Warren v. Fairfax County
| Decision Date | 19 February 1999 |
| Docket Number | No. 98-1059,98-1059 |
| Parties | Rita WARREN, Plaintiff-Appellant, v. FAIRFAX COUNTY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
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; Mary Bauer, American Civil Liberties Union Foundation of Virginia, Richmond, Virginia, for Appellant. David P. Bobzien, County Attorney, Karen L. Gibbons, Assistant County Attorney, Fairfax, Virginia, for Appellee.
Before MURNAGHAN and WILLIAMS, Circuit Judges, and BULLOCK, Chief United States District Judge for the Middle District of North Carolina, sitting by designation.
Affirmed by published opinion. Chief Judge BULLOCK wrote the majority opinion, in which Judge WILLIAMS joined. Judge MURNAGHAN wrote a dissenting opinion.
Appellant, Rita Warren (Warren), seeks to mount religious displays in a landscaped median located in front of the Fairfax County Government Center Complex (the Complex). Appellee, Fairfax County (the County), has adopted a regulation which designates the Complex, including the landscaped median, for use by County citizens, employees, and certain nonprofit organizations. The County has refused to issue Warren a permit to erect her displays because she is not within the class of speakers identified in the County's regulation. The issue before this court is whether the County's regulation violates Warren's rights under the First and Fourteenth Amendments. Finding that the County's regulation is viewpoint neutral and reasonable, we affirm.
Warren, who is a devout Christian but is not a member of an organized religion, seeks to spread a message of love, hope, and peace by mounting religious displays at the Complex at certain times of the year. Specifically, she wants to erect a creche and a cross outside the Complex during the Christmas and Easter seasons. Warren is not a resident of Fairfax County, but is a resident of Fairfax City. 1
The Complex comprises three buildings in which over 2,500 County employees work, and adjacent grounds. The largest of the buildings is the Government Center building, which is the site of county government offices. A horseshoe-shaped driveway runs in front of the Government Center building. This driveway includes a landscaped median area known as the "Center Island." Warren seeks to erect her displays in this Center Island.
The County's Procedural Memorandum # 08-05 (the Memorandum) governs the use of all County common areas at the Complex, including the Center Island. The Memorandum declares that the County's policy is to encourage "use of the common areas of the Government Center Complex by Fairfax County nonprofit organizations and individual citizens of Fairfax County for civic, cultural, educational, religious, recreational, and similar activities." J.A. at 56. To that end, the Memorandum establishes procedures for obtaining a use permit. Significantly, the Memorandum specifically identifies the following groups as being allowed to use the Complex, including the Center Island: County residents, County employees, and County nonprofit groups. Based on this provision, the County has declined to issue Warren a permit to display her creche and cross in the Center Island area.
Warren instituted this suit in response to the County's actions. Warren alleged the County, in enforcing the use provision, has violated and will continue to violate her First Amendment rights to free speech and to petition the government. Warren also maintained that the County has violated and will continue to violate her Fourteenth Amendment equal protection rights. 2 Warren sought a permanent injunction prohibiting the County from enforcing the use provision.
On cross-motions for summary judgment, the district court granted summary judgment in favor of the County. The district court, applying the standard of constitutional scrutiny applicable to nonpublic fora under established Supreme Court precedents, first found the use provision did not violate Warren's First Amendment rights. The district court then found that, because the use provision did not violate the First Amendment, Warren's Fourteenth Amendment claim also failed.
On appeal, Warren argues that the district court improperly analyzed the County's use provision under the more lenient nonpublic-forum standard, as opposed to the more strict, traditional public-forum standard. Warren further argues that the use provision violates the First Amendment under the traditional public-forum standard and that the district court therefore erred in dismissing her claims under the First and Fourteenth Amendments.
The standard of review in this case is de novo. Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.1995).
It is well settled that "the First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981). Rather, an individual's right to express herself on government property depends upon the type of property involved. In this regard, the Supreme Court has " 'identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum.' " Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875 (1998) (quoting Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). "Traditional public fora are defined by the objective characteristics of the property, such as whether, 'by long tradition or by government fiat,' the property has been 'devoted to assembly and debate.' " Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). Traditional public fora include areas such as streets, sidewalks, and parks, areas which have been used historically as locations for free expression. See United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Use of traditional public fora may be regulated only by content-neutral time, manner, and place restrictions, or by content-based restrictions which are tailored narrowly to serve a compelling government interest. Perry, 460 U.S. at 45, 103 S.Ct. 948.
Designated public fora are areas which the government has purposefully opened to the public for free expression. Arkansas Educ., 118 S.Ct. at 1641. Government regulations restricting speech in a designated public forum are scrutinized under the same standards as a traditional public forum. Perry, 460 U.S. at 46, 103 S.Ct. 948.
Government properties other than traditional or designated public fora are "either nonpublic fora or not fora at all." Arkansas Educ., 118 S.Ct. at 1641. "Control over access to a nonpublic forum can be based on subject matter and subject identity so long as the distinctions drawn are reasonable in light of the purposes served by the forum and are viewpoint neutral." Cornelius, 473 U.S. at 806, 105 S.Ct. 3439.
Within this tripartite framework the Supreme Court has recognized that "[a] [designated] public forum may be created for a limited purpose such as use by certain groups, e.g., Widmar v. Vincent, [454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) ] (student groups), or for the discussion of certain subjects, e.g., City of Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, [429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) ] (school board business)." Perry, 460 U.S. at 46 n. 7, 103 S.Ct. 948. Where the speaker comes within the class or purpose for which a designated public forum is made generally available, the government is bound by the same standards which apply in a traditional public forum. Arkansas Educ., 118 S.Ct. at 1641. Where, however, the speaker does not come within the class or purpose of the forum, the nonpublic forum standard applies. See Perry, 460 U.S. at 48, 103 S.Ct. 948 (); see also Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991) ().
Warren first contends that the district court erred in concluding that the Center Island was not a traditional public forum. We disagree. Initially, we note that the Supreme Court has "rejected the view that traditional public forum status extends beyond its historic confines." Arkansas Educ., 118 S.Ct. at 1641. The Center Island is not a street, sidewalk, or a park. Instead, it is a median dividing a u-shaped driveway. As the district court correctly noted, landscaped medians such as the Center Island are designed primarily for aesthetic purposes such as plantings and have not been used historically as a location for public expressive activity. As such, the Center Island is not a traditional public forum. 3
Next, Warren argues that the County, in its Memorandum, has expressly designated the Center Island as an unlimited public forum. Again, we disagree. "The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. Thus, to ascertain whether...
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