The Eighth Circuit has handed down an important first amendment ruling in favor of Brain Johnson who was prevented from passing out Bibles at the Twin Cities Pride Festivals. United States District Court Judge Michael Davis had ruled last year that the Minneapolis Park Board could prevent him from passing out the Bibles so long as they gave him a place to do so. It was a troubling ruling because of the relative lack of support for the claim of the festival. The Eighth Circuit, with one dissent, reversed Davis’ ruling. The case is Johnson v. Minneapolis Park & Rec. Bd., No. 12-2419, UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 2013 U.S. App. LEXIS 18831.

The Park Board confined Johnson to distributing the Bibles at a booth in Loring Park outside the festival area as well as leaving them at a “material drop area” within the festival grounds. The confinement left him basically secluded and removed from the main area of the event. It was the ultimately victory of form over substance in free speech, but Davis said that was all that was required for the government to meet the demands of the first amendment. He insisted that having some removed spot away from the festival provided “ample alternative channels of communication” for Johnson. Davis said that Johnson could go throughout the park holding signs or speaking with people but could not bring with him the Bibles. Why?

Apparently, Judges Steven Colloton and Roger Wollman couldn’t understand why either. They noted that the Park Board was relying entirely on an ambiguous affidavit from the festival organizer. The main claim was that such distribution would cause congestion but was based on an account of an animal cruelty display that occurred years ago.

The Board presented little evidence that forbidding literature distribution furthers a significant governmental interest [*14] at the Festival. The Board’s reliance on the assertion by Twin Cities Pride’s Executive Director that literature distribution causes congestion is insufficient. Her only specific evidence on the topic was that distribution of “graphic” literature related to animal cruelty in 2010 led to “complaints from participants because of the traffic congestion caused by these non-participants handing out literature from outside of a booth and because the participants themselves were required to remain in their booths when handing out literature or materials.” This affidavit suggests that above all the Festival participants were unhappy that their own literature distribution was confined to booths. It makes little sense for participants to have complained simultaneously that (1) literature distribution outside of booths caused problematic congestion, and (2) they too should have been permitted to distribute literature from outside their booths, thereby creating more problematic congestion. The Executive Director’s averment is at best ambiguous, and the Board offered no other evidence to show a real need to prohibit literature distribution on account of congestion. Cf. Saieg, 641 F.3d at 737 (concluding that city’s interest in curtailing expression on sidewalks was “not substantial,” where sidewalks remained open to the public during a festival, and were not restricted to attendees paying an admission fee as in Heffron).

What is troubling about the Davis ruling is that we have seen the increasing use of a type of free speech zone on campuses where people are given the appearance of free speech but confined to places where they will not disturb the population. There is a rising concern about the use of such zones generally in society where the government can confine free speech in the name of crowd control or safety.

Judge Bye disagreed and said that the limitations were not so strict as to violate the First Amendment:

Here, Johnson is not prevented from distributing literature during the Festival — he is merely restricted to doing so at designated locations. As the Supreme Court has noted, “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron, 452 U.S. at 647. Like the Heffron policy, the Board’s regulation permits Johnson — and anyone else — to walk about the park, engage in conversations with festival-goers, and wear clothing or carry a sign displaying any message he desires. It merely limits one type of activity (i.e., the distribution of materials) to a fixed location (i.e., literature drop area), which was made available to any interested party and located adjacent to the Festival area.

Finally, my belief is the Board has provided ample alternative channels of communication. Johnson can attend the Festival, engage in conversations with other attendees, wear expressive clothing, carry a sign conveying his message, and distribute Bibles from both the “materials drop” booth within the park and from his own booth outside the Festival. Johnson argues his preferred form of speech is personally handing a Bible to someone in the Festival, but the fact that one method of communication is preferred does not render alternatives necessarily inadequate.

As always, I tend in such case to err on the side of free speech. What do you think?