The Great Hall of the Jeppesen Terminal at Denver International Airport. Source: Denver Post.

Last week, a federal district judge in Colorado partially granted a motion for preliminary injunction filed by two individuals who sought to protest President Trump’s executive order banning immigration from seven predominantly Muslim countries.  The court found that the plaintiffs were likely to succeed on the merits of their claim, which was filed in connection with demonstrations held at Denver International Airport immediately following the order.

Denver regulates First Amendment activities at its airport via a municipal regulation that requires demonstrators to first obtain a permit, which must be applied for no more than 30 and no less than seven days before the proposed activity.  In addition, any signs carried by protestors may not exceed one square foot, and picketing by more than two persons on items unrelated to a labor dispute is generally prohibited throughout the airport.  The chief executive officer of the airport has the discretion under the regulation to determine where protest activity may occur.

The day after President Trump issued the highly controversial order, a group of individuals sought to protest at the Denver airport but did not file a timely permit application.  A group of approximately 200 individuals assembled in the main terminal of the airport, and engaged in signing, chanting, praying, and sign-holding.  Airport police approached the organizers of the protest, told them that they could not protest without a permit, and eventually required that the protest move outside of the terminal, to a plaza between the terminal building and the on-airport Westin Hotel.

The next day, the two plaintiffs went to the Denver airport and commenced holding up signs protesting the executive order.  They were approached by a police officer and told that they could be arrested for demonstrating without a permit.  The plaintiffs eventually left without incident.

The plaintiffs subsequently filed suit, and sought a preliminary injunction against enforcement of the airport’s regulation.

The court found that the plaintiffs had standing to challenge the municipal code provisions, and found that the plaintiffs were likely to succeed on the merits of some of their claims.  The court first held that the airport terminal was a nonpublic forum, requiring the airport to regulate only in a reasonable, viewpoint-neutral manner.  The court rejected the plaintiffs’ argument that the permit requirement and the seven-day waiting period for a permit were unreasonable, but found that the regulation was unreasonable because it lacked a provision for issuance of a permit quickly in exigent circumstances, and also gave airport staff too much discretion in determining the appropriate location in which First Amendment expressive activity may take place.  The court also found the prohibition on picketing in the terminal and the one-square-foot sign limitations to be unreasonable.

Additionally, the court found that the airport’s regulation was viewpoint neutral, and was not overbroad or vague.  The court further held that the plaintiffs would suffer irreparable harm if the preliminary injunction did not issue, that the injury to the plaintiffs outweighed the injury to the airport due to the issuance of the preliminary injunction, and that the preliminary injunction served the public interest.

McDonnell v. City and County of Denver, No. 17-CV-0332-WJM-MJW, 2017 WL 698802 (D. Colo. Feb. 22, 2017).