Warren v. Fairfax County

• Decision Date: 09 June 1999
• Docket Number: No. 98-1059,CA-97-119-A,98-1059
• Citation: 196 F.3d 186
• Parties: (4th Cir. 1999) RITA WARREN, Plaintiff-Appellant, v. FAIRFAX COUNTY, Defendant-Appellee. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 186

196 F.3d 186 (4th Cir. 1999)

RITA WARREN, Plaintiff-Appellant, v. FAIRFAX COUNTY, Defendant-Appellee.

No. 98-1059 (CA-97-119-A).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: June 9, 1999.

Decided: October 13, 1999.

Corrected Opinion Filed October 28, 1999.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: Victor Michael Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. James Patrick Taves, Senior Assistant County Attorney, Fairfax, Virginia, for Appellee. ON BRIEF: Jeanne Goldberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. David P. Bobzien, County Attorney, Karen L. Gibbons, Assistant County Attorney, Fairfax, Virginia, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN,^* NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges.

Reversed by published opinion. Judge Murnaghan wrote the majority opinion, in which Chief Judge Wilkinson and Judges Hamilton, Luttig, Michael, Motz, Traxler, and King joined. Chief Judge Wilkinson wrote a concurring opinion. Judge Niemeyer wrote a dissenting opinion, in which Judges Widener and Williams joined.

OPINION

MURNAGHAN, Circuit Judge:

Stretching in front of the Fairfax County Government Center Complex is a large grassy mall, approximately thirty yards wide and spanning about 200 yards (the "Center Island mall" or the "mall"). Sidewalks circumnavigate the mall and amble along a central landscaped strip. The area of the mall abutting the Government Center Complex features a circular brick promenade complemented by additional landscaping. Surrounding the mall is the street which leads to the Government Center Complex. The entire mall is outdoors, unenclosed, publicly accessible, and in fact open to the public.

In November 1996 Rita Warren, a resident of Fairfax City, filed for a permit to erect a holiday display on the Center Island mall. Fairfax County (the "County") and Fairfax City are separate jurisdictions in Virginia. Fairfax City is much smaller than the County and is surrounded in its entirety by the County. Fairfax County Procedural Memorandum No. 08-05 (Nov. 18, 1996) (the "Memorandum") governs use of the Center Island mall. The Memorandum states that it is County policy "to encourage use of the common areas of the Government Center Complex by [qualified persons] for civic, cultural, educational, religious, recreational and similar activities . . . ." Memorandum, at 2. The Memorandum limits the scope of qualified persons to county residents, county employees, and county nonprofits, defined as "[a]ny nonprofit organization which has an office in Fairfax County and/or serves the citizens of Fairfax County . . . ."¹ Memorandum, at 4. Because Warren was not a resident or employee of the County, the County denied Warren permission to engage in First Amendment activity on the Center Island mall.

Warren filed suit in the federal district court for the Eastern District of Virginia, challenging the County's action as a violation of her Fourteenth Amendment rights of freedom of speech and equal protection. The district court initially granted Warren a preliminary injunction against enforcement of the Memorandum as applied to the Center Island mall. Later, however, the district court held in favor of the County. See Warren v. Fairfax County, 988 F. Supp. 957 (E.D. Va. 1997). The district court reasoned that the Center Island mall was not a traditional public forum, but instead was a designated limited public forum, and Warren was not a member of the class to whom the Center Island had been opened. See id. at 962-64. Further, the district court held that the residency restriction in the Memorandum passed constitutional muster because it was reasonable and viewpoint neutral. See id. at 964-67.

On appeal, a divided panel of this Court affirmed the district court. See Warren v. Fairfax County, 169 F.3d 190 (4th Cir. 1999). The panel decision was vacated on April 21, 1999, when the Court granted Warren's petition for rehearing en banc. Now, the Court adopts as its own sections II, III(A), III(B), and III(C) of the dissenting panel opinion, appended to this opinion.² We hold that the Center Island mall is a traditional public forum under the law detailed in section II of that opinion. See Warren, 169 F.3d at 197-201 (Murnaghan, J., dissenting) [hereinafter, all references to Warren are to the panel dissent]. The Center Island mall has the physical characteristics of a traditional public forum. See, e.g., Int'l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 686 (1992) (O'Connor, J., concurring in ISKCON v. Lee and concurring in the judgment in Lee v. Int'l Society of Krishna Consciousness, Inc., 505 U.S. 830 (1992)); United States v. Kokinda, 497 U.S. 720, 727 (1990) (plurality opinion). It is an open public thoroughfare best characterized as a park or mall. See Warren, 169 F.3d at 198-99, 201.

The Center Island mall has the objective³ use and purpose of a traditional public forum. See Warren, 169 F.3d at 198-99, 202. Its objective use is as a place of open public access, which is eminently compatible with expressive activity. See Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 678, 118 S. Ct. 1633, 1641 (1998).

Finally, the Center Island mall is part of a class of property which by history and tradition has been open and used for expressive activity. See Warren, 169 F.3d at 198-99, 202. The Center Island mall is part of the outdoor grounds of a seat of legislative and/or executive power. See id. at 202.

Alternatively, the Center Island mall is a traditional public forum because it is merely a combination of the three prototypical examples of traditional public fora -streets, sidewalks, and parks. See id. at 203-04.

The designation of an area as a traditional public forum does not prevent localities from addressing such significant concerns as public safety and the movement of traffic. The Supreme Court has made clear that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information."

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). The restriction here fails because it is not narrowly tailored to achieve a significant state interest. See Warren, 169 F.3d at 204-05. Also, under Arkansas Educational Television Commission v. Forbes, a state entity cannot exclude a speaker from a traditional public forum altogether unless "`the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.'" Forbes, 523 U.S. at 677 1641 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985)). Here, the exclusion of non-residents passes neither prong -it serves no compelling interests and it is not narrowly tailored to achieve the interests that it does serve. See Warren, 169 F.3d at 204-05.

Accordingly, we strike down the Memorandum as violative of First and Fourteenth Amendment rights insofar as it applies to the Center Island mall. The district court by en banc majority opinion is

REVERSED.

ADDENDUM

Parts II AND III of Judge Murnaghan's dissent from the panel opinion reported at 169 F.3d 190.

II.

The Supreme Court recently confirmed that courts should evaluate First Amendment rights on government-owned property under a public forum analysis. See Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, ___, 118 S. Ct. 1633, 1641 (1998). The public forum analysis was created to recognize that the government must be able to limit the use of its property to the intended purpose for which the property was created, see, e.g., Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800 (1985); Adderley v. Florida, 385 U.S. 39, 48 (1966), and to limit access to those rightfully conducting business there, see, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 53 (1983). Toward that end, the Court has identified at least three types of fora for First Amendment purposes, each subject to a different regime of constitutional scrutiny: the traditional public forum, the designated public forum, and the nonpublic forum. Ark. Educ., 523 U.S. at ___, 118 S. Ct. at 1641 (quoting Cornelius, 473 U.S. at 802). The Court distinguishes between these fora based upon the physical characteristics of the property, including its location, see, e.g., Frisby v. Schultz, 487 U.S. 474, 480-481 (1988); United States v. Grace, 461 U.S. 171, 177, 179 (1983); the objective⁴ use and purposes of the property, see, e.g., Ark. Educ., 523 U.S. at ___, 118 S. Ct. at 1641; Cornelius, 473 U.S. at 800, 805, 809; and government intent and policy with respect to the property, which may be evidenced by its historic and traditional treatment, see, e.g., Int'l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680681 (1992). None of these factors is dispositive. See United States v. Kokinda, 497 U.S. 720, 727 (1990) (plurality opinion) (physical characteristics of property not dispositive); Grace , 461 U.S. at 177 (fact that property is subject to use by general public is not dispositive); Lee v. Int'l Society for Krishna Consciousness, Inc. , 505 U.S. 830 (1992) (government policy prohibiting distribution of literature on property struck down); Cornelius, 473 U.S. at 805 (government's decision to limit access is not itself dispositive).

Traditional public fora have objective characteristics...