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8th Circuit upholds municipal policy prohibiting leaflet distribution outside city-owned arena

Updated: Jun 29, 2022

In Ball v. City of Lincoln, Nebraska, (8th Cir., Aug. 29, 2017), the Eighth Circuit upheld the City of Lincoln, Nebraska’s policy designating a City-owned plaza area outside of an arena as a nonpublic forum and prohibiting leaflet distribution on the plaza. The plaintiff, Mr. Ball, sued the City after he was arrested for trespassing while handing out leaflets on the plaza. Ball claimed that the City violated his First Amendment free-speech rights. Typically, restrictions on speech in traditional “public forums,” like sidewalks and parks, are subject to much higher scrutiny than restrictions on speech in “nonpublic” forums. Although the plaza area was City-owned and adjacent to a public sidewalk, the Eighth Circuit rejected Ball’s claims, held that the plaza area was a nonpublic forum, and that the City could prohibit leaflet distribution there. The Court reasoned that because the plaza area was physically distinct from the adjacent public sidewalks (marble vs. concrete), the designed and actual use was primarily commercial, and the evidence showed that the City’s primary intent with respect to the plaza area was to facilitate safe and efficient commercial events at the Arena, the area was not a traditional public forum. The simple fact that members of the public “are permitted to come and go at will” does not mean that the area was a “public forum,” and thus, the City’s policy of prohibiting leaflet distribution was sufficiently reasonable.

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