Travel-Ban Protesters at Denver Airport Lose First Amendment Challenge

Early last year, protesters gathered at the Denver airport to express their opposition to President Trump’s executive order temporarily restricting people from several majority-Muslim countries from entering the United States—the so-called “travel ban.”

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Protesters at Denver International Airport in January 2017. (David Migoya/Denver Post)

At the time (and still today), a Denver ordinance requires anyone protesting at the Denver airport to first obtain a permit.  The travel-ban protesters never got one, and airport police repeatedly warned the protesters that they could be arrested.

Less than two weeks later, Nazli McDonnell and Eric Verlo (who were at the travel-ban protests), sued the city of Denver arguing that its permitting scheme for protests at the Denver airport violated their First Amendment rights.

Their lawsuit was all about timing.  The travel-ban protests happened within 1-2 days of the president’s executive order.  The city’s permitting scheme, however, requires that an application be submitted at least 7 days before the scheduled protest.  McDonnell and Verlo argued that this 7-day delay prevents them from engaging in “spontaneous expression.”  They pointed out that the city can accommodate a parade or protest on a public street or sidewalk with just 24 hours’ notice (which the city can), and thus that the 7-day waiting period for airport protests is unreasonable.

Unfortunately for McDonnell and Verlo, their argument did not carry the day.  The Court said that, for First Amendment purposes, an airport is different from a street or sidewalk.  While streets and sidewalks are “public” fora (where First Amendment rights are strongest), the Denver airport is a “nonpublic” forum, and the government is afforded more latitude there in regulating speech and protests.

The word “nonpublic” here can be misleading.  Yes, technically any member of the public can walk into the Denver airport (we assume).  But the airport is treated as “nonpublic” for First Amendment purposes because the city has not opened up the airport for public speech, only public access.  Because the airport is “nonpublic” for First Amendment purposes, the city’s ordinance just has to be reasonable; “it need not be the most reasonable limitation.”  Looking at how the city needs to manage the airport, the thousands of people that pass through it every day, and the security requirements there, the Tenth Circuit found the city’s 7-day waiting period for airport protests reasonable, and thus constitutional.

Case: McDonnell v. City & Cty. of Denver, No. 17-1071 (10th Cir. Jan. 4, 2018) (opinion here)

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