Red Rocks at sunrise, near Denver. Photo Credit: Adam-Springer (iStock).

Red Rocks at sunrise, near Denver. Photo Credit: Adam-Springer (iStock).

A federal judge has handed a Broomfield man a partial victory, allowing him to preach his Christian faith near an entrance to Red Rocks amphitheater despite a city policy that limits free speech activities to faraway locations.

Joseph Maldonado challenged the "public forum policy" of Denver, which owns Red Rocks Park and Amphitheatre, and filed a federal lawsuit seeking to strike down the restrictions as unconstitutional. On Tuesday, U.S. District Court Senior Judge R. Brooke Jackson acknowledged Maldonado could not proselytize everywhere he wanted, but that the city was unjustified in barring him from certain spaces.

"I assume that many, perhaps most, people who buy tickets for an event at the Amphitheatre are not particularly interested in being proselytized to by Mr. Maldonado or anyone else as they leave their cars and walk toward the event," Jackson wrote in an Oct. 5 order granting a preliminary injunction. "But that practical reality does not trump the constitutional issue. Denver has not offered any alternative location where the plaintiff could share his message with pedestrians."

Since at least the late 1990s, Denver's public forum policy has placed restrictions on expressive activity, such as picketing or demonstrating, at certain municipally-owned venues that include Red Rocks, the Denver Performing Arts Complex and the Denver Coliseum. In Red Rocks' case, the amphitheater and surrounding areas are reserved on event days for "the exclusive use of tenants and their invitees" — meaning event organizers and ticketed customers.

Denver has designated five locations for free speech at Red Rocks. Although they are close to roads, they are far removed from the amphitheater and do not allow for engagement with pedestrians. Maldonado, a vice president and director of facilities for an advertising agency who believes his faith compels him to evangelize, sued after event staff and police told him in April 2019 that he had to adhere to the approved sites if he wanted to preach to attendees.

Red Rocks public forum locations

Designated public forum sites for expressive activity at Red Rocks Park.

In particular, Maldonado sought to preach at the Top Circle Lot, next to a security checkpoint, as well as the Upper North Lot. A staircase connects the two areas. Maldonado preferred those locations because of the size of the crowds available. 

At a hearing in Jackson's courtroom last month, the city indicated it was willing to work with Maldonado to find an alternate site for him, but that the two parking lots he identified were too busy with tour buses, handicap parking and event staff.

The judge agreed with Denver that the Top Circle Lot was not a traditional public forum, and the presence of an individual passing out leaflets or holding a sign could impair the ability of Red Rocks staff to manage large crowds of people, especially if some of them stopped to engage with Maldonado or, worse, confront him. Jackson cited a 1999 case challenging free-speech restrictions at the Denver Performing Arts Complex's semi-enclosed Galleria, in which an appeals court ruled the city justified in limiting free speech activity there.

Denver had "presented evidence about the logistical difficulties and dangers associated with moving tens of thousands of pedestrians in and out of an alpine amphitheater," Jackson explained. 

However, the Upper North Lot is different: it does not have a sign limiting it to event parking, is open to non-ticketed pedestrians during events, and contains no barriers or indicators that people are entering an off-limits space. The judge did not find Denver had justified the closure of the Upper North Lot to free expression by asserting a narrowly-tailored and compelling governmental interest, as First Amendment restrictions require.

"Denver has not shown that plaintiff’s activity would impair Denver’s ability to use the Amphitheatre as a revenue-generating arts venue, nor has it shown any safety concerns with plaintiff’s activities in the Upper North Lot," Jackson concluded.

He added that unless Denver can marshal stronger evidence for its position that the Upper North Lot should remain closed as a public forum, Maldonado will likely succeed in obtaining a court order to permanently block the city from enforcing its policy there.

But that may not be necessary: following the preliminary injunction, the city appeared to back down from its prior position and endorse usage of the Upper North Lot for expressive activities on a permanent basis.

"The sidewalks in question are new since the last update of the public forum policy at the venue so Arts & Venues [Division] will work to clarify the new locations in order to provide acceptable spaces for public forum use at Red Rocks," said spokesperson Brian Kitts on Thursday.

Jackson also applied his preliminary injunction to the rest of Red Rocks Park except the amphitheater, which neither Maldonado nor the city objected to.

The case is Maldonado v. Denver et al.

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