Freedom Found. v. Wash. Dep't of Ecology

FREEDOM FOUNDATION, Plaintiff-Appellant, v. WASHINGTON DEPARTMENT OF ECOLOGY, ET AL., Defendants-Appellees.

No. 20-35007

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: October 9, 2020

December 21, 2020

NOT FOR PUBLICATION

D.C. No. 3:18-cv-05548-RBL

MEMORANDUM^*

Appeal from the United States District Court for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted October 9, 2020 Seattle, Washington

Before: HAWKINS, GILMAN,^** and CALLAHAN, Circuit Judges.

Dissent by Judge CALLAHAN

Freedom Foundation appeals the denial of its motion for summary judgment and grant of summary judgment to the Washington Department of Ecology, et al.("Ecology"). Freedom Foundation asserts that Ecology has maintained and enforced speech restrictive policies that deprive Freedom Foundation of its right to free speech under the First Amendment by prohibiting Freedom Foundation from canvassing in Ecology's lobby. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

There was no error in determining that Ecology's lobby is a nonpublic forum, as it is clear that Ecology did not intend to open its lobby to public visitors. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) ("The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse."). To ascertain the government's intent, we assess "the nature of the property and its compatibility with expressive activity" and "the policy and practice of the government." Id.

The physical structure of Ecology's lobby is not conducive to expressive activity. Ecology's statewide headquarters consists of a three-story building that houses Ecology's employees and staff for three tenant agencies. The lobby is partitioned into various units, including a reception and security area, work cubicles, seating for visitors, and a walkway connecting two locked workspaces.

Ecology's policies similarly indicate that the lobby is not open for public communication. Such policies require visitors to sign in, state the reason for their visit, and receive a badge before accessing the lobby. Both employees and visitorsare generally prohibited from using the lobby to promote a commercial enterprise or solicit for outside organizations. Ecology employees must receive administrative approval before hosting public hearings or events that invite outside organizations into the lobby. Ecology strictly enforces these policies and has prohibited outside organizations, such as the Sierra Club and Olympia Coffee Roasting Company, from protesting, soliciting, and leafletting in the lobby. See Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1886 (2018) (holding that a polling place is a nonpublic forum because "[r]ules strictly govern who may be present, for what purpose, and for how long"). Ecology's lobby is therefore a nonpublic forum.

In nonpublic forums, speech restrictions need only be reasonable and not discriminate based on the speaker's viewpoint to pass constitutional muster. Id. at 1885. Freedom Foundation, on this record, has not established that Ecology's speech restrictive policies are unreasonable or viewpoint discriminatory. Ecology may reasonably reserve its lobby for communication about Ecology business and its policies provide substantial alternative channels for outside organizations to canvass in the plaza directly outside the lobby and the street next to the building. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 50, 53-54 (1983). Moreover, the discretion Ecology officials do have in enforcing Ecology's speech restrictive policies is "guided by objective, workable standards." Mansky, 138 S. Ct. at 1891. Upon an employee's request to invite an outside organization or charityinto the lobby, Ecology officials determine whether extending that invitation is connected to a specific, work-related or charitable activity authorized by the State legislature.¹

There is also no evidence of disparate treatment in Ecology's application of its speech restrictive policies. Freedom Foundation argues that Ecology's enforcement of its speech restrictive policies is viewpoint discriminatory because Ecology has granted access to other organizations, such as Intercity Transit, Joy Ride Bikes, and the Washington Federation of State Employees (the "WFSE"),² while rejecting Freedom Foundation. But the organizations that Ecology has welcomed into the lobby fit within Ecology's permissible and workable policies; they areconnected to a specific, work-related or charitable activity authorized by the State legislature, and they have undergone Ecology's application process and its practice of screening the information that invited organizations may share. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) ("[W]e have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message."); Perry, 460 U.S. at 50-51 (holding that a school district had a legitimate interest in "preserving the property for the use to which it is lawfully dedicated") (quoting USPS v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129-30 (1981)) (cleaned up). For example, upon receiving administrative approval for their visits, Ecology employees welcomed Intercity Transit and Joy Ride Bikes to share information about efficient commute options in connection with implementing Ecology's commute trip reduction program. By contrast, Ecology denied lobby access to the Sierra Club, which wanted to use the lobby to stage a protest, and to Olympia Coffee Roasting Company, which wanted to host a coffee tasting, because those organizations' activities—like Freedom Foundation's leafletting—did not align with Ecology's policies.

Freedom Foundation additionally highlights a conversation, involving Ecology's security guard, that occurred during its 2015 canvassing attempt as evidence that Ecology engaged in viewpoint discrimination. But the remarks ofEcology's security guard, an employee of an independent company providing building security services and not a municipal employee or a final policymaker for Ecology, about lobby access or otherwise cannot be imputed to Ecology under 42 U.S.C. § 1983. See Barone v. City of Springfield, Oregon, 902 F.3d 1091, 1106-07 (9th Cir. 2018). Further, the undisputed record evidence demonstrates that not "everyone" is allowed access to the lobby and, in fact, at least two organizations (the Sierra Club and Olympia Coffee Roasting Company) aside from Freedom Foundation have been denied such access.

Freedom Foundation further argues that Ecology's revision to its policies shortly after Freedom Foundation's initial canvassing attempt constitutes circumstantial evidence of viewpoint discrimination. But Ecology's revision, even when viewed most favorably to Freedom Foundation, was created in reaction to Freedom Foundation's security breach and simply served to clarify what had always been true—that visitors, like Ecology employees, are prohibited from using state resources to support outside organizations. Thus, Freedom Foundation has failed to demonstrate that Ecology's speech restrictive policies violated its First Amendment rights.

AFFIRMED.

CALLAHAN, Circuit Judge, dissenting:

Governments rarely target a speaker's viewpoint outright. For this reason, we must take care to ensure that policies and actions that appear neutral on their face are not, in reality, "a facade for viewpoint-based discrimination." See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 811 (1985). Because the record here raises a triable inference of just such discrimination, I dissent.

This case concerns two attempts by Freedom Foundation to distribute anti-union materials in Ecology's lobby. In 2015, during the first attempt, a security guard welcomed the canvassers, believing them to be from the union. This warm reception cooled, however, when the guard learned the visitors' actual affiliation. "We have a good...