Last week, a federal appeals court upheld an order granting summary judgment to the City of Lincoln, Nebraska in a case involving a prohibition on leafleting activity outside of the city’s basketball arena. In the decision, the court determined that the plaza outside of the arena was a nonpublic forum, and that the city’s regulation met the basic requirement of reasonableness for regulations of speech in a nonpublic forum.
In 2010, Lincoln and the University of Nebraska created a joint agency to redevelop a portion of the city and to construct a new athletic arena for the university’s sports teams. In connection with the redevelopment, new pedestrian areas were constructed, including a plaza immediately outside of the arena. The city entered into a private management agreement allowing a concessionaire to manage and operate the arena and surrounding property. After the arena opened in 2013, the concessionaire, SMG, adopted a policy establishing the plaza outside of the arena as a nonpublic forum, and specifically reserved use of the plaza for tenants of the arena. Other pedestrian areas outside of the plaza were designated for public uses.
Larry Ball, a city resident, wished to distribute Christian leaflets on the plaza area during arena events. He was eventually arrested and cited for trespassing by the city’s police department. Ball then filed a First Amendment challenge against the city in 2015, seeking damages and injunctive relief. The federal district court in Nebraska granted summary judgment to the city, finding that the plaza was a nonpublic forum and that the plaza use policy was viewpoint neutral and reasonable. In the case, Ball argued that the plaza should be considered a traditional public forum because it was indistinguishable from adjacent pedestrian areas. In a traditional public forum, a government’s regulations need to be content neutral and must be narrowly tailored to a significant governmental interest.
On appeal, the Eighth Circuit agreed with the district court. The appeals court found that the plaza constituted a nonpublic forum because the plaza was physically distinguishable from the surrounding areas and it was not used in the same manner as surrounding pedestrian areas. The court also noted that the intent and use of the plaza were not consistent with a traditional public forum. Because the policy was intended to allow arena tenants use of the plaza, and to avoid interference with pedestrian access to the arena, the court deemed it reasonable in light of the purposes of the forum.