The courts should toss out the trespassing charges facing Carol Kreck, who was cited for bringing a sign reading "McCain = Bush" into the Galleria at the Denver Performing Arts Complex before Monday's town hall event featuring Sen. John McCain. . . .Is Lane the only lawyer in Denver who does First Amendment stuff?
It's one thing to ban all signs at the actual town hall meeting. We have no problem with that. But the Galleria - the glass-covered pedestrian walkway surrounded by several theaters and the complex's parking garage - should have been considered a public forum in this instance. Kreck should have been allowed to remain within it, sign in hand.
If Kreck prevails, a modest tweak in the policy against protests at facilities run by the Division of Theaters and Arenas would protect Denver from future lawsuits. Protesters should be allowed to exercise their rights during political events.
The division is correct in pointing out that its policy prohibiting signs, demonstrations and leafletting in the Galleria is longstanding and even-handed. It is not a content-based ban allowing some signs and prohibiting others depending on what they say. And the city can also cite a 10th U.S. Circuit Court of Appeals in 1999, Hawkins v. City and County of Denver, which supported city policy.
Two years earlier, a local musicians' union had protested the Colorado Ballet's decision to use a recorded score rather than live musicians during a performance of Romeo and Juliet. Union members tried to use the Galleria to picket and hand out leaflets to ballet patrons. Police removed the protesters, who sued the city.
In the ruling, the 10th Circuit upheld the ban on leafletting, calling the complex a "nonpublic forum" where management can shoo away protesters or cite them for trespassing without violating the First Amendment.
Demonstrations are fine on the public streets surrounding the theater complex. But the court said the Galleria "does not qualify as a traditional public forum, for it is not a park, nor is it analogous to a public right of way or thoroughfare. . . . [I]t is closed to vehicles, and pedestrians do not generally use it as a throughway to another destination."
The problem, as we see it, is that the musicians' protest was in no way similar to a political protest at a town hall meeting that is open to the public and purely political in nature.
Attorney David Lane, who's representing Kreck, also argues that his client should prevail in part because a 1991 Colorado Supreme Court decision allows protesters to demonstrate in the common areas of a shopping mall, which is not a traditional public forum.
Ironically, the Hawkins decision could also place the city on shaky ground. One reason the Galleria could not be considered a "designated public forum," the court said, is because "Denver has neither in policy nor practice thrown open the Galleria for public expressive activity." And yet by booking McCain's town hall, the city had "thrown open" the Galleria for "public expressive activity."
Huh. Not to pick nits, but the "expressive activity," the town hall, wasn't in the Galleria.
Either the policy needs to be adjusted to accommodate protests at purely political events, or the city should not schedule them at its venues.Fine, fine.