Verlo v. Martinez
2016 U.S. App. LEXIS 6463
| 10th Cir. | 2016Background
- Plaintiffs (Verlo, Matzen, Fully Informed Jury Assn.) sought to distribute and orally advocate jury-nullification pamphlets to persons approaching the Lindsey‑Flanigan Courthouse plaza in Denver; they sued after arrests of others distributing similar material and after Chief Judge Martinez issued an Order broadly banning expressive activities in zones adjacent to the courthouse (the "Restricted Areas").
- The Judicial District’s Order prohibited demonstrations, pamphleteering, picketing, etc., in areas immediately around courthouse entrances (with landscaping/gravel/security areas excepted from the injunction). Denver (the property owner) stipulated the Plaza was a public forum and agreed it would not enforce arrests against Plaintiffs for distributing literature so long as local law was followed.
- At the preliminary‑injunction hearing, police and courthouse security witnesses testified the Plaza historically hosted frequent First Amendment activity, and that Plaintiffs’ pamphleteering posed no special security risk; Judicial District officials testified the Order was adopted for ingress/egress and safety concerns tied to high‑profile trials.
- The district court granted a narrowly tailored preliminary injunction enjoining enforcement of Paragraph 1 of the Order only as to Plaintiffs’ distribution and one‑on‑one advocacy of two identified pamphlets in specified walkway and patio portions of the Restricted Areas; remaining Order provisions remained enforceable.
- The Judicial District appealed, arguing (1) the Restricted Areas are nonpublic fora (so only reasonableness review applies) and (2) the district court applied strict/overly rigorous scrutiny for content‑neutral restrictions. The Tenth Circuit affirmed the limited preliminary injunction and remanded for further factual findings on forum status for the permanent‑injunction phase.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs likely succeed on First Amendment claim | Plaintiffs argued pamphleteering and one‑on‑one advocacy are protected; total ban in Restricted Areas violates First Amendment | Judicial Dist. contended restrictions are content‑neutral time/place/manner rules that are reasonable and necessary for safety and ingress/egress; also later argued areas are nonpublic fora | Court: Plaintiffs likely to succeed at preliminary stage; court did not abuse discretion in granting narrow injunction |
| Forum status of Restricted Areas | Plaza (including Restricted Areas) is a public forum (Denver stipulated) | Judicial Dist. argued forum status unresolved and on appeal contends areas are nonpublic fora (first raised on appeal) | Court: Judicial Dist. waived/fail to present adequate argument below; district court permissibly assumed public forum for preliminary injunction analysis; forum status left for remand |
| Proper standard of review for content‑neutral ban | Apply public‑forum test for content‑neutral restrictions: significant government interest, narrowly tailored, ample alternatives (McCullen framework) | Judicial Dist. argued district court applied strict scrutiny/least‑restrictive‑means reserved for content‑based limits | Court: Regulations are content‑neutral; district court applied correct time/place/manner analysis and permissibly considered alternatives (McCullen): not an abuse of discretion |
| Scope and limits of preliminary injunction | Plaintiffs sought broad relief; limited injunction needed to protect pamphleteering/one‑on‑one speech without impairing security | Judicial Dist. argued injunction led to later disruptive conduct and should be stayed | Court: Affirmed narrow injunction as issued; post‑injunction disruptions not considered on appeal (not part of record at hearing); those events may inform modification or permanent injunction on remand |
Key Cases Cited
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (buffer‑zone statute around clinic entrances burdened one‑on‑one communication; government must show alternatives fail to achieve interests)
- United States v. Grace, 461 U.S. 171 (1983) (perimeter sidewalks historically used as public forums; adjacency to government property does not convert forum status automatically)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (forum doctrine: traditional, designated, nonpublic forums; access rules vary by forum)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (distinguishes forum types and applicable scrutiny)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable harm supporting injunctive relief)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content‑neutral time/place/manner restrictions upheld when narrowly tailored to serve substantial government interest and leave open ample alternatives)