Wells v. City & County of Denver

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 2 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JULIE N. WELLS; FREEDOM FROM
RELIGION FOUNDATION, INC.;
THE COLORADO CHAPTER OF
THE FREEDOM FROM RELIGION No. 00-1040
FOUNDATION, INC.,

Plaintiff - Appellant,
vs.

CITY AND COUNTY OF DENVER;
DEPARTMENT OF GENERAL
SERVICES OF THE CITY AND
COUNTY OF DENVER;
WELLINGTON WEBB, Mayor of the
City and County of Denver; THOMAS
J. MIGAKI, Manager of the
Department of General Services, City
and County of Denver; JOHN HALL,
Director of the Division of Public
Office Buildings,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 99-Z-2373)

Robert R. Tiernan, Denver, Colorado, for Plaintiffs - Appellants.

Stanley M. Sharoff, Assistant City Attorney (J. Wallace Wortham, Jr., City
Attorney, with him on the brief), Denver, Colorado, for Defendants - Appellees.
Before KELLY, BRISCOE, Circuit Judges, and MURGUIA, * District Judge.

KELLY, Circuit Judge.

Plaintiffs Julie Wells and the National and Colorado Chapters of the

Freedom From Religion Foundation (“FFRF”) appeal from the district court’s

order denying their motion for preliminary injunctive relief. Pursuant to a

stipulation by the parties, the court advanced and consolidated trial on the merits

with the hearing on Plaintiffs’ motion, and entered a final judgment in favor of

Defendants. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

Every year, the City and County of Denver (“the City”) erects a holiday

display on the steps leading up to the east entrance of the City and County

Building (“the East Steps”). The East Steps “are the primary entrance to the City

and County Building, . . . the primary access . . . into the second floor rotunda

area of the building.” Aplt. App. at 85. The 1999 display included a creche, tin

soldiers, Christmas trees, snowmen, reindeer and other animals, an array of lights,

*
Honorable Carlos Murguia, District Judge, United States District Court of
Kansas, sitting by designation.

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and a shed containing Santa Claus and his elves. See Addendum, infra at __ [Op.

at 41]. The display also contained a large sign with the message “Happy Holidays

from the Keep the Lights Foundation and the sponsors that help maintain the

lights at the City and County Building,” situated to the far right of the display

(“Happy Holidays sign”). Id. ; Aplt. Add. at 1-3 (Pl. Ex. 1-5). 1
The Happy

Holidays sign, which was built by the City’s carpentry shop using public funds,

listed six corporate sponsors. Aplt. App. at 86-87. The sponsors’ contributions to

the non-profit Keep the Lights Foundation were used to reimburse the City for

part of the cost of the display. Id. at 88, 102. The display was surrounded by a

fence and monitored by motion detectors and security cameras. Id. at 69-70, 88,

102-03. The fenced-off area occupied more than two-thirds of the East Steps’

total square footage, leaving open a broad central corridor to allow public access

to and from the building. See Addendum, infra at __ [Op. at 41].

On November 12, 1999, the plaintiffs wrote a letter to Defendant John Hall,

the Director of Public Office Buildings for the City and County of Denver,

requesting permission to place a sign “inside this year’s Christmas display area”

and quoting the text of the proposed sign (“Winter Solstice sign”) as follows:

1
Plaintiffs refer to their exhibits as “Joint Exhibits” to indicate that an
exhibit was part of their complaint, as well as their application for a preliminary
injunction. The exhibits are not offered in cooperation with the defendants. Aplt.
App. at 66. To avoid confusion, we refer to the plaintiffs’ exhibits as “Pl. Ex.”
and the defendants’ exhibits as “Def. Ex.”

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 At this season of
THE WINTER SOLSTICE
may reason prevail.

There are no gods,
no devils, no angels,
no heaven or hell.
There is only
our natural world.

THE “CHRIST CHILD” IS A RELIGIOUS MYTH.
THE CITY OF DENVER SHOULD NOT PROMOTE RELIGION.

“I believe in an America
where the separation of church and state
is absolute.”

John F. Kennedy – 1960 Presidential campaign.

PRESENTED BY THE FREEDOM FROM RELIGION FOUNDATION

Aplt. Add. at 9 (Pl. Ex. 11). 2
On November 28, 1999, having received no

response from Denver, Ms. Wells placed the Winter Solstice sign “on the steps of

the City and County Building inside the area fenced off for the City’s display.”

Aplt. Br. at 5. Written on the back of the sign was the Eighth Commandment:

“Thou shalt not steal.” Aplt. App. at 58. Denver removed the sign the following

morning.

Plaintiffs filed this action on December 13, 1999, seeking a preliminary

2
The FFRF had written a similar letter in 1998. Aplt. Add. at 11-12 (Pl.
Ex. 12). Denver responded to the 1998 letter by summarily denying “the
foundation’s request ‘to have its holiday message included in the Christmas
display’ . . . .” Id. at 13 (Pl. Ex. 13).

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injunction to compel the City “to allow the Plaintiffs to exhibit their winter

solstice display on the steps of Denver’s City and County Building within the

fenced-off area where Defendants’ Christmas holiday display is exhibited for as

long as the latter display is on exhibit.” Id. at 16. At the hearing on that motion,

held December 23, 1999, it became clear that Plaintiffs’ action included a

challenge to the City’s policy against unattended displays on the East Steps. Id.

at 49; see also id. at 22 (Compl. at ¶¶ 9-10). At the close of the hearing, during

which both parties had presented testimony and arguments, the court denied

Plaintiffs’ motion. Id. at 132-42 (oral ruling). Upon the parties’ stipulation that

the court’s oral ruling “be entered as the final order and judgment,” id. at 39, the

court advanced and consolidated the trial on the merits with the hearing for

preliminary relief, entered a final judgment in favor of the defendants, and

dismissed the action with prejudice. Id. at 41-42.

On appeal, Ms. Wells and the FFRF claim that the district court erred in

failing to require Denver to justify (1) the exclusion of the Winter Solstice sign

from the City’s fenced-off holiday display, or (2) the ban on private unattended

displays on the East Steps. They contend that both restrictions violate their free

speech rights under the First Amendment. One of the plaintiffs’ objections to

Denver’s unattended display ban is their claim that the policy, by virtue of being

unwritten, vests unbridled discretion in city officials. Aplt. Br. at 12-14, 17.

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They also claim that both restrictions are selectively enforced, and that the district

court erroneously denied them the opportunity to develop a factual record on

those claims. Id. at 14-19. In addition to their free speech challenges, the

plaintiffs assert violations of their rights under the Free Exercise, Establishment,

and Equal Protection Clauses. 3

Discussion

I. Do the Plaintiffs’ Free Speech Rights Allow Them to Compel Denver to
Include the Winter Solstice Sign in the Fenced-Off Holiday Display?

The Supreme Court has articulated a three-step framework to be used when

analyzing restrictions on private speech on government property. Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788 (1985). First, the court

must determine whether the speech at issue is protected by the First Amendment.

Id. at 797. If so, the court must then “identify the nature of the forum, because

3
Plaintiffs do not challenge the inclusion of the creche in the display. Cf.
County of Allegheny v. ACLU , 492 U.S. 573 (1989); Lynch v. Donnelly , 465 U.S.
668 (1984). Prior challenges to the creche have been unsuccessful. See Citizens
Concerned for Separation of Church & State v. City & County of Denver , 508 F.
Supp. 823 (D. Colo. 1981) (rejecting challenge under the Establishment Clause of
the U.S. Constitution), aff’d , No. 82-1022 (10th Cir. May 14, 1984) (unpublished
order) (upholding district court’s decision on basis that challenged display was
indistinguishable from display upheld in Lynch v. Donnelly , 465 U.S. 668
(1984)); see also Conrad v. City & County of Denver , 724 P.2d 1309 (Colo. 1986)
(rejecting challenge under the Preference Clause of the Colorado Constitution);
Citizens Concerned for Separation of Church & State v. City & County of Denver ,
628 F.2d 1289 (10th Cir. 1980) (holding that organizational plaintiff failed to
establish standing to challenge creche).

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the extent to which the Government may limit access depends on whether the

forum is public or nonpublic.” Id. Third, the court “must assess whether the

justifications for exclusion from the relevant forum satisfy the requisite standard,”

e.g. , whether a content-based restriction can survive strict scrutiny, whether a

content-neutral restriction is a valid regulation of the time, place, or manner of

speech, or whether a restriction in a nonpublic forum is reasonable. Id. When the

government is the speaker, however, “different principles” apply. Rosenberger v.

Rector & Visitors of Univ. of Va. , 515 U.S. 819, 834 (1995).

When the government speaks, either directly or through private

intermediaries, it is constitutionally entitled to make “content-based choices,” id.

at 833, and to engage in “viewpoint-based funding decisions,” Legal Serv. Corp.

v. Velazquez , 121 S. Ct. 1043, 1048 (2001). Thus, our analysis of restrictions

that arise in the context of government speech is “altogether different” than the

analysis set forth in Cornelius . Bd. of Regents of Univ. of Wisc. Sys. v.

Southworth , 529 U.S. 217, 235 (2000); see also id. (“The Court has not held, or

suggested, that when the government speaks the rules we have discussed

[regarding public fora and viewpoint neutrality] come into play.”); Latino

Officers Ass’n, New York, Inc. v. City of New York , 196 F.3d 458, 468 (2d Cir.

1999) (noting in dicta that “the government may regulate its own expression in

ways that would be unconstitutional were a private party the speaker”), cert.

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denied , 528 U.S. 1159 (2000). Although the Supreme Court has applied these

principles in only one case, Rust v. Sullivan , 500 U.S. 173, 192-93 (1991)

(sustaining a prohibition on abortion-related advice by recipients of federal funds

designated for family-planning counseling), the Court has discussed the

government speech doctrine at some length in three recent cases. Velazquez , 121

S. Ct. at 1048; Southworth , 529 U.S. at 235; Rosenberger , 515 U.S. at 833. Thus,

we believe that the doctrine is a viable one, and that it is appropriate to employ it

in the case before us. Cf. Downs v. Los Angeles Unified Sch. Dist. , 228 F.3d

1003, 1011 (9th Cir. 2000), cert. denied , 121 S. Ct. 1653 (2001); Knights of the

Ku Klux Klan v. Curators of the Univ. of Mo. , 203 F.3d 1085, 1093-94 (8th Cir.)

[hereinafter Knights of the KKK ], cert. denied , 121 S. Ct. 49 (2000) ; Muir v. Ala.

Educ. Television Comm’n , 688 F.2d 1033, 1044 (5th Cir. 1982) (en banc)

(predating Rust ).

Under the government speech doctrine, the exclusion of the Winter Solstice

sign from the fenced-off display raises two questions. First, given that the display

constitutes speech, who is the speaker? Second, if the speaker is the City of

Denver, to what extent may it control the contents of the display?

A. Whose Speech Is It?

Denver owns each component part of the display. Aplt. App. at 89. The

City maintains and replaces those parts when necessary, it erects the fence that

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surrounds the display, and it provides video cameras, motion detectors, and a

security guard to protect the display. Id. at 69-70, 88-89, 102-03. In Denver’s

view, the display is the City’s message to the community. Id. at 95-96, 101-04.

On the other hand, Ms. Wells and the FFRF contend that the display is merely an

assortment of private speech by corporations that have paid for the privilege.

E.g. , id. at 95. Plaintiffs’ characterization of the display is not supported by the

record.

Plaintiffs’ argument revolves around the large Happy Holidays sign, which

stands inside the fence at the far right of the display. See Addendum, infra at __

[Op. at 41]. 4
According to the City, the Happy Holidays sign is a “Thank You”

from Denver to the sponsors, Aplee. Br. at 20 n.10, and the district court agreed.

Aplt. App. at 140-41. In the plaintiffs’ view, however, the plain language of the

sign demonstrates that it is a message from -- not to -- the sponsors, and they

assert that they are equally entitled to communicate their message from within the

4
As shown in the Addendum, the text of the sign is as follows: on the left,
“HAPPY HOLIDAYS FROM THE Keep the Lights Foundation and the sponsors
that help maintain the lights at the City and County Building,” and on the right,
“NEWS4 Spirit of Colorado”, “Coors Light”, and “King Soopers • AAA of
Colorado • Denver Rocky Mountain News • Rock Bottom Brewery”. “HAPPY
HOLIDAYS”, “NEWS4”, and “Coors Light” are written in the largest font, and
are therefore the most prominent. The font used for the phrases “FROM THE
Keep the Lights Foundation” and “Spirit of Colorado,” and to list the other four
corporate sponsors is about half that size. The phrase “and the sponsors . . .” is
even smaller, about one-quarter the size of the largest font.

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fence. Aplt. Br. at 18-19. We conclude that the sign is Denver’s speech, not that

of the listed corporations.

The Supreme Court has provided very little guidance as to what constitutes

government speech. As noted, we are aware of only one case, Rust v. Sullivan ,

500 U.S. 173 (1991), in which the Court actually applied the principles that

underlie the government speech doctrine. In that case, the Court “upheld the

government’s prohibition on abortion-related advice applicable to recipients of

federal funds [under Title X] for family planning counseling.” Rosenberger , 515

U.S. at 833 (citing Rust , 500 U.S. at 194). We recognize that “ Rust did not place

explicit reliance on the rationale that the counseling activities of the doctors

under Title X amounted to governmental speech; when interpreting the holding in

later cases, however, [the Supreme Court has] explained Rust on this

understanding.” Velazquez , 121 S. Ct. at 1048. The other Supreme Court cases

that have discussed the doctrine have done so only in dicta. Id. ; Southworth , 529

U.S. at 235; Rosenberger , 515 U.S. at 833. In each case, the Court held that the

speech at issue did not constitute government speech. Velazquez , 121 S. Ct. at

1049 (“The advice from the attorney to the client and the advocacy by the attorney

to the courts cannot be classified as governmental speech even under a generous

understanding of the concept.”); Southworth , 529 U.S. at 235 (“In the instant

case, the speech is not that of the University or its agents. It is not, furthermore,

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speech by an instructor or a professor in the academic context, where principles

applicable to government speech would have to be considered.”); Rosenberger ,

515 U.S. at 841 (“The University has taken pains to disassociate itself from the

private speech involved in this case.”). 5
A few of our sister circuits, however,

have had occasion to apply the government speech doctrine, and their opinions are

instructive. Downs , 228 F.3d at 1013-16; Knights of the KKK , 203 F.3d at 1093-

94; see also Muir , 688 F.2d at 1044.

The Eighth Circuit’s opinion in Knights of the KKK is particularly on

point. That case arose when the Ku Klux Klan of Missouri wrote to the

University of Missouri’s public radio station, KWMU, offering to underwrite four

segments of National Public Radio’s “All Things Considered.” 208 F.3d at 1089.

Under federal law, public radio stations must acknowledge the underwriters

(sponsors) of particular broadcasts by identifying them, on the air, during the

broadcast. Id. at 1088 (citing 47 U.S.C. § 317(a)(1)). To encourage

contributions, KWMU operated an “enhanced underwriting” program, pursuant to

which acknowledgments could include a limited amount of additional information

about the underwriter. Id. at 1088-89 & n.3 (citations omitted). The Klan

5
The Court has consistently “emphasized the importance of context in
determining the extent to which the government can control speech.” Snyder v.
Murray City Corp. , 159 F.3d 1227, 1243 (10th Cir. 1998) (Briscoe, J., dissenting)
(citing Rosenberger , 515 U.S. at 833-34); accord Velazquez , 121 S. Ct. at 1049-
52; Southworth , 529 U.S. at 234-35.

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included the following proposed announcement with its offer of funds:

The Knights of the Ku Klux Klan, a White Christian organization,
standing up for rights and values of White Christian America since
1865. For more information[,] please contact the Knights of the Ku
Klux Klan, at [mailing address]. Let your voice be heard!

Id. at 1089 (first alteration in original). When the station declined the Klan’s

offer, the organization sued, alleging violations of the First Amendment and the

Equal Protection Clause. The Eighth Circuit rejected both challenges, holding,

inter alia, that the underwriting acknowledgments constituted government speech.

Id. at 1093.

To support that conclusion, the Eighth Circuit relied on a number of

factors: (1) that “the central purpose of the enhanced underwriting program is not

to promote the views of the donors;” (2) that the station exercised editorial

control over the content of acknowledgment scripts; (3) that the literal speaker

was a KWMU employee, not a Klan representative ; and (4) that ultimate

responsibility for the contents of the broadcast rested with KWMU, not with the

Klan. Id. at 1093-94. The Ninth Circuit relied on similar factors in Downs , in

which the court rejected a public school teacher’s claim that he had a First

Amendment right to respond to his school’s recognition of Gay and Lesbian

Awareness month by posting anti-homosexuality materials on a school bulletin

board. See Downs , 228 F.3d at 1011-12 (holding that content of bulletin boards

was government speech in that boards were used to express school policy, that

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access was limited to faculty and staff, that “postings were subject to the

oversight of the school principals,” that the school district had made no

“affirmative effort to disclaim responsibility for the [boards’] content,” and that

the boards were “the property and responsibility” of the school and the district) .

Due to the “special characteristics of the school environment,” Hazelwood Sch.

Dist. v. Kuhlmeier , 484 U.S. 260, 266 (1988) (quoting Tinker v. Des Moines

Indep. Cmty. Sch. Dist. , 393 U.S. 503, 506 (1969)), we rely primarily on the four

factors articulated in Knights of the KKK . 6

As to the purpose of the sign, the record evidence includes the City’s

complete control over the sign’s construction, message, and placement, as well as

Mr. Hall’s testimony that “[t]he sign is there to thank the sponsors and the

citizens for the support of the cost of the display. . . . It is there to recognize their

financial support and presentation of the display.” Aplt. App. at 96; see also id.

at 102-03. The district court found Mr. Hall’s testimony to be credible, id. at 140,

and we cannot say that finding was clearly erroneous. The fact that the sponsors

may receive an incidental benefit from the Happy Holidays sign -- in the form of

publicity and good will -- does not refute Mr. Hall’s testimony as to the sign’s

6
Although Downs did involve speech in a secondary school, the Ninth
Circuit indicated that its holding was neither controlled by nor limited to the
school setting in which the case arose. E.g. , 228 F.3d at 1011 (“This case is not
controlled by [the leading Supreme Court and Ninth Circuit school cases] because
it is a case of the government itself speaking . . . .”).

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purpose. Indeed, any benefit that accrues to the sponsors ultimately serves the

City’s interests by providing current and putative sponsors with an incentive to

contribute to the Keep the Lights Foundation in the future. In this sense, the sign

is comparable to the enhanced underwriter acknowledgments in Knights of the

KKK . See 203 F.3d at 1088, 1093-94 & nn.10-11.

Second, it is uncontroverted that the City built, paid for, and erected the

sign. Aplt. App. at 86-87; see also Knights of the KKK , 203 F.3d at 1094 n.9

(recognizing that the announcements at issue served primarily to identify

sponsors, but noting that “conveyance of this collateral information remains a

communicative act of the government”) . Significantly, there is no indication that

any of the corporate sponsors even knew about the Happy Holidays sign, much

less exercised any editorial control over its design or content. Ms. Wells and the

FFRF could have obtained discovery on this issue by serving interrogatories on

Denver, see Fed. R. Civ. P. 33, or by deposing representatives of the listed

corporations. See Fed. R. Civ. P. 30(a)(1) (allowing deposition of non-party);

Fed. R. Civ. P. 45 (allowing party to subpoena witness to appear at deposition).

Rather than pursue these options, however, Plaintiffs stipulated to the entry of a

final judgment. Aplt. App. at 38-40. According to that stipulation, “[n]either the

Plaintiffs nor the Defendants has any additional witnesses, evidence , or argument

to present to the Court at this time and, therefore, agree that this action may,

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pursuant to Rule 65(a)(2) F.R.C.P., be advanced and consolidated on the merits

based upon the evidence received at the hearing on the Motion for Preliminary

Injunction.” Id. at 39, ¶ 4 (emphasis added).

As to the final Knights of the KKK factor, this litigation is itself an

indication that the City bears the ultimate responsibility for the content of the

display. Even more persuasive is the fact that the City has assumed full

responsibility for providing security for the display, including a fence to guard

against theft and protect citizens from possible electrical hazards, Aplt. App. at

88, video cameras, id. at 102-03, motion detectors, id. , and a security guard. Id.

at 69-70, 103. Accordingly, we conclude that the holiday display, including the

Happy Holidays sign, is government speech.

The dissent relies on a footnote in Knights of the KKK for the proposition

that “[a]n additional factor relevant to the inquiry is who the listener believes to

be the speaker.” Infra at __ [Dissent at 3] (citing Knights of the KKK , 203 F.3d at

1094 n.9 ). Even assuming, arguendo, that “listeners’ perception” is one relevant

factor, our consideration of that factor would be limited to the perception of an

informed and objectively reasonable observer. Cf., e.g. , Good News Club v.

Milford Cent. Sch. , No. 99-2036, --- U.S. ---, ---, 2001 WL 636202, at *11 (U.S.

June 11, 2001) (rejecting subjective, speculative listeners’ perception argument as

“a modified heckler’s veto, in which a group’s religious activity can be proscribed

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on the basis of what the youngest members of the audience might misperceive ”)

(emphasis added); Capitol Square Review & Advisory Bd. v. Pinette , 515 U.S.

753, 780 (1995) ( O’Connor, J., concurring in part and concurring in judgment)

(“[T]he reasonable observer . . . must be deemed aware of the history and context

of the community and forum in which the religious display appears. . . . Nor can

the knowledge attributed to the reasonable observer be limited to the information

gleaned simply from viewing the challenged display. ”) (emphasis added) ;

Bauchman ex rel. Bauchman v. West High School, 132 F.3d 542, 555 (10th Cir.

1997) (attributing to reasonable observer knowledge of “the purpose, context and

history of public education in Salt Lake City, including the historical tension

between the government and the Mormon Church”). In this case, an informed,

objectively reasonable observer would know the significance of the display’s

location on the City and County Building Steps; would know that Denver has

erected this or a similar holiday display since at least 1979, see Citizens

Concerned for the Separation of Church & State , 508 F. Supp. at 825; would view

the size, content, and location of the Happy Holidays sign in the context of the

display as a whole; 7
and would consider the fact that the sign’s largely generic

lettering is a far cry from the sophisticated graphic design generally associated

7
As shown by the Addendum to this opinion, the dissent’s assertion that the
Happy Holidays sign “appears to dominate one side of the display,” infra at ___
[Dissent at 2] (emphasis added), is inaccurate. See Addendum, infra at __ [Op. at
41].

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with commercial speech. Weighed against this knowledge, we cannot agree with

the dissent’s conclusion that the mere fact that the sign did not contain the words

“Thank You” would lead a reasonable observer to conclude that the display was

corporate speech. Having determined that the display constituted government

speech, we turn now to the constitutional implications of that conclusion.

B. Given that the Holiday Display Constitutes Government Speech, To
What Extent Can Denver Control the Contents of the Display?

“[W]hen the State is the speaker, it may make content-based choices.”

Rosenberger , 515 U.S. at 833. For example, the First Amendment does not bar

the government from “mak[ing] a value judgment favoring childbirth over

abortion,” Rust , 500 U.S. at 192-92 (internal quotations and citations omitted), or

from implementing that judgment by “refusing to fund activities, including

speech,” which relate to abortion. Id. at 194-95. Similarly, “[a]n arm of local

government . . . may decide not only to talk about gay and lesbian awareness and

tolerance in general, but also to advocate such tolerance if it so decides, and

restrict the contrary speech of one of its representatives” by refusing to

incorporate that speech into its own presentation. Downs , 228 F.3d at 1014; see

also Knights of the KKK , 203 F.3d at 1094-95 (holding that government-owned

radio station may control the contents of its own speech, but declining to decide

whether governmental speech that is not editorial in nature is per se exempt from

forum analysis).

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 Upon consideration, we conclude that the City of Denver is entitled to

present a holiday message to its citizens without incurring a constitutional

obligation to incorporate the message of any private party with something to say.

“Simply because the government opens its mouth to speak does not give every

outside individual or group a First Amendment right to play ventriloquist.”

Downs , 228 F.3d at 1013. Although we recognize that “viewpoint-based funding

decisions can be sustained in instances in which the government is itself the

speaker,” Velazquez , 121 S. Ct. at 1048, there is nothing in this record that

supports the plaintiffs’ assertion that the Winter Solstice sign was excluded from

the display for viewpoint-based reasons. In fact, Mr. Hall testified that he had

also denied an anonymous caller’s request for permission to add a menorah to the

1999 display. Aplt. App. at 95, 104. We see no inconsistency between that denial

and Mr. Hall’s reluctance to rule out the possibility that he might consider an

elected official’s proposal that the City include a menorah in future displays. Id.

at 108-09. Nor do we agree that the district court abused its discretion by

sustaining the City’s objection to a line of inquiry that called for speculation as to

the possible content of future displays. Id. at 109.

In sum, we hold that the City acted within its rights to control the contents

of its own speech. See, e.g. , Muir , 688 F.2d at 1044 (“[T]he First Amendment

does not preclude the government from exercising editorial control over its own

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medium of expression.”).

II. Does Denver’s Private Unattended Display Ban, Either on its Face or As
Applied, Violate the Plaintiffs’ First Amendment Rights to Freedom of
Speech?

Plaintiffs’ Winter Solstice sign was removed not only because it was “an

intrusion into the display [the City] had erected,” but also because “[i]t was an

unattended display on the front [ i.e. , East] steps of the City and County Building.”

Aplt. App. at 92. Although Denver permits demonstrations, rallies, picketing,

leafleting, and similar speech activities on the City and County Building’s interior

sidewalks and -- absent a conflict with another event -- on the East Steps, the City

does not permit private unattended displays on the steps. Id. at 89-92. Thus,

whether speech is permissible or impermissible depends solely on its “manner,”

namely: whether or not the speaker is present. Id. at 91. As explained, we assess

the regulation of private speech on government property according to a three-step

analytical framework. Cornelius , 473 U.S. at 797; accord Mesa v. White , 197

F.3d 1041, 1044 (10th Cir. 1999); Summum v. Callaghan , 130 F.3d 906, 913

(10th Cir. 1997). Because the defendants have conceded that the Winter Solstice

sign constitutes protected speech, Aplee. Br. at 12, our analysis begins with the

second step: whether the property to which the plaintiffs seek access is a

traditional public forum, a designated public forum, or a non-public forum. See

Cornelius , 473 U.S. at 797; accord Summum , 130 F.3d at 913. This

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characterization of the relevant forum is necessary to determine “the extent to

which [Denver] may limit access to this property -- i.e. , whether a heightened or

reasonableness standard applies . . . .” Summum , 130 F.3d at 913 (citing

Cornelius , 473 U.S. at 797). Third, “we must assess whether [Denver’s]

justifications . . . satisfy the requisite standard,” id. , in this case, whether the

unattended display ban is narrowly tailored to further significant government

interests, while leaving open ample alternative channels for communication. See

Ward v. Rock Against Racism , 491 U.S. 781, 791 (1989).

A. Public Forum Analysis

“[T]he Court [has] identified three types of fora: the traditional public

forum, the public forum created by government designation, and the nonpublic

forum.” Arkansas Educ. Television Comm’n v. Forbes , 523 U.S. 666, 677 (1998)

(quoting Cornelius , 473 U.S. at 802) (alteration in original); accord Hawkins v.

City & County of Denver , 170 F.3d 1281, 1286 (10th Cir.), cert. denied , 528 U.S.

871 (1999). In addition, certain government properties are “not fora at all.”

Forbes , 523 U.S. at 677 (citation omitted). Traditional public fora, such as public

parks and sidewalks, are places that “by long tradition or by government fiat have

been devoted to assembly and debate . . . .” Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n , 460 U.S. 37, 45 (1983). Within a traditional public fora, the

appropriate First Amendment standard depends on whether a restriction on speech

- 20 -
is content-based or content-neutral. Content-based restrictions must survive strict

scrutiny -- i.e. , they must be narrowly tailored to further a compelling

governmental interest. Id. ; see also United States v. Playboy Entm’t Group, Inc. ,

529 U.S. 803, 813 (2000) (noting that under strict scrutiny, “[i]f a less restrictive

alternative would serve the Government’s purpose, the legislature must use that

alternative”). “On the other hand, we will uphold content-neutral time, place, and

manner restrictions on speech provided they are ‘narrowly tailored to serve a

significant government interest, and leave open ample alternative channels of

communication.’” Hawkins , 170 F.3d at 1286 (quoting Perry , 460 U.S. at 45)

(emphasis added).

The second category of government property consists of designated public

fora. “The designated public forum, whether of a limited or unlimited character,

is one a state creates ‘by intentionally opening a non-traditional forum for public

discourse.’” Hawkins , 170 F.3d at 1286 (quoting Cornelius , 473 U.S. at 802 ); see

also Forbes , 523 U.S. at 677 (“Designated public fora . . . are created by

purposeful governmental action.”). Designated public fora differ from traditional

public fora in that “a State is not required to indefinitely retain the open character

of the facility . . . .” Hawkins , 170 F.3d at 1287 (quoting Perry , 460 U.S. at 46);

accord Summum , 130 F.3d at 914; see also DiLoreto v. Downey Unified Sch.

Dist. Bd. of Educ. , 196 F.3d 958, 970 (9th Cir. 1999) (“The government has an

- 21 -
inherent right to control its property, which includes the right to close a

previously open forum.”) (citations omitted), cert. denied , 529 U.S. 1067 (2000).

While a designated public forum remains open for public discourse, however, the

government is subject to the same standards that apply in a traditional public

forum. Perry , 460 U.S. at 46.

“Other government properties are either nonpublic fora or not fora at all.”

Forbes , 523 U.S. at 677 (citing Int’l Soc’y for Krishna Consciousness, Inc. v. Lee ,

505 U.S. 672, 678-79 (1992)). “Control over access to a nonpublic forum can be

based on subject matter and speaker identity so long as the distinctions drawn are

reasonable in light of the purpose served by the forum and are viewpoint neutral.”

Cornelius , 473 U.S. at 806 (citing Perry , 460 U.S. at 49). A reasonable restriction

“need not be the most reasonable or the only reasonable limitation.” Cornelius ,

473 U.S. at 808.

1. Definition of Forum

Before we may properly characterize the forum at issue, we must first

identify its boundaries. See id. at 801 (“[F]orum analysis is not completed merely

by identifying the government property at issue”) . To define the relevant forum,

the Supreme Court has

focused on the access sought by the speaker. When speakers seek
general access to public property, the forum encompasses that
property. In cases in which limited access is sought, [the Court’s]
cases have taken a more tailored approach to ascertaining the

- 22 -
 perimeters of a forum within the confines of the government
property.

Id. (citation omitted). For example, the Cornelius Court defined the relevant

forum as the federal fund-raising drive to which the plaintiffs sought access,

rather than the federal workplace in general. Id. ; see also Lebron v. Nat’l R.R.

Passenger Corp. (Amtrak) , 69 F.3d 650, 655-56 (2d Cir.) (defining forum as

particular advertising space to which plaintiff sought access, rather than

alternative space also owned by defendant), amended by 89 F.3d 39 (2d Cir.

1995); Texas v. Knights of the Ku Klux Klan , 58 F.3d 1075, 1078 (5th Cir. 1995)

(defining forum as Adopt-a-Highway Program rather than public highways

generally, where KKK sought permission to participate in Program near recently

desegregated housing project). We recognize that Ms. Wells and the FFRF

initially sought access only to the fenced-off area, Aplt. Add. at 9-12 (Pl. Ex. 11-

12), and that they actually installed the Winter Solstice sign inside the fence. Id.

at 2 (Pl. Ex. 4). Nonetheless, the record shows that for the purpose of Plaintiffs’

“as applied” challenge to the unattended display ban, the relevant forum

encompasses the entire East Steps, whether fenced-off or not. See Aplt. App. at

49 (“[W]e don’t even want [the Winter Solstice sign] included in [Denver’s]

display. All we want to do is to have the right to post our sign unattended on the

- 23 -
steps . . . .”) (statement by Plaintiffs’ counsel at hearing) (emphasis added). 8

2. Characterization of Forum

The parties disagree as to whether the relevant forum is a traditional or a

designated public forum. See Aplt. Br. at 10 & n.3 (traditional); Aplee. Br. at 12-

14 (designated). We find it unnecessary to resolve this dispute. As explained, the

only distinction between the two types of public fora is that the government “is

not required to indefinitely retain the open character” of a designated public

forum. Perry , 460 U.S. at 46; accord Hawkins , 170 F.3d at 1287; Summum , 130

F.3d at 914. Since neither the plaintiffs nor the defendants claim that the

unattended display ban has effectively closed the forum, the distinction between

traditional and designated public fora has no practical significance in this case.

E.g. , Aplt. App. at 114 (“[T]he only difference between [a designated] and a

traditional public forum . . . is that [a designated forum] can be canceled as a

public forum if the City so chooses, but it hasn’t so chosen, so it’s a public

forum.”) (statement by Plaintiffs’ counsel at hearing). As long as a public forum

remains open, the government is subject to the same constitutional standards

regardless of whether the forum is designated or traditional; the critical inquiry is

content-neutrality.

8
With respect to Plaintiffs’ facial challenge to the unattended display ban,
of course, our consideration is not limited to the East Steps, but includes all areas
covered by the policy, i.e. , the steps and interior sidewalks. See infra at __ [Op.
at 33-35].

- 24 -
 3. Content-Neutrality

In this case, the district court concluded that Denver did in fact have a

policy prohibiting unattended displays, and that the policy was content-neutral.

Aplt. App. at 139-40. We agree. The trial court based its finding on the

testimony of Mr. Hall, and on the absence of any evidence to the contrary. Id. at

139-42. Despite the district court’s exclusive reliance on testimonial evidence,

“in cases raising First Amendment issues . . . an appellate court has an obligation

to ‘make an independent examination of the whole record’ in order to make sure

that ‘the judgment does not constitute a forbidden intrusion on the field of free

expression.’” Rankin v. McPherson , 483 U.S. 378, 386 n.9 (1987) (quoting Bose

Corp. v. Consumers Union of United States, Inc. , 466 U.S. 485, 499 (1984)

(quoting New York Times Co. v. Sullivan , 376 U.S. 254, 284-86 (1964))); see

also Aplt. App. at 49 (“[T]his case probably can be decided without evidence . . .

because it really is an issue of law. I don’t think there is much factual dispute.”)

(comment by court). Thus, our review is de novo. Snyder v. Murray City Corp. ,

159 F.3d 1227, 1230 n.7 (10th Cir. 1998) (en banc).

Upon a careful review of the entire record, we agree that Denver does

indeed have a policy that prohibits unattended displays on the East Steps, and we

hold that this policy is content-neutral both on its face and as applied. As to the

existence of the policy, Plaintiffs have presented no evidence to counter Mr.

- 25 -
Hall’s testimony, given under oath, that Denver’s unattended display ban has been

in effect since at least 1985. Aplt. App. at 92, 97. Unlike the dissent, we cannot

construe the City’s failure to cite the unattended display ban in response to

Plaintiffs’ letters as evidence that no such policy existed. The record shows that

both the 1998 letter and the 1999 letter specifically requested permission to place

the Winter Solstice sign inside the fenced-off display. Aplt. Add. at 9 (Pl. Ex. 11)

(1999 letter) (noticing intent “to place the [] sign inside this year’s Christmas

display area”) (emphasis added); id. at 11 (Pl. Ex. 12) (1998 letter) (noticing

intent to have the sign “ included in the Christmas display”) (emphasis added) .

But cf. Aplt. Br. at 4 (stating that letters noticed Plaintiffs’ “intention to place a

display on the steps of the City and County Building”). We have already held that

the City was not required to incorporate Plaintiffs’ message into its holiday

display. Accordingly, we cannot accept Plaintiffs’ argument that the City’s

failure to cite the unattended display ban constitutes evidence that the ban was

fabricated for the purpose of this litigation. Aplt. Br. at 12. 9
The same reasoning

applies to the anonymous caller’s request to add a menorah to the display – i.e. ,

9
The policy was not clearly implicated until the hearing on December 23,
1999, when Plaintiffs’ counsel clarified: “we don’t even want [the sign] included
in [Denver’s] display. All we want to do is to have the right to post our sign
unattended on the steps of city hall.” Aplt. App. at 49. But cf. id. at 13
(requesting, in Complaint, that the court order “Defendants to permit the
Plaintiffs to display their sign unattended in the fenced-off area on the steps of
Denver’s City and County Building”) (emphasis added).

- 26 -
inside the fence. Aplt. App. at 104. The City’s failure to volunteer information –

either to Plaintiffs or to the anonymous caller – about an irrelevant policy is

probative of nothing.

B. Time-Place-Manner Restrictions

A content-neutral restriction in a traditional or designated public forum is

subject to review as a regulation on the time, place, and manner of speech. In a

time-place-manner analysis, the government must show that the regulation is

“narrowly tailored to serve a significant governmental interest, and that [it]

leave[s] open ample alternative channels for communication of the information.”

Ward , 491 U.S. at 791 (internal quotations and citations omitted); see also Perry ,

460 U.S. at 45. Applying this test, we conclude that Denver’s unattended display

ban is constitutional .

1. Significant Governmental Interests

The analysis applicable to time-place-manner restrictions is more lenient

than strict scrutiny. First, the interests supporting a content-neutral

time-place-manner regulation need not be compelling, only significant or

substantial. See Ward , 491 U.S. at 796; cf. Playboy , 529 U.S. at 813 (noting that

content-based regulation must “promote a compelling Government interest”). The

City has asserted two interests supporting the unattended display ban: (1) keeping

the steps free of physical obstructions in order to enable access to the building,

particularly in the event that an emergency evacuation is necessary, and (2)

- 27 -
avoiding the burden of eventually disposing of displays left unattended. See

Aplee. Br. at 14-15.

The Supreme Court has upheld a wide range of government interests as

sufficiently significant or substantial to justify a time-place-manner restriction.

E.g. , Ward , 491 U.S. at 796 (“substantial interest in protecting . . . citizens from

unwelcome noise”) (quotations and citations omitted); Clark v. Cmty. for Creative

Non-Violence , 468 U.S. 288, 296 (1984) (“substantial interest in maintaining the

parks . . . in an attractive and intact condition”). In 1997, the Court held that the

government’s asserted interests in ensuring public safety and order, promoting the

free flow of traffic on streets and sidewalks, protecting property rights, and

protecting a woman's freedom to seek pregnancy-related services, in combination,

were significant. Schenck v. Pro-Choice Network , 519 U.S. 357, 376 (1997).

The City’s interest in avoiding the burden of disposing of unattended displays is

not supported by the record, but because the City’s interest in facilitating building

access implicates public safety, e.g. , Aplt. App. at 91-92, that interest is

significant and substantial. In light of our holding that the plaintiffs have no right

to add their sign to the City’s display, their argument that a sign “placed well

inside the fenced-off area” would not constitute an obstruction is irrelevant. See

Aplt. Br. at 10-11; Aplt. App. at 71, 101.

2. Narrowly Tailored

Second, unlike a restriction subject to strict scrutiny, a time-place-manner

- 28 -
regulation need not be the least restrictive means available in order to qualify as

“narrowly tailored.” Ward , 491 U.S. at 798 . In a time-place-manner case, “the

requirement of narrow tailoring is satisfied so long as the . . . regulation promotes

a substantial government interest that would be achieved less effectively absent

the regulation,” and does not “burden substantially more speech than is necessary

to further the government's legitimate interests.” Ward , 491 U.S. at 799

(quotations and citations omitted, alteration in original). The permissive nature of

the time-place-manner “narrowly tailored” requirement was most recently

illustrated in Hill v. Colorado , 530 U.S. 703 (2000). In that case, the Court

upheld a Colorado statute that created a floating “no-approach” zone around

anyone within one hundred feet of the entrance to any health care facility. While

acknowledging that the statute would sometimes operate to limit harmless speech,

the Court concluded that “[a] bright-line prophylactic rule may be the best way to

provide protection . . . .” Hill , 530 U.S. at 729. In light of this precedent, we

must conclude that the unattended display ban is narrowly tailored. In the

absence of the ban, Denver’s asserted interests would certainly be “achieved less

effectively,” and there is no evidence that the ban restricts “substantially more

speech than is necessary.” Ward , 491 U.S. at 799; see also infra at __ [Op. at 30-

31] (discussing alternative channels of communication).

3. Alternative Channels of Communication

The defendants presented undisputed testimony that the ban leaves speakers

- 29 -
with ample alternatives for communicating their message:

Q: [I]f I can summarize, you’re saying that leafleting,
demonstrations, picketing, and all other kinds of First
Amendment activities where the speaker is present is available
anywhere on the steps or in the interior sidewalk or the
pedestrian sidewalk by the City and County Building?
A. That’s correct.

Aplt. App. at 91 (direct examination of Mr. Hall); see also id. at 89-91. The

plaintiffs’ concern that “because of the controversial nature of the sign,

confrontations would inevitably result thus jeopardizing [the sign holder’s]

physical safety” is irrelevant to their First Amendment rights. Aplt. Br. at 7; see

also id. at 11 (noting Ms. Wells’ concern that “if she is required to attend the

sign, her personal safety would be put in danger from malcontents who might feel

offended”). The First Amendment does prohibit the suppression of unpopular

speech because of its content, but it does not require the government to serve as a

speaker’s proxy or bodyguard in order to enhance the strength of the speaker’s

message in the marketplace of ideas. See Regan v. Taxation With Representation

of Wash. , 461 U.S. 540, 549-50 (1983) (“[A]lthough government may not place

obstacles in the path of a person’s exercise of freedom of speech, it need not

remove those not of its own creation.”) (internal quotations, citation, and

alterations omitted).

That said, we cannot ignore the fact that assault and menacing are illegal

under Colorado law. See Colo. Rev. Stat. § 18-3-204 (“A person commits the

- 30 -
crime of assault in the third degree if he knowingly or recklessly causes bodily

injury to another person . . . .”); Colo. Rev. Stat. § 18-3-206 (“A person commits

the crime of menacing if, by any threat or physical action, he or she knowingly

places or attempts to place another person in fear of imminent serious bodily

injury.”); see also 18 U.S.C. § 241 (prohibiting conspiracies to interfere with

exercise of a federal right, including the right to free speech). Our evaluation of

whether the unattended display ban leaves Ms. Wells and the FFRF with

sufficient alternative channels of communication must presume that people who

view the sign will obey the law. In sum, we hold that Denver’s ban on

unattended private displays is a content-neutral regulation of the time, place, or

manner – in this case, manner – of speech, and that it is therefore consistent with

the First Amendment.

C. Capitol Square Review & Advisory Bd. v. Pinette , 515 U.S. 753
(1995)

The plaintiffs are very critical of the district court’s oral reference to

Capitol Square Review & Advisory Bd. v. Pinette , 515 U.S. 753 (1995). See

Aplt. Br. at 9. In Pinette , the Court held that the State does not violate the

Establishment Clause when, pursuant to a content-neutral policy, it permits a

private party to display an unattended cross in a traditional public forum. 515

U.S. at 770. The Court noted that a State could “impose reasonable, content-

neutral time, place, and manner restrictions” in public fora, and noted in dicta that

- 31 -
“a ban on all unattended displays, which did not exist [in Pinette ], might be one

such” restriction. Id. at 761. In this case, Ms. Wells and the FFRF claim that

“the Court indulged in a strained and incorrect reading” of that dicta. Aplt. Br. at

9. Specifically, they allege that the court “erroneously construed Pinette ” as

overruling, by dicta, the Supreme Court’s prior decisions in Ward and Perry .

Aplt. Br. at 9. In addition, the plaintiffs object to the court’s failure to explicitly

conduct the time-place-manner analysis set out in Ward . Aplt. Br. at 8, 15. These

arguments are unpersuasive.

First, it is well-established that “we are free to affirm a district court

decision on any grounds for which there is a record sufficient to permit

conclusions of law, even grounds not relied upon by the district court.” United

States v. Sandia , 188 F.3d 1215, 1217 (10th Cir. 1999) (quotations and citation

omitted). Upon de novo review, we conclude that the unattended display ban is a

valid time-place-manner restriction, and the district court’s discussion of the

various opinions in Pinette hardly displaces our analysis. In any case, we find no

error in the court’s reference to Pinette . The relevant language in Justice Scalia’s

majority opinion -- joined, in pertinent part, by six other justices -- hypothesized

that an unattended display ban “might be” an example of a valid

time-place-manner restriction. Pinette , 515 U.S. at 761. 10
The district court in

10
The language in Justice Souter’s concurring and Justice Stevens’
(continued...)

- 32 -
this case consistently referred to the relevant language as dicta. E.g. , Aplt. App.

at 116 (“ Capitol Square indicates there can be a ban on all unattended displays. It

did not occur in that case, so it’s dicta . . . .”); see also id. at 137-138. Taking the

Pinette Court’s suggestion as a starting point, the court then concluded that the

policy before it was, in fact, a valid time-place-manner restriction. In our view,

the court did conduct a time-place-manner analysis, despite its failure to say

whatever magic words the plaintiffs were looking for.

D. Facial Challenge to the Unattended Display Ban: Unbridled
Discretion

Plaintiffs also challenge the unattended display ban on its face, claiming

that the prohibition is a per se violation of the First Amendment in that it vests

unbridled discretion in city officials. “[I]n the area of free expression a licensing

statute placing unbridled discretion in the hands of a government official or

agency constitutes a prior restraint and may result in censorship.” City of

Lakewood v. Plain Dealer Pub. Co. , 486 U.S. 750, 757 (1988) (citations omitted);

see also, e.g. , Police Dep’t of Chicago v. Mosley , 408 U.S. 92, 97 (1972);

10
(...continued)
dissenting opinions is more definitive, but that language did not carry a majority
of the Court. Id. at 783-84 (Souter, J., concurring in part and concurring in the
judgment) (“The fact that the capitol lawn has been the site of public protests and
gatherings, and is the location of any number of the government's own unattended
displays . . . does not disable the State from closing the square to all privately
owned, unattended structures .”) (emphasis added); id. at 803 (Stevens, J.,
dissenting) (noting that “a State may impose a ban on all private unattended
displays in [] a [public] forum ”) (emphasis added).

- 33 -
Shuttlesworth v. City of Birmingham , 394 U.S. 147, 150-53 (1969); Poulos v.

New Hampshire , 345 U.S. 395, 407 (1953). As a preliminary matter, we note that

the fact that Denver’s policy is unwritten is not fatal, but merely a factor to be

considered. Lebron , 69 F.3d at 658 (“The fact that a policy is not committed to

writing does not of itself constitute a First Amendment violation.”) .

In addition, the record indicates that the unattended display ban leaves very

little room for official discretion -- if any. E.g. , Aplt. App. at 97, 107 (testifying

that there are no exceptions to the unattended display ban) (Mr. Hall). To counter

this evidence, Ms. Wells and the FFRF note that in the wake of the Columbine

High School shooting in April 1999, the mayor allowed “signs, cards, stuffed

animals, and other paraphe[r]nalia [that] were taped to the sidewalk and the fence

below the steps” by mourners to remain unattended for ten to fourteen days. Aplt.

Br. at 15; see also Aplt. App. at 73. There is no other evidence that the City has

permitted private, unattended displays at the City and County Building, and there

is no evidence that the City has ever permitted such displays on the East Steps.

Aplt. App. at 77, 93-94, 97, 107.

Even if we assume that the Columbine displays constitute evidence that the

policy allows official discretion, we find that discretion is sufficiently bounded to

survive constitutional scrutiny. The unbridled discretion doctrine requires that

official discretion affecting First Amendment interests be bounded by limits that

are “made explicit by textual incorporation, binding judicial or administrative

- 34 -
construction, or well-established practice .” City of Lakewood , 486 U.S. at 770

(citations omitted, emphasis added). In this case, Denver’s “well-established

practice” with respect to the unattended display ban appears to be one of uniform

enforcement, with the sole exception of the Columbine displays. As discussed

below, the events surrounding the Columbine displays were extraordinarily tragic

and highly emotional. Neither City of Lakewood nor any other unbridled

discretion case supports the proposition that a single, unique exception to a

generally applicable and otherwise uniformly enforced policy is sufficient to

render that policy constitutionally void. Accordingly, we must reject the

plaintiffs’ claim that the City’s discretion is unfettered.

E. As Applied Challenge to the Unattended Display Ban: Selective
Enforcement

As to the application of the policy, Plaintiffs have presented no probative

evidence to counter Mr. Hall’s testimony that the policy is and always has been

enforced in a uniform, non-discriminatory manner, without regard to content or

viewpoint. Aplt. App. at 92-93, 97, 107. We have given careful consideration to

the Columbine displays, see Aplt. App. at 73, 77, 92-93, 97; Aplt. Add. at 5-8 (Pl.

Ex. 7-10), taking judicial notice of the facts surrounding those displays, see Fed.

R. Evid. 201(b), (c), and we conclude that the plaintiffs’ selective enforcement

claim is not supported by the record. On April 20, 1999, two masked gunmen

opened fire on their fellow students at Columbine High School in Littleton,

- 35 -
Colorado. The shooters murdered thirteen high school students, then killed

themselves. An additional twenty-three students were hospitalized, twenty-one

with gunshot wounds. On April 21-22, 1999, the City of Denver sponsored a

memorial event in Civic Center Park, which is across the street from the City and

County Building at issue in this appeal. Aplt. App. at 93 . Simultaneous with that

event, grieving citizens left various items in the nature of teddy bears, flowers,

and notes on the interior sidewalks surrounding the East Steps in order to express

solidarity with the victims and their families. Aplt. Add. at 5-8 (Pl. Ex. 7-10).

Despite the unattended display ban, which applies to the interior sidewalks

as well as the East Steps, Mayor Webb elected to postpone removing those items

for ten to fourteen days. Aplt. App. at 73, 97. According to Mr. Hall, the

mayor’s decision was based on “the particularly tragic nature of that event, the

heinous nature of the crime, and simply the outpouring of sympathy” from

Denver’s community. Id. at 93 . Like the district court, we believe that the

Columbine shooting was so unique and so extraordinarily horrific that the

mayor’s decision not to remove the mourners’ teddy bears and flowers is simply

not probative as to the general operation of the unattended display ban. See id. at

140 (“I can’t really give weight to [the Columbine displays] as some evidence that

there is no policy, because that was a totally unique situation. That was a

situation which never arose before and probably hopefully never will arise

again.”) (statement by court). On direct examination, even Ms. Wells expressed

- 36 -
doubts as to whether the Columbine display was properly described as “an

exception to their policy [concerning] unattended displays . . . .” Id. at 73.

We must also reject Plaintiffs’ contention that the district court erroneously

denied them the opportunity to develop a complete factual record on the issue of

selective enforcement. Aplt. Br. at 14. At the hearing on Plaintiffs’ motion for

preliminary injunctive relief, the City objected to the following question, posed to

Mr. Hall: “You think the Columbine situation is more important than Ms. Wells’

sign?” Aplt. App. at 98. The court sustained the objection on the grounds that

the question was not only argumentative, but also irrelevant in that it asked the

“witness his personal views about which is more important.” Id. at 99. We see

no abuse of discretion in the court’s ruling.

I II. Free Exercise, Establishment Clause and Equal Protection Challenges

Plaintiffs’ remaining constitutional arguments are somewhat elusive. The

underlying premise for all three challenges is that the Winter Solstice sign is

“religious in the sense that atheism is a belief system that competes with theistic

religions . . . .” Aplt. Br. at 20. Plaintiffs cite no legal authority for this

proposition, but as we did in Otero v. State Election Bd. of Okla. , 975 F.2d 738,

740 (10th Cir. 1992), we will assume, without deciding, that atheism is a religion

for First Amendment purposes. Next, the plaintiffs claim that:

By keeping [the Winter Solstice] sign off the steps of City [sic] and
by imposing . . . restrictions on it that do not apply to the creche
[presumably, the unattended display ban], the City is preferring

- 37 -
 Christianity over non-religion and theism over atheism. This
abridges Wells’ right . . . to free exercise of her religious beliefs
under the First Amendment and is a denial of equal protection under
the Fourteenth Amendment. It is also an unconstitutional
establishment of religion under the First Amendment because it
violates the second prong [of] the Lemon test . . . .

Aplt. Br. at 20-21 (footnote omitted); cf. Lemon v. Kurtzman , 403 U.S. 602, 612-

13 (1971) (articulating three-part test for Establishment Clause challenges: first,

the governmental action at issue “must have a secular legislative purpose; second,

its principal or primary effect must be one that neither advances nor inhibits

religion; finally, [it] must not foster an excessive government entanglement with

religion”) (internal quotations and citations omitted). Beyond Lemon , Plaintiffs

cite no legal authority for these assertions.

Because the challenged policies are both generally applicable and neutral as

to religion, the free exercise claims must fail. See Shaffer v. Saffle , 148 F.3d

1180, 1181-82 (10th Cir. 1998) (holding that religion-neutral law that is generally

applicable does not violate Free Exercise Clause, despite incidental effect on

religious practice); accord Employment Div., Dep’t of Human Resources v.

Smith , 494 U.S. 872, 878-79 (1990). The plaintiffs’ claims under the

Establishment Clause are also unavailing. As to the exclusion of the Winter

Solstice sign from the City’s display, we find the reasoning employed by Citizens

Concerned for Separation of Church & State v. City & County of Denver , 508 F.

Supp. 823 (D. Colo. 1981), aff’d , No. 82-1022 (10th Cir. May 14, 1984)

- 38 -
(unpublished order), to be persuasive. See supra note 3. The fact that the present

plaintiffs seek to add to the City’s display, rather than to dismantle it, makes no

difference to the Establishment Clause analysis. Cf. Snyder , 159 F.3d at 1233

(rejecting Establishment Clause claim by individual seeking “equal public access

to a legislative body’s program of invocational prayers”). With respect to the

unattended display ban, Plaintiffs fail on each prong of the Lemon test. 11 As

explained in our discussion of the significant governmental interests supporting

the policy, see supra at __ [Op. at 27-29], the unattended display ban has a secular

purpose. Cf. Lemon , 403 U.S. at 612. There is no evidence that the policy’s

“principal or primary effect” either “advances [or] inhibits religion,” id. (citation

omitted), nor does it “foster an excessive government entanglement with

religion.” Id. at 613 (internal quotations and citation omitted).

Plaintiffs’ equal protection claims are also without merit. Contrary to

Plaintiffs’ characterization, the display, including the Happy Holidays sign, is the

City’s speech. As explained, the plaintiffs have no First Amendment rights to

dictate the content of that speech. Thus, there is no evidence that the plaintiffs

11
The dissent concedes “that a content-neutral policy banning all
unattended displays would pass the Lemon test,” but concludes that no such
policy exists in this case. Infra at __ [Dissent at 6]. Given our conclusion that
Denver does have a content-neutral unattended display ban, we need not address
the dissent’s analysis under Lemon , nor is it necessary to respond to the dissent’s
rhetoric regarding the implications of Mr. Hall’s brief conversation with an
anonymous caller. See infra at __ [Dissent at 7-8].

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have been “intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.” Village of Willowbrook

v. Olech , 528 U.S. 562, 564 (2000) (citations omitted). Without such evidence,

the equal protection claim must fail. Nor is there any evidence that similarly

situated persons were subject to differential treatment with respect to the

unattended display ban. As noted in our discussion of the plaintiffs’ selective

enforcement claim, the Columbine mourners were not similarly situated. See

supra at __ [Op. at 35-37].

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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 Addendum

Aplee. Supp. App. at 2 (Def. Ex. C).

Aplt. Add. at 2 (Pl. Ex. 3).

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No. 00-1040, Wells v. City & County of Denver

BRISCOE, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion. First, I disagree with the

conclusion that the display on the Denver steps is solely government speech. Second, I

disagree with the conclusion that Denver has a neutral policy of banning all unattended

displays from the steps. Third, I disagree with the majority's analysis of the

Establishment Clause issue.

Standard of Review

In a First Amendment case, this court performs an independent examination of the

record to ensure protection of free speech rights. Hawkins v. City & County of Denver,

170 F.3d 1281, 1285 (10th Cir.), cert. denied, 528 U.S. 871 (1999). “In cases involving

the First Amendment, the de novo standard is appropriate. . . . [A]n appellate court has an

obligation to make an independent examination of the whole record in order to make sure

that the judgment does not constitute a forbidden intrusion on the field of free

expression.” Horstkoetter v. Dep't of Pub. Safety, 159 F.3d 1265, 1270 (10th Cir. 1998)

(internal quotations omitted).

Government Speech

The majority concludes that the display on the steps is government speech rather

than private speech. This conclusion is significant because “when the State is the

speaker, it may make content-based choices.” Rosenberger v. Rector & Visitors of Univ.

of Va., 515 U.S. 819, 833 (1995). I agree with Wells that the holiday display is not solely
government speech, but contains private speech, because it includes a billboard which

states:

HAPPY HOLIDAYS News 4
FROM THE Spirit of Colorado
Keep the Lights Foundation Coors Light
and the sponsors that King Soopers • AAA of Colorado
help maintain the lights at the Denver Rocky Mountain News
City and County Building Rock Bottom Brewery

Maj. Op. Add. This large billboard is the only sign evident from the photos of the

display included in the record and it appears to dominate one side of the display. See id.

The majority states that the billboard with the list of sponsors is a thank you from

the city to the sponsors, making it government speech. However, the language of the

billboard is not phrased as a thank you from Denver to the sponsors. Rather, it is a

greeting from the sponsors to the public. To a passerby, the billboard does not appear to

be from Denver, but from the sponsors, all of whom are private entities. The billboard

shows that those private corporations have co-sponsored the holiday display, also making

the display their speech as well as Denver’s speech.

In determining this is government speech, the majority relies on the four-factor

“test” in Knights of Ku Klux Klan v. Curators of University of Missouri, 203 F.3d 1085

(8th Cir. 2000). However, it is not clear whether the court in Knights of KKK was

creating a test to be applied in all government speech cases, or whether it was identifying

the factors that evidenced government speech in that case. See id. at 1093-94. An

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additional factor relevant to the inquiry is who the listener believes to be the speaker. See

id. at 1094 n.9 (differentiating the underwriting announcements from letters to the editor

because the letters “are more obviously the speech of the writer, not the government”).

In Knights of KKK, it was clear that the government was speaking. See id. at

1093-94. Similarly, in Downs v. Los Angeles Unified School District, 228 F.3d 1003,

1009-11 (9th Cir. 2000), it was clear to the reader that the bulletin board constituted

government speech, as presented by a state-employed teacher. In the present case, it is

not clear to the reader/listener that the government, rather than the sponsors, is the

speaker. All of the factors identified by the majority (purpose of the sign, who paid for

and built the sign, legal responsibility of the display) address who is actually responsible

for the message on the sign. While I agree that Denver owns and controls the sign, there

is no way for the casual reader/listener to know this. To a passerby, the sign and the

message are from a group of private organizations, and the holiday display is at least in

part their speech. I dissent from the majority holding that the display is government

speech.

Neutral Policy

The majority also concludes that Denver has a content-neutral policy of banning all

unattended displays from the steps. Because the steps are either a traditional or a

designated forum, such a policy would be a constitutional time, place, and manner

restriction. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761,

-3-
783-84 (Souter, J. concurring), 803 (Stevens, J. dissenting) (1995). However, I disagree

with the conclusion that Denver has such a policy.

John Hall testified that private unattended displays are not permitted on the steps

or the interior sidewalk and that this unwritten policy had been in place since at least

1985. However, on the two occasions that Wells requested information about the need

for a permit related to her sign, she was not told of such a policy. An anonymous caller

inquiring about adding a menorah to the holiday display was not told about this policy.

Following the Columbine tragedy, a display of cards, flowers, and stuffed animals

remained on the interior sidewalk in front of the steps of the building for over ten days.

Further, the annual Christmas display is itself an exception to the policy, as it is replete

with unattended displays and signs.

The majority states that the fact that the policy was not identified to Wells or the

anonymous caller does not mean it does not exist, and that the Columbine display was a

one-time exception. However, Denver’s failure to enforce the policy consistently should

come under very close scrutiny. See Members of City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 816 (1984) (“To create an exception for appellees'

political speech and not these other types of speech might create a risk of engaging in

constitutionally forbidden content discrimination.”). If Denver is permitted to make

exceptions to its policy that private unattended displays are not permitted on the steps or

interior sidewalk, or if Denver is permitted to make these exceptions without any

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established standards, it has the sort of unbridled discretion that permits viewpoint

discrimination and violates the First Amendment. See Schad v. Borough of Mount

Ephraim, 452 U.S. 61, 84 (1981) (Stevens, J., concurring) (“[M]unicipalities may regulate

expressive activity--even protected activity--pursuant to narrowly drawn content-neutral

standards; however, they may not regulate protected activity when the only standard

provided is the unbridled discretion of a municipal official.”). The majority reasons that

the discretion is not unbridled because it has been exercised only for the Columbine

tragedy. However, there is no indication that the policy was enforced prior to Wells’

request, only that the policy existed. Further, the fact that Denver has not exercised its

discretion to permit an exception to its policy on numerous occasions does not make the

exercise of its discretion any less unbridled. There are no clear restrictions on the City's

discretion or established standards which would in any way restrict the City when

granting an exception to its policy banning unattended displays.

Because the policy of disallowing unattended displays from the steps is unwritten

and subject to exceptions for which there are no standards, the policy is not a content-

neutral time, place, and manner restriction, and it does not pass constitutional muster.

-5-
 Establishment Clause

The majority concludes there is no Establishment Clause violation because we

previously have found the Denver display to be constitutional and because the unattended

display ban passes the test created in Lemon v. Kurtzman, 403 U.S. 602 (1971). I

disagree.

The case of Citizens Concerned for Separation of Church & State v. City &

County of Denver, 508 F. Supp. 823 (D. Colo. 1981), aff’d, No. 82-1022 (10th Cir. May

14, 1984) (unpublished order), is not persuasive or controlling authority for the resolution

of the Establishment Clause issue presented. Citizens dealt with the question of whether

the display’s inclusion of a creche was unconstitutional. It did not address the question of

whether including a creche while excluding other religious messages was constitutional.

This court has not addressed the question of exclusion of religious messages from holiday

displays.

I agree with the majority that a content-neutral policy banning all unattended

displays would pass the Lemon test. However, because such a policy does not exist here,

I would apply the Lemon test to the decision to exclude Wells’ sign, rather than any

alleged policy to ban all unattended displays. Under the Lemon test, the statute or action

must have a secular purpose, the primary or principal effect must neither advance nor

inhibit religion, and it must not foster excessive government entanglement with religion.

Lemon, 403 U.S. at 612-13.

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 Under Lemon, the first question is whether the decision to prohibit Wells’ sign has

a secular purpose. Denver argues that its purpose in prohibiting the sign is to keep the

steps from being blocked. However, this justification is meaningless since Wells

proposed putting the sign within the fenced-off display which Denver already had located

on the steps. Denver has not identified any other secular reason for its decision.

Under Lemon, the second question is whether the principal or primary effect is one

that neither advances nor inhibits religion. In Conrad v. City & County of Denver,724

P.2d 1309, 1316 (Colo. 1986), the court held that the holiday display’s primary effect was

not to advance or inhibit religion. However, the court noted that the presence of a nativity

scene may have the remote and incidental effect of advancing religion.

Hall testified that when an anonymous caller asked if she could put a menorah in

the holiday display, Hall told her that she could not. Thus, Denver has taken the position

that, as regards religious items, only items pertaining to the holiday of Christmas are

welcome in its display. Wells’ sign, like the menorah, represents an alternative religious

perspective that Denver has opted to exclude from its display. The decision to exclude

Wells' sign and a menorah from the display sends the message that Denver supports

Christianity and does not support other religions or religious viewpoints. When the City

creates that impression, it violates the Establishment Clause. Because the decision to

allow only Christian symbols in the display and to prohibit other religious perspectives

has the primary effect of promoting or inhibiting religion, Denver’s decision fails the

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second prong of the Lemon test.

Under Lemon, the third question is whether the decision fosters excessive

government entanglement with religion. To determine this question, we are required to

inquire as to whether there is excessive administrative entanglement and whether the

government action causes continuing political strife over aid to religion. Conrad, 724

P.2d at 1316. The answer to both of these questions is no. The only administrative

responsibilities involved are to deny the requests of all persons who wish to have their

non-Christian religion represented in the display. This is not complicated and has not

taken much administrative time. The only political strife that exists is caused by litigation

such as the present case. A plaintiff cannot create strife by litigating and then arguing

that the policy causes strife. Therefore, Denver’s decision passes the third prong of the

Lemon test.

Because the decision to exclude Wells’ sign violates the first two prongs of the

Lemon test, I dissent from the opinion’s holding that there is no basis for concluding there

is an Establishment Clause violation established in the present case.

I would reverse the district court's dismissal of Wells' claims and remand for

further proceedings.

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