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UPDATED – Colorado Judge Addresses First Amendment Issues Raised by Muslim Ban Protesters at Denver International Airport

In a decision that should help airport sponsors address First Amendment issues related to spontaneous political protests, a Federal District Court in Denver ordered the City of Denver to accommodate on an expedited basis people seeking to protest President Trump’s January 27 Executive Order barring individuals from seven predominantly Muslim countries from entering the United States at Denver International Airport.  The case arose from the City’s refusal to issue a permit to allow protests to the Executive Order on January 28.  Plaintiffs sought an injunction requiring, in essence, the City to allow them to protest and broadly challenging the City’s rules requiring that protestors obtain a permit and imposing other restrictions on protests at the Airport.  In particular, Plaintiffs challenged the requirement that a permit must be requested at least 7 days before the protest, the limited areas of the Airport in which protests could occur, and the restriction of signs to 1 square foot in size.

In a thorough decision issued on February 22, Judge Martinez broadly affirmed the City’s authority to require that protestors obtain a permit – adhering to established precedent that airports are “non-public fora” in which reasonable restrictions on First Amendment activities are permitted.  Judge Martinez held, however, that those restrictions must take into account the importance of engaging in political protests in response to unforeseen events and to conduct those protests in a particular place, appropriate to the nature of the protest.  Acknowledging the unexpected timing and substance of the Executive Order, and the particular relevance of protesting the Order at the Airport, Judge Martinez held that the City must “timely process a permit application” that is received

at least 24 hours prior to the commencement of the activity for which the permit is sought, provided that the applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen 7 days or more in advance … or when circumstances beyond the control of the applicant prevented timely filing of the application….

Further recognizing the importance of holding the protests near the international arrivals area, Judge Martinez ordered the City to “make all reasonable efforts to accommodate the applicant’s preferred location, whether inside or outside of the Jeppesen Terminal” provided the location is “where the unticketed public is normally allowed to be.”  Finally, Judge Martinez held that the City’s limitation on the size of signs to one foot by one foot was unreasonable and that the City may not limit the size of signs beyond what is necessary to prevent “impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal.”  The full decision is available here.

The Firm continues to monitor closely the impacts of the new administration’s policies on immigration and their effect on airport sponsors.  We are assisting several clients in navigating the new federal requirements.  For further information, please contact Eric Pilsk or Steven Osit.

UPDATE: On February 23, 2017, the U.S. Court of Appeals for the 10th Circuit issued a temporary stay of the District Court’s injunction while the Court considers the City of Denver’s request for a stay pending appeal.  The temporary stay will remain in effect through March 15 to allow the Court time to consider the arguments of the parties.  We will continue to follow this case and provide updates as appropriate.

UPDATE: On March 14, 2017, the U.S. Court of Appeals for the 10th Circuit denied the City of Denver's request for a stay of the District Court’s decision pending appeal.  As a result, the City will have to process requests for protests at DEN in a timely manner and adhere to the other provisions of Judge Martinez’s February 22 decision.  With President Trump’s new Executive Order restricting travel from six majority Muslim countries scheduled to go into effect tomorrow, the Order could have immediate implications for the City and DEN.