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Ball v. City of Lincoln

United States Court of Appeals, Eighth Circuit

August 29, 2017

Larry Ball Plaintiff- Appellant
City of Lincoln, Nebraska Defendant-Appellee Chris Buetler, Mayor of the City of Lincoln; James Peschong, Lincoln Chief of Police Defendants SMG, a Pennsylvania General Partnership Defendant-Appellee

          Submitted: March 8, 2017

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Larry Ball appeals from the district court's[1] order granting summary judgment to the City of Lincoln, Nebraska (City), and SMG (collectively, Appellees) on his claim that the Appellees violated his First Amendment free-speech rights.[2] Ball was ticketed and arrested for trespassing after he distributed leaflets in the plaza area of the Pinnacle Bank Arena (Plaza Area), which activity was prohibited by the Arena's Exterior Access and Use Policy (Policy). Ball argues that the district court erred in concluding that the Plaza Area is a nonpublic forum and that the Policy is a reasonable restriction on speech. We affirm.

         "We review a grant of summary judgment de novo and will affirm when 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Grant v. City of Blytheville, 841 F.3d 767, 770 (8th Cir. 2016) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Torgerson, 643 F.3d at 1042. The nonmoving party "may not rely on allegations or denials, " however, but must substantiate his allegations with "sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation [or] conjecture." Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). Even if some factual dispute exists, the movant is entitled to summary judgment if the evidence, taken as a whole, is so one-sided that a fair-minded trier of fact could not find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, there is no genuine issue for trial if "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Torgerson, 643 F.3d at 1042. We relate the facts in light of these standards.

         I. Background

         In 2010, the City and the University of Nebraska (University) entered into an agreement to create the West Haymarket Joint Public Agency (Agency), which was formed to facilitate the redevelopment of the City's West Haymarket district. The redevelopment plan included the construction of the Pinnacle Bank Arena (Arena), a large, modern sports and entertainment venue. The redevelopment plan included 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 bridge connecting the festival space and parking lots to the Arena; and new roads, streets, and sidewalks providing access to all these facilities. Among its other uses, the Arena was to function as the home court for the University's basketball teams. It was built to replace the City's fifty-year-old Pershing Center, which had been operated by SMG for more than a decade until its closing in 2014. Under the redevelopment plan, the City would own the Arena and its associated improvements and facilities for the benefit of the City's residents and citizens.

         The City entered into a Facilities Agreement with the Agency, under which the City would construct the Arena and related facilities, including the adjacent roads, streets, and sidewalks, and would thereafter operate, maintain, and manage them. Construction of new roads, streets, and sidewalks adjacent to the Arena was necessary because, prior to its redevelopment, the site had been occupied by railroad tracks, which were relocated to accommodate the Arena and related facilities. The City also entered into a Management Agreement with SMG, granting SMG the "exclusive right to manage, market, promote and operate" the Arena and related facilities. The Arena opened in the fall of 2013.

         The Policy, which SMG adopted in October 2014, includes diagrams of the Arena area and governs exterior access and use of the Arena and related facilities. The Policy and diagrams were then posted on the Arena's website, and paper copies were made available to the public. The Policy was consistent with the unwritten access and use policy that SMG had been enforcing since the Arena's opening and which SMG had earlier enforced at the Pershing Center from 1996 until its closing in 2014. The Policy's purpose was to provide Arena patrons-sometimes as many as 15, 000 at a single event-safe and efficient access to the Arena and related facilities, as well as to allow for the full use of the Arena by the performers, sports teams, trade shows, conventions, and others who leased the Arena for various events (Arena Tenants). Certain exterior areas around the Arena and related facilities were designated by the Policy as "nonpublic forum areas" and were specifically reserved for use by Arena Tenants and their authorized productions and affiliates (Policy Zone). The Policy Zone, which was defined in the text and depicted on the diagrams accompanying the Policy, included the Plaza Area-the exterior plaza located at the southeast corner of the Arena property near the southeast doors to the Arena. The Policy and accompanying diagrams also provided for and identified public areas outside the Policy Zone. The Policy Zone did not include the pedestrian bridge or a path running along the eastern edge of the Plaza Area from the bottom of the pedestrian bridge to the adjacent public sidewalk.

         (Image Omitted)

         Image of the Plaza Area located at the southeast corner of the Policy Zone. The perimeter of the Plaza Area is indicated in black for ease of reference, although it is shown in orange in the City's Supplemental Appendix. Suppl. App. at 24.

         Ball, a citizen and resident of the City, passes out leaflets containing Christian messages to members of the public. Ball has handed out leaflets near the Arena on at least four occasions. On March 15, 2014, the boys' state high school basketball tournament was being held at the Arena. Ball handed out leaflets to tournament attendees while standing in the Plaza Area, at times standing directly in front of the doors to the Arena. SMG staff approached Ball several times and asked him to move from the Plaza Area to the adjacent public sidewalk. Ball agreed to leave but stated that he would return later to continue leafletting. Ball returned that afternoon and began leafletting again in the Plaza Area. When Ball refused to move from the Plaza Area, SMG staff called the Lincoln Police Department. The officers asked Ball to move to the public sidewalk outside the Plaza Area. Ball refused to move, asserting that he had a right to leaflet in the Plaza Area. Ball was arrested and cited for trespassing in violation of the unwritten Arena use policy and for refusing to comply with the officers' directives to move to another location. The charges were later dismissed.

         Ball returned to the Arena on March 5, 2015, to hand out leaflets to people attending the girls' state high school basketball tournament and again stood in the Plaza Area roughly 15 to 25 feet from the Arena doors. Ball concedes that he had by that time read the written Policy and knew that it prohibited his leafletting activity. Officers again cited Ball for trespassing but did not arrest him. Ball returned to the Plaza Area on March 7, 2015, engaged in the same conduct, and was again cited for trespassing in violation of the Policy but was not arrested. During the second weekend of March 2015, Ball distributed leaflets outside the Arena during the boys' state high school basketball tournament, but this time he remained on the public sidewalk outside the Plaza Area and was not approached by SMG staff or ticketed. In July 2015, Ball was found guilty of trespassing for the citations issued on March 5 and 7, 2015, and was fined $50 for each violation. The Lincoln Police Department has not cited any other individual for trespassing or for other criminal violations related to the Policy.

         Ball filed this lawsuit on March 12, 2015, alleging that the City and SMG had violated his First Amendment free-speech rights by issuing the March 2014 and March 2015 citations for trespassing on the Plaza Area in violation of the Policy. Ball sought permanent injunctive relief and monetary damages. The district court granted summary judgment in favor of the City and SMG, concluding that the Plaza Area was a nonpublic forum for purposes of the First Amendment and that the Policy was a reasonable restriction on speech, conclusions that Ball challenges on appeal.

         II. Discussion

         The First Amendment provides that state actors "shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I; amend. XIV. The Appellees are state actors for purposes of the First Amendment, see Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295-98 (2001), and the leafletting at issue here is within the scope of speech protected by the First Amendment, see Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677 (1992). The First Amendment does not, however, provide Ball with unfettered latitude to engage in leafletting wherever and whenever he might choose. Instead, the "government, 'no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated.'" United States v. Grace, 461 U.S. 171, 178 (1983) (quoting Adderly v. Florida, 385 U.S. 39, 47 (1966)). Indeed, it is "well settled that the government need not permit all forms of speech on property it owns and controls." Lee, 505 U.S. at 678. This is so because "[n]othing in the Constitution requires the [g]overnment freely to grant access to all who wish to exercise their right to free speech on every type of [g]overnment 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); see also United States v. Kokinda, 497 U.S. 720, 725 (1990) (noting that while the government is subject to certain constraints in its ability to control access to its property, "the [g]overnment's ownership of property does not automatically open that property to the public"). While the government is generally permitted to exercise control over expressive activities on its property, the constitutionally permissible extent of that control turns on the nature of the property involved and the restrictions imposed. See Cornelius, 473 U.S. at 797. The Supreme Court "has adopted a forum analysis as a means of determining when the [g]overnment'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." Id. at 800; see also Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983); Minn. Majority v. Mansky, 708 F.3d 1051, 1056 (8th Cir. 2013). In other words, "the extent to which the [g]overnment can control access depends on the nature of the relevant forum." Kokinda, 497 U.S. at 726 (quoting Cornelius, 473 U.S. at 800).

         A traditional public forum is public property that has "traditionally been available for public expression, " Lee, 505 U.S. at 678, and "the free exchange of ideas, " Cornelius, 473 U.S. at 800. The "quintessential" examples of such traditional public forums are streets, sidewalks, and public parks, because these venues "have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Perry Educ. Ass'n, 460 U.S. at 45 (citation omitted). "A traditional public forum is a type of property that 'has the physical characteristics of a public thoroughfare, . . . [that has] the objective use and purpose of open public access or some other objective use and purpose inherently compatible with expressive conduct, [and that has] historical[ly] and traditional[ly] . . . been used for expressive conduct.'" Bowman v. White, 444 F.3d 967, 975 (8th Cir. 2006) (citation omitted). A "designated" public forum, as the name implies, is created when the government "intentionally open[s] a nontraditional forum for public discourse." Cornelius, 473 U.S. at 802. "Although [the government] 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 Educ. Ass'n, 460 U.S. at 46. In a traditional or designated public forum, "the government's ability to permissibly restrict expressive conduct is very limited." Grace, 461 U.S. at 177. The government may impose a content-based restriction on speech only if the restriction "is necessary to serve a compelling state interest and . . . is narrowly drawn to achieve that end." Perry Educ. Ass'n, 460 U.S. at 45. The government may impose a content-neutral time, place, and manner restriction on speech as long as such restriction is "narrowly tailored to serve a significant government interest, and leave[s] open ample alternative channels of communication." Id.

         A nonpublic forum is government property that "is not by tradition or designation a forum for" expressive activities by the public. Id. at 46. The government retains much broader discretion to restrict expressive activities in a nonpublic forum. The government "may reserve [a nonpublic] 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." Id.; see also Hodge v. Talkin, 799 F.3d 1145, 1153 (D.C. Cir. 2015) (noting that the government "enjoys significantly greater latitude to regulate expressive activity" in a nonpublic forum, "including the ability 'in some circumstances' to 'ban the entry . . . of all persons except those who have legitimate business on the premises'" (quoting Grace, 461 U.S. at 178)). A restriction on expressive activity in a nonpublic forum "need only be reasonable; it need not be the most reasonable or the only reasonable limitation" to be constitutionally permissible. Kokinda, 497 U.S. at 730.

         Ball argues that the district court erred in concluding that the Plaza Area is a nonpublic forum. He first contends that because the Plaza Area is physically and spatially indistinguishable from the adjacent pedestrian bridge and other public sidewalks, it is, "without more, " a traditional public forum. See Grace, 461 U.S. at 177 (noting that public venues such as sidewalks that have been "historically associated" with expressive activities "are considered, without more, to be 'public forums'"). In determining whether government property constitutes a traditional public forum, however, the physical appearance of the property is only one of the factors we must consider. See Kokinda, 497 U.S. at 727 ("The mere physical characteristics of the property cannot dictate forum analysis."); see also Bowman, 444 F.3d at 978. We must also take into account "the traditional use of the property, the objective use and purposes of the space, and the government intent and policy with respect to the property, not merely its physical ...

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