Verlo v. Martinez (262 F. Supp. 3d 1113, 2017)

United States District Court for the District of Colorado 2017-07-27

Citations

Full opinion text

FINAL FINDINGS OF FACT & CONCLUSIONS OF LAW .

William J. Martinez, United States District Judge

Plaintiffs Eric Verio, Janet Matzen, and the Fully Informed Jury Association (“FIJA”) (collectively, “Plaintiffs”) bring this lawsuit to establish that they have a First Amendment right to distribute and discuss literature regarding jury nullification on the exterior grounds of Denver’s Lindsey-Flanigan Courthouse (“Courthouse”). (ECF Nos. 1, 13-1.) The Courthouse is where naost criminal proceedings take place for Colorado’s Second Judicial District (which is coterminous with the City and County of Denver). .

The only remaining defendant in this case is the Hon. Michael A. Martinez in his official capacity as Chief Judge of the Second Judicial District. Out of recognition that Plaintiffs’ lawsuit does not target Chief Judge Martinez himself but rather a policy promulgated by the Second Judicial District through Chief Judge Martinez, the Court will refer below to Chief Judge Martinez as “the Second Judicial District,” unless the context requires otherwise.

This Court previously granted a preliminary injunction requiring the Second Judicial • District to refrain from interfering with Plaintiffs’ peaceful distribution of then- jury nullification pamphlets, or with advocacy of the message. .contained in those pamphlets (“Preliminary Injunction”). (ECF No. 28.) This case then proceeded through discovery, and the Court held a Bench Trial on April 17 & 18, 2017, to determine whether to convert the Preliminary Injunction into a permanent injunction.

Under Federal Rule of Civil Procedure 52(a)(1), this Court is required to announce the result of the bench trial through written findings of fact and conclusions of law. This order provides those findings and conclusions. For the reasons explained below, the Court finds that the Preliminary Injunction should be dissolved, and that judgment should enter in favor of the Second Judicial District.

I. PUBLIC FORUM ANALYSIS, GENERALLY

Understanding everything below turns on understanding the Supreme Court’s doctrine of First Amendment “forum analysis,” which is a -set of inquiries , intended to resolve the extent to which the government can limit expressive activities on pub-lie property. Much more will be said below about forum analysis, but at the outset it is helpful to understand the basic questions. Those questions are as follows:

1. Is the expression at issue protected by the First Amendment? If so—

2. Is the location at issue a “traditional public forum,” a “designated public forum,” or a “nonpublic forum”?

3. If the location is a traditional or designated public forum, is the government’s speech restriction narrowly tailored to meet a compelling state interest?

4. If the location is a nonpublic forum, is the government’s speech restriction reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797-806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).

II. STANDING

The Court must first address Plaintiffs’ standing to pursue this lawsuit, which goes to this Court’s subject matter jurisdiction. See Strich v. United States, 793 F.Supp.2d 1238, 1246 n.1 (D. Colo. 2011) (“The Court has an independent and continuing duty to determine whether subject matter jurisdiction exists.”). Framing the standing question requires a relatively lengthy account of how this case began and how it has transformed since then.

A. Early Proceedings & the Preliminary Injunction

Plaintiffs’ original complaint was filed against the City and County of Denver and its police chief in his official capacity (together, “Denver”). (ECF No. 1.) The complaint was motivated by the pending prosecution of two activists, Eric Brandt and Mark Iannicelli, whom the State of Colorado had accused of jury tampering by handing out jury nullification literature in front of the Courthouse. (Id. ¶¶ 14-19.) Plaintiffs wished to engage in similar jury nullification advocacy in front of the Courthouse, but feared prosecution, given Brandt’s and Iannicelli’s experience. (Id. ¶¶ 20-22.) On the same day they filed their complaint, Plaintiffs also moved for a preliminary injunction. (ECF No. 2.)

Two days later, Plaintiffs amended their complaint (“Amended Complaint”) to add the Second Judicial District as a defendant and to set forth allegations regarding a Second Judicial District administrative order recently posted on the Courthouse doors. (ECF No. 13-1 ¶2.) The order, designated “CJO 15-01” and dated August 14, 2015, was titled “Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse.” (ECF No. 24-1.) This order was amended on August 21, 2015, hours before the preliminary injunction hearing in this Court, and was admitted as an exhibit in the preliminary injunction hearing. (See ECF No. 25-1.) The same document was admitted as Defendant’s Exhibit A in the April 2017 bench trial whose outcome is currently under consideration, and the Court will refer to it as the “Plaza Order.” As discussed in detail below, the Plaza Order prohibits most expressive activities in a specified geographic area leading up to the Courthouse’s two public entrances (the “Restricted Area”). Plaintiffs, in their Amended Complaint, alleged their belief that the Plaza Order was entered in response to Brandt’s and Iannicelli’s actions. (ECF No. 13-1 ¶ 2.)

One day before the preliminary injunction hearing, Plaintiffs and Denver submitted a joint stipulation (“Stipulation”) that the Courthouse Plaza (comprising the Restricted Area and certain additional surroundings) “is a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” (ECF No. 23 ¶ 1.) Plaintiffs and Denver further stipulated “that Plaintiffs’ proposed intent of peacefully handing out jury nullification literature to or discussing jury nullification with passersby at the Plaza, without more, does not violate Colorado law.” (Id. ¶ 2.) And finally, as relevant here, Denver stipulated that “that it does not intend to enforce the [Second Judicial District’s Plaza Order] as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza; and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.” (Id. ¶ 4.) In other words, Denver had essentially taken sides with Plaintiffs against the Second Judicial District on this matter.

Determined to make lemonade out of this lemon, the Second Judicial District then contended that Plaintiffs lacked Article III standing to sue because no threat of enforcement was imminent. (ECF No. 24 at 6-8.) See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“the irreducible constitutional minimum of standing” includes, among other things, an “actual or imminent” “invasion of a legally protected interest”); Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (to obtain prospective relief, a plaintiff must show a “credible threat of future prosecution”).

In its order following the preliminary injunction hearing, this Court rejected the standing argument, finding that there still remained a possibility that the Second Judicial District itself could attempt to enforce the Plaza Order:

The Second Judicial District’s standing argument assumes' that the only way an individual could run afoul of the Plaza Order is through Denver’s independent enforcement efforts. But Chief Judge Martinez, and perhaps any other judge in the Second Judicial District, could issue a contempt citation for violating the Plaza Order. Cf. Schmidter v. State, 103 So.3d 263, 265-69 (Fla. Dist. Ct. App. 2012) (distributor of FIJA literature convicted of contempt for violating an administrate order similar to the Plaza Order). The violator would then be required to appear before the issuing judge, and if he or she fails to appear, an arrest warrant can issue. See Colo. R. Civ. P. 107(c). Denver may then be obligated to'arrest the violator — nót ón the authority of the Plaza Order, but on the authority of the judge’s contempt citation. See' id. (requiring the sheriff to carry out the arrest). The Court takes judicial notice of the fact that Colorado state law enforcement officers, not subject to Denver’s stipulation, could also effect the arrest of such a hypothetical violator.

Thus, the Court finds that Article III standing still exists.....

Verlo v. City & Cnty. of Denver, 124 F.Supp.3d 1083, 1090 (D. Colo. 2015)(“Verlo I”).

The Court then went on to the question of “whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza.” Id. at 1093. This was important because, as noted above (Part I), the degree of scrutiny to which this Court must subject First Amendment restrictions turns on whether public property is, on the one hand, a traditional or designated public forum (requiring strict scrutiny), or, on the other hand, a nonpublic forum (requiring a less-strict reasonableness evaluation).

The Court found that Plaintiffs were likely to succeed in proving that Denver controls the First Amendment status of the Courthouse -Plaza; and in turn likely to succeed in proving, based on the Stipulation, that the Courthouse Plaza was “at least a designated public forum,” making any First Amendment restrictions subject to strict scrutiny. Id. at 1092-93. Moreover, the Second Judicial District had not argued for application of the reasonableness test applicable to nonpublic fora, instead resting on the position that the Plaza Order could survive strict scrutiny regardless of the Courthouse Plaza’s proper forum designation. See id. at 1093 (citing ECF No. 24 at 9). The Court therefore applied strict scrutiny and found that the portion of the Plaza Order limiting expressive activity failed that test, and therefore violated the First Amendment. Id. at 1094-95. The Court further found that the remaining preliminary injunction factors favored the Plaintiffs, and therefore enjoined the offending portion of the Plaza Order as it related specifically to Plaintiffs’ intended jury nullification advocacy. Id. at 1095-96. The Court did not enjoin portions of the Plaza Order regarding obstructing entryways, érecting tents or other structures, or using sound amplification equipment. Id. at 1096.

B.The Appeal

The Second Judicial District appealed the Preliminary Injunction to the Tenth Circuit. In a published opinion, the Tenth Circuit affirmed, finding that the Second Judicial District had waived (for purposes of that appeal) any argument that the Restricted Area was a nonpublic forum, and that this Court had correctly found that Plaintiffs were likely to succeed in proving that the Plaza Order was unconstitutional. See Verlo v. Martinez, 820 F.3d 1113, 1130-38 (10th Cir. 2016) (“Verlo II”). Although the Tenth Circuit acknowledged in passing that Plaintiffs’ Article III standing had been challenged below, see id. at 1130, the same standing argument apparently was never raised during the appeal. The Tenth Circuit concluded its opinion with some guidance regarding ways to handle, on remand, Denver’s and the Second Judicial. District’s competing claims to the Courthouse Plaza, assuming the Plaza remained at least a designated public forum by virtue of Denver’s Stipulation. Id, at 1138-47.

C. Denver’s Dismissal

Shortly before the.Tenth Circuit issued its Verlo II opinion, this Court granted Denver’s motion to dismiss for lack of jurisdiction. (ECF No. 97.) The Court reasoned that the Stipulation rendered Plaintiffs’ claims against Denver moot, and that any possibility that Denver might still somehow enforce the Plaza Order was too speculative to sustain standing. (Id. at 4-10.) The Court also adopted the Stipulation as an order, (ECF No. 98.)

D. Denver’s About-Face

A couple of months before trial, Denver and the Second Judicial District mended fences — at least on paper. In a February 2017 status report,' the Second Judicial District announced that “Denver and the Judicial Branch ha[d] negotiated and reached an agreement that they have collaborative authority under state law to regulate the courthouse grounds.” (ECF No. 134 at 4.) Attached to this status report was an , unsigned “Memorandum of Understanding” (“MOU”) between. Denver and fhe Second Judicial District, apparently intended to formalize the new collaborative security relationship. (ECF No. 134-1.)

The Second Judicial District further announced that “the decision ha[d] been made” — apparently by itself and Denver— “to de-designate the Reserved Area of the plaza [as a public forum].” (ECF No. 134 at 5.) Cf. Summum v. Callaghan, 130 F.3d 906, 914 (10th Cir. 1997) (“Unlike a traditional public forum, the government is not required to indefinitely retain the open character of a designated public forum.” (internal quotation marks' omitted)). But, said the Second Judicial District, “[t]he decision to de-designate is prospective only and is not intended to alter the Stipulation Denver entered into prior to the entry of the Preliminary Injunction in this case.” (ECF No. 134 at 5.) Rather, Denver and the Second Judicial District preferred to wait for this Court’s eventual ruling on the forum status of the Courthouse Plaza:

Once that legal question is resolved, Denver and the Judicial Branch have agreed that they will collaborate to issue a new joint order [governing the Courthouse Plaza]. The new joint order will reflect the collaborative authority over the courthouse grounds, will supersede [the Plaza Order], and may alter the scope of some of the parameters of the [Plaza Order], although Denver and the Judicial Branch anticipate that the [restrictions on expressive activity] will re'main substantially the same.

m

Given this status report and Denver’s apparent intention eventually to withdraw its Stipulation, the Court ordered Denver to show cause why the Court should not reinstate Denver as a party.- (ECF No. 136.) Denver responded, somewhat- surprisingly, by first denying any intent to withdraw from the Stipulation (ECF No, 137’at' 3) but then affirming that it ha'd'de-designated the 'Courthouse Plaza as a public forum “going forward” (id, at 5) and agreeing with the Second Judicial District that the Plaza Order “will be superseded by a substantially similar joint order after this Court has determined the forum status of the [Courthouse Plaza]” (id. at 6-7). Denver additionally reasoned, in essence, that its own actions were currently immaterial because Plaintiffs were arguing that the Courthouse Plaza was a traditional public forum — an argument which, if accepted by this Court, would mean that neither Denver' nor the Second Judicial District could change the Plaza’s forum status. (Id. at 3-4.) Thus, Denver resisted reinstatement in the case.

The Court gave both Plaintiffs and the Second Judicial District an opportunity to respond to Denver’s position. (See ECF No. 136.) Plaintiffs filed nothing. The Second Judicial District, for its part, agreed with Denver that Denver’s presence in this lawsuit was unnecessary: “However Plaintiffs choose to.proye their case, neither the de-designation nor the Defendants’ Memorandum of Understanding requires Denver’s reinstatement as a party to resolve the continuing controversy between Plaintiffs and the Judicial Branch [over the Plaza Order],” (ECF No. 138 at 2.) The Court therefore discharged its order to show cause. (ECF No. 139.). ....

E. Denver’s Current Status

Ever since Denver realigned itself with the Second Judicial District, tjie Court has been somewhat confused about Denver’s actual position in this litigation. Denver denies any intent to withdraw from the Stipulation — yet, assuming this Court finds the Courthouse Plaza to be other than a traditional public forum, Denver states that it and the Second Judicial District will jointly issue a new order substantially similar to the Plaza Order. One might wonder if Denver has somehow failed to' realize that this new joint order alone would likely place it in contempt of this Court, and any attempt to enforce the new order would certainly place it in contempt.

The Court-suspects, however, that Denver understands this ánd is currently attempting-both to have and eat its cake. Denver .managed to get-itself dismissed from- this lawsuit via the Stipulation and thereby avoid future liability for attorneys’ fees, assuming; Plaintiffs prevail. See 42 U.S.C. § 1988. Denver knows .that if it withdraws the Stipulation before, final judgment, it remains open to such liability. Denver therefore likely wants to stay on the sidelines looking in until this Court rules one way or the other.

This order, of course, is that ruling, and the Court rules in favor of the Second Judicial District. The Court therefore looks forward to whatever verbal gymnastics Denver will present when it either attempts to withdraw from the Stipulation (having denied any intent to withdraw from it) or to justify its conduct in contempt proceedings. But that is a matter for the future. Right now, what is clear is that all of the parties remain in functionally the same position as they were during the preliminary injunction proceedings: Denver is on the sidelines, and the dispute remains solely between Plaintiffs and the Second Judicial District.

F. “Separate Sovereigns”

Thus the standing question returns, and "the bench trial ánd subsequent research has re-confirmed this Court’s pri- or conclusion that the Second Judicial District retains contempt authority to enforce the Plaza Order. '

As to subsequent research, the Court is satisfied that a Colorado chief judge’s administrative order may be enforced through contempt. See, e.g., Bd. of Cnty. Comm’rs of Weld Cnty. v. Nineteenth Judicial Dist., 895 P.2d 545, 549 (Colo. 1995) (“The Chief Judge ordered security to maintain the court’s existence. If the Sheriff failed to provide security, the Chief Judge had his contempt power, another facet of a court’s inherent authority, to enforce his order....”) (“Weld Cnty.”).

As to evidence at the bench trial, there was some testimony from Chief Judge Martinez regarding why he has never taken any action to enforce the Plaza Order against non-enjoined behavior, such as use of sound amplification equipment. (See Trial Transcript (“Tr.”) (ECF Nos. 164, 172) at 550-51.) Although the possibility of contempt was never mentioned, Chief Judge Martinez at times seemed to deny that he had ability to take action. (See, e.g., Tr. at 551 (“I’m not a law enforcement officer. I don’t have police power. I don’t have a law enforcement or police force.... ”); id. at 556 (“... I don’t have a law enforcement body that operates under my direction and control. I don’t have a police force.”).) Elsewhere, however, the Chief Judge made clear that his inaction was also motivated simply by a desire to avoid contempt proceedings in this Court. (See, e.g., Tr. at 539 (“Q. Have you considered whether, you could issue an order that permits jury nullification activists to distribute their literature but prohibits other types of expressive activities? A. I can’t do that and it’s got to be [a] content neutral circumstance. I mean, if I did that, then the next thing I would get is a challenge saying, You know, well, I want to be able to put my notice out, you know. You know, you’re choosing them because you like them more.”); id. at 575 (“... I have done my best over the — since the order was issued to comport with it, to follow it, and I respect this Court and the Court’s authority and ability to issue the order.”); id. at 578-79 (“I don’t want to put our court in the position where we’re disregarding this Court’s order. .1 don’t want to put my employees or my staff in that position.”); cf id. at 399 (testimony of the Hon. Lee Sinclair (ret.), expert witness in courthouse security for the Second Judicial District: “And I am — and I am going to be very, very leery of doing anything to in any way side-step or walk around that [preliminary injunction] order. This is a federal judge telling me something, I’m going to be extremely careful. And I just don’t want to maybe buy more litigation at this point in time until I could have my whole matter heard.”).) Thus, Chief Judge Martinez’s testimony does not undermine this Court’s conclusion that he possesses contempt authority, even if he- has chosen not to use it.

A closely related aspect of the standing inquiry also requires discussion. The Court’s rulings up to this point, and particularly the Preliminary Injunction ruling (Verlo I), have assumed that if Denver designated the Courthouse Plaza as a public forum, then the Courthouse Plaza was a designated public forum for all purposes and from all perspectives. See 124 F.Supp.3d at 1093 (“The ultimate question, however, is whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza.”). Upon reflection and review of the entire record, the Court concludes that this assumption is too narrow in the present circumstances.

The Courthouse Plaza is actually governed by what may be deemed “separate sovereigns.” Denver is the landowner, but the Second Judicial District is a tenant with inherent authority to issue orders for preservation of security and decorum:

The inherent powers which courts possess consist of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the court exists; the court is, therefore it has the powers reasonably required to act as an efficient court.

Peña v. District Court, 681 P.2d 953, 956 (Colo. 1984) (internal quotation marks omitted; alterations incorporated; emphasis in original); see also Weld Cnty., 895 P.2d at 548-49 (“...the Chief Judge properly ordered security to ensure the continuing viability of the courts. Without security the public’s confidence in the integrity of the judicial system is threatened. The proper administration of justice requires that courts operate in a safe and secure environment. When society views the security of the court system with skepticism, the authority of the judicial branch is diminished. A weak judicial branch prevents a proper functioning of the tripartite scheme of government. The Chief Judge properly ordered security so the courts may continue to fulfill their constitutional mandate and administer justice in an orderly and dignified atmosphere.”).

Thus, Denver’s choice not to withdraw from the Stipulation means that the Courthouse Plaza remains a designated public forum as it relates to Denver’s ability to impose restrictions on the property. But it is manifest that Denver’s Stipulation does not bind the Second Judicial District. And if the preliminary injunction hearing had been framed in these terms, the result might have been different — for, as the Court noted then, courthouse grounds are routinely deemed to be nonpublic fora. See Verlo I, 124 F.Supp.3d at 1093 n.5. However, no party (nor the Court) raised the question of whether “separate sovereigns” could each designate the forum status of the same piece of property for their own purposes, likely because it is a truly novel circumstance that none of us had considered possible. Moreover, the Second Judicial District argued solely under the strict scrutiny test. Thus, the Court had no occasion to consider seriously the possibility that the Courthouse Plaza was a nonpublic forum as it relates to the Second Judicial District’s separate enforcement authority.

After further consideration, this Court concludes that it may appropriately determine the forum status of the Courthouse Plaza as it relates to the Second Judicial District’s ability to impose restrictions on the property. That is the framework and purpose of the following Findings and Conclusions.

III. FINDINGS OF FACT

Having listened attentively to each witness; having carefully judged each witness’s credibility; and haying reviewed the trial transcript, the exhibits admitted into evidence, and the parties’ proposed findings and conclusions (ECF Nos. 170 & 171), the Court finds as follows:

A. The Courthouse Grounds Generally

1. The Courthouse opened for operations in 2010. (Plaintiffs’ Trial Exhibit (“PX”) 4 at 58.)

2. From above, the Courthouse and its grounds appear as follows, save for yellow highlighting which was added to this aerial photograph by the Second Judicial District and which will be discussed further below:

(Defendant’s Trial Exhibit (“DX”) A at 3.) The Court has annotated this photograph with borders and labels, for ease of reference:

3.It is generally known within this Court’s territorial jurisdiction that: the top of the photograph is north; the Courthouse itself is the irregularly shaped, white-roofed building occupying the left half of the photograph; immediately to the left (west) of the Courthouse is Fox Street; immediately to the north is Colfax Avenue; and immediately to the south (not depicted) is Fourteenth Avenue. See Fed. R. Evid. 201(b)(1), (c)(1).

B. The West Side of the Courthouse Grounds

4. The west (Fox Street) side of the Courthouse features the West Sidewalk (a public sidewalk), which is crossed by driveways leading to two sally ports for entry of official vehicles into the Courthouse. (Tr. at 561, 563, 580-81.)

5. The west side also features the West Entrance, which is a public entrance but is very lightly used, and usually only by employees. (Tr. at'340-41, 419, 561, 565.)

C. The East Side of the Courthouse Grounds

6.On the opposite (east) side of the Courthouse grounds is Elati Street, which is closed to traffic other than official vehicles as it runs past the Courthouse. (Tr. at 52-53.)

7.Another helpful photograph of the east side of the Courthouse grounds, this one from the north looking generally south, is reproduced below (again, with labels and arrows inserted by the Court for ease of reference):

(Excerpt from DX H.)

8. Elati Street bisects the Circular Plaza, an area paved in a salmon color. (Id.)

9. The west half of the Circular Plaza is mostly framed by two areas of Landscaping, one larger and one smaller. (DX A.)

10. Running along the west side of the larger Landscaping area is the Arced Walkway, which comprises a series of shallow steps leading from the Colfax Avenue side of the Courthouse grounds up to the Patio. (PX 2; DX A, E, H.)

11. The Arced Walkway is often closed during the colder months of the year due to slip-and-fall concerns. When closed, it is sometimes used for snow storage. (Tr. at 54,212-13,465.) .

12. Even when the Arced Walkway is open, few passersby notice its existence, and so it is rarely used. (Tr. at 82,166-67, .337.)

13. Running west from the Arced Walkway to the outer wall of the Courthouse itself is the Gravel Area, which is a passive security feature. (Tr. at 361; PX 4 at 48-49.)

D. The Patio

14. The southern end of the Arced Walkway and Gravel Area forms the northern end of the Patio, which is also framed by the two Landscaping areas, the Main Entrance, the Glass Wall (the outer wall of the Jury Assembly Room), the Lunch Area (a gravel area with picnic tables), and the East Sidewalk. (Tr.- at 162-63; DX A, G, H.)

15. The- Patio is separated from the East Sidewalk by a line of low metal bollards, followed by three steps down to the East Sidewalk itself. (Tr, at 164-65; DX H,) .

16. The Patio ⅛ separated from the Circular Plaza by the Landscaping and by what the parties have described as “concrete bollards.” (Tr. at 431.) These are not traditional bollards, but are instead long rectangular blocks through which a pedestrian must navigate, like “staggered walls.” (Tr. at 447, 449-60.) These blocks are about 4Q feet from the Main Entrance. (Tr. at 359.)

17. The Patio is at a slightly higher elevation than the neighborhood’s surrounding sidewalks; hence the steps up from- the East Sidewalk and the shallow steps that form the Arced Walkway. The Circular Plaza also gradually slopes upward from Elati Street to the Patio. (Tr. at 426-27, 451.)

18. The Patio contains the Area of Repose, a set of three circular planters surrounded by curved benches, which David Tryba (the master urban design architect for the Courthouse) intended to be an area “to accommodate private conversations between family members who need to: be consoled or who are getting prepared to go into a process that most people are' unfamiliar with.” (Tr. at 427.)

19. Pedestrians intending to walk from Fourteenth Street to Colfax. Avenue, or vice versa, almost never , do so by crossing through the Patio and Arced Walkway. Rather, they walk along Elati Street and through the Circular Plaza. Nearly every person who enters the Patio or Arced Walkway, by contrast, does so to reach the Courthouse’s Main Entrance. (Tv. at 342-43, 467.)

E. Architectural Intent

20. Tryba designed the Patio to be architecturally integrated with the Courthouse itself, and to function as an extension of the Courthouse’s lobby. (Tr. at 432, 433.)

21. Tryba’s further intent for the Patio was to create “a key transitional and arrival space...so that people cari get prepared, as they enter a building with such consequences,” thus “maintaining the dignity of the process.” (Tr. at 426, 427.)

22. The architectural elements signaling the intended sense of transition include the raised grade of the- Patio and the shallow upward motion needed to reach it (a substitute for a monumental staircase that was not feasible on the particular plot of land); the bollards; the increased quality of the building materials and landscaping; and the difference in the color and texture of the Patio’s concrete as compared the surrounding walkways. (Tr. at 426-27, 432-33, 444, 445, 446-47, 449-50, 451-52.)

F. The Jury Assembly Room

23. The Patio and the Courthouse’s Jury Assembly Room are immediately adjacent, separated by the Glass Wall, which runs southeast from the Main Entrance to the Jury Assembly Room’s easternmost corner, and. then continues toward the Lunch Area for a few more feet. (DX A, H.)

24. Individuals on the Patio can see through the Glass Wall into the Jury Assembly Room, and they can be heard through the Glass Wall as well, if they speak loudly enough. (Tr. at 284, 500-04.)

G. The Detention Center

25. Immediately east of the portion of Elati Street running past the Courthouse is Denver’s Van Cise-Simonet Detention Center (“Detention Center”), as depicted in tjie following photograph,. which was taken from the south looking north:

(Excerpt from DX 6.)

H, The Courthouse’s Operations

26. It is generally known within this Court’s territorial jurisdiction that both the Second Judicial District and the Denver County Court occupy the Courthouse. See Fed. R, Evid. 201(b)(1), (c)(1).

27. The Second Judicial District hears only felony cases in the Courthouse. (Tr. at 531.)

28. Up to 750 potential jurors are summoned to the Courthouse each Monday and Tuesday, and another 200 jurors are summoned each Wednesday. (Tr. at 167.)

29. Due to discounted parking south of Fourteenth Street, almost all jurors approach the Courthouse by walking up the East Sidewalk from the south and then ascending the three steps that lead up to the metal bollards and finally onto the Patio. (Tr. at 74,169, 291-92.)

30. A queue of 200 to 300 potential jurors may form outside the Main Entrance as they wait to get through the security screening process that occurs just inside the Main Entrance. (Tr. at 463.)

31. When a queue forms outside the Main Entrance, it sometimes extends directly away from the Main Entrance and onto the Circular Plaza, and at other times it curves past the Area of Repose and then onto the East Sidewalk. (Tr. at 170; DX A38, A46.)

32. Once potential jurors make it into the Jury Assembly Room, they receive an orientation and Chief Judge Martinez addresses them about the seriousness of their duties. (Tr. at 185, 492-93.)

I. The Plaza Order

33. During the summer of 2015, the Courthouse was the site of a capital murder trial, People v. Dexter Lewis. (Tr. at 494-95; PX 4 at 36-37.)

34. During the course of the Lewis trial, racially-charged civil unrest had taken place in cities such as Baltimore, Maryland, and Ferguson, Missouri. In addition, the Arapahoe County capital murder trial of James Holmes (the Aurora theater shooter) had concluded with a sentence of life in prison, rather than death. Chief Judge Martinez’s awareness of these events prompted a concern that the Courthouse grounds needed stricter behavioral standards to ensure the Courthouse’s essential functions. In particular, Chief Judge Martinez and his security staff worried about the public’s possible reaction if Lewis (who is black) received a death sentence in contrast to Holmes (who is white). (Tr. at 494-95; PX 4 at 38.)

35. Chief Judge Martinez accordingly issued the Plaza Order, a general administrative order for the Second Judicial District that reads as follows (as amended August 21, 2015):

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flan-igan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, as depicted in the highlighted areas of the attached map, without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration;

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds;

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse.

(DX A at 1-2 (boldface in original).)

36. The “attached map” referenced in the opening paragraph of Plaza Order is the aerial photograph reproduced at ¶2, above. The “highlighted areas” mentioned in that same paragraph are the yellow-colored areas to the east and west of the Courthouse itself — which this Court refers to collectively as the “Restricted Area.”

37. The Plaza Order does not prohibit individuals approaching the Courthouse from wearing clothing with political messages, or discussing politics with others in the security queue. (Tr. at 533, 534.)

38. Before Chief Judge Martinez issued the Plaza Order, jury nullification activists Eric Brandt and Mark Iannicelli had been charged with jury tampering because they had been distributing jury nullification literature on Courthouse grounds. (Tr. at 30-35.)

39. When Chief Judge Martinez issued the Plaza Order, he had not been aware of either Brandt’s or Iannicelli’s prosecution. He had been generally aware of jury nullification activists’ activities on the Courthouse Plaza, but those activities did not inform his decision to issue the Plaza Order. (Tr. at 495.)

J. Events Following the Preliminary Injunction

40. This Court issued the Preliminary Injunction on August 25, 2015. (ECF No. 28.)

41. At some point soon after the Preliminary Injunction issued, the Second Judicial District posted the Plaza Order at the Main Entrance with Paragraph 1 blacked out. (Tr. at 49.)

42. On August 27, 2015, Dexter Lewis was sentenced to life in prison rather than death and no demonstrations regarding that outcome arose. (Tr. at 496.)

43. Although the immediate motivation for the Plaza Order had passed, Chief Judge Martinez chose to keep the Plaza Order in place because this Court’s Preliminary Injunction had, in the intervening days, emboldened activists to descend on the Courthouse Plaza and aggressively advocate their causes in numerous ways. (Tr. at 496-97.) For example, activists began an Occupy-style camping protest in the Restricted Area (and in the Circular Plaza). (Tr. at 91-92, 249; DX A24.) These early protests even involved public defecation in the Landscaping, ostensibly as a form of protest against public bathroom restrictions. (DX J.)

44. Although it appears that the camping protest has ended, demonstrations regarding various causes have continued in the Restricted Area. For example:

(a) Demonstrators have paraded and sometimes skateboarded back and forth outside the Jury Assembly Room holding signs or flags. (Tr. at 176, 184, 283-84.) The following photograph depicts a man near the Area of Repose carrying a “Fuck Cops” flag:

(Excerpt of DX A31.)

(b) Demonstrators have written messages in chalk in the Area of Repose (as in the above photograph), including messages immediately outside the Jury Assembly Room and therefore visible through the Glass Wall) as depicted ⅛ this photograph taken from inside the Jury Assembly Room:

(Excerpt from DX P.)

(c) Demonstrators have written chalk messages elsewhere in the Restricted Area,' including coarse and demeaning messages, such as that depicted in the following three photographs taken just outside the Main Entrance on separate occasions:

(Excerpt from DX A39.)

(d) Some demonstrators’ chalk messages have addressed specific ongoing cases, as in the following photograph of chalk messages addressing the high-profile retrial of Clarence Moses-EL:

(Excerpt from DX A40; see also Tr. at 514-15.)

(e) Demonstrators have used the benches in the Area of Repose to set up

fake headstones, as depicted in this photograph:

(Excerpt from DX R.)

(f) Demonstrators have donned costumes and put on skits, as depicted in this photograph taken just outside the Main Entrance:

(Excerpt from DX A9.)

(g) Demonstrators have shouted their messages, sometimes through " megaphones, including while standing “right up against” the Glass Wall when jurors are present in the Jury Assembly Room. (Tr. at 188-90, 287-88, 500-05.)

(h) Demonstrators have played loud music or simply turned on the siren feature of a megaphone for minutes at a time. (Tr. at 179, 500.)

45. Demonstrators’ shouting, noise-making, and other attention-grabbing activities have frequently distracted jurors during their orientation. (Tr. at 185-86, 200, 500-05.)

46. As for jury nullification pamphleteers such as Plaintiffs, they have often spoken in friendly tones when first approaching a potential target of their message, but at times they have become “combative” and “nasty” when their literature is refused. (Tr. at 173.)

47. By coincidence, Tryba (the architect) was called for jury service at the Courthouse sometime in the six months before the Bench Trial. While standing in the security queue, a demonstrator screamed at him and put a sign directly in front of his face. (Tr. at 436-37.)

48. Insistent jury nullification pamphleteers will sometimes follow individuals right up to the Main Entrance and open the door for those individuals. (Tr. 214, 238.) Chief Judge Martinez personally experienced this treatment as he approached the Courthouse on one occasion after declining a pamphlet. The pamphleteer repeatedly asked Chief Judge Martinez to take a pamphlet, while a woman dressed “in a costume like a convict” stood directly in front of Chief Judge Martinez while “back-stepping as [he was] walking towards the [Main Entrance].” When Chief Judge Martinez arrived at the Main Entrance, he reached for the door handle but the woman grabbed it first and opened the door for him. (Tr. at 497-98.)

49. Demonstrators have learned to recognize Courthouse employees and have frequently shouted vulgar and combative messages at those employees. Some employees have begun to fear for their safety, and employee morale has declined. (Tr. at 188-89,192-93, 250-52, 508-12.)

K. Plaintiffs’ Preferred Location

50. Plaintiffs’ have advocated for jury nullification almost exclusively on the Patio, because that is where Plaintiffs can reach the vast majority of prospective jurors and others with court business as they approach the Courthouse and stand in the security queue, (Ti\ at 46-47, 77-79, 121,171-72, 284, 459-60.)-.

51. The only time Plaintiff Matzen has attempted tó reach individuals at the West Entrance was when the Main Entrance was closed for construction. (Tr, at 294.)

IV. CONCLUSIONS OF LAW

A. The Forum Analysis Standard

As explained at the outset, whether Plaintiffs have a First Amendment right to engage in the activities prohibited in the Restricted Area by the Plaza Order requires this Court to engage in a “forum analysis,” comprising the following questions:

1. Is the expression at issue protected by the First Amendment? If so—

2. Is the location at issue a traditional public forum, a designated public forum, or a nonpublic forum? '

3. If the location is a traditional or designated public forum, is the government’s speech restriction narrowly tailored to . meet a compelling state interest?

4. If the location is a nonpublic forum, is the government’s speech restriction reasonable in light of the purpose served by the forum, and viewpoint neutral?

Cornelius, 473 U.S. at 797-806, 105 S.Ct. 3439.

There is no dispute that Plaintiffs wish to engage in expression protected by the First Amendment, so the -Court will .-not provide any separate ■ analysis of the first question. In addition, Plaintiffs contend that the Restricted Area — the only portion of the Courthouse Plaza affected by the Plaza Order — is a traditional or designated public forum-(i.a, designated by Denver), and have not asserted in the alternative that the Plaza Order fails the reasonableness test applicable to .a nonpublic-forum. (See ECF No. 110 at 5-6 (Final Pretrial Order); ECF No. 154-1 (pretrial proposed Conclusions of Law); ECF No. 170 at 11-16 (post-trial proposed Conclusions of Law).) Thus, to the extent the Court finds that the Restricted Area is not a traditional or designated public forum, the Court need not further analyze the Plaza Order under a reasonableness standard.

B. Sorting Out the Proper Approach to Traditional Public Forum Analysis

Plaintiffs’ primary argument is that the Restricted Area is a traditional public forum. (See id. at 12-14.) Although the Court has made -numerous findings of fact, above, there remains the question how many of those findings are relevant to determining whether the Restricted Area is a traditional public forum. As the following analysis will hopefully make clear, Supreme Court and Tenth Circuit case law have consistently shown that applying or stripping the “traditional public forum” label from a particular public space requires very little fact-finding because, traditional public fora comprise an essentially fixed set of historically determined categories: public streets, public sidewalks, and public parks.

However, one unusual Tenth Circuit de-cisiop, First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114 (10th Cir. 2002), suggests a much more detailed analysis that does not comport with the decisions both preceding and following it. Yet the parties here frame their proposed conclusions of law in terms of the factors discussed in First Unitarian. (See ECF No. 144 at 18; ECF No. 170 at 12, 14; ECF No. 171-1 at 13.)

Thus, the Court must sort out what the proper inquiry really is, A survey of relevant case law is helpful to this process.

1, Perry (1983)

The first clear statement of the Supreme Court’s current “forum analysis” approach to public spaces came in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed,2d 794 (1983), a dispute about restrictions on a particular union’s ability to place circulars and other communications in teachers’ school mailboxes. See id. at 40-41, 103 S.Ct. 948. The Supreme Court began its analysis by describing the three forum types into which the school mailboxes might be classified:

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which have immemorially been held in trust-for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.... <

A second category consists of public property which the state has opened for use by the public as a place for expressive activity. The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place,..,

Public property which is not by tradition or designation a forum, for public, communication is governed by different standards.

Id. at 45-46, 103 S.Ct. 948 (internal quotation marks omitted). This language plainly frames the . “traditional public forum” question specifically in terms of “tradition,” “long tradition,” and even “time out of mind” — in contrast to designated public fora (“public property which the state has opened for use by the public as a place for expressive activity”) and nonpublic fora (“[pjublic property which is not by tradition or designation a • forum for public communication”). The Court in Perry, however, had no need to apply its tradition. analysis to the school mailboxes because the parties agreed that those mailboxes did not fall into the “traditional” category. Id. at 46 & n,8, 103 S.Ct. 948.

2. Grace (1983)

About two months after deciding Perry, the Supreme Court released another forum-analysis opinion, United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Grace is of particular interest in this lawsuit because it was a challenge to. a federal statute that banned political advocacy on the grounds of the United States Supreme Court building in Washington, D.C. Id. at 172-73, 103 S.Ct. 1702. However, the challengers limited their attack .to the application of that statute on the public sidewalks surrounding the Supreme. Court grounds; they did not challenge the statute’s application to, e.g., the plaza in front, of the main entrance. Id. at 173-75, 103 S.Ct. 1702.

In Grace, the Court’s description of the various types of fora was less precise than in Perry. Similar to (and citing) Perry, Grace stated that “ ‘public places’ historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums.’” Id. at 177, 103 S.Ct. 1702. But in contrast to Perry, Grace never explicitly distinguished traditional from designated public fora. Nonetheless, the concept was certainly in the Court’s mind when it later declared that “whether, the property has been ‘generally opened to the public’ is a factor to consider in determining whether the government has opened its property to the use of the people for communicative purposes.” Id. (emphasis added). And this phrasing is significant, given its suggestion that how the government has treated a particular public space should only be relevant if a potential designated public forum is at issue.

In any event, Grace did not need to engage in such an inquiry because a public sidewalk is already considered a traditional public forum:

The sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently. Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property.

Id. at 179, 103 S.Ct. 1702 (footnote omitted). As will become important below, the Supreme Court went on to note specifically that “[tjhere is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” Id. at 180, 103 S.Ct. 1702. The Court accordingly declared the relevant statute unconstitutional as applied to the sidewalks surrounding the Supreme Court grounds. Id. at 183-84, 103 S.Ct. 1702.

3. Cornelius (1985)

Two years after Perry and Grace, the Supreme Court handed down the previously-cited Cornelius decision. Cornelius was a dispute over which types of organizations the federal government could exclude from soliciting funds through “the Combined Federal Campaign (CFC or Campaign), a charity drive aimed at federal employees.” 473 U.S. at 790, 105 S.Ct. 3439. Cornelius has little to say about traditional public fora, other than that “[pjublic streets and parks fall into this category.” Id. at 802, 105 S.Ct. 3439. Having said as much, the Court immediately went on to the designated public forum category, and expounded at length on factors relevant to determining whether such a designated forum had been created. Id. at 802-04, 105 S.Ct. 3439. In particular, the Court noted that it had previously “looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum,” and it had “also examined the nature of the property and its compatibility with expressive activity to discern the government’s intent.” Id. at 802, 105 S.Ct. 3439. Applying these inquiries, the Court held that the CFC was a nonpublic forum.

What is most interesting about Cornelius for present purposes is the lack of any suggestion that the “policy and practice of the government” and the “nature of the property and its compatibility with expressive activity” have anything to do with a traditional public forum analysis. This will become significant in the context of later decisions.

4. Frisby (1988)

The next relevant decision is Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), a dispute over a Brookfield, Wisconsin, ordinance that “completely ban[ned] picketing ‘before or about’ any residence.” Id. at 476, 108 S.Ct. 2495. The picketing in question involved anti-abortion protesters “picketing on a public street outside the Brookfield residence of a doctor who apparently perform[ed] abortions at two clinics in neighboring towns.” Id. The Supreme Court’s emphatic affirmance of those public streets as traditional public fora is notable for its reliance on basic categorical analysis:

The relevant forum here may be easily identified: [the picketers] wish to picket on the public streets of Brookfield. Ordinarily, a determination of the nature of the forum would follow automatically from this identification; we have repeatedly referred to public streets as the archetype of a traditional public forum. “[T]ime out of mind” public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum. [Brookfield and the other defendants], however, urge us to disregard these “clichés.” They argue that the streets of Brookfield should be considered a nonpublic forum. Pointing to the physical narrowness of Brook-field’s streets as well as to their residential character, appellants contend that such streets have not by. tradition or designation been held open for public communication.

We reject this suggestion. Our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood.... In short, our decisions identifying public streets and sidewalks as traditional public fora are not accidental invocations of a “cliché,” but recognition that “[w]her-ever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public.” No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora. Accordingly, the streets of Brookfield are traditional public fora....

Id. at 480-81, 108 S.Ct. 2495 (citations omitted).

Frisby.does not explicitly state that all traditional public fora may be identified so easily. Nonetheless, Frisby ⅛ rejection of Brookfield’s argument strongly suggests as much, with no need to refer to any particular characteristics of the space in question.

5. Kokinda (1990)

- A potential breakdown in the doctrinal consensus was on display about two years after Frisby in a fractured decision captioned United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). Kokinda concerned a Postal Service regulation that prohibited solicitation on Post Office premises, as applied to a sidewalk leading from a particular Post Office’s parking lot into the Post Office itself. Id. at 722-24, 110 S.Ct. 3115.

■Kokinda produced no majority opinion. Justice O’Connor (writing for herself, Chief Justice Rehnquist, and Justices White and Scalia) concluded that the sidewalk in question “[d]id not have the characteristics of public sidewalks traditionally open to expressive activity... .[T]he postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.. .not to facilitate the daily commerce and the life of the neighborhood or city.” Id. at 727-28, 110 S.Ct. 3115. This appears to be a deviation from previous cases, where a public sidewalk was a public forum simply because it was a public sidewalk. That is precisely the criticism leveled in an opinion by Justice Brennan, writing also for Justices Marshall, Stevens, and (in relevant part) Blackmun. Id. at 740-49,110 S.Ct. 3115. Justice O’Connor responded by pointing to the language in Grace that nothing distinguished the sidewalks surrounding the Supreme Court from any other public sidewalk in Washington, D.C. Id. at 728, 110 S.Ct. 3115. But instead of arguing that the Post Office sidewalk possessed such distinguishing characteristics, Justice O’Connor offered a broader statement: “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728-29, 110 S.Ct. 3115. But, again, this was simply the opinion of four justices, as was Justice Brennan’s opinion.

Justice Kennedy, writing for himself only, was the tiebreaker. He opined, “If our public forum jurisprudence is to retain vitality, we must recognize that certain objective characteristics of Government property and its customary use by the public may control the case.” Id. at 737-38, 110 S.Ct. 3115. Justice Kennedy nowhere explained precisely what he meant by this, nor did he make clear whether this was meant as a criticism of anything in either Justice O’Connor’s or Justice Brennan’s respective opinions. From , one perspective, one might interpret this as an expression of agreement with Justice O’Connor regarding the need for an inquiry into “the location and purpose of a publicly owned sidewalk.” However, Justice Kennedy did not make any such agreement explicit, and in fact announced that he could avoid categorizing the sidewalk as a public or nonpublic forum because, in his view, the Postal Service regulation in question survived scrutiny under the strict standard applied to traditional public fora. Id. at 738, 110 S.Ct. 3115. He therefore concurred in the O’Connor opinion’s judgment, which found that the sidewalk was a nonpublic forum and that the Postal regulation satisfied the reasonableness standard. Id. at 733-37, 110 S.Ct. 3115.

Thus, the outcome of Kokinda was that the Postal Service regulation stood under any applicable standard of review, although with no majority opinion regarding the proper forum classification of the sidewalk.

6. Lee (1992)

The fractures evident in Kokinda soon returned in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (“Lee ”). The plaintiffs in Lee were disseminating religious literature and soliciting funds -at the airports controlled by the Port Authority of New York and New Jersey (JFK, LaGuardia, and Newark). Id. at 674-75, 112 S.Ct. 2701. By regulation, however, the Port Authority prohibited “continuous or repetitive” person-to-person solicitation and distribution of literature. Id. at 675-76, 112 S.Ct..2701. The Second Circuit held that the airports were not public fora and that the regulation was reasonable as to solicitation but not as to distribution. Id. at 677,112 S.Ct. 2701. The dispute then went to the Supreme Court, which granted certiorari specifically “to resolve whether airport terminals are public fora,” among other questions. Id.

Relying on a historical-categorical approach divorced from consideration of any specific airport terminal, the Coui’t answered the public forum question in the negative:

[Ajirport terminals have only recently achieved their contemporary size and character.... [G]iven the lateness with which the modern air terminal has made its appearance, it hardly qualifies for the description of having “immemorially .. .time.out of mind” been held in the public trust and used for purposes of expressive activity. Moreover, even within the rather short history of air transport, it is only “[i]n recent years [that] it has become a common practice for various religious and non-profit organizations to use commercial airports as a forum for- the distribution of literature, the solicitation of funds, the proselytizing of new members, and other similar activities.” Thus, the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity.

Id. at 680, 112 S.Ct. 2701 (citations omitted). “Nor can we say,” the Court continued, “that these particular.,terminals, or airport terminals generally, have been intentionally opened by their' operators to such activity; the frequent and continuing litigation evidencing the operators’ objections belies any such claim