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?
Equal opportunity for all….
I thought the homosexuals claimed that the Bible does not:
1) Mention homosexuality
2) Condemn homosexuality
and that:
1) David and Jonathan were homosexual lovers
2) Jesus and John were homosexual lovers
So what is their objection to people passing out a book that is, in the homosexuals’ view, so favorable to homosexuals and homosexuality??
The exercise of free speech tends to piss off some folks, often times a majority of folks. That is why it is a constitutionally protected right. Limiting the exercise of speech so that it does not offend vitiates the right.
If you want to learn about free speech, be sure to check in with the fascist governor of Wisconsin, Scot Walker. He’d like to run for president in 2016.
I was at that festival. There was a bible in the outhouse getting used because they were out of toilet paper. The pltf was observed going in, using the sit down version, and emerging. He was not carrying toilet paper so we assumed that he used the good book too. I agree with Judge Bye.
Roland: I think that position would sound more neutral if they hadn’t denied him a stall inside the festival area, though he met the criteria to have one.
If he wants to hand out literature, he should be forced to do so next to suitable trash containers. I was stopped from handing out anti-VietNam War literature at a 4th of July parade. Reason: to prevent littering. If you offer free paper-based material, people will take it, walk away, review it, and litter. So this actually makes at least some sense.
Agree with Rafflaw. Free speech zones means that the Constitution is valid only within those zones.
blhlls: Thanks for your reply. I agree there is an important difference between attempting to silence speech and attempting to counter it. But…
When powerful institutions wish to speak with impunity, they find surrogates to do it for them. This is the MO for all of the news channels, where they “cast” independent commentators to come onto their programs, knowing in advance what they will say. If any so-called independent goes “off script” and says something unexpected, then the network rushes to deploy their two pronged emergency cleanup: first, that person is black-balled and made and example out of, and second, the network trumpets their “independence” and points to this example to say “See, we truly have freedom of speech around here.”
Since 1995, Johnson has been handing out bibles in this event. He is a known and highly predictable voice in this issue of gay rights, one that those in power can either restrain or bolster. This phenomenon happens over and over again.
It is important that we know whose ox is or was getting gored when we look at the court’s decision. To portray Johnson as “One of the a little people, just like you and me” might not be accurate. That’s all I am saying.
DigitalDave: There is a difference between attempting to silence speech and attempting to counter it.
One of the concerns is that the guy had a booth at the festival for several years. Such booths were available, if the applicant signed a non-discrimination statement. Johnson signed it, but was then asked additional questions. In response, he confirmed his non-discriminatory practices. However, he was also asked about his personal views–not actions–as to homosexuality. He was then denied the booth.
Is this upside-down day? Johnson was not merely “excercising” his rights, he was actively opposing those who created the event for the express purpose of excercising THEIR rights of free speech. Basically he was working to silence that speech. Precisely the sort of thing the mainstream establishment wants. Basically he was acting as the TOOL of the establishment.
So, this is a case where we ask “Can the government limit the rights of it’s own TOOL to oppose free-speech?” Or put anotherway, “Can that TOOL be confined to the same rules that the gay-rights advocates are forced to abide by?”
Erring on the side of freedom is nice, but if that only happens when it concerns the darling of the powerful then no justice is happening here.
I say we let the H8 theists parade among us gay brothers/sisters…
… This way we get to see their true colors on display in full glory.
Brain Johnson?
“As always, I tend in such case to err on the side of free speech. What do you think?”
Good rule of thumb for the other Amendments as well.
I agree with Juliet N. As a gay man, I have fought my whole life to preserve my freedom of speech, and I am appalled to see the new found strength of the LGBT movement being used to stomp on the 1st amendment rights of others.
The party seeking to restrict speech should bear a heavy burden to justify the restriction. Saying this guy has other alternatives for communicating is beside the point unless there is a good reason in the first place to justify the restriction. From reading the blog post, there doesn’t seem to be any good reason he shouldn’t be allowed to hand out Bibles. The traffic congestion argument seems pretextual and lacking in any evidentiary support.
I’d like to see the USA declared a “free speech zone.” Oh wait, it was.
Darren,
You need to clean out your email.
Free speech zone. That alone is a joke.
This is not to say people should be allowed to block traffic and run through traffic on a street holding up a sign and expect ultimate right to do so. But cloistering people into a gov’t approved area to freely express their views, that doesn’t cut it .
Soon it would be gov’t saying Group A can have the main area of the park, but Group B is confined to the “free speech” zone behind the maintenance shed near the dumpsters.” and then proclaim they provide equal rights to all.
I too would error on the side of free speech, but if this distribution of bibles is ok, why are free speech zones allowed at all? Good result.