878 F.3d 1247
10th Cir.2018Background
- Plaintiffs Nazli McDonnell and Eric Verlo challenged Denver International Airport’s Regulation 50, which requires a permit (submitted at least seven days in advance) for leafleting, signs, solicitations, and other speech-related activity in the terminal.
- Two unpermitted January 2017 protests occurred in Jeppesen Terminal; plaintiffs participated and were warned but not arrested; plaintiffs then sued seeking declaratory and injunctive relief and a preliminary injunction against enforcement of parts of Regulation 50.
- The district court treated DIA as a nonpublic forum, applied the reasonableness standard, and denied some facial overbreadth claims but granted a preliminary injunction in part: (1) because Regulation 50 lacks a formal expedited-exigency permit process; (2) enjoining enforcement of defendants’ unfettered discretion to designate protest locations; (3) enjoining a picketing ban and a one-foot-by-one-foot sign-size restriction.
- Defendants appealed the partial preliminary injunction; the Tenth Circuit reviewed for abuse of discretion and evaluated likelihood of success, irreparable harm, balance of harms, and public interest.
- The Tenth Circuit reversed the district court’s injunctions, holding the district court misapplied public-forum principles to a nonpublic forum, made clearly erroneous factual findings (notably the 24-hour exigency assumption), and failed to base key rulings on the evidentiary record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Regulation 50’s seven-day permit requirement is unreasonable for spontaneous/exigent demonstrations in a nonpublic forum | McDonnell: a categorical lack of an expedited-exigency process unlawfully restricts spontaneous speech; a shorter (e.g., 24-hour) exception is required | Denver: advance notice is needed for safety, staffing, and locating demonstrations in a secure, functioning airport; exigent exceptions are fact-specific | Reversed—district court erred by applying public-forum precedent and adopting an unsupported 24-hour standard; plaintiffs failed to show strong likelihood of success on the merits under the nonpublic-forum reasonableness test |
| Whether defendants’ discretion to designate protest locations is unlawful | McDonnell: unfettered location control unduly restricts speech | Denver: location control is necessary to preserve airport functioning and safety | Reversed—district court misapplied public-forum law and failed to ground its finding in the record |
| Whether the picketing prohibition inside the terminal is unreasonable | McDonnell: picketing is less obtrusive and cannot be categorically banned (Lee forecloses a blanket ban) | Denver: restrictions on picketing serve the airport’s purpose and safety needs | Reversed—the district court lacked sufficient record-based analysis to show plaintiffs’ likelihood of success; comparison to leafleting was factually unsupported |
| Whether the one-foot-by-one-foot sign-size restriction is unlawful | McDonnell: sign-size limit unreasonably restricts expression | Denver: size limit helps manage crowd flow and safety | Reversed—issue was not briefed or evidenced at hearing, so injunction improper |
Key Cases Cited
- Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (airports are nonpublic forums; restrictions evaluated for reasonableness relative to forum purpose)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (access to nonpublic forum may be restricted as long as restrictions are reasonable and viewpoint neutral)
- O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (movant seeking injunction that alters status quo must make strong showing on likelihood of success and balance of harms)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (preliminary injunction is extraordinary relief; movant must make clear showing of entitlement)
- Fish v. Kobach, 840 F.3d 710 (10th Cir.) (standard for preliminary injunction factors)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (public forum principles and limits on time/place/manner restrictions)
- Hawkins v. City & County of Denver, 170 F.3d 1281 (10th Cir. 1999) (reasonableness inquiry in nonpublic forum is fact-intensive)
- Mocek v. City of Albuquerque, 813 F.3d 912 (10th Cir. 2015) (recognizing airports as nonpublic forums)