Rosebrock v. BEITER
2011 U.S. Dist. LEXIS 61765
C.D. Cal.2011Background
- Rosebrock sues VA officials over display rules at VAGLA Campus and its Great Lawn/Perimeter Fence.
- VAGLA Campus houses veterans and contains the Great Lawn with a Gate and Entrance Area facing a public sidewalk.
- Plaintiff and others protest from the Entrance Area and sidewalk since March 2008 about land use and homelessness policy.
- Defendants enforce 38 C.F.R. § 1.218(a)(9) prohibiting posting of materials on VA property, including the Perimeter Fence.
- Plaintiff repeatedly displayed flags (some inverted) and banners; enforcement actions began in 2009, culminating in citations and a 2010–2011 dispute.
- The court grants in part and denies in part summary judgment, finding First Amendment violation due to viewpoint discrimination and mootness of the injunction request because the Perimeter Fence was closed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VAGLA Campus is a forum for First Amendment purposes. | Rosebrock treats the fence as a public/political forum. | VAGLA Campus is a nonpublic forum, not traditionally expressive. | Nonpublic forum; standard applied accordingly. |
| Whether § 1.218(a)(9) is facially neutral and reasonable. | Regulation is viewpoint-neutral and necessary. | Regulation serves patient trust and operational efficiency. | Facially reasonable and viewpoint neutral. |
| Whether enforcement was viewpoint discrimination against Rosebrock. | Enforcement targeted the inverted flag as dissent. | Enforcement aimed at patient disruption, not viewpoint. | Enforcement evidence supports viewpoint discrimination. |
| Whether Plaintiff conveyed different viewpoints by displaying the flag right-side up vs inverted. | Different messages (patriotism vs distress) were conveyed. | Both displays express the same fundamental stance against VA policy. | Displays conveyed different viewpoints; inversion signaled distress. |
| Whether the case is moot and whether a permanent injunction is appropriate. | Forum remains open for relief; injunction needed. | VA closed the Perimeter Fence to all postings; moot; injunction not appropriate. | Moot; permanent injunction denied. |
Key Cases Cited
- Cornelius v. NAACP Legal Fund, Inc., 473 U.S. 788 (U.S. 1985) (forum types and access for nonpublic fora; government may restrict as appropriate)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (U.S. 1983) (designated public fora; content-neutral restrictions allowed in nonpublic fora)
- Preminger v. Principi (Preminger II), 552 F.3d 757 (9th Cir. 2008) (nonpublic fora; restrictions permissible if reasonable and viewpoint-neutral)
- Preminger v. Sec'y of Veterans Affairs, 517 F.3d 1299 (Fed.Cir. 2008) (VA centers as nonpublic fora; designations and restrictions)
- DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999) (government may close or restrict speech in schools/nonpublic fora)