Larry Ball v. City of Lincoln
870 F.3d 722
8th Cir.2017Background
- City built Pinnacle Bank Arena; SMG was granted exclusive management rights and adopted an Exterior Access and Use Policy (Policy) governing exterior areas, designating certain exterior zones (Policy Zone) as nonpublic forum areas reserved for Arena Tenants.
- The Plaza Area (southeast corner near arena doors) was included in the Policy Zone; adjacent public sidewalks and a pedestrian bridge were excluded from the Policy Zone.
- Larry Ball distributed Christian leaflets in the Plaza Area during high-school basketball tournaments in 2014–2015, was asked to move to the adjacent public sidewalk, and received trespass citations (some arrests/citations later dismissed or resolved); he knew of the written Policy by 2015.
- Ball sued the City and SMG alleging First Amendment violations, seeking injunctive relief and damages; the district court granted summary judgment for appellees, ruling the Plaza Area a nonpublic forum and the Policy reasonable.
- The Eighth Circuit affirmed: it held (1) the Plaza Area is a nonpublic forum based on physical characteristics, function, and government intent; and (2) the Policy is viewpoint neutral and reasonable because it advances commercial, safety, crowd-control, and tenant-protection purposes and leaves adjacent sidewalks available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum status of the Plaza Area | Ball: Plaza Area is physically indistinguishable from adjacent sidewalks/bridge and thus a traditional public forum | City/SMG: Plaza Area’s design, use, and purpose (forecourt, tenant commercial space, crowd management, security) show it is a nonpublic forum | Plaza Area is a nonpublic forum (physical features + primary commercial/arena function; no history of public expressive use) |
| Validity of Policy restricting leafleting in Plaza Area | Ball: Policy targets him and his message; as applied it is not viewpoint neutral or reasonable and deprives speech without necessity | City/SMG: Policy is content-neutral, aimed at protecting tenants, safety, and crowd flow; ample adjacent alternatives (public sidewalk) remain | Policy is viewpoint neutral and reasonable in a nonpublic forum; enforcement not shown to be targeting viewpoint; summary judgment for defendants affirmed |
Key Cases Cited
- United States v. Grace, 461 U.S. 171 (1983) (physical indistinguishability of sidewalks can indicate traditional public forum)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (adopted forum analysis framework: traditional, designated, nonpublic)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (standards for restrictions in different forum types)
- United States v. Kokinda, 497 U.S. 720 (1990) (physical characteristics alone do not control forum status)
- Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (government need not permit all speech on its property)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral time, place, manner test)
- Bowman v. White, 444 F.3d 967 (8th Cir. 2006) (forum analysis factors: physical characteristics, traditional/objective use, government intent)
- Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015) (plaza adjacent to Supreme Court classified as nonpublic forum based on integrated design)