UNITED STATES COURT OF APPEALS TENTH CIRCUIT

FIRST UNITARIAN CHURCH OF SALT LAKE CITY

SALT LAKE CITY CORPORATION, CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,

No.01﷓4111 - Appeal from the United States District Court for the District of Utah

Before SEYMOUR, McWILLIAMS and HENRY, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiffs brought this action under 42 U.S.C. 1983 challenging on First Amendment grounds the prohibition of expressive activity by Salt Lake City on a public pedestrian easement retained by the City after 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.

The relevant facts set forth here are not in dispute. This case concerns a portion of Main Street in downtown Salt Lake City that the City closed and sold 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 Street and on the south by South Temple Street. To the north lies a residential neighborhood. To the south is the

City's business district, including two large shopping 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 Street. On these blocks the Church maintains a number of important historical, administrative, and worship facilities. The west block is called "Temple Square" and contains the Mormon

Tabernacle and the Salt Lake Temple; the east block houses the Church administration buildings. Temple Square and related attractions are an extremely popular tourist attraction.

In 1995, the Salt Lake City Corporation (City) sold the subsurface rights to this portion of Main Street to the LDS Church, which the Church eventually developed into an underground parking garage. That agreement also gave the Church a right of first refusal on the surface property, should the City ever decide to sell it. In 1996, the City considered closing this portion of Main Street to automobile traffic but leaving it open to pedestrians, and also considered selling the land to the Church for this purpose. The proposal 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 construction of a pedestrian plaza. On December 1, 1998, the City and LDS Church held a joint news conference to

announce "a proposal to develop an open space pedestrian 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 with the City for street closure

and plans with the City Planning Commission for a pedestrian plaza.

On April 13, 1999, the City Council approved the closure and sale of the Main Street block to LDS Church subject to certain conditions. In the process leading to approval, the Planning Commission recommended that the City Council approve the sale contingent on several conditions that reflected the Commission's concern with ensuring public access and allowing public expression on the pedestrian plaza. The suggestions included a recommendation that the City retain

a perpetual pedestrian easement "planned and improved so as to maintain, encourage, and invite public use" and "[t]hat there be no restrictions on the use of this space that are more restrictive than is currently permitted at a public park." Aplt. App. vol. III at 1220 (emphasis added).

The ordinance the City Council adopted retained only some of these conditions. The first recommendation, that the City retain an easement for public use "planned and improved so as to maintain, encourage, and invite public use," was a condition of the ordinance as approved by the City Council. In addition, the Council suggested during its meeting that the City retain a

right of reverter to the property to ensure that the 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 strictly than a public park, was omitted from the ordinance.

The City subsequently recorded a Special Warranty Deed and Reservation of Easement conveying the Main Street surface property to the Church. The reservation allows only non speech conduct on the easement and also specifically

prohibits a number of expressive activities. The reservation 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 any perimeter fences or gates on the Property along the North Temple or South Temple rights of way . . . . Grantor may allow the general public to use this easement for pedestrian access and passage only, but all use of this easement shall be subject to the conditions, limitations, and restrictions described

hereinbelow. Id. vol. I at 361.

The reservation contains the following restrictions with respect to the use of the easement:

2.2 Right to Prevent Uses Other Than Pedestrian Passage: Nothing in the reservation or use of this easement shall be deemed to 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 activities on the Property: loitering, assembling, partying, demonstrating, picketing, distributing literature, soliciting, begging, littering, consuming alcoholic beverages or using tobacco products, sunbathing, carrying firearms (except for police personnel), erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages, engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct, or otherwise disturbing 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 intended to apply only to Grantor and other users of the easement and are not intended to limit or restrict Grantee's use of the Property as owner thereof, including, without limitation, the distribution of literature, the erection 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 conduct while using the easement (the "Habitual Violator" provision). The City also reserved utility easements, access for emergency and police vehicles, and a view corridor which restricts the erection of buildings on the plaza. Finally, as suggested 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 fails to maintain the Property thereafter," ownership may revert to the City. Id.

At its own expense, the Church reconstructed the former street and sidewalks, making the area an attractive plaza that fits seamlessly into the Church's downtown campus. There are paved walking areas interrupted by planters, benches, and waterfalls, a large reflecting pool, and changes in grade. The Church uses the plaza for religiously oriented exhibits, dissemination information, and special events, as well as for the entrance to the Temple Square.

While the Church now refers to the area as an ecclesiastical 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 pedestrian friendly area," "a funnel to the Crossroads and ZCMI Center shopping malls as well as the remainder of the downtown business district," and "a downtown pedestrian plaza," and stated the plaza would "provide a public environment," "enhance the urban fabric of the downtown area," "emphasize Main Street as a primary pedestrian walkway," and "assist Main Street, which is the heart of the shopping area, to become the most pedestrian oriented street in 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 restrictions 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 easement, remains public property on which speech cannot be so restricted. They also claimed the City had delegated to the LDS Church the discretion to interpret and enforce the restrictions in violation of the Establishment Clause, and that the property transaction itself violated the Establishment Clause because it included the challenged restrictions. They further contended the restrictions violate the Equal Protection Clause because

they discriminate between the Church and members of the public.

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We consider first the free speech claim …

As an initial matter, we address the argument advanced 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 the Church cannot be required to permit speech activities on the easement because this would exceed the scope of the property interest created by the reservation.

We agree that the reservation of easement on its face defines the easement to exclude expressive activities. However, a deed does not insulate government action from constitutional review… If government actions taken with respect to the easement violate the Constitution, this simply means the easement terms themselves are unconstitutional and must be altered or 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 Amendment forum principles therefore do not apply at all The City and Church claim that because an easement is not a possessory interest 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 forum analysis.

We do not disagree with the technical characterization of easements as nonpossessory property interests. However, forum analysis does not require that the government have a possessory interest in or title to the underlying land. Either government ownership or regulation is sufficient for a First Amendment forum of some kind to exist. See United States v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114129 (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 constitute public fora). Indeed, forum analysis does not require the existence of government property at all. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800﷓01 (1985) (rejecting argument that forum analysis requires "tangible government property" or even a "physical situs" for the 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 party but burdened by the

government, the First Amendment may still apply.

The City and LDS Church similarly argue that easements cannot be subject to forum analysis because they do not constitute a significant enough property interest. We disagree. Government condemnations of easements are takings

under the Fifth Amendment and entitle the grantor to compensation. Easements are therefore constitutionally cognizable property interests.

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 the public, with title to these property interests remaining in abutting property owners. Highways and streets are public property only in the sense that they are

subject to public use . . . . As a rule, and whether a highway is established by dedication or prescription, or by the direct action of the public authorities, the public acquires merely an easement of passage, the fee title remaining in the landowner.

Public streets are "the archetype of a traditional public forum." Frisby v. Schultz, 487 U.S. 474, 480 (1988). Because such traditional public fora are often easements, it is evident the property here is not exempt from the First Amendment merely because it is an easement rather than land to which the government holds fee title. "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." Hague v. CIO, 307 U.S. 496, 515

(4) The LDS Church also contends that permitting public 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 mall 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 answer 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 before us is whether it is constitutionally permissible for the City to retain a pedestrian easement but prohibit expressive conduct on that easement. If we conclude it is not, it is up to the City and the Church to modify their property transaction so the actions of the City conform to the Constitution.

(5) We hold only that the mere fact the government has an easement rather than fee title does not defeat application of the First Amendment… Accordingly, we reject the argument that the government easement cannot be a First Amendment forum of any kind.

Having decided forum principles apply to the easement, we proceed to analyze this case under those principles. The extent to which government may control expressive activities depends on the nature of the relevant forum.

The Supreme Court has identified three types of forums, "the traditional public forum, the public forum created by government designation, and the nonpublic forum." Forbes, 523 U.S. at 677 (quotations and citations omitted). "Traditional public fora are defined by the objective characteristics of the property, such as whether, `by long tradition or government 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 forum for public discourse." Id Other property is either a nonpublic forum or not a speech forum at all. Id.

Plaintiffs assert the easement is a public forum because 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 easement is a public forum because it is essentially the same sidewalk that ran 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 express intention not to create a public forum controls our analysis. The government cannot simply declare the First Amendment status of property regardless of its nature and its public use. … It is only with respect to designated fora that the Supreme Court's forum analysis has focused on whether there has been

"purposeful government action" creating a forum "in a place not traditionally open to assembly and debate." Forbes, 523 U.S. at 677 …Examples of designated public fora include "state university meeting facilities expressly made available for use by students, . . . school board meetings open to the public by state statute, . . . advertising space in state-owned subway and commuter rail stations, . . . [and] a city owned and operated senior center sponsoring lectures." Hawkins, 170 F.3d at 1287

In contrast, for property that is or has traditionally been open to the public, objective characteristics are more important and can override express government intent to limit speech. See Kokinda, 497 U.S. at 738 (Kennedy, J., concurring) (legitimate justifications for restrictions notwithstanding, "other factors may point to the conclusion that the Government must permit wider 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 public 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.

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 permitted, but also the express purpose for which the City retained the easement. The City's stated purposes for promoting and approving the overall project were to increase usable public open space in the downtown 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 the City because of the role the City envisioned the easement playing in the 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 indeed encourage pedestrian traffic. The easement through the plaza was specifically retained in order to preserve and enhance the pedestrian grid in the downtown. The City points out

that developing pedestrian malls by closing downtown streets has been a stated goal of various long-range City plans for almost forty years … These circumstances indicate the easement is infused with public purposes even broader than providing a pedestrian walkway.

The City and Church contend the purpose of the easement is solely for ingress and egress to Church facilities. They produced evidence in the district court that the vast majority of users were those with Church business or tourists whose end destination was the plaza itself or various Church facilities. This argument is at odds with the publicly and legislatively stated purposes of the easement noted above. In addition, to the extent individuals with Church business enter onto the plaza, it is not clear they are actually using the easement because they are not utilizing the plaza for "pedestrian passage" and presumably the

Church would permit those with Church business to enter 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 pedestrian walkway for the public at large.

Similarly, the City and Church argue that not all walkways are sidewalks, and that the easement here is more similar to the walkways at issue in Hawkins than to a public sidewalk that is a traditional public forum. We agree that not all

walkways are traditional public fora, but because the purpose of the easement is not limited to ingress and egress to Church facilities, but is intended rather for pedestrian passage, it is distinguishable from those walkways that have been held not to be public fora.(9) In Hawkins, we held that walkways within the Galleria, a partially open area leading to the Denver Performing Arts Complex (DPAC), were not public fora. Hawkins, 170 F.3d at 1287﷓88. In reaching that holding, we reasoned

[t]he Galleria does not qualify as a traditional public forum, for it is not . . . analogous to a public right of way or thoroughfare. 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 throughway to another destination. Rather, the Galleria's function is simply to permit ingress to and egress from the DPAC's various complexes.

Id. at 1287 (emphasis added). Similarly, .. 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 through routes; they lead only to the

pier facilities themselves.").

The purpose of the easement in this case is for pedestrian 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 important features of sidewalks that are traditional public fora. This similarity is a persuasive indication that the easement is a traditional public forum

Expressive activities have historically been compatible with, if not virtually

inherent in, spaces dedicated to general pedestrian passage. 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 all speech activities (which is what the City purports this easement prohibits) would practically interfere 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 leaving the Capitol can avoid running headlong into tourists, joggers, dogs, and strollers . . . then we assume they are also capable of circumnavigating the occasional protester."). We also note the City itself first proposed requiring the Church 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 by the public would interfere with the character of the surrounding private property, the Church's private property rights on the easement, and the Church's own ability to communicate. Protecting the Church's expression from competition is not a legitimate purpose of the easement or its restrictions, so we do not consider its compatibility with speech. With respect to the other arguments, to the extent they relate to the purpose of the easement rather than the surrounding property, the effects of expressive activity such as congestion, noise, and disruption within reasonable limits are the necessary cost of securing our First Amendment freedoms and these effects must be tolerated to a reasonable extent. Therefore, although a government may always 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.

Finally we consider the history of the property. Whether property has traditionally been open to public use is a factor indicating the property is a public forum, although this is not determinative. 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. The government previously permitted public expression in this area when it was a public sidewalk abutting Main Street, but it has not ever permitted public expression on the easement. We give no weight to the fact that the government has not "traditionally" permitted speech activities since it sold the property and retained the easement. Where courts have considered the traditional use of publicly accessible property for speech, they have refused to attribute legal significance to an historical absence of speech activities where that non-speech history was created by the very restrictions at issue in the case.

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 special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property. Grace, 461 U.S. at 180.

This raises the issue of the relevance of the easement's prior history, as public sidewalks, to our analysis. The plaintiffs argue, more generally, that the easement remains a public forum precisely because the property was previously a

public forum and it has not been sufficiently altered to destroy that status. The City and Church contend significant changes in the physical characteristics and use of the property have eliminated any prior public forum. The mere fact that a space is on what used to be a public street does not automatically render it a public forum.

The district court concluded that both the physical characteristics and the principal use of the property had been altered sufficiently to eliminate the previous public forum. We disagree that the principal use of the easement has changed. As we previously stated, the district court considered the religious purpose of the plaza when it should have considered the purpose of the easement. The purpose of the easement is to provide a pedestrian throughway that is part of the city's transportation grid, and in this respect it is identical to the purpose the sidewalks along that portion of Main Street previously served. Similarly, to the extent the walkways provide access to the Church facilities as an end destination for tourists, which is another stated purpose of the easement, the former sidewalks along Main Street similarly provided tourists with the means of accessing portions of the Church campus open to them. …

In retaining the easement, the City not only retained the most important functions of the property, but also the functions most often associated with speech activities. Thus, while the government has the power to change the status of a forum, "when property is a protected public forum the State may not by fiat assert broad control over speech or expressive activities; it must alter the objective physical character or uses of the property, and bear the attendant costs." ISKON, 505 U.S. at 700 (Kennedy, J., concurring in judgment) (emphasis addedWe are convinced the City has attempted to change the forum's status without bearing the attendant costs, by retaining the pedestrian easement but eliminating the speech previously permitted on the same property. In effect, the City wants to have its cake and eat it too, but it cannot do so under the First Amendment.

"As society becomes more insular in character, it becomes essential to protect public places where traditional modes of speech and forms of expression can take place." Kokinda, 497 U.S. at 737-38.

We think this is particularly true with respect to downtown public spaces conducive to expressive activities. The prior history of the easement here is highly relevant to whether the property has traditionally been open to public speech. Because the property was a public forum prior to the sale, we conclude the retained easement has traditionally been open to speech activities.

In sum, the easement's history, as well as the other contemporary characteristics of the easement discussed above, support the conclusion that the easement is a public forum. The objective nature and purpose of the easement and its similarity to other public sidewalks indicate it is essentially indistinguishable from other traditional public fora. 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 characteristics of the property and the City's express purpose of providing a pedestrian throughway. Accordingly, we hold that the easement is a public forum.

We turn to whether the restrictions on speech activities on the easement are valid. In a traditional public forum, the government'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 state 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 alternative channels of communication. Perry Educ. Ass'n, 460 U.S. at 45 (citation omitted). In public fora, "the government may not prohibit all communicative activity." Id.

The "restrictions" here virtually ban speech because, as we pointed out above, the City and LDS Church maintain that the public has no speech rights whatsoever on the easement except as the Church may permit, which amounts to the same thing. As such, the restrictions are invalid. 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 "First Amendment activity" at LAX airport) ... The City has similarly attempted to create a "First Amendment Free Zone" on the easement and this attempt too must fail.

The City contends that acquiescing to the LDS Church'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 not exchange the public's constitutional rights even for other public benefits 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 expression-free. The City must "`bear the attendant costs.'" Hawkins, 170 F.3d at 1288. If it wants 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. Governments routinely pursue public objectives in regulating the time, place and manner of speech on public fora without running afoul of the Constitution. Such legitimate objectives include public safety, accommodating competing uses of the easement, controlling the level and times of noise, and similar interests.

We are not insensitive to the multitude of activities that occur in any downtown setting and the competing property uses at issue here, particularly given that the Church is the primary anchor of interest in the property. But the City may not take action that runs afoul of our first and primary amendment. Our Country's dedication to both free expression and non-Establishment are among its greatest heritages, and our fealty to the concept of a marketplace of ideas in religion as well as other fields has been the hallmark of our society. Moreover, we remind the City that "[t]he First Amendment is a limitation on government, not a grant of power." ISKON, 505 U.S. at 695 (Kennedy, J., concurring in judgment). The City's attempt to create a public throughway but withhold speech rights on that throughway is ineffectual simply because 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 Church asserts that granting the relief plaintiffs' request would entangle the City in joint administration of the easement with the Church in violation of the Establishment Clause. We are not persuaded. We hold here that the City, not the Church, 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 speech on the easement would infringe on the Church's right of free expression. 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 a matter of law, infringe on an individual's own free speech rights.

Our conclusions in this case do not depend on any facts in dispute. Plaintiffs are entitled to declaratory and injunctive relief with respect to the ban on expressive conduct on the easement.

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.