McDonnell et al v. City and County of Denver et al

Filing 29

ORDER granting in part and denying in part 2 Motion for Preliminary Injunction by Judge William J. Martinez on 02/22/2017. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-0332-WJM-MJW
NAZLI MCDONNELL, and
ERIC VERLO,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER,
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official
capacity, and
DENVER POLICE SERGEANT VIRGINIA QUIÑONES, in her individual and official
capacity,
Defendants.

ORDER GRANTING PRELIMINARY INJUNCTION IN PART

Plaintiffs Nazli McDonnell (“McDonnell”) and Eric Verlo (“Verlo”) (together,
“Plaintiffs”) sue the City and County of Denver (“Denver”), Denver Police Commander
Antonio Lopez (“Lopez”) and Denver Police Sergeant Virginia Quiñones (“Quiñones”)
(collectively, “Defendants”) for allegedly violating Plaintiffs’ First and Fourteenth
Amendment rights when they prevented Plaintiffs from protesting without a permit in the
Jeppesen Terminal at Denver International Airport (“Airport” or “Denver Airport”). (ECF
No. 1.) Currently before the Court is Plaintiffs’ Motion for Preliminary Injunction, which
seeks to enjoin Denver from enforcing some of its policies regarding demonstrations
and protests at the Airport. (ECF No. 2.) This motion has been fully briefed (see ECF
Nos. 2, 20, 21, 23) and the Court held an evidentiary hearing on February 15, 2017
(“Preliminary Injunction Hearing”).

For the reasons explained below, Plaintiffs’ Motion is granted to the following
limited extent:
•

Defendants must issue an expressive activity permit on twenty-four hours’
notice in circumstances where an applicant, in good faith, seeks a permit
for the purpose of communicating topical ideas reasonably relevant to the
purposes and mission of the Airport, the immediate importance of which
could not have been foreseen seven days or more in advance of the
commencement of the activity for which the permit is sought, or when
circumstances beyond the control of the permit applicant prevented timely
filing of the application;

•

Defendants must make all reasonable efforts to accommodate the
applicant’s preferred demonstration location, whether inside or outside of
the Jeppesen Terminal, so long as the location is a place where the
unticketed public is normally allowed to be;

•

Defendants may not enforce Denver Airport Regulation 50.09’s prohibition
against “picketing” (as that term is defined in Denver Airport Regulation
50.02-8) within the Jeppesen Terminal; and

•

Defendants may not restrict the size of a permit applicant’s proposed
signage beyond that which may be reasonably required to prevent the
impeding of the normal flow of travelers and visitors in and out of
Jeppesen Terminal; and specifically, Defendants may not enforce Denver
Airport Regulation 50.08-12’s requirement that signs or placards be no
larger than one foot by one foot.
2

Any relief Plaintiffs seek beyond the foregoing is denied at this phase of the
case. In particular, the Court will not require the Airport to accommodate truly
spontaneous demonstrations (although the Airport remains free to do so); the Court will
not require the Airport to allow demonstrators to unilaterally determine the location
within the Jeppesen Terminal that they wish to demonstrate; and the Court will not
strike down the Airport’s usual seven-day notice-and-permit requirement as
unconstitutional in all circumstances.
I. FINDINGS OF FACT
Based on the parties’ filings, and on the documentary and testimonial evidence
received at the evidentiary hearing, the Court makes the following findings of fact for
purposes of resolving Plaintiffs’ Motion.
A.

Regulation 50
Pursuant to Denver Municipal Code § 5-16(a), Denver’s manager of aviation may

“adopt rules and regulations for the management, operation and control of [the] Denver
Municipal Airport System, and for the use and occupancy, management, control,
operation, care, repair and maintenance of all structures and facilities thereon, and all
land on which [the] Denver Municipal Airport System is located and operated.” Under
that authority, the manager of aviation has adopted “Rules and Regulations for the
Management, Operation, Control, and Use of the Denver Municipal Airport System.”
See https://www.flydenver.com/about/administration/rules_regulations (last accessed
Feb. 16, 2017). Part 50 of those rules and regulations governs picketing, protesting,
soliciting, and similar activities at the Airport. See https://www.flydenver.com/sites/

3

default/files/rules/50_leafleting.pdf (last accessed Feb. 16, 2017). The Court will refer
to Part 50 collectively as “Regulation 50.”
The following subdivisions of Regulation 50 are relevant to the parties’ current
dispute:
•

Regulation 50.03: “No person or organization shall leaflet, conduct
surveys, display signs, gather signatures, solicit funds, or engage in other
speech related activity at Denver International Airport for religious,
charitable, or political purposes, or in connection with a labor dispute,
except pursuant to, and in compliance with, a permit for such activity
issued by the CEO [of the Airport] or his or her designee. . . .”

•

Regulation 50.04-1: “Any person or organization desiring to leaflet, display
signs, gather signatures, solicit funds, or engage in other speech related
activity at Denver International Airport for religious, charitable, or political
purposes, or in connection with a labor dispute, shall complete a permit
application and submit it during regular business hours, at least seven (7)
days prior to the commencement of the activity for which the permit is
sought and no earlier than thirty (30) days prior to commencement of the
activity. The permit application shall be submitted using the form provided
by the Airport. The applicant shall provide the name and address of the
person in charge of the activity, the names of the persons engaged in the
activity, the nature of the activity, each location at which the activity is
proposed to be conducted, the purpose of the activity, the hours during
which the activity is proposed to be conducted, and the beg inning and end
4

dates of such activity. A labor organization shall also identify the
employer who is the target of the proposed activity.”
•

Regulation 50.04-3: “Upon presentation of a complete permit application
and all required documentation, the CEO shall issue a permit to the
applicant, if there is space available in the Terminal, applying only the
limitations and regulations set forth in this Rule and Regulation . . . .
Permits shall be issued on a first come-first served basis. No permits
shall be issued by the CEO for a period of time in excess of thirty-one (31)
days.”

•

Regulation 50.04-5: “In issuing permits or allocating space, the CEO shall
not exercise any discretion or judgment regarding the purpose or content
of the proposed activity, except as provided in these Rules and
Regulations. The issuance of a permit is a strictly ministerial function and
does not constitute an endorsement by the City and County of Denver of
any organization, cause, religion, political issue, or other matter.”

•

Regulation 50.04-6: “The CEO may move expressive activity from one
location to another and/or disperse such activity around the airport upon
reasonable notice to each affected person when in the judgment of the
CEO such action is necessary for the efficient and effective operation of
the transportation function of the airport.”

•

Regulation 50.08-12: “Individuals and organizations engaged in leafleting,
solicitation, picketing, or other speech related activity shall not: * * * [w]ear
or carry a sign or placard larger than one foot by one foot in size . . . .”
5

(underscoring in original).
•

Regulation 50.09: “Picketing not related to a labor dispute is prohibited in
all interior areas of the Terminal and concourses, in the Restricted Area,
and on all vehicular roadways, and shall not be conducted by more than
two (2) persons at any one location upon the Airport.”

•

Regulation 50.02-8: “Picketing shall mean one or more persons marching
or stationing themselves in an area in order to communicate their position
on a political, charitable, or religious issue, or a labor dispute, by
displaying one or more signs, posters or similar devices” (underscoring in
original).

The Airport receives about forty-five permit requests a year. No witness at the
Preliminary Injunction Hearing (including Airport administrators who directly or indirectly
supervise the permit process) could remember an instance in which a permit had been
denied.
Although there is no formal written, prescribed procedure for requesting
expedited treatment of permit requests, the Airport not infrequently processes such
requests and issues permits in less than seven days. Last November, less than seven
days before Election Day, the Airport received a request from “the International
Machinists”1 to stage a demonstration ahead of the election. The Airport was able to
process that request in two days and thereby permit the demonstration before Election
Day.

1

Presumably, the International Association of Machinists and Aerospace Workers.

6

B.

The Executive Order
On Friday, January 27, 2017, President Trump signed Executive Order 13769

(“Executive Order”). See 82 Fed. Reg. 8977. The Executive Order, among other
things, established a 90-day ban on individuals from seven Muslim-majority countries
from entering the United States, a 120-day suspension of all refugee admissions, and
an indefinite suspension of refugee admissions from Syria. Id. §§ 3(c), 5(a), 5(c). “The
impact of the Executive Order was immediate and widespread. It was reported that
thousands of visas were immediately canceled, hundreds of travelers with such visas
were prevented from boarding airplanes bound for the United States or denied entry on
arrival, and some travelers were detained.” Washington v. Trump, ___ F.3d. ___, ___,
2017 WL 526497, at *2 (9th Cir. Feb. 9, 2017). As is well known, demonstrators and
attorneys quickly began to assemble at certain American airports, both to protest the
Executive Order and potentially to offer assistance to travelers being detained upon
arrival.
C.

The January 28 Protest at the Denver Airport
Shortly after 1:00 p.m. on the following day—Saturday, January 28, 2017—

Airport public information officer Heath Montgomery e-mailed Defendant Lopez, the
police commander responsible for Denver’s police district encompassing the Airport.
Lopez was off-duty at the time. Montgomery informed Lopez that he had received
media inquiries about a protest being planned for the Airport later that day, and that no
Regulation 50 permit had been issued for such a protest.
Not knowing any details about the nature or potential size of the protest, and

7

fearing the possibility of “black bloc” and so-called “anarchist activities,” Lopez
coordinated with other Denver Police officials to redeploy Denver Police’s gang unit
from their normal assignments to the Airport. Denver Police also took uniformed
officers out of each of the various other police districts and redeployed them to the
Airport. Lopez called for these reinforcements immediately in light of the Airport’s
significant distance from any other police station or normal patrol area. Lopez knew
that if an unsafe situation developed, he could not rely on additional officers being able
to get to the Airport quickly.
Through his efforts, Lopez was eventually able to assemble a force of about
fifty officers over “the footprint of the entire airport,” meaning inclusive of all officers
already assigned to the Airport who remained on their normal patrol duties. Lopez
himself also came out to the Airport.
In the meantime, Montgomery had somehow learned of an organization known
as the Colorado Muslim Connection that was organizing protesters through Facebook.
Montgomery reached out to this organization through the Airport’s own Facebook
account and informed them of Regulation 50’s permit requirement. (Ex. 32.) One of
the Colorado Muslim Connection’s principals, Nadeen Ibrahim, then e-mailed
Montgomery “to address the permit.” (Ex. 30.) Ibrahim told Montgomery:
The group of people we have will have a peaceful assembly
carrying signs saying welcome here along with a choir and
lots of flowers. Our goal is to stand in solidarity with our
community members that have been detained at the airports
since the signing of the executive order, though they do
have active, legal visas/green cards. Additionally, we would
like to show our physical welcoming presence for any newly
arriving Middle Eastern sisters and brothers with visas. We
do not intend to block any access to [the Airport].
8

(Id.) Montgomery apparently did not construe this e-mail as a permit request, or at least
not a properly prepared one, and stated that “Denver Police will not allow a protest at
the airport tonight. We are willing to work with you like any other group but there is a
formal process for that.” (Id.)
Nonetheless, protesters began to assemble in the late afternoon and early
evening in the Airport’s Jeppesen Terminal, specifically in the multi-storied central area
known as the “Great Hall.” The Great Hall is a very large, rectangular area that runs
north and south. The lower level of the Great Hall (level 5) has an enormous amount of
floor space, and is ringed with offices and some retail shops, but the floor space itself is
largely taken up by security screening facilities for departing passengers. The only
relatively unobstructed area on level 5 is the middle third, which is currently designed
primarily as a location for “meeters-and-greeters,” i.e., individuals waiting for
passengers arriving from domestic flights who come up from the underground train
connecting the Jeppesen Terminal with the various concourses. There is a much
smaller meeters-and-greeters waiting area at the north end of level 5, where
international arrivals exit from customs screening.
The upper level of the Great Hall (level 6) has much less floor space than level 5
given that it is mostly open to level 5 below. It is ringed with retail shops and
restaurants. At its north end is a pedestrian bridge to and from the “A” concourse and
its separate security screening area.
Given this design, every arriving and departing passenger at the Airport (i.e., all
passengers except those only connecting through Denver), and nearly every other
person having business at the airport (including employees, delivery persons, meeters9

and-greeters, etc.), must pass through some portion of the Great Hall. In 2016, the
Airport served 58.3 million passengers, making it the sixth busiest airport in the United
States and the eighteenth busiest in the world. Approximately 36,000 people also work
at the airport.
The protesters who arrived on the evening of January 28 largely congregated in
the middle third of the Great Hall (the domestic-arrivals meeter-and-greeter area). The
protesters engaged in singing, chanting, praying, and holding up signs. At least one of
them had a megaphone.
The size of the protest at its height is unclear. The witnesses at the evidentiary
hearing gave varying estimates ranging from as low as 150 to as high as 1,000. Most
estimates, however, centered in the range of about 200. Lopez, who believed that the
protest eventually comprised about 300 individuals, did not believe that his fifty officers
throughout the Airport were enough to ensure safety and security for that size of
protest, even if he could pull all of his officers away from their normal duties.
Most of the details of the January 28 protest are not relevant for present
purposes. Suffice it to say that Lopez eventually approached those who appeared to
be the protest organizers and warned them multiple times that they could be arrested if
they continued to protest without a permit. Airport administration later agreed to allow
the protest to continue on “the plaza,” an area just outside the Jeppesen Terminal to its
south, between the Terminal itself and the Westin Hotel. Protesters then moved to that
location, and the protest dispersed later in the evening. No one was arrested and no
illegal activity stemming from the protest (e.g., property damage) was reported, nor was
there any report of disruption to travel operations or any impeding of the normal flow of
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travelers and visitors in and out of Jeppesen Terminal.
D.

The January 29 Protest at the Denver Airport
Plaintiffs disagree strongly with the Executive Order and likewise wished to

protest it, but, due to their schedules, were unable to participate in the January 28
protest. They decided instead to go to the Airport on the following day, Sunday,
January 29. They came that afternoon and stationed themselves at a physical barrier
just outside the international arrival doors at the north end of the Great Hall, level 5.
They each held up a sign of roughly poster board size expressing a message of
opposition to the Executive Order and solidarity with those affected by it. (See Exs. 2,
4, M.)
Plaintiffs were soon approached by Defendant Quiñones, who warned them that
they could be arrested for demonstrating without a permit. Plaintiffs felt threatened, as
well as disheartened that they could not freely exercise their First Amendment rights
then and there. Plaintiffs felt it was important to be demonstrating both at that particular
time, given the broad news coverage of the effects of the Executive Order, and at that
particular place (the international arrivals area), given a desire to express solidarity with
those arriving directly from international destinations—whom Plaintiffs apparently
assumed would be most likely to be affected by the Executive Order in some way.
Plaintiffs left the Airport later that day without being arrested, and without
incident. They have never returned to continue their protest, nor have they applied for
a permit to do so.

11

E.

Permits Since Issued
The airport has since issued permits to demonstrators opposed to the Executive

Order. At least one of these permits includes permission for four people to
demonstrate in the international arrivals area, where Plaintiffs demonstrated on January
29.
II. REQUESTED INJUNCTION
Plaintiffs have never proposed specific injunction language. In their Motion, they
asked for “an injunction prohibiting their arrest for standing in peaceful protest within
Jeppesen Terminal and invalidating Regulation 50 as violative of the First and
Fourteenth Amendments to the United States Constitution.” (ECF No. 2 at 4.) At the
Preliminary Injunction Hearing, Plaintiffs’ counsel asked the Court to enjoin Defendants
(1) “from arresting people for engaging in behavior that the plaintiffs or people similarly
situated were engaging in,” (2) from enforcing Regulation 50.09 (which forbids nonlabor demonstrators from holding up signs within the Jeppesen Terminal), and (3) from
administering Regulation 50 without an “exigent circumstances exception.” Counsel
also argued that requiring a permit application seven days ahead of time is
unconstitutionally long in any circumstance, exigent or not.
III. LEGAL STANDARD
A.

The Various Standards
In a sense, there are at least three preliminary injunction standards. The first,

typically-quoted standard requires: (1) a likelihood of success on the merits, (2) a threat
of irreparable harm, which (3) outweighs any harm to the non-moving party, and (4) that

12

the injunction would not adversely affect the public interest. See, e.g., Awad v. Ziriax,
670 F.3d 1111, 1125 (10th Cir. 2012).
If, however, the injunction will (1) alter the status quo, (2) mandate action by the
defendant, or (3) afford the movant all the relief that it could recover at the conclusion of
a full trial on the merits, a second standard comes into play, one in which the movant
must meet a heightened burden. See O Centro Espirita Beneficiente Uniao do Vegetal
v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc). Specif ically, the proposed
injunction “must be more closely scrutinized to assure that the exigencies of the case
support the granting of a remedy that is extraordinary even in the normal course” and “a
party seeking such an injunction must make a strong showing both with regard to the
likelihood of success on the merits and with regard to the balance of harms.” Id.
On the other hand, the Tenth Circuit also approves of a
modified . . . preliminary injunction test when the moving
party demonstrates that the [irreparable harm], [balance of
harms], and [public interest] factors tip strongly in its favor.
In such situations, the moving party may meet the
requirement for showing [likelihood of] success on the merits
by showing that questions going to the merits are so serious,
substantial, difficult, and doubtful as to make the issue ripe
for litigation and deserving of more deliberate investigation.
Verlo v. Martinez, 820 F.3d 1113, 1128 n.5 (10th Cir. 2016). T his standard, in other
words, permits a weaker showing on likelihood of success when the party’s showing on
the other factors is strong. It is not clear how this standard would apply if the second
standard also applies.
In any event, “a preliminary injunction is an extraordinary remedy,” and therefore
“the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v.
13

Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).
B.

Does Any Modified Standard Apply?
The status quo for preliminary injunction purposes is “the last peaceable

uncontested status existing between the parties before the dispute developed.” Schrier
v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005) (internal quotation marks
omitted). By asking that portions of Regulation 50 be invalidated, Plaintiffs are seeking
to change the status quo. Therefore they must make a stronger-than-usual showing on
likelihood of success and the balance of harms.
IV. ANALYSIS
A.

Irreparable Harm as it Relates to Standing
Under the circumstances, the Court finds it appropriate to begin by discussing

the irreparable harm element of the preliminary injunction test as it relates Plaintiffs’
standing to seek an injunction.
Testimony at the Preliminary Injunction Hearing revealed that certain groups
wishing to protest the Executive Order have since applied for and obtained permits.
Thus, Plaintiffs could get a permit to demonstrate at the airport on seven days’ advance
notice—although Regulation 50.09 would still prohibit them from demonstrating by
wearing or holding up signs. In addition, as discussed in more detail below (Part
IV.B.3.c), Plaintiffs could potentially get a permit to hold a protest parade on public
streets in the City and County of Denver with as little as 24 hours’ notice. And as far as
the Court is aware, the two Plaintiffs may be able to stand on any public street corner
and hold up signs without any prior notice or permit requirement. Thus, Plaintiffs’

14

alleged irreparable harm must be one or both of the following: (1) the prospect of not
being able to demonstrate specifically at the airport on less than seven days’ notice, or
(2) the inability to picket in opposition to the government action they oppose—that is,
the inability to hold up “signs, posters or similar devices” while engaging in expressive
activity at the airport. The Court finds that the second of these options is a fairly
traditional allegation of First Amendment injury—even if they do apply for and obtain a
permit, by the express terms of Regulation 50.09 Plaintiffs will not be allowed to carry or
hold up signs, posters, or the like. The first option, however, requires more extensive
discussion and analysis.
The rapidly developing situation that prompted Plaintiffs to go to the Airport on
January 29 has since somewhat subsided. The Executive Order remains a newsworthy
topic, but a nationwide injunction now prevents its enforcement, see Washington, ___
F.3d at ___, 2017 WL 526497, at *9, and—to the Court’s knowledge—none of the most
urgent effects that led to airport-based protests, such as individuals being detained
upon arrival, have since repeated themselves. Nonetheless, the circumstances that
prompted this lawsuit reveal a number of unassailable truths about “freedom of speech
. . . [and] the right of the people peaceably to assemble, and to petition the government
for a redress of grievances.” U.S. Const. amend. I.
One indisputable truth is that the location of expressive activity can have singular
First Amendment significance, or as the Tenth Circuit has pithily put it: “Location,
location, location. It is cherished by property owners and political demonstrators alike.”
Pahls v. Thomas, 718 F.3d 1210, 1216 (10th Cir. 2013). The ability to convey a
message to a particular person is crucial, and that ability often turns entirely on location.
15

Thus, location has specifically been at issue in a number of First Amendment decisions.
See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (abortion protesters’
ability to approach abortion clinic patrons within a certain distance); Pahls, 718 F.3d at
1216–17 (protesters’ ability to be in a location where the President could see them as
his motorcade drove past); Citizens for Peace in Space v. City of Colo. Springs, 477
F.3d 1212, 1218–19 (10th Cir. 2007) (peace activists’ ability to be near a hotel and
conference center where a NATO conference was taking place); Tucker v. City of
Fairfield, 398 F.3d 457, 460 (6th Cir. 2005) (labor protesters’ ability to demonstrate
outside a car dealership); Friends of Animals, Inc. v. City of Bridgeport, 833 F. Supp. 2d
205, 207–08 (D. Conn. 2011) (animal rights protesters’ ability to protest near a circus),
aff’d sub nom. Zalaski v. City of Bridgeport Police Dep’t, 475 F. App’x 805 (2d Cir.
2012).
Another paramount truth is that the timing of expressive activity can also have
irreplaceable First Amendment value and significance: “simple delay may permanently
vitiate the expressive content of a demonstration.” NAACP, W. Region v. City of
Richmond, 743 F.2d 1346, 1356 (9th Cir. 1984); see also American-Arab
Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any
notice period is a substantial inhibition on speech.”); Church of Am. Knights of Ku Klux
Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (“given that . . . political
demonstrations are often engendered by topical events, a very long period of advance
notice with no exception for spontaneous demonstrations unreasonably limits free
speech”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“The five-day notice

16

requirement restricts a substantial amount of speech that does not interfere with the
city’s asserted goals of protecting pedestrian and vehicle traffic, and minimizing
inconvenience to the public.”).
This case provides an excellent example of this phenomena given that—whether
intentionally or not—the President’s announcement of his Supreme Court nomination
on January 31 (four days after signing the Executive Order) permitted the President to
shift the media’s attention to a different topic of national significance. Thus, the inability
of demonstrators to legally “strike while the iron’s hot” mattered greatly in this instance.
Cf. City of Gary, 334 F.3d at 682 (in the context of a 45-day application period for a
parade, noting that “[a] group that had wanted to hold a rally to protest the U.S. invasion
of Iraq and had applied for a permit from the City of Gary on the first day of the war
would have found that the war had ended before the demonstration was authorized”).
These principles are not absolute, however, nor self-applying. The Court must
analyze them in the specific context of the Airport. But for present purposes, the Court
notes that the Plaintiffs’ alleged harm of being unable to protest at a specific location on
short notice states a cognizable First Amendment claim. In addition, by its very nature,
this is the sort of claim that is “capable of repetition, yet evading review.” S. Pac.
Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911). Here, “the
challenged action”—enforcement of the seven-day permit requirement during an event
of rapidly developing significance—“was in its duration too short to be fully litigated prior
to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
Further, “there [is] a reasonable expectation that the same complaining party would be
subjected to the same action again.” Id. More specifically, the Court credits Plaintiffs’
17

testimony that they intend to return to the Airport for future protests, and, given
continuing comments by the Trump Administration that new immigration and travelrelated executive orders are forthcoming, the Court agrees with Plaintiffs that it is
reasonably likely a similar situation will recur—i.e., government action rapidly creating
consequences relevant specifically to the Airport.
Thus, although the prospect of being unable to demonstrate at the Airport on
short notice is not, literally speaking, an “irreparable harm” (because the need for such
demonstration may never arise again), it is nonetheless a sufficient harm for purposes
of standing and seeking a preliminary injunction.
The Court now turns to the heart of this case—whether Plaintiffs are likely to
succeed on the merits of their claims. Following that, the Court will reprise the
irreparable harm analysis in the specific context of the likelihood-of-success findings.
B.

Likelihood of Success on the Merits
Evaluating likelihood of success requires evaluating the substantive merit of

Plaintiffs’ claim that Regulation 50, or any portion of it, violates their First Amendment
rights. To answer this question, the Supreme Court prescribes the following analysis:
1.

Is the expression at issue protected by the First Amendment?

2.

If so, is the location at issue a traditional public forum, a designated public
forum, or a nonpublic forum?

3.

If the location is a traditional or designated public forum, is the
government’s speech restriction narrowly tailored to meet a compelling
state interest?

4.

If the location is a nonpublic forum, is the government’s speech restriction
18

reasonable in light of the purpose served by the forum, and viewpoint
neutral?
See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797–806 (1985).
The Court will address these inquiries in turn.
1.

Does the First Amendment Protect Plaintiffs’ Expressive Conduct?

The Court “must first decide whether [the speech at issue] is speech protected
by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There
appears to be no contest that the sorts of activities Plaintiffs attempted to engage in at
the Airport (including holding up signs) are expressive endeavors protected by the First
Amendment. Accordingly, the Court deems it conceded for preliminary injunction
purposes that Plaintiffs are likely to succeed on this element of the Cornelius analysis.
2.

Is the Jeppesen Terminal a Public Forum (Traditional or Designated)?

The Court must next decide whether the Jeppesen Terminal is a public forum:
. . . the extent to which the Government can control access
[to government property for expressive purposes] depends
on the nature of the relevant forum. Because a principal
purpose of traditional public fora is the free exchange of
ideas, speakers can be excluded from a public forum only
when the exclusion is necessary to serve a compelling state
interest and the exclusion is narrowly drawn to achieve that
interest. Similarly, when the Government has intentionally
designated a place or means of communication as a public
forum[,] speakers cannot be excluded without a compelling
governmental interest. Access to a nonpublic forum,
however, can be restricted as long as the restrictions are
reasonable and are not an effort to suppress expression
merely because public officials oppose the speaker’s view.
Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

19

a.

Is the Jeppesen Terminal a Traditional Public Forum?

Plaintiffs claim that “[t]he Supreme Court has not definitively decided whether
airport terminals . . . are public forums.” (ECF No. 2 at 7.) This is either an intentional
misstatement or a difficult-to-understand misreading of the most relevant case (which
Plaintiffs repeatedly cite), International Society for Krishna Consciousness, Inc. v. Lee ,
505 U.S. 672, 679 (1992) (“Lee ”).
The plaintiffs in Lee were disseminating religious literature and soliciting funds at
the airports controlled by the Port Authority of New York and New Jersey (JFK,
LaGuardia, and Newark). Id. at 674–75. By regulation, however, the Port Authority
prohibited “continuous or repetitive” person-to-person solicitation and distribution of
literature. Id. at 675–76. The Second Circuit held that the airports were not public fora
and that the regulation was reasonable as to solicitation but not as to distribution. Id. at
677. The dispute then went to the Supreme Court, which granted certiorari specifically
“to resolve whether airport terminals are public fora,” among other questions. Id.
The Court answered the public forum question in the negative. Relying on the
historical use of airport terminals generally, the Court found that “the tradition of airport
activity does not demonstrate that airports have historically been made available for
speech activity.” Id. at 680. “Nor can we say,” the Court continued, “that these
particular terminals, or airport terminals generally, have been intentionally opened by
their operators to such activity; the frequent and continuing litigation evidencing the
operators’ objections belies any such claim.” Id. at 680–81. Then, invoking the
reasonableness test that applies to government regulation of nonpublic fora, the Court

20

affirmed the Second Circuit’s holding that the solicitation ban was reasonable. Id. at
683–85.
Five justices (Rehnquist, White, O’Connor, Scalia, and Thomas) joined all of the
major rulings regarding the solicitation ban, including the nonpublic forum status of
airport terminals and the reasonableness of the ban. The outcome regarding the
distribution ban, however, commanded no majority opinion. Justice O’Connor, applying
the reasonableness standard for nonpublic fora, agreed with the Second Circuit that the
distribution ban was not reasonable. Id. at 690–93 (opn. of O’Connor, J.). Justice
Kennedy, joined in relevant part by Justices Blackmun, Stevens, and Souter, agreed
that the Second Circuit’s judgment regarding the distribution ban should be affirmed,
but on different grounds, namely, under a strict scrutiny test (because these justices
believed that the airport terminals should be deemed a public forum). Id. at 708–10
(opn. of Kennedy, J.). The result was that the Second Circuit’s invalidation of the
distribution ban was affirmed without any opinion commanding a majority view.
Regardless of the outcome with respect to the distribution ban, it is beyond
debate that five Supreme Court justices in Lee agreed that airport terminals are not
public fora. Id. at 680–81. The Tenth Circuit has acknowledged this holding. Mocek v.
City of Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015) (“As an initial matter, an airport
is a nonpublic forum, where restrictions on expressive activity need only ‘satisfy a
requirement of reasonableness.’” (quoting Lee, 505 U.S. at 683)). Notably, Plaintiffs
have cited no case in which any court anywhere has deemed an airport to be a public
forum.

21

b.

Is the Jeppesen Terminal a Designated Public Forum?

Even though the Jeppesen Terminal is not a traditional public forum, Denver
could still designate it as a public forum if Denver “intentionally [opens the Jeppesen
Terminal] for public discourse.” Cornelius, 473 U.S. at 802. Denver denies that it has
done so, and Plaintiffs’ arguments to the contrary lack merit.
i.

Terminal Visitors’ Incidental Expressive Activities

Plaintiffs argue that visitors to the Jeppesen Terminal “engage in First
Amendment activity; they wear buttons, shirts, and hats that convey distinct messages
to other visitors. They engage in one-on-one conversations.” (ECF No. 21 at 3.) Thus,
Plaintiffs say, Denver has designated a public forum within the Jeppesen Terminal.
The Tenth Circuit has already foreclosed this argument. Addressing the public
forum status of the Denver Performing Arts Complex, the Court stated the following:
“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.” Hawkins v. City & Cnty. of Denver, 170
F.3d 1281, 1288 (10th Cir. 1999).
Indeed, even if it wanted to, Denver almost certainly could not impose such a
“zone of silence,” as illustrated by Board of Airport Commissioners of City of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987). There, the Los Angeles airport
authority adopted a resolution announcing that “the Central Terminal Area at Los
Angeles International Airport [LAX] is not open for First Amendment activities.” Id. at

22

570–71 (internal quotation marks omitted). The Supreme Court found that this
provision did not “merely reach the activity of [the religious proselytizers who challenged
it],” but also prohibited
even talking and reading, or the wearing of campaign
buttons or symbolic clothing. Under such a sweeping ban,
virtually every individual who enters LAX may be found to
violate the resolution by engaging in some “First Amendment
activit[y].” We think it obvious that such a ban cannot be
justified even if LAX were a nonpublic forum because no
conceivable governmental interest would justify such an
absolute prohibition of speech.
Id. at 574–75. Thus, the evidence at the Preliminary Injunction Hearing established
beyond any possible dispute that Denver has shown no intent to designate the Airport
as a public forum by allowing speech at that location which it may not disallow in the
first instance.
ii.

The Effect of Regulation 50 Itself

Plaintiffs further argue, “Regulation 50 states that free speech activity is proper
in the Jeppesen Terminal (pursuant to a restriction). Denver has [thus] designated the
Jeppesen Terminal a public forum for leafleting, conducting surveys, displaying signs,
gathering signatures, soliciting funds, and other speech related activity for religious,
charitable, or political purposes.” (ECF No. 21 at 3–4.) Although clever, this argument
cannot be correct. 2
First, the Airport knows from the Supreme Court’s Jews for Jesus decision, just
discussed, that it cannot prohibit all behavior that can be characterized as First
Amendment-protected expressive activity.
2

Plaintiffs have unsurprisingly cited no decision from any court adopting their reasoning.

23

Second, the Airport also knows from the Lee decision that it likely cannot
completely ban some forms of intentional First Amendment communication (such as
leafleting) given that the Jeppesen Terminal, like the Port Authority terminals at issue in
Lee, is a large multipurpose facility that can reasonably accommodate some amount of
intentional First Amendment activity. So, again, the Airport’s choice to regulate what it
could not prohibit in the first place is not evidence of intent to designate a public forum.
See Stanton v. Fort Wayne-Allen Cnty. Airport Auth., 834 F. Supp. 2d 865, 872 (N.D.
Ind. 2011) (“[t]he designation of certain free speech zones, along with the permit
requirement and limitation of expression to certain times, manners, and places as set
forth in the permit, are marks of the Airport Authority’s attempt to restrict public
discourse, and are inconsistent with an intent to designate a public forum” (emphasis in
original)).
Third, Plaintiffs’ position, if accepted, would likely turn out to chill expressive
speech in the long run. If a government will be deemed to have designated a public
forum every time it accommodates citizens’ natural desire to engage in expressive
activity in a nonpublic forum, governments will likely cut back on such accommodations
as far as they are constitutionally allowed. Cf. Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983) (government may un-designate a designated
public forum).
iii.

“Welcome Home” Messages

Plaintiffs finally argue that “[s]ome individuals (who, importantly, are not airlines
passengers) hold signs welcoming home loved ones or those returning from overseas

24

deployment.” (ECF No. 21 at 3.) The Court will address signs welcoming home
veterans and active-duty military members in Part IV.B.3.f, below, and for the reasons
stated there finds that this practice, to the extent it exists, does not show intent to
designate a public forum. As for welcoming home loved ones, the Court sees no
greater religious, charitable, political, or labor-related significance in a typical welcome
home sign than standing in the meeter-and-greeter area with a pleasant smile.
In any event, to the extent a welcome home sign has greater significance, “[t]he
government does not create a public forum by inaction.” Cornelius, 473 U.S. at 802.
Thus, simple failure to enforce Regulation 50 against such signholders is not itself
sufficient to infer that the Airport intended to designate a public forum. And finally, even
if the Court were to find such an intent, the Court would still be required to consider
whether the Airport only intended to designate a public forum specifically for, e.g., those
wishing to convey welcome home messages: “A public forum may be created for a
limited purpose such as use by certain groups, or for the discussion of certain subjects.”
Perry, 460 U.S. at 45 n.7 (1983) (citations omitted). Plaintiffs have nowhere addressed
this.
For all these reasons, Plaintiffs have failed to demonstrate that the Jeppesen
Terminal is a designated public forum.3

3

Plaintiffs also attack Regulation 50 as a “prior restraint.” (ECF No. 2 at 6–7.) “The
term prior restraint is used ‘to describe administrative and judicial orders forbidding certain
communications when issued in advance of the time that such communications are to occur.’”
Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on
Freedom of Speech § 4.03, p. 4-14 (1984)) (emphasis in original). Whether or not that
definition could fit Regulation 50, it adds nothing to this case because the Supreme Court’s
forum analysis provides the governing principles.

25

3.

Given that the Jeppesen Terminal Is Not a Public Forum, Is Regulation 50
Reasonable in Light of the Purposes Served by the Airport, and Is It
Viewpoint-Neutral?
a.

Reasonableness of the Need for a Permit Submitted in Advance,
Generally

Reasonableness is a fact-intensive inquiry into the “particular nature of the public
expression” at issue and “the extent to which it interferes with the designated purposes”
of the nonpublic forum. Hawkins, 170 F.3d at 1290. Justice O’Connor’s concurring
opinion in Lee is significant here, both because of its reasoning and because it has
reached the somewhat paradoxical status of a “controlling concurrence.” See id. at
1289 (“In actuality, [Justice O’Connor’s reasonableness analysis in Lee] constitutes only
Justice O’Connor’s view, who provided the swing vote in the highly-fractured Lee
decision, but as the narrowest majority holding, we are bound by it.”).
In Lee, Justice O’Connor noted the Port Authority’s airports were not singlepurpose facilities (unlike many other locations where the Supreme Court had previously
examined speech restrictions). 505 U.S. at 688. Rather, the airports w ere “huge
complex[es] open to travelers and nontravelers alike,” id. at 688, and had essentially
become “shopping mall[s] as well as . . . airport[s],” id. at 689. The question, then, was
whether Port Authority’s restrictions were “reasonably related to maintaining the
multipurpose environment that the Port Authority has deliberately created.” Id.
Justice O’Connor’s description of the Port Authority Airports aptly describes the
Jeppesen Terminal, to an extent. The Great Hall is lined with restaurants and retail
establishments, and in that sense is reminiscent of a shopping mall. On the other hand,
most of the floor space on level 6 is simply the floor space needed to get from location
26

to location (the equivalent of wide hallways), and most of the floor space on level 5 is
dedicated to security screening. The only large area that is usually free of significant
obstructions is the central meeter-and-greeter area—and even that area has at times
been taken up by art installations or other features.4
Moreover, despite certain characteristics of the Airport that may resemble a
shopping mall, the Airport’s undisputed primary purpose is to facilitate safe and efficient
air travel. The need for safety hopefully needs no discussion—for decades, airports
and airplanes have been the specific target of terrorists. As for efficiency, the
significance of the Great Hall within the Jeppesen Terminal is particularly evident given
that it is the node through which every arriving and departing passenger must pass. As
noted, the Airport served 58.3 million passengers last year. Even assuming that just 20
million (about a third) were arrivals and departures (the remainder being those who
connect through without reaching the Jeppesen Terminal), this still comes to more than
55,000 passengers moving through the Great Hall per day, or about 2,300 per hour. If
the Airport could somehow maintain precisely that average over all days and hours of
its operation—which of course never happens—it would still be the equivalent of
perpetually filling and emptying a large concert hall every hour.
In this light, the Airport’s general purposes for requiring demonstrators to apply
for a permit in advance are difficult to question. As stated by the various Airport
administrators who testified at the Preliminary Injunction Hearing (Ken Greene, chief
operations officer; Patrick Heck, chief commercial officer; and Dave Dalton, assistant

4

Plaintiffs’ Exhibit 15, for example, is a photograph of the meeter-and-greeter area in
2008, and shows that a fountain occupied a significant portion of floor space at the time.

27

director for terminal operations), it is important for the Airport to have advance notice
regarding the presence of individuals coming for reasons other than normal airportrelated activities, and particularly those who come to the airport intending to attract the
attention of passengers and others. The Airport needs an opportunity to determine the
appropriate location for a group of the requested size in light of the day(s) and time(s)
requested. The permitting requirement also gives the Airport the opportunity to point
out Regulation 50’s code of conduct (Regulation 50.08), so that demonstrators know
what activities are and are not permissible.
In addition, the Airport fairly desires an opportunity to understand the nature of
the expressive activity, which can inform whether additional security is needed. As
Lopez’s testimony illustrates, it is not a simple matter to bring additional police officers
to the Airport on a moment’s notice. Lopez further pointed out the advantage of
understanding the subject matter of the dispute so that he can anticipate whether
counter-protesters might arrive and potentially create at least a difficult, if not
dangerous, situation.
Importantly, Denver does not need to prove that any particular past event has
raised serious congestion or safety concerns: “Although Denver admits that plaintiffs did
not cause any congestion problems or major disruption on the particular occasion that
they demonstrated . . . , that is not dispositive. ‘[T]he Government need not wait until
havoc is wreaked to restrict access to a nonpublic forum.’” Hawkins, 170 F.3d at 1290
(quoting Cornelius, 473 U.S. at 810). Thus, the Airport may reasonably require a permit
applied for in advance. The Court does not understand Plaintiffs to be arguing to the
contrary, i.e., that the Airport is never justified in requiring an advance permit under any
28

circumstances.
b.

Reasonableness of the Seven-Day Requirement, Specifically

Plaintiffs do attack Regulation 50.03’s requirement that permit applications be
submitted seven days in advance of the desired activity, apparently arguing that this is
unconstitutionally unreasonable in all circumstances. Given both Plaintiffs’ testimony at
the Preliminary Injunction Hearing, it is not clear that they would be satisfied by a
shorter advance-notice period, nor that it would redress their claimed injury—the
inability to protest essentially at a moment’s notice on a topical event. But, to the extent
Plaintiffs are challenging the seven-day requirement through the overbreadth doctrine
(see Part IV.B.4, below), the Court finds that they have not met their higher burden (or
even the normal preliminary injunction burden) to show that they are likely to succeed
on proving the seven-day requirement unreasonable in all circumstances.
The Airport’s witnesses were not aware of any other airport with a seven-day
requirement. The Indiana airport at issue in the Stanton case—which Defendants have
relied upon heavily—had a two-day notice requirement, and also a provision by which
the airport could accept an application on even shorter notice. 834 F. Supp. 2d at 870.
On the other hand, that Airport handled about 40,000 departing and arriving
passengers per month, id. at 868, whereas the Denver Airport handles far more than
that per day.
The Court’s own research has revealed that airports ahead of the Denver Airport
in 2016 passenger statistics have varied requirements:
•

O’Hare International Airport (Chicago) — six business days, see Chicago
Department of Aviation Amended Rules and Regulations Governing First
29

Amendment Activities at the City of Chicago Airports § 3(A) (Sept. 18,
2015), available at http://www.flychicago.com/SiteCollectionDocuments/
OHare/AboutUs/cdaamendedRulesandRegs.pdf (last accessed Feb. 16,
2017);
•

Dallas-Fort Worth International Airport — three business days, see Code
of Rules and Regulations of the Dallas-Fort Worth International Airport
Board, ch. 3, § 4, art. VI(A) (2006), available at https://
www.dfwairport.com/cs/groups/public/documents/webasset/p1_008800
.pdf (last accessed Feb. 16, 2017);

•

John F. Kennedy International Airport (New York City) — twenty-four
hours, see Port Authority of New York and New Jersey Airport Rules and
Regulations § XV(B)(2)(a) (Aug. 4, 2009), available at http://
www.panynj.gov/airports/pdf/Rules_Regs_Revision_8_04_09.pdf (last
accessed Feb. 16, 2017).

Obviously there is no clear trend. Depending on how these airports define “business
day,” some of these time periods may actually be longer than the Denver Airport’s
seven-day requirement.
In any event, Plaintiffs have never explained how the Airport, in its particular
circumstances, cannot reasonably request seven days’ advance notice as a general
rule. Indeed, Plaintiffs could not cite to this Court any case holding that any advance
notice requirement applicable to a nonpublic forum was unconstitutional in all
circumstances. Accordingly, Plaintiffs have not made a strong showing of likelihood of
success on this particular theory of relief.
30

c.

Reasonableness of the Regulation 50.03’s Lack of a Formal
Process for Handling Permit Application More Quickly in Exigent
Circumstances

Plaintiffs would prefer that they be allowed to demonstrate at the Airport without
any advance notice in “exigent circumstances.” Given the serious and substantial
purposes served by an advance notice requirement, the Court cannot say that Plaintiffs
are likely to succeed on this score. Plaintiffs have given the Court no reason to hold
that the Airport has a constitutional duty, even in exigent circumstances, to
accommodate demonstrators as they show up, without any advance warning
whatsoever.
Nonetheless, the Airport’s complete lack of any formal mechanism for at least
expediting the permit application process in unusual circumstances raises a substantial
and serious question for this Court. As noted in Part IV.A, above, timing and location
are cardinal First Amendment considerations, and a number of cases regarding public
fora (streets and parks) have held or strongly suggested that an advance notice
requirement is unconstitutional if it does not account for the possibility of spontaneous
or short-notice demonstrations regarding suddenly relevant issues.
Indeed, as the undersigned pointed out to Defendants’ counsel at the
Preliminary Injunction Hearing, Denver itself is willing to accept an application for a
street parade on twenty-four hours’ notice (as opposed to its standard requirement of
thirty days) “if the proposed parade is for the purpose of spontaneous communication of
topical ideas that could not have been foreseen in advance of [the] required application
period or when circumstances beyond the control of the applicant prevented timely filing
of the application.” Denver Mun. Code § 54-361(d). But again, this governs a public
31

forum (city streets), where time, place, and manner restrictions such as this must satisfy
a narrow tailoring analysis and leave open ample alternative channels for
communication. See Perry, 460 U.S. at 45. As the above discussion makes clear,
under controlling authority the Airport need not satisfy the same legal standards.
The parties have not cited, nor has the Court located, any case specifically
discussing the need for a nonpublic forum to accommodate short-notice
demonstrations. But the Court likewise has not found any case expressly precluding
that consideration when evaluating reasonableness in the context of a nonpublic forum.
It is perhaps unsurprising that the specific question has never come up in a nonpublic
forum until now. The Court believes it to be an accurate observation that this country
has never before experienced a situation in which (a) the motivation to protest
developed so rapidly and (b) the most obviously relevant protest locations was a place
the Supreme Court had already declared to be a nonpublic forum—the airport terminal.
When evaluating the reasonableness of a First Amendment restriction in a
nonpublic forum, the Court concludes that it may appropriately consider the ability to
shorten an advance notice requirement in a place like the Airport, given how unique
airports are within the category of nonpublic fora. As Justice O’Connor noted in Lee,
most of the Supreme Court’s major nonpublic forum cases aside from airport cases
have involved
discrete, single-purpose facilities. See, e.g., [United States
v.] Kokinda, [497 U.S. 720 (1990)] (dedicated sidewalk
between parking lot and post office); Cornelius v. NAACP
Legal Defense & Ed. Fund, Inc., 473 U.S. 788 (1985)
(literature for charity drive); City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789 (1984) (utility poles);
32

Perry, supra (interschool mail system); Postal Service v.
Council of Greenburgh Civic Assns., [453 U.S. 114 (1981)]
(household mail boxes); Adderley v. Florida, 385 U.S. 39
(1966) (curtilage of jailhouse).
505 U.S. at 688 (parallel citations omitted). As Justice O’Connor observed, however,
many airports have become large, multipurpose facilities, see id. at 688–89, and that
describes the Denver Airport well. To be sure, the reason for expanding beyond the
bare minimum of infrastructure needed to handle travelers and airplanes is to promote
air travel—to make the airport a more convenient and welcoming location specifically
(although not exclusively) for travelers—but the reasonableness of First Amendment
restrictions must nonetheless be judged according to the “multipurpose environment
that [airport authorities] ha[ve] deliberately created.” Id. at 689.
Moreover, modern airports are almost always owned and operated by a political
body, as well as secured by government employees. Thus, short-notice
demonstrations reasonably relevant to an airport are also reasonably likely to be
demonstrations about political or otherwise governmental topics, “an area in which the
importance of First Amendment protections is at its zenith.” Meyer v. Grant, 486 U.S.
414, 425 (1988) (internal quotation marks omitted).
Given all this, and in light of the First Amendment interests in location and timing
that this very case has made salient, the Court finds it unreasonable for the Airport to
have no formal process by which demonstrators can obtain an expedited permit when—
to borrow from the Denver parade ordinance—they seek to communicate topical ideas
reasonably relevant to the Airport, the immediate importance of which could not have
been foreseen in advance of the usual seven-day period, or when circumstances
33

beyond the control of the applicant prevented timely filing of the application. The Court
further finds in the particular circumstances of the Airport that reasonableness requires
a process by which an applicant who faces such circumstances can request a permit on
twenty-four hours’ notice. If this is all the notice Denver needs to prepare for a street
parade, the Court can see no reason why more notice is needed (in exigent
circumstances) for a substantially more confined environment like the Airport.5
Accordingly, the Court finds that Plaintiffs are strongly likely to succeed in their
challenge to Regulation 50.03 to this limited extent.
d.

Reasonableness of the Airport’s Power to Control the Location of
Permitted Expressive Activity

At the Preliminary Injunction Hearing, it became clear that Plaintiffs not only wish
for a more expansive right to protest in the Jeppesen Terminal, but they also argue for
the right to select precisely where in the Terminal they should be allowed to stand. The
Court recognizes that, from Plaintiffs’ perspective, their message is diluted if they
cannot demonstrate in the international arrivals area, and this is a legitimate concern for
all the reasons discussed previously about the power of location when conveying a
message. The Court must also account, however, for Airport administrators’ superior
knowledge about airport operations, foot traffic patterns, concerns particular to the

5

At the Preliminary Injunction Hearing, Defendants’ counsel argued that preparing for a
street parade is actually easier than preparing for demonstrations at the airport. The Court
cannot fathom how this could possibly be the case, at least when comparing a typical street
parade request to the typical Airport demonstration request. Indeed, the normal street parade
request window is thirty days, suggesting just the opposite. Denver Mun. Code § 54-361(d).
The challenges may be different, but the Court cannot accept—on this record, at least—that
Airport demonstrations on average require more preparation time than do public parades or
marches.

34

specific day of the protest, and so forth.
Regulation 50.04-1 requires permit applicants to specify “each location at which
the [expressive] activity is proposed to be conducted,” but nowhere in Regulation 50 is
there any limitation on the Airport’s discretion whether to approve the location request.
Rather, the only provision addressing this topic is Regulation 50.04-6, which applies to
a demonstration already underway: “The CEO may move expressive activity from one
location to another and/or disperse such activity around the airport upon reasonable
notice to each affected person when in the judgment of the CEO such action is
necessary for the efficient and effective operation of the transportation function of the
airport.”
There is no evidence that Airport administrators are using their discretion when
approving a demonstration’s location to suppress or dilute a particular message, but
there is also no logical reason to leave Airport administrators’ discretion essentially
unfettered at the permitting stage while restricting it once the demonstration is
underway. The Court finds Plaintiffs are likely to succeed at least in proving that
Regulation 50.04-1 is unreasonable to the extent the Airport’s discretion is not
restrained to the same degree as in Regulation 50.04-6. Defendants will therefore be
enjoined to follow the same restraints in both settings.
e.

Reasonableness of Regulation 50.09’s Prohibition of Signage
Within the Jeppesen Terminal, and Regulation 50.08-12’s
Limitation of All Signs to One Square Foot

Regulation 50.09 establishes that “picketing” (defined to include “displaying one
or more signs, posters or similar devices,” Regulation 50.02-8) is totally prohibited in the
Jeppesen Terminal unless as part of a labor protest. And, under Regulation 50.08-12,
35

any permissible sign may be no larger than “one foot by one foot in size.”
Any argument that the picketing ban is reasonable in the context of the Airport is
foreclosed by Justice O’Connor’s analysis of the leafleting band at issue in Lee. See
505 U.S. at 690–93. Leafleting usually involves an individual moving around, at least
within a small area, and actively offering literature to passersby. Signholding is usually
less obtrusive, given that the signholder often stays within an even smaller area and
conveys his or her message passively to those who walk by and notice the sign. The
Court simply cannot discern what legitimate or reasonable Airport purpose is served by
a complete ban on “picketing” or signholding among permitted demonstrators in the
Jeppesen Terminal.
The Court also finds the one-foot-by-one-foot signage restriction unreasonable.
The Airport has a legitimate interest in regulating the size of signs, as well as other
aspects of their display (such as whether they will be held in the air, as in traditional
picketing), but a one-foot-by-one-foot restriction is barely distinguishable, both legally
and as a factual matter, from a complete ban. The point of a sign is to make a
message readable from a distance. Few messages of substance are readable from
any kind of distance if they must be condensed into one foot square. Reasonableness
instead requires the Airport to consider the size of the signs that a permit applicant
wishes to display as compared to the needs and limitations of the location where the
applicant will demonstrate. Any restriction by the Airport which limits the size of a
permit applicant’s signage beyond that which may be reasonably required to prevent
the restriction or impeding of the normal flow of travelers and visitors in and out of
Jeppesen Terminal will be preliminarily enjoined.
36

f.

Viewpoint Neutrality

A nonpublic forum is not required to be content-neutral, but it is required to be
viewpoint-neutral with respect to the First Amendment activity it permits. Hawkins, 170
F.3d at 1288. Regulation 50, on its face, is viewpoint neutral, and Plaintiffs do not
argue otherwise. Rather, they say that “Regulation 50 is being enforced as a clearly
view-point-based restriction.” (ECF No. 2 at 14 (emphasis added).) This appears to be
an as-applied challenge:
Individuals walk through Denver International Airport with
political messages and slogans on their shirts and luggage
and discuss politics on a daily basis. Counsel for Plaintiffs
has worn political shirts while traveling through Denver
International Airport and discussed modern politics with
fellow passengers on many occasions. However, no other
individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has
been threatened with arrest for engaging in this political
speech. Nor has any individual been arrested for displaying
pro-President Trump messages, for example a red hat that
reads “Make America Great Again.” Only Plaintiffs’
expressive activity against the President’s Executive Order,
and others advocating similarly, has been threatened with
arrest.
(Id.) Denver responds:
The permit requirement furthers the nonpublic forum
purpose by mitigating disruption at the airport by individuals
who choose to be at the airport for non-travel related
activities. In Stanton, the [Northern District of Indiana]
rejected this exact argument challenging a nearly identical
permitting rule of the Fort Wayne-Allen County Airport on an
as applied basis by distinguishing between incidental
expressive activities by members of the traveling public
versus those arriving at the airport solely for purposes of
engaging in expressive speech. Any messages a traveler or
individual picking up a family member conveys by wearing
T-shirts or hats are “incidental to the use of the Airport’s
facilities” by persons whose “primary purpose for being
present at the Airport is a purpose other than expressing
37

free speech rights,” which is different in kind than individuals
arriving at an airport whose primary purpose is expressive
speech. Id. at 880–882.
(ECF No. 20 at 11 (emphasis added).)
This argument obviously relies on a particular interpretation of Regulation 50
(given that the Regulation itself makes no explicit distinction between those who arrive
at the airport for travel-related purposes and those who do not). Nonetheless, this is
how Airport administrators interpret Regulation 50, as they made clear at the
Preliminary Injunction Hearing. They also made clear that they have never sought to
enforce Regulation 50 against someone wearing a political shirt, for example, while on
airport-related business. Plaintiffs’ own arguments support the sincerity of the Airport
administrators’ testimony. By Plaintiffs’ own admission, they are unaware of anyone
going about his or her typical airport-related business who has been arrested or even
threatened with arrest for wearing a political shirt, discussing politics, etc.
At the Preliminary Injunction Hearing, Plaintiffs attempted to present an asapplied viewpoint discrimination case by showing that the Airport regularly allows
individuals to hold rallies, display signs, and so forth, for returning servicemembers and
veterans, yet without requiring those individuals to obtain a permit under Regulation 50.
The Court agrees that pro-military and pro-veteran messages are political statements,
at least to the extent being conveyed by someone not at the Airport to welcome home a
relative or loved one (and perhaps even by those persons as well). Thus, it would
seem that pro-military messages would fall under Regulation 50. However, Plaintiffs
have failed at this stage to show that the Airport’s alleged treatment of pro-military and
pro-veteran messages amounts to viewpoint discrimination.
38

At the outset, Plaintiffs fail to note the subjective element of their claim:
“viewpoint discrimination in contravention of the First Amendment requires a plaintiff to
show that the defendant acted with a viewpoint-discriminatory purpose.” Pahls, 718
F.3d at 1230. In that light, it is tenuous to suggest that allowing (allegedly) unpermitted
pro-military or pro-veteran expression at various times in the past but not allowing these
recent unpermitted protests against the Executive Order is evidence of viewpoint
discrimination. The question of whether our nation should honor servicemembers and
the question of how our nation should treat foreign nationals affected by the Executive
Order are not really in the same universe of discourse. To bridge the gap, it takes a
number of assumptions about where pro-military attitudes tend to fall in the American
political spectrum, and what people with those attitudes might also think about the
Executive Order. This would be a fairly tall order of proof even outside the preliminary
injunction context.
Moreover, Plaintiffs’ evidence of unpermitted pro-military expression is fairly
weak. Plaintiffs’ main example is the activities of the Rocky Mountain Honor Flight, an
organization that assists World War II veterans to travel to Washington, D.C., and visit
the World War II Memorial, and then welcomes them home with a large and boisterous
rally held in the meeter-and-greeter portion of the Great Hall. A former servicemember
who helped to organize one of these rallies testified that she inquired of a more-senior
organizer whether the Airport required any special procedures, and the answer she
received was “no.” However, Airport administrators presented unrebutted testimony
that Rocky Mountain Honor Flight rallies are planned far in advance and sponsored by
the Airport itself, in connection with TSA and certain airlines. The Airport does not need
39

a Regulation 50 permit for its own expressive activities, and a government entity’s
expression about a topic is not a matter of First Amendment concern. See Pleasant
Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts
government regulation of private speech; it does not regulate government speech.”).
Apart from the Rocky Mountain Honor Flight, Plaintiffs’ evidence comprises
photos they gleaned from a Getty Images database showing individuals over the last
decade or so being greeted at the Airport by persons holding signs. Some of these
signs appear to be simple “welcome home” signs directed at specific returning family
members. In the obviously servicemember-related photos, American flags are
common. The Court finds that these photos, presented out of context, are not sufficient
evidence to make a strong showing of likelihood of success regarding viewpoint
discrimination, particularly the subjective intent requirement. Thus, the Court finds no
reason for an injunction based on alleged viewpoint-discriminatory conduct.6
4.

Is Regulation 50 Overbroad or Vague?

Plaintiffs bring both overbreadth and vagueness challenges to Regulation 50,
which, in this case, are really two sides of the same coin. If a speech regulation’s
sweep is unclear and may potentially apply to protected conduct, a court may invalidate
the regulation as vague; whereas if the regulation actually applies to unprotected as
well as protected speech, an individual who violates the regulation through unprotected
speech may nonetheless challenge the entire statute as overbroad. See Grayned v.

6

Even if Plaintiffs’ evidence were enough, the Court would find at this stage of this
litigation that the only injunctive relief appropriate in light of the balance-of-harms and public
interest considerations, below, would be an injunction to enforce Regulation 50 evenhandedly.
Such an outcome would not advance Plaintiffs’ interests here.

40

City of Rockford, 408 U.S. 104, 108–09, 114–15 (1972); 1 Smolla & Nimmer on
Freedom of Speech ch. 6 (Oct. 2016 update). Here, Plaintiffs argue either that
Regulation 50 is overbroad because it forbids (without a permit) protected conduct such
as wearing a political hat while walking to one’s flight (ECF No. 2 at 16–18); or it is
vague because it is unclear to what it applies precisely, given that Plaintiffs have seen
Regulation 50 enforced against themselves but not against those who wear political
hats or buttons, who are welcoming home military veterans, etc., all of whom are
“seemingly in violation” of the Regulation (id. at 18–20).
The first task, then, is to determine what Regulation 50 actually encompasses.
Again, the Regulation states that “no person or organization shall leaflet, conduct
surveys, display signs, gather signatures, solicit funds, or engage in other speech
related activity at Denver International Airport for religious, charitable, or political
purposes, or in connection with a labor dispute, except pursuant to, and in compliance
with, a permit for such activity issued by the CEO or his or her designee.”
The portion about leafleting, conducting surveys, displaying signs, gathering
signatures, or soliciting funds is not vague. It does not fail to “give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned,
408 U.S. at 108. Nor is it overbroad given that it is not a complete prohibition of
leafleting (as in Lee), but simply a prohibition without a permit.
The arguably difficult portion of Regulation 50 is the “or engage in other speech
related activity at Denver International Airport for religious, charitable, or political
purposes” clause. It is grammatically possible to interpret this passage as extending to
any religious, charitable, or political “speech related activity” by anyone at the Airport,
41

including travelers wearing political buttons or sharing their religious beliefs with others.
Denver argues that no person of ordinary intelligence would have such a worry:
“a person of ordinary intelligence cannot reasonably claim that they are unable to
discern the difference between a traveler walking through the airport with a ‘make
America great again’ baseball cap or travelers discussing politics as they walk to their
intended destination and a gathering of people who have no purpose for being at the
airport other than to march or station themselves in order to communicate their position
on a political issue.” (ECF No. 20 at 14.) This argument is slightly inapposite. The
question is not whether someone can distinguish between a passenger’s pro-Trump hat
and a gathering of anti-Trump protesters. The question is whether Regulation 50
contains such a distinction, and particularly a distinction between the incidental
activities of those who come to the airport for airport-related purposes and the
intentional activities of those who come to the airport to demonstrate.
However, to the extent Denver means to say that Regulation 50 would not be
interpreted by a person of ordinary intelligence to encompass, e.g., a traveler choosing
to wear a “Make America Great Again” hat, the Court agrees. Regulation 50 is not, as
Plaintiffs suggest, just one paragraph from Regulation 50.03. Regulation 50 comprises
sixteen major subdivisions, many of which are themselves subdivided. A person of
ordinary intelligence who reads Regulation 50—all of it—cannot avoid the overwhelming
impression that its purpose is to regulate the expressive conduct of those who come to
the Airport specifically to engage in expressive conduct. Thus, Regulation 50 is not
vague.
As for overbreadth, “[t]he first step in [the] analysis is to construe the challenged
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statute; it is impossible to determine whether a statute reaches too far without first
knowing what the statute covers.” United States v. Williams, 553 U.S. 285, 293 (2008).
For the reasons already stated, the Court finds that the only reasonable construction is
one that does not extend to an airline passenger wearing a political T-shirt, or anything
of that character. Cf. Jews for Jesus, 482 U.S. at 575. This is, moreover, the Airport’s
own interpretation, the sincerity of which is borne out by Plaintiffs’ own experience.
Thus, Regulation 50 is not overbroad.7
C.

Irreparable Harm
Having found that Plaintiffs are strongly likely to succeed in invalidating a narrow

subset of Regulation 50, the Court returns to irreparable harm. Given that Plaintiffs
First Amendment rights are at stake in those portions of Regulation 50 that the Court
finds to be unreasonable, irreparable harm almost inevitably follows: “the loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir.
2003) (internal quotation marks omitted).
D.

Balance of Harms
The injury to a plaintiff deprived of his or her legitimate First Amendment rights

almost always outweighs potential harm to the government if the injunction is granted.
See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d
1149, 1163 (10th Cir. 1999). Thus, the Court finds that the harm to Plaintiffs from the

7

Even if Regulation 50 were vague or overbroad, the Court would nonetheless find that
an injunction against enforcing Regulation 50 as a whole would be against the public interest.
The more appropriate remedy would be an injunction to follow precisely the interpretation that
the Airport currently follows, but that would be of no benefit to Plaintiffs.

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Airport’s continued enforcement of the unreasonable portions of Regulation 50 would
be greater than the harm to the Airport in refraining from such enforcement, particularly
given that the unreasonable portions are quite limited and most of Regulation 50 will
remain unchanged.
E.

Public Interest
Finally, as with irreparable injury and balancing of interests, it is almost always in

the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at
1132; Johnson, 194 F.3d at 1163. Moreover, the Court is not striking down Regulation
50 or even altering it in any significant respect. Thus, the public’s interest in safe and
efficient Airport operations remains unaffected.
F.

Bond
A party awarded a preliminary injunction normally must “give[] security in an

amount that the court considers proper to pay the costs and damages sustained by any
party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The
Tenth Circuit has held, however, that “a trial court may, in the exercise of discretion,
determine a bond is unnecessary to secure a preliminary injunction if there is an
absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern
Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted);
see also 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d
ed., Apr. 2016 update) (citing public rights cases where the bond was excused or
significantly reduced). Denver has not argued that Plaintiffs should be required to post
a bond, and the Court finds that waiver of the bond is appropriate in any event.

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V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED to the
limited extent stated in this order and otherwise DENIED;

2.

The City and County of Denver (including its respective officers, agents,
servants, employees, attorneys, and other persons who are in active concert or
participation with any of them, and further including without limitation Defendants
Lopez and Quiñones) (collectively, “Defendants”) are PRELIMINARILY
ENJOINED as follows:
a.

Defendants must timely process a permit application under Denver Airport
Regulation 50.04-1 that is received less than 7 days but at least 24 hours
prior to the commencement of the activity for which the permit is sought,
provided that the applicant, in good faith, seeks a permit for the purpose
of communicating topical ideas reasonably relevant to the purposes and
mission of the Airport, the immediate importance of which could not have
been foreseen 7 days or more in advance of the commencement of the
activity for which the permit is sought, or when circumstances beyond the
control of the applicant prevented timely filing of the application; however,
circumstances beyond Defendants’ control may excuse strict compliance
with this requirement to the extent those circumstances demonstrably
interfere with the expedited permitting process;

b.

So long as a permit applicant seeks to demonstrate in a location where
the unticketed public is normally allowed to be, Defendants must make all
45

reasonable efforts to accommodate the applicant’s preferred location,
whether inside or outside of the Jeppesen Terminal;
c.

Defendants may not enforce Denver Airport Regulation 50.09’s prohibition
against “picketing” (as that term is defined in Regulation 50.02-8) within
the Jeppesen Terminal; and

d.

Defendants may not restrict the size of a permit applicant’s proposed
signage beyond that which may be reasonably required to prevent the
impeding of the normal flow of travelers and visitors in and out of
Jeppesen Terminal; and specifically, Defendants may not enforce Denver
Airport Regulation 50.08-12’s requirement that signs or placards be no
larger than one foot by one foot.

3.

This Preliminary Injunction is effective immediately upon issuance of this Order,
and will remain in force for the duration of this action unless otherwise modified
by Order of this Court.
Dated this 22nd day of February, 2017, at 8:05 a.m. Mountain Standard Time.

BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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