United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-3210

___________________________

Larry Ball

lllllllllllllllllllll Plaintiff - Appellant

v.

City of Lincoln, Nebraska

lllllllllllllllllllll Defendant - Appellee

Chris Buetler, Mayor ofthe City of Lincoln; James Peschong, LincolnChief of Police

lllllllllllllllllllll Defendants

SMG, a Pennsylvania General Partnership

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the District of Nebraska - Omaha

____________

 Submitted: March 8, 2017

 Filed: August 29, 2017

____________

Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

____________

WOLLMAN, Circuit Judge.
Larry Ball appeals from the district court’s order granting summary judgment

1

to the City of Lincoln, Nebraska (City), and SMG (collectively, Appellees) on his

claim that the Appellees violated his First Amendment free-speech rights. Ball was 2

ticketed and arrested for trespassing after he distributed leaflets in the plaza area of

the Pinnacle Bank Arena (Plaza Area), which activity was prohibited by the Arena’s

Exterior Access and Use Policy (Policy). Ball argues that the district court erred in

concluding that the Plaza Area is a nonpublic forum and that the Policy is a

reasonable restriction on speech. We affirm. 

“We review a grant of summary judgment de novo and will affirm when ‘there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.’” Grant v. City of Blytheville, 841 F.3d 767, 770 (8th Cir. 2016)

(quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en

banc)). We view the evidence in the light most favorable to the nonmoving party and

draw all reasonable inferences in that party’s favor. Torgerson, 643 F.3d at 1042. 

The nonmoving party “may not rely on allegations or denials,” however, but must

substantiate his allegations with “sufficient probative evidence [that] would permit

a finding in [his] favor on more than mere speculation [or] conjecture.” Mann v.

Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quoting Gregory v. City of Rogers, 974

F.2d 1006, 1010 (8th Cir. 1992)). Even if some factual dispute exists, the movant is

entitled to summary judgment if the evidence, taken as a whole, is so one-sided that

a fair-minded trier of fact could not find for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, there is no genuine

issue for trial if “the record taken as a whole could not lead a rational trier of fact to

The Honorable Laurie Smith Camp, Chief Judge, United States District Court

1

for the District of Nebraska. 

The district court dismissed with prejudice Ball’s claims against ChrisBuetler, 2

the City Mayor, and James Peschong, the City Chief of Police, and Ball does not

appeal from that order. 

-2-
find for the nonmoving party.” Torgerson, 643 F.3d at 1042. We relate the facts in

light of these standards.

I. Background

In 2010, the City and the University of Nebraska (University) entered into an

agreement to create the West Haymarket Joint Public Agency (Agency), which was

formed to facilitate the redevelopment of the City’s West Haymarket district. The

redevelopment plan included the construction of the Pinnacle Bank Arena (Arena),

a large, modern sports and entertainment venue. The redevelopment plan included

several parking garages to the west and south of the Arena; a festival space/surface

parking lot to the north of the Arena; a pedestrian bridge connecting the festival space

and parking lotsto the Arena; and new roads, streets, and sidewalks providing access

to all these facilities. Among its other uses, the Arena was to function as the home

court for the University’s basketball teams. It was built to replace the City’s fiftyyear-old Pershing Center, which had been operated by SMG for more than a decade

until its closing in 2014. Under the redevelopment plan, the City would own the

Arena and its associated improvements and facilities for the benefit of the City’s

residents and citizens. 

The City entered into a Facilities Agreement with the Agency, under which the

City would construct the Arena and related facilities, including the adjacent roads,

streets, and sidewalks, and would thereafter operate, maintain, and manage them. 

Construction of new roads, streets, and sidewalks adjacent to the Arena was necessary

because, prior to its redevelopment, the site had been occupied by railroad tracks,

which were relocated to accommodate the Arena and related facilities. The City also

entered into a Management Agreement with SMG, granting SMG the “exclusive right

to manage, market, promote and operate” the Arena and related facilities. The Arena

opened in the fall of 2013. 

-3-
The Policy, which SMG adopted in October 2014, includes diagrams of the

Arena area and governs exterior access and use of the Arena and related facilities.

The Policy and diagrams were then posted on the Arena’s website, and paper copies

were made available to the public. The Policy was consistent with the unwritten

access and use policy that SMG had been enforcing since the Arena’s opening and

which SMG had earlier enforced at the Pershing Center from 1996 until its closing

in 2014. The Policy’s purpose was to provide Arena patrons—sometimes as many

as 15,000 at a single event—safe and efficient access to the Arena and related

facilities, as well as to allow for the full use of the Arena by the performers, sports

teams, trade shows, conventions, and others who leased the Arena for various events

(Arena Tenants). Certain exterior areas around the Arena and related facilities were

designated by the Policy as “nonpublic forum areas” and were specifically reserved

for use by Arena Tenants and their authorized productions and affiliates (Policy

Zone). The Policy Zone, which was defined in the text and depicted on the diagrams

accompanying the Policy, included the Plaza Area—the exterior plaza located at the

southeast corner of the Arena property near the southeast doors to the Arena. The

Policy and accompanying diagrams also provided for and identified public areas

outside the Policy Zone. The Policy Zone did not include the pedestrian bridge or a

path running along the eastern edge of the Plaza Area from the bottom of the

pedestrian bridge to the adjacent public sidewalk. 

-4-
Image of the Plaza Area located at the southeast corner of the Policy

Zone. The perimeter of the Plaza Area is indicated in black for ease of

reference, although it is shown in orange in the City’s Supplemental

Appendix. Suppl. App. at 24. 

Ball, a citizen and resident of the City, passes out leaflets containing Christian

messages to members of the public. Ball has handed out leaflets near the Arena on

at least four occasions. On March 15, 2014, the boys’ state high school basketball

tournament was being held at the Arena. Ball handed out leaflets to tournament

attendees while standing in the Plaza Area, at times standing directly in front of the

doors to the Arena. SMG staff approached Ball several times and asked him to move

from the Plaza Area to the adjacent public sidewalk. Ball agreed to leave but stated

that he would return later to continue leafletting. Ball returned that afternoon and

began leafletting again in the Plaza Area. When Ball refused to move from the Plaza

Area, SMG staff called the Lincoln Police Department. The officers asked Ball to

move to the public sidewalk outside the Plaza Area. Ball refused to move, asserting

that he had a right to leaflet in the Plaza Area. Ball was arrested and cited for

trespassing in violation of the unwritten Arena use policy and for refusing to comply

-5-
with the officers’ directives to move to another location. The charges were later

dismissed. 

Ball returned to the Arena on March 5, 2015, to hand out leaflets to people

attending the girls’ state high school basketball tournament and again stood in the

Plaza Area roughly 15 to 25 feet from the Arena doors. Ball concedes that he had by

that time read the written Policy and knew that it prohibited his leafletting activity. 

Officers again cited Ball for trespassing but did not arrest him. Ball returned to the

Plaza Area on March 7, 2015, engaged in the same conduct, and was again cited for

trespassing in violation of the Policy but was not arrested. During the second

weekend of March 2015, Ball distributed leaflets outside the Arena during the boys’

state high school basketball tournament, but this time he remained on the public

sidewalk outside the Plaza Area and was not approached by SMG staff or ticketed. 

In July 2015, Ball was found guilty of trespassing for the citations issued on March

5 and 7, 2015, and was fined $50 for each violation. The Lincoln Police Department

has not cited any other individual for trespassing or for other criminal violations

related to the Policy. 

Ball filed this lawsuit on March 12, 2015, alleging that the City and SMG had

violated his First Amendment free-speech rights by issuing the March 2014 and

March 2015 citations for trespassing on the Plaza Area in violation of the Policy. 

Ball sought permanent injunctive relief and monetary damages. The district court

granted summary judgment in favor of the City and SMG, concluding that the Plaza

Area was a nonpublic forum for purposes of the First Amendment and that the Policy

was a reasonable restriction on speech, conclusions that Ball challenges on appeal. 

II. Discussion

The First Amendment provides that state actors “shall make no law . . .

abridging the freedomofspeech.” U.S. Const. amend. I; amend. XIV. The Appellees

are state actors for purposes of the First Amendment, see Brentwood Acad. v. Tenn.

-6-
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-98 (2001), and the leafletting at

issue here is within the scope of speech protected by the First Amendment, see Int’l

Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677 (1992). The First

Amendment does not, however, provide Ball with unfettered latitude to engage in

leafletting wherever and whenever he might choose. Instead, the “government, ‘no

less than a private owner of property, has the power to preserve the property under

its control for the use to which it is lawfully dedicated.’” United States v. Grace, 461

U.S. 171, 178 (1983) (quoting Adderly v. Florida, 385 U.S. 39, 47 (1966)). Indeed,

it is “wellsettled that the government need not permit all forms ofspeech on property

it owns and controls.” Lee, 505 U.S. at 678. This is so because “[n]othing in the

Constitution requires the [g]overnment freely to grant access to all who wish to

exercise their right to free speech on every type of [g]overnment property without

regard to the nature of the property or to the disruption that might be caused by the

speaker’s activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.

788, 799-800 (1985); see also United States v. Kokinda, 497 U.S. 720, 725 (1990)

(noting that while the government is subject to certain constraints in its ability to

control access to its property, “the [g]overnment’s ownership of property does not

automatically open that property to the public”). While the government is generally

permitted to exercise control over expressive activities on its property, the

constitutionally permissible extent of that control turns on the nature of the property

involved and the restrictionsimposed. See Cornelius, 473 U.S. at 797. The Supreme

Court “has adopted a forum analysis as a means of determining when the

[g]overnment’s interest in limiting the use of its property to its intended purpose

outweighs the interest of those wishing to use the property for other purposes.” Id.

at 800; see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-

46 (1983); Minn. Majority v. Mansky, 708 F.3d 1051, 1056 (8th Cir. 2013). In other

words, “the extent to which the [g]overnment can control access depends on the

nature of the relevant forum.” Kokinda, 497 U.S. at 726 (quoting Cornelius, 473 U.S.

at 800). 

-7-
A traditional public forum is public property that has “traditionally been

available for public expression,” Lee, 505 U.S. at 678, and “the free exchange of

ideas,” Cornelius, 473 U.S. at 800. The “quintessential” examples ofsuch traditional

public forums are streets, sidewalks, and public parks, because these venues “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.” Perry Educ. Ass’n, 460 U.S. at 45 (citation omitted). 

“A traditional public forum is a type of property that ‘has the physical characteristics

of a public thoroughfare, . . . [that has] the objective use and purpose of open public

access orsome other objective use and purpose inherently compatible with expressive

conduct, [and that has] historical[ly] and traditional[ly] . . . been used for expressive

conduct.’” Bowman v. White, 444 F.3d 967, 975 (8th Cir. 2006) (citation omitted). 

A “designated” public forum, as the name implies, is created when the government

“intentionally open[s] a nontraditional forum for public discourse.” Cornelius, 473

U.S. at 802. “Although [the government] is not required to indefinitely retain the

open character of the facility, as long as it does so it is bound by the same standards

as apply in a traditional public forum.” Perry Educ. Ass’n, 460 U.S. at 46. In a

traditional or designated public forum, “the government’s ability to permissibly

restrict expressive conduct is very limited.” Grace, 461 U.S. at 177. The government

may impose a content-based restriction on speech only if the restriction “is necessary

to serve a compelling state interest and . . . is narrowly drawn to achieve that end.”

Perry Educ. Ass’n, 460 U.S. at 45. The government may impose a content-neutral

time, place, and manner restriction on speech as long as such restriction is “narrowly

tailored to serve a significant government interest, and leave[s] open ample

alternative channels of communication.” Id. 

A nonpublic forum is government property that “is not by tradition or

designation a forum for” expressive activities by the public. Id. at 46. The

government retains much broader discretion to restrict expressive activities in a

nonpublic forum. The government “may reserve [a nonpublic] forum for its intended

-8-
purposes, communicative or otherwise, as long as the regulation on speech is

reasonable and not an effort to suppress expression merely because public officials

oppose the speaker’s view.” Id.; see also Hodge v. Talkin, 799 F.3d 1145, 1153 (D.C.

Cir. 2015) (noting that the government “enjoys significantly greater latitude to

regulate expressive activity” in a nonpublic forum, “including the ability ‘in some

circumstances’ to ‘ban the entry . . . of all persons except those who have legitimate

business on the premises’” (quoting Grace, 461 U.S. at 178)). A restriction on

expressive activity in a nonpublic forum “need only be reasonable; it need not be the

most reasonable or the only reasonable limitation” to be constitutionally permissible. 

Kokinda, 497 U.S. at 730. 

Ball argues that the district court erred in concluding that the Plaza Area is a

nonpublic forum. He first contends that because the Plaza Area is physically and

spatially indistinguishable from the adjacent pedestrian bridge and other public

sidewalks, it is, “without more,” a traditional public forum. See Grace, 461 U.S. at

177 (noting that public venues such as sidewalks that have been “historically

associated” with expressive activities “are considered, without more, to be ‘public

forums’”). In determining whether government property constitutes a traditional

public forum, however, the physical appearance of the property is only one of the

factors we must consider. See Kokinda, 497 U.S. at 727 (“The mere physical

characteristics ofthe property cannot dictate forumanalysis.”); see alsoBowman, 444

F.3d at 978. We must also take into account “the traditional use of the property, the

objective use and purposes of the space, and the government intent and policy with

respect to the property, not merely its physical characteristics and location.” Id. In

addition, we must consider “the presence of any special characteristics regarding the

environment in which” the area in question exists. Id. No single factor is dispositive. 

Id. at 978 n.6. 

-9-
A. Physical Characteristics of the Plaza Area

Several courts have considered the physical characteristics of a venue in

determining its forum status. In Grace, the Supreme Court considered whether the

“public sidewalks surrounding the [United States Supreme] Court building” were

traditional public forums for purposes of the First Amendment. 461 U.S. at 175, 178. 

The Court concluded that these sidewalks, which marked the perimeter of the Court

grounds, were “indistinguishable from any other sidewalks in Washington, D.C.,”

particularly noting that there was “no separation, no fence, and no indication

whatever to persons stepping from the street to the curb” and onto the sidewalks that

“they [had] entered some special type of enclave.” Id. at 179-80. Thus, the Court

explained, there was “no reason why [these sidewalks] should be treated any

differently” from typical public sidewalks, which are “considered, generally without

further inquiry, to be public forum property.” Id. at 179; but see Greer v. Spock, 424

U.S. 828, 838 (1976) (holding that the streets and sidewalks within Fort Dix military

base were nonpublic forums in part because they were separated from the streets and

sidewalks of neighboring municipalities); Kokinda, 497 U.S. at 729-30 (holding that

Postal Service sidewalk connecting post office building with parking lot was

nonpublic forum). Although the Court did not directly address the status of the Court

grounds, it noted that, while “publicly owned,” the grounds “ha[d] not been

traditionally held open for the use of the public for expressive activities.” Grace, 461

U.S. at 178. The Court further observed that, even though the Court grounds were

generally open to the public, they were “not transformed into ‘public forum’ property

merely because the public [was] permitted to freely enter and leave the grounds at

practically all times.” Id. 

In United Church of Christ v. Gateway Economic Development Corp. of

Greater Cleveland, Inc., 383 F.3d 449, 452-53 (6th Cir. 2004), the Sixth Circuit

concluded that the “Gateway Sidewalk” encircling a privately owned stadium and

arena was a traditional public forum for purposes of the First Amendment. The court

found relevant the fact that the Gateway Sidewalk “blend[ed] into the urban grid,

-10-
border[ed] the road, . . . look[ed] just like any public sidewalk,” and was “made of the

same materials and share[d] the same design” as the public sidewalk running

alongside it. Id. at 452. That the Gateway Sidewalk’s border was “roughly

delineated” by large planter boxes was not determinative, because “the average

observer would be unfamiliar with the geographic significance of this sporadic

vegetation.” Id. The fact that the Gateway Sidewalk was “fully integrated” into “the

City’s downtown transportation grid,” just “like its publicly owned counterparts,” and

was physically “indistinguishable from” adjacent public sidewalks, weighed in favor

of the court’s holding that it was a public forum. Id. at 452-53.

In Hodge v. Talkin, 799 F.3d 1145, 1149-50 (D.C. Cir. 2015), the District of

Columbia Circuit took up a question left open in Grace, namely, whether the Supreme

Court plaza was a traditional public forum. The court distinguished the public

sidewalks considered in Grace from the Court plaza, “the elevated marble terrace”

adjacent to the public sidewalks and concluded that the plaza was a nonpublic forum

for purposes of the First Amendment. Id. at 1150. The court reasoned that the

“plaza’s appearance and design vividly manifest its architectural integration with the

Supreme Court building, as well as its separation from the perimeter sidewalks”

surrounding the grounds. Id. at 1158. The court observed that the steps, walls,

fountains, and floors making up the plaza were all constructed of white marble that

was visually similar to the white marble of the Court building’s facade and was

visually distinct from the adjacent concrete sidewalks. Id. at 1151. These features,

the court concluded, “convey[ed] in many distinctive ways that a person ha[d]

‘entered some special type of enclave.’” Id. at 1159 (quoting Grace, 461 U.S. at 180). 

Thus, while there was “nothing to indicate to the public that [the] sidewalks [were]

part of the Supreme Court grounds, there [was] everything to indicate to the public

that the plaza [was] an integral part of those grounds.” Id. (citations omitted). 

Ball points to the location of the pedestrian bridge and the presence of signs

displaying maps of the Haymarket district as physical features supporting a

-11-
conclusion that the Plaza Area is a public forum. Although the pedestrian bridge

ends near the Plaza Area, pedestrians need not enter or pass through the Plaza Area

to access other areas of the Haymarket district. Nor are they required to enter or pass

through the Plaza Area to consult a district map, for one such map is posted on a sign

located on the public sidewalk outside the Policy Zone. True, the pathway running

along the eastern edge of the Plaza Area from the base of the pedestrian bridge to the

public sidewalks adjacent to the Plaza Area—a pathway that is excluded from the

Policy Zone—is not as conspicuously marked as the other borders of the Plaza Area.

Were these physical features predominant, the Plaza Area might be considered a

public forum. But we must also consider “the presence of any special characteristics

regarding the environment in which [the Plaza Area] exist[s],” several of which

distinguish the Plaza Area from the adjacent public sidewalks. See Bowman, 444

F.3d at 978. 

Partial view of the Plaza Area. The grey arrow in the left photograph

shows the potential path of pedestrians exiting the pedestrian bridge. 

The perimeter of the Plaza Area is indicated in black for ease of

reference, although it is shown in orange in the City’s Supplemental

Appendix. Suppl. App. at 25-26. 

Although the physical characteristics of the Plaza Area are not as dominant or

distinctive as the raised and walled marble plaza leading into the Supreme Court

building, several features serve to set the Plaza Area apart from its surroundings. 

Unlike a typical public sidewalk, the borders of the Plaza Area are curved and

-12-
irregular and are identified by conspicuous markers such as cement planters, metal

stanchions or bollards, and flagpoles. The surface of the Plaza Area is composed of

colored and patterned concrete, as well as by brick-like pavers, all of which generally

distinguish the Plaza Area from the adjacent public sidewalks. These physical

features, coupled with the general size, unique shape, and overall appearance of the

Plaza Area, serve to distinguish it from the adjacent public sidewalks. Indeed, as

noted by the district court, “the very presence of large public sidewalks bordering the

Plaza Area signals that the Plaza Area is intended to serve a more limited function.” 

D. Ct. Order of June 23, 2016, at 14; see Lee, 505 U.S. at 680 (“[S]eparation from

acknowledged public areas may serve to indicate that the separated property is a

special enclave, subject to greater restriction.”). Thus, while a sidewalk typically

maintains a consistent width, runs parallel to a public street, and blendsinto the urban

or transportation grid, the same cannot be said of the Plaza Area. See United Church

of Christ, 383 F.3d at 452 (noting that the “Gateway Sidewalk blends into the urban

grid, bordersthe road, and looks just like any public sidewalk”); Hotel Emps. & Rest.

Emps. Union, Local 100 v. City of N.Y. Dep’t of Parks & Rec., 311 F.3d 534, 550 (2d

Cir. 2002) (noting that the plaza area in front of Lincoln Center performing arts

complex “connects with walkways leading to surrounding streets, [but] it does not

form part of the City’s transportation grid in the way that traditional streets and

sidewalks do”). While the physical characteristics of the Plaza Area may be

suggestive of a conclusion that it is a public forum, “[t]he mere physical

characteristics of the property cannot dictate forum analysis.” Kokinda, 497 U.S. at

727. We therefore proceed to consider the remaining relevant factors. See Bowman,

444 F.3d at 978 (noting that we must consider property’s physical characteristics, its

“traditional” and “objective use[s] and purposes,” and the government’s “intent and

policy”). 

B. Use of the Plaza Area

Ball argues that, because members of the public use the pedestrian bridge and

passthrough the Plaza Area en route to the Haymarket district and other destinations,

-13-
the Plaza Area functions as a thoroughfare for the public to travel among and between

the pedestrian bridge, the Haymarket district, and the Arena. Thus, he concludes, the

Plaza Area is a public forum. 

In Bowman, we noted that “streets, sidewalks, and other open areas that might

otherwise be traditional public [forums] may be treated differently when they fall

within the boundaries” of a university campus, because the traditional use of

university property was to serve the “university’s mission [of] education and the

search for knowledge,” to function “as a special type of enclave devoted to higher

education,” and not “to provide a forum for all persons to talk about all topics at all

times.” 444 F.3d at 978 (quotation marks and citations omitted). Similarly, in Hotel

Employees, the Second Circuit held that the plaza outside the Lincoln Center

performing arts complex was not a traditional public forum, despite the fact that it

was used by the public to “travers[e] between surrounding streets” and to “read or eat

lunch.” 311 F.3d at 550. The court noted specifically that the plaza’s “primary

function and purpose” was to serve as the “forecourt” for the arts complex, “to

facilitate patrons’ passage” into the complex, and to “symbolically . . . promote the

cultural arts for the benefit of the community.” Id. at 551-52; cf. Gateway Econ. Dev.

Corp., 383 F.3d at 452-53 (noting that, in addition to its physical characteristics, the

Gateway Sidewalk was intended to be “open to the public for general pedestrian

passage” as a “public thoroughfare”). The plaza “was not created primarily to operate

as a public artery, [or] to provide an open forum for all forms of public expression,”

and “ha[d] not traditionally been available for public expression,” despite the fact that

“the [p]laza’s design clearly invite[d] passers-by to stroll through or linger.” Hotel

Emps., 311 F.3d at 552 (citations omitted). The court concluded that “permitting

speech on all manner of public issues in the [p]laza would compromise the City’s

ability to establish a specialized space devoted to . . . the arts.” Id. 

Here, the Plaza Area is not primarily used as thoroughfare for the public to

travel among and between the pedestrian bridge, the Haymarket district, and the

-14-
Arena. Rather, it functions as a venue for commercial use by Arena Tenants, as a

means to facilitate safe and orderly access to the Arena for its patrons, as a security

screening area, and as a gathering place and entryway for Arena patrons. Use of the

Plaza Area is specifically reserved for Arena Tenants who lease the facility, and they

have used it to sell concert souvenirs and other merchandise and to set up photo

booths and other exhibits. The Plaza Area is also used to facilitate the safe and

efficient movement of large crowds of Arena patrons while they enter and exit the

Arena. It has also increasingly been used by SMG for security screenings of Arena

patrons prior to their entry into the venue. Given the recency of the Arena’s

construction, there is no evidence of the Plaza Area’s “historic” use, but it has

consistently been used as intended—commercial purposes associated with events

occurring inside the Arena—since the Arena’s opening in 2013. Cf. Venetian Casino

Resort, LLC v. LocalJoint Exec. Bd. of Las Vegas, 257 F.3d 937, 947 (9th Cir. 2001)

(concluding that sidewalk relocated to private property after street-widening project 

remained traditional public forum in part because it had historically been used as

such). 

As Ball points out, the pedestrian bridge ends near the Plaza Area and nonpatrons of the Arena may pass through the Plaza Area en route to other destinations. 

But the fact that “members of the public are permitted to come and go at will” does

not transform the Plaza Area into a public forum. See Bowman, 444 F.3d at 978

(quoting Grace, 461 U.S. at 177); see also Hodge, 799 F.3d at 1160 (observing that

“the Supreme Court plaza’s status as a nonpublic forum is unaffected by the public’s

unrestricted accessto the plaza at virtually any time”). Like the Lincoln Center plaza,

the Plaza Area is used as the forecourt or entryway to the Arena, and it facilitates

patrons’ safe and efficient passage into and out of the Arena. In addition, the Plaza

Area serves as additional commercial space for use by Arena Tenants. The fact that

the Plaza Area, like the Lincoln Center plaza, connects to surrounding sidewalks and

may be used by the general public to access those sidewalks is merely incidental to

the Plaza Area’s primary uses. See Hotel Emps., 311 F.3d at 550 (“The ability of

-15-
pedestrians to cross the [Lincoln Center plaza] as a short-cut between surrounding

streets is merely an incidental feature of its principal function as the entrance plaza

for the Lincoln Center complex.”). Ball points to no evidence that the Plaza Area has

been used for public expression or that it has been made available for expressive

activity by the public. Accordingly, the use for which the Plaza Area was designed

does not suggest that it should be considered a traditional public forum. 

C. Government Intent, Purpose, and Policy

Finally, we must also consider the City’s intent, purpose, and policy to

determine whether the Plaza Area is a public forum. Ball contends that the City did

not intend for the Plaza Area to be a nonpublic forum because it did not enact the

Policy designating it as such until after he was cited and arrested for leafletting. 

Granted, the City may not “transform the character of the property by the expedient

of including it within the statutory definition of what might be considered a nonpublic forum parcel of property.” Grace, 461 U.S. at 180 (noting that the government 

“may not by its own ipse dixit destroy the ‘public forum’ status of streets and parks

which have historically been public forums” (citations omitted)). As noted above,

however, there is no evidence that the City ever intended that the Plaza Area be open

to the public for expressive activities or that the Plaza Area has ever been regularly

used for such activities. Instead, the record establishes that the City’s principal

purpose with respect to the Plaza Area has been to protect the contractual rights of

Arena Tenants, to allow for crowd management and safety, to provide a forecourt or

gathering place for Arena patrons, and to provide an area for security screening. 

Although the Policy defining and outlining the Policy Zone was not initially

committed to writing, the record demonstratesthat the Appellees at all timesintended

that the Plaza Area be used in conjunction with Arena events and that opening the

Plaza Area for all forms of expressive activity would be incompatible with that

purpose. See Families Achieving Indep. & Respect v. Neb. Dep’t of Soc. Servs., 111

F.3d 1408, 1419 (8th Cir. 1997) (noting that lobby of local social services office was

a nonpublic forum because its principal purpose was not the free exchange of ideas

-16-
but the provision of services to welfare recipients); Hubbard Broad., Inc. v. Metro.

Sports Facilities Comm’n, 797 F.2d 552, 555 (8th Cir. 1986) (noting that

Metrodome’s principal purpose was to function as a sports complex and commercial

venture, not to provide venue for expressive activities; fact that city allowed some

advertising did not create public forum); Int’l Soc’y for Krishna Consciousness, Inc.

v. N.J. Sports & Exposition Auth., 691 F.2d 155, 160-61 (3d Cir. 1982) (concluding

that purpose of Meadowlandssports complex was “to bring economic benefits” to the

area, not to provide a venue for expressive activity). 

After considering each of the relevant factors, i.e., the Plaza Area’s physical

characteristics; its use, function, and purpose; and the City’s intent in constructing the

space, we agree with the district court that the Plaza Area is a nonpublic forum. 

Although the Plaza Area sharessome physical characteristics with a traditional public

forum, there is no evidence that it has been used for expressive activities by the

public. Rather, the record establishes that the Plaza Area has been used primarily in

conjunction with Arena activities. Moreover, there is no evidence that the Appellees

ever intended to open the Plaza Area for expressive activities by the public. 

Accordingly, the district court did not err in concluding that there is no genuine issue

of material fact regarding the Plaza Area’s status as a nonpublic forum. 

D. Reasonableness of the Policy3

We turn then to the question whether the Policy restricting speech in the Plaza

Area is permissible. “A restriction on speech in a nonpublic forum is . . . permissible

To the extent Ball argues on appeal that the Policy violates his due-process

3

rights, he did not raise a Fourteenth Amendment claim in his complaint, he

characterized his lawsuit as a “First Amendment case” in his opposition to summary

judgment, and the district court did not address any such claim. We therefore decline

to address this claim raised for the first time on appeal. Cf. Excalibur Grp., Inc. v.

City of Minneapolis, 116 F.3d 1216, 1223 n.5 (8th Cir. 1997) (considering a claim

that was not raised in the complaint but was briefed in opposition to summary

judgment because the district court addressed the claim on the merits and the

opposing party did not raise an objection).

-17-
if it is viewpoint neutral and ‘reasonable in light of the purpose which the forum at

issue serves.’” Minn. Majority, 708 F.3d at 1057 (quoting Perry Educ. Ass’n, 460

U.S. at 49). Such a restriction “need not be the most reasonable or the only

reasonable limitation” to be permissible. Cornelius, 473 U.S. at 808. 

The Policy imposes the following restrictions on “public communications”:

Leafleting, signature gathering, promotional material distribution,

merchandise sales, and picketing are only allowed within the Arena and

the non-public forum exterior Arena areas at the request of [an Arena

Tenant], the Tenant’s contractual entity and/or the artists or productions

they represent.

We agree with the district court that the Policy is viewpoint neutral on its face,

broadly prohibiting specific expressive activity inside the Arena and the Policy Zone

without regard to the content of the speech. See Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989) (“A regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental effect on some speakers or

messages but not others.”). Ball does not challenge this conclusion, arguing instead

that the Policy is not viewpoint neutral as applied to him because it was enacted

specifically to target him and his message and because he is the only individual

against whom the Policy has been enforced. He notes that Appellees have allowed

political messages and merchandise to be displayed and distributed in the Plaza Area

during certain Arena events. The evidence establishes that Ball has been the only

individual to violate the Policy and, thus, the only individual to be cited therefor. 

Other demonstrators and protestors have complied with the Policy and have not been

cited. The evidence also establishes that any politicalspeech that has occurred in the

Plaza Area has been in connection with an Arena Tenant’s use of the facility and

therefore permissible under the Tenant’s lease. Accordingly, Ball and his message

have not been targeted by the Policy’s enforcement. 

-18-
Ball also argues that the Policy is not a reasonable restriction in light of the

Plaza Area’s intended use and purpose. In New Jersey Sports & Exposition

Authority, 691 F.2d at 161-62, the Third Circuit concluded that a policy restricting

leafletting and solicitation in the Meadowlands sports complex was a reasonable

restriction in a nonpublic forum, observing that the prohibited expressive activity

could have adverse effects on concessionaire business, subject patrons to unwanted

intrusion, and impede crowd movement. Id. at 162. The policy was reasonable

because it was designed to address legitimate concerns relating to the operation of the

sports complex. Id.

The Policy in this case is designed to address some of the same concerns,

namely to prevent interference with Arena Tenants’ contractual uses ofthe Plaza Area

and to facilitate safe and efficient access to the Arena for patrons of the venue. The

Plaza Area, which is specifically included in the premises leased by Arena Tenants,

is used by Tenants for commercial purposes. Restricting expressive activity in the

Plaza Area is a reasonable manner of addressing those concerns and of furthering

those purposes. Although Ball was at all times peaceful and respectful while

leafletting, permitting such conduct within the Plaza Area amid large crowds of

people intent on entering the Arena before or exiting the Arena after an event could

result in an impediment to the flow of traffic and thus endanger the safety of Arena

patrons. See Powell v. Noble, 798 F.3d 690, 701 (8th Cir. 2015). Viewed in light of

the commercial and safety purposes served by the Plaza Area, the expressive activity

Ball seeks to engage in would be disruptive of the normal activities within the Plaza

Area. 

The availability of nearby areas open for expressive activity also supports a

finding that the Policy is reasonable. “The reasonableness of a restriction on access

is supported when ‘substantial alternative channels’ remain open for the restricted

communication.” VictoryThrough Jesus Sports Ministry Found. v. Lee’s Summit R7 Sch. Dist., 640 F.3d 329, 335 (8th Cir. 2011) (quoting Perry Educ. Ass’n, 460 U.S.

-19-
at 53). The Plaza Area lies between the main Arena entrance and the Haymarket

district. The Policy does not deprive Ball of accessto his desired audience—the large

crowds that bottleneck at the Arena doors—for Ball need only stand on the public

sidewalk directly adjacent to the Plaza Area to communicate with those persons

before they reach the congestion point. The district court did not err in concluding

that the Policy isreasonable and thus constitutional as not unduly restrictive of Ball’s

First Amendment rights to engage in expressive activity in a nonpublic forum.

Ball has not pointed to “sufficient probative evidence [that] would permit a

finding in [his] favor on more than mere speculation.” Mann, 497 F.3d at 825

(citations omitted). Considering the record as a whole, then, there is no genuine

dispute as to any material fact, and thus summary judgment was properly granted to

the City and SMG.

The judgment is affirmed.

MELLOY, Circuit Judge, concurring in part and dissenting in part.

The majority holds that the entire Plaza Area is a nonpublic forum and, thus,

the Exterior Access and Use Policy is reasonable. I would hold that only part of the

Plaza Area is a nonpublic forum; the section of the Plaza Area directly in front of the

pedestrian bridge, however, is a traditional public forum. Accordingly, I concur in

part and dissent in part. 

A traditional public forum is property the government has historically kept

open for public discourse, including parks, streets, and sidewalks. See Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985); see also Bowman

v. White, 444 F.3d 967, 975 (8th Cir. 2006). “A traditional public forum is a type of

property that ‘has the physical characteristics of a public thoroughfare, . . . the

objective use and purpose of open public access or some other objective use and

-20-
purpose inherently compatible with expressive conduct, [and] historical[ly] and

traditional[ly] has been used for expressive conduct . . . .’” Bowman, 444 F.3d at 975

(alterations in original) (quoting Warren v. Fairfax Cty., 196 F.3d 186, 191 (4th Cir.

1999)). A nonpublic forum, in contrast, is “[p]ublic propertywhich is not by tradition

or designation a forum for public communication.” Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (1983). 

Based on the physical characteristics and the traditional and objective use of

the Plaza Area, and the government’s intent with respect to the Plaza Area, see

Bowman, 444 F.3d at 978, the facts of this case show that the Plaza Area cannot be

labeled as only one type of forum. Although a majority of the Plaza Area surrounding

the entrance to the Arena is a nonpublic forum for the reasons discussed by the

majority, the Plaza Area leading from the pedestrian bridge to the sidewalk is a

traditional public forum.

To the east of the Arena, there is a pedestrian bridge that is held open to the

public. The bridge feeds directly into the Plaza Area; there is no separation between

the bridge and the Plaza Area. The bridge is commonly used to accessthe Haymarket

district and to move between the baseball stadium, the Arena, and the Haymarket

district. The bridge also connects to a parking lot regularly held open to the public. 

The public can park in the lot and walk over the bridge and must walk through the

Plaza Area to get to the Haymarket district. 

Discussing the physical features of the Plaza Area, the majority notes, ante, at

13, that “[t]he surface of the Plaza Area is composed of colored and patterned

concrete, as well as by brick-like pavers, all of which generally distinguish the Plaza

Area from the adjacent public sidewalks.” True, the Plaza Area does have colored

and patterned concrete and brick-like pavers. However, the colored concrete and

pavers do not clearly distinguish the part of the Plaza Area that is open to the public. 

Rather, a review of the images submitted shows that the colored concrete is not

-21-
limited to the Plaza Area; the colored concrete continues past the bollards onto the

public sidewalk. 

Further, an individual using the pedestrian bridge must crossthrough the Plaza

Area to reach the rest of the Haymarket district. The majority, ante, at 12, states,

“Although the pedestrian bridge ends near the Plaza Area, pedestrians need not enter

or pass through the Plaza Area to access other areas of the Haymarket district.” The

majority reaches this conclusion because the Policy excludes a strip of land along the

edge of the Plaza Area that pedestrians are permitted to walk on to access the

Haymarket district. But there are no physical markers or barriersto indicate thatsuch

a perimeter exists. Rather, to indicate this perimeter, the Policy super-imposes an

orange line on pictures of the Plaza Area. And the colored concrete the majority says

distinguishes the Plaza Area from the public sidewalk does not align with this

perimeter. In fact, the image included with the Policy itself shows that the path

excluded from the Policy includes both the colored and uncolored concrete. 

A close look at the image in the majority opinion, ante, at 5, may be helpful. 

In the upper right corner of the image there are two parallel lines, one of which runs

along the perimeter line. The space between those lines is the pedestrian bridge. As

the image shows, the perimeter is almost flush with the end of the bridge. To avoid

the Plaza Area covered by the Policy, one must turn and walk to the left immediately

upon exiting the bridge. 

Finally, the placement of the colored concrete supports a finding that the

section of the Plaza Area leading from the bridge to the sidewalk is a traditional

public forum. There is a strip of colored concrete where the bridge meets the Plaza

Area that is the same width as the bridge. That colored concrete leads across the

Plaza Area to the sidewalk. In Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir.

2015), the court explained that the Supreme Court plazawas architecturally integrated

with the Supreme Court building and, “[f]rom the perspective of a Court visitor (and

-22-
also the public), the physical and symbolic pathway to [the Supreme Court] chamber

begins on the plaza.” (second alteration in original) (citation and internal quotation

marks omitted). By contrast, here, from the perspective of a pedestrian using the

bridge, the colored concrete acts as a “physical and symbolic pathway” to and from

the sidewalk.

Although I would hold that this section of the Plaza Area has the physical

characteristics of a public forum, “[p]ublicly owned or operated property does not

become a ‘public forum’ simply because members of the public are permitted to come

and go at will.” Bowman, 444 F.3d at 978 (alteration in original) (quoting United

States v. Grace, 461 U.S. 171, 177 (1983)). I do not disagree with the majority, ante,

at 15, that “the Plaza Area is used as the forecourt or entryway to the Arena, and it

facilitates patrons’ safe and efficient passage into and out of the Arena,” or that it

“serves as additional commercialspace for use by Arena Tenants.” I would, however,

limit those conclusions to the Plaza Area between the Arena and the west side of the

bridge and the strip of colored concrete.

It is undisputed that people who use the pedestrian bridge also use the Plaza

Area. And, in his deposition, Tom Lorenz, an SMG official, stated that the Plaza

Area can be used regularly by the public for purposes other than entering and exiting

the Arena. Additionally, it is undisputed that the pedestrian bridge is open to the

public and meant to connect the parking lot to the Arena and the Haymarket district. 

Finally, it is undisputed that pedestrians must cross at least part of the Plaza Area to

reach the street. As such, the Plaza Area invites the public to pass through and

“operate[s] as a public artery.” See Hotel Emps. & Rest. Emps. Union, Local 100 v.

City of N.Y. Dep’t of Parks & Rec., 311 F.3d 534, 552 (2d Cir. 2002). Further, the

Plaza Area is used in the manner cited by the majority only during events, while

public passage through the Plaza Area occurs whenever people park in that parking

lot to go to the Haymarket district. As a result, it is difficult to conclude that the

entire Plaza Area’s primary purpose is for Arena use.

-23-
Finally, considering the City’s intent, purpose, and policy, the majority, ante,

at 16, states that “the record establishes that the City’s principal purpose with respect

to the Plaza Area has been to protect the contractual rights of Arena Tenants, to allow

for crowd management and safety, to provide a forecourt or gathering place for Arena

patrons, and to provide an area for security screening.” I disagree. The first instance

of the Plaza Area being used for security screening was in February 2016, nearly

three years after the Arena opened. Additionally, as previously noted, the pedestrian

bridge was intended to connect pedestrians to the Arena and the Haymarket district,

the only way to get from the bridge to the Haymarket district is to cross through at

least part of the Plaza Area, and both the bridge and the sidewalk along the Plaza

Area are public. Thus, the logical inference is that the City intended that at least part

of the Plaza Area be incorporated into the “transportation grid and . . . open to the

public for general pedestrian passage.” United Church of Christ v. Gateway Econ.

Dev. Corp. of Greater Cleveland, 383 F.3d 449, 452 (6th Cir. 2004).

Based on the foregoing discussion, I would hold that the part of the Plaza Area

between the pedestrian bridge and the sidewalk is a traditional public forum. I agree

with the majority as to the rest of the Plaza Area.

Because I would hold that the part of the Plaza Area between the pedestrian

bridge and the sidewalk is a traditional public forum, I turn to the question of whether

the Policy is permissible with respect to that part of the Plaza Area. I agree with the

majority that the Policy is reasonable with respect to the part of the Plaza Area I

would hold to be a nonpublic forum. In a traditional public forum, however, we

apply a different level of scrutiny and the government’s ability to restrict speech is

the most limited. Bowman, 444 F.3d at 975. Strict scrutiny applies to content-based

restrictions: the regulation must be necessary to serve a compelling state interest and

be narrowly tailored to that interest. Id. Alternatively, a content-neutral, time, place,

or manner restriction must be “narrowly tailored to serve a significant government

interest and leave[ ] open ample alternative channels of communication.” Id.

-24-
I agree with the majority, ante, at 18, “that the Policy is viewpoint neutral on

its face, broadly prohibiting specific expressive activity inside the Arena and the

Policy Zone without regard to the content of the speech.” Thus, with respect to the

part of the Plaza Area I would hold is a public forum, the Policy will pass

constitutional muster if “the factual situation demonstrates a real need for the

government to act to protect its interests.” Johnson v. Minneapolis Park & Rec. Bd.,

729 F.3d 1094, 1099 (8th Cir. 2013) (quoting Ass’n of Cmty. Orgs. for Reform Now

v. St. Louis Cty., 930 F.2d 591, 595 (8th Cir. 1991)). “In other words, it is not

enough for the [government] to recite an interest that is significant in the abstract;

there must be a genuine nexus between the regulation and the interest it seeks to

serve.” Id. 

Appellees contend that the Policy is narrowly tailored to serve three interests:

(1) to prevent sales and solicitations that compete with tenants’ use of the Plaza Area;

(2) to ensure safety and crowd management; and (3) to keep the Plaza Area open for

security screening. 

“In the abstract, controlling crowds can constitute a significant governmental

interest that bears directly on public safety.” Id. at 1100; see also Heffron v. Int’l

Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981) (“Because the Fair

attracts large crowds, it is apparent that the State’s interest in the orderly movement

and control of such an assembly of persons is a substantial consideration. As a

general matter, it is clear that a State’s interest in protecting the ‘safety and

convenience’ of persons using a public forum is a valid governmental objective.”

(citation omitted)). Appellees, however, have presented little evidence that

prohibiting solicitations and public communications furthers that interest. It is true

that certain events at the Arena draw crowds of 12,000 to 15,000 people. However,

the assertion that the expressive activities restricted by the Policy cause congestion

near the entrance to the Arena is insufficient. See Johnson, 729 F.3d at 1100. 

Appellees have not submitted any evidence that individuals handing out leaflets have

-25-
actually caused increased congestion. Additionally, Ball would not have violated the

policy if he stood in the Plaza Area and preached at the crowd without also passing

out leaflets. And the Plaza Area remains open to the public during events at the

Arena. Cf. id. (citing Saieg v. City of Dearborn, 641 F.3d 727, 737 (6th Cir. 2011)

(concluding that city’s interest in curtailing expression on sidewalks was “not

substantial,” where sidewalks remained open to the public during a festival, and were

not restricted to attendees paying an admission fee)). 

Further, the Policy is underinclusive. “Where a regulation restricts a medium

of speech in the name of a particular interest but leaves unfettered other modes of

expression that implicate the same interest, the regulation’s underinclusiveness may

‘diminish the credibility of the government’s rationale for restricting speech in the

first place.’” Id. (quoting City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994)). In this

case, the Policy does not prohibit an individual from standing in the Plaza Area and

preaching. Nor does it prohibit street performers from performing in the Plaza Area. 

Arguably, these activities are more likely to draw crowds than someone passing out

literature. See id. at 1101 (“We think it obvious, however, that a street performer’s

very purpose is to draw a crowd. Buskers like mimes, musicians, and living statues

aim to attract an audience, and passersby must stop to listen or observe. With

literature distribution, by contrast, a recipient ‘need not ponder the contents of a

leaflet or pamphlet in order mechanically to take it out ofsomeone’s hand.’” (quoting

United States v. Kokinda, 497 U.S. 720, 734 (1990) (plurality opinion))). 

Finally, the Policy is not narrowly tailored because solicitations and public

communications are prohibited in the Plaza Area at all times; the Policy does not

restrict those expressive activities solely when there is an event at the Arena. The

Policy would be more narrowly tailored to serve Appellees’ stated interests if it

applied during events only. 

-26-
As a result, I would hold that the Policy does not pass constitutional muster

with respect to the part of the Plaza Area between the pedestrian bridge and the

Haymarket district. The fact that there are alternative channels of communication,

including the sidewalk just outside the Plaza Area, cannot cure the Policy’s

underinclusiveness and failure to be narrowly tailored. Accordingly, I would affirm

the district court in part, and reverse and remand in part.

______________________________

-27-