Federal Judge Upholds Plans For Pepsi Center Protest Zone

August 7 2008, 7:35 AM

In a 71-page ruling available here, a federal judge in Denver Wednesday upheld Denver's planned protest zone for the Democratic National Convention, finding the plan does not run afoul of the First Amendment. As The Denver Post reports:

The demonstrators wanted the public-protest area moved closer to the delegates coming in and out of the Pepsi Center, and they wanted parade routes to end closer to the venue.

The court, in ruling for the defendants, the City and County of Denver, and the Secret Service, found:

The Court finds that the Plaintiffs have shown that the challenged restrictions affect their ability to engage in expressive activities in traditional public fora. However, the Defendants have shown that the restrictions are content-neutral, that they are narrowly tailored to serve important governmental interests, and that there are adequate alternative channels by which the Plaintiffs can communicate their messages. Thus, the Plaintiffs have not shown that their First Amendment rights will be infringed, nor that they are entitled to any injunctive relief.

The ruling describes the planned protest zone and says its chief characteristic is the creation of a "security perimeter."

[T]he central feature of the security plan is the creation of a "security perimeter" that encloses the entirety of the Pepsi Center grounds, as well as those portions of Auraria Parkway and Speer Boulevard adjacent to the Pepsi Center grounds. The security perimeter will become effective on Friday, August 22, and will remain enforced through the conclusion of Convention activities on Wednesday, August 27. Only those persons holding credentials issued by the Convention Committee will be permitted to pass through the security perimeter, only at designated entrance checkpoints and only after having undergone a magnetometer-based security screening. City streets that fall within the security perimeter, such as Chopper Circle and portions of 7th Street and 9th Street, will effectively be closed to the public during this period. In addition, nearly all of Auraria Parkway will fall within the security perimeter and be closed to public use, with the exception of authorized parades on Sunday, August 24. Similarly, with the exception of inbound rush-hour traffic between 6:00 a.m. and 9:00 a.m. each weekday, Speer Boulevard will be closed to public use from Interstate 25 to Larimer Street for the duration of the convention.

As to how the "protest zone" came about and where it is located:

Ordinarily, public streets are considered traditional public fora where individuals can freely exercise their First Amendment rights. In recognition of the fact that the security perimeter compromises the public's ability to engage in First Amendment activities on the closed streets, the Defendants have designated a portion of Parking Lot A on the Pepsi Center grounds as a "Public/Demonstration Zone." The Public/Demonstration Zone (sometimes "the Zone") will be located in the southernmost portion of Parking Lot A. The boundaries of the Zone are Auraria Parkway on the southeast, 7th Street on the Southwest, and a large "media pavilion" tent that stands to the northeast and shares the remainder of Parking Lot A. The northwest boundary of the Zone is not defined by any specific geographical or topographical features. Rather, it will be established by a set of barriers placed roughly halfway along the northwest/southeast axis of the parking lot.

The zone will encompass 47,000 square feet. It sure sounds like a caged area to me:

The Zone will be enclosed on three sides by two rings of concrete "Jersey barriers," topped with chain-link fencing. These two rings will be located 8 feet apart, thereby creating a "buffer zone," which will allow law enforcement officers an opportunity to intercept any person who evades the inner ring of barriers. The fourth side of the Zone, along Auraria Parkway, will not be enclosed, but to access the northwestern edge of the Zone, visitors will be required to pass through an array of low concrete barriers.9 The top of the Zone will be open.

According to the judge's ruling, these were the four grounds of complaint by the demonstrators:

  • The location and configuration of the Public Demonstration Zone on the Pepsi Center grounds, being outside "sight and sound" of delegates and the Pepsi Center building itself, renders it an inadequate alternative to offset the closure of some public streets to First Amendment uses;
  • The terminus of the approved route for parades scheduled during the Convention, on Monday, August 25, through Wednesday, August 27, is not within "sight and sound" of the Pepsi Center;
  • The route for parades scheduled before the Convention begins, on Sunday, August 24, does not travel over Chopper Circle; and
  • The City of Denver denied a permit to Plaintiff Recreate 68 for an afternoon parade on Monday, August 25 through downtown Denver, citing traffic and staffing concerns.

The defendants maintained:

[P]ersons in the Public/Demonstration Zone will be the "welcoming committee" for delegates, as the Zone will be the first thing delegates encounter after getting off buses and being screened.

One thing the parties never did agree on was what to call the protest zone. The judge writes:

The Defendants prefer to call it a "public access area." Some of the Plaintiffs refer to it as a "free speech zone," and sometimes, a "freedom cage." The Court adopts the term "Public/Demonstration Zone,"

As to whether those entering the zone will be searched, the judge writes:

Individuals entering the Zone will not be subjected to searches, except insofar as a search would otherwise be permissible under existing constitutional law (i.e. upon probable cause).

So, how close will the delegates get to the protesters? The ruling states:

It is anticipated that most delegates will be transported by Convention supplied bus transportation to the Pepsi Center and that delegates will be dropped off at a screening location somewhere west of 7th Street and the Zone. After being screened, delegates will walk along a tree-lined sidewalk through the middle of the grounds to the Pepsi Center entrances. The sidewalk passes parallel to the northwest face of the Public/Demonstration Zone. During that portion of their walk, the delegates will be approximately 200 feet away from persons standing at the northwest edge of the Zone. There will be no obstructions between the delegates' sidewalk and the Zone itself. Thus, any delegate wishing to approach the demonstrators may leave the sidewalk and walk directly to the edge of the buffer zone. This would place the delegate within 8 feet of those in the Public/Demonstration Zone.

How will the protesters hand out their written material?

The fencing and buffer zone will effectively prohibit the passage of leaflets or other material to the delegates. To address this, the City has agreed to collect leaflets from any organization or member of the public who wishes to provide them.10 The collected leaflets will be placed on tables along the delegates' sidewalk, such that delegates can take and peruse them. Persons in the Public/Demonstration Zone can watch and encourage delegates to take specific leaflets. The leaflets supplied by individuals and organizations will be "screened for security purposes" by the Secret Service in the same manner as other material entering the Pepsi Center grounds, but it does not appear that the material will be reviewed by the City of Denver or the Secret Service for its content or for any other purpose.

And, here's a first: The protesters can submit their materials by electronic media, and the leaflet tables will contain computers with printers so any interested delegates can make a copy. Moving on to the parades, the judge writes:

As many as five parades per day are scheduled on the approved parade route, occurring almost continually from 11:00 a.m. to 2:30 p.m. each day of the Convention. All told, a dozen or more organizations will be formally represented in the various parades. The parties anticipate that each parade might involve as many as 10,000 participants, as well as numerous vehicles. The approved parade route begins in Civic Center Park, proceeds west along Colfax Avenue, turns north onto Speer Boulevard, and ends at the intersection of Speer Boulevard and Larimer Street.

Sunday, the day before the official start of the convention, will be a big parade day.

Plaintiffs Tent State University and Recreate 68 have each been granted a permit to conduct a Sunday parade, each of which is expected to draw 20,000 or more marchers.

Here's a heads-up if you're planning on walking to the convention:

Because of the closure of Speer Boulevard and Auraria Parkway, pedestrians cannot travel northwest towards the Pepsi Center on Speer Boulevard from the parade terminus. Although the record is not clear, the evidence suggests that some or all of 9th and 12th Streets between Auraria Parkway and Larimer Street will be closed to pedestrian traffic as well.

If that sounds confusing, here's a color-coded map of street closures, the parade route and the Pepsi Center. As for one parade that failed to get approval:

Recreate 68 requested a permit to conduct a parade involving 10,000-20,000 marchers to take place at noon on Monday, August 25, through downtown Denver and ending at a federal courthouse (the "Downtown parade"). The requested route would begin at Civic Center Park, travel to and along the 16th Street pedestrian mall to Champa Street, then turn north on Champa Street to its destination. The City denied the requested permit because it would "substantially interfere with traffic in the area" because "there are not sufficient city resources [i.e. police officers] to mitigate the disruption," and because the requested route "would limit accessibility of the [16th Street Mall] shuttle buses as well as severely impact the light rail system."

However,

The Plaintiffs concede that the denial of the permit does not prevent Recreate 68 from using public sidewalks to conduct a march, so long as marchers obey all traffic laws and signals, nor does it prevent the public from assembling at the destination courthouse.

What else can you expect?

Commonly used public fora such as Speer Boulevard south of Larimer Street, the 16th Street pedestrian mall, and all downtown sidewalks will remain available for First Amendment expression, subject only to generally applicable state laws and city ordinances. In addition, the City of Denver has issued scores of permits to groups – including some of the Plaintiffs – who seek to conduct rallies, demonstrations, and events in various city parks during the Convention. These events and gatherings are expected to involve thousands to tens of thousands of participants and, one may reasonably assume, will attract significant media attention.

As for protests around the 27 hotels housing the delegates:

[T]here are no estrictions that will significantly curtail the rights of persons to engage in speech, assembly, leafletting, or other forms of First Amendment activity at and around these hotels.

If you were wondering just how many people are expected in Denver for the convention, the ruling finds:

The Convention is expected to bring as many as 50,000 attendees to Denver, including 6,000 delegates, 14,000 Democratic Party officials and guests, and 15,000 members of the domestic and international media. In addition, it is expected that the Convention will attract tens (some witnesses believe hundreds) of thousands of people who desire to publically express their views on various subjects through speeches, leaflets, demonstrations, and protests. ....During times when convention activities are taking place, as many as 26,000 people may be inside the Pepsi Center itself, and another 30,000-40,000 people, including media, law enforcement personnel, Pepsi Center workers, and others may be present on the Pepsi Center grounds.

Still to come: The judge's ruling on the protest zones at Invesco Field, where Senator Barack Obama will deliver his nomination acceptance speech.

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