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Tuesday, September 12, 2017

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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