                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LEESA JACOBSON; PETER RAGAN,            No. 16-17199
             Plaintiffs-Appellants,
                                           D.C. No.
                 v.                     4:14-cv-02485-
                                             BGM
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; UNITED
STATES CUSTOMS AND BORDER                 OPINION
PROTECTION; UNITED STATES OFFICE
OF BORDER PATROL; KIRSTJEN M.
NIELSEN, Acting Secretary, United
States Department of Homeland
Security, in her official capacity;
KEVIN K. MCALEENAN, Acting
Commissioner, United States
Customs & Border Protection, in his
official capacity; CARLA L.
PROVOST, Acting Chief of the United
States Border Patrol, in her official
capacity; JEFFREY SELF,
Commander, Arizona Joint Field
Command, in his official capacity;
MANUEL PADILLA, JR., Chief Patrol
Agent-Tucson Sector, in his official
capacity; ROGER SAN-MARTIN,
Agent in Charge-Tucson Border
Patrol Station, in his official
capacity; LLOYD EASTERLING,
Assistant Agent in Charge-Tucson
2                        JACOBSON V. DHS


 Border Patrol Station, in his official
 capacity; J. JOYNER, Border Patrol
 Agent, in his official capacity;
 ROSALINDA HUEY, Border Patrol
 Agent, in her official capacity; N.
 BALLISTREA, Border Patrol Agent, in
 her official capacity; S. SPENCER,
 Border Patrol Agent, in his official
 capacity; K. RIDEN, Border Patrol
 Agent, in her official capacity,
                 Defendants-Appellees.



        Appeal from the United States District Court
                 for the District of Arizona
      Bruce G. Macdonald, Magistrate Judge, Presiding

           Argued and Submitted December 5, 2017
                  San Francisco, California

                      Filed February 13, 2018

     Before: MILAN D. SMITH, JR., and SANDRA S.
      IKUTA, Circuit Judges, and JOHN D. BATES, *
                     District Judge.

             Opinion by Judge Milan D. Smith, Jr.




     *
       The Honorable John D. Bates, Senior District Judge for the United
States District Court for the District of Columbia, sitting by designation.
                        JACOBSON V. DHS                              3

                          SUMMARY **


                           Civil Rights

    The panel vacated the district court’s summary
judgment, entered before any discovery occurred, and
remanded in an action in which appellants challenged their
exclusion from an enforcement zone set up around a Border
Patrol checkpoint area near their homes in rural Arizona.

    Appellants alleged that the First Amendment afforded
them the right both to protest and to monitor the activities at
the Border Patrol checkpoint, which they contend include
racial profiling and other abuses. The district court
determined that the checkpoint area, including the
enforcement zone, was a nonpublic forum from which the
government could reasonably exclude appellants. The
district court therefore denied the motion to take discovery
pursuant to Federal Rule of Civil Procedure 56(d), on the
ground that the information would not assist appellants in
opposing summary judgment.

    The panel held that appellants identified several areas
where discovery was relevant to critical matters at issue in
the summary judgment motion. First, information regarding
law enforcement uses of the checkpoint area encompassed
within the enforcement zone was relevant to the
determination of whether the enforcement zone was a public
or a nonpublic forum. Second, information about who had
been allowed into the enforcement zone could reveal

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4                    JACOBSON V. DHS

whether the enforcement zone has been applied selectively
based on viewpoint. Finally, information regarding traffic
stops at the checkpoint was relevant to determine the
accuracy of data gathered by appellants and their alternative
opportunities for observation, as would be required to justify
their exclusion from a public forum.

    The panel held that the limited record before the district
court did not permit it to conclude, as a matter of law, that
the enforcement zone was a nonpublic forum, or, if it was,
whether the government satisfied the requirements for
excluding appellants from that nonpublic forum. On
remand, and after appropriate discovery, the panel held that
the district court will need to determine if there remain
genuine issues of material fact regarding whether, and what
part of, the enforcement zone is a public forum, and whether
the government’s exclusion policy is permissible under the
principles of forum analysis.


                        COUNSEL

Winslow Taub (argued), Tracy Zinsou, Ethan Forrest, and
Neha Jaganathan, Covington & Burling LLP, San Francisco,
California; Kathleen E. Brody and Brenda Muñoz Furnish,
ACLU Foundation of Arizona, Phoenix, Arizona; Mitra
Ebadolahi and David Loy, ACLU Foundation of San Diego
& Imperial Counties, San Diego, California; for Plaintiffs-
Appellants.

Patrick G. Nemeroff (argued) and Scott McIntosh, Appellate
Staff; Elizabeth A. Strange, Acting United States Attorney;
Chad A. Readler, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellees.
                     JACOBSON V. DHS                       5


Eugene Volokh, Scott & Cyan Banister First Amendment
Clinic, UCLA School of Law, Los Angeles, California; Ilya
Shapiro, Cato Institute, Washington, D.C.; for Amicus
Curiae The Cato Institute.

Rochelle L. Wilcox, Taylor S. Ball, and John Parsi, Davis
Wright Tremaine LLP, Los Angeles, California, for Amici
Curiae National Press Photographers Association and The
Center for Investigative Reporting Inc.


                        OPINION

M. SMITH, Circuit Judge:

   Leesa Jacobson and Peter Ragan (collectively,
Appellants) filed this suit to challenge their exclusion from
an enforcement zone set up around a Border Patrol
checkpoint area near their homes in rural Arizona. Before
any discovery occurred, the district court granted summary
judgment to the Defendants-Appellees (Appellees). We
vacate and remand for further proceedings.

  FACTUAL AND PROCEDURAL BACKGROUND

    Since 2007, the United States Border Patrol (BP) has
operated a checkpoint on Arivaca Road, a rural two-lane
road in southern Arizona. The checkpoint includes a
primary inspection area located on Arivaca Road itself, and
a secondary inspection area located on the south side of
Arivaca Road. Eastbound motorists are stopped and
questioned at the primary inspection area and, in some cases,
directed to the secondary inspection area for further
questioning. The improvements in the checkpoint area
include two portable restrooms, a portable office unit made
6                     JACOBSON V. DHS

of storage containers, a portable kennel, several portable
lights, and road signs, all located on the south side of Arivaca
Road.

    Residents of nearby towns such as the Appellants must
pass through the checkpoint on their daily routines and stop
when traveling eastbound. Some of them, as part of an
organization called People Helping People (PHP), held a
protest near the checkpoint area on December 8, 2013. The
protest was spurred by community complaints that BP agents
racially profiled, unlawfully searched, and used excessive
force on people stopped at the checkpoint. The BP agent in
charge of the checkpoint area learned of the planned protest
and decided to suspend checkpoint operations during the
protest, allegedly for the safety of all involved, which
permitted cars to pass uninspected. On February 26, 2014,
the Appellants and others returned to the checkpoint area to
protest and to monitor activities within the checkpoint area.
The protesters stood first on the south side of Arivaca Road,
and later on the north side of the road, in each case
approximately 100 feet east of the portable office. After the
protesters refused to move further away from the checkpoint
area, BP agents erected a yellow tape barrier across the north
and south shoulders of Arivaca Road approximately 150 feet
east of the portable office unit, and required the protesters to
relocate behind those barriers.

    During the following week, the tape barrier was replaced
with rope barriers on both ends, and signs were added
forbidding unauthorized entry. The rope barriers and the
signs remain in place approximately 150 feet east and west
of the portable office unit. Protesters who have attempted to
cross the rope barriers have been threatened with arrest and
forced back behind those barriers. In total, the so-called
                     JACOBSON V. DHS                       7

enforcement zone of the checkpoint area extends for
approximately 391 feet along Arivaca Road.

    Several incidents led Appellants to believe that the
enforcement zone policy was selectively enforced against
them. The agents in charge stated in an email to Appellants
and at a public presentation that agents on the scene are the
ones who determine “who can enter into the perimeter” and
“where [Appellants] can and can’t be.” On April 3, 2014,
one of the Appellants saw a local resident arrive at the
checkpoint area, park inside the enforcement zone, and
remain inside the barrier for approximately 40 minutes. The
local resident’s wife also arrived and parked inside the
barrier. The local resident, who was known to be a supporter
of the BP and an opponent of PHP, questioned and harassed
the PHP protesters. BP agents did not ask the local resident
to leave the enforcement area. As he departed, he shouted
“Well, we had our fun today” to the BP agents on duty, who
smiled and laughed. When the Appellants asked an agent at
the checkpoint area if they had given the local residents
permission to be in the enforcement zone, the agent replied,
“It’s a free country.” When the agent in charge learned of
this incident from Appellants’ counsel on April 16, 2014, he
directed watch commanders to discuss the incident with
checkpoint agents and make clear that what had been done
was unacceptable.

    Subsequently, a surveyor hired by Appellants was
allowed inside the enforcement zone. The agents on duty
explained to the surveyor that “the barriers were in place
only to exclude people who might interfere with Border
Patrol activities, such as protestors.” One agent invited the
surveyor to share a meal with the agents on duty. On another
occasion, BP agents allowed reporters and pedestrians to
walk along the north side of the road through the
8                    JACOBSON V. DHS

enforcement zone during a PHP rally; but, on the same day,
agents parked their vehicles so as to impede the PHP
monitors from even viewing, much less entering, the
enforcement zone.

    Appellants filed suit on November 20, 2014, alleging
unlawful infringement of their First Amendment rights and
retaliation for exercise of those rights. The complaint sought
injunctive and declaratory relief as well as costs and
attorney’s fees. After the district court denied Appellants’
motion for a preliminary injunction, Appellees moved to
dismiss or, in the alternative, for summary judgment.
Appellants opposed this motion and moved for discovery.
Based only on the pleadings and declarations, and before any
discovery had taken place, the district court denied
Appellees’ motion to dismiss, denied Appellants’ motion to
take discovery, and granted summary judgment to Appellees
on the ground that the checkpoint area, including the
enforcement zone, is a nonpublic forum, and that the
restrictions on speech therein are content-neutral and
reasonable. Appellants timely appealed.

                        ANALYSIS

    Appellants maintain that the First Amendment affords
them the right both to protest and to monitor the activities at
the BP checkpoint, which they contend include racial
profiling and other abuses. See Animal Legal Def. Fund v.
Wasden, 878 F.3d 1184, 1203 (9th Cir. 2018) (“It is no
surprise that we have recognized that there is a ‘First
Amendment right to film matters of public interest.’”
(quoting Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th
Cir. 1995))). They argue that the district court erred in
concluding as a matter of law that the government may
exclude them from the entire enforcement zone, and that it
abused its discretion by denying their motion for discovery.
                     JACOBSON V. DHS                        9

    We examine these questions within the framework of
forum analysis, in which the level of judicial scrutiny
depends upon whether the site is properly categorized as a
public forum or a nonpublic forum. See Int’l Soc’y for
Krishna Consciousness of Cal., Inc. v. City of Los Angeles,
764 F.3d 1044, 1049 (9th Cir. 2014). In a public forum, the
government “may impose reasonable, content-neutral
restrictions on the time, place, or manner of protected speech
so long as those limits are ‘narrowly tailored to serve a
significant governmental interest’ and ‘leave open ample
alternative channels for communication of the
information.’” Id. (quoting Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989)). We have referred to this test as
“an intermediate level of scrutiny.” Id. (quoting Berger v.
City of Seattle, 569 F.3d 1029, 1059 (9th Cir. 2009) (en
banc)). In a nonpublic forum, restrictions on speech must
only be “‘reasonable in light of the purpose served by the
forum’ and ‘viewpoint neutral.’” Id. (quoting Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806
(1985)).

    The enforcement zone, consisting of strips of public land
along a public roadway, may have begun as a public forum.
See Comite de Jornaleros de Redondo Beach v. City of
Redondo Beach, 657 F.3d 936, 945 (9th Cir. 2011) (“Public
streets and sidewalks ‘occupy a “special position in terms of
First Amendment protection.”’ They are ‘the archetype of a
traditional public forum.’” (alteration and citations omitted)
(quoting Snyder v. Phelps, 562 U.S. 443, 456 (2011))); see
also Long Beach Area Peace Network v. City of Long Beach,
574 F.3d 1011, 1022 (9th Cir. 2009). Since 2007, it has also
10                        JACOBSON V. DHS

served as, or abutted, a BP checkpoint. 1 One question before
us is whether this new use has changed the enforcement
zone’s character from a public forum to a nonpublic forum.
“Although it is possible for a public forum to lose its status,
‘the destruction of public forum status . . . is at least
presumptively impermissible.’” ACLU of Nev. v. City of Las
Vegas, 333 F.3d 1092, 1105 (9th Cir. 2003) (alteration in
original) (quoting United States v. Grace, 461 U.S. 171, 180
(1983)). Therefore, the government bears the burden of
showing that an area previously serving as a rural public road
“is no longer a [rural public road] and has lost its public
forum status.” Id. “In order to change a property’s public
forum status, the [government] ‘must alter the objective
physical character or uses of the property.’” Id. (quoting
Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672,
700 (1991) (Kennedy, J., concurring)); cf. Hale v. Dep’t of
Energy, 806 F.2d 910, 915 (9th Cir. 1986) (holding that an
access road was a nonpublic forum because it had been
“withdrawn from public use for the purpose of conducting
nuclear testing”).

   This inquiry is, to a large extent, factual. “Context
matters in forum analysis.” Wright v. Incline Vill. Gen.
Improvement Dist., 665 F.3d 1128, 1136 (9th Cir. 2011).
This circuit has developed a fact-intensive, three-factor test

     1
       The parties dispute whether all of the enforcement zone is part of
the checkpoint area: the government maintains that the “checkpoint” is
the entire enforcement zone, while Appellants argue that the
“checkpoint” is only the actual structures and areas used for law
enforcement activities, such as the portable office and the secondary
inspection area, and the enforcement zone stretches far beyond the
checkpoint. To the extent this is a question of semantics, we may
disregard it; to the extent it is a factual question with any legal relevance,
there is a genuine issue of material fact which must be resolved in favor
of the nonmoving party on a motion for summary judgment.
                      JACOBSON V. DHS                          11

to determine whether a location is a public forum in the first
instance. See ACLU of Nev., 333 F.3d at 1100–01.
Determining whether the government has “alter[ed] the
objective physical character or uses of [a] property” that was
previously a public forum, id. at 1105 (citation omitted), is
likewise fact-specific, see, e.g., id. (“The principal uses of
Fremont Street, both before and after its transformation, are
as a commercial district and public thoroughfare.”);
Venetian Casino Resort, LLC v. Local Joint Exec. Bd. of Las
Vegas, 257 F.3d 937, 944 (9th Cir. 2001) (“The newly
constructed sidewalk still performs the same role as a
thoroughfare for pedestrian traffic along Las Vegas
Boulevard that it performed before . . . .”). Therefore, it may
be difficult to make a forum determination without a full
factual record. See Kaahumanu v. Hawaii, 682 F.3d 789,
800 (9th Cir. 2012) (“On the record before us, it is difficult
to put all of Hawai’i’s unencumbered state beaches into a
single forum category.”); Ctr. for Bio-Ethical Reform, Inc.
v. City & Cty. of Honolulu, 455 F.3d 910, 920 (9th Cir. 2006)
(“We do not express any opinion as to whether the beaches
are public fora because the record is not developed on this
point . . . .”); Preminger v. Principi, 422 F.3d 815, 823 n.5
(9th Cir. 2005) (“Plaintiffs’ mere mention of the parks and
streets on the Campus, areas generally considered traditional
public fora, is insufficient for us to classify them because the
preliminary injunction record contains insufficient detail.”).
It is all the more difficult in a case like this one, in which the
facts in the record are at times contradictory and contested
by the parties.

    Appellants argue that the district court could not resolve
this factual dispute on the record before it, and hence abused
its discretion by denying their request to take discovery
pursuant to Federal Rule of Civil Procedure 56(d). We
agree. “Where . . . a summary judgment motion is filed so
12                    JACOBSON V. DHS

early in the litigation, before a party has had any realistic
opportunity to pursue discovery relating to its theory of the
case, district courts should grant any Rule 56[(d)] motion
fairly freely.” Burlington N. Santa Fe R.R. Co. v.
Assiniboine & Sioux Tribes of Fort Peck Reservation,
323 F.3d 767, 773 (9th Cir. 2003).

    The district court denied the Rule 56(d) motion on the
ground that the information sought “would not assist
[Appellants] in opposing summary judgment regarding
whether the checkpoint is a non-public forum.” However,
Appellants identified several areas in which they sought
discovery relevant to critical matters at issue in the summary
judgment motion.

    First, Appellants sought discovery regarding the law
enforcement uses of the checkpoint area encompassed
within the enforcement zone, including rules and regulations
governing the use of the checkpoint area. These uses are
relevant to the determination of whether the enforcement
zone is a public or a nonpublic forum. Moreover, regardless
of which level of scrutiny applies, they may be relevant to
the ultimate constitutional question of whether the
enforcement zone policy violates the First Amendment. The
limited information in the record regarding the layout and
use of the checkpoint area leaves many questions
unanswered about the specific uses of areas outside the
primary and secondary inspection zones. For example,
evidence that large portions of the enforcement zone are
unused for checkpoint activities would tend to create
genuine issues of material fact as to whether the government
has transformed the enforcement zone along Arivaca Road
into a nonpublic forum and, if the area is still a public forum,
whether the enforcement zone is narrowly tailored to the
government’s interest in operating a BP checkpoint. See
                     JACOBSON V. DHS                       13

Long Beach Area Peace Network, 574 F.3d at 1039–40; Bay
Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th
Cir. 1990).

    Second, Appellants sought discovery about who has
been allowed into the enforcement zone and why. This
information could reveal whether the enforcement zone has
been applied selectively based on viewpoint.              The
government’s stated policy is that “pedestrians are allowed
inside the checkpoint only for official purposes,” but without
the benefit of discovery Appellants have already adduced
evidence that calls that policy into question. While BP has
consistently excluded Appellants and other protesters from
the enforcement zone, the record shows that other visitors
who were not protesting have been allowed inside. Whether
the enforcement zone is a public or a nonpublic forum,
evidence that civilians friendly or neutral to BP have been
permitted into the enforcement zone while other civilians
with a hostile message have been excluded—beyond the
incidents already in the record—would tend to create a
genuine issue of material fact as to the viewpoint neutrality
of the government’s policy. See Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

    Finally, Appellants sought discovery of data regarding
traffic stops at the checkpoint, in order to determine the
accuracy of the data gathered by Appellants from their
positions outside the enforcement zone. This information is
relevant to whether Appellants have ample alternative
opportunities for observation, as would be required to justify
their exclusion from a public forum. See Reed v. Lieurance,
863 F.3d 1196, 1212 (9th Cir. 2017).

   The limited record before the district court does not
permit us to conclude, as a matter of law, that the
enforcement zone is a nonpublic forum, or, if it is, that the
14                   JACOBSON V. DHS

government has satisfied the requirements for excluding
Appellants from that nonpublic forum. On remand, and after
appropriate discovery, the district court will need to
determine if there remain genuine issues of material fact
regarding whether, and what part of, the enforcement zone
is a public forum, and whether the government’s exclusion
policy is permissible under the principles of forum analysis.

                     CONCLUSION

   For the foregoing reasons, we vacate the district court’s
grant of summary judgment and remand for further
proceedings. Costs shall be taxed against Defendants-
Appellees.

     VACATED and REMANDED.
