Denver Pub. Co. v. City of Aurora

• Decision Date: 15 May 1995
• Docket Number: No. 94SA36,94SA36
• Citation: 896 P.2d 306
• Parties: , 23 Media L. Rep. 1865 The DENVER PUBLISHING COMPANY d/b/a Rocky Mountain News, Plaintiffs-Appellees/Cross-Appellants, v. The CITY OF AURORA, Colorado; Paul E. Tauer, in his official capacity as Mayor of the City of Aurora, Colorado; and James Everett, in his official capacity as Chief of Police of the City of Aurora, Colorado, Defendants-Appellants/Cross-Appellees.
• Court: Colorado Supreme Court

Page 306

896 P.2d 306

63 USLW 2725, 23 Media L. Rep. 1865

The DENVER PUBLISHING COMPANY d/b/a Rocky Mountain News Plaintiffs-Appellees/Cross-Appellants, v. The CITY OF AURORA, Colorado; Paul E. Tauer, in his official capacity as Mayor of the City of Aurora, Colorado and James Everett, in his official capacity as Chief of Police of the City of Aurora, Colorado Defendants-Appellants/Cross-Appellees.

No. 94SA36.

Supreme Court of Colorado En Banc.

May 15, 1995.

Rehearing Denied June 5, 1995.

Baker & Hostetler, James A. Clark, Todd L. Lundy, Marjorie N. Sloan, Timothy J. Goodwin, Denver, for plaintiffs-appellees.

Office of the Aurora City Atty., Charles H. Richardson, Julia A. Bannon, John E. Byron, Aurora, for defendants-appellants.

David W. Broadwell, Denver, for amicus curiae Colorado Mun. League.

Daniel E. Muse, City Atty., David E. Brase, Asst. City Atty., Denver, for amicus curiae City of Denver.

Chief Justice ROVIRA delivered the Opinion of the Court.

The question to be decided in this case is whether the district court erred in declaring unconstitutional, because it impermissibly burdened free speech, a city ordinance which proscribes direct solicitation from vehicles traveling city streets. ¹ Having considered the relationship between the ordinance and the constitutional rights implicated, we conclude that the ordinance is narrowly tailored to advance a significant governmental interest. Accordingly, we reverse and remand the cause to the district court with directions to vacate the order enjoining enforcement of the ordinance.

I

In 1993 the City of Aurora (City) adopted Ordinance 93-90 (Ordinance) to prohibit solicitation from occupants of vehicles traveling upon City streets or highways. ² The Ordinance was enacted to address safety concerns raised by the activities of street vendors. The Denver Publishing Company, doing business as the Rocky Mountain News (News), objected to the Ordinance which adversely affected the News' direct sales program where vendors located at City street corners and medians solicited single copy newspaper sales from passing motorists (the "hawker" program). The News sued the City for declaratory and injunctive relief to enjoin enforcement of the Ordinance claiming it violated the First Amendment of the United States Constitution and article II, section 10 of the Colorado Constitution. ³ After a trial, the court found the Ordinance unconstitutional, and issued an injunction prohibiting its enforcement.

The City appealed the following issues: (1) whether streets are traditional public fora while in use by motor vehicles; (2) whether the trial court erred in applying a strict scrutiny standard to a content-neutral ordinance; and (3) whether the Ordinance constituted a valid time, place and manner restriction under the First Amendment. On cross-appeal, the News raised the following questions: (1) whether the trial court erred in requiring the News to prove that the Ordinance was unconstitutional beyond a reasonable doubt; and (2) whether the trial court erred in according the Ordinance a presumption of constitutionality even though it curtailed freedom of speech. We first consider the City's issues on appeal and then turn to the News' questions on cross-appeal.

II Forum

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I. Article II, section 10 of the Colorado Constitution provides that "[n]o law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject...."

The Supreme Court has explained that the analysis of any governmentally imposed restriction of speech begins with an inquiry into the nature of the property affected by the regulation. E.g., Hague v. Committee for Ind. Org., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); see also Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983) ("The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the property at issue."). When the government owns the property to be regulated both constitutions nevertheless limit governmental restrictions on free speech. Particular care in regulation is required when the property in question is traditionally recognized as a forum associated with the dissemination of ideas. Perry, 460 U.S. at 45, 103 S.Ct. at 954-55; see also Bock v. Westminster Mall Co., 819 P.2d 55 (Colo.1991). ⁴

The public forum doctrine, first recognized in Hague is based upon the presumption that streets and parks have been "immemorially held in trust" for the purpose of assembly and the communication of ideas. Hague, 307 U.S. at 515, 59 S.Ct. at 963-64. Underlying Hague is the notion that places historically associated with First Amendment activities provide channels of communication to individuals who lack more sophisticated and expensive alternatives. Thus, while the privilege to use the public forum "may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation be abridged or denied." Hague, 307 U.S. at 516, 59 S.Ct. at 964; see also Perry, 460 U.S. at 45, 103 S.Ct. at 954-55.

In Perry, the Court refined the public forum doctrine by delineating three categories of public fora: (1) traditional public fora that have a principal purpose devoted to the free exchange of ideas; (2) designated public fora where the government dictates the communicative uses of the property; and (3) remaining public property. Perry, 460 U.S. at 45-46, 103 S.Ct. at 954-56. ⁵

Because our answer to the City's first question of whether City streets are public fora will necessarily influence the standard of review applied to the Ordinance we consider this issue first. The News claims that public streets are quintessential public fora, dedicated to the free flow of ideas. The City counters that we must consider modern streets and thoroughfares in light of their function, and if we focus on the nature of traffic, streets cannot be classified as public fora. ⁶ In Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), the Court answered a recurring question regarding the wisdom of considering modern streets traditional public fora. There, the Court explained that "[n]o particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora." Frisby, 487 U.S. at 481, 108 S.Ct. at 2500. Based on this precedent, we find that City streets are traditional public fora.

Our determination that City streets are public fora does not diminish the City's traffic concerns. Instead, the function and nature of modern streets elevates the government's interest in regulating the fora. That is, the dangers associated with car travel increase the government's interest in controlling the interaction between cars and pedestrians. Cf. International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, ----, 112 S.Ct. 2711, 2712, 120 L.Ed.2d 541 (1992) ("Consideration of the forum's special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic and function of the particular forum involved.") (quoting United States v. Kokinda, 497 U.S. 720, 732, 110 S.Ct. 3115, 3122, 111 L.Ed.2d 571 (1990)); see also Frisby, 487 U.S. at 481, 108 S.Ct. at 2500-01. (explaining the residential character of the street "may well inform the application of the relevant test, but it does not lead to a different test").

As explained above, the nature of the forum alone is not decisive of the constitutional question, but rather provides a backdrop for additional First Amendment analysis. We therefore move on to examine the Ordinance and its effect on speech.

III Standard of Constitutional Review

At the outset the parties have agreed that the Ordinance is content-neutral, and thus, while it falls under the auspices of heightened public fora review, the proper inquiry is whether the Ordinance is a valid time, place or manner regulation. Though the News acknowledged Colorado's elevated deference for First Amendment issues, it did not argue that a different test should apply under the State Constitution. ⁷ The parties' conclusion properly reflects the fact that after identification of the proper forum, the constitutionality of any proscription on speech will depend on the content and character of the restriction. Not every interference with speech triggers the same degree of scrutiny under the First Amendment. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see also Turner Broadcasting Sys., Inc. v. Federal Communication Comm'n, 512 U.S. 622, ----, 114 S.Ct. 2445, 2456, 129 L.Ed.2d 497 (1994) (plurality opinion). The appropriate level of scrutiny is determined by whether the restriction on speech poses an inherent danger to free communication of ideas. Turner, 512 U.S. at ----, 114 S.Ct. at 2469. This framework for review based on the content of the proscription was first outlined in Perry where the Court delineated two levels of "heightened scrutiny":

For the State to enforce a content-based exclusion [in a public forum] it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. (citations omitted). The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. (citations...