## F I L E D United States Court of Appeals Tenth Circuit 

### September 15, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WENDY FAUSTIN, Plaintiff-Appellee,

v. CITY AND COUNTY OF DENVER, Colorado; TOM SANCHEZ, in his official capacity as Chief of the Denver Police Department; LT. DONALD L. FINK, in his official capacity as an officer of the Denver Police Department; SGT. W.P. HONER, in his official capacity as an officer of the Denver Police Department, Defendants-Appellants. No. 04-1025

Appeal from the United States District Court

for the District of Colorado (D.C. No. 98-N-2554 (PAC))
Stan M. Sharoff, Assistant City Attorney, (Cole Fin egan, City Attorney, with him on the briefs), Denver, Colorado, for the Defendant s-Appellants. Michael J. DePrimo, of the AFA Center for Law & Pol icy, (Stephen M. Crampton and Brian Fahling, of AFA Center for Law & Policy, with him on the brief), Tupelo, Mississippi, for the Plaintiff-Appellee.* Honorable Ted Stewart, District Court Judge, Distri ct of Utah, sitting by

designation. - 2 - Before EBEL, O’BRIEN, Circuit Judges, and STEWART , District Judge. *

EBEL , Circuit Judge.

Wendy Faustin is an abortion protester. On several occasions, she has held a banner reading “ABORTION KILLS CHILDREN” on a hig hway overpass in Denver for motorists traveling below to see. After Denver police repeatedly asked Faustin to sto p displaying the banner, Faustin brought this action under 42 U.S.C. § 1983 alleging violations of her free speech rights under the First Amendment. In defens e, Denver points to what it asserts is its unwritten, but constitutional, city policy banning signs and banners on overpasses. According to Faustin, the policy is broader and unconstitutionally bans all expression on all overpasses. Both sides originally filed motions for summary judgment below and argue summary judgment i s the proper vehicle for deciding this case. This is the second appeal in this case. Before us now are Faustin’s facial challenges to the city’s policy as overly broad and vague. The district court granted Faustin summary judgment on these claims. At this juncture, there remains some factual dispute as to the exact scope of Denver’s unwritten policy.- 3 -

Nevertheless, this factual dispute is not material and so will not preclude summary judgment. Even giving the policy the broad est interpretation the record will allow, Faustin has not shown an unconstitution al chilling effect on the protected speech of third parties not before the co urt. Therefore, we conclude that Denver, rather than Fau stin, is entitled to judgment as a matter of law. We REVERSE and REMAND with instructions that summary judgment be entered for Defendants. I. Background We need not set out in detail the facts or procedur al history of this case, as they were stated in our prior panel decision. See Faustin v. City and County of
Denver , 268 F.3d 942, 945-47 (10th Cir. 2001) (“Faustin I ”). We present only essential facts as necessary to address the issues in this appeal. Wendy Faustin regularly engages in abortion protestactivities in Denver. This litigation ensued after Denver police repeated ly prevented Faustin from displaying a large banner with the message “ABORTIO N KILLS CHILDREN” on a highway overpass in Denver. Faustin and a friend stood on the sidewalk between the roadway and a chain-link fence, on the overpass located at the juncture of Sixth Avenue and Perry Street, and held the banner up by hand so that motorists driving below could view it.- 4 -

The parties stipulate to four specific confrontatio ns between Faustin and Denver police. In each instance, Denver police app roached Faustin and asked her to leave the overpass and/or to remove her banner. The police officers were unable to cite a specific law proscribing Faustin’s display. During the third encounter, however, a Denver police officer did inf orm Faustin she could not display the banner because to do so was a violation of a Denver posting ordinance. Lieutenant Donald Fink also allegedly s aid, over the radio to the officer at the scene, that Faustin’s display could be in violation of a state unauthorized traffic display statute. Ultimately, in the fourth confrontation, Faustin was cited by Sergeant W.P. Honer for violat ing the posting ordinance; however, this charge was dismissed in open court wh en the Denver city prosecutor realized that, because Faustin was merel y holding the banner and not affixing it to anything, the posting ordinance was inapplicable to Faustin’s conduct. Thus, Faustin was never criminally tried. In November 1998, Faustin filed this civil rights a ction in federal court pursuant to 42 U.S.C. § 1983. Both sides filed motions for summary judgment, and the district court granted summary judgment forFaustin. On the first appeal in Faustin I , we held that Faustin had no standing to seek pros pective relief from the posting ordinance or to challenge the unauthori zed traffic display statute on its face. 268 F.3d at 948-49. We also determined that the district court had not- 5 -

addressed Faustin’s separate challenge to Denver’s unwritten policy relating to expression on overpasses. Id. at 950. After determining that Faustin has standi ng to challenge this policy, we remanded for further p roceedings to determine whether the policy violates the First Amendment. I d. Upon remand, the district court considered suppleme ntal briefing from the parties and concluded that Denver’s unwritten polic y “to prohibit all speech or expressive activities on all highway overpasses loc ated in the City and County of Denver” is unconstitutionally overbroad and vague. The court entered a judgment granting Faustin’s original motion for summary judg ment and denying Denver’s original cross-motion. Denver appeals, urging us t o reverse the district court’s judgment and order entry of summary judgment in Den ver’s favor.
II. Standard of Review We review the grant of summary judgment de novo . Axson-Flynn v. Johnson , 356 F.3d 1277, 1283 (10th Cir. 2004). We also re view the district court’s findings of constitutional fact in a First Amendment claim and conclusions of law de novo. Hawkins v. City and County of Denv er , 170 F.3d 1281, 1285 (10th Cir. 1999). Because this decision implicates First Amendment freedoms, we perform an independent examination of the whole record in order to ensure that the judgment protects the rights of free expre ssion. Id.1 Our precedent allows facial challenges to unwritten policies. See, e.g.,

Wells v. City and County of Denver , 257 F.3d 1132, 1150 (10th Cir. 2001) (considering facial challenge to informal city disp lay policy and noting that “the fact that Denver’s policy is unwritten is not fatal , but merely a factor to be considered.”); Hawkins , 170 F.3d at 1284 n. 2, 1286 (describing unwritten portion of policy and stating, “The First Amendment applies not only to legislative enactments, but also to less formal government acts , such as city policies.”). - 6 - III. Discussion
A. Faustin’s claims There are two types of First Amendment challenges t hat can be brought against a city policy, facial and as applied. 1 A facial challenge considers the restriction as a whole, while an as-applied challen ge tests the application of that restriction to the facts of a plaintiff’s concrete case. See Hawkins , 170 F.3d at 1286, 1290. Facial challenges seek to vindicate no t only individual plaintiffs’ rights but also those of all others who wish to eng age in the speech being prohibited. See id. at 1286. The district court, on remand, said that “plaintiff challenges this policy on its face” and considered only facial overbreadth an d vagueness claims. Although it does not appear that Faustin asserted a facial c hallenge to the policy in her original complaint, Faustin did develop these facia l challenges over the course of the litigation in the district court, both before a nd after our remand in Faustin I

. Defendants never challenged the characterization of Faustin’s developing claims as a facial challenge to Denver’s policy. Therefor e, we hold that Faustin2 This case has suffered throughout from imprecision and shifting theories

on behalf of both Faustin and the Defendants. Howe ver, even if Plaintiff’s claims were to be resurrected to include an “as-applied” c laim, we would similarly conclude that it lacks merit. See Part III.D.1.a, infra . Moreover, at oral argument, this court asked Plaintiff, “Are you asse rting before us a facial challenge or an as-applied challenge?” And Faustin ’s counsel responded, “I am asserting before this court a facial challenge.”

3 For example, Officer John S. Blea testified in his affidavit, “It has been the uniform and consistent policy and practice of t he Denver Police Department to prohibit all speech activities on all highway overp asses located throughout the City and County of Denver, regardless of the conten t of the message.” - 7 - impliedly amended her complaint in the district cou rt, and we will address the facial vagueness and overbreadth claims before us i n this appeal. See Fed. R. Civ. P. 15(b) (“When issues not raised by the plead ings are tried by express or implied consent of the parties, they shall be treat ed in all respects as if they had been raised in the pleadings”); accordGreen Country Food Mkt., Inc. v. Bottling Group, Inc. , 371 F.3d 1275, 1280 (10th Cir. 2004). 2 B. Denver’s policy The parties dispute the precise parameters of Denve r’s unwritten policy and refused to stipulate to any single version of the p olicy at oral argument. The evidence before us on summary judgment presents a s omewhat contradictory picture. In some instances, Defendants describe De nver’s policy broadly as prohibiting all expression on all overpasses. 3 We also used regrettably imprecise language in Faustin I when we said that “closer analysis of the complain t, the motions for summary judgment, and the briefing befo re us indicates that Faustin4 We note that there could be serious dispute about w hether a “policy” even

exists at all. On appeal, Faustin argues that, whi le Denver may be able to regulate highway overpasses legislatively, what the police d epartment has done here in its “ever-changing unwrittendepartmental policy” has been illegal, and essenti ally ultra vires , from the start. For this, Plaintiff cites the Ch arter of the City and County of Denver and Denver’s “strict separation of powers.” We do not address an ultra vires or separation of powers argument here because Faus tin did not develop that claim below.

5 The record suggests this protester was arrested forviolating the posting ordinance, because his sign was attached to the ove rpass fence, and for “interference.” Denver ultimately dropped these ch arges against this protester. - 8 - also challenges defendants’ policy of prohibiting a ll expression on overpasses. Defendants admit this policy exists.” 286 F.3d at 950. Faustin emphasizes these “all expression” references and argues the policy t herefore prohibits not just her protest activities but every kind of expression on overpasses, including bumper stickers on cars and conversations among pedestrian s. 4 However, Faustin has offered no evidence to prove D enver’s policy has ever reached beyond expression visible to the traff ic below. To the contrary, the evidence that Faustin has submitted suggests that D enver has only restricted signage on overpasses—evidence that an animal right s protestor was previously arrested after displaying a large protest sign on ahighway overpass in Denver. 5 Indeed, except for intermittent references to “all expression,” Defendants have consistently articulated a more narrow version of t he policy that prohibits only the6 As proof of its narrow policy, Defendants asserted that it is the Colorado

Department of Transportation’s policy not to “autho rize or allow any signs, banners, or other communicative devices on highway overpasses (other than official signage).” Sergeant Steve Reyes, in his a ffidavit, also testified, “In my experience, highway overpasses are not traditionall y or commonly used for speech activities. However, on the few occasions when per sons have engaged in speech activities at these sites, I have approached the ci tizens and told them that banners or signs distract or divert motorists’ attention fr om official signage and that they should find other locations for their activities.” - 9 - display of signs and banners on overpasses. 6 Indeed, Lt. Donald Fink himself demonstrated in an affidavit before the district co urt that “all expression on overpasses” is not nearly as inclusive as Faustin hypothesizes, where he stated: It has been the uniform and consistent policy and p ractice of the Denver Police Department to prohibit all speech or express ive activities on all highway overpasses located in the City and County o f Denver. Put another way , it is the Denver Police Department’s policy and p ractice to advise all persons who wish to engage (or are engaging) in spe ech activities at these sites that they cannot display banners or signs whi le at these locations , whether or not such signs or banners are attached t o protective fencing. (Emphasis added.) The district court analyzed this case based only on this broadest “all expression” language. The court acknowledged that “the parties dispute the exact nature of defendants’ policy.” Nonetheless, relyin g on our discussion in Faustin
I , the district court concluded that the “law of the case mandates that defendants’ ‘uniform and consistent policy and practice . . . i s to prohibit all speech or expressive activities on all highway overpasses loc ated in the City and County of
Denver.”7 Much like Lt. Fink’s explanation, it is apparent th at our reference to “all

expression” meant the kind of expression actually p rohibited by the policy—that is, all expression directed to the traffic below. - 10 - However, although our language in Faustin I was unfortunately ill-defined, nothing in our prior opinion nor in the factual rec ord would support a finding of any policy that broad. 7Given the tortuous history of this litigation, ca used in no small measure by the imprecision of the parties’ po sitions at various stages of this litigation, it would be a waste of judicial resourc es and an injustice to the parties to keep this controversy alive longer to obtain a f urther refinement of precisely what Denver’s policy is. We will simply conduct ou r review based on the broadest policy reasonably inferable from the recor d. Upon our de novo review of this evidence, we determine that the broadest po ssible policy that Denver could have had was a policy prohibiting all expressive co nduct on overpasses that was8 Thus, Denver’s policy prohibiting expressive conduc t on overpasses may

go beyond signs to include other kinds of demonstrations, but absolutely nothing in the record warrants a finding that the policy go es beyond expressive activity directed toward the traffic passing below the overp ass. Faustin’s hyperbole and speculation that the policy might include bumper st ickers on cars passing over the overpass or conversation among pedestrians walking over the overpass has no factual basis, and we are not obligated to engage i n such fanciful speculation. See West v. Derby Unified Sch. Dist. , 206 F.3d 1358, 1367-68 (10th Cir. 2000) (limiting school district’s anti-harassment policy to only inciting speech where no instance in the record established that policy had ever been applied to possession of “textbooks and other school materials with legit imate educational purposes”); see also Reno v. American Civil Liberties Union , 521 U.S. 844, 884 (1997) (court “may impose a limiting construction . . . only if i t is ‘readily susceptible’ to such a construction”). - 11 - visible to traffic below and potentially disruptive to that traffic on the underpass. 8 C. Summary judgment Before Faustin I , the district court considered cross-motions for s ummary judgment. Denver now appeals from the district court’s secondgrant of summary judgment in Faustin’s favor and its denial of Defen dants’ cross-motion for summary judgment. Both sides urge us that summary judgment is the proper way to resolve this case. “Summary judgment is proper if the evidence submitt ed by the parties, viewed in the light most favorable to the non-movan t, indicates that there is no genuine issue as to any material fact and the movin g party is entitled to judgment as a matter of law.” Smith v. City of Enid , 149 F.3d 1151, 1154 (10th Cir. 1998) citing Fed. R. Civ. P. 56(c). “A fact is material if und er the relevant substantive- 12 -

law it is essential to proper disposition of the cl aim.” Wright v. Abbott Labs.,
Inc. , 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only material factual disputes can create a genuine issue for trial and preclude summa ry judgment. Hall v. Bellmon , 935 F.2d 1106, 1111 (10th Cir. 1991). Therefore, a lthough there is some dispute as to the scope of Denver’s policy, because we have assumed the broadest policy supportable by the record and still conclude that F austin fails to establish that such a policy is either unconstitutionally broad orvague, this dispute becomes immaterial. Where appropriate, we may grant summary judgment “i n favor of any moving party we conclude is entitled to summary jud gment on the record before us.” First Unitarian Church of Salt Lake City v. S alt Lake City Corp. , 308 F.3d 1114, 1120 (10th Cir. 2002). We may even grant sum mary judgment to a nonmoving party if the “facts were fully developed at the summary judgment hearing so that the court of appeals can determine that the nonmoving party clearly was entitled to a judgment as a matter of law . . . [an d] there is no procedural prejudice to the moving party.” Dickeson v. Quarbe rg , 844 F.2d 1435, 1444 n. 8 (10th Cir. 1988) (quoting 10A Wright, Miller & Kane, Federal Practice & Procedure § 2720). Here, as our following discussion makes clear, we conclude that Faustin is not entitled to summary judgment bu t rather that on the facts most favorably interpreted for Faustin, as the opposing party in this regard, summary- 13 -

judgment should be granted to Defendants. See First Unitarian , 308 F.3d at 1120. D. First Amendment analysis We now turn to the substantive issues before us. S pecifically, we must decide whether Denver has implemented a policy thatis so overbroad or vague that its very existence violates the First Amendmen t. “Because facial challenges push the judiciary toward the edge of its tradition al purview and expertise, courts must be vigilant in applying a most exacting analys is to such claims.” Ward v. Utah , 398 F.3d 1239, 1247 (10th Cir. 2005).

1. Overbreadth Under First Amendment overbreadth analysis, “[t]he showing that a law punishes a substantial amount of protected speech, judged in relation to the statute’s plainly legitimate sweep, suffices to inv alidate all enforcement of that law, until and unless a limiting construction or pa rtial invalidation so narrows it as to remove the seeming threat or deterrence to co nstitutionally protected expression.” Virginia v. Hicks , 539 U.S. 113, 118-19 (2004) (emphasis in original) (quotation omitted). This “expansive rem edy” is granted “out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech” because “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vin dicating their rights through case-by-case litigation, will choose simply to abst ain from protected- 14 -

speech—harming not only themselves but society as awhole . . . .” Id. at 119 (citations omitted). Overbreadth is “strong medicine,” and courts “emplo y[] it with hesitation, and then, only as a last resort.” West , 206 F.3d at 1367 (quotation omitted); see also Broadrick v. Oklahoma , 413 U.S. 601, 613 (1973). The Supreme Court has noted that “there comes a point at which the chilli ng effect of an overbroad law, significant though it may be, cannot justify prohib iting all enforcement of that law—particularly a law that reflects legitimate state interests in maintaining comprehensive controls over harmful, constitutional ly unprotected conduct.” Hicks , 539 U.S. at 119 (quotation omitted). At that poi nt, there are “substantial social costs created

by the overbreadth doctrine . . . .” Id. (emphasis added). Accordingly, to prevail on an overbreadth challenge , a plaintiff must establish substantialoverbreadth. Broadrick , 413 U.S. at 615. “The overbreadth claimant bears the burden of demonstrating, from th e text of the law and from actual fact, that substantial overbreadth exists.” Hicks , 539 U.S. at 122 (internal quotations, alternations omitted); accordWard , 398 F.3d at 1248. In addition to being substantial, the overbreadth m ust also be real. Broadrick , 413 U.S. at 615; see also West , 206 F.3d at 1367 (10th Cir. 2000) (requiring plaintiff to establish a “realistic” chi lling effect on the free speech9 At the outset, there is no dispute—as it was previo usly decided in Faustin

I —that highway overpasses are traditional public for a. See Faustin I , 268 F.3d at 950. This certainly expedites our analysis. - 15 - rights of third parties not before the court who have been prevented from engaging in protected speech). The Supreme Court e xplained: the mere fact that one can conceive of some impermi ssible applications of a statute is not sufficient to rend er it susceptible to an overbreadth challenge. On the contrary, the requir ement of substantial overbreadth stems from the underlying j ustification for the overbreadth exception itself—the interest in pr eventing an invalid statute from inhibiting the speech of third parties who are not before the Court. . . . In short, there must be a realist ic danger that the statute itself will significantly compromise recogn ized First Amendment protections of parties not before the Cou rt for it to be facially challenged on overbreadth grounds. Members of the City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 800-01 (1984) (footnote omitted). Thus, in this case, Faustin must establish that Den ver’s policy actually sweeps within its prohibitions such a substantial amount of protected free speech in relation to its “plainly legitimate sweep” that the policy itself must be invalid on its face. Our analysis, thus, starts with asses sing the policy’s “plainly legitimate sweep.” See Hicks , 539 U.S. at 120, 122 n.3; Ward , 398 F.3d at 1247.

a. valid time, place, and manner restrictions We apply the time, place, and manner doctrine to ev aluate whether restrictions placed on expression in public fora vi olate the First Amendment. 910 The parties do not dispute that this policy is cont ent-neutral on its face or

that Faustin’s protests are generally “protected sp eech.” See Ward v. Rock Against Racism , 491 U.S. 781, 791 (1989) (content neutrality dete rmined by whether government adopted regulation because of di sagreement with message). - 16 - Hill v. Colorado , 530 U.S. 703, 731 (2000); see also Wells v. City and County of
Denver , 257 F.3d 1132, 1147 (10th Cir. 2001). “This doct rine allows the government to place restrictions on expression so l ong as it does not regulate whatis said, but merely regulates such matters as when , where , and how loud .” Ward , 398 F.3d at 1254 (alterations omitted) (quoting R odney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech§ 8.36 (2004)). There is no dispute in this case that Denver’s poli cy is content-neutral. Thus, the test is whether Denver’s policy is a reas onable restriction on the time, place, or manner of protected speech that is “narro wly tailored to serve a significant government interest, and leave open amp le alternative channels of communication.” 10 Perry Educ. Ass’n. v. Perry Local Educators’ Ass’ n. , 460 U.S. 37, 45 (1983). Applying this analysis, we conclude that Denver mayconstitutionally restrict the displaying of signs or banners on high way overpasses. The state has a significant interest in traffic safety and in the avoidance of interference with official traffic control devices on highway overpas ses. Schenck v. Pro-Choice Network , 519 U.S. 357, 376 (1997); Metromedia, Inc. v. City of San Diego , 45011 Several of our sister circuits have reached similarresults. Frye v. Kansas

City Missouri Police Dept. , 375 F.3d 785, 792 (8th Cir. 2004); Lytle v. Doyle , 326 F.3d 463, 470-71 (4th Cir. 2003); Foti v. City of Menlo Park , 146 F.3d 629, 640-41 (9th Cir. 1998); see also Ovadal v. City of Madison , 416 F.3d 531, 536-37 (7th Cir. 2005). - 17 - U.S. 493, 507-508 (1981); cf. Wells v. City and County of Denver , 257 F.3d 1132, 1148 (10th Cir. 2001). 11 Restricting signs or banners on highway overpasses directed at the motorists below is narro wly tailored to achieve this interest. See Rock Against Racism , 491 U.S. at 798-800. And as for ample alternative avenues for communication, the policy a ffects only highway overpasses; Denver rightly notes that there are “hu ndreds of miles of sidewalks and thousands of acres of parks and other public fo ra to present . . . views and ideas to the public.” Therefore, Denver may constitutionally restrict sig ns or banners on highway overpasses, and such speech is legitimately subjectto regulation. Thus, this restriction on expression falls within the plainly legitimate sweep of the policy. As such, if the policy, as Denver argues, only everrestricts signs and banners, it is not unconstitutional. Even if one were to hypot hesize that the Denver policy might reach some expression on the overpass that co uld not impede traffic flow on the highway, there is nothing in this record to suggest that any such speech would be substantial in comparison to the legitimat ely prohibited expressions.
See Hicks , 539 U.S. at 122; Ward , 398 F.3d at 1248.- 18 - b. real, substantial overbreadth Both Faustin and the district court rely on speculation that a policy prohibiting “all expression on all overpasses” has an unconstitutional chilling effect because it could extend to prohibit any conv ersation on the overpass walkway, the distribution of literature on the walkway, signs facing away from the traffic below, and even vehicles traveling overan overpass adorned with letters, symbols, or bumper stickers. Although we recognize that to some degree the concl usion that a speech restriction has a “chilling effect” on parties not before the court requires a bit of judicial extrapolation, in this case Faustin has pr esented no evidence and made no showing that Denver’s policy has ever been applied to prohibit any expression on overpasses other than signs or banners facing motor ists below or that Denver’s policy has ever been so broadly interpreted by the public in a way that it has chilled any such speech. To the contrary, the only instances in the record of the policy’s actual application relate to signs and ban ners—as applied to Faustin, as applied to an animal rights protestor, and in the o nly specific law enforcement testimony regarding specific past enforcement of th e policy. We are simply unsatisfied that a policy that has ne ver been applied or threatened against anything other than signs or ban ners facing traffic below will have any realistic danger of chilling the expressio n of parties not before the- 19 -

court—at least not as to any expression that could not be legitimately restricted under the “time, place, and manner” analysis. Thus, Faustin has failed to show any realistic chilling effect. Absent any showing in this regard, Plaintiff cannot prevail at summary judgment and Defendants are enti tled to judgment as a matter of law. Therefore, we reverse the district court a nd grant summary judgment on this point in Denver’s favor. 2. Vagueness “It is a basic principle of due process that an ena ctment is void for vagueness if its prohibitions are not clearly defin ed.” Grayned v. City of Rockford , 408 U.S. 104, 108 (1972). There are two possible , and independent, reasons a statute may be impermissibly vague: “Firs t, if it fails to provide people of ordinary intelligence a reasonable opportunity t o understand what conduct it prohibits. Second, if it authorizes or even encour ages arbitrary and discriminatory enforcement.” Hill v. Colorado , 530 U.S. 703, 732 (2002). A plaintiff may challenge a statute as overly vague where the statute’s deterrent effect on legitimate expression is “both real and substantial” and the statute is not “readily subject to a narrowing cons truction by the state courts . . . .” Young v. Am. Mini Theatres, Inc. , 427 U.S. 50, 60-61 (1976). Speculation and “hypertechnical theories as to what the statute covers” cannot create vagueness, especially when the statute is “surely v alid in the vast majority of its- 20 -

intended applications.” Hill , 530 U.S. at 733 (quotation omitted). “And while there is little doubt that imagination can conjure up hypothetical cases in which the meaning of terms will be in nice question, beca use we are condemned to the use of words, we can never expect mathematical cert ainty from our language.” Id. at 733 (internal citations, alteration, quotation omitted). Finally, where a plaintiff knows the action in question violated the restriction, we have said that this “state of mind is inconsistent with any claim that the policy did not give . . . fair warning . . . .” West , 206 F.3d at 1368. In such a case, we will not co nclude that the policy is unconstitutuionally vague. Id. In this case, Denver’s policy is not vague, either facially or as applied to Faustin. Faustin knew and had no doubt that the re striction applied to her, and such application is not unconstitutional. Again, F austin’s claim fails because she has made no showing of “real and substantial” chill ing of protected speech. Essentially, Faustin’s vagueness argument goes to the fact that the policy is unwritten. However, this fact is not fatal. See Lebron v. National Railroad Passenger Corp. , 69 F.3d 650, 658 (2d Cir. 1995) (determining unwr itten policy prohibiting all political advertising was not uncon stitutional). The policy clearly12 Although the ordinance authority relied upon by Den ver to support its

policy has been in flux over time, and although the outer parameters of its policy have been somewhat poorly articulated in this litig ation, Denver’s actual policy of prohibiting the display of signs on overpasses visi ble to traffic below has always been clearly articulated and asserted. Every encou nter between Denver and Faustin asserted that policy against Faustin’s cond uct, and Faustin received several warnings before she was issued a citation. - 21 - prohibits communication directed toward the traffic on the underpass, and thus it is not unconstitutionally vague. 12
IV. Conclusion For the foregoing reasons, we REVERSE the district court and REMAND with instructions to grant summary judgment in Defe ndants’ favor.No. 04-1025, Faustin v. City and County of Denver

STEWART, District Judge , concurring , in part, and dissenting, in part.

I concur with the majority in its analysis of the i ssue of whether the policy in question is overbroad and, thus, need not belabo r that well-reasoned conclusion. However, as to vagueness, in my view, the unwritten policy in question is impermissibly vague, and the District C ourt was correct in granting summary judgment in favor of Faustin. I therefore dissent. The Fourteenth Amendment requires a state to provid e citizens fair warning of the conduct that might subject them to criminal sanctions. Giaccio v. Pennsylvania , 382 U.S. 399, 402-03 (1966). A law is unconstitutionally vague if it fails to provide the kind of notice that will en able citizens to conform their behavior to the law. “No one may be required at pe ril of life, liberty or property

to speculate as the meaning of penal statutes.” City of Chicag o v. Morales , 527 U.S. 41, 58 (1999) (emphasis added). As noted by the District Court in support of its an alysis, this Court has previously explained that

In the First Amendment area[,] vague laws offend th ree important values. First, they do not give individu als fair warning of what is prohibited. Second, lack of pre cise standards permits arbitrary and discriminatory enforcement. Finally, vague statutes encroach upon First Amendment freedoms by causing citizens to forsake activity protected by the First Amendment f or fear it may be prohibited.-2-

M.S. News Co. v. Casado , 721 F.2d 1281, 1290 (10 thCir. 1983). Applying this analysis, the District Court concluded that the “am algamation of various rules, statutes, and opinions [that Denver argues its poli cy is based upon] does not give individuals fair warning of what is prohibited. Fu rther, the lack of precise standards permits arbitrary and discriminatory enfo rcement. Moreover, this very policy caused plaintiff to forsake an activity prot ected by the First Amendment for fear it may be prohibited.” District Court Ord er at 11. I concur with the District Court’s assessment. As noted by the majority, a statute or rule may be impermissibly vague in one or both of the following instances: “First, if it fails to provide people of ordinary intelligence a reasonable opportunity to u nderstand what conduct it prohibits. Second, if it authorizes or even encour ages arbitrary and discriminatory enforcement.” Hill v. Colorado , 530 U.S. 703, 732 (2002). The factual and procedural history of this case ill ustrates the impermissible vagueness of the unwritten policy. It is not written and, thus, not available to the public. On three of the four occasions where Faust in was approached by law enforcement officials on the Perry Street Overpass, the officers themselves could not cite the specific law – let alone the “policy” in question – that Faustin was allegedly violating. On the fourth attempt, an off icer did cite an ordinance and-3-

charged Faustin with violating it. However, that c harge was subsequently dropped because the prosecutor realized that the or dinance cited was not applicable to her conduct. Tellingly, not one of t he officers cited the policy in question – even though it is was a police departmen t policy. As evidenced by the fact the officers encountering Faustin were unable to articulate the policy or how it applied to her conduct, the degree of vagueness presented by the unwritten policy appears to “authorize[] or even encourage[] arbitrary and discriminatory enforcement” thereof. Casado, 721 F.2d at 1290. As noted by the majority, the City of Denver itself – the entity which promulgated the “policy” – has argued significantly different versions of its policy at different stages of this litigation. The District Court astutely observed that “[a] citizen cannot be expected to follow a po licy that defendants cannot even define.” District Court Order at 11. The vagueness of Denver’s policy is further borne o ut by this Court’s construction of the policy over the course of this litigation. In Faustin I, we defined Denver’s unwritten policy as “prohibiting a ll expression on overpasses.” Having remanded this case with that definition, the majority now finds that
Faustin I used “regrettably imprecise language,” that the la nguage remanding the case was “unfortunately ill-defined,” and even note s that “there could be serious dispute about whether a ‘policy’ even exists at all .” Ante at 7, 10, 8 n.4. In other1 As noted by the majority, “[t]he parties dispute th e precise parameters of

Denver’s unwritten policy and refused to stipulate to any single version of the policy at oral argument.” -4- words, even this Court has not been able to clearly ascertain what the policy is, and therefore what it prohibits, over the life of t his case. The fact that the promulgar of the policy and the different panels of this court construing the policy have proffered different versions of the nat ure, content, interpretation and even the existence of the policy, is extremely tell ing. The Denver officers, the parties, 1 and successive panels of this court, have been unable to clearly and consistently divine or a rticulate what the policy is. I submit that, given this state of affairs, the “poli cy” fails to put Faustin or others on notice as to if, or how, their conduct was prohi bited, and does not give a person of ordinary intelligence a reasonable opport unity to understand what conduct the “policy” prohibits. Id. Thus, it is unconstitutionally vague not merely because it is unwritten, but because it is apparently unascertainable. The majority correctly cites that “[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibiti ons are not clearly defined.” Grayned v. City of Rockford , 408 U.S. 104, 108 (1972). I submit that this cas e is a quintessential example of a policy who’s prohibit ions are not clearly defined and, thus, the policy is unconstitutionally void fo r vagueness.-5-

In sum, I submit that the policy is unconstitutiona lly vague as a matter of law. For the reasons set forth above, I must respectfull y dissent from the majority’s holding regarding vagueness. I submit that the District Court, following direction from this Court in Faustin I , reached the correct conclusion and should be affirmed on this point.