Warren v. Fairfax County
| Decision Date | 17 December 1997 |
| Docket Number | No. CIV. A. 97-119-A.,CIV. A. 97-119-A. |
| Citation | 988 F.Supp. 957 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Rita WARREN, Plaintiff, v. FAIRFAX COUNTY, Defendant. |
Victor M. Glasberg, Jeanne Goldberg, Victor M. Glasberg & Assoc., Cooperating Counsel for the American Civil Liberties Union Foundation of VA, Alexandria, VA, Mary
Bauer, American Civil Liberties Union Foundation of VA, Richmond, VA, for Plaintiff.
David P. Bobzien, County Atty., J. Patrick Taves, Senior Asst. Cnty. Atty., Karen L. Gibbons, Asst. Cnty. Atty., Fairfax, VA, for Defendant.
This case presents the question whether a county may constitutionally limit the use of an area designated as a public forum to county residents and employees and certain nonprofit entities.
Plaintiff Rita Warren, a devout Christian, seeks to spread the message of "love, hope, and peace" by mounting religious displays at the Fairfax County Government Center Complex ("the Complex") at certain times of the year. Specifically, she wants to erect a crèche and a cross outside the Complex during the Christmas and Easter seasons. Fairfax County has refused to allow her to utilize space at the Complex, citing local regulations that limit use of the Complex grounds to certain County-affiliated entities.
The Complex comprises three buildings, in which over 2,500 County employees work, and the 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 encloses a landscaped median area called the "Center Island." It is within this Island that plaintiff seeks to erect her displays.
The County's Procedural Memorandum # 08-05 ("the Memorandum") governs the use of all County common areas at the Complex, including the Center Island. It declares that the County's policy is to encourage public use of all common areas at the Complex. To that end, the Memorandum establishes procedures for obtaining a use permit. Significantly, the Memorandum specifically limits use of the Center Island to County residents, County employees, and County nonprofit groups.1 In addition to this use restriction, the Memorandum requires that any physical display be attended by an adult at all times.
Plaintiff cannot qualify for a permit because she is neither a County resident nor a County employee.2 Moreover, she notes that she cannot meet the County requirement that she attend her display at the Complex because she erects similar holiday-time displays at the United States Capitol, which she must also attend.3 Accordingly, the County, pursuant to the terms of the Memorandum, has declined to issue plaintiff a permit to set up her crèche and cross in the Center Island.
Plaintiff instituted this suit in response to the County's actions. Her complaint contains four counts. The first, based on the Religious Freedom and Restoration Act ("RFRA"), must be dismissed given the Supreme Court's holding last Term that RFRA is unconstitutional. See City of Boerne v. Flores, ___ U.S. ____, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The second and third counts allege that the County, in enforcing the use restriction, has violated and will continue to violate plaintiff's First Amendment rights to free speech and to petition the government. In her fourth count, plaintiff maintains that the County has violated and will continue to violate her Fourteenth Amendment equal protection rights. On the basis of these allegations and causes of action, plaintiff seeks a permanent injunction prohibiting the County from enforcing the use restriction, and has moved for summary judgment. The County has also moved for summary judgment, claiming that the use restriction is reasonable and thus constitutional in the circumstances. Because the material facts, as recited above, are not in dispute, the matter is now ripe for disposition.
Plaintiff's principal claim is that the County's use restriction violates her First Amendment right to freedom of speech because it precludes her from "speaking" on the Center Island, a public forum. Given this, analysis appropriately begins with the question whether the Center Island is a public forum and, if so, what kind of public forum it is. What follows from answers to these questions is the appropriate level of judicial scrutiny to apply to the County's use restriction.
The starting point in the analysis is the well-settled proposition 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, 2685, 69 L.Ed.2d 517 (1981). Instead, the extent to which individual citizens have the right to express themselves on government property depends on the type of property involved. In this regard, the Supreme Court
has adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum.
Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). Specifically, the Supreme Court has identified three basic types of government property: the traditional public forum, the designated public forum, and the nonpublic forum. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983).
Traditional public fora, such as streets, sidewalks, and parks, are those that "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939); see also United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706-07, 75 L.Ed.2d 736 (1983) ().4 In a traditional public forum, the government may exclude speakers only through content-neutral, time/place/manner restrictions, or through content-based restrictions that are narrowly tailored to serve a compelling state interest. See Perry, 460 U.S. at 45, 103 S.Ct. at 954-55.
Not all public fora are traditional ones. Some fora, though not streets, sidewalks, or parks, are specifically opened by the state or other public authority for expressive activity. These are termed "designated" public fora. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3448-49. Unlike a traditional public forum, the status of a designated public forum is subject to change; a public body that has designated a public forum is not required to "retain the open character of the facility, [but] as long as it does so it is bound by the same standards as apply in a traditional public forum." Perry, 460 U.S. at 46, 103 S.Ct. at 955; see also Cornelius, 473 U.S. at 800, 105 S.Ct. at 3448. And the key to whether a public authority has designated a certain area a public forum is its intent. See Cornelius, 473 U.S. at 802-03, 806, 105 S.Ct. at 3448-50, 3451.5 In ascertaining an authority's intent, the factors to be considered include (i) the authority's policy and practice regarding the area in question and (ii) "the nature of the property and its compatibility with expressive activity." Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449.
A third type of forum is the nonpublic forum, an area that the government or public authority has not opened up for indiscriminate public use. Here different rules apply. "Access to a nonpublic forum ... can be restricted as long as the restrictions are `reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view." Cornelius, 473 U.S. at 800, 105 S.Ct. at 3447-48 (quoting Perry, 460 U.S. at 46, 103 S.Ct. at 955-56). This is because "[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).
It is readily apparent that the Center Island is not, as plaintiff suggests, a traditional public forum. It is, by definition, neither a street nor a sidewalk. It is also not a park, at least in the traditional sense of that term. It is an enclosed median between the two legs of a U-shaped driveway. As such, it cannot be said that the Center Island is the type of area "immemorially ... held in trust" for the public's use. See Hague, 307 U.S. at 515, 59 S.Ct. at 964. Indeed, areas of this sort are designed more for aesthetic purposes such as plantings than for public expressive activity.
It is also readily apparent that the Center Island is not, as defendant urges, a nonpublic forum. The County's Memorandum precludes categorizing the area in this fashion.6 Instead, the summary judgment record points convincingly to the conclusion that the Center Island is, in general, a designated public forum.
First, the County's policy not only permits but encourages expressive activity on the Island. Thus, the Memorandum states that it is the County's
policy ... 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 of a nonprofit nature....
Memorandum at 2 (emphasis added). The Memorandum further states that the Center Island is the only area in the Complex where a private individual is permitted to mount a static display, such as plaintiff's crèche....
To continue reading
Request your trial
-
Warren v. Fairfax County
...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 limi......
-
Warren v. Fairfax County
...no disruption, it is a particularly apt location in which to engage in political or otherwise protected speech. Warren v. Fairfax County, 988 F.Supp. 957, 963 (E.D.Va.1997). In fact, up until November 1996, access to the Center Island was apparently open to all speakers via a licensing proc......
- Meekins v. Lakeview Loan Servicing, Civil No. 3:19cv501 (DJN)
- Johnson v. PennyMac Loan Servs.