McDonnell v. City & County of Denver
238 F. Supp. 3d 1279
| D. Colo. | 2017Background
- Plaintiffs (McDonnell and Verio) sought to protest President Trump’s January 2017 Executive Order at Denver International Airport’s Jeppesen Terminal without a permit after a larger protest took place Jan. 28; they were warned they could be arrested and left Jan. 29 without applying for a permit.
- Denver Airport Regulation 50 requires a permit for leafleting, signage, picketing, etc., typically submitted at least seven days before the activity; enforcement practice rarely denies permits and sometimes issues expedited permits informally.
- Airport administrators cite safety, crowd-flow, and security concerns given the Great Hall’s role as the principal passenger ingress/egress for a very high-volume airport.
- Plaintiffs challenged Regulation 50 as violating the First and Fourteenth Amendments and sought a preliminary injunction against enforcement and an exigent‑circumstances exception.
- The court held an evidentiary hearing and found the Jeppesen Terminal is a nonpublic forum but recognized special First Amendment interests in location and timing for airports.
- The court granted a limited preliminary injunction: (1) require an expedited permit process allowing issuance on 24 hours’ notice in defined exigent circumstances, (2) require reasonable efforts to accommodate a permit applicant’s preferred unticketed location, (3) enjoin enforcement of the terminal’s prohibition on "picketing," and (4) prohibit enforcing the one‑foot‑by‑one‑foot sign‑size limit absent a reasonable, location‑based justification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum status of Jeppesen Terminal (public/designed/nonpublic) | Terminal functions like a public forum where speech occurs and should be open to protest | Airports are nonpublic forums; Regulation 50 is a reasonable time/place/manner regulation for a multipurpose airport | Jeppesen Terminal is a nonpublic forum (Lee controls); Regulation 50 generally permissible but subject to reasonableness/viewpoint‑neutrality review |
| Validity of 7‑day advance permit requirement | Seven‑day notice is unconstitutionally long in all circumstances and forecloses spontaneous, topical speech | Seven days is reasonable given safety, crowd control, and operational needs; many airports have similar or longer rules | 7‑day rule not invalidated wholesale; but lack of any formal expedited process is unreasonable in airport context |
| Need for exigent‑circumstances/expedited permit (24‑hour) | Airport must accommodate truly spontaneous, topical demonstrations with short notice | No constitutional duty to allow same‑day demonstrations; airport needs time to plan security and logistics | Court preliminarily enjoined Defendants to process in good faith expedited applications received 24–168 hours before activity when topical and unforeseeable or when circumstances prevented timely filing |
| Sign/picketing ban and one‑foot sign size limit | Complete ban on picketing and one‑foot size cap unconstitutionally restrict expressive conduct | Airport argues sign limits and picketing rules serve flow, safety, and operational needs | Court enjoined enforcement of picketing prohibition in the Jeppesen Terminal and barred enforcement of the 1'×1' sign limit; sign size may be regulated only to prevent reasonable interference with traveler flow |
Key Cases Cited
- International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (Sup. Ct. 1992) (airport terminals are nonpublic fora; reasonableness test applies)
- Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (Sup. Ct. 1985) (forum analysis framework for restrictions on speech on government property)
- McCullen v. Coakley, 134 S. Ct. 2518 (Sup. Ct. 2014) (location can be critical to First Amendment interests; strict scrutiny for traditional public forum restrictions)
- Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569 (Sup. Ct. 1987) (government may not impose an absolute ban on expressive activity in an airport)
- Pahls v. Thomas, 718 F.3d 1210 (10th Cir. 2013) (emphasizing significance of location for expressive activity)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (Sup. Ct. 1983) (distinctions among traditional, designated, and nonpublic fora and applicable standards)