PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ERIC VERLO; JANET MATZEN; and FULLY INFORMED JURY ASSOCIATION, Plaintiffs - Appellees,

v. THE HONORABLE MICHAEL MARTINEZ, in his of ficial capacity as Chief Judge of the Second Judicial District, Defendant - Appellant,

v. THE CITY AND COUN TY OF DENVER, COLORADO, a municipality; ROBERT C. WHITE, in his official capacity as Denver Chief of Police, Defendants - Appellees. No. 15-1319

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-01775-WJM-MJW)

________________ _________________ Stephanie Lindquist Scoville, Senior Assistant Attorney General, Offi ce of the Attorney General for the State of Colorado, Denve r, Colorado (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor Ge neral; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the briefs) for Defendant - Appellant. FILED United States Court of Appeals Tenth Circuit 

### April 8, 2016
Elisabeth A. Shumaker Clerk of Court2 David A. Lane, Killmer, Lane & Newman, LLP, Denver, Co lorado, for Plaintiffs - Appellees. Wendy J. Shea, Assistant C ity Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. L ee, Assistant City A ttorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney's Office, Denver, Colorado, filed a brief on behalf of Defendants - Appellees.

________________ _________________ Before BRISCOE , McKAY , and McHUGH , Circuit Judges.

________________ _________________ McHUGH , Circuit Judge.

________________ _________________ This is an interlocutory appeal challe nging the district court’s grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant-App ellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expre ssive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo, Janet Matzen, and the Fully Info rmed Jury Association (coll ectively, Plaintiffs) sought the preliminary injunc tion to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined en forcement of a portion of the Order as against Plaintiffs . The Judicial District now appeals. Based on the arguments made and ev idence presented at the preliminary injunction hearing, we hold th e district court did not abus e its discretion in granting Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited preliminary injunction, we express no opini on as to whether a permanent injunction3 should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal st andard relevant to that question on remand.
I. BACKGROUND The genesis of this case is an incident involving nonpar ties. On July 27, 2015, two men were distributing pamphlets on the pl aza outside the Courthouse (Plaza). The pamphlets contained informati on about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt beca use the jury members believe the law at issue is immoral. 1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18- 8-609(1) (“A person commits jury-tampering if, with intent to influence a jury’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communica te with a juror other than as a part of the proceedings in the trial of the case.”). Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullif ication to individuals appr oaching the Courthouse who might be prospective jurors. Fearing they t oo would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robe rt C. White, Denver’s police chief, in his official capacity (collectively, Denver) to es tablish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restra in Defendants from taking action to prevent

1 Jury nullification has been defined as “[a] jury’s know ing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issu e that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification , Black’s Law Dictiona ry (10th ed. 2014).4 Plaintiffs from distributing jury nullificat ion literature on the Pl aza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District. That Order, entitled Chief Judge Order Re garding Expressive Activities at the Lindsey-Flanigan Courthouse, states in relevant part: The Court has the respon sibility and authority to ensure the safe and orderly use of the facilities of the Seco nd Judicial District; to minimize activities which unreasonabl y disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prej udice, or favoritism; to provide for the fair and orderly conduc t of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those havi ng business with the courts must be able to enter and exit the Lindsey-Flanig an Courthouse freely, in a safe and orderly fashion and unhinde red by threats, confront ation, interference, or harassment. Accordingly, the Court he reby prohibits certain expressive activities on the grounds of the Courthou se, without regard to the content of any particular message, idea, or form of speech. Prohibited Activities: The activities listed belo w shall be prohibited in the following areas: an ywhere inside the Lindse y-Flanigan Courthouse, including courtrooms, corridors, hallw ays, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or road ways that connect public sidewalks and roads to Courthouse en trances or exits. This in cludes, but is not limited to, the Courthouse entrance plaza area s on the east and west sides of the Courthouse as depicted in the high lighted areas of the attached map. 1. Demonstrating; picketing; pr otesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct th at involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration; 2. Obstructing the clear passage, entry, or exit of law enforcement and emergency ve hicles and personnel,5 Courthouse personnel, and other persons having business with the courts through Co urthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds; 3. Erecting structures or other fa cilities, whether for a single proceeding or intended to re main in place until the conclusion of a matter; or plac ing tents, chairs, tables, or similar items on Courthouse gr ounds; except as specifically authorized in writing by administration; and 4. Using sound amplification eq uipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Orde r prohibited expressive activity highlighted in yellow (Restricted Areas).67 The Courthouse is bordered on its north si de by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have pub lic sidewalks running along the perimeter of the Cour thouse. Immediately to the eas t of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, wh ich is closed to traffic other than police vehicles. Elati Street runs through a larg e circular area (Main Plaza) between the Courthouse and the Van Cise-Simonet Dete ntion Center (Detention Center), which houses pretrial detainees. The Main Plaza c ontains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings. Of relevance to this appeal are the Restri cted Areas, which in clude an arc-shaped walkway and planter area immedi ately to the east of the Co urthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it inters ects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provi des access to the main entran ce on the east side of the Courthouse. Thus, the Restricted Areas enco mpass only the portions of the Plaza closest to the Courthouse. The Judicial District opposed Plaintiffs ’ motion for a preliminary injunction and, in doing so, defended the Order. In contrast, De nver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was “a public forum and any content-based regulati ons must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” It further8 acknowledged that Plaintiffs we re entitled to distribute jury nullification literature on the Plaza and pledged that Denver would not “arre st or otherwise charge Plaintiffs for handing out literature regardin g jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipa l Code when they are handing out their literature.” The Stipulation specif ically referenced the Judicial District’s Order, indicating Denver did not “intend to en force [the Order] as written and will only impos e content and viewpoint neutral reasonable time, place and ma nner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Pl aza if Denver determines that a compelling need exists to do so.” At the preliminary injunction hearing, the parties called onl y two witnesses. Plaintiffs called Commander Antonio L opez of the Denver Police Department. Commander Lopez described the Plaza as a p ublic “open space” mu ch like the city’s various parks. He testified that in the fi ve years since the Courthouse opened he has witnessed “more First Amendment activity take place in [the Pl aza] than [he] can recall.” Specifically, Commander Lopez described a variet y of protest activities “at one point . . . averaging about two or three a week” in the Plaza. He furt her testified that the Denver Police Department had never taken steps to st op protest activity in the Plaza, other than intervening if protesters became violent or otherwise broke the law. Relevant to this appeal, Commander Lopez testified that in hi s experience, the entire Plaza—including the Restricted Areas—has traditionally been used for First Amendment protest activities. On cross-examination, Commander Lopez acknowledg ed that the “majority” of the protests9 in the Plaza occurred closer to the Detention Ce nter, but that he had also seen protests directed at the Courthouse. The Judicial District called Steven Steadman, administrator of judicial security for Colorado. Mr. Steadman testified that th e Order was motivated by concern about anticipated protests of a verdict in a deat h penalty case being tried at the Courthouse. Mr. Steadman explained that he met with Chief Judge Martinez to discuss security concerns relating to that verdict and reco mmended the Judicial District adopt a policy similar to one recently implemented in Arap ahoe County during a nother high-profile capital trial. Mr. Steadman also testified about the design of the Plaza, incl uding the Restricted Areas. He indicated that the planters, grav el areas, and sidewalks were intentionally designed to “signal to the average user how to find their way, and where you should go and what the main travel ways are.” Mr. St eadman explained that the Patio and arced walkway’s “sole purpose is to allow people, the public, to en ter and exit the [Courthouse] without being interfered with.” But Mr. Steadm an also stated that, prior to imposition of the Order, protestors—including pamphleteers— were allowed to protest immediately in front of the doors to the Courthouse, provided th ey did not interfere w ith ingress or egress from the Courthouse. He explained that the “gen eral response” of protestors was to cease their activities when requested by Courthouse security not to interfere with public access to the Courthouse. Mr. Steadman further testif ied that no person had ever been arrested for blocking ingress or egress from the Courth ouse since it opened in 2010. Important to this appeal, Mr. Steadman ack nowledged that Plaintiffs’ activities of passing out jury10 nullification literature did not present “any security risk” be yond what had previously been tolerated without incide nt throughout the time the Co urthouse had been open. The district court also accepted a proffer of Plaintiffs’ testimony, indicating that their intent was to approach people entering the Courthouse to disc uss quietly the concept of jury nullification and to dist ribute their literature. Plainti ffs asserted that proximity to the front door of the Courthouse was key to their message beca use otherwise their intended audience—“people who are going to serv e or are in fact serving on juries”—will “very frequently just bypass th em” in the designated free speech zone by “walking on one of the sidewalks that is part of the [R estricted Areas].” By contrast, positioning themselves near the front d oor would allow Plaintiffs “to pass out literature to anyone who wants it” and “if people want to stop and talk about [it], they can then explain to them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order effectively prevented them from reaching their target audience . Finally, the district court accepted the parties’ jointly stipulated exhibits , which consisted of a series of images of the Plaza and Restricted Areas, as well as a copy of the Order. Following the evidentia ry hearing, the district court granted Plaintiffs’ request for a preliminary injunction. In doi ng so, the district court relied on Denver’s Stipulation that the Plaza was a public forum and the Judicial Di strict’s position that resolving the forum status was not necessary because the Order “w ould satisfy even the strictest test.” The district court concluded Plain tiffs had demonstrated a like lihood of success on the merits because, treating the Restricted Areas as public fora, the Order’s complete ban on11 expressive activity was not narrowly tailore d to accomplish a significant government interest. Accordingly, the district court entere d a carefully circumscribed preliminary injunction in favor of Plainti ffs. Specifically, the district c ourt enjoined en forcement of Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully seeking to distribute and/or orally advo cate the message contained in [Plaintiffs’ pamphlets]” in the Restricted Areas. But the di strict court expressly left the remainder of the Order in place. Following entry of the prelim inary injunction, the Judicial District moved to stay the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. In its motion to stay, the Judi cial District introd uced evidence that— subsequent to entry of th e preliminary injunction—prot esters had “descended on the Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior, including erecting canopies, harassing citizens se eking to enter the Courthouse, damaging the Courthouse landscaping, yelling and taunti ng court personnel, and posting signs in the planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the injunction was appropriate beca use protesters had been “em boldened” by the injunction to violate even the portions of the Order not subject to the injunction, thereby irreparably harming the Judicial District. The district cour t declined to stay the injunction, finding the Judicial District had not demonstrated a lik elihood of success on appeal because the harm identified was not caused by the injunction. The district court reasoned the Judicial District and Denver were free to enforce th e Order against the parties engaging in the12 complained-of disruptive behavior because su ch behavior was unlawful and not protected by the narrow injunction issued by the court w ith respect to Plainti ffs’ activities only. The Judicial District now appeals. Exerci sing jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.
II. DISCUSSION On appeal, the Judicial District raises tw o arguments. First, it asserts the district court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in establishing the Restricted Areas are public fo ra. Second, the Judicial District argues the district court incorrectly applied strict scru tiny when evaluating the Order. As a result, the Judicial District asks this c ourt to reverse the district court’s entry of the preliminary injunction and remand fo r further proceedings. We review the district court’s grant of a preliminary injunction for abuse of discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser , 747 F.3d 814, 822 (10th Cir. 2014). “A district court abuses its disc retion when it commits an error of law or makes clearly erroneous factual findings.” Id. A. Scope of Review Before addressing the merits of the parties’ arguments, we pause to clarify the scope of our review. The district court gran ted a narrow preliminary injunction drafted to address Plaintiffs’ First Amendment concerns related to their specific expressive activities. Although Plaintiffs as ked the district court to proh ibit enforcement of the entire Order, the court enjoined only the first paragr aph, which imposes a complete ban on First Amendment activities—picketing, pamphletee ring, protesting—within the Restricted13 Areas. The district court left in place the re st of the Order, incl uding the prohibitions against obstructing Courthouse entrances, erecting structures, and using sound amplification equipment in the Restricted Areas. The district court further limited the sc ope of the preliminary injunction by enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering activities. In fact, the court en joined enforcement of the Or der only as to Plaintiffs’ distribution and discussion of two specifically identified pamphlets. The Judicial District remains free to enforce the first paragraph of the Order— even against Plaintiffs—for all other First Amendment activities w ithin the Restricted Areas. Finally, the district court limited the geog raphic scope of the injunction. Although the Order prohibits First Amendment activity both inside and outside the Courthouse, the district court enjoined enfo rcement of Paragraph 1 as to Plaintiffs only outside the Courthouse, leaving the entirety of the Orde r intact within the Courthouse. And the district court did not enjoin enforcement of a ny part of the Order within those portions of the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the Order continues to prohibit all expressive activity in the planter boxes or other landscaping and in the gravel security areas. Accordingly, the features of the Restricted Area to which the preliminary injunction applies are limited to (1) the arced walkway running south from Colfax Avenue between the gravel security area (to the west of the walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at14 the main entrance on the east side of the Courthouse; 2 and (2) the Patio area at the main

entrance. 3 Our task in this appeal is to determine whether the district court abused its discretion when, based on the record before it at the preliminary injunction hearing , it issued this narrow, targ eted injunction. But the Judicial Dist rict asks us to consider events occurring after the preliminary injunction hearing to determine whether the district court abused its discretion in issuing the prelimin ary injunction. Specif ically, the Judicial District points to evidence intr oduced during the Rule 62(c) hearing on the motion to stay the injunction pending appeal, which indicated that following the injunction, protestors had engaged in a series of inappropriate and disruptive behaviors. Some of these behaviors included harassing c ourt personnel seeking to en ter the Courthouse, erecting canopies and signs, and trampling Courthouse landscaping. According to the Judicial District, these post-injunction events demons trate the “concrete concerns” motivating the creation of the Restricted Areas and therefore sh ould have been consid ered by the district

court.

2 As discussed, the Order’s prohibition on expressive activities in the planter and gravel security areas were not en joined by the district court. 3 The evidence presented about the geographic layout and physical features of the Restricted Area consisted prim arily of approximately fift een photographs. Because the record contains little testim ony about the photographs, we rely on our own review of them to describe the Restricted Areas. In pa rticular, it is unclear whether and to what extent the Restricted Areas include the side walk running along Fox Street on the west side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but counsel for the Judicial District conced ed at oral argument that it would be “constitutionally questionable” to prevent speech on a public si dewalk, and then indicated “[t]hat is precisely why the order here does not extend that far.” Therefore, we do not treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.15 Although we share the Judicial District’s concern about the disruptions created by some protestors following issu ance of the injunction, these post-injunction events are not relevant to our resolution of th is interlocutory appeal for tw o reasons. First, this evidence relates to events occurring after the preliminary injunction issued, and therefore none of it was presented to the district court at the hear ing. We will not hold that the district court abused its discretion based on eviden ce not before it when it ruled. See Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998) ( noting the general principle, in the context of de novo review of a summary judgment disposition, that we conduct our review “from the perspective of the district co urt at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the atten tion of the district court by the parties”); Theriot v. Par. of Jefferson , 185 F.3d 477, 491 n. 26 (5th Cir. 1999) (“An appellate court may not consider . . . fact s which were not before the district court at the time of the cha llenged ruling.”). Cf. Ambus v. Granite Bd. of Educ. , 975 F.2d 1555, 1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based on evidence not before the district court.”). Accordingly, our review is limited to the evidence before the district c ourt at the time of the prelim inary injunction hearing, and we will not consider post-injunction events. Second, even if we were to consider th e post-decision evidence, it would not alter our analysis. The evidence the Judicial Dist rict relies on to demonstrate the negative effects of the preliminary injunction, in fact , does not implicate the injunction at all. As discussed, the preliminary injunction enjoin s enforcement of Paragraph 1 of the Order specifically against Plaintiffs’ pamphleteering activities in ce rtain parts of the Restricted16 Areas. The district court expressly allowed the Judicial District to continue enforcing the entire Order as to all other parties and all other First Amendment activities in the Restricted Areas. Importantly, the preliminar y injunction does not affect the Judicial District’s ability to enforce th e Order against any protestors , including the Plaintiffs, who engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial District from taking action against protestors who obstruct Courthouse entrances, damage the Courthouse landscaping, or erect structures. All of this behavior remained prohibited by the Order after issuance of the injunction. In short, nothing in the preliminary injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to enforce the Order against anyone , including Plaintiffs, enga ging in such behavior. The evidence of post-injunction bad behavior of some protestors may be relevant on remand to a motion to modify the injunction 4 or to the district court’s ultimate decision on whether to issue a permanent injunc tion. But for the purposes of this appeal, we limit our review to the evidence before th e district court at the time it issued the preliminary injunction.
B. Abuse of Discretion We now turn our attention to the question of whether the district court abused its discretion when it issued th e preliminary injunction.

4 As the district court noted, the Judicial District did not move to modify the preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5) (allowing a party to obtain relief from a judg ment or order when “applying [the judgment or order] prospectively is no longer equitable”); Horne v. Flores , 557 U.S. 433, 447 (2009) (noting that under Rule 60(b)(5) “[t]he party seekin g relief bears the burden of establishing that changed circ umstances warrant relief”).17 To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the inju nction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest. Republican Party of N.M. v. King , 741 F.3d 1089, 1092 (10t h Cir. 2013). In the First Amendment context, “the lik elihood of success on the merits will often be the determinative factor” because of the semina l importance of the interests at stake. Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1114, 1145 (10th Ci r. 2013) (internal quotation marks omitted); see also Heideman v. S. Salt Lake City , 348 F.3d 1182, 1190 (10th Cir. 2003) (“[T]he loss of First Amendment free doms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). 1. The district court did not abuse its di scretion in finding th e second, third, and fourth factors weighed in Plaintiffs’ favor. Here, the district court found the second (irreparable harm), third (balance of equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the important First Amendment intere sts at stake. As an initial ma tter, the Judicial District has not challenged the district court’s determ ination as to these factors beyond a single footnote in its opening brief st ating it had challenged them be fore the district court. A party’s offhand reference to an issue in a fo otnote, without citation to legal authority or reasoned argument, is insufficient to pr esent the issue for our consideration. See San Juan Citizens All. v. Stiles , 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial District has waived any challenge to the distri ct court’s findings related to the elements of irreparable harm, the balance of equities, and th e public interest. But even if the Judicial18 District had properly challenged these factor s on appeal, we would nevertheless affirm the district court’s conclusion that they weigh in Plaintiffs’ favor. The Supreme Court has instructed that “[ t]he loss of First Amendment freedoms, for even minimal periods of time, unques tionably constitutes irreparable injury.” Elrod v.
Burns , 427 U.S. 347, 373 (1976); see also Awad v. Ziriax , 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional righ t is involved, most courts hold that no further showing of irreparable injury is nece ssary.”). There is no dispute that Plaintiffs’ pamphleteering constitutes First Amendment activity. See McCullen v. Coakley , 134 S. Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are First Amendment-protected activities). And the J udicial District does not dispute that the Order would bar Plaintiffs from engaging in th eir pamphleteering in the Restricted Areas. Accordingly, the district court did not abuse its discretion in finding that the factor of irreparable harm weighs in Plaintiffs’ favor. The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the district court, Plaintiffs proffered testim ony that the Order would substantially impair their ability to convey their intended message to their target audience because it would prevent Plaintiffs from appro aching potential jurors and engaging in a meaningful discussion of jury nullification. The distri ct court also heard testimony from Mr. Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one discussions with potential jurors did not presen t a security risk. And the Judicial District presented no evidence that Pl aintiffs’ activities otherwise interfered with Courthouse functions. On this record, the district cour t did not abuse its discretion in finding the19 balance of equities weighed in favor of Plaintiffs. See Awad , 670 F.3d at 1132 (“Delayed implementation of a [governmental] measur e that does not appear to address any immediate problem will generally not cause ma terial harm, even if the measure were eventually found to be cons titutional and enforceable.”). As to whether the preliminary injunction is in the public interest, we agree with the district court that “it is always in the public interest to prev ent the violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v. Pleasant Grove City , 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”). The district court did not abuse its discretion in finding the public intere st was served by issuing the preliminary injunction to prevent the violation of Plaintiffs’ First Amendment rights. Thus, we agree the second, third, and four th factors weigh in Plaintiffs’ favor. The only remaining question, then, is whether the di strict court abused its discretion in finding Plaintiffs demonstrated a like lihood of success on the merits. 5 Specifically, we must determine whether the Order viol ated Plaintiffs’ First Amendm ent right to distribute jury

5 The Tenth Circuit has modified the pre liminary injunction test when the moving party demonstrates that the second, third, an d fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’ n v. Int’l Registration Plan, Inc. , 455 F.3d 1107, 1113 (10th Cir. 2006). “In such situations, the moving party may meet the requirement for showing success on the merits by showing th at questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). But because we conclude the distri ct court did not abuse its disc retion in finding Plaintiffs demonstrated a likelihood of success on the meri ts, we need not decide whether this more lenient test applies.20 nullification pamphlets and engage in one-on- one conversations with individuals entering and leaving the Courthouse. 2. On this record, the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelih ood of success on the merits. To demonstrate a violation of their First Amendment rights, Plai ntiffs must first establish that their activities are pr otected by the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 797 (1985). If so, a court must identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities w ithin the forum. See id. Finally, courts must determine whether the proffered justifications for prohibiting speech in the forum satis fy the requisite standard of review. Id. We address each element in turn. a. Plaintiffs’ activities are prot ected by the First Amendment The Supreme Court recently reaffirmed that pamphletee ring and one-on-one communications are First-Ame ndment-protected activities. See McCullen , 134 S. Ct. at 2536. The Court “observed that one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse” a nd that “no form of speech is entitled to greater constitu tional protection” than leafletting. Id. (internal quotation marks and alteration omitted). The Court went on to state, “[w]hen the government makes it more difficult to en gage in these modes of communication, it imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’ activities are protected by the First Amendment.21 b. The district court did not abuse its discretion by assuming for purposes of analysis that the Restricted Areas are public fora To properly place the district court’s deci sion in context, we begin with a brief discussion of the significance of forum status to the protection afforded under the First Amendment to public speech on government property. We then review the argument presented by the Judicial District to the dist rict court regarding th e forum status of the Restricted Areas here. Because the Judicial Di strict either made a strategic decision to forgo any argument that the Restricted Ar eas are nonpublic fora, or inadequately presented that argument to the district court, we conclude the argument is waived. As a result, the district court did not abuse its di scretion by scrutinizing the Order under public forum analysis for purposes of th e preliminary injunction motion. Turning now to the constituti onal restrictions on speech, our analysis is guided by Plaintiffs’ wish to engage in First Am endment-protected activity on government property. “Nothing in the Co nstitution requires the Government freely to grant access to all who wish to exercise their right to free sp eech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius , 473 U.S. at 799–800. But in some instances, the public may have acquired by tradition or pr ior permission the right to use government property for expressive purposes. See id. at 802. To determine when and to what extent the Government may properly limit expressi ve activity on its property, the Supreme Court has adopted a range of constitutional protections th at varies depending on the nature of the government property, or forum. Id. at 800.22 The Court has identified three types of sp eech fora: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora are places that by long tradition have been open to public a ssembly and debate. See id. ; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45 (1983) (“At one end of the spectrum are streets and parks which ‘have imme morially been held in trust for the use of the public and, time out of mind, ha ve been used for purposes of assembly, communicating thoughts between citizens, an d discussing public questions.’” (quoting Hague v. Comm. for Indus. Org. , 307 U.S. 496, 515 (1939))). In these traditional public fora, the government’s right to “limit expres sive activity [is] sharply circumscribed.” Id. A designated public forum is public proper ty, not constituting a trad itional public forum, which the government has intentionally open ed to the public fo r expressive activity. Id. The government is not required to retain th e open character of the property indefinitely, but “as long as it does so, it is bound by th e same standards as apply in a traditional public forum.” Id. at 46. If the property is not a traditional public forum and it has not been designated as a public fo rum, it is a nonpublic forum. “Access to a nonpublic forum . . . can be restricted as long as the restrictions are ‘reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.’” 6
Cornelius , 473 U.S. at 800 (brackets omitted) (quoting Perry Educ. , 460 U.S. at 46).

6 Not relevant to this appeal, the Supr eme Court has also re cognized that the government can create a “limited public foru m” by allowing “selec tive access to some speakers or some types of speech in a nonpubl ic forum,” while not op ening “the property sufficiently to become a designated public forum.” Summum v. Callaghan , 130 F.3d 906, 916 (10th Cir. 1997) (citing Rosenberger v. Rector & Vi sitors of the Univ. of Va. , 515 U.S. 819, 829–30 (1995)).23 Because the nature of the forum dictates the standard of scrutiny with which restrictions on speech are reviewed, courts typi cally begin the analysis of a challenge to restrictions on speech involving government property by identifyi ng the nature of the forum involved. See, e.g. , Doe v. City of Albuquerque , 667 F.3d 1111, 1128 (10th Cir. 2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is, we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora to resolve this interlocutory appeal. Rather, our task is to determine whether the district court abused its discretion when it found, based on the evidence and arguments presented, that Plaintiffs had demonstrat ed a likelihood of success on the merits. See Atchison, Topeka & Sant a Fe Ry. Co. v. Lennen , 640 F.2d 255, 261 ( 10th Cir. 1981) (“It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in or der for a preliminary injunction to issue.”). Because the Judicial District waived any argument that the Restricted Areas are nonpublic fora, we conclude th e district court did not abus e its discretion by evaluating the Plaintiffs’ likelihood of success under th e scrutiny applicable to public fora. To explain our rationale for this conclusion, we track th e evolution of the Judicial District’s arguments in the district court re garding the forum status of the Restricted Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza, including the Restricted Areas, constitute s a traditional public forum. Denver also stipulated with Plaintiffs that the Plaza is a public forum. In response to the motion fo r preliminary injunction, the Judicial District claimed Plaintiffs were unlikely to prevail on the me rits of their First Amendment claim because24 “[i]rrespective of Denver’s vi ew of the courthouse plaza, it is not a traditional public forum. And even if it were, the [Order] comes nowhere near banning all expressive activity in that area. To the contrary, it is a reasonable time, place, and manner restriction.” But the Judicial District did not then provide any support for its assertion that the Plaza is not a public forum. Rather, it first claimed that Pl aintiffs lacked standing to challenge the Order and then continued its ar gument under the heading, “This Court need not decide whether the plaza is a traditional public forum for the purposes of this proceeding.” Under that heading, the Judicial District asserted that the Stipulation between the Plaintiffs and Denver did not bind the Judicial District or the district court and that therefore “[t]he status of the plaza is an open question.” But, again, rather than present argument on the correct forum status of the Plaza or ask the district court to reach a contrary conclusion, the Judicial District st ated the district court need not identify the precise forum status of the Restricted Areas “because [the Order] would satisfy even the strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct that the entire plaza is a traditiona l public forum,” and thus subj ect to a higher standard of review, the Order was constitutional as a reas onable time, place, and manner restriction. The Judicial District maintained this tact ical approach through oral argument on the motion for a prelim inary injunction. After the close of evidence at the heari ng on Plaintiffs’ motion for a preliminary injunction, the district court attempted to clarify the Judicial District’s position: THE COURT: In your briefing the Atto rney General took the position that it doesn’t matter whether the area in question is a public forum or a non-public forum area, because the Attorney General25 believes that you can establish the grounds necessary under the standards to appl y in either case. JUDICIAL DIST.: To be clear, our positi on is that this is not a public forum. However, that is a factually intensive question that I don’t think the Court has been presen ted with sufficient evidence to decide today. THE COURT: Well, I have a stipulation from the owner of the property that it is a public forum area. JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial District] or this Court. THE COURT: Well, that’s someth ing I need to decide, right? JUDICIAL DIST.: Not necessarily. THE COURT: Okay. But here’s what I am getting at. Your position is, whether it’s public or non-pub lic, you believe that the . . . Plaza Order . . . is suff iciently narrowly tailored to meet the concerns of ingress and egress to the courthouse and threat to the public safety. Is that your position?
JUDICIAL DIST.: Yes . Our position is that the orde r satisfies time, place, and manner requirements. . . . The discussion then proceed ed under the assumption th at the Order impacted a public forum and therefore had to be narrowl y tailored. Recall that the government has broad discretion to restrict expressive activ ity in a nonpublic fo rum, irrespective of whether the restrictions are narrowly tailored. Perry Educ. , 460 U.S. at 46. But, as will be discussed in more detail below, even content- neutral restrictions on speech in a public forum—whether a traditional public forum or a designated public forum—must be narrowly tailored to advance a significant government interest. See id. at 45–46.26 Consistent with its acquiescence to the di strict court’s application of a public forum analysis at the prelimin ary injunction stage, the Judici al District limited its oral argument on the motion for preliminary injunc tion to the proper definition of “narrowlytailored.” Tellingly, the Judicial District pr ovided no argument relevant to whether the Restricted Area was, in fact, a public forum, or that the restrictions did not have to be narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial District conceded that the evidence was insuffi cient to allow the district court to determine the forum status of the Restricted Areas. But it claimed the district court could proceed to the merits under a public forum analysis neve rtheless, because the result would be the same whether the Restricted Area s were public or nonpublic fora. That is, the Judicial District argued th e district court could assume for purposes of analysis that the Restricted Areas are public fora. And the district court did as suggested in its Order Granting Motion for Pre liminary Injunction. In the Preliminary Injunction Order’s disc ussion of the likelihood that Plaintiffs will succeed on the merits, the district court discussed foru m in a section titled, “Is the Courthouse Plaza a Public Forum?” In this se ction, the district court considered the significance of the nature of th e forum, the disagreement between Denver and the Judicial District on that issue, and the Stipulati on between Denver and Plaintiffs that the Restricted Areas are public fora. Relying in part on the Stipulation, the district court concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a tr aditional public forum.” Bu t the district court also notes “the Second Judicial District has not specifically argued for a finding that the27 Courthouse Plaza is a nonpublic forum. Rather, it says that ‘re solving [the type of forum at issue] is not necessary fo r the purposes of this procee ding because the [Plaza Order] would satisfy even the strictest test.’” Our review of the record is consistent w ith the district court’s assessment of the Judicial District’s argument. During the brie fing and argument to the district court in opposition to Plaintiffs’ moti on for preliminary injunction, the Judicial District never provided legal argument supporting its concluso ry statement that the Restricted Areas are nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open question the district court ne ed not decide, and further conceded it was a question the district court could not decide based on the evidence presen ted. In sum, the Judicial District made the strategic decision to accept Plaintiffs’ characterization of the Restricted Areas as a public forum for purposes of analysis and to present only an argument that the Order is constitutional under the scrutiny applicab le to restrictions of speech in public fora. And the Judicial District maintained that position throughout the district court proceedings. The Judicial District filed a motion in th e district court to stay the injunction pending appeal, in which it st ated “courthouse plazas are not traditional public fora,” and cited, without further analysis, Hodge v. Talkin , 799 F.3d 1145 (D.C. Cir. 2015), a new decision at the time holding the plaza of th e Supreme Court building is not a public forum. But again, the Judicial District did not seek a ruling that th e Restricted Areas are nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its earlier strategy, the Judicial District argued th at “even if the [Courthouse Plaza] were a28 traditional public forum,” the district c ourt applied the wrong level of scrutiny. Significantly, the Judicial District never clai med it could bar or reas onably restrict speech in the Restricted Areas because they were nonpublic fora; it argued the district court had erred because “[s]trict scru tiny applies only to content- based restrictions on speech in a public forum .” For the first time on appeal, the Judicial District provides substantive argument for the claim that the Restricted Areas are nonpub lic fora and, therefore, the district court should have considered only whether the content-neutra l restrictions contained in the Order were reasonable. When a party pursues a new legal theory for the first time on appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am. , 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a part y may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”). As noted, the Judicial District was aware of the “open question” with respect to the forum status of the Restricted Areas but made the strategic decision to forgo presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion for preliminary injunction filed with the district court, the Judicial District cited three cases in support of its statement that the forum question remains open. But it provided no argument incorporating those decisions into a cogent legal analysis of the Restricted Areas as nonpublic fora. See United States v. Wooten , 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such i ssues adverted to in a perfunctory manner, unaccompanied by some effort at develope d argumentation.” (internal quotation marks29 omitted)). And although forum status is a fact-i ntensive inquiry, the Judicial District failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P. 28(a)(8)(A) (providing that appellant’s opening brief mu st contain an argument section that includes “appellant’s contentions and th e reasons for them, with citations to the authorities and parts of the record on which the appella nt relies”). Thus, the Judicial District has waived this issue, at least for purposes of our review of the preliminary injunction order. Richison , 634 F.3d at 1127 (explaining that if a party intentionally chooses not to pursue an argum ent before the district court, “we usually deem it waived and refuse to consider it”). 7 And the forum status issue is not properly before us even if we generously conclude the Judicial District presented alternative arguments to the district court that (1) the Restricted Areas are not public fora; or (2) even if the Restricted Areas are public fora, the Order can su rvive the applicable level of scrutiny. Although the Judicial District pr esented cogent legal argument on the second issue, it failed to present reasoned argum ent on the first to the district court. See Ark
Initiative v. U.S. Forest Serv. , 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the

7 Even if this argument had been merely forfeited, it would nevertheless be an inappropriate basis for reversal because the Judicial District has not argued plain error. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure to do so—the failure to argue for plain erro r and its application on appeal—surely marks the end of the road for an argum ent for reversal not first presen ted to the district court.”). Nor are we inclined to exercise our discretion to consid er the forum status issue despite the failure to raise it to the di strict court because we agree w ith the Judicial District that the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz , 800 F.3d 1231, 1244–45 (10th Cir. 2015) (exe rcising discretion to consider forfeited argument on “clearly established” prong of qualified immunity).30 “scant discussion” of an issue in the district court “appear[e d] as an afterthought, and [did] not meet the standard for pr eserving an issue for review”). Our conclusion that the Judicial District fa iled to adequately pr esent this issue to the district court is further suppo rted by the district court’s vi ew that “the Second Judicial District ha[d] not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum.” Id. (“Not surprisingly, the district c ourt never addressed” the issue.). Accordingly, the argument that the Restricted Areas are nonpub lic fora was waived either by the Judicial District’s strate gic decision not to present it, or by the Judicial District’s failure to adequately brief the issue. As such , the district court’s application of a public forum analysis is not a leg itimate ground on which to reverse the preliminary injunction order. We now address the only other challenge the Judicial District makes to the preliminary injunction: that the district cour t abused its discretion by applying the wrong test, even if the Restricted Areas are public fora. c. The district court did not apply th e wrong standard to the content-neutral restrictions imposed by the Order Having determined the district court di d not abuse its disc retion by treating the Restricted Areas as public fora for purposes of analysis, we next consider whether the district court abused its discretion when it f ound Plaintiffs had demonstrated a likelihood of success on the question of whether the Orde r violated their constitutional rights under31 the relevant First Amendment standards. 8 In a public forum, the government cannot ban all expressive activity. Perry Educ. , 460 U.S. at 45. But even in a public forum, the government can restrict spee ch through “content-neutral time, place, and manner restrictions that: (a) serve a significant gove rnment interest; (b) are narrowly tailored to advance that interest; and (c) leave open am ple alternative channels of communication.”
Doe , 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Summum , 555 U.S. at 469. The Judicial District argues the district court abused its disc retion by applying an incorrect legal standard. Specif ically, the Judicial District contends the district court applied the stringent strict scrutiny analysis reserved for content-based restrictions. And because the Order imposes only c ontent-neutral restrictions, the Judicial District claims this was an abuse of discretion. Although we agree the restrictions are content-neutral, we are not convinced the district court applied the more stringent standard applicable to content-based restrictions. The district court explained that under the relevant standard, “[t]he state may . . . enforce regulations of the time, place, and manner of expression which [1] are contentneutral, [2] are narrowly tailored to serve a si gnificant government interest, and [3] leave open ample alternative channels of communicati on.” On its face, then, the district court

8 “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrict ions in a traditional public forum.” Pleasant Grove City v. Summum , 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the Restricted Areas are considered tr aditional or designated public fora.32 appears to have invoked th e correct legal standard. Cf. Doe , 667 F.3d at 1130–31 (same). Nevertheless, the Judicial District argues that in considering whether the restrictions are “narrowly tailored,” the district court in appropriately applied the more demanding standard applicable to c ontent-based regulations. The term “narrowly tailored” appears in the tests for both content-based and content-neutral regulations on speech. See Doe , 667 F.3d at 1130–31 (indicating a content-neutral regulation must be “narrowly tailored” to advance a significant government interest); Pleasant Grove , 555 U.S. at 469 (stating that content-based restrictions “must be narrowly tailored to serve a compelling government interest”) (emphasis added)). And, as th e Judicial District correctly notes, there are subtle differences in the way courts apply the conc ept of narrow tailoring in the two contexts. For the purposes of a content-neutral regulati on, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regula tion, and does not burde n substantially more speech than is necessary to further the government ’s legitimate interests.” Wells v. City & Cty. of Denver , 257 F.3d 1132, 1148 (10th Cir. 2001 ) (ellipsis and internal quotation marks omitted). In contrast, a content-based restriction is na rrowly tailored only if it is the least restrictive means of achieving the government’s compelling objective. See Ashcroft v. ACLU , 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc. , 529 U.S. 803, 813 (2000). According to the Judicial District, the dist rict court considered alternatives to the Order that might have been em ployed to achieve the Judici al District’s objectives, and33 such consideration proves the district court a pplied the “least restri ctive means” standard. In the Judicial District’s view, any inquir y into alternative me ans of achieving the government objective is inappropriate where, like here, the restrictions are contentneutral, rather than content-based, and thus not subject to the least restrictive alternative form of narrow tailoring. We disagree. The Supreme Court has not discouraged courts from considering alternative approaches to achieving th e government’s goals when determining whether a contentneutral regulation is narrowly tailored to advance a significant government interest. Although the Court has held that a content- neutral regulation “need not be the least restrictive or least intrusive means of serv ing the government’s interests,” it has also explained that “the governme nt still may not regulate expression in such a manner that a substantial portion of the bu rden on speech does not se rve to advance its goals.” McCullen , 134 S. Ct. at 2535 (internal quotati on marks omitted). And when considering content-neutral regulations, the Court itself ha s examined possible a lternative approaches to achieving the government’s objective to determine whether the government’s chosen approach burdens substantially more speech th an necessary. Id. at 2537–39. That is, the government may not “forgo[] options that coul d serve its interests just as well,” if those options would avoid “substantially burdening the kind of speech in which [Plaintiffs’] wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must enact all or even any of the proposed [alternative approaches]. The point is instead that the [government] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and34 debate.”). Thus, “[t]o meet the requirement ofnarrow tailoring [in the context of contentneutral regulations], the government must de monstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540. As a result, we cannot conclude the distri ct court applied the wrong legal standard merely because it considered whether the Judi cial District had options other than the complete ban on speech contained in Paragra ph 1 of the Order that would equally serve its interests. We now turn our attention to whether, under the standard applicable to content-neutral regulations in a public forum, the district court abus ed its discretion when it found Plaintiffs had demonstrated a like lihood of success on th e question of whether the Order survives co nstitutional scrutiny. d. The district court did no t abuse its discretion by conc luding that Pl aintiffs were likely to succeed on the merits As discussed, for purposes of the pre liminary injunction anal ysis, the Judicial District acquiesced in the district court’s acc eptance of Plaintiffs’ characterization, and Denver’s Stipulation, that the Restricted Ar eas are public fora. Under that assumption, we can easily conclude the district court did not abuse its discretion in finding Plaintiffs were likely to succeed on their claim th at a complete ban of their expressive activities violates the First Amendment. Our resolution of this issue is informed by the Supreme Court’s recent decision in McCullen , which is highly analogous.
In McCullen , the Supreme Court considered th e constitutionality of a state law creating thirty-five-foot buffer zones around th e entrances of facilities where abortions35 are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to women outside such facilities— to engage in “sidewalk co unseling”—in an attempt to dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the McCullen plaintiffs away from their preferred positions outside the clinics’ entrances, thereby hampering their side walk counseling efforts. Id. at 2527–28. The McCullen plaintiffs brought suit, arguing the buffer z ones restricted their First Amendment rights and seeking to enjoin en forcement of the statute creating the buffer zones. Id. at 2528. After the First Circuit upheld the statute as a reasonable content-ne utral time, place, and manner restriction, the Suprem e Court granted certiorari. Id. The Court began its analysis by recogniz ing that the buffer-zone statute operated to restrict speech in traditional pu blic fora: streets and sidewalks. Id. at 2529. It then held the buffer-zone statute was a content-neutral restriction because violations of the act depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed, petitioners can violate the Act merely by standi ng in a buffer zone, without displaying a sign or uttering a word.”). The Court then proc eeded to apply the test for content-neutral restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs had not challenged the significance of the gov ernment’s asserted interests, the Court’s analysis largely focused on the question of whether the st atute was narrowly tailored to serve that interest. The Court noted the buffer zones placed se rious burdens on the plaintiffs’ speech activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet,36 one-on-one conversations abou t abortion and distributing literature, the buffer zones “operate[d] to deprive petitioners of their two primary methods of communicating with patients.” Id. at 2536. Although the First Amendmen t does not guarantee a right to any particular form of speech, the Supreme Court explained that some forms of speech—oneon-one conversation and leafletting on public sidewalks—“have histor ically been more closely associated with the tran smission of ideas than others.” Id. The Court held that “[w]hen the government makes it more difficu lt to engage in [one-on-one communication and leafletting], it imposes an especially significant First Amendment burden.” Id. The Court also rejected the idea that th e buffer zones were constitutional because they left ample alternative channels for communication. Id. at 2536–37. In McCullen , the size of the buffer zone made it difficult to di stinguish persons headed to the clinic from passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at 2535. As a result, the plaintiffs were often forced to raise their voices from outside the buffer zone once they identif ied the clinic patients, thereby forcing a mode of communication contrary to their compassi onate message and preventing them from distributing pamphlets. Id. at 2535-36. Where the plainti ffs wished to engage in quiet conversations with women seeking abortions and not in noisy protest speech, the Court held it was “no answer to say that petitione rs can still be ‘seen and heard’ by women within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirtyfive foot buffer zones had “effectively s tifled petitioners’ messag e” by prohibiting the plaintiffs’ chosen means of communication. Id.37 Finally, the Court held the buffer zones bu rdened substantially more speech than necessary to achieve the state’ s asserted interests in public safety, preventing harassment of women and clinic staff seeking entrance to clinics, and preventing deliberate obstruction of clinic entrances. Id. Although the Court acknowledged the importance of these interests, it determined the state’s chosen method of achieving them—categorically excluding most individuals from the bu ffer zones—was not narrowly tailored. Id. at 2537–41. That is, the Court he ld the government had not demonstrated “that alternative measures that burden substantially less spee ch would fail to achieve the government’s interests.” Id. at 2540. In so doing, the Court e xpressly rejected the argument that the government could choose a particular means of achieving its interests merely because that method was easier to administer. Id. Here, the Order imposes substantially si milar restrictions on Plaintiffs’ First Amendment activities as the buffer-zone statute did in McCullen . Specifically, the Order imposes a categorical ban on First Amendment activity within the Rest ricted Areas. This ban effectively destroys Plaintiffs’ ability to engage in one-on- one communication and leafletting within the Restricted Areas. And the record is si lent on whether Plaintiff could adequately identify and thereby engage in their preferred method of communication before the public entered the Restricted Ar eas. Where the district court’s preliminary injunction analysis was based on a public forum analysis a nd the record does not contain facts to distinguish McCullen , we cannot conclude that th e district court abused its discretion in finding that the Plaintiffs are lik ely to succeed on the merits of their First Amendment claim.38 Moreover, the Judicial District’s assert ed interests in banning First Amendment activity in the Restricted Area s are largely identical to the government interests asserted
in McCullen : unhindered ingress and eg ress and public safety. See id. We agree these interests are legitimate. But on this record at least, the district court did not abuse its discretion in concluding the means chosen to achieve those inte rests—a total ban on expressive activity—is not narrowly tailored, as even content-neutral regulations in a public forum must be. 9 In summary, the district court did not abus e its discretion by analyzing the issues at the preliminary injunction stage as if th e Restricted Areas were public fora, or by considering alternative means of achieving the governmental interests in determining whether the Order is narrowly tailored to serve a significant government interest. Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to prevail on their claim that th e complete prohibition of Plai ntiffs’ plans to distribute pamphlets to people in a pub lic forum is unconstitutional. See United States v. Apel , __ U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘a bility to permissibly restrict expressive conduct is very limited.’” (quoting United States v. Grace , 461 U.S. 171, 177 (1983)).

9 This is not to say that the Judicial Di strict cannot impose content-neutral time, place, and manner restrictions that are na rrowly-tailored to advance the significant interests it identifies. Indeed, several of th e provisions contained in the Order were not enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use of sound amplification equipment. This type of content-neutral rest riction has long been upheld. See Ward v. Rock Against Racism , 491 U.S. 781, 796–97 (1989).39 Nevertheless, because the question of the fo rum status of the Restricted Areas will remain central to the district court’s perm anent injunction analysis on remand, we now address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l Corp. , 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions of law raised in this appeal that are certain to arise again . . . in order to guide the district court on remand.”). In doing so, we express no op inion as to the merits of that question. C. Issues on Remand To determine whether a permanent injunction should be granted, the district court must reach a final decision on the First Am endment issues in this case. Because the relevant First Amendment test varies accordi ng to the nature of the forum involved and because the Judicial District will presumably contest Plaintiffs’ characterization of the Restricted Areas as public fora, the district court is required to first determine the forum status of the Restricted Areas. In resolv ing this question, the parties must present evidence, and the district court must enter fa ctual findings supporting its conclusion, that each of the Restricted Areas constitutes a tr aditional public forum, a designated public forum, or a n onpublic forum. See, e.g. , Huminski v. Corsones , 396 F.3d 53, 90–92 (2d Cir. 2004) (separately consid ering the forum status of state courthouses, court lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct. , 303 F.3d 959, 966–68 (9th Cir. 2002) (conclu ding plaintiffs were likely to succeed on First Amendment challenge to rule restricting expressive clothing in municipal complex, including courtrooms, because the rule “does not diffe rentiate between courtrooms and other public areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 740 (2008); United States v. Gilbert , 920 F.2d 878, 884 (11th Cir. 1991) ( Gilbert I ) (holding portions of courthouse grounds were designated public fora , while other parts of the grounds were nonpublic fora). We summarize the relevant precedent on these issues now in an attempt to aid the district court and th e parties in this task on remand. In addition, we provide some limite d guidance to the district court and the parties on the tension between the Judicial District and Denver over the appropriate use of the Restricted Areas. 1. Traditional Public Fora The Supreme Court has long recognized “tha t public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United States v. Grace , 461 U.S. 171, 177 (1983) (internal qu otation marks omitted); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora those spaces that “time out of mind[] ha ve been used for pur poses of assembly, communicating thoughts between citizens, and discussing public questions”). Here, the Restricted Areas include the ar ced walkway that runs from the corner of Elati Street and Colfax Avenue in a curv ed path across the front of the Cour thouse to the Pa tio in front of the main entrance to the Courth ouse. The inclusion of this ar ea raises at least a question concerning its status as tr aditional a public forum. The Supreme Court has also cautioned, howe ver, that not all streets and sidewalks are traditional public fora. See United States v. Kokinda , 497 U.S. 720, 727 (1990) (discussing a postal sidewalk “c onstructed solely to provide for the passage of individuals engaged in postal business” from the pa rking area to the post office door); Greer v.41 Spock , 424 U.S. 828, 835–37 (1976) (speech rest rictions on a military reservation that contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are highly relevant to the inquiry. See Grace , 461 U.S. at 179–80. “The mere physical characteristics of the propert y cannot dictate” the outcome of the forum analysis. Kokinda , 497 U.S. at 727. Rather, “the locat ion and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728–29. The Supreme Court’s discussion in Grace is likely to be of particular relevance on remand. In Grace , the Court considered whether a fe deral statute prohibiting expressive activities on the Supreme Court’s grounds could be constitutionally applied to the adjacent public sidewalks. 461 U.S. at 17 2–73. The Court found the public sidewalks along the perimeter of the gr ounds were physically indis tinguishable from other public sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds th at they have entered some special type of enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee , 505 U.S. 672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing [on whether it is a traditiona l public forum] because separation from acknowledged public areas may serve to indicate that the se parated property is a special enclave, subject to greater restriction.”). In the absence of some physical distinction between typical public sidewalks and the sidewalks making up the perimeter of the Court grounds, the Court in Grace held the perimeter sidewalks were traditional public fora, subject only to42 those restrictions normally allowe d in such spaces. 461 U.S. at 180. Thus, on remand here, the district court must determine wh ether the evidence suppo rts a finding that the arced walkway is physically distingui shable from other public sidewalks. But the physical simila rity to public sidewalks is not alone determinative of these sidewalks’ forum status. In Kokinda , the Supreme Court held th at a sidewalk owned by and in front of a United States Post Office wa s not a traditional public forum, despite the fact that it was physically identical to a public sidewalk across th e parking lot from the post office entrance. 497 U.S. at 727. The Cour t reasoned the post office sidewalk did not share the characteristics of a sidewalk open to th e public at large. Al though the public sidewalk formed a public passageway that serv ed as a general thoroughfare, in contrast, “the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on remand should be focused on the physical ch aracteristics and the intended and actual use of any sidewalks included in the Restricted Areas. Importantly, the mere fact a sidewalk a buts a courthouse or its grounds is not determinative of the forum status of the sidewalk. 10 The Grace Court expressly rejected

10 The cases relied on by the Judicial District do not support the blanket proposition that all courthouse grounds are automatically n onpublic fora merely because they physically abut a courthou se. Rather, these cases first conclude the grounds are not a traditional public forum and th en carefully consider the ph ysical characteristics of the government property, as well as the prior use of that property for expressive activities, to determine its forum status. See Huminski v. Corsones , 396 F.3d 53, 90–92 (2d Cir. 2004) (holding courthouses were nonpublic fora where buildings housin g the courts had not been traditionally open to the public for expressive activ ities and such ac tivities inside the43 the idea that a traditional public forum coul d be transformed into a nonpublic forum merely because of its physical proximity to government property. 461 U.S. at 180. The Court stated [t]raditional public forum property occupies a specia l position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a fo rum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory defin ition of what might be considered a non-public forum parcel of property. Id. ; see also Rodney A. Smolla, 1 Smolla & Ni mmer on Freedom of Speech § 8:32 (“With the development of modern public foru m doctrine, courts in creasingly have come to recognize that they are not immune from the rules set do wn for other public property.”). In Grace , the Supreme Court concluded, “[w]e are convinced . . . that the [statute], which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient ne xus with any of the public in terests [asserted].” 461 U.S. at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not determinative alone of its forum status

.

courthouse would likely be incompatible w ith the purposes the courthouse serves); Sammartano v. First Judicial Dist. Ct. , 303 F.3d 959, 966 (9th Cir. 2002) (holding civil complex, including courts and public offices had not “by long trad ition or by government fiat” been open to public expression and agr eeing with parties that it was a nonpublic forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7 (2008). See also United States v. Gilbert ( Gilbert I ), 920 F.2d 878, 884–85 (11th Cir. 1991) (considering prior expressive activitie s on different areas of court grounds and holding some portions had been designated as public fora, while other parts of the grounds were nonpublic fora).44 The district court will also be required to decide the forum status of the Patio before it can apply the proper standard to restrictions on expressive activity in that Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to the question of whether the plaza in front of the Supreme Court was a traditional public forum. See Hodge v. Talkin , 799 F.3d 1145, 1 158 (D.C. Cir. 2015), petition for cert. filed , 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The cour t’s analysis focused on the plaza’s physical characteristics, emphasizing the architectural integration of the plaza with the Supreme Court building itself, as well as the physical separation between the plaza and the perimeter sidewalks. Id. at 1158–59. In particula r, the D.C. Circuit relied on evidence that the Supreme Court plaza is elev ated from the public sidewalk by a set of marble steps that contrast with the public sidewalk, but match the steps leading to the entrance of the Supreme Court building. It also relied on evidence that the plaza is surrounded by a low wall that matches the wall surrounding the Supreme Court building. Id. at 1158. According to the court, a visito r would be on notice that the pathway to the Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza indicated an intentional separation from the surrounding sidewalks and because the plaza had not traditionally been a spac e open for expressive activities, the D.C. Circuit held the Supreme Court plaza was a nonpublic forum. Id. at 1159–60. Here, the parties should present evidence and the district court should make findings about the physical characteristics of the arced walkway and Patio, with attention to the ways in which each is distinguished from public sidewa lks and the public areas of the Plaza. Specifically, the district court shoul d consider whether it wo uld be apparent to45 a visitor that by entering th e Patio he is entering an enclave connected with the Courthouse and whether the use of the arced walkway is limited to courthouse ingress and egress. 2. Designated Public Fora If the district court finds that one or more of the Restricted Areas is not a traditional public forum, it must next cons ider whether the Rest ricted Area has been nevertheless designated as public fora. The Supreme Court has explained that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum , 555 U.S. 460, 469 (2009) (holding that placement of certain privately donated perm anent monuments in public park while rejecting others constituted gov ernment, not public, speech ). To create a designated public forum, “the government must make an affirmative choice to open up its property for use as a public forum.” United States v. Am. Library Ass’n, Inc. , 539 U.S. 194, 206 (2003) (holding that library’s provision of internet access did not open a designated public forum, but was offered as a technol ogical extension of its book collection). The Court has further cautioned that “[t]he gove rnment does not create a public forum by inaction or by permitting lim ited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund , 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate Veterans, Inc. , ___ U.S. ___, 135 S. Ct. 2239, 2249– 50 (2015) (holding that Texas did not intentionally open its license plates to public discourse). Thus, the government’s46 intent is the focus of this inquiry. See Cornelius , 473 U.S. at 802; see also Gen. Media Commc’ns, Inc. v. Cohen , 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App. LEXIS 40571, *15 (March 25, 1998). The Supreme Court has further instructed that it “will not find that a public forum has been created in the face of clear evidence of a contrary in tent, nor will [it] infer that the government intended to create a public fo rum when the nature of the property is inconsistent with expressive activity.” Cornelius , 473 U.S. at 803. If the “principal function of the property would be disrupted by expressive ac tivity,” the Supreme Court is “particularly reluctant” to conclude the go vernment designated it as a public forum. Id. at 804. Consequently, pr ohibitions on speech within a co urthouse have been routinely upheld. 11 See, e.g. , Hodge , 799 F.3d at 1158 (upholding statute banning expressive activities within Supreme Court building); Mezibov v. Allen , 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum.”); Huminski , 396 F.3d at 91 (collecting cases and holding that the interior of a courthouse is not a public forum); Sefick v. Gardner , 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a traditional public forum or a de signated public forum, not a place open to the public for the presentation of views. No one can hold a political rally in the lobby of a federal courthouse.”); Berner v. Delahanty , 129 F.3d 20, 26 (1st Ci r. 1997) (holding that courtroom is a nonpublic forum).

11 The preliminary injunction here does not enjoin the Order’s restrictions on speech within th e Courthouse.47 Under facts similar to those here, the Se venth Circuit held the plaintiffs had no First Amendment right to distri bute jury nullification pamphlets in the lobby of the county courthouse. Braun v. Baldwin , 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs] have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instruc tions.” (emphasis added)). See also United States v. Ogle , 613 F.2d 233 (10th Cir. 1979) (upholding convicti on for jury tampering where the defendant, who did not raise a First Am endment defense, attempted to have jury nullification literature delivered to a ju ror in a pending case). Although there is little doubt the interior of a courthou se is a nonpublic forum, the forum status of a courthouse’s exterior is dependent upon the unique facts involved. Compare Grace , 461 U.S. at 182 (acknowledging “n ecessity to protect persons and property or to maintain proper order and decorum within the Su preme Court grounds,” but striking as unconstitutional a ban on ex pressive activities on abutting sidewalks), with
Cox v. Louisiana , 379 U.S. 559, 562–64, 572–74 ( 1965) (upholding statute prohibiting demonstration outside a courthouse intended to affect the outcome of pending criminal charges, but reversing defendant’s conv iction pursuant to the statute under the circumstances). In determining whether the g overnment “intended to designate a place not traditionally open to assembly and debate as a public forum,” the Supreme Court “has looked to the policy and practi ce of the government and to th e nature of the property and its compatibility with expressive activity.” Walker , 135 S. Ct. at 2250 (internal quotation marks omitted).48 Applying these principles, the Eleventh Circuit reached contrary conclusions regarding different portions of the grounds of a federal building housing a federal district court and federal agencies. Gilbert I , 902 F.2d at 884. In Gilbert I , the plaintiff challenged an injunction prohibiting him from using the federal building as his home and from engaging in certain expressive activitie s in and around the building. The ground level of the federal building included an inte rior lobby and, outside the lobby doors, a covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered plaza had been designated as a public foru m. In contrast, it determined the covered portico area was not a public forum. In reachi ng that conclusion, the court relied in part on the district court’s finding that the Go vernment Services Agency (GSA) had an unwritten policy of excluding de monstrators from the covered portico. Although there was evidence demonstrators had occasionally us ed the portico during protest activities, the Eleventh Circuit relied on the district court’s finding that these were “isolated instances of undiscovered violations” of the GSA policy and not the intentional “opening of a nontraditional forum for public discourse.” 12 Id. at 884–85.

12 After the Eleventh Circuit i ssued this decision, an unre lated security issue caused the GSA to place a row of planters across th e uncovered plaza and to issue a statement limiting the public forum to the area between the planters and the public street. Mr. Gilbert again sued and the circ uit court upheld the district c ourt’s ruling that the GSA had effectively withdrawn the area between th e planters and the building previously designated as a public forum. See United States v. Gilbert ( Gilbert III ), 130 F.3d 1458, 1461 (11th Cir. 1997) (“The government is no t required to retain indefinitely the open character of a facility.”). Between Gilbert I and Gilbert III , the Eleventh Circuit upheld Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States v. Gilbert ( Gilbert II ), 47 F.3d 1116, 1117 (11th Cir. 1995).49 As the decision in Gilbert I demonstrates, the issue of whether an area associated with a courthouse has been de signated as a public or nonpub lic forum is highly dependent on the evidence of the government ’s intent to open the area to public speech. That intent can be established by the gove rnment’s policy statements, 13 affirmative actions by the government to designate the area as a public forum, 14 stipulation, 15 the compatibility of expressive activity with the prin cipal function of the property, 16 and whether and the frequency with which public speech has been permitted in the forum. 17 To avoid post hoc

13 Church on the Rock v. City of Albuquerque , 84 F.3d 1273, 1276-77 (10th Cir. 1996) (relying on senior citizen center policie s to determine forum status of senior centers); Paulsen v. County of Nassau , 925 F.2d 65, 69 (2d Cir. 1 991) (relying on county charter and local law as indicia of county’s in tent to dedicate coliseum to a broad array of public and expressive purposes); Gilbert I , 920 F.2d at 884 (relying on unwritten GSA policy banning demonstrations from the covered portico). 14 Church on the Rock , 84 F.3d at 1278 (holding that senior centers were designated as public fora because the city ha d “permitted lectures a nd classes on a broad range of subjects by both members and non-members”); Huminski , 396 F.3d at 91 (holding courthouse parking lot is not a pub lic forum because ther e was no evidence the government did anything to designate it as such). 15 Grider v. Abramson , 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on stipulation of the parties that c ourthouse steps are a public forum).
16 Paulsen , 925 F.3d at 70 (holding that coliseu m grounds are a public forum, in part, because the property can accommodate a wide variety of expressive activity without threatening the government function of the facility); Greer v. Spock , 424 U.S. 828, 835– 37 (1976) (holding military reserv ation is not a public forum); Adderley v. Florida , 385 U.S. 39, 47 (1966) (same as to jailhouse). 17 Widmar v. Vincent , 454 U.S. 263, 267-68 (1981) (holding university’s policy of accommodating student meetings created a forum generally open for student use); Paulsen, 925 F.3d at 70 (“The grounds of the Co liseum have been used for parades, political rallies and speeches, re ligious weddings and circuses. . . . Routinely, banners have been displayed by patrons . . . . Si gnificantly, . . . many groups, including war veterans, the Christian Joy Fe llowship and the Salvation Ar my, were regularly permitted to solicit contributions or distribute literature.”); Gilbert I , 920 F.2d at 884 (holding that unenclosed plaza of a federal building that houses courtrooms has been opened by the government as a public forum because “[ d]emonstrations occur there on a frequent50 justification for a desire to suppress a par ticular message, courts have considered the government’s statement of policy in light of the government’s actual practice. Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi. , 45 F.3d 1144, 1 153–54 (7th Cir. 1995) (“[A] court must examine the actua l policy—as gleaned from the consistent practice with regard to various speakers—to determine whether a state intended to create a designated public forum.”); Hays Cty. Guardian v. Supple , 969 F.2d 111, 117–18 (5th Cir. 1992) (“[T]he government’s policy is indi cated by its consistent practice, not each exceptional regulation that departs from the c onsistent practice.”). Accordingly, forum status is an inherently fact ual inquiry about the government ’s intent and the surrounding circumstances that requires the district court to make detailed factual findings. See Stewart v. D. C. Armory Bd. , 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that “identifying the government’s intent . . . raises inherently factual issues that cannot be resolved on a Rule 12(b)(6) motion”); Air Line Pilots , 45 F.3d at 1154 (same). And the ultimate question is whether the facts indi cate the government intended to open a nontraditional forum to expressive activity. See Cornelius , 473 U.S. at 802 (“The government does not create a public forum by inaction or by perm itting limited discourse, but only by intentionally opening a nontrad itional forum for public discourse.”). 3. Disagreement Over Opening the Re stricted Areas as Public Fora Here, the issue of the government’s inte nt is complicated by the disagreement between Denver and the Judicial District about the forum status of the Restricted Areas.

basis,” but holding covered portico was not opened as a public forum because occasional demonstrations there were undetect ed violations of GSA policy).51 According to Denver, it intended to and did open all areas of the Plaza, including those within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of the Defendants) entered into a Stipula tion to this effect with Plaintiffs. Cf. Grider v. Abramson , 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s Stipulation that the entire Plaza is a public forum cannot control the status of the Restricted Areas because Colorado law vests th e judicial branch with inherent authority to regulate state courthouses. As such, the Judi cial District asserts that its intent—not Denver’s—should control the forum st atus of the Restricted Areas. This argument between Defendants raises difficult and novel questions about the intersection between a government property ow ner’s power to designate its property as a public forum and the rights of the occupant of the government property—in this case another governmental entity—to us e that property without inte rference. The parties have not directed us to any author ity addressing the question of whose intent controls when two governmental entities disagree about th e status of the same forum, and our own research has not revealed any decision precise ly on point. But a revi ew of the evolution of the Supreme Court’s doctrine on speech fo rums reveals some fundamental principles that may guide resolution of this difficult question. The Supreme Court has not always recogn ized a First Amendment right of the public to use publicly owned property for ex pressive purposes. Indeed, the Court’s early jurisprudence recognized the absolute right of the government to exclude the public from using its property. See Davis v. Massachusetts , 167 U.S. 43, 46–47 (1897); see also52 Geoffrey R. Stone, Fora Americana: Speech in Public Places , 1974 Sup. Ct. Rev. 233, 236–37 (discussing the Supreme Court’ s early forum jurisprudence). In Davis , the Court considered a First Amendment challenge to a Boston city ordinance forbidding “any public address” on public property “except in accordance with a permit from the mayor.” 167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s conviction for violating the ordinance by pr eaching on Boston Common without first obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or conditionally to forbid public speaking in a highway or pu blic park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis , 39 N.E. 113, 113 (Mass. 1895) (Holmes, J.)). The Supreme Co urt unanimously affirmed, concluding that “[t]he right to absolutely ex clude all right to use necessar ily includes the authority to determine under what circumstances such us e may be availed of, as the greater power contains the lesser.” Id. at 48. Under the Supreme Court’ s jurisprudence at the time, the government—as the owner of public property—r etained an absolute right to exclude the public from that property, just as any private property ow ner would have the right to exclude others. See Stone, supra , at 237 (“[T]he state possesse d the power absolutely to prohibit the exercise of First Amendment righ ts of speech on public property simply by asserting the prerogatives traditionally associat ed with the private ownership of land. The complex and difficult problem of the public forum had been ‘solved’ by resort to common law concepts of private property.”).53 Later, the Supreme Court revisited the ques tion of the public’s use of government property for expressive purposes and agai n relied on traditional notions of private property ownership. See Hague v. Comm. for Indus. Org. , 307 U.S. 496 (1939). In Hague , the Court considered the constitutionality of city ordinances prohibiting all public meetings and leafletting in streets and other public places without a permit. Id. at 501–03. Departing from its analysis in Davis , Justice Roberts, writing for a plurality of the Court, stated: Wherever the title of streets and park s may rest, they have immemorially been held in trust for the use of the pu blic and, time out of mind, have been used for purposes of assembly, comm unicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communica tion of views on national questions may be regulated in the interest of a ll; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis —that the owner of government propert y enjoyed the same prerogativ es as any private property owner—but then extended th at premise to predicate a “public forum right upon established common law notions of adve rse possession and public trust.” Stone, supra , at 238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (describ ing Justice Roberts’s analysis in Hague as establishing “a kind of First-Amendment easement” in which the pu blic, through long use and tradition, has acquired a right to use certain types of public property for First Amendment purposes).54 Although Justice Roberts spoke only for a plurality of the Hague Court, his formulation has since been a ccepted by the Supreme Court as the prevailing rationale underlying the concept of traditional public fora. See, e.g. , Perry Educ. , 460 U.S. at 45 (defining traditional public fora by adopt ing Justice Roberts’s “time out of mind” description). Even in the cont ext of a traditional public fo rum in which the government property owner’s power to exclude and cu rtail use is sharply circumscribed, the underlying rationale is premis ed on traditional notions of private property ownership. Indeed, the government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the ex tent and nature of its use of these types of government property, acquired, in effect, a “speech easement” that the government property owner must now honor. The Supreme Court has continued to re ly on traditional notions of property ownership to describe the government’s abil ity to control the use of its property. For example, the Supreme Court has r ecognized that th e government, “ no less than a private owner of property , has power to preserve the property under its control for the use to which it is lawfu lly dedicated.” Greer , 424 U.S. at 836 (emphasis added). This includes the ability to designate portions of govern ment property for e xpressive purposes. See Perry Educ. , 460 U.S. at 45. But the underlying ra tionale of a designated public forum is that the governmental entity w ith control over the property can decide whether and to what extent to open nontraditional fora to public speech. See Christian Legal Soc’y Chapter of the Univ. of Cal., Ha stings Coll. of Law v. Martinez , 561 U.S. 661, 679 (2010) (“[I]n a progression of cases, this Court has employed forum analysis to determine when55 a governmental entity, in regulating property in its charge , may place limitations on speech.”) (emphasis added)). In this case, the record be fore the district court at the preliminary injunction hearing indicated that Denver is the ow ner of the Courthouse and its surrounding grounds. It was also undisputed that there is no lease agreement between Denver and the Judicial District that could ha ve transferred some of Denve r’s property interests to the Judicial District. And the Judicial District is not the only occupant of the building; the county also has courtrooms in the building. As a result, Denver’s intent will be particularly relevant to a determination of whether the Restricted Areas were designated as a public forum. Nevertheless, the Judicial District ar gues Denver may not unilaterally designate the Restricted Areas as public fora because, under Colorado law, the state judicial branch is endowed with inherent authority as an in dependent and co-equal branch of government to regulate state courthouses. The first problem with this argument is that it ignores the limits of that inherent authority. Although Co lorado permits its courts to do all that is “reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective,” the Colorado Supreme Court has recognized that this inherent authority is not without its limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist. , 895 P.2d 545, 547–48 (Colo. 1995) (quoting Pena v. District Ct. , 681 P.2d 953, 956 (Colo.1984)). Specifically, the “court’s inherent authority te rminates when its ab ility to carry out its constitutional duty to administer ju stice is no longer threatened.” Id. at 549.56 On the existing record, the Judicial Distri ct has not demonstrated that Plaintiffs’ First Amendment activities interfer ed with the ability of the Judi cial District to carry out its essential functions. Mr. Steadman testifie d that Plaintiffs’ pa mphleteering presented no security risk to the Cour thouse. And the Judicial District presented no evidence indicating that the narrow preliminary inj unction issued by the district court would interfere with its judicial functions. On the record before us, ther efore, the Judicial District has not demonstrated that the prelim inary injunction issued by the district court implicates the court’s inherent authority. But it is also true that Denver’s statemen t of its intent is onl y one factor to be considered by the district court in determ ining whether a permanent injunction should issue. Recall that the government’s statemen t of policy should be weighed against the evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots , 45 F.3d at 1153; Hays Cty. Guardian , 969 F.2d at 117–18. Denver’s concession in the Stipulation and its expressions of past intent could be motiv ated by fiscal or other considerations that are inconsistent with its actual practice. For example, although the evidence indicat ed that some expressive activity has occurred in the Restricted Areas, those occa sions may have been “isolated incidents of undiscovered violations,” rather than evidence of affirmative acts to open the Restricted Areas as public fora. Gilbert I , 920 F.2d at 885. And a contra ry intent might be gleaned from the design of the Restricted Areas and th e extent to which public and private areas are clearly separated. See Grace , 461 U.S. at 179–80. Also of importance in assessing whether the Restricted Areas have been designated as public fora is the extent to which57 doing so is incompatible with th e primary use of the Courthouse. See Cornelius , 473 U.S. at 803. That is, it would be st rong evidence that Denver did no t intend to designate all of the Restricted Areas as public fora if to do so would destr oy the primary function of the Courthouse. Or in different term s, the district court must asse ss whether it is credible that a governmental owner would construct a courth ouse and install state and county judicial operations within it, only to de signate public fora so intrusiv ely that the essential function of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on the question of whether the Restricted Areas ha ve been designated as public fora, it is not alone determinative of that question.
III. CONCLUSION Based on the record before it, the distri ct court did not abuse its discretion in granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order entering a limited preliminary injunction in fa vor of Plaintiffs, and REMAND for further proceedings consistent with this decision.