Over the past couple of years, we’ve reported on a case involving pamphleteering activities on the plaza that lies outside of the Lindsey-Flanigan Courthouse here in our home city of Denver, Colorado. Things have gotten interesting again, as the Tenth Circuit last month reversed a decision of the federal district court finding the City and County of Denver in contempt following its decision to arrest an individual for distributing literature on the plaza.
We’ll first bring our readers back up to speed. This case involved the question of whether a group could lawfully distribute literature about jury nullification on the plaza. The Second Judicial District, a state court, prohibited demonstrations and literature distribution on the plaza. The plaza area is owned by Denver, and the state court is a tenant on the property. Denver Police arrested a member of the pamphleteering group, which resulted in a First Amendment claim against the city and the state court. Denver stipulated that the plaza was a public forum, and further stipulated that it would not enforce the prohibitions on literature distribution, but the Second Judicial District disagreed with Denver’s position. The federal court then entered a preliminary injunction against the Second Judicial District, and dismissed Denver from the case. A prior Tenth Circuit order upheld the preliminary injunction. On a motion for permanent injunction, the court agreed with the Second Judicial District and found that the plaza was not a traditional public forum.
Subsequently, Denver changed its position regarding the plaza. Under the view that the plaza was a “designated public forum”—that is, an area broadly open for speech activities that has been so designated by the government—Denver then “de-designated” the plaza, and its police officers arrested a pamphleteer in the plaza. Although Denver was not a party to the lawsuit, the district court found Denver in contempt for violating the preliminary injunction.
On appeal, the Tenth Circuit reversed. Our First Amendment focused-blog won’t delve into the particulars of the contempt issue, or the Tenth Circuit’s jurisdiction to hear it, so we focus on the public forum issues at play in the order. The Tenth Circuit observed that, since Denver prospectively reversed its position with respect to the status of the plaza, it need not be bound by its prior stipulation that the plaza had been designated for speech activity. Moreover, the Tenth Circuit found that, because the district court had dissolved the preliminary injunction with a contrary ruling on a motion for a permanent injunction, the district court could not find Denver in contempt of the preliminary injunction.
Thus, it appears that the Lindsey-Flanagan Courthouse will have fewer pamphleteers from now on.
Verlo v. City and Cnty. of Denver, ___ Fed. Appx. ___, 2018 WL 3301443 (10th Cir. Jul. 5, 2018)