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

### OCT 9 2002 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FIRST UNITARIAN CHURCH OF SALT LAKE CITY; UTAHNS FOR FAIRNESS; UTAH NATIONAL ORGANIZATION FOR WOMEN; CRAIG S. AXFORD, Plaintiffs-Appellants,

v. SALT LAKE CITY CORPORATION, a municipal corporation, Defendant-Appellee,
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Defendant-Intervenor-Appellee,

ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; COLORADO BAPTIST GENERAL CONVENTION; COLORADO CATHOLIC CONFERENCE; COMMUNITY OF CHRIST; DIOCESE OF COLORADO; No. 01-4111-2-

EVANGELICAL LUTHERAN CHURCH IN AMERICA; FIRST CHURCH OF CHRIST, SCIENTIST; GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS; ISLAMIC SOCIETY OF COLORADO SPRINGS; MID-AMERICA UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS; THE NAVIGATORS; ROCKY MOUNTAIN CONFERENCE OF SEVENTH-DAY ADVENTISTS; THE EVANGELICAL COVENANT CHURCH; THE GENERAL COUNCIL ON FINANCE AND ADMINISTRATION OF THE UNITED METHODIST CHURCH; WORLDWIDE CHURCH OF GOD; SUTHERLAND INSTITUTE; INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; NATIONAL LEAGUE OF CITIES; NATIONAL ASSOCIATION OF COUNTIES; AND UTAH ASSOCIATION OF COUNTIES, Amici Curiae.

Appeal from the United States District Court

for the District of Utah (D.C. No. 2:99-CV-912-ST)
Mark Lopez, American Civil Liberties Union Foundati on, Inc., New York, New York (Stephen C. Clark, American Civil Liberties Un ion of Utah Foundation, Inc., Salt Lake City, Utah, with him on the briefs) , for Plaintiffs-Appellants.-3-

Roger F. Cutler (Steven W. Allred, Lynn H. Pace, an d Boyd A. Ferguson, with him on the brief), Salt Lake City, Utah, for Defend ant-Appellee. Von G. Keetch (Alexander Dushku, with him on the br ief), Kirton & McConkie, Salt Lake City, Utah, for Defendant-Intervenor-Appe llee.

Before SEYMOUR , McWILLIAMS and HENRY , Circuit Judges.

SEYMOUR , Circuit Judge.
Plaintiffs brought this action under 42 U.S.C. § 19 83 challenging on First Amendment grounds the prohibition of expressive act ivity by Salt Lake City on a public pedestrian easement retained by the City aft er the sale of a portion of a downtown public street to a religious organization. The district court granted summary judgment to defendant. First Unitarian Church of Salt Lake v. Salt Lake City Corp. , 146 F. Supp. 2d 1155 (D. Utah 2001). Plaintiffs appeal and, for the reasons stated below, we reverse and remand.

I The relevant facts set forth here are not in disput e. This case concerns a portion of Main Street in downtown Salt Lake City that the City closed and sold1 The sale was actually to the Corporation of the Pr esiding Bishop, a

corporate entity wholly owned by LDS Church. We ref er to both entities as “LDS Church.” -4- to the Church of Jesus Christ of Latter-Day Saints (LDS Church). 1 Main Street runs north-south through downtown Salt Lake City. The portion sold to the Church is bounded on the north by North Temple Stre et and on the south by South Temple Street. To the north lies a residential nei ghborhood. To the south is the City’s business district, including two large shopp ing malls. The LDS Church owns all the property on the two city blocks on the east and west sides of this portion of the former Main S treet. On these blocks the Church maintains a number of important historical, administrative, and worship facilities. The west block is called “Temple Squar e” and contains the Mormon Tabernacle and the Salt Lake Temple; the east blockhouses the Church administration buildings. Temple Square and relate d attractions are an extremely popular tourist attraction. In 1995, the Salt Lake City Corporation (City) soldthe subsurface rights to this portion of Main Street to the LDS Church, whic h the Church eventually developed into an underground parking garage. Thatagreement also gave the Church a right of first refusal on the surface prop erty, should the City ever decide to sell it. In 1996, the City considered closing t his portion of Main Street to automobile traffic but leaving it open to pedestria ns, and also considered selling-5-

the land to the Church for this purpose. The propo sal was eventually dropped. In 1998, the City again explored the possibility of closing a portion of Main Street and selling it to the Church for the constru ction of a pedestrian plaza. On December 1, 1998, the City and LDS Church held a jo int news conference to announce “a proposal to develop an open-space pedes trian plaza” on Main Street between North and South Temple. Aplt. App. vol. I at 356 (LDS Church news release). The Church thereafter filed a petition w ith the City for street closure and plans with the City Planning Commission for a p edestrian plaza. On April 13, 1999, the City Council approved the cl osure and sale of the Main Street block to LDS Church subject to certain conditions. In the process leading to approval, the Planning Commission recomm ended that the City Council approve the sale contingent on several conditions that reflected the Commission’s concern with ensuring public access and allowing pu blic expression on the pedestrian plaza. The suggestions included a recom mendation that the City retain a perpetual pedestrian easement “planned and improv ed so as to maintain, encourage, and invite public use ” and “[t]hat there be no restrictions on the use o f this space that are more restrictive than is curren tly permitted at a public park.” Aplt. App. vol. III at 1220 (emphasis added). The ordinance the City Council adopted retained onl y some of these conditions. The first recommendation, that the City retain an easement for public-6-

use “planned and improved so as to maintain, encour age, and invite public use,” was a condition of the ordinance as approved by the City Council. Id. vol. I at 191. In addition, the Council suggested during its meeting that the City retain a right of reverter to the property to ensure that th e Church met these conditions, in particular providing public access. See id. vol. II at 401. However, the latter condition, that the plaza be regulated no more stri ctly than a public park, was omitted from the ordinance. The City subsequently recorded a Special Warranty D eed and Reservation of Easement conveying the Main Street surface prope rty to the Church. The reservation allows only non-speech conduct on the e asement and also specifically prohibits a number of expressive activities. The r eservation of easement reads: 1.3 Pedestrian Access and Passage : Subject to the conditions, limitations, and restrictions set forth in section 2 hereinbelow , Grantor reserves an easement over and across the surface of the Property for pedestrian access and passage only . . . . Grantee shall not erect a ny perimeter fences or gates on the Property along the North Temple or South Temple rights of way . . . . Grantor may allow the general public t o use this easement for pedestrian access and passage only, but all use of this easement shall be subject to the conditions, limitations, and restric tions described hereinbelow. Id. vol. I at 361. The reservation contains the follo wing restrictions with respect to the use of the easement: 2.2 Right to Prevent Uses Other Than Pedestrian Pa ssage : Nothing in the reservation or use of this easement shall be deemedto create or constitute a public forum, limited or otherwise, on the Property . Nothing in this easement is intended to permit any of the following enumerated or similar-7-

activities on the Property: loitering, assembling, partying, demonstrating, picketing, distributing literature, soliciting, beg ging, littering, consuming alcoholic beverages or using tobacco products, sunb athing, carrying firearms (except for police personnel), erecting si gns or displays, using loudspeakers or other devices to project music, sou nd or spoken messages, engaging in any illegal, offensive, indecent, obsce ne, vulgar, lewd or disorderly speech, dress or conduct, or otherwise d isturbing the peace. Grantee shall have the right to deny access to the Property to persons who are disorderly or intoxicated or engaging in any of the activities identified above. The provisions of this section are intendedto apply only to Grantor and other users of the easement and are not intende d to limit or restrict Grantee’s use of the Property as owner thereof, inc luding, without limitation, the distribution of literature, the ere ction of signs and displays by Grantee, and the projection of music and spoken messages by Grantee. Id . at 362. The reservation gives the LDS Church the right to exclude anyone who has previously engaged in any of the above cond uct while using the easement (the “Habitual Violator” provision). The City also reserved utility easements, access for emergency and police vehicles, and a vie w corridor which restricts the erection of buildings on the plaza. Finally, as su ggested by the City Council, the reservation contains a Right of Reverter providing that if “Grantee fails to use the Property for the purposes set forth herein, or fail s to maintain the Property thereafter,” ownership may revert to the City. Id

. At its own expense, the Church reconstructed the fo rmer street and sidewalks, making the area an attractive plaza thatfits seamlessly into the Church’s downtown campus. There are paved walking areas interrupted by planters, benches, and waterfalls, a large reflecti ng pool, and changes in grade. The Church uses the plaza for religiously-oriented exhibits, dissemination of-8-

information, and special events, as well as for the entrance to the Temple Square. While the Church now refers to the area as an eccle siastical park, prior to the sale when asked how it would further the public interest, the Church variously described the proposed Main Street Plaza as “a pede strian-friendly area,” “a funnel to the Crossroads and ZCMI Center shopping m alls as well as the remainder of the downtown business district,” and “ a downtown pedestrian plaza,” and stated the plaza would “provide a publi c environment,” “enhance the urban fabric of the downtown area,” “emphasize MainStreet as a primary pedestrian walkway,” and “assist Main Street, whichis the heart of the shopping area, to become the most pedestrian oriented streetin Salt Lake City.” Id. vol. IV
at 1584-89. Plaintiffs, which include First Unitarian Church of Salt Lake City, Utahns for Fairness, Utah National Organization of Women, and Craig Axford, filed this action challenging the sale and the easement restri ctions under the First and Fourteenth Amendments and similar provisions of the Utah Constitution. Specifically, plaintiffs asserted the restrictions are facially invalid because the entire plaza, or alternatively the retained easemen t, remains public property on which speech cannot be so restricted. They also cl aimed the City had delegated to the LDS Church the discretion to interpret and enfo rce the restrictions in violation of the Establishment Clause, and that the property transaction itself violated the2 Plaintiffs moved for partial summary judgment on on ly their claim that the

restrictions on the easement are invalid under the free speech clause of the First Amendment. Our ruling in favor of plaintiffs on th is issue nevertheless disposes of plaintiffs’ remaining claims because they all re st on the existence of the easement restrictions, which we hold invalid.

3 Plaintiffs stated in the hearing on summary judgme nt that they were abandoning their claim that the entire plaza is a public forum, and the district court accordingly ruled only on the easement. -9- Establishment Clause because it included the challe nged restrictions. They further contended the restrictions violate the Equa l Protection Clause because they discriminate between the Church and members of the public. Plaintiffs sought declaratory and injunctive relief. The suit named the City as defendant and the LDS Ch urch was permitted to intervene. All parties filed cross-motions for sum mary judgment. 2 After a hearing, the district court granted defendant’s and intervenor’s motions for summary judgment on all claims and denied plaintiff s’ motion. The court determined that the physical characteristics, use, and purpose of the property had fundamentally changed after the sale and developmen t of the plaza, and concluded that the easement was no longer a public forum. 3 The court then held that the easement is government property that “could be cons idered a nonpublic forum.” 146 F. Supp.2d at 1174. The court nonetheless heldthat the restrictions are reasonable because the property would not otherwise have been sold and because the prohibited activities are incompatible with the property’s new purpose, an-10-

ecclesiastical park. The court also held the restr ictions do not constitute viewpoint discrimination because the LDS Church, as a private owner of the plaza property, has greater rights on the easement than m embers of the public. With regard to the Establishment Clause claims, the district court held the restrictions do not delegate any municipal power to the Church because the Church was merely given the ability to enforce its rights as a private property owner. The court rejected the Establishment Clause challenge to the sale, holding the plaintiffs did not produce any evidence of coll usion between the City and the Church and the sale did not otherwise violate the E stablishment Clause. The court rejected the Equal Protection Claim on the gr ound that any discrimination between the Church and the public rationally reflec ted the Church’s greater rights as the property owner.

II We review the grant of summary judgment de novo. See Jurasek v. Utah State Mem. Hosp. , 158 F.3d 506, 510 (10th Cir. 1998). Summary judg ment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). In applying-11-

this standard, we review the factual record and all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Id. If no genuine issue of material fact exists, we d etermine whether the district court properly applied governing substantive law. Id. Because First Amendment interests are involved, we have an obligation to co nduct an independent review of the record and to examine constitutional facts and conclusions of law de novo. Z.J. Gifts D-2, LLC v. City of Aurora , 136 F.3d 683, 685 (10th Cir. 1998) (citing Revo v. Disciplinary Bd. , 106 F.3d 929, 932 (10th Cir. 1997)). We may direct that judgment be entered in favor of any moving party we conclude is entitled to summary judgment on the rec ord before us. See id . (citing Dickeson v. Quarberg , 844 F.2d 1435, 1444 n.8 (10th Cir. 1988) (court o f appeals may grant summary judgment even to nonmoving party if “‘the facts were fully developed at the summary judgment hearing so that t he court of appeals can determine that the nonmoving party clearly was enti tled to a judgment as a matter of law . . . and there is no procedural prejudice t o the moving party.’”) (quoting
10A C. W RIGHT , A. M ILLER & M. K ANE , F EDERAL P RACTICE & P ROCEDURE § 2720)).
A. We consider first the free speech claim. The distr ict court held sua sponte that plaintiffs’ free speech claim was ripe only wi th respect to the prohibitions on-12-

“demonstrating, assembling, picketing, distributing literature, erecting signs or displays, using devices to project spoken messages or music.” First Unitarian Church , 146 F. Supp. 2d at 1163-65 (D. Utah 2001). This would preclude, for example, any attack on the prohibition against “eng aging in any [ ] offensive . . . speech, dress or conduct.” Aplt. App. vol. I at 36 2. On the contrary, however, we have no doubt plaintiffs’ facial challenge to th e entire set of restrictions is ripe. Significantly, it is not particular restrict ions contained in the deed that are at issue because the City and the Church claim thatthe easement is private property and that there are no public speech rights whatsoever on it. The Church thus asserts plenary authority to regulate speech o n the easement. See Aplt. App. vol. IV at 1382-83 (Plaza security policy). The Ci ty similarly maintains that “the easement does not allow any speech at all from thos e using the easement.” Aple. App. at 44; see also Def./Aple. Br. at 22, 26, 40, 41. The issue is th erefore whether the City has the authority to prohibit all expressive activities on a public easement it reserved across otherwise private prope rty, except for the speech permitted by the private owner of the underlying es tate. Because plaintiffs have asserted the intention to use the easement for expr essive activity and the Church and City assert the Church is empowered to prevent any such activity, we easily conclude plaintiffs’ facial claim is ripe as to the entire prohibition of speech, dress, or conduct on the pedestrian easement.-13-

Plaintiffs contend the easement is a public forum b ecause it has the characteristics of a public sidewalk, a traditional public forum. They also argue the easement has substantially the same characteris tics, use, and purpose as the Main Street sidewalks the easement replaced and it therefore remains a public forum notwithstanding the City transferred legal ti tle to the LDS Church. Alternatively, plaintiffs contend the easement as r etained by the City is public property and is therefore at least a nonpublic foru m for which the speech restrictions are neither reasonable nor viewpoint-n eutral. The City and LDS Church maintain the easement canno t be a public forum because the property’s character, use, and purpose have changed sufficiently to eliminate any public forum that existed before the street was sold, and because the City expressly disavowed any intent to create or co ntinue a public or limited forum. They also argue the easement itself cannot be government property subject to forum analysis because the scope of the easement does not include speech activities, and because an easement is an in sufficient government property interest to trigger First Amendment limitations. As an initial matter, we address the argument advan ced by the City and LDS Church that the First Amendment cannot apply to the easement according to its terms because the reservation is for “pedestrian passage only” and expressly excludes speech activities. The parties contend th e Church cannot be required to-14-

permit speech activities on the easement because th is would exceed the scope of the property interest created by the reservation. We agree that the reservation of easement on its fa ce defines the easement to exclude expressive activities. However, a deed does not insulate government action from constitutional review. See RESTATEMENT (T HIRD ) OF P ROP .: S ERVITUDES § 3.1 cmt. d (2000) (easements to which governmentis party are subject to the Constitution). If government action s taken with respect to the easement violate the Constitution, this simply mean s the easement terms themselves are unconstitutional and must be alteredor eliminated by the involved property owners. We next address the central contention of the City and LDS Church that the easement is not “government property” and First Ame ndment forum principles therefore do not apply at all. See generally Ark. Educ. Television Comm’n v. Forbes , 523 U.S. 666, 672 (1998) (determining initially w hether “public forum principles apply . . . at all” to public broadcasti ng). The City and Church claim that because an easement is not a possessory intere st in land and the Church continues to hold title to the underlying property burdened by the easement, the easement is not “government property” subject to fo rum analysis. We do not disagree with the technical characterizat ion of easements as nonpossessory property interests, see RESTATEMENT (T HIRD ) OF P ROP .:-15-

S ERVITUDES § 1.2. However, forum analysis does not require that the government have a possessory interest in or title to the under lying land. Either government ownership or regulation is sufficient for a First A mendment forum of some kind to exist. See United States v. Council of Greenburgh Civic A ss’ns , 453 U.S. 114, 129 (1981) (applying forum principles to privately owned mailboxes “controlled by the government”); see also Marsh v. Alabama , 326 U.S. 501, 505 (1946) (title to property not necessarily determinative of public speech rights on property); Venetian Casino v. Local Joint Executive Bd. , 257 F.3d 937, 945 n. 6 (9th Cir. 2001) (sidewalks need not be government owned to co nstitute public fora). Indeed, forum analysis does not require the existen ce of government property at all. See Cornelius v. NAACP Legal Def. & Educ. Fund, I nc ., 473 U.S. 788, 800-01 (1985) (rejecting argument that forum analysis requires “tangible government property” or even a “physical situs” forthe forum) (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45 (1983)). Therefore, whether we characterize the easement as a property interest belonging to the government, or as property owned by a private partybut burdened by the government, the First Amendment may still apply. The City and LDS Church similarly argue that easeme nts cannot be subject to forum analysis because they do not constitute a significant enough property interest. We disagree. Government condemnations o f easements are takings4 The LDS Church also contends that permitting publi c speech on the

easement would constitute a taking of its property. But see generally PruneYard Shopping Ctr. v. Robins , 447 U.S. 74 (1980) (rejecting mall owner’s claim that state law requiring him to permit speech at his mal l was a Fifth Amendment taking of his property). Essentially the Church’s claim is that speech would “take” a larger estate than the easement. Our answ er is the same as our answer above addressing the argument that the free speech claim is precluded by the narrow scope of the easement itself: the issue bef ore us is whether it is constitutionally permissible for the City to retain a pedestrian easement but prohibit expressive conduct on that easement. If w e conclude it is not, it is up to the City and the Church to modify their property tr ansaction so the actions of the City conform to the Constitution. Any claim that apotential solution to this problem, which may or may not be attempted, would i tself present other constitutional problems is speculative and not befo re us. -16- under the Fifth Amendment and entitle the grantor t o compensation. See Dolan v. City of Tigard, 512 U.S. 374 (1994) (public easement required as a condition of development permit is a taking requiring compensati on); see also Colman v. Utah State Land Bd. , 795 P.2d 622 (Utah 1990) (easements are property rights protected under the Utah Constitution from governme nt takings without due process); Hayes v. Gibbs , 169 P.2d 781 (Utah 1946) (same). Easements are therefore constitutionally cognizable property inte rests. 4 Finally, holding that an easement cannot be a forum would lead to the conclusion that many public streets and sidewalks are not public fora. Public highways or streets are often easements held for th e public, with title to these property interests remaining in abutting property o wners. Highways and streets are public property only in th e sense that they are subject to public use . . . . As a rule, and whethe r a highway is established5 We hold only that the mere fact the government has an easement rather

than fee title does not defeat application of the F irst Amendment. We are not holding the converse, that the First Amendment appl ies to all easements. Whether or not a particular government easement warrants ap plication of forum principles will depend on the characteristics of the easement, the practical considerations of applying forum principles, and the particular conte xt the case presents. Ark. Educ. Television Comm’n v. Forbes , 523 U.S. 666, 672-77 (1998). -17- by dedication or prescription, or by the direct act ion of the public authorities, the public acquires merely an easement of passage , the fee title remaining in the landowner.
39 A M
. J UR
. 2 D Highways, Streets, & Bridges §§ 182-83 (1999) (emphasis added) (citations omitted); see also M.B.M., Inc. v. George , 655 F.2d 530, 532 (3rd Cir. 1981) (“At common law, ownership of land used as a highway belongs to the abutting landowner, subject to the public’s right t o use the road.”); Southwestern Bell Tel. Co. v. State Corp. Comm’n , 664 P.2d 798, 800 (Kan. 1983) (public highways only grant easement to public; title remai ns in abutting property owner). Public streets are “the archetype of a traditional public forum.” Frisby v. Schultz , 487 U.S. 474, 480 (1988). Because such tradition al public fora are often easements, it is evident the property here is not e xempt from the First Amendment merely because it is an easement rather than land t o which the government holds fee title. 5 “Wherever the title of streets and parks may rest , they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicat ing thoughts between citizens, and discussing public questions.” Hague v. CIO , 307 U.S. 496, 515-18-

(1939) (Roberts, J., concurring); see also Venetian Casino , 257 F.3d at 943-45 & n.6 (applying forum analysis to city easement for s idewalk on private property); Thomason v. Jernigan , 770 F. Supp. 1195, 1197 (E.D. Mich. 1991) (adjudi cating public speech rights on municipal right-of-way rese rved by easement on private property). Accordingly, we reject the argument that the government easement cannot be a First Amendment forum of any kind.

B. Having decided forum principles apply to the easeme nt, we proceed to analyze this case under those principles. The exte nt to which government may control expressive activities depends on the nature of the relevant forum. Cornelius , 473 U.S. at 800. The Supreme Court has identified three types of forums, “the traditional public forum, the public forum created by governmen t designation, and the nonpublic forum.” Forbes , 523 U.S. at 677 (quotations and citations omitted ). “Traditional public fora are defined by the objecti ve characteristics of the property, such as whether, ‘by long tradition or go vernment fiat,’ the property has been ‘devoted to assembly and debate.’” Id . (quoting Perry Educ. Ass’n , 460 U.S. at 45). Designated public fora are created by “purposeful government action, . . . by intentionally opening a nontraditional public fo rum for public discourse.” Id

.-19-

Other property is either a nonpublic forum or not aspeech forum at all. Id. Plaintiffs assert the easement is a public forum be cause it has all the characteristics of sidewalks, which are traditional public fora “without more.”
Grace , 461 U.S. at 177 (1983). They also assert the eas ement is a public forum because it is essentially the same sidewalk that ra n along the former Main Street, which was unquestionably a public forum. The City and LDS Church respond that the easement cannot be a public forum because of express language in the reservation of easement stating the space does not constitute a public forum. They also argue the physical characteristics of the former Main Street have been changed sufficiently by development of the plaza to eliminate any public forum that existed along the former Main Street. We first reject the contention that the City’s expr ess intention not to create a public forum controls our analysis. The governme nt cannot simply declare the First Amendment status of property regardless of it s nature and its public use. See Forbes , 523 U.S. at 678 (“traditional public fora are ope n for expressive activity regardless of the government intent ”) (emphasis added); Grace , 461 U.S. at 180 (the government’s own “ ipse dixit ” does not determine the First Amendment status of property); see also Int’l Soc’y for Krishna Consciousness v. Lee (ISKON), 505 U.S. 672, 694 (1992) (Kennedy, J., concurring in judgment) (First Amendment doctrine should not “grant[] the g overnment authority to6 We cite Justice Kennedy’s concurrence as controlli ng Supreme Court

precedent because his concurrence provided the fift h vote on the narrowest grounds. See Hawkins v. Hargett , 200 F.3d 1279, 1982 (10th Cir. 1999) (citing Marks v. United States , 430 U.S. 188, 193 (1977)). -20- restrict speech by fiat.”). It is only with respec t to designated fora that the Supreme Court’s forum analysis has focused on wheth er there has been “purposeful government action” creating a forum “ina place not traditionally open to assembly and debate.” Forbes , 523 U.S. at 677; see also Cornelius , 473
U.S. at 802 (examination of whether charity drive among federal employees created designated public forum, focusing on “polic y and practice” of government as well as objective nature of forum); Hawkins v. City & County of Denver , 170 F.3d 1281, 1286 (10th Cir. 1999) (“The designated public forum . . . is one a state creates by intentionally opening a non-traditionalforum for public discourse.”) (quotation and citation omitted) (emphasis added); cf

. United States v. Kokinda , 497 U.S. 720, 738 (1990) (Kennedy, J., concurring i n judgment) 6 (objective factors have “more force here than in those instances where the Government created a nontraditional forum to accommodate speec h for a special purpose .” (citing Perry Educ. Ass’n , 460 U.S. 37, and Cornelius , 473 U.S. 788)) (emphasis added). Examples of designated public fora include “state university meeting facilities expressly made available for use by stud ents, . . . school board meetings open to the public by state statute, . . . advertis ing space in state-owned subway-21-

and commuter rail stations, . . . [and] a city owne d and operated senior center sponsoring lectures.” Hawkins , 170 F.3d at 1287 (quotations and citations omitted). In contrast, for property that is or has traditiona lly been open to the public, objective characteristics are more important and ca n override express government intent to limit speech. See Kokinda , 497 U.S. at 738 (Kennedy, J., concurring) (legitimate justifications for restrictions notwith standing, “other factors may point to the conclusion that the Government must permit w ider access to the forum than it has otherwise intended.”); id. at 737-38 (“[C]ertain objective characteristics of Government property and its customary use by the pu blic may control the case.”). As Justice Kennedy wrote for a majority in Forbes , “public fora are defined by the objective characteristics of the property.” Forbes , 523 U.S. at 677. This is not to say the government has automatically created a public forum by opening property to the public, Grace , 461 U.S. at 177, but if it has so opened the property, objective characteristics determine wheth er it is a public forum. Justice Kennedy elaborated on what he meant by exam ining objective characteristics to determine if property is a publi c forum in his concurrence in
ISKON: If the objective, physical characteristics of the p roperty at issue and the actual public access and uses that have been pe rmitted by the government indicate that expressive activity would be appropriate and compatible with those uses, the property is a p ublic forum. The7Justice O’Connor provided the fifth vote on the narrowest grounds in this

case. See supranote 6. -22- most important considerations in this analysis are whether the property shares physical similarities with more tra ditional public forums, whether the government has permitted or acq uiesced in broad public access to the property, and whether express ive activity would tend to interfere in a significant way with the use s to which the government has as a factual matter dedicated the pr operty.”
ISKON , 505 U.S. at 698-99 (Kennedy, J., concurring in ju dgment). We apply these factors to assess the easement’s character fo r First Amendment purposes. To determine the easement’s nature and purpose, the question we address is whether expressive activity is compatible with the purposes and uses to which the government has lawfully dedicated the property, notwhether the government has expressly designated speech as a purpose of the pro perty. See ISKON , 505 U.S. at 686 (O’Connor, J., concurring) 7(examining whether public access is “‘inherent in the open nature of the locations.’” (quoting Kokinda , 497 U.S. at 743 (Brennan, J., dissenting))); Bd. of Airport Comm’rs v. Jews for Jesus , 482 U.S. 569, 576 (1987) (invalidating statute for prohibiting “[m]uc h nondisruptive speech – such as the wearing of a T-shirt or button that contains a political message – [which] may not be ‘airport related’ but is still protected speech even in a nonpublic forum.” ) (emphasis added). The actual purpose and use of the easement here is a pedestrian throughway for the general public. This is not merely the use which the City has in practice-23-

permitted, but also the express purpose for which the City retained the easement. The City’s stated purposes for promoting and approv ing the overall project were to increase usable public open space in the downtow n area, encourage pedestrian traffic generally, stimulate business activity, and provide a buffer closed to automobile traffic between the residential area to the north of the plaza and the business areas to the south. The easement has particular public importance for t he City because of the role the City envisioned the easement playing in th e character and development of downtown Salt Lake City. While the City wanted to close the street to automobile traffic, it simultaneously wanted to preserve and i ndeed encourage pedestrian traffic. The easement through the plaza was specif ically retained in order to preserve and enhance the pedestrian grid in the dow ntown. The City points out that developing pedestrian malls by closing downtow n streets has been a stated goal of various long-range City plans for almost fo rty years. Aplt. App. vol. I at 214, 224, 228. As the City itself asserts, the eas ement was a necessary means of accomplishing these public purposes even as it soldthe underlying property to the LDS Church. Moreover, the City’s actions approving the sale andthe resulting property ownership structure were specifically designed to e nsure these aims were accomplished, and the pedestrian easement was centr al to these goals. The8 Indeed, the City and Church disagree as to the eff ect of holding the restrictions unconstitutional. The City contends this would eliminate the restrictions but not the easement; the Church conte nds the government would lose the easement. See Aple. App. at 61, 68. -24- ordinance the City Council passed approving the str eet closure and sale – the City’s necessary legislative act for closing and se lling a public street – was expressly contingent on several conditions. The fi rst of these was that the City retain a perpetual pedestrian easement “planned and improved so as to maintain, encourage, and invite public use .” Id. vol. I at 191 (emphasis added). In addition, the reservation of easement contains a ri ght of reverter in favor of the City that provides the property will revert to the City if the LDS Church “fails to use the Property for the purposes set forth” in the deed and easement. Id . at 362. In its meeting approving the ordinance, the City Co uncil requested the City administration to negotiate a right of reverter in the deed specifically to ensure the plaza would be kept open for public use as prom ised. Id . vol. II at 401. Finally, the City has contended throughout this lit igation that the City would not have agreed to the sale “but for” the easement. 8 See, e.g. , Aple. App. at 61. These circumstances indicate the easement is infuse d with public purposes even broader than providing a pedestrian walkway. The City and Church contend the purpose of the ease ment is solely for ingress and egress to Church facilities. They prod uced evidence in the district9 Although the City and Church argue the easement do es not meet the legal

definition of “sidewalk” and therefore should not b e referred to as such, the label (continued...) -25- court that the vast majority of users were those wi th Church business or tourists whose end destination was the plaza itself or vario us Church facilities. This argument is at odds with the publicly and legislati vely stated purposes of the easement noted above. In addition, to the extent i ndividuals with Church business enter onto the plaza, it is not clear they are actu ally using the easement because they are not utilizing the plaza for “pedestrian pa ssage” and presumably the Church would permit those with Church business to e nter the plaza in the absence of the easement. In other words, providing access to those with Church business is more properly characterized as a Church purpose, and does not capture the actual or articulated purpose of the easement, a pe destrian walkway for the public at large. Similarly, the City and Church argue that not all w alkways are sidewalks, and that the easement here is more similar to the w alkways at issue in Hawkins than to a public sidewalk that is a traditional pub lic forum. We agree that not all walkways are traditional public fora, but because t he purpose of the easement is not limited to ingress and egress to Church facilit ies, but is intended rather for pedestrian passage, it is distinguishable from thos e walkways that have been held not to be public fora. 9 In Hawkins , we held that walkways within the Galleria, a9 (...continued)

is not dispositive. In addressing whether the walkways at issue in Kokindawere public fora, the Supreme Court made no distinction between “sidewalk” and “walkway.” See, e.g., United States v. Kokinda , 497 U.S. 720, 727-29 (1990); see also Greer v. Spock, 424 U.S. 828, 830-36 (1976) (referring to “public streets” within military reservation). The plurality’s publ ic fora determination in Kokinda turned instead on the nature and purpose of the sid ewalks. See Kokinda , 497 U.S. at 727-29 (plurality opinion) (post office “sidewal k” is nonpublic forum). Therefore our analysis does not depend on whether the walkways are properly referred to as “sidewalks,” but on the purpose to w hich they are dedicated. -26- partially open area leading to the Denver Performin g Arts Complex (DPAC), were not public fora. Hawkins , 170 F.3d at 1287-88. In reaching that holding, w e reasoned [t]he Galleria does not qualify as a traditional pu blic forum, for it is not . . . analogous to a public right of way or tho roughfare

. The Galleria does not form part of Denver’s automotive, bicycle or pedestrian transportation grid, for it is closed to vehicles, and pedestrians do not generally use it as a throughwayto another destination . Rather, the Galleria’s function is simply to per mit ingress to and egress from the DPAC’s various compl exes. Id. at 1287 (emphasis added). Similarly, a plurality of the Supreme Court held in Kokindathat the sidewalks leading to a post office were n ot public fora because they led only from the post office parking lot to t he post office building, and their sole purpose was to provide ingress and egress to the post office. Kokinda , 497 U.S. at 727 (plurality opinion of O’Connor, J.) (“[ t]he postal sidewalk at issue does not have the characteristics of public sidewal ks” because it is not a “public passageway” or “thoroughfare” but “leads only from the parking area to the front-27-

door of the post office. . . [and] was constructed solely to provide for the passage of individuals engaged in postal business.”); see also Greer v. Spock, 424 U.S. 828 (1976) (streets and sidewalks on military reservation are not public fora because they are entirely within the compound and t he military has unquestioned authority to control activity on military bases); Chicago ACORN v. Metro. Pier & Exposition Auth. , 150 F.3d 695, 702 (7th Cir. 1998) (sidewalks on the pier are not traditional public fora because they “are not throu gh routes; they lead only to the pier facilities themselves.”). The purpose of the easement in this case is for ped estrian passage, it forms part of the downtown pedestrian transportation grid , and it is open to the public. The easement therefore shares many of the most impo rtant features of sidewalks that are traditional public fora. This similarity is a persuasive indication that the easement is a traditional public forum. See ISKON , 505 U.S. at 698-99 (Kennedy, J., concurring in judgment) (whether property share s physical similarities with traditional public forums is one of most important factors in defining public fora); see also Frisby , 487 U.S. at 480 (“‘[T]ime out of mind’ public str eets and sidewalks have been used for public assembly and de bate, the hallmarks of a traditional public forum.” (quoting Hague , 307 U.S. at 515 (Roberts, J., concurring)); Grace , 461 U.S. at 177 (“public places historically asso ciated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are10 In this respect, the district court erred in consi dering whether speech

activities were compatible with an “ecclesiastical park.” Providing for a religious park is the purpose of the surrounding plaza property, not the easement, and must be the Church’s purpose, rather than the City’s. -28- considered, without more , to be public forums.” (quotation and citation omi tted) (emphasis added)). The easement here is thus bette r compared to the easement which the Ninth Circuit held was a public sidewalk, and therefore a traditional public forum, in Venetian Casino , 257 F.3d at 944 (“[T]he sidewalk is used to facilitate pedestrian traffic along the Las Vegas s trip generally and not merely to provide access to the Venetian for its patrons.”). We also consider whether speech activities are comp atible with the purpose of the easement. See ISKON , 505 U.S. at 698-99 (Kennedy, J., concurring in judgment). In doing so, we presume the availability of reasonable time, place, and manner restrictions, so we do not consider “the oretical incompatibilities” that could be avoided. Id . at 699. Moreover, it is the purpose of the easem ent, the property that is a forum of some type, and not the purpose of the Church plaza, the surrounding property, that is at issue. 10 Expressive activities have historically been compat ible with, if not virtually inherent in, spaces dedicated to general pedestrian passage. See, e.g., ISKON, 505 U.S. at 686 (O’Connor, J., concurring) (determining whether airport is public forum by examining whether public access is “inhere nt” in the open nature of the-29-

location). Given that the easement shares most of the characteristics of a traditional public sidewalk, which is an “archetype ” public forum, Frisby , 487 U.S. at 480, it is implausible that allspeech activities (which is what the City purports this easement prohibits) would practicallyinterfere with the use of the easement for pedestrian passage. See, e.g., Lederman v. United States , 291 F.3d 36, 43 (D.C. Cir. 2002) (“If people entering and le aving the Capitol can avoid running headlong into tourists, joggers, dogs, and strollers . . . then we assume they are also capable of circumnavigating the occas ional protester.”). We also note the City itself first proposed requiring the C hurch to regulate speech on the plaza no more restrictively than a public park. In short, it is evident that the use of this property, which is similar to a traditional public sidewalk, is compatible with expressive activities. The City and Church assert any expressive conduct b y the public would interfere with the character of the surrounding pri vate property, the Church’s private property rights on the easement, and the Ch urch’s own ability to communicate. Protecting the Church’s expression fr om competition is not a legitimate purpose of the easement or its restricti ons, so we do not consider its compatibility with speech. See PruneYard Shopping Center v. Robins , 447 U.S. 74, 85-87 (1980) (requiring shopping center owner t o permit public speech does not infringe on owner’s free speech rights). With respect to the other arguments,11 In this regard, having determined that the easemen t warrants the

application of First Amendment principles, and reco gnizing it has the characteristics of traditional public sidewalks, we do not believe the special nature of this particular pedestrian passageway – that it traverses private property rather than abuts a public street – defeats its status as a public forum. The Supreme Court has made clear that once an “archetyp e” of a public forum has been identified, it is not appropriate to examine w hether special circumstances would support downgrading the property to a less pr otected forum. Frisby v. Schultz , 487 U.S. 474, 481 (1988). The Court rejected the argument that public streets that are narrow and located in quiet reside ntial neighborhoods are therefore not public fora, stating “[n]o particular ized inquiry into the precise nature of a specific street is necessary; all publi c streets are held in the public trust and are properly considered traditional publi c fora. Accordingly, the streets of Brookfield are traditional public fora.” Id ; see also ISKON , 505 U.S. at 697 (Kennedy, J., concurring in judgment) (“open, publi c spaces and thoroughfares that are suitable for public discourse may be publi c forums, . . . without concern (continued...) -30- to the extent they relate to the purpose of the eas ement rather than the surrounding property, the effects of expressive act ivity such as congestion, noise, and disruption within reasonable limits are the nec essary cost of securing our First Amendment freedoms and these effects must be tolerated to a reasonable

extent. ISKON

, 505 U.S. at 701 (Kennedy, J., concurring in judgm ent) (“The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of it s obligation to tolerate speech.”). Therefore, although a government may al ways enforce, at a minimum, reasonable time, place, and manner restrictions on public expression, a desire for peace and order does not support a conclusion that a public space such as this is not a public forum. 1111 (...continued)

for a precise classification of the property.”); Grace , 461 U.S. at 177 (sidewalks are normally public fora “without more”). -31- Finally we consider the history of the property. Whether property has traditionally been open to public use is a factor i ndicating the property is a public forum, although this is not determinative. See Grace , 461 U.S. at 179. The property here is undisputedly open to public use. A more important factor is whether the property has traditionally been the site of expressive activities by the public. See Forbes , 523 U.S. at 677 (factors such as “whether, ‘by long tradition or by governme nt fiat,’ the property has been ‘devoted to assembly and debate’” determine whetherproperty is public forum) (quoting Perry Educ. Ass’n , 460 U.S. at 45); Grace , 461 U.S. at 178 (areas traditionally held open for expressive activities a re normally public fora). The government previously permitted public expression i n this area when it was a public sidewalk abutting Main Street, but it has no t ever permitted public expression on the easement. We give no weight to t he fact that the government has not “traditionally” permitted speech activities since it sold the property and retained the easement. Where courts have considere d the traditional use of publicly accessible property for speech, they have refused to attribute legal significance to an historical absence of speech act ivities where that non-speech history was created by the very restrictions at iss ue in the case. See Grace , 461-32-

U.S. at 180 (“Government may not by its own “ ipse dixit ” destroy public forum status); Lederman , 291 F.3d at 43 (“restrictions cannot bootstrap th emselves into validity by their mere existence” (quotation, citat ion and emphasis omitted)). This is particularly true where the property was a public forum before the government restrictions were put in place. As the Supreme Court stated in Grace , Traditional public forum property occupies a specia l position in terms of First Amendment protection and will not lo se its historically recognized character for the reason that it abuts [ ] property that has been dedicated to a use other than as a forum for p ublic expression. Nor may the government transform the character of t he property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of pr operty. Grace , 461 U.S. at 180. This raises the issue of the relevance of the easem ent’s prior history, as public sidewalks, to our analysis. The plaintiffs argue, more generally, that the easement remains a public forum precisely because t he property was previously a public forum and it has not been sufficiently alter ed to destroy that status. The City and Church contend significant changes in the physical characteristics and use of the property have eliminated any prior publi c forum. The mere fact that a space is on what used to be a public street does no t automatically render it a public forum. See Hawkins , 170 F.3d at 1287 (“‘In some sense the government always retains authority to close a public forum, b y selling the property, changing its physical character, or changing its principal u se.’” (quoting ISKON , 505 U.S.-33-

at 699-700) (Kennedy, J., concurring in judgment)))

. The district court concluded that both the physical characteristics and the principal use of the property had been altered suff iciently to eliminate the previous public forum. We disagree that the princi pal use of the easement has changed. As we previously stated, the district cou rt considered the religious purpose of the plaza when it should have consideredthe purpose of the easement. The purpose of the easement is to provide a pedestr ian throughway that is part of the city’s transportation grid, and in this respectit is identical to the purpose the sidewalks along that portion of Main Street previou sly served. Similarly, to the extent the walkways provide access to the Church fa cilities as an end destination for tourists, which is another stated purpose of th e easement, the former sidewalks along Main Street similarly provided tourists with the means of accessing portions of the Church campus open to them. In Hawkins , the court found that the walkways had changed sufficiently not only because they served a different purpose – ingress and egress to the DPAC facilities – but also because their physical nature was different, that is, they dead-e nded at DPAC rather than remaining part of the city’s pedestrian grid. Id . Here, while certain physical characteristics of the walkways have changed, they are still intended to provide passage through, not to, Church property. As stated above, a pedestrian throughway was the pr imary purpose to which-34-

the City expressly dedicated the easement. The pre vious public street and sidewalks provided access between these two city bl ocks, were part of the city’s transportation grid, served this function in a central downtown location, and were highly desirable because of the large size of city blocks in downtown Salt Lake City. It was clearly the intent of the City to ret ain these aspects of the previous space with respect to pedestrians. In addition, the ordinance approving the street closure required an easement “planned and improved to maintain

. . . public use .” Aplt. App. vol. II at 401 (emphasis added). The Ci ty therefore deliberately retained the pedestrian throughway that existed bef ore it closed the street. In retaining the easement, the City not only retain ed the most important functions of the property, but also the functions m ost often associated with speech activities. See, e.g., Hawkins , 170 F.3d at 1288. Thus, while the government has the power to change the status of a forum, “when pr operty is a protected public forum the State may not by fiat assert broad contro l over speech or expressive activities; it must alter the objective physical ch aracter or uses of the property, and bear the attendant costs .” ISKON , 505 U.S. at 700 (Kennedy, J., concurring in judgment) (emphasis added); see also Hawkins , 170 F.3d at 1287-88 (to eliminate public forum state must alter physical ch aracteristics and bear attendant costs) (quotation and citation omitted). We are co nvinced the City has attempted to change the forum’s status without bearing the attendant costs, by retaining the-35-

pedestrian easement but eliminating the speech prev iously permitted on the same property. In effect, the City wants to have its ca ke and eat it too, but it cannot do so under the First Amendment. “As society becomes more insular in character, it b ecomes essential to protect public places where traditional modes of sp eech and forms of expression can take place.” Kokinda , 497 U.S. at 737-38 (Kennedy, J., concurring in judgment). We think this is particularly true with respect to downtown public spaces conducive to expressive activities. The pri or history of the easement here is highly relevant to whether the property has trad itionally been open to public speech. Because the property was a public forum pr ior to the sale, we conclude the retained easement has traditionally been open t o speech activities. In sum, the easement’s history, as well as the othe r contemporary characteristics of the easement discussed above, support the conclusion that the easement is a public forum. The objective nature a nd purpose of the easement and its similarity to other public sidewalks indicate it is essentially indistinguishable from other traditional public for a. We reach this conclusion in spite of the City’s express intent not to create a public forum, because the City’s declaration is at odds with the objective character istics of the property and the City’s express purpose of providing a pedestrian th roughway. Accordingly, we hold that the easement is a public forum.-36- C. We turn to whether the restrictions on speech activ ities on the easement are valid. In a traditional public forum, the governme nt’s power to restrict expressive conduct is “very limited.” Grace , 461 U.S. at 177. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling s tate interest and that it is narrowly drawn to achieve that end. The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternati ve channels of communication. Perry Educ. Ass’n , 460 U.S. at 45 (citation omitted). In public for a, “the government may not prohibit all communicative activ ity.” Id. The “restrictions” here virtually ban speech becaus e, as we pointed out above, the City and LDS Church maintain that the p ublic has no speech rights whatsoever on the easement except as the Church maypermit, which amounts to the same thing. As such, the restrictions are inva lid. Id. The Supreme Court has held such broad bans invalid even under a nonpublic forum analysis. See Bd. of Airport Comm’rs , 482 U.S. at 574-75 (invalidating ban on all “Firs t Amendment activity” at LAX airport). As Justice O’Connor wro te for a unanimous court: On its face, the resolution at issue in this case r eaches the universe of expressive activity, and, by prohibiting allprotected expression, purports to create a virtual “First Amendment Free Zone” at LAX. The resolution does not merely regulate expressive activity in the Central Terminal Area that might create problems su ch as congestion or the disruption of the activities of those who us e LAX. Instead, the-37-

resolution . . . prohibits even talking and reading , or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be fo und to violate the resolution by engaging in some “First Amendmentactivit[y].” We think it obvious that such a ban cannot be justi fied even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibitionof speech. Id. at 574-75. The City has similarly attempted to cre ate a “First Amendment Free Zone” on the easement and this attempt too mus t fail. The City contends that acquiescing to the LDS Churc h’s demand to control speech on the easement was necessary to obtain the Church’s agreement to buy the property. That may be true, but the City may n ot exchange the public’s constitutional rights even for other public benefit s such as the revenue from the sale, and certainly may not provide a public space or passage conditioned on a private actor’s desire that that space be expressio n-free. The City must “‘bear the attendant costs.’” Hawkins , 170 F.3d at 1288 (quoting ISKON , 505 U.S. at 700 (Kennedy, J., concurring in judgment)). If it want s an easement, the City must permit speech on the easement. Otherwise, it must relinquish the easement so the parcel becomes entirely private. The City and Church maintain they may legitimately seek to protect the Church and the sanctity of its property from public speech. This is true to a certain extent. As with any public forum, the City may enact reasonable time, place, and manner restrictions. See Perry Educ. Ass’n , 460 U.S. at 45.-38-

Governments routinely pursue public objectives in r egulating the time, place and manner of speech on public fora without running afo ul of the Constitution. Such legitimate objectives include public safety, accomm odating competing uses of the easement, controlling the level and times of noise, and similar interests. See , e.g. , Ward v. Rock Against Racism , 491 U.S. 781, 792 (1989) (government desire to “retain the character of the [park] . . . and to av oid undue intrusion into residential areas and other areas of the park” just ify noise level restrictions in public park); Frisby , 487 U.S. at 484-86 (interest in “residential priv acy” justifies ban on targeted picketing of particular houses). T hus while the purpose of the forum is a pedestrian easement, the City may take t he interests of surrounding property owners into account in enacting regulation s, and may seek to accommodate competing uses of the easement. We are not insensitive to the multitude of activiti es that occur in any downtown setting and the competing property uses atissue here, particularly given that the Church is the primary anchor of inte rest in the property. But the City may not take action that runs afoul of our fir st and primary amendment. Our Country’s dedication to both free expression and no n-Establishment are among its greatest heritages, and our fealty to the concept o f a marketplace of ideas in religion as well as other fields has been the hallm ark of our society. Moreover, we remind the City that “[t]he First Amendment is alimitation on government,-39-

not a grant of power.” ISKON , 505 U.S. at 695 (Kennedy, J., concurring in judgment). The City’s attempt to create a public t hroughway but withhold speech rights on that throughway is ineffectual simply bec ause the City has attempted to exercise power the First Amendment does not afford.

III Because we hold the easement restrictions invalid, we need not reach the plaintiffs’ remaining federal or state claims. The LDS Church does, however, raise two further arguments we must address. The C hurch asserts that granting the relief plaintiffs’ request would entangle the C ity in joint administration of the easement with the Church in violation of the Establ ishment Clause. We are not persuaded. We hold here that the City, not the Chu rch, has responsibility for regulating speech on the easement. While the City may legitimately accommodate the unique location and setting of the easement, to the extent the City overly involves the Church in that regulation it will run afoul of the limits on its actions we announce today. The LDS Church also claims that permitting public s peech on the easement would infringe on the Church’s right of free expres sion. We also reject this contention because the Church has no First Amendment right to be protected from public speech. The speech of others does not, as amatter of law, infringe on an12 Appellee’s “Motion to Strike” filed August 27, 2001 , by the Corporation

of the Presiding Bishop of the Church of Jesus Chri st of Latter-Day Saints is denied. -40- individual’s own free speech rights. See PruneYard Shopping Center , 447 U.S. at 85-87 (free speech rights of shopping mall owner no t infringed upon by state law requiring owner to permit speech in mall). Our conclusions in this case do not depend on any f acts in dispute. Accordingly, summary judgment for plaintiffs is app ropriate. Z.J. Gifts D-2, LLC , 136 F.3d at 685 (citing Dickeson , 844 F.2d at 1444-45 n.8). Plaintiffs are entitle d to declaratory and injunctive relief with respect t o the ban on expressive conduct on the easement.

IV For the reasons stated above, we REVERSE the judgment of the district
court and REMAND with instructions to enter judgment for plaintiffs consistent with this opinion. 12