Lewis v. Colorado Rockies Baseball Club, Ltd.

• Decision Date: 30 June 1997
• Docket Number: No. 96SA381,96SA381
• Citation: 941 P.2d 266
• Parties: 21 Colorado Journal 915 Robert F. LEWIS and the Game Program, a Colorado limited liability company; and bert Matthews and the Homestand Flyer, a Colorado limited liability company, Plaintiffs-Appellees, v. COLORADO ROCKIES BASEBALL CLUB, LTD., Defendant-Appellant.
• Court: Colorado Supreme Court

Page 266

941 P.2d 266

21 Colorado Journal 915

Robert F. LEWIS and the Game Program, a Colorado limited

liability company; and bert Matthews and the

Homestand Flyer, a Colorado limited

liability company, Plaintiffs-Appellees, v. COLORADO ROCKIES BASEBALL CLUB, LTD., Defendant-Appellant.

No. 96SA381

Supreme Court of Colorado,

En Banc.

June 30, 1997.

Holland & Hart, LLP, A. Bruce Jones, Alan N. Stern, Denver, for Plaintiffs-Appellees.

Faegre & Benson, LLP, Thomas B. Kelley, Catherine A. Lemon, Steven D. Zansberg, Denver, for Defendant-Appellant.

Daniel E. Muse, City Attorney, James C. Thomas, Assistant City Attorney, Vincent A. DiCroce, Assistant City Attorney, Denver, for Amicus Curiae the City and County of Denver.

Justice MULLARKEY delivered the Opinion of the Court.

The Colorado Rockies Baseball Club, Ltd. (Rockies) appeal a judgment by the Denver District Court finding that certain areas around Coors Field baseball stadium are public forum property for free speech purposes and that the Rockies' policies preventing the sale and distribution of any materials in those areas were not reasonable time, place, and manner restrictions. The district court granted an injunction against the Rockies precluding it from restricting vendors in those areas. We agree that the disputed areas around Coors Field are public forum property and hold that the policies enforced by the Rockies in these areas were not reasonable time, place, and manner restrictions under the First Amendment to the United States Constitution. Accordingly, the judgment of the district court is affirmed.

I.

Robert Lewis and Bert Matthews (Publishers) publish and distribute "alternative" baseball programs and scorecards outside Coors Field during Colorado Rockies' baseball games. The Rockies lease Coors Field and its surrounding walkways and sidewalks from the Denver Metropolitan Major League Baseball Stadium District (Stadium District), a public entity. ¹ Coors Field is a newly constructed baseball stadium that opened for the 1995 baseball season. The Rockies have a long term concession agreement with ARA Leisure Services, Inc. (ARAMARK) which grants ARAMARK exclusive concession rights on the leased premises both inside and outside the stadium. Thus, the Rockies prohibit the sale or distribution of any materials by other vendors in these areas.

During the 1995 baseball season, the Publishers and their vendors were harassed and ticketed for trespass while attempting to distribute programs in certain areas around Coors Field. The specific areas in dispute are the North Walkway, the Wynkoop Walkway, and the walkway between gates D and E. ² The North Walkway runs perpendicular from the northeast side of the stadium into and through a paid parking lot, is physically separated from the closest city street by a concrete retaining wall, and is connected by a stairway to the public sidewalk on 22nd Street. See Appendix, diagram 1. The Wynkoop Walkway runs perpendicular from the southeast side of the stadium from gate E to 19th Street. The disputed portion of the Wynkoop Walkway includes the pedestrian footbridge that runs over 20th Street to gate E. See Appendix, diagram 2. The third disputed area is the walkway between gate D and gate E from the corner of Blake and 20th Streets along the third base side of Coors Field. See Appendix, diagram 3.

According to the Publishers, the Rockies' policies preventing the distribution of alternative baseball programs or other materials in the disputed areas are unconstitutional because all of the exterior sidewalks and walkways surrounding Coors Field that are accessible to the public are public forum property for free speech purposes. One of the Publishers, Robert Lewis, brought suit against the Rockies and the Stadium District seeking a preliminary and permanent injunction barring the Rockies and the Stadium District from infringing on his constitutional rights to engage in expressive activities outside of Coors Field. ³ After a one-day evidentiary hearing, Robert Lewis's motion for a preliminary injunction was denied by the district court on the grounds that the disputed area was not a public forum.

Subsequently, Bert Matthews filed suit, and the Publishers' combined cases went to trial on the merits just prior to the beginning of the 1996 baseball season. Before trial, the Stadium District agreed to be bound by the district court's decision and was dismissed from the case. After a three-day trial, the The district court next found that the Rockies' policies restricting free speech were content-neutral and therefore subject to intermediate scrutiny. Under that standard, the court considered whether the restrictions on free speech were narrowly tailored to serve a significant governmental interest and whether they left open ample alternate channels of communication. The district court accepted that almost all of the interests presented by the Rockies--i.e., premises liability, crowd control, safety, pedestrian movement--were significant. However, the court determined that the restrictions that were placed on the disputed areas were not narrowly tailored because other, more busy areas of Coors Field with greater congestion and crowd control problems had no restrictions. ⁴ The court also concluded that, above all, the Rockies were interested in restricting vending to maximize revenue. The court found that while maximizing revenue is a legitimate goal, "it is not an appropriate goal in the free speech arena."

                district court ruled in favor of the plaintiffs.  According to the district court, "Coors Field and its environs are fully integrated into the downtown area from an architectural standpoint, from a landscape architect standpoint, and from any other conceivable standpoint."   The district court also found that "the surface materials of the buildings and walks, the fences, barriers, street lights, the benches, plantings, the trash bins, etc. are all deliberately integrated to create a sense of public space."   Therefore, noting that "[s]idewalks and walkways have traditionally been public," the district court concluded that the disputed areas at Coors Field were public forum property
                

The district court also concluded that the restrictions at issue did not provide ample alternative avenues for communication. The Rockies argued that because much of the area around Coors Field is unrestricted, ⁵ the Publishers were provided with sufficient communicative outlets within which to distribute their programs. The district court, however, focused on the opportunity for alternative communication at each specific gate location and determined that "there is no ample or adequate alternative avenue for communication at gate A under the Rockies' restrictions." Based on its conclusion that the restrictions were not narrowly tailored and did not provide adequate alternatives for communication, the district court ruled that the Rockies should be enjoined from preventing the Publishers from selling or distributing their game programs in any of the gate areas subject to the institution of appropriate time, place, and manner restrictions.

II.

Before considering the substantive issues this case presents, we must address a preliminary dispute concerning the appropriate standard for reviewing the district court's factual findings. The Publishers argue that we should apply the "clearly erroneous" standard, while the Rockies contend that a de novo standard is appropriate. According to the Publishers, the underlying rationale for independent appellate review in First Amendment cases is to protect the right to free speech, and not to give the state a second opportunity to justify its restriction of free speech. See Bose Corp. v. Consumers Union, 466 U.S. 485, 510-11, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984) ("[J]udges ... must exercise such review in order to preserve the precious liberties established and ordained by the constitution."). Therefore, the Publishers argue that a de novo standard of review should only be applied in cases where a lower court permits a restriction on free speech.

In Bose, the Supreme Court stated that it has "repeatedly held that an appellate court has an obligation to 'make an independent We have not specifically addressed when it is proper to apply a de novo standard of review in First Amendment cases. However, we effectively applied a de novo standard of review in Denver Publishing Co. v. City of Aurora, 896 P.2d 306 (Colo.1995), where we reversed a lower court order finding an ordinance unconstitutional as a restriction on free speech. Id. at 309. Consistent with the views of the Tenth and Eleventh Circuits, we find that de novo review is appropriate when determining the First Amendment status of government property because "the public forum issue is ... central to determining whether speech on [government property] can constitutionally be regulated." Brown, 915 F.2d at 1441. Moreover, the public forum determination is a mixed question of law and fact which demands an independent review of the record. See Brown, 915 F.2d at 1441. In this case, the physical facts are not disputed although the legal conclusions to be drawn from those facts are very much contested. Accordingly, we utilize an independent review of the record in reaching our conclusions in this case.

examination on the whole record' in order to make sure 'that the judgment does not constitute a forbidden intrusion on the field of free expression.' " Bose, 466 U.S. at 499, 104 S.Ct. at 1958 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964)). However, the federal courts of appeals have split as to whether the de novo standard is applicable in cases where the government appeals a district court's judgment declaring a restriction on free speech unconstitutional. ⁶

III.

The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging...