The 10th U.S. Circuit Court of Appeals has denied Denver’s emergency request for a stay of a lower court decision that ordered the city to allow more timely protests at Denver International Airport.
“This is a huge victory for the First Amendment and the right of all citizens to protest Trump’s Muslim ban,” said David Lane, attorney for plaintiffs who sued the city claiming its protest rules are too restrictive. “People are now free to go to DIA to protest the Muslim ban.”
The 10th U.S. Circuit Court of Appeals had granted a temporary stay on Feb. 23 in response to an emergency motion by Denver to block an injunction by U.S. District Court Judge William Martinez, who ordered amendments to the city’s Rule 50 protest restrictions.
The 10th Circuit on Tuesday denied the city’s request for the emergency stay pending appeal.
Nazli McDonnell and Eric Verlo filed a lawsuit against Denver after they went to DIA two days after Trump’s Jan. 27 executive order that restricted the travel and immigration to the U.S. of people from seven Muslim-majority countries.
On Feb. 22, Martinez ordered Denver to speed up permitting requirements in certain circumstances to allow protests to take place one day after requesting a permit. The city currently requires protesters to apply a week in advance.
In his ruling, Martinez wrote that exceptions to the seven-day rule should be made if the protest relates to the mission of the airport and the issue is of immediate concern, such as the travel ban.
The city must “make all reasonable efforts to accommodate the applicant’s preferred demonstration location, whether inside or outside of the Jeppesen Terminal, so long as the location is a place where the unticketed public is normally allowed to be,” Martinez wrote.
Martinez did not grant all of the plaintiffs’ requests. For example, the court did not order the airport to accommodate truly spontaneous demonstrations. The airport is not required to allow demonstrators to unilaterally determine the location of demonstrations and the seven-day permitting requirement was not deemed unconstitutional in all circumstances.
Martinez pointed out that there are different standards for locations that are deemed public forums and those that are not. In this case, Martinez determined that the Jeppesen Terminal is not a public forum, based on a U.S. Supreme Court decision.
The high court had ruled that airport terminals generally have not been available for speech activity. In the DIA case, Martinez wrote that plaintiffs failed to prove that the Jeppesen Terminal is a public forum. The primary purpose of the terminal is to facilitate travel and ensure the safety of travelers and therefore it is reasonable to require advanced notice when people are there for reasons other than travel or meeting travelers, he ruled.