Eighth Circuit Dismisses Free Speech Lawsuit Regarding Activity in City Arena
Ball was arrested and cited by the City for
trespassing while passing out leaflets in the Plaza Area of the Pinnacle Bank
Arena. The City claimed he was violating the Arena’s Exterior Access and Use
Policy. Ball sued, claiming the City
violated his First Amendment free speech rights. The district court dismissed the
case, and Ball appealed to the Eighth Circuit Court of Appeals, which also
ruled in favor of the City. Ball v. City of Lincoln, Nebraska
Ball argued that the Plaza Area was a
public forum for purposes of free speech under the First Amendment. The Court applied
three factors to determine whether the Plaza Area was a public or nonpublic
forum:
(1) the Plaza Area’s physical
characteristics;
(2) the use, function, and purpose of
the Plaza Area; and
(3) the City’s intent in constructing
the space.
The Court noted that a public forum is
public property that is available for public expression, citing streets,
sidewalks, and public parks as examples, as distinguished from a nonpublic
forum, which are government properties that are not “by tradition or
designation a forum for expressive activities by the public.” A restriction on
expressive activity in a nonpublic forum only needs to be reasonable to be
constitutional.
The Court addressed the first factor by looking
at the physical characteristics of the surroundings, such as unique sidewalks that
distinguished the Plaza Area from adjacent public sidewalks. As to the second
factor, the Court noted that the Plaza Area functioned as a venue for
commercial use by Arena tenants and was meant to facilitate safe and orderly
access to the Arena, stating “that members of the public are permitted to come
and go at will does not transform the Plaza Area into a public forum.”
The
Court addressed the third factor by considering the City’s intent, purpose, and
policy to determine whether the Plaza Area was a public forum. The Court found
no evidence the City intended it to be open to the public for expressive
activities and that the purpose of the Plaza Area was to protect the
contractual rights of the tenants and allow for crowd management. Considering
these factors, the Court determined that the Plaza Area was a nonpublic forum.
The Court next addressed whether the Arena’s
Exterior Access and Use Policy that restricted speech in the Plaza Area was
permissible. The Court noted that a restriction on speech in a nonpublic forum
is permissible if it is viewpoint neutral and reasonable in light of the
purpose which the forum at issue serves. In this case, the Court found that the policy
was viewpoint neutral on its face because it broadly prohibited specific
expressive activity without regard to the content of the speech.
Post Authored by Jessica DeWitt, Ancel Glink
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