Daily Development for Tuesday, May 27, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Where City deeds vacated street to a church but retains public pedestrian
easement to access other public areas, easement is a public forum and
City cannot withhold speech rights.

First Unitarian Church of Salt Lake City v. Salt Lake City
Corporation, 308 F.3d 1114 (10th Cir. 2002).

The LDS Church owned all the property on two blocks adjacent to a
street, which the City decided to close and sell to the Church.  The street
was deeded to the Church and the City retained a public pedestrian
easement. There was considerable negotiation as to the degree of public
speech rights that would be permitted within the easement area.
Ultimately, the granted easement provided expressly that there could be
no free speech activity:

     "Nothing in the reservation or use of the easement shall be
     deemed to create or constitute a public forum, limited or
     otherwise, on the Property."

The easement went on to provide expressly that only non-speech conduct
(pedestrian passage only) was allowed, and the easement terms
specifically prohibited a number of activities, including assembling,
demonstrating, picketing, distributing literature, and erecting signs or

The court, with a touch of irony, notes that, although during the
negotiations the easement area was described as a pedestrian right of way
- "a funnel to the "crossroads and ZCMI Center shopping malls as well
as the remainder of the downtown business district" that would "enhance
the urban fabric of the downtown, area," "emphasize Main Street as a
primary pedestrian walkway," etc., what actually happened was that the
Church developed "Ecclesiastical Park," which, although dotted with
waterfalls and seating areas, also had multimedia displays of religious
programs, special Church events, and dissemination of information
generally about the Church.

Plaintiffs, an amalgam of groups interested in conducting free speech
activity in this "sitting duck" opportunity to promote their own public
communication on matters perhaps contrary to the positions of the
Church,  brought suit challenging the easement restrictions under the
First and Fourteenth Amendments and similar provisions of the Utah
Constitution.  The District Court granted summary judgment for the
Church, concluding that the easement was no longer a public forum.  The
District Court held that the easement was a nonpublic forum and that the
restrictions were reasonable because the prohibited activities were
incompatible with the new purpose of the easement area.  The District
Court further held this not to be viewpoint discrimination because the
Church had greater rights on the easement than the public.

On appeal, the Court of Appeals applied "public forum" principles to the
easement in determining whether the First Amendment applied.  It stated
that Forum analysis does not require that the government have a
possessory interest in, or title to, the underlying land.  Government
ownership or regulation is enough for a public forum to exist.  The fact
that the government holds an easement rather than fee title does not
defeat the application of the First Amendment, even though the First
Amendment does not always apply to all government easements.  There
are three types of forums:  the traditional public form, defined by the
objective characteristics of the property, such as whether the property has
traditionally been devoted to assembly;  the designated public forum,
created by opening a nontraditional public forum for public discourse;
and the nonpublic forum.

The court rejected the argument that it was the City's express intent not
to create a public forum. For property that traditionally have been public
fora, objective characteristics are more important than governmental
intent.  It is up to the court to determine whether the expressive activity is
compatible with the purposes and uses to which the government has
lawfully dedicated the property, not whether the government has
expressly designated speech as a purpose.  The easement was for
pedestrian passage and formed part of the pedestrian grid in the city,
sharing many important features with sidewalks, which are traditional
public fora.

The court considered whether the expressive activities were compatible
with the purpose of the easement and found that expressive activities
were compatible with spaces dedicated to general pedestrian passage.
The court examined the history of the property to determine whether the
property had traditionally been open to public use and, more importantly,
whether the property had been the site of expressive activities.  The
Court found that the purpose of the easement was a pedestrian
throughway, and it was the intent to retain this aspect when the property
was transferred.  When the City retained the easement, it retained the
most important aspects of the property, including those associated with
expressive activities.  Therefore, the court held that despite the City's
express intent not to create a public forum, history and other
characteristics of the easement, including its nature and purpose, made it
similar to public sidewalks and indistinguishable from other traditional
public fora.  The easement area was held to be a pubic forum.

The court distinguished an earlier case in which it held that the
pedestrian access to a performing arts center was not a public right of
way because the terminal point of that access was not a public gathering
area, as was the case here.

As a consequence of the above analysis, the court found that the
easement restrictions that limited expressive activities were invalid.  To
support a content-based exclusion in a public forum, the government
regulation must be necessary to serve a compelling state interest, and it
must be narrowly drawn to achieve that goal.  In this case, the easement
restrictions essentially banned all speech.  The City must permit speech
on the easement; it can take into account the interests of the Church by
enforcing time, place and manner regulations, but these must be content-
neutral and narrowly tailored to serve a significant government interest
and must leave open ample alternative channels of communication.

The fact that the City had created a private right in the Church that
excluded these rights was, therefore unconstitutional.  The court withheld
comment as to whether there might be some additional remedy by the
Church (or, for that matter, the City)  for the frustration of the purpose of
the easement.  But the parties had no authority to enter into this contract,
and therefore the Church had no property rights that were being
delimited by the holding here.

Comment 1: This opinion is packed with analysis that will require careful
study for those who are concerned about its impact on their corner of the
world.  The editor would like to suggest some such "corners:" vacated
streets leading to the development of pedestrian malls in downtown
shopping centers, beachfront condominium projects, or even office
developments.   Although, in many jurisdictions, privately owned public
gathering places are not subject to Pruneyard - type analysis, since most
courts don't buy the argument that such places must provide speech
opportunities - they would now be subject to free speech rights because
the origin of the property interest was a vacated street - a traditional
public forum.  Don't forget street vacations to provide parking lots or
access ways to stadiums or other major public gathering points.  For that
matter, what about the stadiums themselves?

Remember the question is whether a traditional public forum existed
before and is being replaced by another activity open to the public and
serving the function of a public form, notwithstanding contractual denials
to that effect.

What if, following the street vacation, the specific area of the street no
longer serves as a pedestrian walkway, but there are pass throughs or
public gathering areas within the project, pursuant to a negotiated
development plan required as part of the redevelopment project?   In the
editor's view, the scope of the opinion would clearly reach this far.  The
notion is that one forum replaces the other.  Whether we are talking
about an easement right in the public or a public agency right to enforce
certain designs and construction plans, we're still talking about a public
right to provide public access and gathering spaces.  Note that it wouldn't
matter if the Redevelopment Agency provided specifically that the
recipient of the redevelopment land could control the activity in these
areas - if the City gave away too much from a constitutional perspective,
the court would come back and delimit the scope of the developer's

Comment 2: Although the court distinguishes the earlier case involving
access to a performing arts center, the editor has difficulty differentiating
the two situations, and certainly sees a slippery slope forming that
ultimately could render that distinction almost meaningless.

The editor isn't suggesting that every court will find public fora in every
street vacation, but that the issue is there and should be looked at
carefully before developers agree to any conditions that limit their design
freedom and require any kind of public gathering place or accessway.
Note that the key feature appears to be that the public agency requires
that the public access be provided.  If the city vacated a street and turned
the property over to a shopping center developer without any requirement
for public access, and the developer later elected on its own to provide
some kind of arguable public forum, this case wouldn't apply.

Readers are encouraged to respond to or criticize this posting.

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