A federal judge is weighing whether to halt enforcement of a Denver policy that restricts free speech activities to five poorly-trafficked locations at Red Rocks amphitheater, as part of a broader lawsuit aimed at declaring the policy unconstitutional.
Joseph Maldonado of Broomfield challenged the First Amendment policy after Denver police officers and event staff told him in April 2019 that he could not preach to attendees of a Snoop Dogg concert on the sidewalk outside the amphitheater. After seeing the map of the five acceptable locations the city had established for "expressive activities," Maldonado realized their locations would vastly diminish the size of his audience.
On Thursday, U.S. District Court Judge R. Brooke Jackson heard from Maldonado's attorney and the Denver City Attorney's Office about whether he should grant a preliminary injunction to Maldonado while the case proceeds through the trial court.
"I respect what Denver is trying to do. Honestly, if I were going to a concert at Red Rocks, I wouldn’t necessarily want some individual preaching his religion to me as I was standing in the line," said Jackson. "But as a judge, I’ve got to decide a legal issue based on the Constitution."
Jackson was critical of the arguments from both parties at various points. Despite testimony from a Denver official that the city was willing to work with Maldonado and find an alternative location for him to proselytize, the judge pointed out that the city had failed to reach a compromise since Maldonado filed the lawsuit 11 months ago.
But following a claim from Maldonado's attorney that his client was asked to leave Red Rocks for preaching a religious message while others were allowed to stay, Jackson responded there was no evidence that was true.
"You're making that up," he accused the lawyer.
Denver owns Red Rocks Park and Amphitheatre, which was the product of the Depression-era Civilian Conservation Corps and was dedicated as a venue in 1941. It has a capacity of 9,525, and there can be 400 staff working during an event.
Since at least the late 1990s, Denver has had a policy restricting free speech activities at certain city-owned sites. The current version of the public forum policy applies to the Colorado Convention Center, the Denver Performing Arts Complex, Denver Coliseum and Red Rocks. Because those facilities can be reserved "for the exclusive use of tenants and their invitees" — meaning event organizers and patrons — the city maintained they were not open to all types of free expression without restriction.
As such, First Amendment activities must take place in designated locations so as to not interfere with people entering or exiting the facilities.
Maldonado is a vice president and director of facilities for an advertising agency, who also believes his faith compels him to evangelize his Christianity in public. He found Red Rocks to be a particularly ideal location during events because he could encounter large groups of people at the high-profile venue.
There were two locations in particular that suited Maldonado: the top circle parking lot and the upper north lot, which are near a security checkpoint and entrance to the amphitheater.
"I try to do it in a way where I can speak to people in a concise matter without having to scream or yell very loudly," Maldonado testified in the federal courtroom. "I will secondarily sometimes hold a sign."
Prior to the April 2019 encounter with law enforcement, he reportedly was allowed to proselytize unimpeded on eight occasions. Although Maldonado said that occasionally people will engage with him out of interest, he has also been confronted and assaulted while preaching. He described Red Rocks' five sanctioned public forum locations as being off the side of main roads, with cars driving by at high speeds. He did not believe them to be safe, as he has heard rattlesnakes among the brush.
"The problem with putting him in these five discrete locations is it doesn’t allow him to reach an audience because he has no pedestrian traffic there," argued Maldonado's attorney, Nathan W. Kellum with the Memphis-based Center for Religious Expression.
"So I agree that the public has a very strong interest in the First Amendment being enforced. Hypothetically, what about the theatergoers who paid for their expensive tickets to go to a concert at Red Rocks and don’t wanna be proselytized to?" Jackson asked. "Do they have a right to that?"
Kellum answered in the negative. "None of us do. That's really the price we pay for having a First Amendment," he added.
In August, Jackson denied the city's attempt to dismiss the lawsuit, finding Maldonado had stated a plausible case that the public forum policy was so broad as to be unconstitutional. However, the judge noted that more evidence was needed on the underlying claims.
Assistant City Attorney Conor Farley contended that if the court were to prevent the city from enforcing the policy, it would impair crowd management and safety at events. Although he conceded that Maldonado would largely be preaching to cars and not people in the designated free expression areas, Farley showed that medical access, handicap and event staff parking were the primary uses of the top circle lot where Maldonado sought to preach.
In choosing the five public forum locations, "it’s kind of a combination of where’s a place somebody can engage in these activities, be seen and at the same time allow us to get folks in and out as we need to," testified Tad Bowman, venue director for Red Rocks and the Denver Coliseum with the city's division of arts and venues.
Asked whether the city would be willing to select a new public forum area that met Maldonado's standards for pedestrian traffic, Bowman said yes.
Legally, the city's position is buoyed by a 1999 decision from the U.S. Court of Appeals for the 10th Circuit, which covers Colorado. Union musicians challenged the ban on picketing in the Denver Performing Arts Complex's Galleria, the outdoor, semi-enclosed space off of 14th Street that provides access to theaters, restaurants and parking.
A panel of judges for the 10th Circuit determined the city's restriction on protests was reasonable given the Galleria's purpose, and that such activity could present "a legitimate risk of congestion during peak hours in a forum as spatially confined as the Galleria."
On the other hand, supporting Maldonado is a 1996 10th Circuit ruling arising from Elk City, Oklahoma. The city excluded a sign from its "Christmas in the Park" display because the sign indicated it was sponsored by the county's teenage Republican club. The city explained the content was partisan in nature, but a panel of appellate judges sided with members of the club. Streets, sidewalks and parks are all presumed to be public forums, in which the government may only enforce narrowly-tailored speech restrictions.
Even with Bowman's willingness to find an alternative spot for Maldonado, Kellum said his client would still benefit from an injunction on the public forum policy because "there could certainly be an issue as far as what we consider appropriate pedestrian traffic" at the new location.
Jackson concluded the hearing by expressing veiled disappointment that both parties had not been able to break the impasse and had left him to decide what to do with the policy.
"Plaintiff's counsel at least is saying, 'I want carte blanche for my client.' And [the Denver City Attorney's Office is] saying for your client, 'I want no area where he can contact pedestrians'," the judge summarized. "If both sides are stubborn, you’re going to have to take whatever you get."
The case is Maldonado v. Denver.