                                                        F I L E D
                                                United States Court of Appeals
                                                        Tenth Circuit

                                                         OCT 9 2002
                              PUBLISH
                                                      PATRICK FISHER
                                                            Clerk
            UNITED STATES COURT OF APPEALS
                     TENTH CIRCUIT



FIRST UNITARIAN CHURCH OF
SALT LAKE CITY; UTAHNS FOR
FAIRNESS; UTAH NATIONAL
ORGANIZATION FOR WOMEN;
CRAIG S. AXFORD,

     Plaintiffs-Appellants,

v.

SALT LAKE CITY CORPORATION,
a municipal corporation,

     Defendant-Appellee,

CORPORATION OF THE
                                        No. 01-4111
PRESIDING BISHOP OF THE
CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS,

     Defendant-Intervenor-Appellee,




ASSOCIATION OF CHRISTIAN
SCHOOLS INTERNATIONAL;
COLORADO BAPTIST GENERAL
CONVENTION; COLORADO
CATHOLIC CONFERENCE;
COMMUNITY OF CHRIST;
DIOCESE OF COLORADO;
 EVANGELICAL LUTHERAN
 CHURCH IN AMERICA; FIRST
 CHURCH OF CHRIST, SCIENTIST;
 GENERAL CONFERENCE OF
 SEVENTH-DAY ADVENTISTS;
 ISLAMIC SOCIETY OF COLORADO
 SPRINGS; MID-AMERICA UNION
 CONFERENCE OF SEVENTH-DAY
 ADVENTISTS; THE NAVIGATORS;
 ROCKY MOUNTAIN CONFERENCE
 OF SEVENTH-DAY ADVENTISTS;
 THE EVANGELICAL COVENANT
 CHURCH; THE GENERAL
 COUNCIL ON FINANCE AND
 ADMINISTRATION OF THE
 UNITED METHODIST CHURCH;
 WORLDWIDE CHURCH OF GOD;
 SUTHERLAND INSTITUTE;
 INTERNATIONAL MUNICIPAL
 LAWYERS ASSOCIATION;
 NATIONAL LEAGUE OF CITIES;
 NATIONAL ASSOCIATION OF
 COUNTIES; AND UTAH
 ASSOCIATION OF COUNTIES,

       Amici Curiae.




                 Appeal from the United States District Court
                           for the District of Utah
                         (D.C. No. 2:99-CV-912-ST)


Mark Lopez, American Civil Liberties Union Foundation, Inc., New York, New
York (Stephen C. Clark, American Civil Liberties Union of Utah Foundation,
Inc., Salt Lake City, Utah, with him on the briefs), for Plaintiffs-Appellants.




                                       -2-
Roger F. Cutler (Steven W. Allred, Lynn H. Pace, and Boyd A. Ferguson, with
him on the brief), Salt Lake City, Utah, for Defendant-Appellee.

Von G. Keetch (Alexander Dushku, with him on the brief), Kirton & McConkie,
Salt Lake City, Utah, for Defendant-Intervenor-Appellee.



Before SEYMOUR, McWILLIAMS and HENRY, Circuit Judges.


SEYMOUR, Circuit Judge.


      Plaintiffs brought this action under 42 U.S.C. § 1983 challenging on First

Amendment grounds the prohibition of expressive activity by Salt Lake City on a

public pedestrian easement retained by the City after the sale of a portion of a

downtown public street to a religious organization. The district court granted

summary judgment to defendant. First Unitarian Church of Salt Lake v. Salt

Lake City Corp., 146 F. Supp. 2d 1155 (D. Utah 2001). Plaintiffs appeal and, for

the reasons stated below, we reverse and remand.



                                         I

      The relevant facts set forth here are not in dispute. This case concerns a

portion of Main Street in downtown Salt Lake City that the City closed and sold




                                         -3-
to the Church of Jesus Christ of Latter-Day Saints (LDS Church). 1 Main Street

runs north-south through downtown Salt Lake City. The portion sold to the

Church is bounded on the north by North Temple Street and on the south by South

Temple Street. To the north lies a residential neighborhood. To the south is the

City’s business district, including two large shopping malls.

      The LDS Church owns all the property on the two city blocks on the east

and west sides of this portion of the former Main Street. On these blocks the

Church maintains a number of important historical, administrative, and worship

facilities. The west block is called “Temple Square” and contains the Mormon

Tabernacle and the Salt Lake Temple; the east block houses the Church

administration buildings. Temple Square and related attractions are an extremely

popular tourist attraction.

      In 1995, the Salt Lake City Corporation (City) sold the subsurface rights to

this portion of Main Street to the LDS Church, which the Church eventually

developed into an underground parking garage. That agreement also gave the

Church a right of first refusal on the surface property, should the City ever decide

to sell it. In 1996, the City considered closing this portion of Main Street to

automobile traffic but leaving it open to pedestrians, and also considered selling


      1
       The sale was actually to the Corporation of the Presiding Bishop, a
corporate entity wholly owned by LDS Church. We refer to both entities as “LDS
Church.”

                                         -4-
the land to the Church for this purpose. The proposal was eventually dropped.

      In 1998, the City again explored the possibility of closing a portion of Main

Street and selling it to the Church for the construction of a pedestrian plaza. On

December 1, 1998, the City and LDS Church held a joint news conference to

announce “a proposal to develop an open-space pedestrian plaza” on Main Street

between North and South Temple. Aplt. App. vol. I at 356 (LDS Church news

release). The Church thereafter filed a petition with the City for street closure

and plans with the City Planning Commission for a pedestrian plaza.

      On April 13, 1999, the City Council approved the closure and sale of the

Main Street block to LDS Church subject to certain conditions. In the process

leading to approval, the Planning Commission recommended that the City Council

approve the sale contingent on several conditions that reflected the Commission’s

concern with ensuring public access and allowing public expression on the

pedestrian plaza. The suggestions included a recommendation that the City retain

a perpetual pedestrian easement “planned and improved so as to maintain,

encourage, and invite public use” and “[t]hat there be no restrictions on the use of

this space that are more restrictive than is currently permitted at a public park.”

Aplt. App. vol. III at 1220 (emphasis added).

      The ordinance the City Council adopted retained only some of these

conditions. The first recommendation, that the City retain an easement for public


                                          -5-
use “planned and improved so as to maintain, encourage, and invite public use,”

was a condition of the ordinance as approved by the City Council. Id. vol. I at

191. In addition, the Council suggested during its meeting that the City retain a

right of reverter to the property to ensure that the Church met these conditions, in

particular providing public access. See id. vol. II at 401. However, the latter

condition, that the plaza be regulated no more strictly than a public park, was

omitted from the ordinance.

      The City subsequently recorded a Special Warranty Deed and Reservation

of Easement conveying the Main Street surface property to the Church. The

reservation allows only non-speech conduct on the easement and also specifically

prohibits a number of expressive activities. The reservation of easement reads:

      1.3 Pedestrian Access and Passage: Subject to the conditions, limitations,
      and restrictions set forth in section 2 hereinbelow, Grantor reserves an
      easement over and across the surface of the Property for pedestrian access
      and passage only . . . . Grantee shall not erect any perimeter fences or
      gates on the Property along the North Temple or South Temple rights of
      way . . . . Grantor may allow the general public to use this easement for
      pedestrian access and passage only, but all use of this easement shall be
      subject to the conditions, limitations, and restrictions described
      hereinbelow.

Id. vol. I at 361. The reservation contains the following restrictions with respect

to the use of the easement:

      2.2 Right to Prevent Uses Other Than Pedestrian Passage: Nothing in the
      reservation or use of this easement shall be deemed to create or constitute a
      public forum, limited or otherwise, on the Property. Nothing in this
      easement is intended to permit any of the following enumerated or similar

                                         -6-
      activities on the Property: loitering, assembling, partying, demonstrating,
      picketing, distributing literature, soliciting, begging, littering, consuming
      alcoholic beverages or using tobacco products, sunbathing, carrying
      firearms (except for police personnel), erecting signs or displays, using
      loudspeakers or other devices to project music, sound or spoken messages,
      engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or
      disorderly speech, dress or conduct, or otherwise disturbing the peace.
      Grantee shall have the right to deny access to the Property to persons who
      are disorderly or intoxicated or engaging in any of the activities identified
      above. The provisions of this section are intended to apply only to Grantor
      and other users of the easement and are not intended to limit or restrict
      Grantee’s use of the Property as owner thereof, including, without
      limitation, the distribution of literature, the erection of signs and displays
      by Grantee, and the projection of music and spoken messages by Grantee.

Id. at 362. The reservation gives the LDS Church the right to exclude anyone

who has previously engaged in any of the above conduct while using the easement

(the “Habitual Violator” provision). The City also reserved utility easements,

access for emergency and police vehicles, and a view corridor which restricts the

erection of buildings on the plaza. Finally, as suggested by the City Council, the

reservation contains a Right of Reverter providing that if “Grantee fails to use the

Property for the purposes set forth herein, or fails to maintain the Property

thereafter,” ownership may revert to the City. Id.

      At its own expense, the Church reconstructed the former street and

sidewalks, making the area an attractive plaza that fits seamlessly into the

Church’s downtown campus. There are paved walking areas interrupted by

planters, benches, and waterfalls, a large reflecting pool, and changes in grade.

The Church uses the plaza for religiously-oriented exhibits, dissemination of

                                         -7-
information, and special events, as well as for the entrance to the Temple Square.

      While the Church now refers to the area as an ecclesiastical park, prior to

the sale when asked how it would further the public interest, the Church variously

described the proposed Main Street Plaza as “a pedestrian-friendly area,” “a

funnel to the Crossroads and ZCMI Center shopping malls as well as the

remainder of the downtown business district,” and “a downtown pedestrian

plaza,” and stated the plaza would “provide a public environment,” “enhance the

urban fabric of the downtown area,” “emphasize Main Street as a primary

pedestrian walkway,” and “assist Main Street, which is the heart of the shopping

area, to become the most pedestrian oriented street in Salt Lake City.” Id. vol. IV

at 1584-89.

      Plaintiffs, which include First Unitarian Church of Salt Lake City, Utahns

for Fairness, Utah National Organization of Women, and Craig Axford, filed this

action challenging the sale and the easement restrictions under the First and

Fourteenth Amendments and similar provisions of the Utah Constitution.

Specifically, plaintiffs asserted the restrictions are facially invalid because the

entire plaza, or alternatively the retained easement, remains public property on

which speech cannot be so restricted. They also claimed the City had delegated to

the LDS Church the discretion to interpret and enforce the restrictions in violation

of the Establishment Clause, and that the property transaction itself violated the


                                          -8-
Establishment Clause because it included the challenged restrictions. They

further contended the restrictions violate the Equal Protection Clause because

they discriminate between the Church and members of the public. Plaintiffs

sought declaratory and injunctive relief.

      The suit named the City as defendant and the LDS Church was permitted to

intervene. All parties filed cross-motions for summary judgment. 2 After a

hearing, the district court granted defendant’s and intervenor’s motions for

summary judgment on all claims and denied plaintiffs’ motion. The court

determined that the physical characteristics, use, and purpose of the property had

fundamentally changed after the sale and development of the plaza, and concluded

that the easement was no longer a public forum. 3 The court then held that the

easement is government property that “could be considered a nonpublic forum.”

146 F. Supp.2d at 1174. The court nonetheless held that the restrictions are

reasonable because the property would not otherwise have been sold and because

the prohibited activities are incompatible with the property’s new purpose, an


      2
         Plaintiffs moved for partial summary judgment on only their claim that the
restrictions on the easement are invalid under the free speech clause of the First
Amendment. Our ruling in favor of plaintiffs on this issue nevertheless disposes
of plaintiffs’ remaining claims because they all rest on the existence of the
easement restrictions, which we hold invalid.
      3
        Plaintiffs stated in the hearing on summary judgment that they were
abandoning their claim that the entire plaza is a public forum, and the district
court accordingly ruled only on the easement.

                                            -9-
ecclesiastical park. The court also held the restrictions do not constitute

viewpoint discrimination because the LDS Church, as a private owner of the plaza

property, has greater rights on the easement than members of the public.

      With regard to the Establishment Clause claims, the district court held the

restrictions do not delegate any municipal power to the Church because the

Church was merely given the ability to enforce its rights as a private property

owner. The court rejected the Establishment Clause challenge to the sale, holding

the plaintiffs did not produce any evidence of collusion between the City and the

Church and the sale did not otherwise violate the Establishment Clause. The

court rejected the Equal Protection Claim on the ground that any discrimination

between the Church and the public rationally reflected the Church’s greater rights

as the property owner.



                                          II

      We review the grant of summary judgment de novo. See Jurasek v. Utah

State Mem. Hosp., 158 F.3d 506, 510 (10th Cir. 1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). In applying


                                         -10-
this standard, we review the factual record and all reasonable inferences

therefrom in the light most favorable to the party opposing summary judgment.

Id. If no genuine issue of material fact exists, we determine whether the district

court properly applied governing substantive law. Id. Because First Amendment

interests are involved, we have an obligation to conduct an independent review of

the record and to examine constitutional facts and conclusions of law de novo.

Z.J. Gifts D-2, LLC v. City of Aurora, 136 F.3d 683, 685 (10th Cir. 1998) (citing

Revo v. Disciplinary Bd., 106 F.3d 929, 932 (10th Cir. 1997)).

      We may direct that judgment be entered in favor of any moving party we

conclude is entitled to summary judgment on the record before us. See id. (citing

Dickeson v. Quarberg, 844 F.2d 1435, 1444 n.8 (10th Cir. 1988) (court of appeals

may grant summary judgment even to nonmoving party if “‘the facts were fully

developed at the summary judgment hearing so that the court of appeals can

determine that the nonmoving party clearly was entitled to a judgment as a matter

of law . . . and there is no procedural prejudice to the moving party.’”) (quoting

10A C. W RIGHT , A. M ILLER & M. K ANE , F EDERAL P RACTICE & P ROCEDURE §

2720)).

                                         A.

      We consider first the free speech claim. The district court held sua sponte

that plaintiffs’ free speech claim was ripe only with respect to the prohibitions on


                                         -11-
“demonstrating, assembling, picketing, distributing literature, erecting signs or

displays, using devices to project spoken messages or music.” First Unitarian

Church, 146 F. Supp. 2d at 1163-65 (D. Utah 2001). This would preclude, for

example, any attack on the prohibition against “engaging in any [ ] offensive . . .

speech, dress or conduct.” Aplt. App. vol. I at 362. On the contrary, however,

we have no doubt plaintiffs’ facial challenge to the entire set of restrictions is

ripe. Significantly, it is not particular restrictions contained in the deed that are

at issue because the City and the Church claim that the easement is private

property and that there are no public speech rights whatsoever on it. The Church

thus asserts plenary authority to regulate speech on the easement. See Aplt. App.

vol. IV at 1382-83 (Plaza security policy). The City similarly maintains that “the

easement does not allow any speech at all from those using the easement.” Aple.

App. at 44; see also Def./Aple. Br. at 22, 26, 40, 41. The issue is therefore

whether the City has the authority to prohibit all expressive activities on a public

easement it reserved across otherwise private property, except for the speech

permitted by the private owner of the underlying estate. Because plaintiffs have

asserted the intention to use the easement for expressive activity and the Church

and City assert the Church is empowered to prevent any such activity, we easily

conclude plaintiffs’ facial claim is ripe as to the entire prohibition of speech,

dress, or conduct on the pedestrian easement.


                                          -12-
      Plaintiffs contend the easement is a public forum because it has the

characteristics of a public sidewalk, a traditional public forum. They also argue

the easement has substantially the same characteristics, use, and purpose as the

Main Street sidewalks the easement replaced and it therefore remains a public

forum notwithstanding the City transferred legal title to the LDS Church.

Alternatively, plaintiffs contend the easement as retained by the City is public

property and is therefore at least a nonpublic forum for which the speech

restrictions are neither reasonable nor viewpoint-neutral.

      The City and LDS Church maintain the easement cannot be a public forum

because the property’s character, use, and purpose have changed sufficiently to

eliminate any public forum that existed before the street was sold, and because the

City expressly disavowed any intent to create or continue a public or limited

forum. They also argue the easement itself cannot be government property

subject to forum analysis because the scope of the easement does not include

speech activities, and because an easement is an insufficient government property

interest to trigger First Amendment limitations.

      As an initial matter, we address the argument advanced by the City and

LDS Church that the First Amendment cannot apply to the easement according to

its terms because the reservation is for “pedestrian passage only” and expressly

excludes speech activities. The parties contend the Church cannot be required to


                                         -13-
permit speech activities on the easement because this would exceed the scope of

the property interest created by the reservation.

      We agree that the reservation of easement on its face defines the easement

to exclude expressive activities. However, a deed does not insulate government

action from constitutional review. See R ESTATEMENT (T HIRD ) OF P ROP .:

S ERVITUDES § 3.1 cmt. d (2000) (easements to which government is party are

subject to the Constitution). If government actions taken with respect to the

easement violate the Constitution, this simply means the easement terms

themselves are unconstitutional and must be altered or eliminated by the involved

property owners.

      We next address the central contention of the City and LDS Church that the

easement is not “government property” and First Amendment forum principles

therefore do not apply at all. See generally Ark. Educ. Television Comm’n v.

Forbes, 523 U.S. 666, 672 (1998) (determining initially whether “public forum

principles apply . . . at all” to public broadcasting). The City and Church claim

that because an easement is not a possessory interest in land and the Church

continues to hold title to the underlying property burdened by the easement, the

easement is not “government property” subject to forum analysis.

      We do not disagree with the technical characterization of easements as

nonpossessory property interests, see R ESTATEMENT (T HIRD ) OF P ROP .:


                                         -14-
S ERVITUDES § 1.2. However, forum analysis does not require that the government

have a possessory interest in or title to the underlying land. Either government

ownership or regulation is sufficient for a First Amendment forum of some kind

to exist. See United States v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114,

129 (1981) (applying forum principles to privately owned mailboxes “controlled

by the government”); see also Marsh v. Alabama, 326 U.S. 501, 505 (1946) (title

to property not necessarily determinative of public speech rights on property);

Venetian Casino v. Local Joint Executive Bd., 257 F.3d 937, 945 n. 6 (9th Cir.

2001) (sidewalks need not be government owned to constitute public fora).

      Indeed, forum analysis does not require the existence of government

property at all. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.

788, 800-01 (1985) (rejecting argument that forum analysis requires “tangible

government property” or even a “physical situs” for the forum) (citing Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)). Therefore,

whether we characterize the easement as a property interest belonging to the

government, or as property owned by a private party but burdened by the

government, the First Amendment may still apply.

      The City and LDS Church similarly argue that easements cannot be subject

to forum analysis because they do not constitute a significant enough property

interest. We disagree. Government condemnations of easements are takings


                                        -15-
under the Fifth Amendment and entitle the grantor to compensation. See Dolan v.

City of Tigard, 512 U.S. 374 (1994) (public easement required as a condition of

development permit is a taking requiring compensation); see also Colman v. Utah

State Land Bd., 795 P.2d 622 (Utah 1990) (easements are property rights

protected under the Utah Constitution from government takings without due

process); Hayes v. Gibbs, 169 P.2d 781 (Utah 1946) (same). Easements are

therefore constitutionally cognizable property interests. 4

      Finally, holding that an easement cannot be a forum would lead to the

conclusion that many public streets and sidewalks are not public fora. Public

highways or streets are often easements held for the public, with title to these

property interests remaining in abutting property owners.

      Highways and streets are public property only in the sense that they are
      subject to public use . . . . As a rule, and whether a highway is established


      4
        The LDS Church also contends that permitting public speech on the
easement would constitute a taking of its property. But see generally PruneYard
Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (rejecting mall owner’s claim that
state law requiring him to permit speech at his mall was a Fifth Amendment
taking of his property). Essentially the Church’s claim is that speech would
“take” a larger estate than the easement. Our answer is the same as our answer
above addressing the argument that the free speech claim is precluded by the
narrow scope of the easement itself: the issue before us is whether it is
constitutionally permissible for the City to retain a pedestrian easement but
prohibit expressive conduct on that easement. If we conclude it is not, it is up to
the City and the Church to modify their property transaction so the actions of the
City conform to the Constitution. Any claim that a potential solution to this
problem, which may or may not be attempted, would itself present other
constitutional problems is speculative and not before us.

                                         -16-
      by dedication or prescription, or by the direct action of the public
      authorities, the public acquires merely an easement of passage, the fee title
      remaining in the landowner.

39 A M . J UR . 2 D Highways, Streets, & Bridges §§ 182-83 (1999) (emphasis added)

(citations omitted); see also M.B.M., Inc. v. George, 655 F.2d 530, 532 (3rd Cir.

1981) (“At common law, ownership of land used as a highway belongs to the

abutting landowner, subject to the public’s right to use the road.”); Southwestern

Bell Tel. Co. v. State Corp. Comm’n, 664 P.2d 798, 800 (Kan. 1983) (public

highways only grant easement to public; title remains in abutting property owner).

      Public streets are “the archetype of a traditional public forum.” Frisby v.

Schultz, 487 U.S. 474, 480 (1988). Because such traditional public fora are often

easements, it is evident the property here is not exempt from the First Amendment

merely because it is an easement rather than land to which the government holds

fee title. 5 “Wherever the title of streets and parks may rest, they have

immemorially been held in trust for the use of the public and, time out of mind,

have been used for purposes of assembly, communicating thoughts between

citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515


      5
        We hold only that the mere fact the government has an easement rather
than fee title does not defeat application of the First Amendment. We are not
holding the converse, that the First Amendment applies to all easements. Whether
or not a particular government easement warrants application of forum principles
will depend on the characteristics of the easement, the practical considerations of
applying forum principles, and the particular context the case presents. Ark.
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 672-77 (1998).

                                         -17-
(1939) (Roberts, J., concurring); see also Venetian Casino, 257 F.3d at 943-45 &

n.6 (applying forum analysis to city easement for sidewalk on private property);

Thomason v. Jernigan, 770 F. Supp. 1195, 1197 (E.D. Mich. 1991) (adjudicating

public speech rights on municipal right-of-way reserved by easement on private

property). Accordingly, we reject the argument that the government easement

cannot be a First Amendment forum of any kind.



                                         B.

      Having decided forum principles apply to the easement, we proceed to

analyze this case under those principles. The extent to which government may

control expressive activities depends on the nature of the relevant forum.

Cornelius, 473 U.S. at 800.

      The Supreme Court has identified three types of forums, “the traditional

public forum, the public forum created by government designation, and the

nonpublic forum.” Forbes, 523 U.S. at 677 (quotations and citations omitted).

“Traditional public fora are defined by the objective characteristics of the

property, such as whether, ‘by long tradition or government fiat,’ the property has

been ‘devoted to assembly and debate.’” Id. (quoting Perry Educ. Ass’n, 460 U.S.

at 45). Designated public fora are created by “purposeful government action, . . .

by intentionally opening a nontraditional public forum for public discourse.” Id.


                                        -18-
Other property is either a nonpublic forum or not a speech forum at all. Id.

      Plaintiffs assert the easement is a public forum because it has all the

characteristics of sidewalks, which are traditional public fora “without more.”

Grace, 461 U.S. at 177 (1983). They also assert the easement is a public forum

because it is essentially the same sidewalk that ran along the former Main Street,

which was unquestionably a public forum. The City and LDS Church respond

that the easement cannot be a public forum because of express language in the

reservation of easement stating the space does not constitute a public forum.

They also argue the physical characteristics of the former Main Street have been

changed sufficiently by development of the plaza to eliminate any public forum

that existed along the former Main Street.

      We first reject the contention that the City’s express intention not to create

a public forum controls our analysis. The government cannot simply declare the

First Amendment status of property regardless of its nature and its public use.

See Forbes, 523 U.S. at 678 (“traditional public fora are open for expressive

activity regardless of the government intent”) (emphasis added); Grace, 461 U.S.

at 180 (the government’s own “ipse dixit” does not determine the First

Amendment status of property); see also Int’l Soc’y for Krishna Consciousness v.

Lee (ISKON), 505 U.S. 672, 694 (1992) (Kennedy, J., concurring in judgment)

(First Amendment doctrine should not “grant[] the government authority to


                                         -19-
restrict speech by fiat.”). It is only with respect to designated fora that the

Supreme Court’s forum analysis has focused on whether there has been

“purposeful government action” creating a forum “in a place not traditionally

open to assembly and debate.” Forbes, 523 U.S. at 677; see also Cornelius, 473

U.S. at 802 (examination of whether charity drive among federal employees

created designated public forum, focusing on “policy and practice” of government

as well as objective nature of forum); Hawkins v. City & County of Denver, 170

F.3d 1281, 1286 (10th Cir. 1999) (“The designated public forum . . . is one a state

creates by intentionally opening a non-traditional forum for public discourse.”)

(quotation and citation omitted) (emphasis added); cf. United States v. Kokinda,

497 U.S. 720, 738 (1990) (Kennedy, J., concurring in judgment) 6 (objective

factors have “more force here than in those instances where the Government

created a nontraditional forum to accommodate speech for a special purpose.”

(citing Perry Educ. Ass’n, 460 U.S. 37, and Cornelius, 473 U.S. 788)) (emphasis

added). Examples of designated public fora include “state university meeting

facilities expressly made available for use by students, . . . school board meetings

open to the public by state statute, . . . advertising space in state-owned subway



      6
       We cite Justice Kennedy’s concurrence as controlling Supreme Court
precedent because his concurrence provided the fifth vote on the narrowest
grounds. See Hawkins v. Hargett, 200 F.3d 1279, 1982 (10th Cir. 1999) (citing
Marks v. United States, 430 U.S. 188, 193 (1977)).

                                          -20-
and commuter rail stations, . . . [and] a city owned and operated senior center

sponsoring lectures.” Hawkins, 170 F.3d at 1287 (quotations and citations

omitted).

      In contrast, for property that is or has traditionally been open to the public,

objective characteristics are more important and can override express government

intent to limit speech. See Kokinda, 497 U.S. at 738 (Kennedy, J., concurring)

(legitimate justifications for restrictions notwithstanding, “other factors may point

to the conclusion that the Government must permit wider access to the forum than

it has otherwise intended.”); id. at 737-38 (“[C]ertain objective characteristics of

Government property and its customary use by the public may control the case.”).

As Justice Kennedy wrote for a majority in Forbes, “public fora are defined by

the objective characteristics of the property.” Forbes, 523 U.S. at 677. This is

not to say the government has automatically created a public forum by opening

property to the public, Grace, 461 U.S. at 177, but if it has so opened the

property, objective characteristics determine whether it is a public forum.

      Justice Kennedy elaborated on what he meant by examining objective

characteristics to determine if property is a public forum in his concurrence in

ISKON:

      If the objective, physical characteristics of the property at issue and
      the actual public access and uses that have been permitted by the
      government indicate that expressive activity would be appropriate
      and compatible with those uses, the property is a public forum. The

                                         -21-
      most important considerations in this analysis are whether the
      property shares physical similarities with more traditional public
      forums, whether the government has permitted or acquiesced in broad
      public access to the property, and whether expressive activity would
      tend to interfere in a significant way with the uses to which the
      government has as a factual matter dedicated the property.”

ISKON, 505 U.S. at 698-99 (Kennedy, J., concurring in judgment). We apply

these factors to assess the easement’s character for First Amendment purposes.

To determine the easement’s nature and purpose, the question we address is

whether expressive activity is compatible with the purposes and uses to which the

government has lawfully dedicated the property, not whether the government has

expressly designated speech as a purpose of the property. See ISKON, 505 U.S. at

686 (O’Connor, J., concurring) 7 (examining whether public access is “‘inherent in

the open nature of the locations.’” (quoting Kokinda, 497 U.S. at 743 (Brennan,

J., dissenting))); Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 576

(1987) (invalidating statute for prohibiting “[m]uch nondisruptive speech – such

as the wearing of a T-shirt or button that contains a political message – [which]

may not be ‘airport related’ but is still protected speech even in a nonpublic

forum.”) (emphasis added).

      The actual purpose and use of the easement here is a pedestrian throughway

for the general public. This is not merely the use which the City has in practice


      7
       Justice O’Connor provided the fifth vote on the narrowest grounds in this
case. See supra note 6.

                                        -22-
permitted, but also the express purpose for which the City retained the easement.

The City’s stated purposes for promoting and approving the overall project were

to increase usable public open space in the downtown area, encourage pedestrian

traffic generally, stimulate business activity, and provide a buffer closed to

automobile traffic between the residential area to the north of the plaza and the

business areas to the south.

      The easement has particular public importance for the City because of the

role the City envisioned the easement playing in the character and development of

downtown Salt Lake City. While the City wanted to close the street to automobile

traffic, it simultaneously wanted to preserve and indeed encourage pedestrian

traffic. The easement through the plaza was specifically retained in order to

preserve and enhance the pedestrian grid in the downtown. The City points out

that developing pedestrian malls by closing downtown streets has been a stated

goal of various long-range City plans for almost forty years. Aplt. App. vol. I at

214, 224, 228. As the City itself asserts, the easement was a necessary means of

accomplishing these public purposes even as it sold the underlying property to the

LDS Church.

      Moreover, the City’s actions approving the sale and the resulting property

ownership structure were specifically designed to ensure these aims were

accomplished, and the pedestrian easement was central to these goals. The


                                         -23-
ordinance the City Council passed approving the street closure and sale – the

City’s necessary legislative act for closing and selling a public street – was

expressly contingent on several conditions. The first of these was that the City

retain a perpetual pedestrian easement “planned and improved so as to maintain,

encourage, and invite public use.” Id. vol. I at 191 (emphasis added). In

addition, the reservation of easement contains a right of reverter in favor of the

City that provides the property will revert to the City if the LDS Church “fails to

use the Property for the purposes set forth” in the deed and easement. Id. at 362.

In its meeting approving the ordinance, the City Council requested the City

administration to negotiate a right of reverter in the deed specifically to ensure

the plaza would be kept open for public use as promised. Id. vol. II at 401.

Finally, the City has contended throughout this litigation that the City would not

have agreed to the sale “but for” the easement. 8 See, e.g., Aple. App. at 61.

These circumstances indicate the easement is infused with public purposes even

broader than providing a pedestrian walkway.

      The City and Church contend the purpose of the easement is solely for

ingress and egress to Church facilities. They produced evidence in the district



      8
         Indeed, the City and Church disagree as to the effect of holding the
restrictions unconstitutional. The City contends this would eliminate the
restrictions but not the easement; the Church contends the government would lose
the easement. See Aple. App. at 61, 68.

                                         -24-
court that the vast majority of users were those with Church business or tourists

whose end destination was the plaza itself or various Church facilities. This

argument is at odds with the publicly and legislatively stated purposes of the

easement noted above. In addition, to the extent individuals with Church business

enter onto the plaza, it is not clear they are actually using the easement because

they are not utilizing the plaza for “pedestrian passage” and presumably the

Church would permit those with Church business to enter the plaza in the absence

of the easement. In other words, providing access to those with Church business

is more properly characterized as a Church purpose, and does not capture the

actual or articulated purpose of the easement, a pedestrian walkway for the public

at large.

       Similarly, the City and Church argue that not all walkways are sidewalks,

and that the easement here is more similar to the walkways at issue in Hawkins

than to a public sidewalk that is a traditional public forum. We agree that not all

walkways are traditional public fora, but because the purpose of the easement is

not limited to ingress and egress to Church facilities, but is intended rather for

pedestrian passage, it is distinguishable from those walkways that have been held

not to be public fora. 9 In Hawkins, we held that walkways within the Galleria, a


       9
        Although the City and Church argue the easement does not meet the legal
definition of “sidewalk” and therefore should not be referred to as such, the label
                                                                      (continued...)

                                         -25-
partially open area leading to the Denver Performing Arts Complex (DPAC), were

not public fora. Hawkins, 170 F.3d at 1287-88. In reaching that holding, we

reasoned

      [t]he Galleria does not qualify as a traditional public forum, for it is
      not . . . analogous to a public right of way or thoroughfare. The
      Galleria does not form part of Denver’s automotive, bicycle or
      pedestrian transportation grid, for it is closed to vehicles, and
      pedestrians do not generally use it as a throughway to another
      destination. Rather, the Galleria’s function is simply to permit
      ingress to and egress from the DPAC’s various complexes.

Id. at 1287 (emphasis added). Similarly, a plurality of the Supreme Court held in

Kokinda that the sidewalks leading to a post office were not public fora because

they led only from the post office parking lot to the post office building, and their

sole purpose was to provide ingress and egress to the post office. Kokinda, 497

U.S. at 727 (plurality opinion of O’Connor, J.) (“[t]he postal sidewalk at issue

does not have the characteristics of public sidewalks” because it is not a “public

passageway” or “thoroughfare” but “leads only from the parking area to the front



      9
        (...continued)
is not dispositive. In addressing whether the walkways at issue in Kokinda were
public fora, the Supreme Court made no distinction between “sidewalk” and
“walkway.” See, e.g., United States v. Kokinda, 497 U.S. 720, 727-29 (1990); see
also Greer v. Spock, 424 U.S. 828, 830-36 (1976) (referring to “public streets”
within military reservation). The plurality’s public fora determination in Kokinda
turned instead on the nature and purpose of the sidewalks. See Kokinda, 497 U.S.
at 727-29 (plurality opinion) (post office “sidewalk” is nonpublic forum).
Therefore our analysis does not depend on whether the walkways are properly
referred to as “sidewalks,” but on the purpose to which they are dedicated.

                                         -26-
door of the post office. . . [and] was constructed solely to provide for the passage

of individuals engaged in postal business.”); see also Greer v. Spock, 424 U.S.

828 (1976) (streets and sidewalks on military reservation are not public fora

because they are entirely within the compound and the military has unquestioned

authority to control activity on military bases); Chicago ACORN v. Metro. Pier &

Exposition Auth., 150 F.3d 695, 702 (7th Cir. 1998) (sidewalks on the pier are not

traditional public fora because they “are not through routes; they lead only to the

pier facilities themselves.”).

      The purpose of the easement in this case is for pedestrian passage, it forms

part of the downtown pedestrian transportation grid, and it is open to the public.

The easement therefore shares many of the most important features of sidewalks

that are traditional public fora. This similarity is a persuasive indication that the

easement is a traditional public forum. See ISKON, 505 U.S. at 698-99 (Kennedy,

J., concurring in judgment) (whether property shares physical similarities with

traditional public forums is one of most important factors in defining public fora);

see also Frisby, 487 U.S. at 480 (“‘[T]ime out of mind’ public streets and

sidewalks have been used for public assembly and debate, the hallmarks of a

traditional public forum.” (quoting Hague, 307 U.S. at 515 (Roberts, J.,

concurring)); Grace, 461 U.S. at 177 (“public places historically associated with

the free exercise of expressive activities, such as streets, sidewalks, and parks, are


                                          -27-
considered, without more, to be public forums.” (quotation and citation omitted)

(emphasis added)). The easement here is thus better compared to the easement

which the Ninth Circuit held was a public sidewalk, and therefore a traditional

public forum, in Venetian Casino, 257 F.3d at 944 (“[T]he sidewalk is used to

facilitate pedestrian traffic along the Las Vegas strip generally and not merely to

provide access to the Venetian for its patrons.”).

      We also consider whether speech activities are compatible with the purpose

of the easement. See ISKON, 505 U.S. at 698-99 (Kennedy, J., concurring in

judgment). In doing so, we presume the availability of reasonable time, place,

and manner restrictions, so we do not consider “theoretical incompatibilities” that

could be avoided. Id. at 699. Moreover, it is the purpose of the easement, the

property that is a forum of some type, and not the purpose of the Church plaza,

the surrounding property, that is at issue. 10

      Expressive activities have historically been compatible with, if not virtually

inherent in, spaces dedicated to general pedestrian passage. See, e.g., ISKON, 505

U.S. at 686 (O’Connor, J., concurring) (determining whether airport is public

forum by examining whether public access is “inherent” in the open nature of the



      10
         In this respect, the district court erred in considering whether speech
activities were compatible with an “ecclesiastical park.” Providing for a religious
park is the purpose of the surrounding plaza property, not the easement, and must
be the Church’s purpose, rather than the City’s.

                                           -28-
location). Given that the easement shares most of the characteristics of a

traditional public sidewalk, which is an “archetype” public forum, Frisby, 487

U.S. at 480, it is implausible that all speech activities (which is what the City

purports this easement prohibits) would practically interfere with the use of the

easement for pedestrian passage. See, e.g., Lederman v. United States, 291 F.3d

36, 43 (D.C. Cir. 2002) (“If people entering and leaving the Capitol can avoid

running headlong into tourists, joggers, dogs, and strollers . . . then we assume

they are also capable of circumnavigating the occasional protester.”). We also

note the City itself first proposed requiring the Church to regulate speech on the

plaza no more restrictively than a public park. In short, it is evident that the use

of this property, which is similar to a traditional public sidewalk, is compatible

with expressive activities.

      The City and Church assert any expressive conduct by the public would

interfere with the character of the surrounding private property, the Church’s

private property rights on the easement, and the Church’s own ability to

communicate. Protecting the Church’s expression from competition is not a

legitimate purpose of the easement or its restrictions, so we do not consider its

compatibility with speech. See PruneYard Shopping Center v. Robins, 447 U.S.

74, 85-87 (1980) (requiring shopping center owner to permit public speech does

not infringe on owner’s free speech rights). With respect to the other arguments,


                                          -29-
to the extent they relate to the purpose of the easement rather than the

surrounding property, the effects of expressive activity such as congestion, noise,

and disruption within reasonable limits are the necessary cost of securing our

First Amendment freedoms and these effects must be tolerated to a reasonable

extent. ISKON, 505 U.S. at 701 (Kennedy, J., concurring in judgment) (“The

First Amendment is often inconvenient. But that is beside the point.

Inconvenience does not absolve the government of its obligation to tolerate

speech.”). Therefore, although a government may always enforce, at a minimum,

reasonable time, place, and manner restrictions on public expression, a desire for

peace and order does not support a conclusion that a public space such as this is

not a public forum. 11


      11
          In this regard, having determined that the easement warrants the
application of First Amendment principles, and recognizing it has the
characteristics of traditional public sidewalks, we do not believe the special
nature of this particular pedestrian passageway – that it traverses private property
rather than abuts a public street – defeats its status as a public forum. The
Supreme Court has made clear that once an “archetype” of a public forum has
been identified, it is not appropriate to examine whether special circumstances
would support downgrading the property to a less protected forum. Frisby v.
Schultz, 487 U.S. 474, 481 (1988). The Court rejected the argument that public
streets that are narrow and located in quiet residential neighborhoods are
therefore not public fora, stating “[n]o particularized inquiry into the precise
nature of a specific street is necessary; all public streets are held in the public
trust and are properly considered traditional public fora. Accordingly, the streets
of Brookfield are traditional public fora.” Id; see also ISKON, 505 U.S. at 697
(Kennedy, J., concurring in judgment) (“open, public spaces and thoroughfares
that are suitable for public discourse may be public forums, . . . without concern
                                                                          (continued...)

                                         -30-
      Finally we consider the history of the property. Whether property has

traditionally been open to public use is a factor indicating the property is a public

forum, although this is not determinative. See Grace, 461 U.S. at 179. The

property here is undisputedly open to public use.

      A more important factor is whether the property has traditionally been the

site of expressive activities by the public. See Forbes, 523 U.S. at 677 (factors

such as “whether, ‘by long tradition or by government fiat,’ the property has been

‘devoted to assembly and debate’” determine whether property is public forum)

(quoting Perry Educ. Ass’n, 460 U.S. at 45); Grace, 461 U.S. at 178 (areas

traditionally held open for expressive activities are normally public fora). The

government previously permitted public expression in this area when it was a

public sidewalk abutting Main Street, but it has not ever permitted public

expression on the easement. We give no weight to the fact that the government

has not “traditionally” permitted speech activities since it sold the property and

retained the easement. Where courts have considered the traditional use of

publicly accessible property for speech, they have refused to attribute legal

significance to an historical absence of speech activities where that non-speech

history was created by the very restrictions at issue in the case. See Grace, 461


      11
         (...continued)
for a precise classification of the property.”); Grace, 461 U.S. at 177 (sidewalks
are normally public fora “without more”).

                                         -31-
U.S. at 180 (“Government may not by its own “ipse dixit” destroy public forum

status); Lederman, 291 F.3d at 43 (“restrictions cannot bootstrap themselves into

validity by their mere existence” (quotation, citation and emphasis omitted)).

This is particularly true where the property was a public forum before the

government restrictions were put in place. As the Supreme Court stated in Grace,

      Traditional public forum property occupies a special position in
      terms of First Amendment protection and will not lose its historically
      recognized character for the reason that it abuts [] property that has
      been dedicated to a use other than as a forum for public expression.
      Nor may the government transform the character of the property by
      the expedient of including it within the statutory definition of what
      might be considered a non-public forum parcel of property.

Grace, 461 U.S. at 180.

      This raises the issue of the relevance of the easement’s prior history, as

public sidewalks, to our analysis. The plaintiffs argue, more generally, that the

easement remains a public forum precisely because the property was previously a

public forum and it has not been sufficiently altered to destroy that status. The

City and Church contend significant changes in the physical characteristics and

use of the property have eliminated any prior public forum. The mere fact that a

space is on what used to be a public street does not automatically render it a

public forum. See Hawkins, 170 F.3d at 1287 (“‘In some sense the government

always retains authority to close a public forum, by selling the property, changing

its physical character, or changing its principal use.’” (quoting ISKON, 505 U.S.


                                         -32-
at 699-700) (Kennedy, J., concurring in judgment))).

      The district court concluded that both the physical characteristics and the

principal use of the property had been altered sufficiently to eliminate the

previous public forum. We disagree that the principal use of the easement has

changed. As we previously stated, the district court considered the religious

purpose of the plaza when it should have considered the purpose of the easement.

The purpose of the easement is to provide a pedestrian throughway that is part of

the city’s transportation grid, and in this respect it is identical to the purpose the

sidewalks along that portion of Main Street previously served. Similarly, to the

extent the walkways provide access to the Church facilities as an end destination

for tourists, which is another stated purpose of the easement, the former sidewalks

along Main Street similarly provided tourists with the means of accessing portions

of the Church campus open to them. In Hawkins, the court found that the

walkways had changed sufficiently not only because they served a different

purpose – ingress and egress to the DPAC facilities – but also because their

physical nature was different, that is, they dead-ended at DPAC rather than

remaining part of the city’s pedestrian grid. Id. Here, while certain physical

characteristics of the walkways have changed, they are still intended to provide

passage through, not to, Church property.

      As stated above, a pedestrian throughway was the primary purpose to which


                                          -33-
the City expressly dedicated the easement. The previous public street and

sidewalks provided access between these two city blocks, were part of the city’s

transportation grid, served this function in a central downtown location, and were

highly desirable because of the large size of city blocks in downtown Salt Lake

City. It was clearly the intent of the City to retain these aspects of the previous

space with respect to pedestrians. In addition, the ordinance approving the street

closure required an easement “planned and improved to maintain . . . public use.”

Aplt. App. vol. II at 401 (emphasis added). The City therefore deliberately

retained the pedestrian throughway that existed before it closed the street.

      In retaining the easement, the City not only retained the most important

functions of the property, but also the functions most often associated with speech

activities. See, e.g., Hawkins, 170 F.3d at 1288. Thus, while the government has

the power to change the status of a forum, “when property is a protected public

forum the State may not by fiat assert broad control over speech or expressive

activities; it must alter the objective physical character or uses of the property,

and bear the attendant costs.” ISKON, 505 U.S. at 700 (Kennedy, J., concurring

in judgment) (emphasis added); see also Hawkins, 170 F.3d at 1287-88 (to

eliminate public forum state must alter physical characteristics and bear attendant

costs) (quotation and citation omitted). We are convinced the City has attempted

to change the forum’s status without bearing the attendant costs, by retaining the


                                          -34-
pedestrian easement but eliminating the speech previously permitted on the same

property. In effect, the City wants to have its cake and eat it too, but it cannot do

so under the First Amendment.

      “As society becomes more insular in character, it becomes essential to

protect public places where traditional modes of speech and forms of expression

can take place.” Kokinda, 497 U.S. at 737-38 (Kennedy, J., concurring in

judgment). We think this is particularly true with respect to downtown public

spaces conducive to expressive activities. The prior history of the easement here

is highly relevant to whether the property has traditionally been open to public

speech. Because the property was a public forum prior to the sale, we conclude

the retained easement has traditionally been open to speech activities.

      In sum, the easement’s history, as well as the other contemporary

characteristics of the easement discussed above, support the conclusion that the

easement is a public forum. The objective nature and purpose of the easement

and its similarity to other public sidewalks indicate it is essentially

indistinguishable from other traditional public fora. We reach this conclusion in

spite of the City’s express intent not to create a public forum, because the City’s

declaration is at odds with the objective characteristics of the property and the

City’s express purpose of providing a pedestrian throughway. Accordingly, we

hold that the easement is a public forum.


                                          -35-
                                         C.

      We turn to whether the restrictions on speech activities on the easement are

valid. In a traditional public forum, the government’s power to restrict expressive

conduct is “very limited.” Grace, 461 U.S. at 177.

      For the state to enforce a content-based exclusion it must show that
      its regulation is necessary to serve a compelling state interest and
      that it is narrowly drawn to achieve that end. The state may also
      enforce regulations of the time, place, and manner of expression
      which are content-neutral, are narrowly tailored to serve a significant
      government interest, and leave open ample alternative channels of
      communication.

Perry Educ. Ass’n, 460 U.S. at 45 (citation omitted). In public fora, “the

government may not prohibit all communicative activity.” Id.

      The “restrictions” here virtually ban speech because, as we pointed out

above, the City and LDS Church maintain that the public has no speech rights

whatsoever on the easement except as the Church may permit, which amounts to

the same thing. As such, the restrictions are invalid. Id. The Supreme Court has

held such broad bans invalid even under a nonpublic forum analysis. See Bd. of

Airport Comm’rs, 482 U.S. at 574-75 (invalidating ban on all “First Amendment

activity” at LAX airport). As Justice O’Connor wrote for a unanimous court:

      On its face, the resolution at issue in this case reaches the universe of
      expressive activity, and, by prohibiting all protected expression,
      purports to create a virtual “First Amendment Free Zone” at LAX.
      The resolution does not merely regulate expressive activity in the
      Central Terminal Area that might create problems such as congestion
      or the disruption of the activities of those who use LAX. Instead, the

                                        -36-
      resolution . . . prohibits even talking and reading, or the wearing of
      campaign buttons or symbolic clothing. Under such a sweeping ban,
      virtually every individual who enters LAX may be found to violate
      the resolution by engaging in some “First Amendment activit[y].”
      We think it obvious that such a ban cannot be justified even if LAX
      were a nonpublic forum because no conceivable governmental
      interest would justify such an absolute prohibition of speech.

Id. at 574-75. The City has similarly attempted to create a “First Amendment

Free Zone” on the easement and this attempt too must fail.

      The City contends that acquiescing to the LDS Church’s demand to control

speech on the easement was necessary to obtain the Church’s agreement to buy

the property. That may be true, but the City may not exchange the public’s

constitutional rights even for other public benefits such as the revenue from the

sale, and certainly may not provide a public space or passage conditioned on a

private actor’s desire that that space be expression-free. The City must “‘bear the

attendant costs.’” Hawkins, 170 F.3d at 1288 (quoting ISKON, 505 U.S. at 700

(Kennedy, J., concurring in judgment)). If it wants an easement, the City must

permit speech on the easement. Otherwise, it must relinquish the easement so the

parcel becomes entirely private.

      The City and Church maintain they may legitimately seek to protect the

Church and the sanctity of its property from public speech. This is true to a

certain extent. As with any public forum, the City may enact reasonable time,

place, and manner restrictions. See Perry Educ. Ass’n, 460 U.S. at 45.


                                        -37-
Governments routinely pursue public objectives in regulating the time, place and

manner of speech on public fora without running afoul of the Constitution. Such

legitimate objectives include public safety, accommodating competing uses of the

easement, controlling the level and times of noise, and similar interests. See, e.g.,

Ward v. Rock Against Racism, 491 U.S. 781, 792 (1989) (government desire to

“retain the character of the [park] . . . and to avoid undue intrusion into

residential areas and other areas of the park” justify noise level restrictions in

public park); Frisby, 487 U.S. at 484-86 (interest in “residential privacy” justifies

ban on targeted picketing of particular houses). Thus while the purpose of the

forum is a pedestrian easement, the City may take the interests of surrounding

property owners into account in enacting regulations, and may seek to

accommodate competing uses of the easement.

      We are not insensitive to the multitude of activities that occur in any

downtown setting and the competing property uses at issue here, particularly

given that the Church is the primary anchor of interest in the property. But the

City may not take action that runs afoul of our first and primary amendment. Our

Country’s dedication to both free expression and non-Establishment are among its

greatest heritages, and our fealty to the concept of a marketplace of ideas in

religion as well as other fields has been the hallmark of our society. Moreover,

we remind the City that “[t]he First Amendment is a limitation on government,


                                          -38-
not a grant of power.” ISKON, 505 U.S. at 695 (Kennedy, J., concurring in

judgment). The City’s attempt to create a public throughway but withhold speech

rights on that throughway is ineffectual simply because the City has attempted to

exercise power the First Amendment does not afford.



                                         III

      Because we hold the easement restrictions invalid, we need not reach the

plaintiffs’ remaining federal or state claims. The LDS Church does, however,

raise two further arguments we must address. The Church asserts that granting

the relief plaintiffs’ request would entangle the City in joint administration of the

easement with the Church in violation of the Establishment Clause. We are not

persuaded. We hold here that the City, not the Church, has responsibility for

regulating speech on the easement. While the City may legitimately accommodate

the unique location and setting of the easement, to the extent the City overly

involves the Church in that regulation it will run afoul of the limits on its actions

we announce today.

      The LDS Church also claims that permitting public speech on the easement

would infringe on the Church’s right of free expression. We also reject this

contention because the Church has no First Amendment right to be protected from

public speech. The speech of others does not, as a matter of law, infringe on an


                                         -39-
individual’s own free speech rights. See PruneYard Shopping Center, 447 U.S. at

85-87 (free speech rights of shopping mall owner not infringed upon by state law

requiring owner to permit speech in mall).

      Our conclusions in this case do not depend on any facts in dispute.

Accordingly, summary judgment for plaintiffs is appropriate. Z.J. Gifts D-2, LLC,

136 F.3d at 685 (citing Dickeson, 844 F.2d at 1444-45 n.8). Plaintiffs are entitled

to declaratory and injunctive relief with respect to the ban on expressive conduct

on the easement.



                                        IV

      For the reasons stated above, we REVERSE the judgment of the district

court and REMAND with instructions to enter judgment for plaintiffs consistent

with this opinion. 12




      12
        Appellee’s “Motion to Strike” filed August 27, 2001, by the Corporation
of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints is
denied.

                                        -40-
