its decision of June 12, 1989.   According to the clerk's record, this motion was also never subsequently decided. The government states that the district court was correct in not ruling on the motion because on January 20, 1988, Jacobsen moved the lower court to rule without a further evidentiary trial.   In fact, this second contempt order dealt with the post office in Sioux Falls, and the district court, granting the government's motion in limine, determined at the preliminary injunction hearing that it was going to limit "our discussions today to the problems that we have at [Lincoln, Aberdeen, and Fargo].  And if Mr. Jacobsen has other problems, of course, he can file an action someplace else."   The district court probably failedfor the government to move the newsrack for safety reasons, mere invocation of a safety justification will not suffice to protect the government's actions.


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Patricia Heintzman, the GSA building manager in Fargo, testified that both locations in which Mr. Jacobsen placed his newsrack were in the way of pedestrian traffic.   The majority finds that there was adequate justification for moving Mr. Jacobsen's newsrack because it was allegedly situated in the middle of the sidewalk, whereas the other racks were allegedly either on the granite ledge or in the alcove.   Mr. Jacobsen's newsrack was in a public forum, and the government has the burden of proving the validity of its safety justification.   After reviewing the records and the transcript, I find that the exact