Rita WARREN, Plaintiff-Appellant, v. FAIRFAX COUNTY, Defendant-Appellee, 196 F.3d 186

Reversed by published opinion. Judge MURNAGHAN wrote the majority opinion, in which Chief Judge WILKINSON and Judge HAMILTON, LUTTIG, MICHAEL, MOTZ, TRAXLER, and KING joined. Chief Judge WILKINSON wrote a concurring opinion. Judge NIEMEYER wrote a dissenting opinion, in which Judges WIDENER and WILLIAMS joined. OPINION MURNAGHAN, Circuit Judge: Stretching in front of the Fairfax County Government Center Complex is a large grassy mall, approximately thirty yards wide and spanning about 200 yards (the “Center Island mall” or the “mall”). Sidewalks circumnavigate the mall and amble along a central landscaped strip.

The area of the mall abutting the Government Center Complex features a circular brick promenade complemented by additional landscaping. Surrounding the mall is the street which leads to the Government Center Complex. The entire mall is outdoors, unenclosed, publicly accessible, and in fact open to the public. In November 1996 Rita Warren, a resident of Fairfax City, filed for a permit to erect a holiday display on the Center Island mall. Fairfax County (the “County”) and Fairfax City are separate jurisdictions in Virginia.

Fairfax City is much smaller than the County and is surrounded in its entirety by the County. Fairfax County Procedural Memorandum No. 08-05 (Nov. 18, 1996) (the “Memorandum”) governs use of the Center Island mall. The Memorandum states that it is County policy “to encourage use of the common areas of the Government Center Complex by [qualified persons] for civic, cultural, educational, religious, recreational and similar activities_” Memorandum, at 2.

The Memorandum limits the scope of qualified persons to county residents, county employees, and county non-profits, defined as “[a]ny nonprofit organization which has an office in Fairfax County and/or serves the citizens of Fairfax County... ,” Memorandum, at 4. Because Warren was not a resident or employee of the County, the County denied Warren permission to engage in First Amendment activity on the Center Island mall.

Warren filed suit in the federal district court for the Eastern District of Virginia, challenging the County’s action as a violation of her Fourteenth Amendment rights of freedom of speech and equal protection. The district court initially granted Warren a preliminary injunction against enforcement of the Memorandum as applied to the Center Island mall. Later, however, the district court held in favor of the County. See Warren v. Fairfax County, 988 F.Supp. 957 (E.D.Va.1997).

The district court reasoned that the Center Island mall was not a traditional public forum, but instead was a designated limited public forum, and Warren was not a member of the class to whom the Center Island had been opened. See id. at 962-64. Further, the district court held that the residency restriction in the Memorandum passed constitutional muster because it was reasonable and viewpoint neutral. See id. at 964-67. On appeal, a divided panel of this Court affirmed the district court. See Warren v. Fairfax County, 169 F.3d 190 (4th Cir.1999).

The panel decision was vacated on April 21, 1999, when the Court granted Warren’s petition for rehearing en banc. Now, the Court adopts as its own sections II, 111(A), III(B), and III(

C) of the dissenting panel opinion, appended to this opinion. We hold that the Center Island mall is a traditional public forum under the law detailed in

section II of that opinion. See Warren, 169 F.3d at 197-201 (Murnaghan, J., dissenting) [hereinafter, all references to Warren are to the panel dissent]. The Center Island mall has the physical characteristics of a traditional public forum. See, e.g., Int’l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 686, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (O’Connor, J., concurring in ISKCON v. Lee and concurring in the judgment in Lee v. Int’l Society of Krishna Consciousness, Inc., 505 U.S. 830, 112 S.Ct. 2709, 120 L.Ed.2d 669 (1992)); United States v.

Kokinda, 497 U.S. 720, 727, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion). It is an open public thoroughfare best characterized as a park or mall. See Warren, 169 F.3d at 198-99, 201. The Center Island mall has the objective use and purpose of a traditional public forum. See Warren, 169 F.3d at 198-99, 202. Its objective use is as a place of open public access, which is eminently compatible with expressive activity. See Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 678, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875 (1998).

Finally, the Center Island mall is part of a class of property which by history and tradition has been open and used for expressive activity. See Warren, 169 F.3d at 198-99, 202. The Center Island mall is part of the outdoor grounds of a seat of legislative and/or executive power. See id. at 202. Alternatively, the Center Island mall is a traditional public forum because it is merely a combination of the three prototypical examples of traditional public fora—streets, sidewalks, and parks. See id. at 203-04.

The designation of an area as a traditional public forum does not prevent localities from addressing such significant concerns as public safety and the movement of traffic. The Supreme Court has made clear that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Ward v.

Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). The restriction here fails because it is not narrowly tailored to achieve a significant state interest. See Warren, 169 F.3d at 204-05. Also, under Arkansas Educational Television Commission v.

Forbes, a state entity cannot exclude a speaker from a traditional public forum altogether unless “ ‘the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.’ ” Forbes, 523 U.S. at 677, 118 S.Ct. at 1641 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). Here, the exclusion of non-residents passes neither prong—it serves no compelling interests and it is not narrowly tailored to achieve the interests that it does serve. See Warren, 169 F.3d at 204-05.

Accordingly, we strike down the Memorandum as violative of First and Fourteenth Amendment rights insofar as it applies to the Center Island mall. The district court by en banc majority opinion is REVERSED. ADDENDUM Parts II AND III of Judge Murnaghan’s dissent from the panel opinion reported at 169 F.3d 190. II. The Supreme Court recently confirmed that courts should evaluate First Amendment rights on government-owned property under a public forum analysis. See Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, —, 118 S.Ct. 1633, 1641, 140 L.Ed.2d 875 (1998).

The public forum analysis was created to recognize that the government must be able to limit the use of its property to the intended purpose for which the property was created, see, e.g., Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), and to limit access to those rightfully conducting business there, see, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 53, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

Toward that end, the Court has identified at least three types of fora for First Amendment purposes, each subject to a different regime of constitutional scrutiny: the traditional public forum, the designated public forum, and the non-public forum. Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1641 (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. 3439). The Court distinguishes between these fora based upon the physical characteristics of the property, including its location, see, e.g., Frisby v. Schultz, 487 U.S. 474, 480-481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); United States v.

Grace, 461 U.S. 171, 177, 179, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); the objective use and purposes of the property, see, e.g., Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1641; Cornelius, 473 U.S. at 800, 805, 809, 105 S.Ct. 3439; and government intent and policy with respect to the property, which may be evidenced by its historic and traditional treatment, see, e.g., Int’l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680-681, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). None of these factors is dis-positive. See United States v.

Kokinda, 497 U.S. 720, 727, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion) (physical characteristics of property not dispositive); Grace, 461 U.S. at 177, 103 S.Ct. 1702 (fact that property is subject to use by general public is not dispositive); Lee v. Int’l Society for Krishna Consciousness, Inc., 505 U.S. 830, 112 S.Ct. 2709, 120 L.Ed.2d 669 (1992) (government policy prohibiting distribution of literature on property struck down); Cornelius, 473 U.S. at 805, 105 S.Ct. 3439 (government’s decision to limit access is not itself dispositive).

Traditional public fora have objective characteristics which “require the government to accommodate private speakers.” Ark Educ., 523 U.S. at —, 118 S.Ct. at 1641. See also ISKCON v. Lee, 505 U.S. at 686, 112 S.Ct. 2701 (O’Connor, J., concurring in ISKCON v. Lee and concurring in the judgment in Lee v. ISKCON) (Public access to traditional public fora is “ ‘inherent in the open nature of the locations’ ”) (quoting Kokinda, 497 U.S. at 743, 110 S.Ct. 3115 (Brennan, J., dissenting)).

The typical traditional public forum is property which has the physical characteristics of a public thoroughfare, see, e.g., Kokinda, 497 U.S. at 727, 110 S.Ct. 3115 (plurality opinion), which has the objective use and purpose of open public access or some other objective use and purpose inherently compatible with expressive conduct, see, e.g., Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1641, and which by history and tradition has been used for expressive conduct, see, e.g., Perry, 460 U.S. at 45, 103 S.Ct. 948.

The archetypical examples of traditional public fora are streets, sidewalks, and parks: 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, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. Hague v. C.I.O., 307 U.S. 496, 515-16, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). See also Grace, 461 U.S. at 177, 103 S.Ct. 1702.

Since it is so likely that any given street, sidewalk, or park meets all three characteristics of a traditional public forum a court can generally treat a street, sidewalk, or park as a traditional public forum without making a “particularized inquiry”. See Frisby v. Schultz, 487 U.S. at 481, 108 S.Ct. 2495; Grace, 461 U.S. at 179-180, 103 S.Ct. 1702; ISKCON v. Lee, 505 U.S. at 697, 112 S.Ct. 2701 (Kennedy, J., concurring in the judgments in ISKCON v. Lee and Lee v. ISKCON).

Occasionally, further inquiry may be necessary even when property has the physical characteristics of a traditional public forum and is generally open to public traffic. For instance, neither a sidewalk on a military base over which the military has retained control, compare Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), with Flower v.

United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) (per curiam), cited with approval in Greer, 424 U.S. at 835, 96 S.Ct. 1211, nor a single-purpose sidewalk physically separated from the rest of municipal sidewalks and part of a class historically subject to restrictions, see Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (plurality opinion), are traditional public fora. The Supreme Court has recently stated that traditional public forum status does not “extend[ ] beyond its historic con-fínes .... ” Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1641.

The Court has never precisely stated what those confines are, however. For instance, the Court has never defined the terms “street,” “sidewalk,” or “park.” Nor has the Court strictly limited the traditional public forum category to streets, sidewalks, and parks. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (leased municipal theater is a public forum); Heffron v. Int'l Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (state fair is a public forum); Edwards v.

South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (grounds of state capí-tol are a traditional public forum). Access to traditional public fora may be limited only by content-neutral and “reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ... ’are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v.

Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). Exclusion on the basis of speaker-identity is valid only where the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1641 (quoting Cornelius, 473 U.S. at 800, 105 S.Ct. 3439). The second category is the nonpublic forum.

Some Supreme Court precedent indicates that all government properties which are not traditional public fora and which the government has not intentionally opened to expressive conduct are nonpublic fora. See ISKCON v. Lee, 505 U.S. at 680, 112 S.Ct. 2701. But see Kokinda, 497 U.S. at 738-39, 110 S.Ct. 3115 (Kennedy, J., concurring in the judgment) (objective characteristics and customary use by the public may control forum designation over government intent). Accord ISKCON v. Lee, 505 U.S. at 693, 112 S.Ct. 2701 (Kennedy, J., concurring in the judgments in ISKCON v. Lee and Lee v. ISKCON).

Covering such a wide variety of property, it is difficult to narrow the exact physical characteristics, objective uses and purposes, and government intent that must characterize nonpublic fora. One characteristic has been assumed in all of the Supreme Court cases that address the issue, however: opening the nonpublic forum to expressive conduct will somehow interfere with the objective use and purpose to which the property has been dedicated. See, e.g., Ark. Educ., 523 U.S. at —, —, 118 S.Ct. at 1641, 1643; ISKCON v.

Lee, 505 U.S. at 681, 112 S.Ct. 2701; id. at 699, 112 S.Ct. 2701 (Kennedy, J., concurring in the judgments in ISKCON v. Lee and Lee v. ISKCON); Kokinda, 497 U.S. at 728-29, 733, 110 S.Ct. 3115 (plurality opinion) (designation as nonpublic forum depends, in part, on purpose of property; solicitation disrupts purpose); Cornelius, 473 U.S. at 800, 105 S.Ct. 3439; United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 130 n. 6, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981); Greer v. Spock, 424 U.S. at 838, 96 S.Ct. 1211; Adderley v. Florida, 385 U.S. at 47-48, 87 S.Ct. 242.

The Supreme Court has addressed this characteristic in evaluating the types of speech restrictions that are permissible in nonpublic fora. Restrictions on speech in nonpublic fora must be viewpoint neutral and reasonable “in light of the purpose of the forum and all the surrounding circumstances”. Cornelius, 473 at 809, 105 S.Ct. 3439. Therefore, restrictions on speech in public fora are justified to the extent that the speech at issue would interfere with the objective purposes and use of the forum. See, e.g., ISKCON v. Lee, 505 U.S. at 688, 692, 112 S.Ct. 2701 (O’Connor, J., concurring in ISKCON v.

Lee and concurring in the judgment in Lee v. ISKCON) (quoting Perry, 460 U.S. at 50-51, 103 S.Ct. 948, itself quoting U.S.P.S. v. Greenburgh, 453 U.S. at 129-130, 101 S.Ct. 2676) (reasonableness justified by “lawfully dedicated” intended use of the property). See also Multimedia Pub. Co. v. Greenville-Spartanburg Airport District, 991 F.2d 154, 159 (4th Cir.1993) (“the overall assessment [as to reasonableness] must be undertaken with an eye to the ‘intended purposes,’ of [the property] and of the ways in which the regulated conduct ... might actually interfere with the carrying out of those purposes.”).

The final category is actually a hybrid of the other two. So-called “designated public fora” (often called “limited public fora”) are those properties which the government has opened for expressive activity to the public, or some segment of the public. Ark. Educ., 523 U.S. at —, 118 S.Ct. 1633. A designated public forum can be opened only to a limited class of speakers or for limited topics. Perry, 460 U.S. at 46 n. 7, 103 S.Ct. 948. Merely allowing some speech on property that is not a traditional public forum does not automatically create a designated public forum.

The Supreme Court recently clarified the distinction. The government creates a designated public forum when it purposefully makes property “generally available” to a class of speakers. See Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1642 (quoting Widmar v. Vincent, 454 U.S. 263, 264, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981)). By contrast, the government may retain nonpublic forum status by allowing selective, permission-only access to the forum. See id. The granting of such permission must be contingent upon non-ministerial judgments. See id.; Cornelius, 473 U.S. at 804, 105 S.Ct. 3439.

Two levels of First Amendment analysis are applicable to limited public fora. First, is the “internal standard”— “[i]f the government excludes a speaker who falls within the class to which a designated [limited] public forum is made generally available, its action is subject to strict scrutiny.” Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1641. That is, as regards the class for which the forum has been designated, a limited public forum is treated as a traditional public forum.

So, for instance, a University may not exclude certain student speakers from meeting space or university funding otherwise available on a generalized basis to students and student groups. See Widmar, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440. Cf. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (exclusion was viewpoint-based). The second standard, the “external standard”, places restrictions on the government’s ability to designate the class for whose especial benefit the forum has been opened.

The Supreme Court has not yet clearly stated what these external limitations are, except to say that once a limited forum has been created, entities of a “similar character” to those allowed access may not be excluded. Perry, 460 U.S. at 48, 103 S.Ct. 948. Cf. also id. at 55, 103 S.Ct. 948 (“the state may draw distinctions which relate to the special purpose for which the property is used”); Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1647 (Stevens, J., dissenting) (“the First Amendment will not tolerate arbitrary

definitions of the scope of the forum.”); Cornelius, 473 U.S. at 825-27, 105 S.Ct. 3439 (Blackmun, J., dissenting) (discussing limits, if any, placed on government’s ability to define the scope of a limited public forum). Initially, since designated public fora, in the absence of an affirmative governmental designation, would be treated as nonpublic fora, it would seem logical that the selection of the class would be subject only to the-standards applicable to restrictions on speakers in a nonpublic forum.

That is, the selection of a class by the government must only be viewpoint neutral and reasonable in light of the objective purposes served by the forum. See ante at 191. III. A. The Center Island mall is a traditional public forum. The Center Island mall has the physical characteristics of a public thoroughfare like a park or a mall; it has the objective use and purposes of open public access and its use is eminently compatible with expressive activity; and it is part of a class of property which by history and tradition has been open and used for expressive activity.

The Center Island mall has the physical characteristics of a public thoroughfare like a park or a mall. The district court and the majority disagree. They describe the Center Island mall as merely a landscaped “median dividing a u-shaped driveway” and they argue that landscaped medians are not traditional public fora. Both contentions are wrong. The Center Island mall is not merely a landscaped median strip.

We have not been given the exact dimensions of the Center Island mall, but the aerial photos indicate that it is at least 30 yards wide and approximately two hundred yards long (i.e., it has more square footage' than a football field), divided into three sections of roughly equal size by street intersections. Sidewalks circumnavigate the mall and traverse a center landscaped area, inviting pedestrians to stroll along the mall and explore the landscaping further. The

section of the mall closest to the Government Center features a circular landscaped area with additional walkways. A “mall” is defined as “a usu[ally] public area (typically a lane or similar strip) often set with trees or bushes or flowers and designed as a promenade for leisurely strolling or as a pedestrian walk.” Webster’s Third New International Dictionary 1367 (unabr.1993). A park is “a tract of land maintained by a city or town as a place of beauty or of public recreation.” Id. at 1642. The Center Island mall fits neatly into these

definitions. The majority tries to avoid these common sense designations of the Center Island mall by focusing on the fact that the Center Island mall is surrounded by a “driveway”. The fact that the Center Island mall is surrounded by streets or a “driveway” does not suggest that it is not a public forum. Municipal parks and malls are always surrounded by streets. Because of limited space in municipalities, parks and malls must be squeezed between streets, serving both as destinations for park-type activities and as traffic control mechanisms. See, e.g., Flamer v.

City of White Plains, New York, 841 F.Supp. 1365, 1368 (S.D.N.Y.1993) (noting that municipal park was merely-a median between two streets, only 15 feet wide at its narrowest end). Under the majority’s approach, one could argue that the National Mall is merely a median dividing Independence Avenue from Constitution Avenue, or, more to scale, that the Mount Vernon park in Baltimore, housing the nation’s first Washington monument, is merely a median dividing traffic on Charles Street.

In fact, that the Center Island mall is an open area surrounded by a “U-shaped driveway” lying directly in front of a seat of government provides support for the idea that the Center Island mall is a traditional public forum. The physical characteristics of the Center Island mall are strikingly similar to the government center grounds in Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. There the Supreme Court described the grounds on and around which the protesters were marching as the “horseshoe,” a fairly large open area, surrounded by sidewalks. Edwards, 372 U.S. at 230, 83 S.Ct. 680.

The “horseshoe” received its name because it was defined by a U-shaped driveway. See id. at 230-32, 240 & n. 3, 83 S.Ct. 680 (majority opinion and Clark, J., dissenting). The Supreme Court had no trouble treating the horseshoe — an open area surrounded by a U-shaped driveway — as a traditional public forum. See id. at 235-236, 83 S.Ct. 680. I would follow the Supreme Court’s lead. The Center Island mall has the objective use and purpose of open access to the general public, which is eminently compatible with the widest scope of expressive activity.

The majority argues that areas like the Center Island mall do not have the objective purpose and use to promote expressive activity because they are “designed primarily for aesthetic purposes such as plantings”. Ante, at 191. This is irrelevant, however; the fact that the Center Island mall may have been designed primarily for “aesthetic purposes, such as plantings” does not provide support for the majority’s position. First, the primary purpose for which a particular piece of property was created is not dispositive.

One cannot seriously argue with Justice Kennedy’s observation that the traditional public fora of streets, sidewalks, and parks are not primarily designed for expressive purposes. See ISKCON v. Lee, 505 U.S. at 696-97, 112 S.Ct. 2701 (Kennedy, J., concurring in the judgments in ISKCON v. Lee and Lee v. ISKCON). Sidewalks are designed for safer and more convenient walking; the Supreme Court has noted that “the primary purpose to which the streets are dedicated” is “the movement of people and property.” Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155 (1939). As the

definitions quoted above indicate, and any stroll will confirm, parks and malls are often designed merely for aesthetic purposes, including plantings. The test is not whether the property was designed for expressive activity, but whether the objective uses and purposes of the property are compatible with the wide measure of expressive conduct characterizing public fora. See Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (“The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”).

There is no doubt that the objective use and purpose of the Center Island mall is compatible with expressive activity. The Center Island is an outdoor, non-enclosed area, open to the public. The County has admitted that speech is compatible with the Center Island mall by “encouraging” qualified persons (who number close to one million people) to use it for all manner of expressive activity. The district court agreed with the County’s assessment: .

Because it is close to the seat of government and yet far enough away that activity there would cause no disruption, it is a particularly apt location in which to engage in political or otherwise protected speech. 988 F.Supp. 957, 963. In fact, up until November 1996, access to the Center Island was apparently open to all speakers via a licensing procedure. Ms. Warren was actually allowed to mount a Christmas display on the grounds of the Government Center Complex in 1995. Finally, the Center Island-is part of a class of property which, by history and tradition, has been treated as a public forum.

It is a part of the grounds of a seat of legislative and executive power. “In general, the grounds ... of state and federal capitol complexes ... have consistently been held to be public fora.” ACTUP v. Walp, 755 F.Supp. 1281, 1287 (M.D.Pa.1991) (citing, inter alia, Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736). See also Edwards, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Adderley v. Florida, 385 U.S. at 41, 87 S.Ct. 242 (distinguishing Edwards by stating, “[traditionally, state capitol grounds, are open to the public. Jails ... are not.”); Women Strike for Peace v.

Morton, 472 F.2d 1273, 1287 (D.C.Cir.1972) (Wright, J., concurring) (“Parks are much more like state capitol grounds .... [they] have long been regarded as ‘a particular kind of community area that, under the Anglo-American tradition, are available, at least to some extent and on a reasonable basis, for groups of citizens concerned with the expression of ideas.’ ”) (quoting Women Strike for Peace v. Hickel, 420 F.2d 597, 600 (1969)).

Thus, we are faced with a park or a mall, strikingly similar to property already determined by the Supreme Court to be a traditional public forum, which is open to the public, which is suitable and actually used for expressive activity, and which, lying directly in front of a seat of government power, is part of a class of property traditionally open to expressive activity. I cannot fathom how the majority maintains that the Center Island mall is not a public forum. B.

Even if I was to agree with the majority that the Center Island mall is only a landscaped median strip, I would disagree with the majority’s conclusion that median strips are not traditional public fora. Neither the district court nor the majority cited to any authority supporting their novel attempt to carve out an exception from the public forum doctrine for property that, quite literally, lies at the heart of the Supreme Court’s quintessential example of the traditional public forum.

If streets, sidewalks and parks are traditional public fora, then a court bears a heavy burden in explaining why property which is merely a combination of all three from the standpoint of physical characteristics, objective uses and purposes, and traditional and historic treatment, is not. Median strips, like sidewalks, are integral parts, of the public thoroughfares that constitute the traditional public fora. In many cases, median strips house sidewalks.

If a person who is rightfully on a street or sidewalk left open to the public “carries with him there as elsewhere the constitutional right to express his views in an orderly fashion,” Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 87 L.Ed. 869 (1943), I do not see how the person loses that right merely by stepping onto the median. Nor does the general public. Consistent with the median strip’s function as part of the public thoroughfares traditionally open to the public for expressive activities, people have been engaging in such activity on median strips for as long as median strips have been in existence.

Newspaper criers, local civic fundraisers, members of political campaigns, religious groups, and people with a message have often chosen median strips, with their ready access to the bustle of undifferentiated humanity, as their preferred launching point for expressive conduct. In fact, given that streets and sidewalks are the prototypical examples of traditional public fora, I am perplexed at the majority’s conclusory, one-sentence dismissal of the idea that medians are not part of these traditional public fora.

Especially so, since every other court that has addressed the matter has treated medians for First Amendment purposes as part and parcel of the streets and sidewalks of which they form an integral part, including the Ninth Circuit, the Sixth Circuit, the Fifth Circuit, the Eighth Circuit, and a court in the Eleventh Circuit. See Sloman v. Tadlock, 21 F.3d 1462, 1465, 1469 (9th Cir.1994); ACORN v. City of Phoenix, 798 F.2d 1260, 1267 (9th Cir.1986); Ater v. Armstrong, 961 F.2d 1224, 1225, 1227 (6th Cir.1992); Int’l Society for Krishna Consciousness of New Orleans, Inc. v.

City of Baton Rouge, 876 F.2d 494, 497 (5th Cir.1989); Acorn v. City of New Orleans, 606 F.Supp. 16, 19-20 (E.D.La.1984); Ass’n of Community Organizations for Reform Now v. St. Louis County, 930F.2d 591, 593, 594 (8th Cir.1991); News & Sun-Sentinel Co. v. Cox, 702 F.Supp. 891, 899 (S.D.Fla.1988). The majority does not cite to even one of these cases. In each of these cases, restrictions that affected an. individual’s use of medians for expressive purposes were analyzed under the traditional public forum analysis. C.

Therefore, no matter whether the Center Island mall is a park or a mall or a landscaped median strip, it is still a traditional public forum. Content-neutral regulation of speech in the Center Island mall is thus limited to “reasonable restrictions on the time, place, or manner ... provided the restrictions ... ‘are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” Ward v. Rock Against Racism, 491 U.S. at 791, 109 S.Ct. 2746 (quoting Clark v.

Community for Creative Non-Violence, 468 U.S. at 293, 104 S.Ct. 3065). The County cannot exclude a speaker from the Center Island unless “ ‘the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.’ ” Ark. Educ., 523 U.S. at —, 118 S.Ct. at 1641 (quoting Cornelius, 473 U.S. at 800, 105 S.Ct. 3439). The County’s exclusion of non-residents must fall before these tests. The County’s exclusion of non-residents is not a reasonable time, place, or manner restriction.

Recognizing the important traffic and safety concerns at issue, several courts have upheld limits or even bans on certain speech in areas in close proximity to streets with moving traffic, including median strips, as reasonable time, place, or manner restrictions. See, e.g., ACORN v. City of Phoenix, 798 F.2d at 1267; ISKCON of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d at 497. The County has not asserted any traffic or safety need to shut down the Center Island mall to expressive conduct by non-residents.

Nor could the County make such a claim — its avowed goal is to encourage qualified persons to use the Center Island mall for expressive conduct. Therefore, the residency restriction is unreasonable as a time, place, and manner restriction. Nor is the County’s exclusion of nonresident speakers narrowly tailored to achieve compelling state interests.

The County has asserted numerous interests served by its residents-only policy: (1) it reduces the County’s maintenance, upkeep, and wear-and-tear costs, because, inter alia, it reduces the amount of resources the County must devote to ensure compliance with the other terms of the Memorandum; (2) it ensures the availability of the Center Island mall for use by residents; (3) it is an efficient way to allocate limited resources; (4) it reduces the clutter that might accrue on the Center Island mall by limiting the number of potential users who may set up a display; (5) it provides a benefit to County residents whose tax dollars built and maintain the Complex; and (6) it avoids the creation of an indiscriminately opened public forum.

Assuming that at least some of these interests are compelling, the residents-only policy must be struck down because it is not narrowly tailored to achieve any of these ends. While narrow tailoring under the time, place, and manner standard does not require use of the least-restrictive alternative, Ward, 491 U.S. at 797, 109 S.Ct. 2746, the County may not burden substantially more speech than is necessary to further its interests, id. at 799, 109 S.Ct. 2746. Here, the County’s policy burdens substantially more speech than necessary to further any of its asserted interests.

The County has closed this public forum to the entire world of speakers except the class of qualified persons. The same interests could be achieved with much less burden by the simple expedients of charging fees for upkeep and monitoring costs, or by creating a priority system favoring qualified persons. Further, the record shows that, in fact, the County’s policy is wholly unnecessary as concerns the Center Island mall. Since November 1996, only eight applications have been received for private displays in the Center Island mall; six of these have been from Ms. Warren or one of her supporters.

The Center Island mall is large enough to accommodate numerous displays at the same time. Since we are not using a rational basis analysis we need not credit theoretical arguments raised by the County. Certainly the demand for use of the Center Island mall has not necessitated the County’s residents-only policy. I would therefore strike down the residents-only policy on First Amendment grounds as applied to the Center Island mall. . For ease of reference, the qualified persons restriction in the Memorandum will sometimes be referred to as a “residency restriction” or "residents-only policy.” .

The adoption of these sections of the dissent obviates the need to consider the arguments raised in the other sections. . The term "objective” in this context means "without reference to the attempted restriction on speech.” See Warren, 169 F.3d at 198 n. 4. . The term "objective” in this context means, "without reference to the attempted restriction on speech”. The restriction on speech cannot be used to justify itself, but must be justified by reference to some non-speech-restrictive aspect of the forum. See, e.g., Int’l Society for Krishna Consciousness, Inc. v.

Lee, 505 U.S. 672, 691 (1992) (O'Connor, J., concurring in ISKCON v. Lee and concurring in the judgment in Lee v. ISKCON, 505 U.S. 830, 112 S.Ct. 2709, 120 L.Ed.2d 669 (1992)). . It is notable, though, that five Justices evaluated the restriction at issue in Kokinda under the traditional public forum standard. See Kokinda, 497 U.S. at 737, 110 S.Ct. 3115 (Kennedy, J., concurring in the judgment); id. at 740, 110 S.Ct. 3115 (Brennan, J., dissenting, joined by Marshall, Stevens, and, in part, Blackmun). . A forum need not have a physical existence. See, e.g., Ark.

Educ., 523 U.S. —, 118 S.Ct. 1633, 140 L.Ed.2d 875 (public access debate); Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (student activities fund). . There are actually two assumptions here: First, that the property has been dedicated to some objective use or purpose (i.e., a use or purpose independent of any speech restrictions); and second, that the objective use or purpose is somehow inconsistent with free and open speech. .

As Justice Blackmun has pointed out, see Cornelius, 473 U.S. at 825-27, 105 S.Ct. 3439, this in effect makes the limited public forum analytically indistinct from a nonpublic forum. If it is reasonable (or unreasonable) to exclude a speaker from a nonpublic forum, then it must also be reasonable (or unreasonable) to exclude the speaker from the class of speakers to which the forum has been opened on a limited basis. . I note that I am not referring to median strips on interstates and similarly cordoned off expressways, which by their nature are not generally accessible to pedestrians.

The Center Island mall is not such a median strip, as evidenced by the sidewalks around its circumference. For a discussion of the great variety of median strip shapes, sizes, and characteristics, see Acorn v. City of New Orleans, 606 F.Supp. 16, 19 n. 6, and 22-24 (E.D.La.1984). . Many jurisdictions even include median strips and sidewalks in their definition of the term ‘'street". See, e.g., Central American Ref ugee Center-Carecen (N.Y.) v. City of Glen Cove, 753 F.Supp. 437, 443 (E.D.N.Y.1990); ISKCON of New Orleans, Inc. v.

City of Baton Rouge, 668 F.Supp. 527, 530 n. 3 (M.D.La.1987), aff'd 876 F.2d 494 (5th Cir.1989). . The majority's approach would force courts in the future to try and distinguish when a sidewalk is a public forum because it is a sidewalk and when a sidewalk is a nonpublic forum because it is actually a median strip. . Several of these courts reserved the question of whether streets that have been opened to traffic still constitute traditional public fora. See, e.g., ACORN v. City of Phoenix, 798 F.2d at 1267; News & Sun-Sentinel Co. v. Cox, 702 F.Supp. at 899 n. 21.

Even if streets opened to traffic are not traditional public fora, this would not necessarily indicate that median strips, especially those housing sidewalks, also lose their traditional public fora status. . Undoubtedly, it cannot be a compelling state interest to treat a public forum as a nonpublic forum.