Rita Warren v. Fairfax County

WILLIAMS, Before MURNAGHAN BULLOCK, Chief Judges, and Circuit Judge the Middle States District United Carolina, sitting by District of North designation. by published opinion. Chief

Affirmed majority Judge BULLOCK wrote the joined. Judge opinion, in which WILLIAMS dissenting Judge wrote a MURNAGHAN opinion.

OPINION BULLOCK, Judge. District Chief (Warren), Appellant, Rita Warren seeks to religious displays landscaped in a me- mount in front of the Fairfax dian located (the Complex). Government (the County), Appellee, Fairfax adopted regulation designates median, including landscaped Complex, citizens, by County employees, and for use nonprofit organizations. The certain permit erect has refused issue Warren displays is not within the her because she County’s speakers in the class of identified court is regulation. The issue before this regulation County’s violates whether First and Four- rights under the Warren’s Finding teenth Amendments. County’s regulation viewpoint neutral and has declined to issue Warren reasonable, permit we affirm. display her creche and cross

Center Island area. I. Warren instituted this in response suit actions. alleged Warren Warren, who is devout Christian but is enforcing provision, the use organized not a religion, member seeks violated and will continue violate her First message love, spread hope, peace rights Amendment to free and to by mounting religious displays at the Com- petition government. Warren also main- plex year. Specifical- at certain times of the tained that the has violated and will ly, she wants to erect creche and a cross continue to violate her Fourteenth Amend- Complex during outside the the Christmas equal protection ment rights.2 Warren and Easter seasons. is not a Warren resi- sought permanent injunction prohibiting County, Fairfax dent of but is a resident of enforcing from provision. the use City.1 Fairfax summary judgment, On cross-motions for Complex comprises The buildings three in granted the district court 2,500 summary judgment County employees work, which over County. court, favor of adjacent The grounds. district largest The of the applying the standard of buildings constitutional scru- building, is the Government Center tiny applicable fora county government under estab- which the site of- Supreme precedents, lished Court A found driveway fices. first horseshoe-shaped runs in provision the use did not violate front of Warren’s building. the Government Center rights. First Amendment driveway district court landscaped This includes median that, then found because the provision use area known as the “Center Island.” Warren Amendment, did not violate the First War- displays seeks erect her in this Center ren’s Fourteenth Amendment claim Island. also failed. County’s Procedural Memorandum (the Memorandum) # governs 08-05 the use appeal, argues On Warren that the district all Complex, common areas improperly analyzed court County’s use including the Center Island. The provision Memoran- nonpublic- under the more lenient County’s dum policy standard, declares that the is to opposed forum as to the more encourage strict, “use of the common areas of the public-forum standard. Complex by Government Center Fairfax argues Warren further provision that the use County nonprofit organizations and individu- violates First Amendment under the tra- civic, al citizens of Fairfax cultur- public-forum ditional standard and that the al, educational, religious, recreational, and district dismissing court therefore erred in end, similar activities.” J.A. at 56. To that her claims under First and Fourteenth procedures Memorandum establishes for Amendments. obtaining permit. a use Significantly, the specifically

Memorandum identifies the fol- II. lowing groups being as allowed to use the Complex, including the Center Island: Coun- The standard of review this case is de ty residents, County employees, Inc., Liggett Group, novo. Henson v. nonprofit groups. (4th provision, 270, Cir.1995). Based on this F.3d Flores, City, Virginia, separate 1. Fairfax ais and distinct U.S. 117 S.Ct. (1997), jurisdiction L.Ed.2d 624 that the RFRAwas Virginia. from Fairfax unconsti- J.A. challenged tutional. J.A. at 21. Warren also an at 50. requirement attendance in the Memorandum required any display be attended complaint, In her Warren also asserted that the upheld adult all times. The district court provision Religious use violated the content-neutral, this restriction reasonable (RFRA). Freedom and Restoration Act The dis time/place/manner restriction. Warren does not trict court dismissed this claim in view the challenge findings these of the district court on Supreme holding Court’s appeal. Boerne v. are reason long as the distinctions drawn that “the First so is well settled

It light guarantee access to served able Amendment viewpoint owned or con neutral.” Corneli simply because forum and 806, 105 us, States government.” United S.Ct. 3439. by the trolled Greenburgh Civic Serv. Council Postal tripartite this framework Within Ass’ns, 101 S.Ct. recognized Supreme “[a] [des Court (1981). Rather, an individual’s L.Ed.2d 517 may be created for ignated] government prop right express herself on purpose such certain type property in erty depends upon the Vincent, groups, [454 Widmar regard, In this volved. “ (1981)] 70 L.Ed.2d 440 102 S.Ct. types fora: the tra three ‘identified (student groups), or for the discussion of forum, creat ditional subjects, e.g., City Madison Joint certain and the non by government designation, ed ” Employment Dist. No. 8 Wisconsin Sch. Television Arkansas Educ. public forum.’ Comm’n, [429 Relations Forbes, Comm’n v. (1976)] (school board 50 L.Ed.2d L.Ed.2d 875 business).” Perry, 460 U.S. at 46 n. Legal v. NAACP Cornelius Defense speaker Fund, Inc., the comes within 948. Where Educ. (1985)). designated purpose for a “Tradi the class or which L.Ed.2d 567 S.Ct. available, generally by public is made the public are defined the forum fora tional by property, such government as is bound the same standards characteristics whether, by government apply public forum. ‘by long or in a traditional tradition which Where, Educ., fiat,’ has ‘devoted to as the been Arkansas Perry however, speaker Id. not come within sembly debate.’” Ass’n, forum, purpose of the non Perry Local Educators’ the class or Educ. Ass’n 37, 45,103 Perry, applies. 74 L.Ed.2d 794 See public forum standard (in (1983)). nonpublic public include areas a Traditional fora 103 S.Ct. 948 sidewalks, streets, parks, designated public areas in a as forum or even such historically right ... ex as locations “the constitutional of access which have been used only States v. expression. United to entities similar character” tend[s] for free See Grace, government permitted has ac to which the (1983). cess); public Owego-Apalachin Use of traditional see also Travis L.Ed.2d 736 Cir.1991) (2d Dist., only by regulated content-neu Sch. fora manner, restrictions, (“in forum, government time, place public limited a tral are tai certain by impose which free to a blanket exclusion on restrictions content-based compelling govern speech, expressive narrowly types a but once allows lored serve genre, may Perry, 460 U.S. at of a not selec ment interest. activities certain tively deny of that access for other activities S.Ct. 948. genre”). Designated public fora are areas purposefully has which the that the dis Warren first contends expression. public free opened concluding that the Cen trict court erred Educ., Govern 118 S.Ct. at 1641.

Arkansas public not a traditional forum. ter Island was restricting a des regulations ment disagree. Initially, we note that We under ignated public forum are scrutinized “rejected that has the view a traditional as same standards public forum be traditional status extends 46, 103 S.Ct. 948. Perry, 460 U.S. forum. Educ., yond its historic confines.” Arkansas 1641. The Center Island 118 S.Ct. at properties other than Government Instead, street, sidewalk, park. or a it is “ei designated public fora are traditional driveway. As dividing u-shaped all.” Ar median nonpublic ther fora or not fora at noted, correctly landscaped Educ., court at 1641. “Control the district kansas de the Center Island are medians such as forum can be over access to signed primarily for aesthetic such subject identity subject based on matter and support position plantings and have not been used histori- To her designated cally a location for Center Island as a activi- forum, such, principally Warren relies ty. As the Center Island is not Memorandum, provides which it is the forum.3 County’s “policy encourage Next, argues Warren common areas the Government Center Memorandum, expressly in its by Complex County nonprofit organi- Fairfax designated the Center Island as unlimited zations and individual citizens of Fairfax disagree. Again, forum. “The we civic, cultural, educational, County for reli- [designated] government does not create a gious, recreational, and similar activities of a permitting inaction or nonprofit nature.” J.A. at 56. The next discourse, intentionally but Memorandum, May section “Who Re- opening forum for nontraditional serve the Facilities of the Government Cen- Cornelius, public discourse.” Complex,” expressly opens Complex ter Thus, 105 S.Ct. 3439. ascertain by county residents, county employ- for use designated whether the Center ees, organization nonprofit Warren, public forum as look to we must has an in or office the citizens of the serves County’s policies practices to deter Thus, county. J.A. at 58. while the Memo- desig mine whether the intended to undoubtedly randum evidences nate the as a intent and the Center Id. government’s If the intent un remains spectrum topics, Island to a broad it also clear, should then look to the “nature of we provides clear evidence the did not compatibility property the and its ex speakers intend to this forum to such as activity government’s Warren, pressive to discern the county who is neither a resident nor Id. However, above, intent.” we will not find that employee. As noted we cannot public “a forum been in the created face find designate that the to intended Id. at contrary public of clear evidence of intent.” the Center Island as a forum for 803, 105 speakers S.Ct. such as Warren in the face of fora, argues 3. The dissent that the Island is have been to Center held be traditional see Carolina, traditional forum because it Edwards v. South 372 shares the U.S. 83 (1963), physical park aof or and is 9 L.Ed.2d 697 court in characteristics mall the which, recognized part by history ACT-UP itself of that this does not mean of class and tradition, that at a opened the entire area center is expres has been and used for ACT-UP, traditional forum. See activity. 755 Alternatively, argues sive the dissent F.Supp. (holding gallery at of that the Center Island is a traditional legislative state chamber was not a traditional "part parcel” forum because and street of Grace, forum); United States respect argument, or sidewalk. to With its latter cf. U.S. (1983) 75 L.Ed.2d 736 the dissent on a of relies number cases from (where regulation to at issue related strips other circuits which have median treated building United States Court and its See, part Tadlock, as of a sidewalk. street or Sloman grounds, including plaza surrounding prom and (9th Cir.1994); 21 F.3d enade, area, sidewalks, steps lawn the Su 1224, 1225 (6th Armstrong, Ater v. Cir. preme expressly limited its consideration argument We did not consider this be area). Similarly, to the sidewalk Warren’s reli specifically cause the district court that found misplaced ance on Women Strike Peace street, for Center Island was 24, a sidewalk J.A. not or park, because that case involved a not a national argument did not Warren raise this comparable to median area the Center Island. appeal. case, In there no that this evidence the Center Indeed, presented questions three for similar median areas been used brief, majority review and in the of her Warren historically activity. a location as In argues evidence, that the Center Island be charac should of absence such we cannot con only designated public terized as a pub clude that the Center Island is a traditional pages forty-seven page one one-half her Soc’y lic forum. See International Krishna Consciousness, Lee, brief does Warren address the traditional Inc. v. issue, cases, and she two (holding cites ACT- 120 L.Ed.2d 541 that (M.D.Pa.1991), Walp, F.Supp. UP v. airport not a terminal was fo Morton, activity airport and Women Peace v. Strike F.2d rum because "the tradition 1273(D.C.Cir.1972). airports While it is that does clear cer not demonstrate that have histori parts capítol complexes cally speech activity”). tain of tlie been made available for provided by the citizens of it did built with funds from the clear indication Cornelius, support county so. See and their tax dollars to do not intend 803,105 of the Center Island. Given maintenance adjacent gov- to a that the Center then, County’s Memo At most purpose ernment center which has the including Complex, designates randum county conducting serving coun- business Island, public forum. a limited as the Center citizens, reasonably ty the Memorandum however, decide, to whether do not need We Complex opens the and Center Island to a limited forum or Island is the Center those citizens well as individuals because, in this case County. organizations who serve See to whom the the class falls outside Warren Carolina, Island, Inc. the Multimedia Pub. Co. South opened the Center Dist., scrutiny applied Greenville-Spartanburg Airport be level Cir.1993) (restriction Perry, (4th the same. See regulation remains F.2d is, That 948.4 U.S. at justified by common “appeals to sense County may Warren from the Center exclude Moreover, logic”). it is reasonable for the viewpoint restriction is long as the Island so limiting conclude pur light of the neutral and reasonable County-related persons the Center Island to id.; poses forum. See Corneli served County money entities will save the 806,105 us, 473 S.Ct. 3439. supervision expenses. maintenance and provi-

First, that the use undisputed it is express By its viewpoint neutral. sion is III. terms, not does seek to the Memorandum any speak- viewpoints of or limit the restrict agree also with the district We Instead, correctly as the district court er. that, conclusion because Warren has court’s noted, open the simply right speak in the no First Amendment requisite not have the speakers who do Island, claim under Warren’s regardless connection with the must Fourteenth Amendment also fail. This Indeed, if they may hold. Warren views because, in the absence of a First Amend repre- county employee or a resident was violation, County’s provision use ment the serving organization nonprofit a sented right. a This does not burden fundamental religious county, creche in she could erect provision only rationally need means that the Center Island. legitimate further a state interest. See Per then, provision point, At the use this For the ry, 460 U.S. S.Ct. 948. “ reasonable; only it need be ‘need be provision is rea same reasons use or the reasonable most reasonable sonable, rationally legitimate it also furthers ” Kokinda, v. States limitation.’ United County. interests See id. 720, 730, 110 111 L.Ed.2d opinion) (quoting (plurality Corne lius, 105 S.Ct. The 473 U.S. IV. “must of the restriction

reasonableness provision County’s is rea- Because use purpose light of the of the forum in assessed viewpoint and because it sonable and neutral surrounding and all circumstances.” rationally legitimate purpose, furthers a state Cornelius; 105 S.Ct. 3439. Four- noted, claims under the First and Complex, Warren’s As the district court Island, fail. presumably Amendments must We therefore including the was teenth Center Bratton, Cir.1996); (2d Calash 95 F.3d The court concluded the Center Island district and, (2d Cir.1986). doing, forum in City Bridgeport, was a limited relied so 788 F.2d 80 upon the Second a line of cases from we do not need to decide whether the Because Circuit, limited have characterized the forum or non Center Island is designated "subspecies” of the forum as case, express view we forum in this no 9; see, e.g., & J.A. at 9-12 n. pub approach to limited to tire Second Circuit’s Dist., Owego-Apalachin Travis v. Sch. lic fora in this case. Finest, (2d Cir.1991); Fighting Inc. v. wide, granting plex, specifically landscaped ly- court’s order affirm the district mall County. ing summary judgment directly County favor in front of the seat known as the “Center Island”. AFFIRMED. City, Rita Warren lives Fairfax an inde-

MURNAGHAN, Judge, dissenting: Circuit jurisdiction pendent County, from Fairfax majority. I I respectfully dissent from the entirely County.2 but one surrounded mall would hold that the Center Island November, 1996, Ms. filed for a Warren public forum since it shares permit holiday display erect a on the objective characteristics of such fora. Alter- Center Island mall. The acknowl- natively, County I would that Fairfax hold edging qualified person that a would be able (the “County”) designated the Center Island exactly display, to mount the same denied forum and that area permit Ms. Warren a because she was not a attempt to limit the class of those who Believing resident. the basis for this designation from that benefit to residents contrary spirit denial to be to the of our employees light unreasonable country document, and its constitutive Ms. characteristics and brought Warren this lawsuit.3 property. II.

I. privilege recently Fairfax seeks to resi- confirmed County, County employees, dents of the and that courts should evaluate First Amendment (hereinafter collectively County non-profits1 rights government-owned property under “qualified per- analysis. to as referred “residents” a' See Arkansas sons”) Forbes, by allowing only groups these to use Educ. Television Comm’n v. 666,-, 1633, 1641,

the facilities and Fairfax 140 L.Ed.2d (1998). per- Complex analysis Government Center was private recognize sonal or use. The issued created to November, 1996, Memorandum which must be able to limit the use County policy encourage purpose states that “to prop intended for which the created, see, erty of the common areas the Government was Cornelius by [qualified Fund, persons] Legal for NAACP and Educ. Defense civic, cultural, educational, Inc., religious, recre- activities____” (1985); Florida, Adderley ational and similar Fairfax L.Ed.2d Procedural Memorandum No. 08-05 L.Ed.2d 149 (Nov. 1996) (the “Memorandum”). 18, (1966), 2 rightfully at and to limit access to those there, see, conducting e.g., Perry The Government Center serves business capitel Ass’n, housing of the Educ. Perry various Ass’n v. Local Educators’ County 37, 53, 103 948, employees, executive as well as the 460 74 794 U.S. S.Ct. L.Ed.2d (1983). meeting County end, place Super- of the Board of Toward that the Court has iden types visors. At issue before us is the tified constitution- at least three of for a for First ality applied purposes, subject of the Memorandum as to the Amendment each to a dif regime scrutiny: exterior of the Government Com- ferent of constitutional "[a]ny organization nonprofit Privileges 1. Defined as which and Immunities clause. Nor could has an office in Fairfax serves the Virgi- and/or she have done so she a citizen of since ” citizens of Fairfax .... Fairfax Building nia. See United and Construction (Nov. Procedural Memorandum No. at 4 08-05 Vicinity v. Trades Council Camden and of 18, 1996). Camden, Mayor and U.S. Council 465 of of 217, 208, 1020, (1984). 104 S.Ct. 79 L.Ed.2d 249 years ago, 2. Until 10 the Fairfax of seat bring A citizen from state could a another Privi- government City. was located Fairfax leges challenge against and Immunities clause 215-18, Memorandum, See at argument however. id. Although at oral Warren cited to the Const, clause, Privileges and Immunities 104 S.Ct. 1020. I make no comment as to U.S. 1, IV, 2, validity § art. cl. she did not claim on base her such claim. 198 J., forum, nan, dissenting)). typical designated pub The traditional

traditional property physi forum, forum. Ark. forum is which has the lic and Educ., at-, thoroughfare, 1641 118 S.Ct. at cal characteristics of U.S. 523 Cornelius, 802, 105 Kokinda, 727, see, e.g., at at 110 S.Ct. 473 U.S. S.Ct. 497 U.S. objec distinguishes (plurality opinion), between 3115 which has the purpose open public upon physical character tive use and access or based these fora location, including objective purpose property, some other inher of the istics Schultz, 474, ently conduct, see, compatible expressive e.g., Frisby v. 487 U.S. 480- with (1988); Educ., at-, 2495, see, 420 481, e.g., 101 L.Ed.2d Ark. 523 U.S. 118 108 S.Ct. 1641, Grace, 171, 177, by history tradi v. 461 S.Ct. at and which United U.S. States 1702, (1983); conduct, 179, 75 736 L.Ed.2d tion used for 103 S.Ct. has been see, objective4 prop Perry, of the 460 U.S. at 103 use and S.Ct. at-, Educ., see, e.g., archetypical examples pub erty, Ark. 523 U.S. traditional Cornelius, 1641; streets, sidewalks, parks: at at 473 U.S. lic fora 118 S.Ct. 3439; 805, 809, government 105 S.Ct. parks title of Wherever the streets and policy respect proper intent and rest, they may immemorially been maybe ty, evidenced its historic and which public and, held in for the use of the trust treatment, see, e.g., Society Int’l traditional mind, pur- time out of have been used for Consciousness, Lee, Inc. v. 505 Krishna assembly, poses communicating 672, 680-681, 112 S.Ct. 120 U.S. citizens, thoughts discussing between (1992). 541 None these factors is L.Ed.2d public questions. Such use of streets Kokinda, v. dispositive. United States See has, times, public places from ancient 111 497 110 S.Ct. U.S. immunities, privileges, part been (1990) (physi (plurality opinion) L.Ed.2d 571 rights, and liberties of citizens. disposi not property cal characteristics C.I.O., 496, 515-16, Hague v. 59 U.S. Grace, tive); U.S. at 103 S.Ct. 1702 (1939). 954, 83 See S.Ct. L.Ed. 1423 also (fact subject gener property to use Grace, 177, 103 S.Ct. 1702. Since dispositive); al Lee v. Int’l Soci street, sidewalk, likely given it is so Consciousness, Inc., ety Krishna 505 U.S. park all of a meets three characteristics 2709, 120 L.Ed.2d 112 S.Ct. generally traditional forum court can policy prohibiting (government distribution sidewalk, street, park treat as a tradi down); property struck Corne literature making “partic tional forum without lius, (govern at 473 U.S. Schultz, inquiry”. Frisby v. ularized See ment’s access not itself decision limit Grace, 2495; at dispositive). 179-180, 1702; Lee, ISKCON v. J., (Kennedy, Traditional fora have char concurring judgments “require in the v. ISKCON acteristics ISKCON). Educ., speakers.” Occasionally, Ark. Lee fur private Lee and accommodate at-, necessary inquiry S.Ct. at 1641. also ther even when See Lee, physical has the characteristics ISKCON J., (O’Connor, concurring generally forum and is ISKCON 672, 2711, instance, Lee, public 112 S.Ct. 120 to traffic. For neither 505 U.S. (1992) military concurring in on 541 sidewalk base over L.Ed.2d ISKCON) (Public control, military judgment compare in v. Lee access retained Greer “ 828, 1211, Spock, public fora is ‘inherent in the v. 424 U.S. 96 S.Ct. 47 to traditional ”) 505(1976), (quoting the locations’ Ko L.Ed.2d with Flower v. United open nature of (Bren- States, 197, 1842, kinda, 743, 407 497 at 110 S.Ct. 3115 U.S. 92 S.Ct. 32 U.S. Lee, 672, 691, means, Consciousness, "objective" this context Inc. v. 505 U.S. 112 4. The term attempted 2711, (1992) (O'Connor, reference restriction "without S.Ct. 120 L.Ed.2d 541 speech”. on The restriction on cannot be J., concurring concurring in ISKCON v. Lee and itself, justified justify but be used to must ISKCON, 830, judgment in Lee v. 505 U.S. non-speech-restrictive aspect reference some 2709, (1992)). 669 112 S.Ct. 120 L.Ed.2d See, e.g., Society Int’l Krishna

199 (1972) curiam), (per compelling L.Ed.2d 653 cited with state interest and the exclusion is Greer, 835, 424 at approval in U.S. 96 S.Ct. narrowly drawn achieve that interest. 1211, single-purpose physical nor a sidewalk Educ., Ark. at-, 523 U.S. 118 S.Ct. at ly separated municipal from the of rest side Cornelius, (quoting 800, 1641 473 U.S. at 105 part historically subject walks and class S.Ct. restrictions, Kokinda, 720, see 497 U.S. category nonpublic second is the fo 3115, (plurality 110 S.Ct. 111 L.Ed.2d 571 rum. -Supreme Some precedent Court indi opinion),5 are traditional fora. government cates that all properties which recently Court has stated are not traditional fora and which the that traditional forum status government intentionally has not opened to confines____” beyond “extend[ ] historic expressive nonpublic conduct are fora. See Educ., at-, Ark. 523 U.S. 118 S.Ct. at Lee, 680, v. ISKCON 505 U.S. at 112 S.Ct. precisely 1641. The Court has never stated Kokinda, 2701. But 738-39, see 497 U.S. at are, what those confines in however. For (Kennedy, J., 110 concurring S.Ct. 3115 stance, the Court has never defined the (objective judgment) characteristics and “street,” “sidewalk,” “park.” terms Nor customary public may use control strictly Court limited the traditional designation intent). government over streets, category sidewalks, Lee, at 693, Accord v. ISKCON 505 U.S. 112 Promotions, parks. See Southeastern J., (Kennedy, S.Ct. 2711 concurring in the Conrad, 546, 1239, v. Ltd. 95 S.Ct. judgments in ISKCON v. Lee and Lee v. (1975) (leased 43 L.Ed.2d 448 municipal the ISKCON). Covering variety such wide public forum); ater is a v. Int'l Heffron property, it is difficult to Consciousness, narrow the exact Society Inc., Krishna physical characteristics,6 640, 2559, U.S. 101 S.Ct. uses and 69 L.Ed.2d (state 298(1981) forum); purposes, fair is a Ed intent that must Carolina, 229, nonpublic wards South characterize U.S. fora. One character 680, (1963) (grounds S.Ct. L.Ed.2d 697 istic has been assumed in all of the Supreme forum); capítol state are a traditional issue, cases address however: opening nonpublic forum to Access to traditional fora conduct will somehow interfere the ob only by content-neutral and “reason- jective purpose proper to which the time, place, able restrictions on the or man- See, ty Educ., has been dedicated.7 Ark. protected speech, provided ner the restric- -, -, 1641, 523 U.S. at at narrowly tions ‘are tailored serve a 1643; Lee, ISKCON U.S. significant governmental interest, and that 2701; 699, 112 (Kenne id. at S.Ct. 2711 they open ample leave alternative channels ” J., dy, concurring in judgments in ISK for communication of the information.’ ISKCON); Kokinda, v. Lee CON and Lee v. Racism, Against Ward v. Rock 728-29, 733, (plu U.S. S.Ct. 3115 109 S.Ct. 105 L.Ed.2d 661 rality opinion) (designation fo Community Clark v. Creative Non-Violence, depends, part, rum purpose proper on 221(1984)). ty; disrupts Cornelius, purpose); solicitation L.Ed.2d Exclusion speaker-identity the basis of 3439; is valid United where necessary the exclusion is serve Postal States Service v. Council Green- notable, though, It is debate); that five (public Justices evaluat- 140 L.Ed.2d 875 access Rosenberger Va., ed the restriction at issue in Rector and Visitors Univ. Kokinda under Kokinda, 115 132 L.Ed.2d 700 See forum standard. (1995) (student fund). J., activities (Kennedy, 110 S.Ct. 3115 740, concurring judgment); in the at id. 110 First, actually assumptions are 7.There two here: (Brennan, J., joined by dissenting, S.Ct. 3115 property that the has been to some dedicated Marshall, Stevens, and, Blackmun). part, in (i.e., objective purpose purpose use or a use or restrictions); independent ond, speech of and sec- physical 6. A forum need a not have objective existence. purpose use or some- is See, Educ., 666, e.g., Ark. 523 U.S. 118 how speech. S.Ct. inconsistent with free and 200 (1981)). contrast, Ass’ns, 114, 6, By 440 130 n. 70 L.Ed.2d 453 U.S.

burgh Civic (1981); 2676, may nonpublic government Greer retain forum sta 69 L.Ed.2d 517 101 S.Ct. 1211; 838, allowing selective, permission-only 96 424 at S.Ct. tus ac Spock, v. U.S. Florida, 47-48, at 87 granting 385 U.S. Adderley v. See id. The of cess to forum. has Supreme Court ad- contingent upon 242. The permission S.Ct. must such be evaluating id.; in characteristic dressed this judgments. See non-ministerial Corneli permis- types speech restrictions are of us, 804, 105 at 3439. 473 U.S. S.Ct. nonpublic Restrictions' on in fora. sible analysis of First Two levels Amendment nonpublic viewpoint speech fora must be in First, public applicable are fora. light “in pur- of the and reasonable neutral govern “[i]f is the “internal standard” — surrounding all the pose forum and of the' speaker ment a who falls within the excludes Cornelius, 473 at U.S. circumstances”. . designated public class to which [limited] Therefore, on 3439. restrictions 105 S.Ct. available, generally is action forum made justified to fora are speech Educ., subject scrutiny.” Ark. to strict speech at would inter- issue extent at-, is, at That 523 118 S.Ct. 1641. U.S. and use fere with the regards for which the forum has the class Lee, See, e.g., v. 505 ISKCON the forum. designated, been a limited forum (O’Connor, J., 688, 692,112 2711 S.Ct. U.S. So, as a traditional treated concurring concurring in v. Lee ISKCON instance, University may not exclude cer ISKCON) (quoting judgment in Lee v. meeting speakers space or tain student from 50-51, S.Ct. itself Perry, U.S. at 103 university on funding otherwise available Greenburgh, quoting 453 U.S. U.S.P.S. generalized to students and student basis (reasonableness 2676) 129-130, jus- 101 S.Ct. Widmar, 263, 102 groups. See 454 U.S. S.Ct. by “lawfully intended use tified dedicated” Rosenberger 70 L.Ed.2d Cf. Pub. property). also Multimedia See Va., Rector Visitors the Univ. Greenville-Spartanburg Dis- Airport Co. v. 132 L.Ed.2d 700 U.S. S.Ct. Cir.1993) (4th (“the trict, 991 F.2d (1995) (exclusion viewpoint-based). was reasonableness] overall assessment [as eye standard, ‘in- be undertaken with an The second the “external stan- must dard”, purposes,’ property] places govern- [the and of the tended restrictions on the ways regulated conduct ability which the designate ment’s the class for actually carrying with the out might especial interfere whose benefit forum been purposes.”). of those opened. Supreme yet Court has not clearly stated what these external limitations actually hybrid category The final are, except say that once a limited “designated public other two. So-called created, has been entities of a “similar char- fora”) (often “limited fora” called may acter” to those allowed access be government properties which those Perry, 460 U.S. at excluded. public, opened expressive activity to the (“the also id. at S.Ct. Educ., public. segment of the Ark. some Cf. relate to state draw distinctions which at-, designat- 1633. A special purpose property opened can ed -, used”); Educ., Ark. topics. speakers for limited limited class (“the (Stevens, J., dissenting) at 1647 n. Perry, at 46 S.Ct. 948. arbitrary First Amendment will not tolerate Merely allowing property some on forum.”); scope definitions of the of the Cor- forum does not that is not 825-27, nelius, 473 U.S. at 105 S.Ct. 3439 designated public fo- automatically create a (Blackmun, J., limits, dissenting) (discussing recently clarified rum. The ability any, placed government’s if de- creates the distinction. forum). scope a limited fine the purposefully forum when it designated public fora, Initially, designated since “generally to a available” makes governmental Educ., of an affirmative des- absence speakers. See Ark. class of fora, at-, ignation, would be treated at 1642 Widmar Vincent, logical it would seem selection subject only to class would be the standards with trees or or designed bushes flowers and speakers promenade as a applicable leisurely to restrictions on in a strolling or as a is, pedestrian nonpublic forum. That the selection of a walk.” Webster’s Third New In- (unabr.1993). Dictionary by government ternational- must be view- class A park by is “a point light tract of land city neutral reasonable- maintained a a place beauty town as objective by purposes served the forum.8 recreation.” Id. at 1642. The Center See ante at 195. Island neatly

mall fits into these definitions. majority tries avoid these common III. designations sense of the Center Island mall A. by focusing on the fact that the Center Is- by land mall is “driveway”. surrounded a The Center Island mall is a traditional The fact that the Center Island mall is sur- public forum. The Center Island mall has by “driveway” rounded a streets or does not physical characteristics of a thor- suggest that it is not a forum. Munic- mall; oughfare park a like or a it has the ipal parks always and malls are surrounded open public use and by space streets. Because limited mu- eminently compatible access and its use is nicipalities, parks and malls must be expressive activity; part of a streets, squeezed serving between both as by history class of and tradi- park-type destinations for activities open tion has been and used for See, traffic control mechanisms. Flamer activity. Plains, York, White New physical mall has Center Island (S.D.N.Y.1993) F.Supp. (noting public thoroughfare characteristics of a like a municipal park merely was a median park or a mall. The district court streets, only between two 15 feet wide majority disagree. They describe the Center end). majority’s narrowest ap- Under the merely landscaped Island mall as a “median proach, argue one could the National dividing driveway” u-shaped they a ar- merely Mall is a dividing Indepen- median gue landscaped are not medians tradi- Avenue, or, dence Avenue from Constitution tional fora. Both contentions are scale, park more to that the Mount Vernon wrong. Baltimore, housing the nation’s first Wash- monument, ington merely a median divid- merely The Center Island mall is not ing traffic on Charles Street. landscaped strip. median We have been given fact, the exact dimensions the Center mall is mall, photos but open the aerial area “U-shaped indicate surrounded drive yards approxi- that it is at least way” lying directly wide and in front of a seat of mately (i.e., yards long two government provides hundred support for the idea square field), footage than more a football that the Center Island mall is a traditional equal divided into three roughly sections of physical forum. The characteristics of size street strikingly intersections. Sidewalks cir- the Center Island mall are similar cumnavigate the mall and grounds traverse a center center Ed area, landscaped inviting Carolina, pedestrians to stroll wards South along explore landscaping mall and 9 L.Ed.2d 697. There the Su further. preme The section the mall closest described the Government protesters Center features a circular around whieh the marching were landscaped “horseshoe,” walkways. area fairly large area, with additional as the usufally] Edwards, A “mall” is defined “a area surrounded sidewalks. (typically strip) a lane or similar often set U.S. at The “horseshoe” out, forum, pointed nonpublic Justice As Blackmun has see Cor- er from then it must also be nelius, 825-27, (or unreasonable) this reasonable to exclude the analyt- in effect ically makes speaker speakers from the class which the indistinct from If it is opened forum has been on limited basis. (or unreasonable) speak- reasonable to exclude

202 objective no because was defined a There is doubt that the use and name received its 230-32, driveway. U-shaped compati- id. at 240 & See of the Center Island mall is purpose 3, (majority opinion n. 680 activity. 83 S.Ct. expressive ble The Center Is- with Supreme Clark, J., dissenting). The outdoor, area, open land is non-enclosed treating the horseshoe —an had no trouble public. County has to the -The admitted that open U-shaped drive- surrounded area compatible speech is with the Island Center public forum. See id. way- a traditional (who qualified by “encouraging” persons mall —as 235-236, I 680. would follow the 83 S.Ct. people) one million number close to lead. Supreme Court’s expressive activity. for all manner of The agreed district court with the as- mall has the Center open gener- sessment: to the purpose of access use and eminently compatible al which is with public, govern- is to the Because it close seat scope,of activity. expressive the widest yet enough away activity ment and far argues that areas like the Center majority disruption, there would cause no it is a objective purpose do not have Island mall particularly apt engage location which activity promote expressive be- and use to political protected speech. or otherwise “designed primarily for they are aesth- cause Ante, plantings”. etic such as 957, v. F.Supp. Warren 988 Fairfax irrelevant, however; the fact 194. This is (E.D.Va.1997). fact, up until 963 Novem- mall have been 1996, ber access to Center Island was purposes, designed primarily for “aesthetic apparently open speakers all via a licens- provide support plantings” not such as ing procedure. actually Ms. Warren was First, position. pri- majority’s for the display to mount a allowed Christmas on the particular piece mary purpose for which a of grounds of the Government Center dispositive. property created One was is in 1995. argue seriously with Justice Kenne- 'cannot Finally, part the Center Island of a class dy’s observation that which, by history tradition, property streets, sidewalks, parks fora of are not It is been treated as primarily designed expressive purposes. for grounds part legislative of a seat of Lee, 696-97, 112 See v. ISKCON power. general, “In and executive J., (Kennedy, concurring in 2711 capitol ... of state and federal com v. judgments Lee and Lee v. ISKCON plexes consistently ... have been held to be ISKCON). designed are for safer Sidewalks Walp, F.Supp. fora.” ACT-UP v. walking; convenient and more 1281, (M.D.Pa.1991) alia, (citing, inter primary purpose noted that “the Court has Grace, 1702, is “the the streets are dedicated” Edwards, L.Ed.2d See also property.” people movement 697; Adderley 83 S.Ct. 9 L.Ed.2d Jersey, v. State New Schneider Florida, (distin (1939). 84 L.Ed. 155 by stating, guishing “[traditionally, Edwards indicate, quoted the definitions above As capitol grounds public. state are confirm, parks will and malls are stroll not.”); Jails are Women Strike Peace merely purposes, designed for aesthetic often for Morton, (D.C.Cir. 472 F.2d plantings. The including test not whether 1972) (“Parks J., concurring) (Wright, designed expressive was capitol grounds much more like state activity, objective uses whether the but [they] long regarded .... been ‘a compatible property are with purposes of the community that, particular un kind of area conduct char- the wide measure tradition, Anglo-American der the are avail Grayned acterizing public fora. See able, to some on reason at least extent and Rockford, of 33 basis, (“The groups question able of citizens concerned crucial L.Ed.2d ”) expression expression with ideas.’ whether the manner basi- Hickel, activity Peace v. cally incompatible of Women Strike normal time.”). (1969)). particular place particular at a Thus, mall, park general are faced with a or a median. Nor public. we does the Con- strikingly property already similar to deter- strip’s sistent with the median function as by Supreme mined be a tradi- part public of thoroughfares traditionally forum, public open tional which is to the open public expressive activities, to the public, actually is and which suitable used for people engaging activity have been in such activity, which, expressive lying directly and strips on median long strips for as as median government power, seat front of a of is criers, have been in Newspaper existence. part property traditionally open of a of class fundraisers, political local civic members of expressive activity. I cannot fathom how campaigns, religious groups, people and with majority maintains that the Center Is- message strips, often median chosen public land mall is not forum. ready with their access to the bustle of undif- humanity, ferentiated their preferred

B. launching point expressive conduct. agree majority Even if I with the was fact, given In that streets and sidewalks Center Island mall a land- is prototypical are the examples of traditional scaped strip, disagree median I would fora, public I perplexed am majority’s majority’s strips that median conclusion conelusory, of one-sentence dismissal are not traditional fora.9 Neither the idea that part medians are not of these tradi majority district court nor the cited to so, Especially tional every fora. since authority supporting attempt their novel other court that has addressed the matter exception out an from carve has treated medians for First Amendment that, quite property literally, doctrine for lies purposes part parcel of the streets quint of the heart Court’s they integral and sidewalks of form which an example essential of traditional including Circuit, part, Ninth the Sixth streets, If parks sidewalks and are Circuit, Circuit, Circuit, Eighth the Fifth fora, traditional then a court bears a and a court in the Eleventh Circuit. See heavy why in explaining burden Tadlock, 1465, 21 Sloman v. F.3d 1469 merely which a combination of all three (9th Cir.1994); Phoenix, City v. ACORN standpoint physical from of characteris- (9th Cir.1986); 798 F.2d 1267 Ater v. tics, objective purposes, uses and and tradi- (6th 1224, 1225, Armstrong, 961 F.2d 1227 treatment, tional and not. historic Median Cir.1992); Society Int’l Krishna Con sidewalks, strips, integral like parts of Orleans, City sciousness New Inc. v. public thoroughfares that constitute the (5th Rouge, Baton 497 Cir. many cases, fora.10 In me- 1989); Orleans, City Acorn v. 606 strips dian If New person house sidewalks.11 F.Supp. (E.D.La.1984); 19-20 Ass’n rightfully who is on a street or sidewalk left Community Organizations him Now “carries with there as for Reform 591, 593, v. St. Louis F.2d right express elsewhere the constitutional 930 594 (8th Cir.1991); fashion,” orderly & his views an Jamison v. News Sun-Sentinel Co. v. Texas, Cox, (S.D.Fla.1988). F.Supp. 702 (1943), majority person L.Ed. I do not see how the cite even one of by right merely stepping cases, loses onto the these cases. each of these restric- See, referring strips Refugee I note that I am not to median "street”. Central American Cen similarly express- (N.Y.) Cove, interstates cordoned off City ter-Carecen Glen ways, generally their nature are not (E.D.N.Y.1990); F.Supp. ISKCON of pedestrians. accessible to The Center Orleans, City Rouge, New Inc. Baton strip, mall not such median as evidenced (M.D.La.1987), F.Supp. 530 n. aff'd the sidewalks around its circumference. For (5th F.2d 494 Cir. great variety strip discussion of the of median characteristics, sizes, shapes, see Acorn majority's approach 11.The would force courts in Orleans, F.Supp. New 19 n. try distinguish the future to a sidewalk when (E.D.La.1984). 22-24 is a forum because it is a sidewalk and Many jurisdictions strips when a even include sidewalk is forum because it median actually strip. sidewalks their definition of the term median time, place, as a use of me- restriction is unreasonable affected individual’s tions that analyzed were and manner restriction. dians for analysis.12 public forum under the traditional non-resi- Nor is the exclusion of narrowly speakers tailored to achieve dent C. compelling state interests. The Therefore, no matter whether the Center numerous interests served asserted park a or a mall or a land mall is Island (1) residents-only policy; reduces the strip, it is a traditional scaped median still maintenance, County’s upkeep, and wear- regulation of public forum. Content-neutral costs, because, alia, inter it reduces and-tear mall Island is thus speech the Center County amount of the must resources restrictions on the to “reasonable compliance to ensure with other devote time, ... provided the re place, or manner (2) Memorandum; terms of the it ensures narrowly ‘are tailored to serve strictions availability of mall the Center Island interest, significant governmental and that a (3) residents; by way it is an efficient use they ample alternative channels leave (4) resources; it reduces the allocate limited ” of the information.’ for communication might clutter that accrue on Center Is- Racism, Against at v. Rock Ward potential by limiting mall the number of land (quoting Clark v. Com 109 S.Ct. 2746 (5) may up display; it pro- who users set Non-Violence, munity Creative tax vides a benefit residents whose 3065). at The cannot Complex; dollars built and maintain the speaker from the Center exclude of an it avoids creation indiscriminate- “ necessary ‘the exclusion is to serve a unless ly Assuming at opened public forum. is compelling state interest and exclusion compel- some of these interests are least narrowly interest.’” drawn achieve ling,13 residents-only policy must Educ., -, at 118 S.Ct. at Ark. narrowly not tai- struck down because is Cornelius, any lored to achieve of these ends. While County’s of non The exclusion narrow, time, tailoring place, under the fall these tests. residents must before require manner standard does not use of the County’s exclusion non-residents The Ward, alternative, least-restrictive time, place, or manner re- not a reasonable at not important traffic Recognizing the striction. substantially speech burden more than is issue, safety at several courts concerns necessary interests, to further its id. upheld limits even on certain bans Here, County’s policy proximity in areas close to streets substantially speech than nec- burdens more traffic, strips, moving including median essary any to further of its asserted inter- time, place, or restric- as reasonable manner The fo- ests. closed this See, Phoenix, City e.g., tions. ACORN speakers except rum to the entire world of Orleans, 1267; 798 F.2d at New ISKCON of qualified persons. The the class of same City Rouge, F.2d at 497. Inc. v. Baton much interests could be achieved with less traffic or not asserted by expedients simple charging burden safety need to shutdown the Center Island costs, monitoring upkeep fees conduct non-residents. mall to creating system favoring qualified a priority County make such claim—its Nor could the persons. qualified per- goal encourage is to vowed Further, that, fact, Center Island mall for ex- the record shows sons to wholly unnecessary Therefore, residency County’s policy as con- pressive conduct. especially question sarily strips, median 12. Several these reserved the indicate that courts sidewalks, housing opened lose those also their tradition- whether streets that have been See, al status. fora. fora traffic still constitute traditional Phoenix, 1267; ACORNv. Cox, Undoubtedly, compelling F.Supp. state it cannot be News & Sun-Sentinel Co. nonpublic opened to treat a forum as a 21. Even if traffic are interest to n. streets fora, not would not neces- this mall. in light the Center Island Since Novem- reasonable cerns eight applications have been of the forum. ber displays in the private

received for Center required The reasonableness in the non- mall; from six of these have been setting merely a rational supporters. Ms.Warren or one of her basis standard. enough simply “[I]t is not large enough Island mall is to accom- regulation rationally establish re- displays modate numerous at the same time. legitimate governmental objective lated to a analy- using Since we are not rational basis regulation ... for protected this affects First arguments sis we need not credit theoretical activity special Amendment that is entitled County. Certainly raised the demand solicitude even in [a] forum.” for use of the Center Island mall has not Co., Multimedia Pub. 991 F.2d at 159. poli- residents-only necessitated the Therefore, while restriction need not be cy. I would therefore strike down the resi- “the only most reasonable or the reasonable dents-only policy on First Amendment limitation”, Cornelius, applied to mall. the Center Island required the Court has “some explanation why speech as to certain is incon- IV. sistent with the intended uses of the forum.” ignore were I to all the Even of relevant Lee, ISKCON circuits, and five criteria courts from other (O’Connor, J., concurring in ISKCON agree only the and Center Island mall is concurring in judgment Lee and in the Lee v. forum, I limited would hold that the ISKCON). County The has not shown that upon County’s effort to restrict access based speech by non-residents is inconsistent with residency in light is unreasonable the ob- of objective the and purpose of the Center jective purpose served the Center Island Island mall. mall. majority The asserts that the restrictions County clear designated It is that the (1) justified here would be because the Gov- the Center Island mall be a limited with, ernment Center was built forum. The decisive difference between by, County provided by is maintained funds (2) County taxpayers; County reasonably the recently Supreme delineated the is money concluded that it will save in mainte- to the forum on a whether access is available supervision expenses nance and if it limits general Educ., or a Ark. selective basis. class; access to some small the Cen- at-, Here, the adjacent County ter Island mall is seat County encourages any member of the limit- it open only County so is reasonable qualified of persons ed class to use the Cen- County. residents and those who serve the ter mall for expressive purposes Island aspects objective These the of Center Island nothing in the record indicates that the mall do not indicate that its use should be County judg- makes “non-ministerial qualified persons. limited to Given that the ments”, id., selecting many see which of the property open, at issue is an sidewalk-encir- members the class who desire to mall, government, cled across from a seat of actually general use the forum. This is ac- residency patently is a restriction on unrea- to designate cess sufficient sonable. noted, II, supra, As I have section yet specifical- Court has to address The fact that the built and main- ly on a “external standard” —the limits tains the mall Center Island government entity’s ability designate provide funds not does a reasonable basis to I designation class. prohibit engaging have assumed non-residents from ex- viewpoint-neutral class must pressive activity on it. The funds objective in light pur- spent building reasonable not an edifice were poses agree majori- needs, exclusively of the forum. I with the serves local such ty residency-restriction viewpoint school or local senior center. The Center however, agree, I directly neutral. do not that it is Island lies in front mall center County govern- simple, failure to select this available alterna- County government. suggests something about both the ve- place tive is the where ment center business, racity justification its and the but it also asserted internal transacts its blanket ban.” Mul- reasonableness of have been invited place where outsiders Co., Pub. at 161. timedia with the to transact business Coun- to come mall ty. Center Island some Nor is the Finally, the fact that Center Island government space center within enclosed leading to as the mall the seat of serves it is mall. All these complex; justify County in government not to free- presumably are welcome “outsiders” limiting exclusively to access residents. mall on their ly traverse fact, just opposite I would reach conclu- center, way and out of the into precisely the Center sion: because and talk about to loiter there perhaps even directly in of the center of mall lies front Thus, the they business conducted. limit government, it unreasonable to access -surrounding uses of speaker identity it on the once it basis mall itself and the Center Island opened. has been As the district court not- non- any way inconsistent with ed, mall the location of the Center Island residents. place makes it the for all ideal individuals engage political protected argue or otherwise reasonably cannot speech. F.Supp. at 963. “There is an super- saving money on maintenance symbolic significance in' unmistakable demon- restricting costs access Cen- vision strating government] [center close to the group quali- mall to the limited ter Island which, First, easily quantifiable, while not group that persons. fied is, importance in the in undoubted constitutional mall to opened the Center Island whole Peace, WomenStrike numbers, huge.- approximately balance.” There J., (Wright, concurring). general, In 900,000 It County alone. is not residents County probably residents would have savings via ration- cost reasonable assert County using in interest extended to ing the ration has been when activity are, frequently 900,000 seat for more people simple who about But, it would likely than outsiders.14 be unreason- to be the most fre- proximity, fact of parochial County ably to think that This quent ration- users no no Second, County its decisions are of interest to ing, it rationalization. surrounding jurisdic- impact upon in arguments those nothing theoretical presented but allowing tions. imposed by non-residents costs mall would be access to Center Island unreasonable, view, my It is therefore de anything but minimis. The record shows ability any sub-group’s express limit that, fact, allowing non-residents access outdoor, on an otherwise themselves impose only de Island mall the Center would area, well-suited for First Amendment activi- County. The minimis costs Center directly ty, in front most outdoor, mall is an unenclosed area. short, government properties. we often without refer to distinctions differences. County provide would not need practical no heat, water, security, any There are distinctions between electricity, per- as a forum for any to accommodate non-resident’s sonnel a use residents very residents such mall. The use of the Center Island County. areas that surround the further limited demand for Center Island any clean-up costs the minimizes Also, easily

might incur. could any might

impose require fee for use up

clean costs. need not While restrictions, “its

select the most reasonable So, using be the forum self-regulating, dents less-interested 14. This would however. would residents, an area would be unreasonable to reserve than event. when non-resi- exclusive residents

Case Details

Case Name: Rita Warren v. Fairfax County

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 21, 1999

Citation: 169 F.3d 190

Docket Number: 98-1059

Court Abbreviation: 4th Cir.