                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                              January 4, 2018
                                       PUBLISH              Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 NAZLI McDONNELL; ERIC VERLO,

             Plaintiffs - Appellees,
 v.                                                   No. 17-1071
 CITY AND COUNTY OF DENVER;
 ANTONIO LOPEZ, Denver Police
 Commander, in his official and
 individual capacities; VIRGINIA
 QUINONES, Denver Police Sergeant,
 in her official and individual
 capacities,

           Defendants - Appellants.
 _____________________

 AIRPORTS COUNCIL
 INTERNATIONAL - NORTH
 AMERICA,

             Amicus Curiae.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                (D.C. NO. 1:17-CV-00332-WJM-MJW)


Wendy J. Shea (Writer Mott and Kirsten J. Crawford with her on the briefs),
Assistant City Attorneys, Denver, Colorado, for Appellants.

Andrew McNulty (David A. Lane and Mari Newman with him on the brief),
Killmer, Lane & Newman, LLP, Denver, Colorado, for Appellees.
Timothy J. Filer, Foster Pepper PLLC, Seattle, Washington (Thomas R. Devine,
General Counsel, Airports Council International-North America, Washington,
DC; Adrian U. Winder and Adrienne G. McKelvey, Foster Pepper PLLC, Seattle,
Washington, with him on the brief), for Amicus Curiae.


Before MORITZ, KELLY, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.



I.    Introduction

      Plaintiffs-Appellees, Nazli McDonnell and Eric Verlo, sought a preliminary

injunction against Defendants, arguing policies and regulations governing protests

and demonstrations at Denver International Airport (“DIA”) violate their First and

Fourteenth Amendment rights. The district court granted the injunction in part,

concluding Plaintiffs made the necessary showing with respect to their claim that

the challenged regulations are unreasonable because they do not contain a formal

process for expediting permit applications in exigent circumstances. McDonnell

v. City & Cty. of Denver, 238 F. Supp. 3d 1279, 1299-1301 (D. Colo. 2017). The

district court also enjoined Defendants from enforcing certain regulations

governing the location of permitted protests and picketing restrictions, including

the size of signage. Id. at 1301-02.

      Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse the grant

of the preliminary injunction.


                                        -2-
II.   Background

      DIA was established and is governed by the City and County of Denver

Municipal Charter. https://www.flydenver.com/about/administration (last visited

Dec. 2, 2017). Relevant to the matter before this court, § 5-16(d) of the Denver

Revised Municipal Code provides as follows:

      The manager of aviation shall have the power and authority, and is
      hereby empowered and authorized, upon the basis of passenger flow
      or where necessitated by the peculiar character of Denver Municipal
      Airport System as an airport, to adopt rules and regulations
      pertaining to the exercise of First Amendment rights, including by
      way of example, but not by way of limitation, solicitation of
      contributions for charitable or religious purposes and the
      dissemination of printed material upon Denver Municipal Airport
      System. Such rules and regulations shall establish reasonable time,
      place and manner guidelines for the exercise of such First
      Amendment rights.

The rules and regulations governing the management, operation, control, and use

of DIA include Regulation 50, which regulates “all leafleting, display of signs,

signature gathering, solicitations of funds and other speech related activity

conducted at Denver International Airport for religious, charitable, or political

purposes, or in connection with labor disputes.” Denver Revised Mun. Code

§ 50.01. Regulation 50.03 prohibits any person or organization from engaging in

speech-related activity at DIA for religious, charitable, or political purposes

without first obtaining “a permit for such activity issued by the [Chief Executive

Officer of Aviation] or his or her designee.” Id. § 50.03; McDonnell, 238 F.

Supp. 3d at 1285-86. An application to obtain the required permit must be

                                         -3-
submitted “at least seven (7) days prior to the commencement of the activity for

which the permit is sought.” McDonnell, 238 F. Supp. 3d at 1286 (quoting

Denver Revised Mun. Code § 50.04–1).

      On January 28, 2017, an unpermitted protest was held at DIA in an interior

area of Jeppesen Terminal colloquially known as the “Great Hall.” Id. at 1287-

88. The protest was in response to Executive Order 13769 which, inter alia,

temporarily suspended entry into the United States of nationals from seven

predominantly Muslim countries. Protecting the Nation From Foreign Terrorist

Entry Into the United States, Exec. Order No. 13769 of January 27, 2017, 82 Fed.

Reg. 8977 (Feb. 1, 2017). A second unpermitted protest, which was organized

and attended by the Plaintiffs, was held in Jeppesen Terminal on January 29,

2017. McDonnell, 238 F. Supp. 3d at 1289. The January 28th protest was

allowed to continue without a permit but protestors were eventually moved from

the Great Hall to an outdoor plaza. Id. at 1289. The January 29th protest took

place near the international arrival area at the north end of the Great Hall and

continued for several hours. Id. Although protestors on both days were warned

they could be arrested for continuing to demonstrate without a permit, no arrests

were made. Id. The district court’s order contains a comprehensive description

of both protests. Id. at 1287-89.

      On February 6, 2017, Plaintiffs filed a complaint in the United States

District Court for the District of Colorado challenging the permitting process set

                                         -4-
out in Regulation 50. Plaintiffs alleged violations of their First and Fourteenth

Amendment rights and sought, inter alia, compensatory damages, injunctive

relief, and a declaration that Regulation 50 is unconstitutional on its face. On the

same day, Plaintiffs filed a Motion for Preliminary Injunction, seeking “an

injunction prohibiting their arrest for standing in peaceful protest within Jeppesen

Terminal.” Plaintiffs asserted they were likely to succeed on the merits of their

claim that Regulation 50 is a prior restraint that prohibits them from engaging in

speech protected by the First Amendment. Arguing DIA is a public forum, they

claimed Regulation 50 is facially unconstitutional because it is content-based and

not narrowly tailored to serve a compelling government interest. Cf. Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (holding

“speakers can be excluded from a public forum only when the exclusion is

necessary to serve a compelling state interest and the exclusion is narrowly drawn

to achieve that interest”); cf. also Verlo v. Martinez, 820 F.3d 1113, 1129 (10th

Cir. 2016) (discussing the three speech forums: the traditional public forum, the

designated public forum, and the nonpublic forum). In the alternative, Plaintiffs

argued they were likely to succeed on the merits of their claim even if DIA is

determined to be a nonpublic forum because the restrictions on speech imposed

by Regulation 50 are not reasonable. Cf. Cornelius, 473 U.S. at 800 (“Access to a

nonpublic forum . . . can be restricted as long as the restrictions are reasonable

and are not an effort to suppress expression merely because public officials

                                          -5-
oppose the speaker’s view.” (quotation and alteration omitted)). Plaintiffs’

argument included an assertion the seven-day advance notice requirement for

obtaining a permit is not a reasonable restriction on First Amendment rights.

Plaintiffs’ briefing did not include any argument on signage restrictions.

      The district court held a full-day hearing at which Plaintiffs and Defendants

presented testimony. At the beginning of the hearing, the district court informed

the parties it had determined DIA is a nonpublic forum and intended to apply a

reasonableness standard to its analysis of Regulation 50. Plaintiffs and

Defendants then presented the testimony of several individuals, including the

Plaintiffs, a legal observer who attended the January 28th protest, the chief

operating officer of DIA, the assistant director for terminal operations at DIA, and

the law enforcement officer responsible for all police services at DIA. At the

conclusion of the hearing, the district court asked Plaintiffs’ counsel to state what

Plaintiffs would include in the preliminary injunction if one was granted. In

response, counsel stated:

      I would enjoin defendants from . . . arresting people for engaging in
      behavior that the plaintiffs or people similarly situated are engaging
      in. I would enjoin 50.09 of Regulation 50 as being overbroad. And I
      think the permit requirement[] is also overbroad.

      I don’t—I don’t know if there is necessarily a need for no permit
      requirement, I don’t—I wouldn’t say that DIA can’t implement a
      permit requirement of some nature, but certainly having no exigent
      circumstances exception is not acceptable under the First
      Amendment. And the length of the—the notice requirement is
      unconstitutional.

                                         -6-
      On February 22, 2017, the district court entered an order granting the

injunction in part, and denying it in part. As to Plaintiffs’ argument that DIA is a

public forum, the court noted the Supreme Court has definitively held that airport

terminals are nonpublic forums. Int’l Soc’y for Krishna Consciousness, Inc. v.

Lee, 505 U.S. 672, 678-81 (1992); see also Mocek v. City of Albuquerque, 813

F.3d 912, 930 (10th Cir. 2015) (recognizing the Supreme Court’s ruling that

airports are nonpublic forums). The district court further concluded that DIA is

not a designated public forum. See Cornelius, 473 U.S. at 802 (holding a

government entity may create a designated public forum by intentionally

designating “a place not traditionally open to assembly and debate as a public

forum”). Accordingly, it analyzed whether Plaintiffs had a likelihood of success

on the merits of their claim that Regulation 50 is not reasonable in light of the

purposes served by DIA. 1 See Lee, 505 U.S. at 687 (O’Connor, J., concurring)

(stating that any restriction on speech in a nonpublic forum must be reasonable in

light of the purpose of the forum and all the surrounding circumstances).

      The district court ruled that Plaintiffs were unable to show they are likely

to succeed on the merits of their claims that Regulation 50’s advance permitting

requirement, including Regulation 50.03’s seven-day advance notice requirement,


      1
        Noting that the primary purpose of DIA “is to facilitate safe and efficient
air travel,” the district court recognized that every arriving and departing
passenger at DIA must pass through the Great Hall. McDonnell v. City & Cty. of
Denver, 238 F. Supp. 3d 1279, 1297 (D. Colo. 2017).

                                          -7-
is overbroad because it is unreasonable in all circumstances. McDonnell, 238 F.

Supp. 3d at 1298-99. The district court, however, granted Plaintiffs’ motion, in

part, concluding Plaintiffs showed a strong likelihood of success on the merits of

their claim that Regulation 50.03’s lack of a formal process for expediting permit

applications in exigent circumstances is unreasonable. Id. at 1299-1301. The

district court further concluded Plaintiffs are likely to succeed on their challenge

to Defendants’ unfettered discretion to designate the location of permitted

activity. Id. at 1301. The district court also granted a preliminary injunction as

to the picketing restriction in Regulation 50.02-8 which prohibits picketing in the

Jeppesen Terminal unless it is part of a labor protest. Id. at 1301-02. The court

concluded Plaintiffs showed a likelihood of success on the merits of that claim

because a ban on picketing “is foreclosed by Justice O’Connor’s analysis of the

leafleting ban[] at issue in Lee.” Id. at 1301. Finally, the court concluded

Plaintiffs can likely show Regulation 50.08-12, which restricts the size of signage

to “one foot by one foot,” is unreasonable. Id. at 1301-02.

       Defendants appeal from the partial grant of the preliminary injunction.

III.   Discussion

A. Standard of Review

       A movant is not entitled to a preliminary injunction unless he can show: (1)

he is likely to succeed on the merits of his claim; (2) he will suffer irreparable

harm if the injunction is denied; (3) his threatened injury outweighs the harm the

                                         -8-
grant of the injunction will cause the opposing party; and (4) if issued, the

injunction will not adversely affect the public interest. Fish v. Kobach, 840 F.3d

710, 723 (10th Cir. 2016). Because the grant of a preliminary injunction is “an

extraordinary remedy,” the movant must make a “clear showing” that he is

entitled to the injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22

(2008). Further, the movant must meet a heightened burden if he seeks a

preliminary injunction, like the one requested by Plaintiffs, that will alter the

status quo. Fish, 840 F.3d at 723-24. When “seeking such an injunction [the

movant] must make a strong showing both with regard to the likelihood of success

on the merits and with regard to the balance of the harms.” O Centro Espirita

Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004)

(en banc).

      This court reviews the grant of a preliminary injunction for abuse of

discretion. Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009). A

district court abuses its discretion when it “commits an error of law or relies upon

a clearly erroneous factual finding.” Id.

B. Likelihood of Success On the Merits

      1. Spontaneous Expression

      The district court concluded Plaintiffs showed a strong likelihood of

success on the merits of their claim that Regulation 50.03 is facially unreasonable

because it does not contain a formal written process to obtain a permit in less than

                                            -9-
seven days. McDonnell, 238 F. Supp. 3d at 1299-1301. The district court arrived

at this conclusion notwithstanding its acknowledgment that “serious and

substantial purposes [are] served by an advance notice requirement.” Id. at 1299.

The district court abused its discretion when it granted the preliminary injunction

on this claim.

      Under the “unreasonableness” standard applicable to nonpublic forums,

Lee, 505 U.S. at 687 (O’Connor, J., concurring), a movant must show a strong

likelihood of success on the merits. O Centro Espirita, 389 F.3d at 976 (en banc).

Here, the district court acknowledged “[t]he parties have not cited, nor has the

Court located, any case specifically discussing the need for a nonpublic forum to

accommodate short-notice demonstrations.” McDonnell, 238 F. Supp. 3d at 1299.

The fact that Plaintiffs were unable to locate precedent supporting their position

on spontaneous speech in a nonpublic forum led the district court to evaluate their

claims based on case law addressing spontaneous speech in public forums.

Relying on those cases, the district court concluded Plaintiffs made a strong

showing that Regulation 50’s lack of a formal exigency policy is unreasonable

because it “does not account for the possibility of . . . short-notice demonstrations

regarding suddenly relevant issues.” Id. Analogizing to the twenty-four-hour

notice the City of Denver requires to prepare for a spontaneous, topical parade on

a public street, the district court concluded Plaintiffs would likely succeed on

their claim that Defendants can accommodate a protest at DIA with twenty-four

                                         -10-
hours notice in exigent circumstances. Id. The district court’s analysis on this

issue conflicts with the standard applicable to nonpublic forums and fails to apply

the standard relevant to a preliminary injunction that disrupts the status quo.

      A ruling that a plaintiff has a strong likelihood of success on the merits is

based on the evidence plaintiff intends to present at trial, particularly when, as in

this matter, plaintiffs cannot identify any case law supporting their position. Cf.

Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1190-91 (10th Cir. 2008)

(“[T]he district court held that [movant] failed to show a likelihood of success on

the merits because it offered no evidence of a contract requiring Union Pacific to

provide rail service to it.”); Hawkins v. City & Cty. of Denver, 170 F.3d 1281,

1290 (10th Cir. 1999) (“Lee describes the reasonableness test as a

factually-intensive, individualized inquiry.”); see also McNeilly v. Land, 684 F.3d

611, 620 (6th Cir. 2012) (affirming denial of a preliminary injunction because

movant failed to present sufficient evidence to show a likelihood of success on

the merits). Here, the district court referenced the testimony of three airport

administrators as support for its conclusion Plaintiffs could not show a strong

likelihood of success on the merits of their claim that the seven-day advance

notice requirement is unreasonable in all circumstances. McDonnell, 238 F.

Supp. 3d at 1297-99 (summarizing testimony on the need for Defendants to have

advance notice of a protest so they can instruct demonstrators on permissible

activities, determine whether additional security is needed, understand the subject

                                         -11-
matter of the protest as it relates to the need for additional security, and determine

an appropriate location for the protest). The court, however, ignored that same

testimony when it concluded Plaintiffs will likely prevail on their claim

Regulation 50 is unreasonable because it does not allow speakers to obtain a

permit with only twenty-four hours notice in exigent circumstances. Instead, the

district court’s conclusion was, by the court’s own admission, not based on any

record evidence but was, instead, based on “cases regarding public fora (streets

and parks) [that] have held or strongly suggested that an advance notice

requirement is unconstitutional if it does not account for the possibility of

spontaneous or short-notice demonstrations regarding suddenly relevant issues.” 2

Id. at 1291-92, 1299 (referencing American–Arab Anti–Discrimination Comm. v.


      2
        As already noted, Plaintiffs have not identified any cases so holding in
situations involving nonpublic forums. The absence of such precedent is
unsurprising. Because public forums occupy a “special position in terms of First
Amendment protection due to their historic role as sites for discussion and
debate,” the government’s power to restrict speech in a traditional public forum is
“very limited.” McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (quotation
omitted). The government may impose time, place, and manner restrictions only
if they serve a significant government interest, are narrowly tailored, and provide
alternative channels of communication. Id. Nonpublic forums do not have the
same “traditionally open character of public streets and sidewalks.” Id.
Accordingly, “[a]ccess to a nonpublic forum . . . can be restricted as long as the
restrictions are reasonable and are not an effort to suppress expression merely
because public officials oppose the speaker’s view.” Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (quotation and alternation
omitted); see also PeTA, People for the Ethical Treatment of Animals v.
Rasmussen, 298 F.3d 1198, 1204 (10th Cir. 2002) (“Content-neutral speech
restrictions in a public forum are subject to strict scrutiny, while content-neutral
restrictions in a nonpublic forum are subject to a reasonableness test.”).

                                         -12-
City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a

substantial inhibition on speech.”); Church of Am. Knights of Ku Klux Klan v.

City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (“[G]iven that . . . political

demonstrations are often engendered by topical events, a very long period of

advance notice with no exception for spontaneous demonstrations unreasonably

limits free speech.”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996)

(“The five-day notice requirement restricts a substantial amount of speech that

does not interfere with the city’s asserted goals of protecting pedestrian and

vehicle traffic, and minimizing inconvenience to the public.”)). The substantial

difference between the legal standard applicable to a public forum and the

standard applicable to a nonpublic forum renders the comparison inappropriate

and legally erroneous.

      Because it erroneously relied on principles applicable only to public

forums, the district court failed to engage in the inquiry actually applicable to

nonpublic forums when it resolved the exigency issue. Regulations governing

speech in a nonpublic forum are evaluated by analyzing the reasonableness of the

restriction in light of the purpose of the forum. Reasonableness is measured by

evaluating the government’s interest in “preserving the property for the use to

which it is lawfully dedicated.” Lee, 505 U.S. at 688 (O’Connor, J., concurring)

(quotations and alterations omitted); Cornelius, 473 U.S. at 799-800 . Any

restriction “need only be reasonable; it need not be the most reasonable or the

                                         -13-
only reasonable limitation.” Cornelius, 473 U.S. at 808. In Lee, the Supreme

Court upheld a ban on face-to-face solicitation at an airport as reasonable because

such solicitation was “incompatible with the airport’s functioning.” 505 U.S. at

690 (O’Connor, J., concurring) (interacting with or avoiding solicitors would

cause congestion because travelers are carrying baggage and frequently facing

time constraints); Hawkins, 170 F.3d at 1291 (upholding restrictions on picketing

and leafleting at the entrance to a performance venue because such activities were

inconsistent with nonpublic forum’s “limited purpose as an entertainment

venue”). Accordingly, restrictions on speech in a nonpublic forum are not

categorically unreasonable because they prevent near-spontaneous protests in the

location “most obviously relevant” to the speaker. McDonnell, 238 F. Supp. 3d

at 1299-1301. Because the district court engrafted public forum considerations

onto the reasonableness standard applicable in cases involving a nonpublic forum,

it erred in its analysis of the exigency issue.

      The district court further erred by relying on its own belief that Defendants

could shorten the permit period to twenty-four hours in exigent circumstances,

choosing the twenty-four-hour period because that “is all the notice Denver needs

to prepare for a street parade.” Id. at 1300 n.5. The court’s finding that

Defendants are able to process permit applications and adequately prepare for a

protest within twenty-four hours finds no support in the record and the court

failed to engage in any evidence-based comparison of the differences between

                                          -14-
street parades and airport protests. 3 Id. (“At the Preliminary Injunction Hearing,

Defendants’ counsel argued that preparing for a street parade is actually easier

than preparing for demonstrations at the airport. The Court cannot fathom how

this could possibly be the case, at least when comparing a typical street parade

request to the typical Airport demonstration request.”). To the contrary, the

district court’s finding is incompatible with testimony presented at the hearing.

In response to questioning from the district court, Commander Lopez testified

that five days is required to adequately prepare for a protest at DIA.

      [Commander Lopez]: . . . [F]ive days would have given me enough
      time to get help from downtown and get enough resources in place.

      The Court: Is there any reason why that couldn’t—putting aside
      budget, that couldn’t be done in three days?

      [Commander Lopez]: That’s kind of tight.

      The Court: Why is that?

      [Commander Lopez]: Depending on what other events are being
      held downtown, then trying to coordinate the movement of personnel


      3
        For example, DIA’s chief operating officer, Kenric Greene, testified that
the Great Hall is a “controlled area” and there are numerous “constraints” on the
public’s ability to access areas accessible from the Great Hall. Mr. Greene also
testified that the creation of TSA has “made the terminal a more crowded space”
because passengers are now required to congregate in security areas. The district
court noted that “every arriving and departing passenger at the Airport . . . must
pass through some portion of the Great Hall.” The Airport served 58.3 million
passengers in 2016 and 36,000 people worked there. McDonnell, 238 F. Supp. 3d
at 1288. Commander Lopez testified that routine security activities at DIA
include foot patrols, car patrols, assistance at TSA screening points, and escorting
bomb dogs through the airport.

                                        -15-
      with three days’ notice might be harder to do. I mean, anything is
      doable; if we have to do it, we have to do it. As we demonstrated on
      the 28th and the 29th, we threw people together in a hurry to try to
      accommodate public safety, but preferably five days would be okay.
      Three days would, I think, be a stretch given vacations, days off, and
      we’re having a lot of First Amendment activity downtown, and
      resources are being drawn into that. So in light of the current times,
      three days is really tight for us.

      The Court: All right. Thank you.

Unlike the district court’s unsupported analogy between street parades and airport

protests, Commander Lopez’s testimony is relevant to the governing standard,

i.e., whether “the restriction on speech is reasonable in light of the purpose

served by the forum.” Hawkins, 170 F.3d at 1287; see also id. (“[F]or a court to

uphold a speech restriction as reasonable, it need not be the most reasonable or

the only reasonable limitation.” (quotation omitted)). Yet, the district court

disregarded his testimony without explanation, choosing instead to base its ruling

on its own beliefs. Because there is no record support for the district court’s

finding that Defendants can adequately 4 prepare for a protest at DIA with only

twenty-four hours advance notice every time an exigent circumstance arises, the

finding is clearly erroneous.


      4
       It is true that Commander Lopez testified that “anything is doable; if we
have to do it, we have to do it.” But that testimony does not speak to the question
of whether twenty-four hours provides Defendants with adequate time to
coordinate an optimal level of security at a busy international airport. The
reasonableness of Regulation 50 must be evaluated in light of current
circumstances, including heightened airport security in the wake of the September
11, 2001 airliner attacks on the World Trade Center and the Pentagon.

                                         -16-
      The district court’s flawed analysis and clearly erroneous factual finding

led it to conclude that Plaintiffs demonstrated a strong likelihood of succeeding

in their challenge to the lack of an exigency provision in Regulation 50. The

court abused its discretion in so concluding.

      2. Location

      For the same reasons discussed above, the district court also erred when it

concluded Plaintiffs showed a strong likelihood of success on their challenge to

Defendants’ discretion to control the location of permitted speech. Once again,

the court erroneously injected public forum standards into its analysis.

McDonnell, 238 F. Supp. 3d at 1301 (referencing public forum cases involving

“the power of location when conveying a message”).

      3. Signage

      The district court also enjoined Defendants from enforcing restrictions on

picketing. Regulation 50.02-8 defines picketing as “one or more persons

marching or stationing themselves in an area in order to communicate their

position on a political, charitable, or religious issue, or a labor dispute, by

displaying one or more signs, posters or similar devices.” Id. at 1286.

Regulation 50.09 prohibits picketing “in all interior areas of the Terminal and

concourses, in the Restricted Area, and on all vehicular roadways” and further

states that picketing “shall not be conducted by more than two (2) persons at any

one location upon the Airport.” Id. Unlike its analysis of the permit process, the

                                          -17-
district court did not evaluate this argument by applying standards applicable to

public forums. Instead, the court concluded Plaintiffs are likely to prevail on a

challenge to the picketing regulation because “[a]ny argument that the picketing

ban is reasonable in the context of the Airport is foreclosed by” the Supreme

Court’s holding in Lee. 5 Id. at 1301. In Lee, the Court upheld a ban on

solicitation at JFK International Airport but struck down a ban on leafleting,6

concluding “leafleting does not entail the same kinds of problems presented by

face-to-face solicitation.” Lee, 505 U.S. at 690 (O’Connor, J., concurring)

(quotations omitted). Here, the district court stated that picketing is “usually less

obtrusive” than leafleting and, thus, cannot be banned under Lee. McDonnell,

238 F. Supp. 3d at 1301.

      The district court’s conclusion that Plaintiffs demonstrate a strong

likelihood of prevailing on their challenge to the picketing regulation must be

reversed because it finds no support in the record. When the district court

compared picketing with leafleting, it found that “[s]ignholding is usually less

      5
        Regulation 50.09 prohibits picketing “in all interior areas of the Terminal
and concourses, in the Restricted Area, and on all vehicular roadways.”
McDonnell, 238 F. Supp. 3d at 1286. Thus, it does not completely ban picketing
at DIA, but it restricts the number and location of picketers in a permitted protest.
The January 28th protest, which included protestors holding signs, was allowed to
continue on a plaza outside Jeppesen Terminal that leads to a hotel and a light rail
station. Id. at 1289.
      6
       In Lee, Justice O’Connor described leafleting as “the repetitive distribution
of printed or written material.” Int’l Soc’y for Krishna Consciousness, Inc., v.
Lee, 505 U.S. 672, 685-86 (1992) (O’Connor, J., concurring).

                                        -18-
obtrusive [than leafleting], given that the signholder often stays within an even

smaller area and conveys his or her message passively to those who walk by and

notice the sign.” Id. at 1301. Even assuming the district court is correct that

picketing resembles leafleting because the picketer’s message is conveyed

passively, picketing is different from leafleting because a passerby is not “free to

read the message at a later time.” Lee, 505 U.S. at 690 (O’Connor, J.,

concurring) (quotations omitted) (describing one of the “problems presented by

face-to-face solicitation” inside an airport terminal as the fact “the recipient

[must] stop in order to receive the message the speaker wishes to convey”).

Because of the lack of evidence on the issue, the district court failed to properly

evaluate whether the restrictions on picketing inside Jeppesen Terminal are

“reasonable in light of the purpose served by the forum.” Cornelius, 473 U.S. at

808; see also Hawkins, 170 F.3d at 1290 (noting the reasonableness inquiry is

fact-intensive). Accordingly, the court abused its discretion when it concluded

Plaintiffs met their burden of demonstrating a strong likelihood of prevailing on

their challenge to the picketing regulation. Kiowa Indian Tribe of Okla. v.

Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998) (“An abuse of discretion occurs

when the district court bases its ruling on an erroneous conclusion of law or relies

on clearly erroneous fact findings.”).

      On a related issue, the district court enjoined Defendants from enforcing

the one-foot-by-one-foot signage restriction under Regulation 50.08-12. This

                                         -19-
ruling is also reversed because the issue was not addressed in the briefing or

during the hearing and neither party presented evidence on the matter.

McDonnell, 238 F. Supp. 3d at 1301-02.

      4. Irreparable Harm, Balance of Harms, and Public Interest

      The district court’s analysis of the three remaining preliminary injunction

factors of irreparable harm, balance of the harms, and the public interest is

cursory, but reviewable. Id. at 1305-06. The district court’s analysis was based

entirely on its conclusion Plaintiffs were likely to prevail on the merits of some

of their claims. Id. (analyzing the remaining preliminary injunction factors by

assuming a First Amendment violation). Because we have reversed that ruling,

the court’s analysis of irreparable harm, balance of harms, and the public interest

is necessarily flawed and provides no support for the court’s grant of the

preliminary injunction.

IV.   Conclusion

      “A preliminary injunction is an extraordinary remedy that is granted only

when the movant’s right to relief is clear and unequivocal.” First W. Capital

Mgmt. Co. v. Malamed, 874 F.3d 1136, 1145 (10th Cir. 2017) (quotations and

alternations omitted). For the reasons detailed above, we reverse the district

court’s grant of a preliminary injunction in favor of Plaintiffs on their challenge

to Regulation 50’s lack of an exigency provision. We also reverse the district

court’s ruling enjoining Defendants from enforcing Regulation 50’s restrictions

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on picketing, including the size of signage, and its ruling enjoining Defendants

from exercising their discretion to select the location of a permitted protest within

the airport grounds.




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