Pleasant Grove contends that our decisions in
City of Ogden and
Summum v. Callaghan, 130 F.3d 906 (10th Cir.1997), support its argument that the monuments and other structures in the city park constitute a nonpublic forum. But in both
City of Ogden and
Callaghan, the property at issue could not be characterized—by tradition or government designation—as a public forum.
City of Ogden, 297 F.3d at 1002 (holding that permanent monuments on the grounds of a municipal building were a nonpublic forum because property was “not by tradition or designation a forum for public communication” (quotations omitted));
Callaghan, 130 F.3d at 916–17 (holding that courthouse lawn was a nonpublic forum). Conversely, in the present case, the property is a park, the kind of property which has “immemorially been held in trust for the use of the public.”
Hague, 307 U.S. at 515, 59 S.Ct. 954. In this way, the present case more closely resembles the facts in
Eagon. In
Eagon, individuals sued Elk City for violation of their free speech rights after the city excluded their display from “Christmas in the Park,” an annual event during which individuals and groups were allowed to erect displays in Ackley Park.
72 F.3d at 1483. In conducting our forum analysis, we characterized the relevant forum as “Ackley Park during the ‘Christmas in the Park’ event” and held that the forum was a traditional public forum, in which “content-based restrictions on speech are valid only if necessary to serve a compelling state interest and if narrowly drawn to achieve that end.”
Id. at 1487. Similarly, the fact that Summum seeks access to a particular means of communication (i.e., the display of a monument) is relevant in defining the forum, but it does not determine the
nature of that forum.
See Cornelius, 473 U.S. at 802, 105 S.Ct. 3439 (“Having identified the forum ... we must decide whether it is nonpublic or public in nature.”).