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Court: Timing of protest can have "irreplaceable First Amendment value"

A recent court decision about the airport protests that took place immediately following  President Donald Trump’s first immigration executive order contains helpful reminders about First Amendment principles and protests that may be of interest to students, given how often students see timing- and location-based restrictions on protests in campus policies.

Late last month, in McDonnell v. City and County of Denver, Judge William Martínez of the United States District Court for the District of Colorado granted a preliminary injunction in part, permitting the plaintiffs to protest in the Jeppesen Terminal of the Denver International Airport. This case is particularly noteworthy because the judge explicitly took into account the importance of timing when it comes to the expressive value of protests, and ordered the airport to develop a system to expedite permits when:

an applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen seven days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the permit applicant prevented timely filing of the application.

Before delving into the opinion, a little background information is helpful. First, protests at Denver’s airport are governed by “Regulation 50,” which is a rule adopted by the airport’s manager of aviation pursuant to Denver’s Municipal Code. Regulation 50 requires that individuals apply for and receive a permit at least seven days before they plan to protest and that their signs be less than one foot by one foot in size. Regulation 50 also prohibits “picketing” by more than two people at any one location in the airport, and defines picketing to mean “one or more persons marching or stationing themselves in an area in order to communicate their position on a political, charitable, or religious issue, or a labor dispute, by displaying one or more signs, posters or similar devices.” In practice, Regulation 50 makes it impossible for spontaneous protests to occur at the airport.

On January 27, President Donald Trump signed Executive Order 13769, often called the “travel ban.” Protests quickly ensued at airports around the country.

On January 28, Denver International Airport’s public information officer, Heath Montgomery, emailed one of the defendants, Antonio Lopez, a police commander responsible for the police district encompassing the airport. Montgomery told Lopez about a planned protest, the participants in which had not applied for a permit under Regulation 50. Montgomery also reached out to a Facebook group for the protest and informed them of the permitting requirements. One of the protest’s organizers responded; however, Montgomery did not interpret the response as a request for a permit. The scene was set for a conflict that evening. Lopez eventually approached the protesters once they began demonstrating at the airport and warned them that they could be arrested for protesting without a permit. The protest eventually moved to another location and concluded without incident.

The next day, the plaintiffs—protesters who had not been able to protest on January 28— arrived at the airport. Shortly after they arrived, defendant Virginia Quiñones, a police sergeant, approached the plaintiffs and warned them that they could be arrested for protesting without a permit. The plaintiffs stopped their protest and left the airport because they felt that the location was crucial to their message (news reports in the days following the Executive Order highlighted the plight of people detained at airports around the country under the new order) and they did not wish to be arrested. While subsequent protests at the airport have occurred and permits were issued pursuant to Regulation 50, the plaintiffs never applied for a permit or attempted to protest again. The plaintiffs eventually filed suit and asked the court to enjoin the defendants from enforcing Regulation 50 against them.

While it’s worth reading the court’s lengthy opinion in full, there are some especially important parts of the opinion that are worth highlighting.

First up is the court’s discussion of irreparable harm, which is something that plaintiffs must show they would suffer in order to obtain a preliminary injunction. Although the court  noted that other groups were able to successfully apply for and receive permits—meaning the plaintiffs could demonstrate at the airport at another time—the court still found “a sufficient harm” for seeking a preliminary injunction. The court found this, in significant part, because the timing of this particular protest was so critical to its message.   Timing, the court held, can have “irreplaceable First Amendment value”—a topic that FIRE’s Samantha Harris recently wrote about recently in a blog about her own experience participating in airport protests at Philadelphia International Airport.

Then the court turned to forum analysis, which is a central component of First Amendment analysis when speech on government property is at issue. The court first found, after examining the Supreme Court’s 1992 decision in International Society for Krishna Consciousness v. Lee, that the terminal was not a public forum. The district court concluded that Regulation 50 did not transform the terminal into a designated public forum for several reasons, including that “the Airport’s choice to regulate what it could not prohibit in the first place is not evidence of intent to designate a public forum,” and that a designated public forum is not created by inaction. Ultimately, the court held that the terminal was a nonpublic forum.

Accordingly, the court examined Regulation 50 to determine whether it is reasonable in light of its purpose and whether it is viewpoint neutral. While the court found the airport’s seven-day waiting period was reasonable, it found the airport’s lack of a formal mechanism for expediting permit applications problematic. The court also found the restriction on the size of signs in Regulation 50 unreasonable. While the airport may have an interest in regulating the size of signs, the court found that the size restriction to be “barely distinguishable, both legally and as a factual matter, from a complete ban.”

This is ultimately a helpful decision that may prove useful to future protesters who encounter long waiting periods or sign restrictions in nonpublic forums. In particular, the court’s decision to strike down the size restriction on signs shows a willingness to examine the facts and ensure individuals are able to communicate their message. Further, the court’s willingness to direct the airport to accommodate protests on relatively short notice underscores the inherent problems with prior restraints. The decision also reiterates how important timing and location can be to protests, yet another way in which prior restraints can interfere with expressive speech.

College students engaging in protests may be interested to check out this opinion. The court’s discussion of the timing and location of protests may be particularly relevant for students given how often FIRE sees advance notice requirements in university policies.

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