Wells v. City & Cnty. of Denver, 00-1040

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtPAUL KELLY, Jr.; BRISCOE
Citation257 F.3d 1132
Parties(10th Cir. 2001) JULIE N. WELLS; FREEDOM FROM RELIGION FOUNDATION, INC.; THE COLORADO CHAPTER OF THE FREEDOM FROM RELIGION FOUNDATION, INC., Plaintiff - Appellant, v. CITY AND COUNTY OF DENVER; DEPARTMENT OF GENERAL SERVICES OF THE CITY AND COUNTY OF DENVER; WELLINGTON WEBB, Mayor of the City and County of Denver; THOMAS J. MIGAKI, Manager of the Department of General Services, City and County of Denver; JOHN HALL, Director of the Division of Public Office Buildings, Defendants - Appellees
Docket NumberNo. 00-1040,00-1040
Decision Date02 July 2001

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257 F.3d 1132 (10th Cir. 2001)
JULIE N. WELLS; FREEDOM FROM RELIGION FOUNDATION, INC.; THE COLORADO CHAPTER OF THE FREEDOM FROM RELIGION FOUNDATION, INC., Plaintiff - Appellant,
v.
CITY AND COUNTY OF DENVER; DEPARTMENT OF GENERAL SERVICES OF THE CITY AND COUNTY OF DENVER; WELLINGTON WEBB, Mayor of the City and County of Denver; THOMAS J. MIGAKI, Manager of the Department of General Services, City and County of Denver; JOHN HALL, Director of the Division of Public Office Buildings, Defendants - Appellees.
No. 00-1040
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 2, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 99-Z-2373)

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Robert R. Tiernan, Denver, Colorado, forPlaintiffs - Appellants.

Stanley M. Sharoff, Assistant City Attorney (J. Wallace Wortham, Jr., City Attorney, with him on the brief), Denver, Colorado, for Defendants - Appellees.

Before KELLY,BRISCOE, Circuit Judges, and MURGUIA,* District Judge.

PAUL KELLY, Jr., Circuit Judge.

Plaintiffs Julie Wells and the National and Colorado Chapters of the Freedom From Religion Foundation ("FFRF") appeal from the district court's order denying their motion for preliminary injunctive relief. Pursuant to a stipulation by the parties, the court advanced and consolidated trial on the merits with the hearing on Plaintiffs' motion, and entered a final judgment in favor of Defendants. Our jurisdiction arises under 28 U.S.C. 1291, and we affirm.

Background

Every year, the City and County of Denver ("the City") erects a holiday display

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on the steps leading up to the east entrance of the City and County Building ("the East Steps"). The East Steps "are the primary entrance to the City and County Building, . . . the primary access . . . into the second floor rotunda area of the building." Aplt. App. at 85. The 1999 display included a creche, tin soldiers, Christmas trees, snowmen, reindeer and other animals, an array of lights, and a shed containing Santa Claus and his elves. See Addendum, infra at 1153. The display also contained a large sign with the message "Happy Holidays from the Keep the Lights Foundation and the sponsors that help maintain the lights at the City and County Building," situated to the far right of the display ("Happy Holidays sign"). Id.; Aplt. Add. at 1-3 (Pl. Ex. 1-5).1 The Happy Holidays sign, which was built by the City's carpentry shop using public funds, listed six corporate sponsors. Aplt. App. at 86-87. The sponsors' contributions to the non-profit Keep the Lights Foundation were used to reimburse the City for part of the cost of the display. Id. at 88, 102. The display was surrounded by a fence and monitored by motion detectors and security cameras. Id. at 69-70, 88, 102-03. The fenced-off area occupied more than two-thirds of the East Steps' total square footage, leaving open a broad central corridor to allow public access to and from the building. See Addendum, infra at 1154.

On November 12, 1999, the plaintiffs wrote a letter to Defendant John Hall, the Director of Public Office Buildings for the City and County of Denver, requesting permission to place a sign "inside this year's Christmas display area" and quoting the text of the proposed sign ("Winter Solstice sign") as follows:

At this season of

THE WINTER SOLSTICE

may reason prevail.

There are no gods,

no devils, no angels,

no heaven or hell.

There is only

our natural world.

THE "CHRIST CHILD" IS

A RELIGIOUS MYTH.

THE CITY OF DENVER SHOULD

NOT PROMOTE RELIGION.

"I believe in an America

where the separation of church and state

is absolute."

John F. Kennedy--1960 Presidential

campaign.

PRESENTED BY THE FREEDOM
FROM RELIGION
FOUNDATION

Aplt. Add. at 9 (Pl. Ex. 11).2 On November 28, 1999, having received no response from Denver, Ms. Wells placed the Winter Solstice sign "on the steps of the City and County Building inside the area fenced off for the City's display." Aplt. Br. at 5. Written on the back of the sign was the

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Eighth Commandment: "Thou shalt not steal." Aplt. App. at 58. Denver removed the sign the following morning.

Plaintiffs filed this action on December 13, 1999, seeking a preliminary injunction to compel the City "to allow the Plaintiffs to exhibit their winter solstice display on the steps of Denver's City and County Building within the fenced-off area where Defendants' Christmas holiday display is exhibited for as long as the latter display is on exhibit." Id. at 16. At the hearing on that motion, held December 23, 1999, it became clear that Plaintiffs' action included a challenge to the City's policy against unattended displays on the East Steps. Id. at 49; see also id. at 22 (Compl. at 9-10). At the close of the hearing, during which both parties had presented testimony and arguments, the court denied Plaintiffs' motion. Id. at 132-42 (oral ruling). Upon the parties' stipulation that the court's oral ruling "be entered as the final order and judgment," id. at 39, the court advanced and consolidated the trial on the merits with the hearing for preliminary relief, entered a final judgment in favor of the defendants, and dismissed the action with prejudice. Id. at 41-42.

On appeal, Ms. Wells and the FFRF claim that the district court erred in failing to require Denver to justify (1) the exclusion of the Winter Solstice sign from the City's fenced-off holiday display, or (2) the ban on private unattended displays on the East Steps. They contend that both restrictions violate their free speech rights under the First Amendment. One of the plaintiffs' objections to Denver's unattended display ban is their claim that the policy, by virtue of being unwritten, vests unbridled discretion in city officials. Aplt. Br. at 12-14, 17. They also claim that both restrictions are selectively enforced, and that the district court erroneously denied them the opportunity to develop a factual record on those claims. Id. at 14-19. In addition to their free speech challenges, the plaintiffs assert violations of their rights under the Free Exercise, Establishment, and Equal Protection Clauses.3

Discussion

I. Do the Plaintiffs' Free Speech Rights Allow Them to Compel Denver to Include the Winter Solstice Sign in the Fenced-Off Holiday Display?

The Supreme Court has articulated a three-step framework to be used when analyzing restrictions on private speech on government property. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). First, the court must determine whether the speech at issue is protected by the First Amendment. Id. at 797. If so, the court must then "identify the nature of the forum, because the extent to which the Government may limit access depends on whether

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the forum is public or nonpublic." Id. Third, the court "must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard," e.g., whether a content-based restriction can survive strict scrutiny, whether a content-neutral restriction is a valid regulation of the time, place, or manner of speech, or whether a restriction in a nonpublic forum is reasonable. Id. When the government is the speaker, however, "different principles" apply. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 834 (1995).

When the government speaks, either directly or through private intermediaries, it is constitutionally entitled to make "content-based choices," id. at 833, and to engage in "viewpoint-based funding decisions," Legal Serv. Corp. v. Velazquez, 121 S. Ct. 1043, 1048 (2001). Thus, our analysis of restrictions that arise in the context of government speech is "altogether different" than the analysis set forth in Cornelius. Bd. of Regents of Univ. of Wisc. Sys. v. Southworth, 529 U.S. 217, 235 (2000); see also id. ("The Court has not held, or suggested, that when the government speaks the rules we have discussed [regarding public fora and viewpoint neutrality] come into play."); Latino Officers Ass'n, New York, Inc. v. City of New York, 196 F.3d 458, 468 (2d Cir. 1999) (noting in dicta that "the government may regulate its own expression in ways that would be unconstitutional were a private party the speaker"), cert. denied, 528 U.S. 1159 (2000). Although the Supreme Court has applied these principles in only one case, Rust v. Sullivan, 500 U.S. 173, 192-93 (1991) (sustaining a prohibition on abortion-related advice by recipients of federal funds designated for family-planning counseling), the Court has discussed the government speech doctrine at some length in three recent cases. Velazquez, 121 S. Ct. at 1048; Southworth, 529 U.S. at 235; Rosenberger, 515 U.S. at 833. Thus, we believe that the doctrine is a viable one, and that it is appropriate to employ it in the case before us. Cf. Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1011 (9th Cir. 2000), cert. denied, 121 S. Ct. 1653 (2001); Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093-94 (8th Cir.) [hereinafter Knights of the KKK], cert. denied, 121 S. Ct. 49 (2000); Muir v. Ala. Educ. Television Comm'n, 688 F.2d 1033, 1044 (5th Cir. 1982) (en banc) (predating Rust).

Under the government speech doctrine, the exclusion of the Winter Solstice sign from the fenced-off display raises two questions. First, given that the display constitutes speech, who is the speaker? Second, if the speaker is the City of Denver, to what extent may it control the contents of the display?

A. Whose Speech Is It?

Denver owns each component part of the display. Aplt. App. at 89. The City maintains and replaces those parts when necessary, it erects the fence that surrounds the display, and it provides video cameras, motion detectors, and a security guard to protect the display. Id. at 69-70, 88-89, 102-03. In...

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