Last week, the Tenth Circuit vacated a preliminary injunction preventing Denver International Airport from enforcing much of its public protest policy.  We reported on that injunction after it issued and now return to discuss its reversal on appeal.  In short, the unanimous appellate panel concluded that the airport could reasonably require a seven-day permitting period for protests, even if that requirement quashed most spontaneous demonstrations.

Denver International Airport’s Jeppesen Terminal

A bit of background, though, before we get any further: after the Trump administration unveiled its so-called “Muslim Ban”  (more formally, but less memorably, titled Executive Order 13769) suspending nationals from several predominantly Muslim countries from entering the United States, spontaneous protests broke out in airports nationwide.  Plaintiffs in this case joined in those protests at DIA, where officers threatened them with arrest for demonstrating without a permit.  Plaintiffs filed suit alleging constitutional infirmities with DIA’s protest-permitting policy, chief among them that its seven-day waiting period for permits all but prohibited spontaneous demonstrations. The suit also challenged regulations on picketing and protest sign size. The district court concluded plaintiffs were likely to succeed on the merits of their claims and issued a preliminary injunction, prompting this appeal from the city.

On appeal, the Tenth Circuit reversed, concluding the district court had misapprehended the standard used to judge regulations on speech in nonpublic forums. The district court and the Tenth Circuit agreed that DIA is unquestionably a nonpublic forum but parted ways in determining whether nonpublic forum permitting schemes required exceptions for exigent circumstances.  (Courts have long recognized that the functions to be performed on certain types of government properties, including offices, prisons, and airports, would be impeded if theose properties were treated as open forums for First Amendment activities.)  Believing it lacked guiding nonpublic forum case law, the district court considered traditional public forum precedent—that suited to demonstrations on public sidewalks and in public parks—and concluded the Constitution required DIA to allow faster permitting for protests concerning current events.

The Tenth Circuit described that reliance on public forum case law as misplaced and instead asked a more deferential question: whether the permitting policy was reasonable in light of the forum’s purpose.  Reviewing the record, the panel saw no reason to believe the airport could speed up its permitting process without sacrificing its ability to carry out other important functions (Arranging for added police presence at that relatively remote airport requires considerable time, for instance). The court also vacated the injunction as it related to the picketing and sign-size restrictions but did so for lack of sufficient factual findings below.