Ball v. City of Lincoln, Nebraska et al
Filing
80
MEMORANDUM AND ORDER - The Motion for Summary Judgment (Filing No. 55 ) filed by Defendant City of Lincoln is granted; The Motion for Partial Summary Judgment (Filing No. 57 ) filed by Defendant SMG is granted; The Motion for Leave to File Re buttal to Defendants' Supplemental Index of Evidence (Filing No. 69 ) is denied as moot; All other pending motions in this case are denied as moot; This case is dismissed with prejudice; and A separate judgment will be entered. 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.
MEMORANDUM
AND ORDER
CITY OF LINCOLN, NEBRASKA,
and SMG, a Pennsylvania General
Partnership;
Defendants.
This matter is before the Court on the Motion for Summary Judgment (Filing No.
55), filed by Defendant City of Lincoln (the “City”); the Motion for Partial Summary
Judgment (Filing No. 57), filed by Defendant SMG; and the Motion for Leave to File
Rebuttal to Defendants’ Supplemental Index of Evidence (Filing No. 69), filed by Plaintiff
Larry Ball (“Ball”). For the reasons set forth below, the Motions for Summary Judgment
will be granted and the Motion for Leave will be denied as moot.1
BACKGROUND
The following facts are those stated in the Parties’ briefs, supported by pinpoint
citations to evidence in the record, according to NECivR 56.1 2 and Federal Rule of Civil
Procedure 56.
1
The Court did not consider materials submitted in the Defendants’ Supplemental Index of
Evidence (Filing No. 66).
2
See NECivR 56.1(b)(1) (effective December 1, 2015):
The party opposing a summary judgment motion should include in its brief a concise
response to the moving party’s statement of material facts. The response should
address each numbered paragraph in the movant’s statement and, in the case of any
disagreement, contain pinpoint references to affidavits, pleadings, discovery responses,
deposition testimony (by page and line), or other materials upon which the opposing party
Ball is a resident and citizen of the City of Lincoln, Lancaster County, Nebraska.
The City is a political subdivision and city of the State of Nebraska that owns the
Pinnacle Bank Arena (the “Arena”) and associated improvements and facilities for the
benefit of the citizens of the City. SMG is a Pennsylvania general partnership that
serves as the management company of the Arena and attendant facilities on behalf of
City.
Beginning in 2010, the City and the University of Nebraska (the “University”),
through the creation of the West Haymarket Joint Public Agency (“JPA”), began the
redevelopment of the West Haymarket in the City, which included construction of the
Arena; several parking garages to the west and south of the Arena; a festival
space/surface parking lot to the north of the Arena; a pedestrian overpass or bridge
accessing the festival space from the Arena; and new roads, streets, and sidewalks
accessing all these facilities.
The pedestrian bridge also serves to connect the
downtown sidewalk system to the nearby baseball/softball stadium complex as well as
the City’s trail system. (Filing No. 56-5, Ball Depo: 104:18-107:4.3) The Arena was to be
used in part as the home court for games for the University’s men’s and women’s
basketball teams, and was built to replace the City’s aging Pershing Center that was
operated by SMG for more than a decade, until that Center’s closing in 2014.
Before the new roads, streets, and sidewalks were constructed adjacent to the
Arena, the area was dominated by railroad tracks. Those were moved west to
relies. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.
3
Unless otherwise indicated, pinpoint citation to deposition page numbers refer to the page of the
deposition transcript and not the ECF page number.
2
accommodate the Arena and attendant facilities. The City managed construction and
development of the Arena and attendant facilities, roads, streets, and sidewalks
pursuant to a Facilities Agreement with the JPA.
The City entered into a Management Agreement with SMG for management of
the Arena on June 7, 2012, granting SMG the “exclusive right to manage, market,
promote and operate the Facilities.” (Filing No. 1-6 at ECF 12.)
In October 2014, SMG adopted the written Pinnacle Bank Arena/SMG Exterior
Access and Use Policy (the “Policy”), complete with accompanying diagrams.
The
Policy was consistent with an unwritten policy followed by SMG since the Arena
opened.
The Policy was posted on the Arena’s website, and copies were made
available to the public.
The Policy designated certain exterior areas as “nonpublic
forum areas” (the “Policy Zone”) reserved for the use of tenants and the artists or
productions they authorized. The Policy Zone included an exterior plaza located at the
southeast corner of the Arena property near the southeast entrances of the Arena. (the
“Plaza Area”) (See Filing No. 1-7).
The Defendants assert that the Plaza Area
delineated in the Policy can be identified using landmarks and physical characteristics
such as cement planters, metal stanchions or bollards, and distinctly colored concrete.
(See Filing No. 13-2, at ECF 4-15; Filing No. 56-4, Depo. Lorenz, 21:3-22:11.)
diagram of the Policy Zone, including the Plaza Area appears below as Figure 1:
3
A
^
N
Figure 1: Policy Zone perimeter around Arena property (Policy, Filing No. 1-7 at ECF 2.) The Plaza
Area appears at the southeast corner of the Policy Zone.
One of the stated purposes of the Policy is to protect the Plaza Area in front of
main doors for use by tenants and the artists or productions they authorize, because the
Plaza Area is considered a space included in the tenants’ lease of the facility. (Filing
No. 56-3 at ECF 2, Aff. Lorenz, ¶ 7.) Another stated purpose of the Policy is to ensure
safety and crowd management of the Plaza Area. (Filing No. 56-3 at ECF 2-3, Aff.
Lorenz, ¶ 9, Filing No. 56-4, Depo. Lorenz, 22:8-13.) Defendants assert that the Plaza
Area outside the Arena entrances is used by patrons to enter and exit the Arena before
4
and after performances and sporting events, and crowds of 12,000 to 15,000 may
attend single events. The Plaza Area sometimes is used for security screening as well.
(Id.) The Policy also provides for public areas outside the Policy Zone. (Filing No. 56-3
at ECF 3, Aff. Lorenz, ¶ 10; Filing No. 56-4, Depo. Lorenz, 35:23-36:2.)
Ball has handed out leaflets in proximity to the Arena on at least four occasions.
On March 15, 2014, he distributed religious tracts to people attending the boys’ state
high school basketball tournament outside the Arena.
The areas where he stood
included the area immediately outside the doors of the Arena. He was approached
several times by SMG staff who asked him to move outside the Plaza Area to the public
sidewalk. Ball told SMG staff and/or Lincoln police officers he would leave, but would
come back to continue leafleting. Ball returned later that afternoon and began leafleting
in the Plaza Area north of the bollards. The Lincoln Police Department was called by
SMG staff when Ball refused to move. Lincoln police officers approached Ball and
asked him to move to the sidewalk outside the Plaza Area. Ball refused to move,
asserting that he had a right to distribute pamphlets in the Plaza Area. He was then
arrested and ticketed for trespassing and refusing to comply with the officers’ directives.
The charges against Ball were dismissed by the City Attorney’s Office in May of 2014.
Nearly one year later, on March 5, 2015, Ball returned to the Arena and handed
pamphlets to people attending the girls’ state high school basketball tournament. He
was aware of the written Policy and had read it. He stood in the Plaza Area north of the
bollards, approximately 25 feet from an Arena door. The Lincoln Police Department
ticketed Ball for trespassing, but did not arrest him. He returned on March 7, 2015;
engaged in the same conduct; and was ticketed again but not arrested.
5
During the second weekend of March 2015, Ball distributed leaflets outside the
Arena during the boys’ state basketball tournament. He stayed on the sidewalk outside
the Plaza Area and was not ticketed or disturbed.
On July 23, 2015, Ball was found guilty of trespassing for the citations issued on
both March 5, 2015, and March 7, 2015, and fined $50.00 for each citation.
The Lincoln Police Department has not cited any other individuals for trespassing
or other criminal violations in connection with the Arena’s Policy.
Ball filed this action on March 12, 2015, seeking permanent injunctive relief and
monetary damages for alleged violations of his First Amendment rights. (Filing No. 1).
Contemporaneous with his Complaint, he filed a Motion for Temporary Restraining
Order and Preliminary Injunction. (Filing No. 2.) On April 15, 2015, the Court denied
Ball’s Motion for Preliminary Injunction, concluding, in part, that Ball was unlikely to
prove that the Plaza Area was a public forum. (Filing No. 24.)
STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably
to the nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th
Cir. 2013) (citing Fed. R. Civ. P. 56(c)). “[S]ummary judgment is not disfavored and is
designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th
Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) cert. denied, 132 S. Ct. 513 (2011)). In
reviewing a motion for summary judgment, the Court will view “all facts and mak[e] all
reasonable inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five
6
Star Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving
party will bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a
proper summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving
party’s claims by showing “the absence of a genuine issue of material fact.” Id. at 325.
Instead, “the burden on the moving party may be discharged by ‘showing’ . . . that there
is an absence of evidence to support the nonmoving party’s case.” Id. (quoting Fed. R.
Civ. P. 56(c)).
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim
should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.
2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). The nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (internal
quotation marks omitted) (quoting Torgerson, 643 F.3d at 1042). “[T]he mere existence
of some alleged factual dispute between the parties” will not defeat an otherwise
properly supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d
745, 751 (8th Cir. 2011) (internal quotation marks omitted) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986)).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
7
dispute as to those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.
2012) (internal quotation marks omitted) (quoting Torgerson, 643 F.3d at 1042).
Otherwise, where the Court finds that “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,” there is no “genuine issue for trial”
and summary judgment is appropriate. Torgerson, 643 F.3d at 1042 (internal quotation
marks omitted) (quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)).
DISCUSSION
Ball argues that the Policy, and Defendants’ enforcement of the Policy, violate his
First Amendment rights. The First Amendment prohibits laws “abridging the freedom of
speech.” U.S. Const. amend. I. However, 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
Court first must determine whether the Plaza Area is a traditional public forum, to
8
determine the level of scrutiny to apply when evaluating the Policy. Then the Court
must determine whether the Policy is a reasonable restriction on speech.
I.
Public Forum Analysis
In their Motions for Summary Judgment, the Defendants argue that the Policy is
a reasonable restriction on speech because the Plaza Area is a nonpublic forum. Ball
asserts that the Plaza Area is a public forum for First Amendment purposes. As noted in
the Preliminary Injunction Order, the Supreme Court has identified three categories of
forums in the free speech context: (1) the traditional public forum, (2) the designated
public forum,4 and (3) the nonpublic forum. Perry Edu. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45-46 (1983). Traditional public 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 marks omitted). The Supreme Court has 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
4
A “designated public forum” is defined as “public property which the State has opened for use
by the public as a place for expressive activity.” 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). Ball does not
argue or present evidence that the City has designated the Plaza Area as a public forum.
9
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.
In contrast to public forums, on “[p]ublic property which is not by tradition or
designation a forum for public communication,” states may “preserve the property under
its control for the use to which it is lawfully dedicated.” Perry, 460 U.S. at 46 (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 nonpublic or limited
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.
At the preliminary injunction phase, the Court concluded that Ball was not likely
to succeed on his claim that the Plaza Area was a traditional public forum. The parties
now have had an opportunity to present their evidence and arguments, and 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 Eighth Circuit has
instructed that in determining whether a publicly owned property is a 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, 977-78 (8th Cir. 2006).
Having assessed these factors with the evidence before the Court, the Court concludes
that the Plaza Area is not a traditional public forum.
10
A.
Physical Characteristics of the Plaza Area
Ball argues that deposition testimony now establishes that the Plaza Area has
the physical characteristics of a traditional sidewalk. Sidewalks are considered
traditional public forums “generally without further inquiry.” U.S. v. Grace, 461 U.S. 171,
179 (1983). 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. 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 its 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.
Similarly, in United Church of Christ v. Gateway Econ. Dev. Corp. of Greater Cleveland,
383 F.3d 449, 451-53 (6th Cir. 2004), the Sixth Circuit held that a walkway surrounding
a privately owned stadium and arena was a public forum because it blended into the
urban grid, bordered the road, and looked like any public sidewalk, despite the presence
of large planter boxes along the walkway.
Courts have recognized that plaza areas adjacent to public walkways are not
necessarily blended into the urban grid such that the plazas are traditional public
forums. For example, in Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), cert.
11
denied, No. 15-863, 2016 WL 81163 (U.S. May 16, 2016), the D.C. Circuit held that the
entrance plaza to the United States Supreme Court building was a nonpublic forum. In
Hodge, the court specifically distinguished the Supreme Court’s holding in Grace,
reasoning that the Supreme Court “plaza's appearance and design vividly manifest its
architectural integration with the Supreme Court building, as well as its separation from
the perimeter sidewalks and surrounding area.” Hodge, 799 F.3d at 1158. The D.C.
Circuit noted that the plaza was elevated from the sidewalk by a set of marble steps and
a marble wall that defined the plaza’s boundaries, and the plaza and steps contrasted
sharply with the concrete sidewalk. Id. Thus, “whereas there was ‘nothing to indicate to
the public that [the] sidewalks are part of the Supreme Court grounds,’ Grace, 461 U.S.
at 183, there is everything to indicate to the public that the plaza is an integral part of
those grounds.” Id. at 1159.
Other courts have emphasized that physical characteristics, such as location,
can set an area apart from sidewalks and other traditional public forums. For example,
in United States v. Kokinda, 497 U.S. 720, 726 (1990), the Supreme Court examined
whether a walkway leading from a dedicated parking lot to a post office was a traditional
public forum.
497 U.S. at 723, 726.
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. Similarly, in
Friends of Animals, Inc. v. City of Bridgeport, 833 F. Supp. 2d 205, 214 (D. Conn. 2011)
12
aff'd sub nom. Zalaski v. City of Bridgeport Police Dep't, 475 F. App'x 805 (2d Cir.
2012), the 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.” The court
reasoned that the plaza was separated from public streets and sidewalks by
landscaping, a grassy area, and a private driveway. Id.
Defendants concede that the markings of the boundary of the Plaza Area in this
case—planter boxes, stanchions or bollards, and distinctly colored concrete—are not as
dominant as the raised marble leading to the Supreme Court building. Further, 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. These features, on their own,
may not permit an average observer to identify the boundaries of the Plaza Area. For
example, as shown in Figure 2, the pedestrian overpass leading from parking lots north
of the arena empties directly into the Plaza Area. (Policy, Filing No. 1-7 at ECF 4-5.)
Access to the pedestrian bridge is not restricted, and SMG does not restrict speech on
the bridge itself.
(Filing No. 56-4, Lorenz Depo. 19:1-9.)
There is evidence that
pedestrians use the bridge to access the Haymarket District near the Arena from the
parking lots north of the Arena. (See Filing No. 62-1, Cary Depo. 19:2-16.) As shown in
Figure 2, the boundary line of the Policy Zone does not follow the precise boundary
elements of the pedestrian bridge, nor does it precisely follow the distinctive concrete
coloring which is carried outside the Plaza Area onto public sidewalks and into the
street. Thus, the physical characteristics of the Plaza Area “‘without more,’ might make
13
[it a] traditional public for[um].” Bowman, 444 F.3d at 978 (quoting Grace, 461 U.S. at
177).
Figure 2: Plaza area photographs (Policy, Filing No. 1-7 at ECF 4-5.) The blue arrow in the
upper left hand corner shows the potential path of pedestrians exiting the bridge.
In considering these characteristics, however, the Court must “[acknowledge] the
presence of any special characteristics regarding the environment in which [the Plaza
Area] exist[s,]” Id. at 975.
The Plaza Area has several special characteristics that
distinguish it from a sidewalk and it cannot be said that the Plaza Area seamlessly
blends into the urban grid, borders the road, or looks like a public sidewalk.
The
boundary elements, combined with the size, shape, and general appearance of the
Plaza Area serve to distinguish it from the adjacent public sidewalk to the south. The
very presence of 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 from acknowledged
public areas may serve to indicate that the separated property is a special enclave,
subject to greater restriction.”).
The Court must weigh the Plaza Area’s physical
characteristics, together with its use and the government’s intent for its use, to
determine how this factor affects the forum analysis. See Bowman, 444 F.3d at 978
14
(stating that “the open nature of these spaces is merely a factor to consider in
determining whether the government has opened its property” and courts must consider
the other public forum factors, none of which is dispositive).
B.
Use and Purposes of the Plaza Area
The manner in which the Plaza Area has been used suggests it is a nonpublic
forum, because its use has been tied to Arena events.
It is well established 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.” Bowman, 444 F.3d at 978
(quoting Grace, 461 U.S. at 177). In Bowman, the Eighth Circuit noted that even though
an area on a university’s campus may possess “many of the characteristics of a public
forum, such as open sidewalks, ‘[it] differs in significant respects from public forums
such as streets or parks or even municipal theaters.’” Bowman, 444 F.3d at 978
(quoting Widmar v. Vincent, 454 U.S. 263, 268 n.5 (1981)). The court in Bowman
concluded that a university’s purpose and traditional use was not to “to provide a forum
for all persons to talk about all topics at all times,” but to serve as an enclave devoted to
higher education. Id. (citation omitted). Thus, the court noted that “streets, sidewalks,
and other open areas that might otherwise be traditional public fora may be treated
differently when they fall within the boundaries of the University's vast campus.” Id.
Similarly, in Hodge, the D.C. Circuit explained that “the Supreme Court plaza's
status as a nonpublic forum is unaffected by the public's unrestricted access to the
plaza at virtually any time.” Hodge, 799 F.3d at 1160. The court in Hodge adopted
much of its reasoning from the Second Circuit’s decision in Hotel Employees. & Rest.
Emps. Union, Local 100 v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 547–
15
53 (2d Cir. 2002). In Hotel Employees, the court held that the main purpose of the plaza
outside Lincoln Center in Manhattan was to “serve as the ‘forecourt’ for the performing
arts halls at Lincoln Center, and, unlike a park or public thoroughfare, the Plaza has not
traditionally served as a forum for debate or assembly.” Hotel Employees, 311 F.3d at
547.
The court specifically noted that “[a]lthough the Plaza's design clearly invites
passers-by to stroll through or linger, the Plaza was not created primarily to operate as
a public artery, nor to provide an open forum for all forms of public expression.” Hotel
Employees, 311 F.3d at 552 (citing First Unitarian Church v. Salt Lake City Corp., 308
F.3d 1114, 1125-27 (10th Cir. 2002)).
For this reason, the court concluded that
“permitting speech on all manner of public issues in the Plaza would compromise the
City's ability to establish a specialized space devoted to contemplation and celebration
of the arts.” Hotel Employees, 311 F.3d at 552.
In this case, there is no genuine dispute about the principal purpose of the Plaza
Area. There is no evidence of its “traditional” or “historic” use, because it did not exist
until the Arena was built. The roads, streets, and sidewalks, constructed adjacent to the
Arena and the Plaza Area were constructed at the same time as the Arena. (Filing No.
56-2, Aff. Kirkpatrick ¶ 4.) Since its construction, the Plaza Area has been reserved for
the use of Arena tenants and the artists or productions they sponsor. Use of the Plaza
Area is included in Arena tenants’ lease terms. (Filing No. 56-3, Aff. Lorenz ¶ 7.) For
example, during concert performance by Paul McCartney, the Plaza Area was used for
the sale of concert souvenirs and for a red British phone booth in which concert-goers
could take photos. (Filing No. 56-3, Aff. Lorenz ¶ 7.) The Plaza Area also has been
used as an exhibit area for trade, RV, and boat shows. (Id.) The evidence shows the
16
Plaza Area is also used to facilitate management of crowds as large as 15,000 people
entering the Arena, and as a security screening area. (Filing No. 56-3, Aff. Lorenz ¶ 9;
Filing No. 56-4, Depo. Lorenz at 22:8-13, 28:17-22, 30:7-20.) In sum, the evidence
demonstrates that the primary use of the Plaza Area has been to serve as a forecourt to
the Arena’s main entrance, and for purposes specifically related to the Arena.5 There is
no evidence that the Plaza Area has “traditionally been available for public expression, .
. . nor does it have as a principal purpose the free exchange of ideas.”
Hotel
Employees, 311 F.3d at 552 (citations and marks omitted). Accordingly, the use of the
Plaza Area does not indicate that it should be accorded the same level of constitutional
protection as a traditional public forum.
C.
Government Intent and Policy With Respect to the Plaza Area
Ball argues that the City’s Policy does not demonstrate that the City intended the
Plaza Area to be used as a nonpublic forum, because the Policy was not enacted until
after Ball was arrested. The Court recognizes that the government “may not by its own
ipse dixit destroy the public forum status of streets and parks which have historically
5
Where areas are principally used for the commercial purposes of an arena or stadiums, courts
have been reluctant to find a public forum. See Hubbard Broad., Inc. v. Metro. Sports Facilities Com.,
797 F.2d 552, 555 (8th Cir. 1986) (Metrodome’s principal purpose was as a sports complex and
commercial venture, not to provide expressive opportunities, even if some advertising was permitted; city
did not create public forum) For example, in United Church of Christ, although the Sixth Circuit held that
the sidewalk surrounding an arena and baseball stadium was a traditional public forum, it held that a
plaza area adjacent to the walkway, known as “the Commons,” was a nonpublic forum. United Church of
Christ, 383 F.3d at 453. The plaintiff argued that the Commons acquired designated public forum status
because, although access was usually restricted during game time, arena and stadium managers had, in
the past, allowed several non-ticketed fans into the Commons during games. Id. The court concluded
that the Commons were not a public forum because the non-ticketed fans allowed into the Commons
were interested in the outcome of the baseball games taking place inside the stadium and their presence
on the Commons directly furthered fan enjoyment. Id. Thus, the practice of allowing the public onto the
Commons during games fell short of allowing everyone equal access to the Commons. Id.
17
been public forums.”
Grace, 461 U.S. at 180 (citations and quotations omitted).
Specifically, the government cannot “transform the character of the property by the
expedient of including it within the statutory definition of what might be considered a
non-public forum parcel of property.”
Id.
Yet there is no legal support for the
proposition that government intent must be memorialized in writing for purposes of the
public forum analysis.
As discussed above, there is no evidence that the City or SMG ever intended to
use the Plaza Area as a public forum, nor is there any evidence that the Plaza Area was
regularly used as a public forum. Ball asserts that the design and function of the Plaza
Area show it was intended to blend into the City’s urban grid. In support of his position,
he quotes deposition testimony of Tom Lorenz, an SMG employee.
When asked
whether the Plaza Area was used by the public for purposes other than entrance into
the Arena, specifically pedestrians using the pedestrian bridge to travel between nonArena sites, Lorenz responded, “It can be . . . .” (See Filing No. 61, Br. of Pl. at 14;
Filing No. 56-4, Lorenz Depo. at 55:17-20.)
The Court cannot infer from Lorenz’s
answer, however, that the City intended to blend the Plaza Area into the City’s urban
grid. Courts consistently have held 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.” Grace, 461 U.S. at 177 (citing Greer v. Spock, 424 U.S. 828, 836
(1976)). Although the City did not adopt the written Policy until October 2014, the
evidence demonstrates that the City at all times intended the Plaza Area to be used in
conjunction with the activities of the Arena and its tenants.
Permitting all forms of
expressive activity in the Plaza Area would be incompatible with that intent.
18
Having weighed each of the factors, the Court concludes that the Plaza Area is a
nonpublic forum. Although the Plaza Area shares several characteristics of a traditional
public forum, there is no evidence that the Plaza area traditionally or historically was
open to public free expression. Instead, the evidence shows that the Plaza Area has
been used principally in conjunction with Arena activities. Further, there is no evidence
that the Defendants intended to open the Plaza Area as a forum for public free
expression. Accordingly, there is no genuine issue of material fact as to the status of
the Plaza Area as a nonpublic forum.
II.
Reasonableness of the Policy
The Policy is reasonable because it is content neutral and does not unduly curtail
free speech near the Plaza Area.
“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).
“A limited public forum, like a nonpublic forum, may be ‘limited to use by certain groups
or dedicated solely to the discussion of certain subjects,’ and the public entity ‘may
impose restrictions on speech that are reasonable and viewpoint-neutral.’” Id. at 33435 (quoting Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the
Law v. Martinez, 561 U.S. 661, 679 n.11 (2010)).
The Court has held that the language of the Policy is content neutral. (Filing No.
24 at 19.) There is no argument or evidence to demonstrate the Policy is content-based
on its face. Ball nevertheless argues that the Policy is not viewpoint-neutral because it
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has been enforced only against him.
Ball does not present any evidence to
demonstrate that he was targeted for enforcement based upon his viewpoint. Ball relies
on evidence that artists using the Arena, such as Neil Young, were permitted to set up
tables on the Plaza Area with political messages. However, the evidence is clear that
such messages were part of the artist’s use of the Arena. (Filing No. 56-4, Lorenz
Depo. 24:2-24.) There is simply no evidence that Ball “was prevented from speaking
while someone espousing another viewpoint was permitted to do so.” McCullen v.
Coakley, 134 S. Ct. 2518, 2534 n.4 (2014). Nor is there any evidence that Defendants
engaged in “a pattern of unlawful favoritism.” Thomas v. Chicago Park Dist., 534 U.S.
316, 325 (2002). Instead, the evidence demonstrates that individuals using the Plaza
Area did so in conjunction with their commercial use of the Arena.
Ball also argues that the Policy is vague and permits broad discretion in SMG’s
enforcement of the Policy.
A law may be “impermissibly vague because it fails to
establish standards for the police and public that are sufficient to guard against the
arbitrary deprivation of liberty interests.” City of Chicago v. Morales, 527 U.S. 41, 52
(1999) (citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)). Under the vagueness
doctrine, legislatures must “establish minimal guidelines to govern law enforcement.”
Kolender, 461 U.S. at 358. Such minimal guidelines are to prevent law enforcement
from having absolute discretion as to the type of activity that violates a law. Morales,
527 U.S. at 61. The Policy unambiguously states that “charitable solicitations” and
“leafleting, signature gathering, promotional material distribution, merchandise sales,
and picketing” are only allowed in the “non-public forum exterior Arena areas at the
request of a Tenant, the Tenant’s contractual entity and/or the artists or productions
20
they represent.” (Filing No. 56-3 at ECF 5.) The Court concludes that this language is
not vague nor does it grant SMG or the City absolute discretion in identifying a violation
of the Policy.
The limited boundaries of the nonpublic forum, and the availability of nearby
areas open for expression, also demonstrate that the Policy is reasonable. “The
reasonableness of a restriction on access is supported when ‘substantial alternative
channels’ remain open for the restricted communication.” Victory, 640 F.3d at 335
(quoting Perry, 460 U.S. at 53). As this Court noted previously, 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 most 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
evidence demonstrates that the Policy is reasonable.
CONCLUSION
For the reasons stated above, the Court concludes that the Plaza Area at issue
in this case is a nonpublic forum for purposes of the First Amendment. There is no
material dispute that the Plaza Area was not traditionally or historically open to free
expression, nor is there any material dispute that the Defendants did not intend the
Plaza Area to be used for public exchange of ideas. Instead, the undisputed evidence
shows that the nature and use of the Plaza Area primarily have been associated with
21
the commercial purposes of the Arena.
The Court concludes that the Policy is a
reasonable restriction on speech. Accordingly,
IT IS ORDERED:
1.
The Motion for Summary Judgment (Filing No. 55) filed by Defendant City
of Lincoln is granted;
2.
The Motion for Partial Summary Judgment (Filing No. 57) filed by
Defendant SMG is granted;
3.
The Motion for Leave to File Rebuttal to Defendants’ Supplemental Index
of Evidence (Filing No. 69) is denied as moot;
4.
All other pending motions in this case are denied as moot;
5.
This case is dismissed with prejudice; and
6.
A separate judgment will be entered.
Dated this 23rd day of June, 2016.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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