F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 28, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CITIZENS FOR PEACE IN SPACE,
an unincorporated association;
W ILLIA M SU LZM A N ; M A RY LYNN
SHEETZ; BARBARA HUBER; No. 05-1391
G ERAR D JA CO BITZ; D O N N A
JOH NSO N; APRIL PERGL,
Plaintiffs - Appellants,
v.
TH E CITY O F C OLO RA D O
SPR INGS, Colorado, a Colorado
municipal corporation,
Defendant - Appellee.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 04-CV-464-RPM )
M ark Silverstein, American Civil Liberties Union Foundation of Colorado, (and
Edward T. Ramey, Isaacson, Rosenbaum, P.C., on the brief), Denver, Colorado,
for Plaintiffs - Appellants.
Thomas J. M arrese, Assistant City Attorney, (and Patricia K. Kelly, City
Attorney/Chief Legal Officer, Office of the City Attorney, on the brief), Colorado
Springs, Colorado, for Defendant - Appellee.
Before KELLY, EBEL, and GORSUCH, Circuit Judges.
KELLY, Circuit Judge.
Plaintiffs-A ppellants Citizens for Peace in Space and several of its
members (Citizens) appeal from the district court’s judgment in favor of
Defendant-Appellee The City of Colorado Springs (the City). The Citizens
sought nominal damages under 42 U .S.C. § 1983 for an alleged violation of First
Amendment rights. Specifically, the Citizens alleged that, from October 7 to
October 10, 2003, they were unconstitutionally prohibited from protesting in the
traditional public forums surrounding the Broadmoor H otel (B roadmoor) in
Colorado Springs, Colorado. After a three-day bench trial, the district court
issued a memorandum opinion and order in favor of the City. Citizens for Peace
in Space v. City of Colorado Springs, No. 04-CV-464-RPM , 2005 W L 1769230
(D. Colo. July 25, 2005). W e exercise jurisdiction over the resulting judgment
pursuant to 28 U.S.C. § 1291 and affirm.
Background
From October 7 through October 10, 2003, the Secretary of Defense hosted
a conference of the defense ministers of nineteen member nations of NATO, 1 plus
nine invitee nations, at the Broadmoor H otel in Colorado Springs. Approximately
1
NATO is the popular acronym for the North Atlantic Treaty
Organization, an alliance of twenty-six countries from North America and Europe
formed to fulfill the goals of the North Atlantic Treaty signed on April 4, 1949.
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1,000 delegates, family and staff attended the conference. The Department of
Defense leased the entire Broadmoor facility for the conference, including the
International Conference Center, which is located across the street.
The security plan for the conference included closing public streets and
sidewalks and imposing a large “limited access area” or “security zone.” This
security zone surrounded the Broadmoor and extended across public and private
property for several blocks in all directions. The perimeter was roughly defined
by five checkpoints at roadway intersections surrounding the Broadmoor property.
The security zone was completely closed to all persons except conference
attendees, accredited media, Broadmoor employees, individuals residing in the
security zone, guests of individuals residing in the security zone, and personnel
servicing the Broadmoor and the residences within the security zone.
The security plan resulted from the work of a task force that operated
pursuant to an international memorandum of agreement. The task force based its
planning on worldwide NATO protocols. The task force included officials from
the Air Force, the Army, the Colorado Springs Police Department (CSPD), the El
Paso County Sheriff’s Department, the FBI, the Department of Justice, the
Department of Transportation, the Department of Homeland Security, FEM A, and
NATO. The task force’s primary security concern was the threat of a terrorist
attack utilizing explosives. The task force envisioned that such an attack might
involve explosives driven onto the Broadmoor grounds by vehicle and detonated
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or explosives carried by an individual onto the grounds and detonated.
Accordingly, the breadth of the security zone ensured that the blast from any such
detonation would not get close enough to the Broadmoor to endanger any of the
delegates.
During the conference, several hundred personnel from the military and
various law enforcement agencies, including the CSPD , staffed the security zone.
Five checkpoints, placed at various intersections around the B roadmoor,
exclusively controlled access to the security zone. Security at the checkpoints
included screenings by metal detectors and explosive-sniffing dogs. Broadmoor
employees were bused into the zone from an off-site staging area, where, like
airline passengers, they were pre-screened by metal detectors and scanners.
Delegates, and their families and staffs, arrived and departed the conference by
motorcade. Several hundred members of the national and international media
were allow ed into the security zone, as well. Like the Broadmoor employees,
members of the media w ere pre-screened at an off-site staging area (the W orld
Arena) and bused into the Broadmoor. Once inside the security zone, members of
the media were restricted to an area around the International Conference Center,
across the street from the Broadmoor’s main building. The Broadmoor
employees, conference delegates, and media all entered the security zone through
Checkpoint 1 at the intersection of Lake Avenue and Second Street.
Protocols were also established allowing delivery and repair persons
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servicing the hotel to enter the security zone at Checkpoint 1. Likewise,
protocols allowed the residents of twenty-two private homes located within the
security zone to enter as they pleased; any time, day or night. Furthermore,
delivery and repair persons servicing the private residences were allowed to enter
and leave the security zone, as well as social guests of the residents living in the
tw enty-two homes, all of them passing through security at Checkpoint 1.
The Citizens are residents of Colorado Springs and long-time peace
activists. Their principal concern is with the militarization of space and the
prevention of war. Upon learning that the NATO conference would be held at the
Broadmoor, the Citizens consulted with the American Civil Liberties Union
(A CLU) and authorized it to communicate w ith the City on their behalf to see if
they could be allowed to conduct a peaceful protest within the security zone.
Specifically, the Citizens hoped to conduct their protest on a sidewalk across from
the International Conference Center. An ACLU attorney communicated the
Citizens’ w ishes to the City and explained that the proposed protest would
involve six persons who would hold banners on a sidewalk across the street from
the International Conference Center. The Citizens proposed a peaceful vigil that
would be limited to one hour. They further offered to submit to the same security
checks and screenings required of other persons allowed into the security zone.
The City rejected the request, contending that allow ing the Citizens’ protest
would require it to permit other groups to do the same, which would jeopardize
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the government’s ability to maintain security for the conference. Instead, the City
suggested that the Citizens conduct their protest outside the security zone, near
Checkpoint 1. The Citizens found this location unsatisfactory because the
conference delegates and international media, the Citizens’ target audience, could
only observe the protest briefly as their vehicles passed by.
Nevertheless, the Citizens did conduct their protest at Checkpoint 1,
standing by the side of the road (there were no sidewalks). This location was
several blocks from the International Conference Center. 2 There was no direct
line of sight between the protest location and the International Conference Center,
and the Citizens could barely be seen, if at all, from the Broadmoor itself. W hen
the Citizens requested that CSPD officers inform the conference delegates and
international media of their protest at Checkpoint 1, the officers declined.
The Citizens contend that even if the international media w ere alerted to
the existence of their protest, security protocols prohibited them from w alking
down Lake Avenue to interview the Citizens. Instead, the Citizens contend that
members of the international media would have had to leave the International
Conference Center by bus, return to their off-site staging area, and then arrange
2
Although the record is not entirely clear, it appears that Checkpoint 1 was
approximately 310 yards from the front of the International Conference Center.
See http://www.gmap-pedometer.com (last visited January 23, 2007). W e take
judicial notice of this distance. See Fed. R. Evid. 201(b),(c); see also Pearson v.
United States, 150 F.2d 219, 221 (10th Cir. 1945) (taking judicial notice of
distance); Nascone v. Spudnuts, Inc., 735 F.2d 763, 773 (3d Cir. 1984) (same).
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private transportation to the protest site. In fact, while conducting their protest,
the Citizens did not have any close, physical interaction with any of the
conference delegates or international media.
At trial the City introduced evidence that, based on staffing levels
incorporated into the security plan, officers would have been unable to control
protests that turned confrontational or unlaw ful. The staffing levels included, at a
minimum, sixty-five members of the CSPD . The CSPD officials testified that
generally allowing protestors into the security zone would have required doubling
the number of CSPD officers assigned to the conference. CSPD officials stated
that any protest, peaceful or otherwise, would require officer observation and
escort.
CSPD officials, however, conceded that there were sufficient officers to
observe and supervise the Citizens’ proposed six-person vigil. The district court
expressly found “[t]here were adequate personnel available to assure the
peacefulness of a one-hour demonstration and the prevention of any disruption to
the NATO conference.” Citizens for Peace in Space, 2005 W L 1769230, at *4.
The City argued, however, that allowing the Citizens into the restricted zone
would lead other groups to make similar requests. CSPD officials conceded the
City could have handled similar requests, under protocols similar to those
suggested by the Citizens, for groups limited to a small size.
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Discussion
In a First Amendment case, we have “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.” Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (internal
citations omitted). Thus, we review the district court’s findings of fact and its
conclusions of law de novo. Revo v. Disciplinary Bd. of the Supreme Court, 106
F.3d 929, 932 (10th Cir. 1997). W e conduct our review “without deference to the
trial court.” Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,
515 U.S. 557, 567 (1995); see also New York Times Co. v. Sullivan, 376 U.S.
254, 285 (1964).
The public streets and sidewalks encompassed by the security zone are
traditional public forums. See Hill v. Colorado, 530 U.S. 703, 715 (2000) (noting
that “public sidew alks, streets, and ways . . . are quintessential public forums”);
see also United States v. Grace, 461 U.S. 171, 177 (1983). The government may
impose reasonable time, place, and manner restrictions on speech in public
forums provided the restrictions are (1) content neutral, (2) that they are
“narrowly tailored to serve a significant governmental interest,” and (3) that they
“leave open ample alternative channels for communication.” W ard v. Rock
Against Racism, 491 U.S. 781, 791 (1989).
-8-
I. Application of The Time, Place, and M anner Factors
A. Content Neutrality
The Citizens concede that the City’s restriction is content neutral.
Although this concession is not controlling given our special standard of de novo
review, we see no reason to disagree. There is no evidence that the C ity’s
security plan drew any distinction based on the content of speech. Instead, it
implemented a total ban on public expression within the security zone, regardless
of the identity of the speaker or the subject of the message. See M enotti v. City
of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005). Accordingly, we hold that the
City’s security plan was content neutral.
B. Significant Government Interest
The Citizens similarly concede that the City’s interest in security is
significant. The Citizens, however, take issue with the nature of the exact
security interest asserted by the City, arguing that the City’s only asserted interest
was in keeping vehicle-borne explosives away from the conference. A review of
the record indicates that the City was concerned w ith the threat of terrorism
generally, including the use of vehicle and human-borne explosives, and with the
threat posed by disorderly and violent protestors. See II Aplt. App. at 476:11-24,
518:8-18, 554:16-22; III Aplt. App. at 629:14-19, 644:8-16, 669:1-11, 678:11-20,
679:8-21, 695:8-18. As discussed below, the City’s security interest is of the
highest order and guides our determination of whether the security plan was
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narrowly tailored and whether there were ample alternative channels of
communication.
C. Narrow Tailoring
In this case, the City’s security plan was narrowly tailored to advance its
significant security interest because the security zone, limited to the immediate
vicinity of the Broadmoor, directly and effectively protected the conference from
the threat of terrorism, explosives, and violent protests. As discussed below, the
Citizens’ arguments to the contrary are premised on a narrow security interest and
an overly strict standard of the relationship between the security zone and the
security interest. This appears tantamount to an attempt to impose de facto strict
scrutiny review of the City’s security plan, a standard that does not apply to time,
place, and manner restrictions.
“Government may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to advance its goals.”
W ard, 491 U.S. at 799. Thus, in order to demonstrate that a challenged restriction
is narrowly tailored, the government must demonstrate that the restriction
“serve[s] a substantial state interest in a direct and effective way.” Edenfield v.
Fane, 507 U.S. 761, 773 (1993) (internal quotations omitted). Absent such proof,
a restriction “may not be sustained if it provides only ineffective or remote
support for the government’s purpose.” Id. at 770 (quoting Central Hudson Gas
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& Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980)). 3 Thus, a
regulation is not narrowly tailored w hen it “does not sufficiently serve those
public interests that are urged as its justification.” Grace, 461 U.S. at 181.
In this case, the burden falls on the C ity to show that its “recited harms are
real . . . and that the regulation will in fact alleviate these harms in a direct and
material w ay.” Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 664 (1994). It is
not enough that the City justify its restrictions based broadly on “security.” See
Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 13 (1st Cir. 2004) (noting that
“the question of narrow tailoring must be decided against the backdrop of the
harms that a particular set of security measures are designed to forfend”). This
does not mean, however, that the City must show that its restriction is the least
intrusive means of promoting its interest. See W ard, 491 U.S. at 798-99.
Instead, we will give deference to a reasonable judgment by the City as to the best
means of providing security at the NATO conference. See id. at 800 (“The
validity of time, place, or manner regulations does not turn on a judge’s
agreement with the responsible decisionmaker concerning the most appropriate
method for promoting significant government interests. . . .”).
In this case, the C ity asserts that a wide security zone w as necessary
3
The validity of time, place, and manner restrictions is determined under a
standard essentially identical to that governing the regulation of commercial
speech. See United States v. Edge Broad. Co., 509 U.S. 418, 430 (1993).
Accordingly, we draw on relevant precedent from some commercial speech cases.
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because of the need to keep the conference outside the blast radius of any
explosion that might have been caused by vehicle or human-borne explosives.
The City also asserts, that given that so many defense leaders w ere gathered in
one location, it needed an extra margin for error. In other words, it needed a deep
security zone so that its officers would have more reaction time to fend off any
terrorist or other threat before the conference delegates were placed in imminent
danger. Furthermore, the exclusion of protestors from the security zone allowed
the City to devote its officers to maintaining the perimeter and fending off any
possible terrorist attacks, rather than having its officers monitor protestors, which
would have required the City to staff twice as many officers at the conference. I
Aplt. A pp. at 91-92, 98.
The nature of the NATO conference bears not only on the conceded
“significant interest” component of the time, place, and manner analysis, but also
on the “narrowly tailored” component. W hile an extremely important government
interest does not dictate the result in time, place, and manner cases, the
significance of the government interest bears an inverse relationship to the rigor
of the narrowly tailored analysis. See Bd. of Trus. v. Fox, 492 U.S. 469, 480
(1989) (noting that there must be a fit between the government’s means and its
desired objective–“a fit that is not necessarily perfect, but reasonable; that
represents not necessarily the single best disposition but one whose scope is in
proportion to the interest served”) (emphasis added).
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In this case, there can be no doubt that the City’s interest in providing
security to a gathering of defense officials is of the highest order. W e also cannot
ignore the fact that the City’s chosen method of providing security was part of a
security protocol that was created by Department of Defense officials, NA TO
personnel, and various international defense agencies. Courts have historically
given special deference to other branches in matters relating to foreign affairs,
international relations, and national security; even when constitutional rights are
invoked by a plaintiff. See, e.g., INS v. Abudu, 485 U.S. 94, 110 (1988)
(international relations); CIA v. Sims, 471 U.S. 159, 178-79 (1985) (national
security); O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d
973, 1025 (10th Cir. 2004) (en banc) (M cConnell, J., concurring) (international
relations). 4
Despite the importance of the City’s interest, and the obvious conclusion
that the security zone certainly advanced the City’s interest in securing the
conference, the Citizens advance a number of arguments to show that the security
4
W e note that some recent decisions have limited the extent of such
deference, e.g., Hamdan v. Rumseld, 126 S. Ct. 2749 (2006), and the Supreme
Court appeared hesitant (although it never reached the question) to grant such
deference in a multi-opinion case involving the First Amendment, see Boos v.
Barry, 485 U.S. 312, 324 (1988) (“Thus, the fact that an interest is recognized in
international law does not automatically render that interest compelling . . . .”)
(internal quotations omitted). Nevertheless, it would be inappropriate to ignore
the fact that the City’s ability to provide effective security had national and
international ramifications.
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zone was not narrowly tailored. W hile the City undoubtedly bears the burden of
demonstrating narrow tailoring, and it has done so in this case, we think our
discussion will be most clear by addressing each of the Citizens’ arguments.
Those arguments can be summarized as:
(1) The total exclusion of pedestrian demonstrators did not directly and
effectively advance the City’s security interest in protecting against
explosives and any argument to the contrary is undermined by the
fact that the City allowed numerous other classes of persons into the
security zone.
(2) The City failed to demonstrate that it could not have accommodated
protestors by simply increasing the number of officers present in the
security zone.
(3) The City burdened substantially more speech than was necessary to
further its interest. The presence of other, obvious less restrictive
security protocols, including a permit system, demonstrates the
security zone was not narrowly tailored.
W e reject the Citizens’ arguments and discuss them in turn.
1. The Direct and Effective Relationship Between the Security Zone
and the City’s Significant Interest
The Citizens characterize the security zone as indirectly connected to the
City’s security interest and thus impermissible. See Edenfield, 507 U.S. at 773
(stating that the regulations must serve a substantial state interest in “a direct and
effective way”). The Citizens argue that the security interest put forth by the City
was the need to keep vehicle-borne explosives away from the Broadmoor, and
that the security zone had nothing to do with any harms or threatened harms that
the City attributed to pedestrians. Aplt. Br. at 29 (“In light of the absence of
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evidence that the Plaintiffs or other protestors posed a direct threat to safety, the
City relies on an indirect and much more tenuous connection between its
restrictions and its interest in protecting the conference participants.”). As noted
earlier, the City’s security interest included the prevention of “possible terrorist
threats and/or violent demonstrations,” including the detonation of vehicle or
human-borne explosives. Aplee. Br. at 5.
The City asserts that, absent the total ban on protestors, security would
have been achieved “less effectively.” Aplee. Br. at 20-21 (citing W ard, 491 U.S.
at 782-83 (“[N]arrow tailoring is satisfied so long as the regulation promotes a
substantial government interest that would be achieved less effectively absent the
regulation . . . .”)). The City also argues that the Citizens’ literal adherence to the
word “direct,” as used in Edenfield, essentially transforms the narrowly tailored
analysis into least restrictive means analysis.
The narrow ly tailored analysis proceeds from the specific security interest
articulated by the City. See Grace, 461 U.S. at 181; Bl(a)ck Tea Soc’y, 378 F.3d
at 13. Indeed, to assess whether a restriction is an appropriate “fit” to some
important government interest, it is necessary that the government interest be
specifically defined. Otherwise, the narrowly tailored analysis more closely
resembles the “reasonably necessary” standard used in reviewing restrictions on
speech in areas that are not public forums. See, e.g., Brown v. Glines, 444 U.S.
348, 355 (1980). In this case, that interest is the need to protect the conference
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delegates from terrorist threats and violent demonstrations, including the
detonation of vehicle or human-borne explosives
Contrary to the Citizens’ argument, however, courts have not insisted upon
a literal show ing that but for the restriction, the substantial governmental interest
would not be served. Instead, the regulation of speech has been deemed to
directly advance the government’s interest “[s]o long as the means chosen are not
substantially broader than necessary.” W ard, 491 U.S. at 800. Here, the security
zone directly advanced the City’s interest in keeping explosives away from the
NATO conference because it limited access near the Broadmoor to identified and
screened individuals who were less likely to pose any threat to the delegates.
Furthermore, a strict no-access policy allowed the City to devote its officers to
maintenance of the extensive security zone perimeter and to the innumerable
other security tasks associated with a conference of such magnitude. Had the City
allowed protests within the security zone, its officers would have faced the
substantial, additional burdens of screening protestors upon entry, maintaining
supervision of the protestors during their protest, and generally providing enough
manpower in close proximity to the protestors to quickly handle any protest that
turned violent.
The Citizens argue that the City failed to prove that other protest groups
would have requested permission to protest inside the security zone, and it
contends that the City was wrong to premise its denial of the Citizens’ request out
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of concern that a host of other groups would seek similar treatment. The Citizens
describe this concern as “hypothetical.” It goes without saying, however, that
security protocols exist to deal with hypothetical risks. It was appropriate for the
City to consider, as part of its decision to deny the Citizens’ specific request to
protest, the effect that additional protests would have on its ability to provide
security at the conference.
2. Additional Officers
The Citizens also argue that the City could have supplied additional
officers to monitor and escort the protestors and that, as a result, a total ban on
expression was unnecessary. Specifically, they argue that the City failed to show
“it would have been unable to assign more officers, or impose additional
overtime, or arrange for reinforcements from another law enforcement agency.”
Aplt. Br. at 30. But the Citizen’s argument assumes a standard far more strict
than that at play here. The City is not obliged to show, under the narrowly
tailored analysis, that it was impossible to increase officer presence to
accommodate the protestors. This is a burden akin to that required in strict
scrutiny cases. Instead, the City need only show that the security zone was a
reasonable fit to the security interest. See U.S. W est, Inc. v. FCC, 182 F.3d 1224,
1239 (10th Cir. 1999). The fact that more officers might have been available is,
in and of itself, irrelevant, unless it shows that the City’s security plan was not a
reasonable fit to the asserted security interest.
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Furthermore, the Citizens argue that officer staffing levels at the
Broadmoor were adequate to assure the peacefulness of their demonstration and
others like it. Aplt. App. at 31. How ever, this argument assumes the best-case
scenario: that all protest groups would be peaceful and law-abiding. The City was
not required to base its security protocol on such an assumption, and indeed
would have been foolish to do so. Additionally, the Citizens provide no authority
that the narrowly tailored analysis can proceed based on this rosy scenario.
Instead, security planning is necessarily concerned w ith managing potential risks,
which sometimes necessitates consideration of the worst-case scenario. As long
as a designed security protocol reduces a plausible and substantial safety risk, it
directly and effectively advances a substantial government interest.
3. A Burden on Substantially M ore Speech Than Necessary
The Citizens argue that the security zone burdened substantially more
speech than necessary because it even restricted residents, who were allowed
within the zone, from protesting on sidewalks in front of their homes. Aplt. Br. at
34-35. This argument does not address, however, the City’s concern that it
would, as a matter of prudence, have to devote officers to supervising protestors,
no matter whether the protestors were residents or outsiders, and no matter how
well known or peaceful they seemed to be. It was not impermissible for the City
to draw a distinction between residents going about their daily business in the
security zone and those seeking to protest the NATO conference, because the City
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made a reasonable assumption that protestors could pose more of a security risk
to the conference than other persons, an assumption that, for example, finds some
support given the violent protests surrounding the W orld Trade Organization
meeting in Seattle, W ashington. See M enotti, 409 F.3d at 1120-23.
Additionally, the Citizens argue that the City could have chosen a number
of obvious, less restrictive alternatives to the security zone’s total ban on protests.
Specifically, the Citizens suggest that the City could have set up a permit-based
system allowing small groups of protestors into the security zone for limited
times, and they argue that the City’s failure to do so indicates the security zone
was not carefully calculated to consider the burdens on expression. Aplt. Br. at
39-40. The Citizens also argue that the City never even contemplated allowing
any protestors into the security zone.
Based on our holding in U.S.W est, they argue that such alternatives
indicate a lack of narrow tailoring. W e note, however, that the presence of such
alternatives is not dispositive. First, the cases cited by U.S. W est for this notion
only invalidated speech regulations that were “substantially excessive,
disregarding far less restrictive and more precise means.” 182 F.3d at 1238
(citing Fox, 492 U.S. at 479). Second, Lederman v. United States, 291 F.3d 36
(D.C. Cir. 2002), a case chiefly relied upon by the Citizens in their discussion of
obvious, less restrictive alternatives, involved a per se ban on expression to
promote safety and the orderly flow of traffic. Id. at 45. Though traffic control is
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important, the safety and security of NATO defense officials would seem to be a
paramount concern. Given this interest, a more generous “fit” analysis may be
warranted than that used in Lederman.
Additionally, the alternatives suggested by the Citizens are not really
“obvious” within the meaning of that term as contemplated in U.S. W est. First,
enacting a permitting scheme would have been quite complex and still would have
required the City to provide officers to escort and monitor the protestors, which
w ould have hindered its ability to provide security for the conference. Though w e
agree that some content-neutral permitting system could have been enacted, we do
not agree with the Citizens that such a system is an obvious alternative that easily
could have been utilized without diverting resources and personnel. The City had
no idea how many protest groups would seek access to the security zone, and,
again, it would have been forced to plan for the worst-case scenario. Second, the
subjective failure of City officials to consider allowing protests is irrelevant to the
objective time, place, and manner analysis. See W ard, 491 U.S. at 799 (“[T]he
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.”) (internal quotations omitted). Regardless, even if the Citizens could
articulate an obvious, less burdensome alternative, that is merely one factor that
bears on the “fit” analysis. See U.S. W est, 182 F.3d at 1238 n.11. Given the
need to provide security and the catastrophic risk involved, we hold that the
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security zone implemented by the City was narrowly tailored.
D. Ample A lternative Channels
The Citizens also argue that they were denied ample alternative channels of
comm unication because they were unable to interact with their intended audience;
namely, the conference delegates and the international media. W e conclude,
however, that the Citizens were sufficiently able to communicate their message
even though they had no close, physical interaction with their intended audience.
“[T]he First A mendment does not guarantee the right to communicate one’s view s
at all times and places or in any manner that may be desired.” H effron v. Int’l
Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). However, an
alternative mode of communication may be constitutionally inadequate if the
speaker’s ability to “communicate effectively is threatened.” M embers of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984). As the Ninth
Circuit has noted “the Supreme Court generally will not strike down a
governmental action . . . unless the government enactment will foreclose an entire
medium of public expression across the landscape of a particular community or
setting.” M enotti, 409 F.3d at 1138.
The Citizens correctly note that many courts have struck down security
zones that push protestors far away from their intended audience. See, e.g.,
United States v. Baugh, 187 F.3d 1037, 1044 (9th Cir. 1999) (150-175 yard
security zone with a “First Amendment area”); Bay Area Peace Navy v. United
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States, 914 F.2d 1224, 1229 (9th Cir. 1990) (75 yard security zone preventing
water-borne protests); Serv. Employee Int’l Union v. City of Los Angeles, 114 F.
Supp. 2d 966, 972 (C.D. Cal. 2000) (260 yard security zone at the Democratic
National Convention). They argue that, in this case, the security zone’s breadth
necessarily pushed protestors so far away from the conference delegates and
international media that there could be no ample alternative channels of
communication.
The City responds that all the conference delegates and international media
viewed the Citizens when their motorcades and buses entered the security zone at
Checkpoint 1. The City also notes, correctly, that on October 7 and 8, the
Citizens were interviewed by local media as they protested at the checkpoint. The
security zone, while prohibiting movement of the international media w ithin it,
did nothing to prevent the international media (or the conference delegates for
that matter) from visiting the protestors outside the security zone.
The ample alternative channels analysis cannot be conducted in an
objective vacuum, but instead it must give “practical recognition” to the facts
giving rise to the restriction on speech. See M enotti, 409 F.3d at 1140. Thus, w e
must ask whether, given the particular security threat posed, the geography of the
area regulated, and the type of speech desired, there were ample alternative
channels of communication. To treat the ample alternative channels analysis as
wholly independent disconnects it from reality and diminishes the emphasis
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courts have traditionally placed on the importance of the government interest.
See U.S. W est, 182 F.3d at 1238.
Thus, in this case, given the City’s need to maintain a strict perimeter and
provide conference security, we must determine w hether the alternative protest
sight at Checkpoint 1 was an adequate alternative. W hile allowing the Citizens to
protest outside Checkpoint 1 may not have been the best alternative, nor even the
most prudent, it is “ample” in the context of the NATO conference and the overall
security protocol. This is not a case where the Citizens were wholly deprived of
their ability to communicate effectively. Both conference delegates and the
international media viewed their protest at Checkpoint 1. They were interviewed
by local media on October 7 and 8. They could have protested at the off-site
staging area for the international media, but they declined. Simply put, the
Citizens do not have a right to convey their message in any manner they prefer.
Instead, they have a right to convey their message in a manner that is
constitutionally adequate. See M enotti, 409 F.3d at 1140. In this case, protesting
on the periphery of the security zone allowed the Citizens to present their view s
to the conference delegates and international media. They were not wholly cut
off from their intended audience, such that there were no ample alternatives to a
protest within the security zone itself.
A FFIR ME D.
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