In the continuing saga of the plaza of the Lindsey-Flanigan Courthouse here in Denver, last Friday, the Tenth Circuit Court of Appeals ruled that the federal district court did not abuse its discretion in granting the plaintiffs’ motion for a preliminary injunction. Specifically, the Tenth Circuit upheld the district court’s treatment of the courthouse plaza as a traditional public forum—the Second Judicial District had earlier waived its argument that the plaza was anything but a traditional public forum—and that the district court did not err in finding that the content neutral regulation of speech in the plaza was insufficiently narrowly tailored.
In an attempt to the aid the district court’s analysis of First Amendment issues on remand, the Tenth Circuit’s opinion provided some guidance to the district court in the forum analysis. Specifically, the Tenth Circuit advised that the distinction between whether the courthouse plaza is a traditional public forum or a designated public forum rests heavily on the factual circumstances of the plaza and its use. Moreover, the Tenth Circuit indicates that the distinction may be affected by the fact that the City and County of Denver, one of the defendants, is the owner of the plaza, while the other defendant, the Second Judicial District (which issued the disputed order regarding speech activities in the plaza) is simply an occupant of the property.
We will keep our readers informed as this case continues to proceed through the district court.