Lewis v. Colorado Rockies Baseball Club, Ltd.

delivered the Opinion of the Court.

The Colorado Rockies Baseball Club, Ltd. (Rockies) appeal a judgment by the Denver District Court finding that certain areas around Coors Field baseball stadium are public forum property for free speech purposes and that the Rockies’ policies preventing the sale and distribution of any materials in those areas were not reasonable time, place, and manner restrictions. The district court granted an injunction against the Rockies precluding it from restricting vendors in those areas. We agree that the disputed areas around Coors Field are public forum property and hold that the policies enforced by the Rockies in these areas were not reasonable time, place, and manner restrictions under the First Amendment to the United States Constitution. Accordingly, the judgment of the district court is affirmed.

I.

Robert Lewis and Bert Matthews (Publishers) publish and distribute “alternative” baseball programs and scorecards outside Coors Field during Colorado Rockies’ baseball games. The Rockies lease Coors Field and its surrounding walkways and sidewalks from the Denver Metropolitan Major League Baseball Stadium District (Stadium District), a public entity. 1 Coors Field is a newly constructed baseball stadium that opened for the 1995 baseball season. The Rockies have a long term concession agreement with ARA Leisure Services, Inc. (ARAMARK) which grants ARAMARK exclusive concession rights on the leased premises both inside and outside the stadium. Thus, the Rockies prohibit the sale or distribution of any materials by other vendors in these areas.

During the 1995 baseball season, the Publishers and their vendors were harassed and ticketed for trespass while attempting to distribute programs in certain areas around Coors Field. The specific areas in dispute are the North Walkway, the Wynkoop Walkway, and the walkway between gates D and E. 2 The North Walkway runs perpendicular from the northeast side of the stadium into and through a paid parking lot, is physically separated from the closest city street by a concrete retaining wall, and is connected by a stairway to the public sidewalk on 22nd Street. See Appendix, diagram 1. The Wyn-koop Walkway runs perpendicular from the southeast side of the stadium from gate E to 19th Street. The disputed portion of the Wynkoop Walkway includes the pedestrian footbridge that runs over 20th Street to gate E. See Appendix, diagram 2. The third disputed area is the walkway between gate D and gate E from the comer of Blake and 20th Streets along the third base side of Coors Field. See Appendix, diagram 3.

According to the Publishers, the Rockies’ policies preventing the distribution of alternative baseball programs or other materials in the disputed areas are unconstitutional because all of the exterior sidewalks and walkways surrounding Coors Field that are accessible to the public are public forum property for free speech purposes. One of the Publishers, Robert Lewis, brought suit against the Rockies and the Stadium District seeking a preliminary and permanent injunction barring the Rockies and the Stadium District from infringing on his constitutional rights to engage in expressive activities outside of Coors Field. 3 After a one-day eviden-tiary hearing, Robert Lewis’s motion for a preliminary injunction was denied by the district court on the grounds that the disputed area was not a public forum.

Subsequently, Bert Matthews filed suit, and the Publishers’ combined eases went to trial on the merits just prior to the beginning of the 1996 baseball season. Before trial, the Stadium District agreed to be bound by the district court’s decision and was dismissed from the case. After a three-day trial, the *270 district court ruled in favor of the plaintiffs. According to the district court, “Coors Field and its environs are fully integrated into the downtown area from an architectural standpoint, from a landscape architect standpoint, and from any other conceivable standpoint.” The district court also found that “the surface materials of the buildings and walks, the fences, barriers, street lights, the benches, plantings, the trash bins, etc. are all deliberately integrated to create a sense of public space.” Therefore, noting that “[sjidewalks and walkways have traditionally been public,” the district court concluded that the disputed areas at Coors Field were public forum property.

The district court next found that the Rockies’ policies restricting free speech were content-neutral and therefore subject to intermediate scrutiny. Under that standard, the court considered whether the restrictions on free speech were narrowly tailored to serve a significant governmental interest and whether they left open ample alternate channels of communication. The district court accepted that almost all of the interests presented by the Rockies — i.e., premises liability, crowd control, safety, pedestrian movement — were significant. However, the court determined that the restrictions that were placed on the disputed areas were not narrowly tailored because other, more busy areas of Coors Field with greater congestion and crowd control problems had no restrictions. 4 The court also concluded that, above all, the Rockies were interested in restricting vending to maximize revenue. The court found that while maximizing revenue is a legitimate goal, “it is not an appropriate goal in the free speech arena.”

The district court also concluded that the restrictions at issue did not provide ample alternative avenues for communication. The Rockies argued that because much of the area around Coors Field is unrestricted, 5 the Publishers were provided with sufficient communicative outlets within which to distribute their programs. The district court, however, focused on the opportunity for alternative communication at each specific gate location and determined that “there is no ample or adequate alternative avenue for communication at gate A under the Rockies’ restrictions.” Based on its conclusion that the restrictions were not narrowly tailored and did not provide adequate alternatives for communication, the district court ruled that the Rockies should be enjoined from preventing the Publishers from selling or distributing their game programs in any of the gate areas subject to the institution of appropriate time, place, and manner restrictions.

II.

Before considering the substantive issues this case presents, we must address a preliminary dispute concerning the appropriate standard for reviewing the district court’s factual findings. The Publishers argue that we should apply the “clearly erroneous” standard, while the Rockies contend that a de novo standard is appropriate. According to the Publishers, the underlying rationale for independent appellate review in First Amendment eases is to protect the right to free speech, and not to give the state a second opportunity to justify its restriction of free speech. See Bose Corp. v. Consumers Union, 466 U.S. 485, 510-11, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984) (“[Jjudges ... must exercise such review in order to preserve the precious liberties established and ordained by the constitution.”). Therefore, the Publishers argue that a de novo standard of review should only be applied in cases where a lower court permits a restriction on free speech.

In Bose, the Supreme Court stated that it has “repeatedly held that an appellate court has an obligation to ‘make an independent *271 examination on the whole record’ in order to make sure ‘that the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose, 466 U.S. at 499, 104 5.Ct. at 1958 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964)). However, the federal courts of appeals have split as to whether the de novo standard is applicable in cases where the government appeals a district court’s judgment declaring a restriction on free speech unconstitutional. 6

We have not specifically addressed when it is proper to apply a de novo standard of review in First Amendment cases. However, we effectively applied a de novo standard of review in Denver Publishing Co. v. City of Aurora, 896 P.2d 306 (Colo.1995), where we reversed a lower court order finding an ordinance unconstitutional as a restriction on free speech. Id. at 309. Consistent with the views of the Tenth and Eleventh Circuits, we find that de novo review is appropriate when determining the First Amendment status of government property because “the public forum issue is ... central to determining whether speech on [government property] can constitutionally be regulated.” Brown, 915 F.2d at 1441. Moreover, the public forum determination is a mixed question of law and fact which demands an independent review of the record. See Brown, 915 F.2d at 1441. In this case, the physical facts are not disputed although the legal conclusions to be drawn from those facts are very much contested. Accordingly, we utilize an independent review of the record in reaching our conclusions in this case.

III.

The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech....” Article II, section 10 of the Colorado Constitution, which provides greater protection of free speech than does the First Amendment, see Bock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo.1991), provides that “[n]o law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject.”

In reaching the conclusion that the Rockies’ policies were not reasonable time, place, and manner restrictions, the district court noted that its decision was based on the Colorado Constitution, and not the Federal Constitution. Likewise, the Publishers now urge this court to forgo a free speech analysis under the United States Constitution and to focus our inquiry on the greater protection offered by this state’s constitution. 7 The Publishers point to our decision in Bock, and argue that this case presents another opportunity to further develop free speech jurisprudence under Article II, section 10. 8 How *272 ever, because the areas surrounding Coors Field at issue in this ease are public forum property under the federal analysis, we find that it is unnecessary to address the more expansive protection of the Colorado Constitution. Accordingly, our inquiry is limited to the federal analysis.

The federal protection of free speech is guaranteed only against abridgment by the government. See Hudgens v. N.L.R.B., 424 U.S. 507, 513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976). Here, however, the Rockies concede that the restrictions in this case constitute state action such that the constitutional protection of iree speech is implicated. While the Rockies are a private entity, Coors Field and the surrounding sidewalks and walkways at issue are owned by a public entity, the Stadium District. Thus, the Rockies’ policies are subject to applicable constitutional constraints.

Under federal constitutional jurisprudence, the analysis of a governmentally imposed restriction of speech “begins with an inquiry into the nature of the property affected by the regulation.” Denver Publ’g, 896 P.2d at 309; see also Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985) (“[T]he extent to which the Government can control access [to its property] depends on the nature of the relevant forum.”); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983) (“The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.”).

In Perry, the Supreme Court articulated three categories of public forum property: (1) a traditional public forum property; (2) a designated public forum property; and (3) remaining public property. Perry, 460 U.S. at 45-46, 103 S.Ct. at 954-56. The first category, a traditional public forum, includes places which “‘have immemorially been held in trust for the use of the public and ... have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Id. at 45, 103 S.Ct. at 954-55 (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 514, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)). Thus, public places “historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums.’ ” United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983). In a traditional public forum, content-neutral restrictions of free speech are considered reasonable time, place, and manner regulations if they are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. See id. Restrictions affecting public forum property that are not content-neutral, however, must be necessary to serve a compelling state interest and must be narrowly drawn to achieve that end. See Perry, 460 U.S. at 45, 103 S.Ct. at 954-55.

The second category articulated in Perry consists of government property that has been opened to the public as a place for expressive activity. Perry, 460 U.S. at 45, 103 S.Ct. at 954-55. Whether a forum has been designated for expressive activity is determined by the state’s intent in establishing the forum. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3448-49. A state is not required to keep such a facility open to the public indefinitely. However, so long as a designated public forum remains open, it is bound by the same standards as apply to a traditional public forum. See Perry, 460 U.S. at 46, 103 S.Ct. at 955. Thus, “[Reasonable time place and manner regulations are permissible, and a content-based prohibition *273 must be narrowly drawn to effectuate a compelling state interest.” Id.

The final Perry category consists of public property that “is not by tradition or designation a forum for public communication.” Perry, 460 U.S. at 46, 103 S.Ct. at 955. Limitations on expressive activities in a non-public forum “need only be reasonable as long as the regulation is not an effort to suppress the speaker’s activities due to disagreement with the speaker’s views.” International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992).

As explained above, the areas in dispute here consist of various sidewalks and walkways surrounding Coors Field. The Supreme Court has specifically addressed the constitutional status of sidewalks in United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), and United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). Grace concerned the constitutionality of a regulation that prohibited the “‘display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement’ in the United States Supreme Court building and on its grounds.” Grace, 461 U.S. at 172-73, 103 S.Ct. at 1704 (quoting 40 U.S.C. § 13k). The prohibition in question was defined to include the public sidewalks marking the outer boundary of the grounds. Grace, 461 U.S. at 179, 103 S.Ct. at 1708.

In determining whether the public sidewalks surrounding the Supreme Court building were public forum property, the Supreme Court noted in Grace that sidewalks “traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property.” Id. The Court also distinguished the facts of Grace from those of Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), where the Court had held that streets and sidewalks within an enclosed military reservation were not public forum property. The Court pointed out that, unlike the sidewalks in Greer, “[t]here [was] no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve[d] as the perimeter of the Court grounds that they [had] entered some special type of enclave.” Grace, 461 U.S. at 180, 103 S.Ct. at 1708. Therefore, the Court concluded that the sidewalks “forming the perimeter of the Supreme Court grounds ... [were] public forums and should be treated as such for First Amendment purposes.” Id.

In contrast, the Supreme Court concluded in Kokinda that an interior sidewalk abutting a United States Post Office was not a public forum for First Amendment purposes. 9 In response to the argument that the interior sidewalk was a public forum because it was not distinguishable from the municipal sidewalk across the parking lot, the Supreme Court stated that “[t]he mere physical characteristics of the property cannot dictate forum analysis.” Kokinda, 497 U.S. at 727, 110 S.Ct. at 3120. According to the Court in Kokinda, “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. As such, the Court placed great reliance on the fact that, unlike the municipal sidewalk that serves as a public passageway, the postal sidewalk “was constructed solely to provide for the passage of individuals engaged in postal business.” Id.

Apparently relying on the rationale articulated in Grace, the district court determined that the sidewalks and walkways surrounding *274 Coors Field are public forum property because “[s]idewalks and walkways have traditionally been public” and because “Coors Field and its environs are fully integrated into the downtown area.” With respect to the North Walkway, however, the district court specifically found that only the first three hundred feet of the North Walkway heading east from the stadium are public.

The Rockies argue that the district court erred as a matter of law when it ruled that the areas in dispute were traditional public forum property. Relying in large part on the Supreme Court’s holding in Kokinda, the Rockies contend that the disputed areas serve only as a means of ingress and egress for Coors Field patrons. According to the Rockies, the caselaw upon which the district court based its decision pertains only to ordinary public parks, streets, and perimeter sidewalks adjacent to public streets, and does not pertain to what it characterizes as interi- or, on-premises walkways at issue in this case. We disagree.

Contrary to the Rockies’ argument, the record supports the conclusion that, unlike the postal sidewalk in Kokinda, the areas in dispute here are not properly categorized as interior, onpremises walkways. In fact, the sidewalks and walkways surrounding Coors Field were specifically designed to be integrated into downtown Denver’s street grid. As such, the sidewalks are not used solely for ingress and egress to the stadium but connect with, and essentially function in the same manner as, the municipal sidewalks throughout the downtown area. Further, as in Grace, the architectural design and layout of the sidewalks and walkways fail to indicate to the public that they have entered a private area. In this sense, the location of the area in question is important because “separation from acknowledged public areas may serve to indicate that the separated area is ... subject to greater restriction.” Lee, 505 U.S. at 680, 112 S.Ct. at 2706.

We agree with the Publishers that to a pedestrian standing at the corner of 20th and Blake Streets there is no significant difference between the Blake Street sidewalk, which the Rockies concede is a public forum, and the walkway between gates D and E, which the Rockies claim is not a public forum. Therefore, the disputed area between gates D and E is functionally indistinguishable from the ordinary public sidewalk adjacent to the Blake Street gates. We reach the same conclusion as to the Wynkoop Walkway. The exhibits reveal that the physical characteristics of the Wynkoop Walkway fail to indicate to the public that it is a private area.

As noted by the district court, the Rockies’ strongest argument under the federal public forum analysis is with the North Walkway. The North Walkway is fifty to sixty feet below the grade level of the surrounding streets with a retaining wall running almost its entire length along Wazee Street. The North Walkway leads from gate A to a paid parking lot that is completely encircled by a security fence. Because gate A and the adjacent outfield portion of the stadium are at the same grade below Wazee Street, the North Walkway is level with gate A. Thus, much of the North Walkway is not easily accessible to the general public. Although the North Walkway is physically separated from the closest city street, it is not completely isolated from the public. A concrete stairway leads from the street level to the North Walkway in front of gate A. The district court concluded that at least part of the North Walkway was a public forum. More specifically, the district court ruled that the area directly in front of gate A and that portion of the North Walkway extending to the east away from gate A, “perhaps as far as three hundred feet” was a public forum. 10 We agree.

Although much of the North Walkway is only utilized by patrons of the park who have *275 paid for parking, the area directly in front of gate A is also accessible to other pedestrians who walk down a short flight of stairs from the coneededly public sidewalk on 22nd Street. As to this limited area of the North Walkway, there are no obvious visual cues indicating that the area is not public or that the area constitutes “some special type of enclave.” Grace, 461 U.S. at 180, 103 S.Ct. at 1708. Further, the fact that the Rockies located the Roekpile (ie., the lowest priced, general admission seats) ticket office next to gate A requires the public to descend the stairway to the North Walkway if they wish to purchase general admission tickets. The area was therefore designed to be open to the public and not just to patrons utilizing the paid parking lot. Consistent with the principles set forth in Grace and Kokinda, we agree with the district court that this portion of the North Walkway, which is connected to the street level sidewalk on 22nd Street, is a public forum.

IV.

Having concluded that all three of the disputed areas are public forum property under federal constitutional analysis, our next inquiry is whether the restrictions on free speech that were imposed by the Rockies were permissible. Under the First Amendment, the proper test for permissibility of government imposed restrictions in a public forum depends on whether the restrictions are content-neutral. As noted above, content-neutral time, place, and manner restrictions are permissible so long as they are narrowly tailored to serve a significant state interest and allow for ample alternative channels of communication. See Denver Publ’g, 896 P.2d at 311 (quoting Perry, 460 U.S. at 45, 103 S.Ct. at 954-55). However, content-based restrictions must be necessary to serve a compelling state interest and narrowly drawn to achieve that end. See Denver Publ’g, 896 P.2d at 311 (quoting Perry, 460 U.S. at 45, 103 S.Ct. at 954-55). We consider these requirements in turn.

A.

Content-neutral

A regulation or restriction on expressive activity is deemed content-neutral if it is “ ‘justified without reference to the content of the regulated speech.’” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 3069-70, 82 L.Ed.2d 221 (1984)). In this ease, the Rockies’ policies banned the vending and distribution of any materials by anyone other than their exclusive licensee, ARAMARK. The district court concluded that the Rockies’ policies were content-neutral, and we agree. The policies make no distinction “with respect to the type of solicitation proscribed, nor [do they] focus on the sale of any particular publication.” Denver Publ’g, 896 P.2d at 313. Moreover, the effect of the policies remain “constant as to all communicative or noncommunicative material offered for sale.” Id. Therefore, the Rockies must show that the policies at issue are narrowly tailored to promote significant state interests and allow for ample alternative channels of communication. See id. at 311.

B.

Significant Governmental Interest

The Rockies have identified a number of government interests justifying the restrictive policies at issue. These include concerns about premises liability, 11 crowd control, safety, pedestrian movement, and maximizing revenue. The district court acknowledged that the first four interests articulated by the Rockies were valid and significant, but specifically rejected the notion that economic concerns were appropriate considerations in a free speech analysis.

As to economic interests, the Rockies argue that the district court misconstrued a portion of our opinion in Denver Publishing. In that case, we stated that “ ‘economic impact is not a proper consideration in free *276 speech cases.’ ” Denver Publ’g, 896 P.2d at 317 (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986)). According to the Rockies, this statement in Denver Publishing refers to the economic impact on the plaintiffs businesses. Further, the Rockies contend that the Supreme Court has often considered the government’s economic interests when deciding whether a restriction on free speech is reasonable.

While we agree with the Rockies that our statement in Denver Publishing did not concern the ec