Ball v. City of Lincoln, Nebraska et al
Filing
24
MEMORANDUM AND ORDER denying the 2 Motion for Preliminary Injunction, or in the alternative, Motion for Temporary Restraining Order filed by Plaintiff Larry Ball, is denied. Ordered by Chief Judge Laurie Smith Camp. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LARRY BALL,
Plaintiff,
8:15CV95
vs.
CITY OF LINCOLN, NEBRASKA, CHRIS
BUETLER, Mayor of the City of Lincoln;
JAMES PESCHONG, Lincoln Chief of
Police; and SMG, a Pennsylvania
General Partnership;
MEMORANDUM
AND ORDER
Defendants.
This matter is before the Court on the Motion for Preliminary Injunction, or in the
alternative, Motion for Temporary Restraining Order (Filing No. 2) filed by Plaintiff Larry
Ball (“Ball”). The parties, through counsel, appeared before the Court for a hearing on
Ball’s Motion on March 16, 2015. At the hearing, the parties agreed to consolidate their
arguments on the Motion for Preliminary Injunction and the Motion for Temporary
Restraining Order. After the hearing, the parties filed briefs in support of their positions.
For the reasons stated below, the Motion will be denied.
BACKGROUND1
I.
Arena Speech Policy
In September of 2013,2 Defendant City of Lincoln (the “City”) opened the
Pinnacle Bank Arena (the “Arena”), a large, modern sports and entertainment venue to
replace the fifty-year-old Pershing City Auditorium. The City contracted with Defendant
1
2
For purposes of Ball’s Motion, the essential facts are not in dispute, unless otherwise indicated.
Although the City’s statement of facts indicates the Arena opened in September 2014, that
appears to be a clerical error. The Court takes judicial notice of the fact that the Arena opened in
September 2013.
SMG, a facilities management company, to operate the Arena. SMG is an international
company that manages hundreds of stadiums and arenas and had a contract to
manage Lincoln’s Pershing Auditorium before the Arena opened.
Defendants assert that when the Arena opened, SMG adopted a policy (the
“Policy”) regarding access to the Arena’s exterior areas. The purpose of the Policy was
to establish consistent and neutral limitations that would allow for efficient and safe
entry of crowds as large as 12,000 to 15,000 people attending Arena events. The
Policy was also intended to preserve the plaza in front of the Arena’s main entrance for
use by Arena tenants and exhibitors. In October 2014, a written version of the Policy,
with accompanying diagrams, was posted on the Arena’s website, and paper copies
were made available to members of the public. (See Pinnacle Bank Arena/SMG Exterior
Access and Use Policy, Filing No. 1-7.) The Policy stated that its purpose was to
“consistently and efficiently manage the use of the exterior areas around the [Arena], to
assure convenient access to Arena Patrons, and to respect the contractual rights of
Arena tenants, acts, and exhibitors.” (Policy, Filing No. 1-7 at ECF 1.) To further this
purpose, the Policy prohibited certain types of public communication within a defined
area:
Leafleting, signature gathering, promotional material distribution,
merchandise sales, and picketing are only allowed within the Arena and
the non-public forum exterior Arena areas at the request of a Tenant, the
Tenant’s contractual entity and/or the artists or productions they represent.
(Policy, Filing No. 1-7 at ECF 1.) The Policy defined the “non-public forum exterior
Arena areas” (the “Policy zone”), as “areas that extend out to the public sidewalk
perimeter and include walkways, steps, verandas, terraces, access ramps, parking lots,
2
loading ramps, the Arena Festival Space/parking lot, and the Arena premium parking
garage.” (Policy, Filing No. 1-7 at ECF 1.) A diagram of the Policy zone appears below
as Figure 1:
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Figure 1: Policy zone perimeter around Arena property (Policy, Filing No. 1-7 at ECF 2.)
In a plaza located at the southeast corner of the Arena property, near the main
entrance to the Arena, Defendants assert that the boundary of the Policy zone is
marked with landmarks such as metal stanchions, cement planters, and distinctly
colored concrete. There is no evidence as to how the Policy zone is marked, if at all, on
3
other areas of the Arena property. The Court will refer to that part of the plaza within
the Policy zone as the “Plaza Area.”
II.
Ball’s Expressive Activity
Ball is a citizen of Lancaster County, Nebraska. As part of his religious devotion,
Ball attempts to share Christian messages by passing out pamphlets. On March 15,
2014, Ball was handing out pamphlets to people entering and leaving the Arena.
Defendants claim that Ball stood immediately outside the entrance to the Arena while
leafleting. He was not aggressive or confrontational, and he described himself as
friendly with the crowd. Ball was confronted several times by SMG employees, who told
him to leave. Ball did leave but soon returned, and SMG employees again told him to
leave. This time Ball refused and police were called. Ball was arrested and ticketed by
the Lincoln Police Department for trespassing and refusing to comply under the Lincoln
Municipal Code. Ball challenged the ticket and his arrest on First Amendment grounds,
and the City Attorney dismissed the charges.
Ball was arrested again and ticketed for trespassing on March 5, 2015.
Defendants assert that Ball was leafleting in the Plaza Area. SMG staff provided Ball
with a copy of the Policy and asked Ball to move out of the Plaza Area to the nearby
sidewalk.
Ball refused to move, and Lincoln City Police officers cited him for
trespassing. After receiving the citation, Ball left the Arena property.
On March 7, 2015, Ball was again leafletting near the Arena.
Defendants
contend he was in the Policy zone. He was asked to move; he refused; and he was
cited for trespassing. Ball asserts that when he was ticketed, he was on a sidewalk
designated as a public thoroughfare. After being cited, Ball left the Arena property.
4
STANDARD
A district court considers the four factors set forth in Dataphase Sys., Inc. v. C L
Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc), when deciding whether to issue
a preliminary injunction. Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 705
(8th Cir. 2011) (citing Dataphase, 640 F.2d at 114). Those factors are: “(1) the threat of
irreparable harm to the movant; (2) the state of balance between this harm and the
injury that granting the injunction will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public interest.” Dataphase, 640
F.2d at 114. “No single factor is determinative.” WWP, Inc. v. Wounded Warriors, Inc.,
566 F. Supp. 2d 970, 974 (D. Neb. 2008). The movant bears the burden of establishing
the propriety of the injunction. See Roudachevski, 648 F.3d at 705.
DISCUSSION
I.
Likelihood of Success on the Merits
“In deciding whether to grant a preliminary injunction, likelihood of success on the
merits is most significant.” S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696
F.3d 771, 776 (8th Cir. 2012) (quoting Minn. Ass'n of Nurse Anesthetists v. Unity Hosp.,
59 F.3d 80, 83 (8th Cir.1995)). In a First Amendment case, “the likelihood of success
on the merits is often the determining factor in whether a preliminary injunction should
issue.” Phelps-Roper v. Nixon, 509 F.3d 480, 485 (8th Cir. 2007) modified on reh'g, 545
F.3d 685 (8th Cir. 2008) overruled on other grounds, Phelps-Roper v. City of
Manchester, Mo., 697 F.3d 678 (8th Cir. 2012).
Ball’s complaint alleges that the Defendants violated his First Amendment rights
by designating public property as a nonpublic forum and chilling his exercise of free
5
speech rights. Defendants argue that the Plaza Area is not a traditional public forum
open to the public for expressive activity. Defendants also assert that even if the Plaza
Area is considered a traditional public forum, the Policy is narrowly tailored to advance a
significant government interest. Based upon the evidence at this early stage, the Court
concludes that the Plaza Area is likely not a traditional public forum, and the Policy is
likely reasonable in light of the Plaza Area’s designated purpose.
A.
Public Forum Analysis
The First Amendment prohibits laws “abridging the freedom of speech.” U.S.
Const. amend. I. The Supreme Court has stated that “[n]othing in the Constitution
requires the Government freely to grant access to all who wish to exercise their right to
free speech on every type of Government property without regard to the nature of the
property or to the disruption that might be caused by the speaker's activities.” Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800 (1985).
“The
Supreme Court has ‘adopted a forum analysis as a means of determining when the
Government's interest in limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property for other purposes.’”
Minnesota Majority v. Mansky, 708 F.3d 1051, 1056 (8th Cir. 2013) cert. denied, 134 S.
Ct. 824 (2013) (quoting Cornelius, 473 U.S. at 800). “The extent to which the
Government can control access depends on the nature of the relevant forum.” United
States v. Kokinda, 497 U.S. 720, 726 (1990) (quoting Cornelius, 473 U.S. at 800).
The Supreme Court has identified three categories of forums: (1) the traditional
public forum, (2) the designated public forum, and (3) the nonpublic forum. Perry Edu.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983). Traditional public
6
forums include “places which by long tradition or by government fiat have been devoted
to assembly and debate” and in such forums “the rights of the state to limit expressive
activity are sharply circumscribed.” Id. at 45. Traditional public forums are those that
have “immemorially been held in trust for the use of public, and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions . . . .” Id. (internal quotation marks omitted). The Supreme
Court has specifically recognized “streets, sidewalks, and parks” as traditional public
forums.
U.S. v. Grace, 461 U.S. 171, 177 (1983).
“In these quintessential public
forums, the government may not prohibit all communicative activity.” Perry, 460 U.S. at
45.
A content-neutral regulation of speech in traditional public forums will only be
upheld if it is narrowly tailored to serve a compelling government interest. Perry, 460
U.S. at 45; Grace, 461 U.S. at 177.
The same protection provided to traditional public forums “is provided to
speakers in a ‘designated public forum,’ defined as ‘public property which the State has
opened for use by the public as a place for expressive activity.’” 3 Victory Through Jesus
Sports Ministry Found. v. Lee's Summit R-7 Sch. Dist., 640 F.3d 329, 334 (8th Cir.
2011) (quoting Perry, 460 U.S. at 45). “Although a state is not required to indefinitely
retain the open character of the facility, as long as it does so it is bound by the same
standards as apply in a traditional public forum.” Perry, 460 U.S. at 46.
In the third category of forum, “[p]ublic property which is not by tradition or
designation a forum for public communication,” states may “preserve the property under
3
Ball does not directly argue that the plaza area at issue in this Motion is a designated public
forum, and no evidence supports such an argument. Specifically, no evidence suggests that the
Defendants opened the plaza area for the purpose of expressive conduct.
7
its control for the use to which it is lawfully dedicated.” Id. (internal marks and citation
omitted). “Only if the public entity provides ‘general access’ does the public property
become a designated public forum; if access is ‘selective,’ it is a nonpublic forum.”
Victory, 640 F.3d at 334 (quoting Ark. Educ. Television Comm'n v. Forbes, 523 U.S.
666, 680 (1998)). A regulation of speech in public forums will be upheld if it is
reasonable “and not an effort to suppress expression merely because public officials
oppose the speaker's view.” Perry, 460 U.S. at 46.
The parties’ arguments and evidence focus on the Plaza Area.4 Accordingly,
although the Court may refer to other areas and walkways to determine how the Plaza
Area is used, the Court’s forum analysis for purposes of this Motion focuses solely on
the Plaza Area. Specifically, the Court must assess whether the Plaza Area looks, acts,
and functions like a public sidewalk, or whether it is a nonpublic forum, restricted to
authorized uses.
The Court recognizes that “[n]o clear-cut test has emerged for
determining when a traditional public forum exists,” and
“[i]n the absence of any
widespread agreement upon how to determine the nature of a forum, courts consider a
jumble of overlapping factors, frequently deeming a factor dispositive or ignoring it
without reasoned explanation.”
Am. Civil Liberties Union of Nevada v. City of Las
Vegas, 333 F.3d 1092, 1099-100 (9th Cir. 2003). Nevertheless, the Eighth Circuit has
instructed that in determining whether a particular piece of publicly owned property is a
4
Ball generally challenges the Policy’s designation regarding the “sidewalks and public plaza
surrounding the Pinnacle Bank Arena.” (Compl., Filing No. 1 ¶ 15.) Ball’s Complaint and arguments do
not directly challenge whether the parking lots, loading docks, and other restricted areas to the west,
north, and east of the Arena are traditional public forums. These areas appear to have the characteristics
of nonpublic forums. See Victory, 640 F.3d at 334. Because the parties’ arguments and evidence do not
directly address these areas, the Court will assume without deciding that they are nonpublic forums, and
not in dispute for purposes of this Motion.
8
traditional public forum, courts must consider (1) whether the area manifests physical
characteristics suggesting that it is “open for public passage,” (2) “the traditional use of
the property, the objective use and purposes of the space,” and (3) “the government
intent and policy with respect to the property.” Bowman v. White, 444 F.3d 967, 977978 (8th Cir. 2006).
1.
Physical Characteristics of the Plaza Area
Ball argues that the Plaza Area has the physical characteristics of a sidewalk. As
noted above, sidewalks are considered traditional public forums “generally without
further inquiry.” Grace, 461 U.S. at 179. The location and appearance of a walkway are
key indicators in determining whether it is a sidewalk for purposes of the public forum
analysis. Id. For example, in Grace, the Supreme Court declared unconstitutional a
broad restriction on speech on the public sidewalks surrounding the Supreme Court
building. 461 U.S. at 175-81. In holding that the walkways surrounding the Court
building were traditional public forums, the Supreme Court noted that “sidewalks
comprising the outer boundaries of the Court grounds are indistinguishable from any
other sidewalks in Washington, D.C., and we can discern no reason why they should be
treated any differently.” Id. The Court explained further that there was “no separation,
no fence, and no indication whatever to persons stepping from the street to the curb and
sidewalks that serve as the perimeter of the Court grounds that they have entered some
special type of enclave.” Id. at 180.
The Supreme Court reached the opposite result regarding a walkway near a post
office. Kokinda, 497 U.S. at 726. In Kokinda, the Court examined whether a walkway
leading from a dedicated parking lot to a post office was a traditional public forum. Id. at
9
723, 726. The Supreme Court concluded that the walkway did not have “the
characteristics of public sidewalks traditionally open to expressive activity.” Id. at 727.
The Court reasoned that the walkway was constructed “solely to assist postal patrons to
negotiate the space between the parking lot and the front door of the post office, not to
facilitate the daily commerce and life of the neighborhood or city.” Id. at 728. Moreover,
the Court recognized that because the walkway led only from the dedicated parking lot
to the post office, it was not a public thoroughfare that enjoyed traditional public forum
protections. Id. at 727.
In cases involving arenas and stadiums, courts have determined that where
surrounding walkways blend into the urban grid and appear like any sidewalk, such
walkways are traditional public forums. See, e.g. United Church of Christ v. Gateway
Econ. Dev. Corp. of Greater Cleveland, 383 F.3d 449, 451-53 (6th Cir. 2004) (holding
that sidewalks surrounding a privately owned stadium and arena were public forums
because they blended into the urban grid, bordered the road, and looked like any public
sidewalk). In contrast, another court held that a plaza directly in front of an arena was
not a public forum because “it would be clear to pedestrians visiting the plaza that they
have entered into property intended for use by patrons attending Arena performances.”
Friends of Animals, Inc. v. City of Bridgeport, 833 F. Supp. 2d 205, 214 (D. Conn. 2011)
aff'd sub nom. Zalaski v. City of Bridgeport Police Dep't, 475 F. App'x 805 (2d Cir. 2012)
(reasoning that the plaza was separated from public streets and sidewalks by
landscaping, a grassy area, and a private driveway).
Defendants argue that unlike the Supreme Court sidewalks at issue in Grace, the
boundary of the Plaza Area is marked with planter boxes, stanchions, distinctly colored
10
concrete, and other features that indicate to patrons that the Policy zone is a “special
type of enclave.” Grace, 461 U.S. at 180. This Court acknowledges that other courts
have held such cosmetic differences insufficient to mark an area as a nonpublic forum.
See e.g. Venetian Casino Resort, L.L.C. v. Local Joint Executive Bd. of Las Vegas, 257
F.3d 937, 945 (9th Cir. 2001) (concluding that distinctive paving and landscaping were
insufficient to distinguish an area from surrounding public forum); United Church of
Christ, 383 F.3d at 452 (concluding that fifteen-foot long planter boxes along a public
sidewalk did not permit the average observer to understand the “geographic
significance of this sporadic vegetation.”).
In this case, concrete planter boxes and metal stanchions—on their own—may
not permit an average observer to identify the boundaries of the Plaza Area. For
example, the evidence shows that a walkway along the eastern boundary of the Arena
property and a pedestrian overpass from a nearby parking lot empty into the Plaza
Area.
There is no evidence before the Court that any of the boundary elements
identified by Defendants separate that walkway or the pedestrian overpass at their
respective entrances to the Plaza Area.
Assuming the walkway and pedestrian
overpass themselves are traditional public forums, pedestrians using them may not
discern that they have entered a more restricted space when reaching the Plaza Area.
The boundary elements identified by Defendants along the southern edge of the
Plaza Area are less distinctive than the landscaping and grassy area that separated the
plaza from the arena in Friends of Animals, Inc. v. City of Bridgeport, 833 F. Supp. 2d at
214. As shown in Figure 2, the boundary line of the Policy zone does not follow the
11
boundary elements precisely, nor does it follow the distinctive concrete coloring which is
carried outside the Plaza Area onto public sidewalks and into the street.
Figure 2: Plaza area photographs (Policy, Filing No. 1-7 at ECF 4-5.)
Though these boundary elements may be less distinctive than those in other
cases where courts declared areas to be nonpublic forums, the Court does not consider
such physical barriers in a vacuum. The Court must also “[acknowledge] the presence
of any special characteristics regarding the environment in which [the Plaza Area]
exist[s].” Bowman, 444 F.3d at 975. The Plaza Area has several special characteristics
that distinguish it from a sidewalk. Unlike the sidewalk in United Church of Christ, 383
F.3d at 452, it cannot be said that the Plaza Area seamlessly blends into the urban grid,
borders the road, or looks like a public sidewalk. Although the stanchions and planter
boxes may not, on their own, indicate to the public that they have “entered some special
type of enclave,” Grace, 461, U.S. at 180, the boundary elements combined with the
size, shape, and general appearance of the Plaza Area serve to distinguish it from the
adjacent public sidewalk. The very presence of a large public sidewalks bordering the
Plaza Area signals that the Plaza Area is intended to serve a more limited function. See
Int’l Soc’y. For Krishna Consciousness v. Lee, 505 U.S. 672, 680 (1991) (“[S]eparation
12
from acknowledged public areas may serve to indicate that the separated property is a
special enclave, subject to greater restriction.”).
Based on the evidence before the Court at this time, the Plaza Area’s special
physical characteristics viewed as a whole suggest the Plaza Area is separate from
adjacent traditional public forums.
Even if this factor were neutral, however, other
factors suggest the Plaza Area is a nonpublic forum.
2.
Use and Purposes of the Plaza Area
Ball argues that because the Plaza Area is used as a public thoroughfare, it
should be treated as a sidewalk under the forum analysis. “A traditional public forum is
a type of property that ‘has the physical characteristics of a public thoroughfare, the
objective use and purpose of open public access or some other objective use and
purpose inherently compatible with expressive conduct, and historically and traditionally
has been used for expressive conduct.’” Bowman, 444 F.3d at 975 (quoting Warren v.
Fairfax County, 196 F.3d 186, 191 (4th Cir.1999) (internal marks omitted).
The
evidence at this early stage suggests that the Plaza Area may be used, at least in part,
as a public thoroughfare. Red arrows in Figure 3 show how the flow of pedestrian traffic
from the ground level pedestrian walkway and pedestrian overpass mentioned above
may flow across the Plaza Area to other locations in the City’s Haymarket district. Ball
does not submit evidence showing these walkways are used in this manner, but
Defendants do not dispute this potential use, nor do they directly challenge the Plaza
Area’s use as a public thoroughfare.
13
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Figure 3: Detailed map of plaza area (Policy, Filing No. 1-7 at ECF 3.)
If the Plaza Area is a thoroughfare that provides open public access, the Court
must then determine whether the objective use and purpose of the Plaza Area is
inherently compatible with expressive conduct, and whether the Plaza Area historically
and traditionally has been used for expressive conduct.5 At least one court in this circuit
5
When an area is found to be a public thoroughfare, there appears to be a circuit split as to
whether further analysis is necessary. The Ninth Circuit has held that “when a property is used for open
public access or as a public thoroughfare, we need not expressly consider the compatibility of expressive
activity because these uses are inherently compatible with such activity.” Am. Civil Liberties Union of
Nevada v. City of Las Vegas, 333 F.3d 1092, 1101 (9th Cir. 2003). In contrast, the Second Circuit has
held that a forum’s “primary function and purpose” is most significant in determining whether traditional
public forum status applies. See Hotel Employees & Rest. Employees Union, Local 100 of New York,
N.Y. & Vicinity, AFL CIO v. City of New York Dep't of Parks & Recreation, 311 F.3d 534, 550 (2d Cir.
2002).
The Eighth Circuit has not expressly adopted one view over the other. In Bowman, the Eighth
Circuit cited ACLU v. Las Vegas, but also specifically noted that “[p]ublicly owned or operated property
does not become a ‘public forum’ simply because members of the public are permitted to come and go at
will.” 444 F.3d at 978 (citation omitted). Because the Eighth Circuit in Bowman considered purpose and
use in addition to whether an area was a public thoroughfare, this Court will do likewise.
14
has held that public plazas “are ‘traditional’ public fora and, hence, occupy a ‘special
position in terms of First Amendment protection’ that leaves the [government] with a
‘very limited’ ability to restrict expressive activity there.” Occupy Minneapolis v. Cnty. of
Hennepin, 866 F. Supp. 2d 1062, 1069 (D. Minn. 2011) (quoting Boos v. Barry, 485
U.S. 312, 318 (1988)). The Supreme Court, however, has held that not all areas that
appear and function as public thoroughfares are traditional public forums, and the
“location and purpose” of a publicly owned thoroughfare is critical to determining
whether such an area constitutes a public forum. See Kokinda, 497 U.S. at 727, 72829; see also Hotel Employees & Rest. Employees Union, Local 100 of New York, N.Y. &
Vicinity, AFL CIO v. City of New York Dep't of Parks & Recreation, 311 F.3d 534, 550
(2d Cir. 2002) (“The observation that the [Lincoln Center Plaza] is used in ways similar
to a public park or thoroughfare, however, does not end the inquiry. Rather, we must
also examine the Plaza's location and purpose.”) (internal marks and citation omitted).
As noted above, in its analysis the Court must “acknowledge the presence of any
special characteristics regarding the environment in which those areas exist.” Bowman,
444 F.3d at 978. It appears undisputed from the evidence at this stage that the Plaza
Area’s principal purpose is to serve as a forecourt to the main Arena entrance.
Regarding similar areas, courts have held that “plazas that serve as forecourts in
performing arts complexes are not the types of public spaces that have traditionally
been dedicated to expressive uses, or in which the government's ability to restrict
speech has historically been circumscribed.” Hotel Employees, 311 F.3d at 551 (citing
Hawkins v. City & County of Denver, 170 F.3d 1281, 1287-88 (10th Cir. 1999); see also
Int'l Soc'y for Krishna Consciousness, Inc. v. New Jersey Sports and Exposition
15
Authority, 691 F.2d 155, 161 (3rd Cir. 1982) (holding that the Meadowland Sports
Center is not a public forum because it is a “commercial venture by the state . . .
designed to bring economic benefits to northern New Jersey” and was not intended to
serve “as a place for the exchange of views”).
There is no evidence that the Plaza Area traditionally was used as a place for the
free exchange of ideas. Evidence before the Court at this stage demonstrates that
Defendants consistently used the Plaza Area for commercial purposes related to events
inside the Arena. (Lorenz Aff., Filing No. 13-2 ¶ 3.) SMG has permitted expressive
conduct only outside the Policy zone during Arena events. (Lorenz Aff., Filing No. 13-2
¶ 6.) The walkway and pedestrian overpass that allow the Plaza Area to function as a
public thoroughfare only exist because of the Arena.
(Filing No. 1-5 at ECF 17. )
Though it appears that the walkway and pedestrian overpass permit pedestrians to
cross the Plaza Area to the Haymarket district and other areas of the City, they do not
appear to “form part of the City's transportation grid in the way that traditional streets
and sidewalks do. The ability of pedestrians to cross the Plaza as a short-cut between
surrounding streets is merely an incidental feature of its principal function as the
entrance plaza for the [Arena].” Hotel Employees, 311 F.3d at 550; see also Bowman,
444 F.3d at 978 (stating that even where public property possesses characteristics of a
public forum, the purpose of the property must still be considered).
The objective purpose of the Plaza Area was not to provide a place for the
exchange of public views, nor has the Plaza Area traditionally been used for such
expressive activity. See Bowman, 444 F.3d at 975. Accordingly, the Court concludes
that this factor favors a finding that the Plaza Area is a nonpublic forum.
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3.
Government’s Intent and Policy
Ball does not dispute that Defendants’ current policy is to exclude expressive
conduct within the Plaza Area. This factor is an important consideration where an area
bears some characteristics of a public forum.
For example, the Eighth Circuit in
Bowman noted that on a university’s campus, areas that possessed the characteristics
of a public forum could be treated as nonpublic forums when the intent, policy, and
purpose with respect to such areas “is not to provide a forum for all persons to talk
about all topics at all times.” Id. at 978. However, the court rejected a university’s
argument that some areas at issue should be treated as nonpublic, because the
university permitted speech by university and non-university entities in those areas. Id.
In contrast, SMG’s practices are clearly reflected in its Policy.
Ball argues that the City’s documents show the Plaza Area was designed to be a
public sidewalk integrated into the City’s public access grid. He notes that some Arena
project documents reference “public plaza space.”6 Ball cites generally to the evidence
to support his assertion, and the Court’s extensive review of the planning and design
documents (Filing Nos. 1-1 through 1-13) did not reveal any specific reference to the
Plaza Area as a public sidewalk, nor is there any specific reference to the Plaza Area
suggesting it was intended to be a public forum. The label “public” in planning
documents would not be determinative as to whether the government intended the
Plaza Area to be open to expressive activity. Based upon the evidence before the
6
Some documents indicate that a “public plaza area” would be depicted on an accompanying
map. The map is missing in some of the exhibits (see e.g. Filing No. 1-5 at ECF 17 (referencing a “MAP
OF SITE” that included a “public plaza area” but no map is attached)), and not legible in others (see e.g.
Filing No. 1-3 at ECF 1, 20, referencing a MAP OF SITE that includes a “public plaza area” but such an
area is not identified in the attached map)).
17
Court, the Defendants’ policies and intent favor a finding that the Plaza Area is not a
traditional public forum.
Weighing the three factors articulated by the Eighth Circuit, the Court concludes
that the Plaza Area has several physical characteristics common to public forums, and it
may function as a type of public thoroughfare, yet use of the Plaza Area as a forum for
unlimited public expression would be inconsistent with the Plaza Area’s principal
purpose and traditional use. The City’s purpose in establishing the Plaza Area, and the
Policy implemented for its use, also suggest the Plaza Area was not intended to be
used as a public forum. Accordingly, for purposes of this Motion, the Court concludes
that Ball is not likely to prevail on his claim that the Plaza Area is a traditional public
forum.
B.
Reasonableness of Restriction
“When public property is not by tradition or designation a public forum, the
controlling public entity ‘may reserve the forum for its intended purposes,
communicative or otherwise, as long as the regulation on speech is reasonable and not
an effort to suppress expression merely because public officials oppose the speaker's
view.’” Victory, 640 F.3d at 334 (quoting Perry, 460 U.S. at 46). “Control over access to
a nonpublic forum may be based on the subject matter of the speech, on the identity or
status of the speaker, or on the practical need to restrict access for reasons of
manageability or the lack of resources to meet total demand.” Id. (citing Cornelius, 473
U.S. at 806–09). “The restriction on access must be ‘reasonable in light of the purpose
which the forum at issue serves.’” Id. (quoting Perry, 460 U.S. at 49). However, “a
18
restriction ‘need not be the most reasonable or the only reasonable limitation.’” Id.
(quoting Cornelius, 473 U.S. at 808).
The Court first notes that it is undisputed that the Policy is content neutral. It
broadly prohibits specific expressive conduct inside the Arena and the Policy zone
without regard to the content of the speech. See Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989) (“A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some speakers or
messages but not others.”).
Regarding reasonableness, Defendants specifically identify their need to control
large crowds moving through the Plaza Area, as the crowds approach the Arena to
attend events such as concerts and athletic competitions.
Although the evidence
suggests that Ball was at all times peaceful and respectful, expressive conduct within
the Plaza Area amid large crowds of people, exhibiting various degrees of sobriety and
excitement, could give rise to concerns for the safety of patrons, staff, the general
public, and the persons attempting to engage in expressive conduct. The boundary line
for the Policy zone appears to be set based on legitimate business concerns related to
safety, security and efficiency. The Policy does not restrict all speech inside the Policy
zone, but only leafleting, signature gathering, promotional material distribution,
merchandise sales, and picketing. (Filing No. 1-7 at ECF 1.) The Policy notifies
speakers of the types of expressive conduct prohibited, and does not restrict other types
of speech within the Policy zone.
The availability of nearby areas open for expression also supports a finding that
the Policy is reasonable. “The reasonableness of a restriction on access is supported
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when ‘substantial alternative channels’ remain open for the restricted communication.”
Id. (quoting Perry, 460 U.S. at 53). The evidence in the record indicates that the Plaza
Area falls between the main Arena entrance and the City’s Haymarket district. While
Ball expressed a desire to distribute his leaflets in an area where crowds approaching
the south entrance of the Arena are most congested, the Policy does not deprive him of
access to pedestrians approaching the south entrance of the Arena, nor does not
substantially alter his desired leafletting position. If Ball distributes his leaflets on the
walkways outside the Plaza Area, he simply will communicate with the crowd when it is
not at its most congested point. Accordingly, the Court concludes at this juncture that
the Policy likely is reasonable.
Because Ball has not demonstrated that the Plaza Area is a traditional public
forum, and the Policy appears to be reasonable considering the Plaza Area’s
characteristics, Ball has not shown that he is likely to prevail on the merits. The Court
recognizes that evidence may be produced in discovery demonstrating that the Plaza
Area is a public forum, in which case the Court will need to determine whether the
Policy is narrowly tailored to advance significant government interests.7 At this juncture,
however, the Court concludes that Ball is unlikely to prevail.
7
If the Plaza Area is shown to be a traditional public forum, the Policy must withstand
intermediate scrutiny, which is more stringent than the reasonableness standard the Court employs here.
See Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1098 (8th Cir. 2013), The “efficient
conduct of business operations,” Van Bergen v. State of Minn., 59 F.3d 1541, 1554 (8th Cir. 1995), and
crowd control, Johnson, 729 F.3d at 1099, have been recognized as significant government interests
under an intermediate scrutiny standard. If the evidence produced in discovery demonstrates that the
Plaza Area is deemed to be a traditional or designated public forum, the Defendants will not be able to
rely on these significant interests in the abstract. Instead, they must demonstrate a nexus between the
Policy and the interest it seeks to serve. Johnson, 729 F.3d at 1099.
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II.
Threat of Irreparable Harm
Ball claims that he suffers the imminent threat of irreparable harm because of the
Defendants’ actions in preventing him from distributing his leaflets in the Plaza Area. “In
order to demonstrate irreparable harm, a party must show that the harm is certain and
great and of such imminence that there is a clear and present need for equitable relief.”
Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 895 (8th Cir. 2013). Ball has not
shown that the Plaza Area is a public forum, nor has he shown any threat that he will be
prevented from distributing his message on the adjacent public sidewalk. Accordingly,
Ball has not demonstrated a threat of irreparable harm.
III.
Balance of the Harms
In determining whether a preliminary injunction should issue, the Court must
consider whether the “balance of equities so favors the movant that justice requires the
court to intervene to preserve the status quo until the merits are determined.”
Dataphase, 640 F.2d at 113.
The evidence demonstrated that the public sidewalk
where Ball is permitted to distribute his leaflets is very near his desired location, and he
should be able to reach many, if not all, of his target audience as they approach the
Arena. If the Policy is stricken, Defendants would be unable to control activity in the
Plaza Area. Ball will not suffer a serious infringement of his rights as further evidence is
developed in this case. The balance-of-harms factor weighs against the granting of a
preliminary injunction.
IV.
Public Interest
The public interest is served by free expression on issues of public concern.
Frisby v. Schultz, 487 U.S. 474, 479 (1988). However, Ball has not shown he is likely to
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prevail on his claim that his First Amendment rights have been unconstitutionally
restricted, nor that the enforcement of the Policy pending the resolution of this action will
seriously impair his freedom of expression. The public interest is also served by the
promotion of public safety, which is one objective of the Policy. Accordingly, the publicinterest factor does not weigh in favor of issuance of a preliminary injunction.
CONCLUSION
Ball has not demonstrated that he is likely to prevail on the merits of his claim. He
has not demonstrated it is more likely than not that the Plaza Area by the Pinnacle
Arena entrance is a public forum, nor has he demonstrated it is more likely than not that
the Defendants’ Policy restricting certain expressive activity in the Plaza Area is
unreasonable. The other Dataphase factors also weigh against issuance of a
preliminary injunction. Accordingly,
IT IS ORDERED:
The Motion for Preliminary Injunction, or in the alternative, Motion for Temporary
Restraining Order (Filing No. 2) filed by Plaintiff Larry Ball, is denied.
Dated this 14th day of April, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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