exclusion is necessary
to serve a compelling state interest and the exclusion is narrowly
drawn to achieve that interest.'" Ark. Educ. , 523 U.S. at ___, 118
S. Ct. at 1641 (quoting Cornelius, 473 U.S. at 800). The County's
exclusion of non-residents must fall before these tests.
The County's exclusion of non-residents is not a reasonable time,
place, or manner restriction. Recognizing the important traffic and
safety concerns at issue, several courts have upheld limits or even
bans on certain speech in areas in close proximity to streets with mov-
ing traffic, including median strips, as reasonable time, place, or man-
ner restrictions. See, e.g., ACORN v. City of Phoenix, 798 F.2d at
1267; ISKCON of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d
at 497. The County has not asserted any traffic or safety need to shut
down the Center Island mall to expressive conduct by non-residents.
Nor could the County make such a claim -- its avowed goal is to
encourage qualified persons to use the Center Island mall for expres-
sive conduct. Therefore, the residency restriction is unreasonable as
a time, place, and manner restriction.
Nor is the County's exclusion of non-resident speakers narrowly
tailored to achieve compelling state interests. The County has asserted
numerous interests served by its residents-only policy: (1) it reduces
the County's maintenance, upkeep, and wear-and-tear costs, because,
inter alia, it reduces the amount of resources the County must devote
to ensure compliance with the other terms of the Memorandum; (2)
it ensures the availability of the Center Island mall for use by resi-
dents; (3) it is an efficient way to allocate limited resources; (4) it
reduces the clutter that might accrue on the Center Island mall by lim-
22
iting the number of potential users who may set up a display; (5) it
provides a benefit to County residents whose tax dollars built and
maintain the Complex; and (6) it avoids the creation of an indiscrimi-
nately opened public forum. Assuming that at least some of these
interests are compelling,13 the residents-only policy must be struck
down because it is not narrowly tailored to achieve any of these ends.
While narrow tailoring under the time, place, and manner standard
does not require use of the least-restrictive alternative, Ward, 491
U.S. at 797, the County may not burden substantially more speech
than is necessary to further its interests, id. at 799. Here, the County's
policy burdens substantially more speech than necessary to further
any of its asserted interests. The County has closed this public forum
to the entire world of speakers except the class of qualified persons.
The same interests could be achieved with much less burden by the
simple expedients of charging fees for upkeep and monitoring costs,
or by creating a priority system favoring qualified persons.
Further, the record shows that, in fact, the County's policy is
wholly unnecessary as concerns the Center Island mall. Since Novem-
ber 1996, only eight applications have been received for private dis-
plays in the Center Island mall; six of these have been from Ms.
Warren or one of her supporters. The Center Island mall is large
enough to accommodate numerous displays at the same time. Since
we are not using a rational basis analysis we need not credit theoreti-
cal arguments raised by the County. Certainly the demand for use of
the Center Island mall has not necessitated the County's residents-
only policy. I would therefore strike down the residents-only policy
on First Amendment grounds as applied to the Center Island mall.
IV.
Even were I to ignore all of the relevant criteria and courts from
five other circuits, and agree that the Center Island mall is only a lim-
ited public forum, I would hold that the County's effort to restrict
access based upon residency is unreasonable in light of the objective
purpose served by the Center Island mall.
_________________________________________________________________
13 Undoubtedly, it cannot be a compelling state interest to treat a public
forum as a nonpublic forum.
23
It is clear that the County has designated the Center Island mall to
be a limited public forum. The decisive difference between a limited
public forum and a nonpublic forum recently delineated by the
Supreme Court is whether access to the forum is available on a gen-
eral or a selective basis. Ark. Educ., 523 U.S. at ___, 118 S. Ct. at
1642. Here, the County encourages any member of the limited class
of qualified persons to use the Center Island mall for expressive pur-
poses and nothing in the record indicates that the County makes any
"non-ministerial judgments", see id., selecting which of the many
members of the class who desire to may actually use the forum. This
is general access sufficient to designate a public forum.
As I have noted, supra, in section II, the Supreme Court has yet to
address specifically the "external standard"-- the limits on a govern-
ment entity's ability to designate a class. I have assumed that the des-
ignation of the class must only be viewpoint-neutral and reasonable
in light of the objective purposes of the forum. I agree with the major-
ity that the residency-restriction is viewpoint neutral. I do not agree,
however, that it is reasonable in light of the objective purposes of the
forum.
The reasonableness required in the nonpublic forum setting is not
merely a rational basis standard. "[I]t is not enough simply to estab-
lish that the regulation is rationally related to a legitimate governmen-
tal objective ... for this regulation affects protected First Amendment
activity that is entitled to special solicitude even in [a] nonpublic
forum." Multimedia Pub. Co., 991 F.2d at 159. Therefore, while a
restriction need not be "the most reasonable or the only reasonable
limitation", Cornelius, 473 U.S. at 808, the Court has required "some
explanation as to why certain speech is inconsistent with the intended
uses of the forum." ISKCON v. Lee, 505 U.S. at 692 (O'Connor, J.,
concurring in ISKCON v. Lee and concurring in the judgment in Lee
v. ISKCON). The County has not shown that speech by non-residents
is inconsistent with the objective use and purpose of the Center Island
mall.
The majority asserts that the restrictions here would be justified
because (1) the Government Center Complex was built with, and is
maintained by, County funds provided by County taxpayers; (2) the
County reasonably concluded that it will save money in maintenance
24
and supervision expenses if it limits access to some small class; and
(3) the Center Island mall is adjacent to the County seat so it is rea-
sonable to open it only to County residents and those who serve the
County. These objective aspects of the Center Island mall do not indi-
cate that its use should be limited to qualified persons. Given that the
property at issue is an open, sidewalk-encircled mall, across from a
seat of government, a restriction on residency is patently unreason-
able.
The fact that the County built and maintains the Center Island mall
with County funds does not provide a reasonable basis to prohibit
non-residents from engaging in expressive activity on it. The County
funds were not spent on building an edifice which serves exclusively
local needs, such as a school or a local senior center. The Center
Island mall lies directly in front of the center of County government.
The County government center is the place where the County trans-
acts its internal business, but it is also the place where outsiders have
been invited to come to transact business with the County. Nor is the
Center Island mall some enclosed space within the government center
complex; it is an open mall. All of these "outsiders" presumably are
welcome to freely traverse the Center Island mall on their way into
and out of the government center, perhaps even to loiter there and talk
about the business they have conducted. Thus, the objective uses of
the surrounding property and the Center Island mall itself are not in
any way inconsistent with speech by non-residents.
The County cannot reasonably argue that it is saving money on
maintenance and supervision costs by restricting access to the Center
Island mall to the limited group of qualified persons. First, the group
that it has opened the Center Island mall to is, in whole numbers,
huge. There are approximately 900,000 County residents alone. It is
not reasonable to assert cost savings via rationing when the ration has
been extended to about 900,000 people who are, by the simple fact
of proximity, likely to be the most frequent users of the forum. This
is not rationing, it is rationalization. Second, the County presented
nothing but theoretical arguments that costs imposed by allowing
non-residents access to the Center Island mall would be anything but
de minimis. The record shows that, in fact, allowing non-residents to
access the Center Island mall would impose only de minimis costs on
the County. The Center Island mall is an outdoor, unenclosed area.
25
The County would not need to provide heat, water, electricity, secur-
ity, or any personnel to accommodate any non-resident's use of the
Center Island mall. The very limited demand for the Center Island
further minimizes any clean-up costs the County might incur. Also,
the County could easily impose a fee for any use which might require
clean up costs. While the County need not select the most reasonable
restrictions, "its failure to select this simple, available alternative sug-
gests something about both the veracity of its asserted justification
and the reasonableness of its blanket ban." Multimedia Pub. Co., 991
F.2d at 161.
Finally, the fact that the Center Island serves as the mall leading
to the seat of government does not justify the County in limiting
access exclusively to residents. In fact, I would reach just the opposite
conclusion: precisely because the Center Island mall lies directly in
front of the center of government, it is unreasonable to limit access
to it on the basis of speaker identity once it has been opened. As the
district court noted, the location of the Center Island mall makes it the
ideal place for all individuals to engage in political or otherwise pro-
tected speech. 988 F. Supp. at 963. "There is an unmistakable sym-
bolic significance in demonstrating close to the[center of
government] ... which, while not easily quantifiable, is of undoubted
importance in the constitutional balance." Women Strike for Peace,
472 F.2d at 1287 (Wright, J., concurring). In general, County resi-
dents would probably have an interest in using the grounds of the
County seat for expressive activity more frequently than outsiders.14
But, it would be unreasonably parochial for the County to think that
its decisions are of no interest to and have no impact upon those in
surrounding jurisdictions.
It is therefore unreasonable, in my view, to limit any sub-group's
ability to express themselves on an outdoor, otherwise public area,
well-suited for First Amendment activity, and directly in front of the
most public of government properties. In short, we often refer to dis-
tinctions without differences. There are no practical distinctions
_________________________________________________________________
14 This would be self-regulating, however. So, it would be unreasonable
to reserve an area for the exclusive use of County residents when non-
residents would be less-interested in using the forum than residents, in
any event.
26
between the Center Island as a public forum for County residents and
such a use by residents of areas that surround the County.
27