Jack HAWKINS, individually and as President of the Denver Area Labor Federation and Pete Vriesenga, individually and as President of Denver Musicians Association, Plaintiffs—Appellants, v. CITY AND COUNTY OF DENVER; Gary Lane, Director of the Denver Theaters and Arenas, Brook Nichols, Assistant Building Manager of the Denver Theaters and Arenas; and David Michaud, as Chief of the Denver Police Department, Defendants—Appellees.
No. 98-1003.
United States Court of Appeals, Tenth Circuit.
March 10, 1999.
Before TACHA, BARRETT, and HENRY, Circuit Judges.
TACHA, Circuit Judge.
Plaintiff-Appellants represent a group of union musicians who wish to picket and distribute leaflets expressing their grievance against the Colorado Ballet in the “Galleria” area of the Denver Performing Arts Complex (“DPAC“). The City and County of Denver (“Denver“), which owns and operates the DPAC, halted plaintiffs’ demonstrations in the Galleria. In response, plaintiffs filed a civil rights complaint pursuant to
I. Description of the Galleria
The events in this case involve an area of the DPAC known as the Galleria. The Galleria is an open air, glass-covered pedestrian walkway approximately 600 feet long, with a width ranging between 32 and 40 feet. As illustrated by the maps following this opinion, the Galleria, which was formerly a public street, is bounded on one side by two large theaters, the Temple Hoyne Buell Theatre and the Auditorium Theatre, and on the other side by the DPAC parking garage and the Garner Galleria Theatre. Fourteenth Street, a public right of way, lies at one end of the Galleria. Several additional performing arts complexes and a sculpture park, which separates the DPAC from Speer Boulevard, lie at the other.
The Galleria serves as the exclusive means of ingress to and egress from DPAC events taking place in the adjacent performing arts complexes, which have a combined seating capacity of approximately 9,300.1 Many DPAC patrons enter the Galleria from the DPAC garage, but the garage has a limited parking capacity of around 1,600 spaces. Therefore, on busy occasions, as many as 40 to 50 percent of the total patrons enter the Galleria from the 14th Street entrance. The Galleria also acts as a place for theater patrons to congregate before performances and during intermissions, in effect serving as an extended lobby for the various performing arts venues. During these periods, and when patrons are arriving or departing from DPAC events, the Galleria can become extremely congested, particularly when multiple events are scheduled. Ticket sales also occur at box offices in the Galleria, with lines often stretching across the walkway. Finally, the Galleria serves as the main evacuation route for the performing arts complexes in the event of an emergency, such as a fire.
Although the DPAC‘s primary function is to showcase artistic performances, several commercial establishments lease space within the confines of the facility. These consist of two cafes and a business called Scene-to-Screen, which, among other things, sells retail merchandise and souvenirs relating to productions appearing at the DPAC. The record shows that at least one of these establishments opens only in conjunction with performances because it is not profitable in the absence of DPAC patron traffic. Denver allows leaseholders to promote their businesses within the Galleria through the use of small signs. Denver also makes brochures listing events at other venues it owns and a publication that promotes events at the DPAC available in the Galleria. Occasionally, Denver leases promotional space within the Galleria. For example, a car dealership once paid to place a truck in the Galleria for a period of time during and after a performance festival.
II. Background
Having described the stage for this dispute, we will now recount the facts giving rise to this appeal. On September 25, 1997, the Artistic Director and Chief Executive Officer of the Colorado Ballet informed plaintiff Pete Vriesenga, President of the Denver Musicians Association, that it would replace the live orchestra with an audio tape recording during its performance of “Romeo and Juliet.” The Colorado Ballet was, at that time, a tenant of the DPAC‘s Temple Hoyne Buell Theatre. On October 10, 1997, plaintiffs, acting on behalf of the terminated union musicians, informed Denver officials that they intended to picket and leaflet at the October 11 opening of “Romeo and Juliet.” That same day, plaintiff Vriesenga received a memo from Denver stating that it prohibited picketing and leafletting within the DPAC.2
On October 12, 1997, plaintiffs returned to the Galleria, but police removed them shortly thereafter. Plaintiffs subsequently limited their picketing and handbilling to the entrances adjoining the Galleria and the DPAC garage. The next day, Denver‘s attorney sent plaintiffs a letter reiterating Denver‘s policy not to allow picketing or leafletting within the Galleria. At each of the remaining performances of “Romeo and Juliet,” plaintiffs protested, but not within the Galleria. Eventually, police removed plaintiffs from all DPAC facilities and instructed them to confine their activities to the public sidewalks and 14th Street entrance.4
On November 4, 1997, plaintiffs notified Denver officials that they intended to continue their picketing and leafletting during the Colorado Ballet‘s performance of “The Nutcracker,” scheduled to run between November 29 and December 28, 1997. Having received no response from Denver, plaintiffs filed a
III. Discussion
In a First Amendment case, we perform an independent examination of the record to ensure protection of free speech rights. See Revo v. Disciplinary Bd. of the Supreme Court for the State of N.M., 106 F.3d 929, 932 (10th Cir. 1997), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); Brown v. Palmer, 915 F.2d 1435, 1441 (10th Cir. 1990), aff‘d on reh‘g en banc, 944 F.2d 732, 733 n. 1 (10th Cir. 1991). We also review the district court‘s findings of constitutional fact and conclusions of law de novo. See Revo, 106 F.3d at 932.
A.
Plaintiffs argue that Denver‘s refusal to allow them to picket and leaflet within the Galleria constitutes a violation of their First Amendment rights. We note as an initial matter that the district court did not characterize the nature of plaintiffs’ First Amend-
The First Amendment, as applied to state and local governments through the Fourteenth Amendment, provides that state actors “shall make no law ... abridging the freedom of speech.”
The Supreme Court has identified three distinct categories of government property: (1) traditional public fora; (2) designated public fora; and (3) nonpublic fora. See, e.g., Arkansas Educ. Tele. Comm‘n v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 1641, 140 L. Ed. 2d 875 (1998); Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45-46, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). Traditional public fora are places that “by long tradition or by government fiat have been devoted to assembly and debate.” Perry, 460 U.S. at 45. Quintessential traditional public fora are streets, sidewalks, and parks, for they “have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Id. (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 (1939)); see also, e.g., Snyder v. Murray City Corp., 159 F.3d 1227, 1244 (10th Cir. 1998) (en banc), cert. denied, 526 U.S. 1039, 119 S. Ct. 1334, 143 L. Ed. 2d 499 (1999). The government‘s ability to restrict speech in a traditional public forum is quite limited and, as noted earlier, depends upon whether the speech restriction is content-based or content-neutral. The government must show that a content-based restriction is “necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry, 460 U.S. at 45; accord Forbes, 118 S. Ct. at 1641. On the other hand, we will uphold content-neutral time, place, and manner restrictions on speech provided they are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry, 460 U.S. at 45.
Designated public fora make up the second category of government property. The designated public forum, whether of a limited or unlimited character, is one a state creates “by intentionally opening a non-traditional forum for public discourse.” Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985) (emphasis added); accord Lee, 505 U.S. at 678. In determining whether the government intended to create a designated public forum, we
The final category, nonpublic fora, consists of any remaining government property that “is not by tradition or designation a forum for public communication.” Perry, 460 U.S. at 46; accord Lee, 505 U.S. at 678; Church on the Rock, 84 F.3d at 1278. In a nonpublic forum, the government has much greater latitude to restrict protected speech. The law draws no distinction between content-neutral and content-based restrictions in a nonpublic forum. Provided the restriction is reasonable in light of the purpose served by the forum and is “not an effort to suppress expression merely because public officials oppose the speaker‘s view,” it does not violate the First Amendment. Forbes, 118 S. Ct. at 1641; see also, e.g., Lee, 505 U.S. at 679; Cornelius, 473 U.S. at 806. For a court to uphold a speech restriction as reasonable, “it need not be the most reasonable or the only reasonable limitation.” Lee, 505 U.S. at 683 (quoting United States v. Kokinda, 497 U.S. 720, 730, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (plurality opinion)). Furthermore, “[i]n contrast to a public forum, a finding of strict incompatibility between the nature of the speech or the identity of the speaker and the functioning of the nonpublic forum is not mandated.” Cornelius, 473 U.S. at 808.
B.
Based upon our review of the record, we conclude that the DPAC‘s Galleria is a nonpublic forum. The Galleria does not qualify as a traditional public forum, for it is not a park, nor is it analogous to a public right of way or thoroughfare. The Galleria does not form part of Denver‘s automotive, bicycle or pedestrian transportation grid, for it is closed to vehicles, and pedestrians do not generally use it as a throughway to another destination. Rather, the Galleria‘s function is simply to permit ingress to and egress from the DPAC‘s various complexes. Cf. Chicago Acorn v. Metropolitan Pier & Exposition Auth., 150 F.3d 695, 702 (7th Cir. 1998) (finding sidewalks on Navy Pier were not traditional public fora because they “are not through routes; they lead only to the pier facilities themselves“). Although Denver admits that the Galleria is generally open to the public, “[p]ublicly owned or operated property does not become a ‘public forum’ simply because members of the public are permitted to come and go at will.” Lee, 505 U.S. at 686 (O‘Connor, J., concurring) (quoting United States v. Grace, 461 U.S. 171, 177, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983)). Moreover, the fact that the Galleria was constructed on what used to be a public street does not render it a traditional public forum. The government may, by changing the physical nature of its property, alter it to such an extent that it no longer retains its public forum status. See ACLU of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064, 1074-75 (D. Nev. 1998) (citing Hale v. Department of Energy, 806 F.2d 910, 915-16 (9th Cir. 1986)). As stated by Justice Kennedy in his Lee concurrence:
In some sense the government always retains authority to close a public forum, by selling the property, changing its physical character, or changing its principal use.
Otherwise the State would be prohibited from closing a park, or eliminating a street or sidewalk, which no one has understood the public forum doctrine to require.... [The government] must alter the objective physical character or uses of the property, and bear the attendant costs, to change the property‘s forum status.
Lee, 505 U.S. at 699-700 (Kennedy, J., concurring). In constructing the Galleria, Denver has altered the physical characteristics and function of the former public street sufficiently to remove its status as a traditional public forum.
The Galleria also does not fit the description of a designated public forum, for Denver has neither in policy nor practice thrown open the Galleria for public expressive activity. Denver‘s written DPAC speech policy clearly states that demonstrations and leafletting are not permitted within the DPAC “without the express consent of the Facility Manager of Denver.” Appellee‘s App. at 6. This policy hardly opens the Galleria up for public assembly and debate, especially in light of the fact that, in practice, Denver officials have enforced this policy as an absolute ban on leafletting and picketing in the Galleria. DPAC officials have removed protestors from the Galleria on several occasions. For example, the record indicates that on one such occasion an anti-abortion group attempted to demonstrate within the Galleria, but DPAC officials asked them to restrict their activities to the public sidewalks surrounding the DPAC. On another occasion, DPAC officials denied political party representatives permission to place posters and demonstration materials within the Galleria. Denver has even prohibited an individual from handing out free roses to DPAC patrons in the Galleria. This consistent practice of not allowing picketing or leafletting in the Galleria shows the Galleria has “never been dedicated ... to expression in the form sought to be exercised here.” Lee, 505 U.S. at 682.
Plaintiffs make much of the fact that Denver allows some speech in the Galleria. For example, plaintiffs point to advertising and promotional leaflets in the Galleria. The record indicates, however, that the speech plaintiffs refer to is limited to advertising by DPAC tenants and publications promoting events taking place in city owned and operated facilities. This does not create a designated public forum for plaintiffs’ proposed activities. Neither does the fact that Denver allows patrons to discuss matters of public interest in the Galleria. Even if Denver allowed patrons to wear political buttons or shirts with slogans, this would not be sufficient to establish a designated public forum. The First Amendment does not require the government to impose a “zone of silence” on its property to maintain its character as a nonpublic forum. As the Supreme Court stated in Cornelius, “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius, 473 U.S. at 802 (emphasis added); accord Brown, 915 F.2d at 1443, aff‘d on reh‘g en banc, 944 F.2d 732. We find that the limited speech involved in this case does not demonstrate an intent on the part of the city to establish the Galleria as a designated public forum. Instead, it is merely related to and consistent with the normal business operation of the DPAC.
Because the Galleria does not constitute a public forum by tradition or designation, it is a nonpublic forum. Consequently, we need not address whether Denver‘s DPAC speech policy banning picketing and leafletting is content-based or content-neutral. All we must consider is whether the policy, as applied to the plaintiffs in this case, is viewpoint-neutral and reasonable in light of the forum‘s purpose. See, e.g., Forbes, 118 S. Ct. at 1641.
C.
Denver did not apply the policy in this case to the plaintiffs on the basis of their viewpoint. Rather, the record shows that Denver consistently enforces its DPAC speech policy as a flat ban on all leafletting, demonstrations, and similar activities.5
This brings us to the reasonableness of Denver‘s refusal to allow plaintiffs to picket and leaflet within the Galleria. The Supreme Court‘s analysis in International Soc‘y for Krishna Consciousness, Inc. v. Lee guides us in this inquiry. In Lee, members of a non-profit religious organization wished to solicit donations and distribute written materials within several airport terminals owned and operated by the Port Authority of New York and New Jersey. A Port Authority regulation which forbade the repetitive solicitation of money or distribution of literature prevented them from engaging in such activities. The religious organization filed a
In her concurring opinion, Justice O‘Connor elaborated on the reasonableness standard, stating that: “The reasonableness of the Government‘s restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances.” Lee, 505 U.S. at 687 (O‘Connor, J., concurring) (alterations in original) (quoting Cornelius, 473 U.S. at 809). Justice O‘Connor then examined the characteristics of the airports, noting that in contrast to typical single-purpose facilities, the airports were “[huge complexes] open to travelers and non-travelers alike” that contain a multitude of commercial establishments, including: “restaurants, cafeterias, snack bars, coffee shops, cocktail lounges, post offices, banks, telegraph offices, clothing shops, drug stores, food stores, nurseries, barber shops, currency exchanges, art exhibits, commercial advertising displays, bookstores, newsstands, dental offices, and private clubs.” Id. at 688. After analyzing the nature of the expressive activity at issue, Justice O‘Connor concluded that unlike solicitation, which poses problems of congestion and fraud, “it is difficult to point to any problems intrinsic to the act of leafletting that would make it naturally incompatible with a large, multipurpose forum such as those at issue here.” Id. at 690.
Justice O‘Connor‘s opinion in Lee has created some confusion as to the level of scrutiny applied under the reasonableness test. Chief Judge Posner recently noted that “[w]hat is particularly interesting about Justice O‘Connor‘s swing opinion is that it blurs the line between the public and non-public forum, suggesting a sliding scale approach—a standard versus a rule of categories—in which the benefits and costs of free speech
To be sure, the physical characteristics of the Galleria distinguish it from the airports in Lee. While it is true that the Galleria contains or is adjacent to a few commercial establishments, they do not compare in number or variety to those found within airports. The record indicates that three commercial establishments within the DPAC are incidental to its primary purpose of showcasing artistic performances. They provide food and souvenirs to DPAC patrons. In fact, one opens only proximate to times of performances. This differs significantly from the “wide range of activities” promoted at the airport in Lee, which Justice O‘Connor characterized as “a shopping mall as well as an airport,” id. at 689; cf. Chicago Acorn, 150 F.3d at 703-04 (finding indoor shopping mall area was similar to airport in Lee). Another physical difference between the Galleria and an airport is its size. Unlike airports, which Justice O‘Connor describes as “huge complexes,” Lee, 505 U.S. at 688, the Galleria is a comparatively narrow corridor, having a width between 32 and 40 feet. Cf. Chicago Acorn, 150 F.3d at 698, 704 (applying Lee holding to the Navy Pier, which is approximately 400 feet wide and 3000 feet long).
In essence, the Galleria has more limited purposes than a large, multipurpose environment like an international airport or a mall. The Galleria serves as the exclusive means of ingress to and egress from the adjacent performing arts complexes, and it also functions as an extended lobby area where patrons can congregate before performances and during intermission. Additionally, the Galleria is the main evacuation route for the performing arts complexes in the event of an emergency. It is with an eye towards these limited purposes that we gauge whether the speech restriction in this case is reasonable.
Because we are faced with an “as applied” rather than a facial challenge, we must examine the city‘s interest in preserving the forum for its designated uses in light of the actual or proposed use the plaintiffs intended to make of the forum. The record indicates that plaintiffs planned to demonstrate in the Galleria for approximately one hour before the performance of “Romeo and Juliet” and about ten minutes after. They intended to stage similar demonstrations at performances of “The Nutcracker.” We therefore consider Denver‘s application of the speech restriction only during times just before and after performances and express no opinion as to the restriction‘s application at other times.
Plaintiffs sought to dispatch approximately twenty-five individuals, dressed in formal attire, throughout the Galleria to distribute leaflets to DPAC patrons as they passed by.6 Although Denver admits that plaintiffs did not cause any congestion problems or major disruption on the particular occasion that they demonstrated within the Galleria, that is not dispositive. “[T]he Government need not wait until havoc is wreaked to restrict access to a nonpublic forum.” Cornelius, 473 U.S. at 810. We must therefore consider whether plaintiffs’ proposed use could have conceivably run afoul of the city‘s interest in preserving the forum for its intended use.
Given the Galleria‘s physical attributes and purposes as well as the circumstances under which plaintiffs sought to protest, we conclude that the city‘s decision to deny plaintiffs access was reasonable and consistent with Denver‘s legitimate interest in “preserving the property ... for the use to
Furthermore, allowing groups, including the plaintiffs, to leaflet and express themselves before and after performances invites a host of additional expressive activity at odds with the DPAC‘s limited purpose as an entertainment venue. We agree with defendants that such activity could seriously disrupt the ability of the Galleria to serve its designated functions. Denver‘s interest in preserving the Galleria for such purposes, in turn, provides its patrons with a safe and comfortable environment for DPAC events. The leafletting ban reasonably serves that interest, for we find nothing unreasonable in Denver‘s decision to keep the Galleria area clear of leafletters and protestors during its peak times.7
Cf. United States v. Kokinda, 497 U.S. 720, 731-33, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (finding solicitation ban on sidewalk designated as route from parking lot to post office is reasonable because solicitation disrupts post office business); Cornelius, 473 U.S. at 808-10 (finding reasonable the exclusion of legal defense and political advocacy group from organized federal employee charity drive designed to provide direct health and welfare services to individuals because government sought to provide direct, rather than indirect, assistance and government sought to avoid workplace disruption and reduced campaign participation that could result from inclusion of groups viewed as political); Chicago Acorn, 150 F.3d at 703 (striking down total ban on leafletting on the Navy Pier, but finding that “plaintiffs should not be permitted to hand out leaflets in places where pedestrian traffic would be obstructed“). We reiterate that a speech restriction in a nonpublic forum “need not be the most reasonable or the only reasonable limitation,” Lee, 505 U.S. at 683 (quoting Kokinda, 497 U.S. at 730 (plurality opinion)), in order to pass constitutional muster. Plaintiffs are therefore not
We add that insofar as plaintiffs appeal the district court‘s decision not to grant a preliminary injunction, that decision is reviewed only for an abuse of discretion. See Chemical Weapons Working Group, Inc. v. United States Dep‘t of the Army, 111 F.3d 1485, 1489 (10th Cir. 1997). “An abuse of discretion occurs only when the trial court bases its decision on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling.” Id. (quoting In re Coordinated Pretrial Proceedings in Petroleum Prods. Anti-trust Litig., 669 F.2d 620, 623 (10th Cir. 1982)). After reviewing the merits of plaintiffs’ claim and finding no First Amendment violation, we also conclude that the trial court did not abuse its discretion in denying plaintiffs’ request for a preliminary injunction.
IV. Conclusion
For the reasons discussed above, plaintiffs have failed to show that defendants violated their First Amendment rights. Accordingly, we AFFIRM the decision of the district court.
Notes
Romeo & Juliet [—] Full price for half the show! The CEO/Artistic Director of the Colorado Ballet has decided to fire the entire orchestra and replace them with taped (jukebox) music. The only problem is, he did not tell you this before you paid full price for your ticket. You are entitled to a refund, or at least, a raincheck for a performance that has a complete product for which you have paid. Contact Martin Fredmann, CEO of the Colorado Ballet at 837-8888 to voice your opinion. Colorado Ballet commits unfair labor practice against members of AFM Local 20-623. We have no dispute with any other employer[.]
Appellant‘s App. at 143.