Local governments engage in all sorts of partnerships with groups who have festivals or other activities on public property. Most of the time the city encourages these activities since they generate interest in the community, are sources of community pride, and create economic activity. Other times groups or individuals just show up and solicit, beg, or perform. How does the city get involved? The city drafts ordinances for the use of public property or contracts to allow the use based on an agreement. Many times the city just turns the property over to the user who runs the event based upon the contract.
These activities can generate large crowds interested in the event, but the activity also attracts others who want to distribute information by walking through the crowd, persons who want to set up booths to sell or distribute their products, street performers, or persons who want to express their views. Consider the examples of Reverend Johnson who wanted to hand out bibles at the Pride Festival, the street preacher with a megaphone at the Springfield Jazz Festival, or a street performer in St. Louis. In short, these events or activities on public property do not necessarily make for one big happy family. The variety of activities makes this challenging even for the most engaged city trying to do the right thing.
So how do you deal with these events in order to avoid throwing the city into an unnecessary and expensive litigation? First, you need to look over your insurance policy to be sure these events are covered and the insurance carrier has a duty to defend. Cost to litigate can run into hundreds of thousands of dollars and if the other side wins you may be looking at a total bill in excess of a half million dollars. Also make the user carry insurance if possible and indemnify the city as part of the agreement or license to use.
You need to recognize that sometimes a protester may just want to provoke you into overreacting in order to grab the headlines and get a counteraction. Obviously that is exactly what Westboro Baptist Church is trying to do with their outrageous statements that God is taking his revenge on America by the death of members of the armed services. A recent article in The Atlantic by Jonathan Rauch illustrates how counterproductive hate speech can be, so do not overreact and if you react give it careful thought. Does anyone believe that the provocative statements by Westboro Baptist Church have hurt the gay movement?
Another way is to write ordinances that are neutral and apply across the board that have a public safety rationale. Consider the situation where the Klu Klux Klan wanted to hold a rally in a city park and burn an American Flag. In Springfield, Missouri that would have in all likelihood provoked a reaction putting the police in the middle trying to keep protesters and anti-protestors apart. Since burning the American flag can be an expression of protest implicating the free speech clause, you cannot lawfully prohibit just the burning of the American flag. The answer was to fall back on the public safety concept by only allowing fires to occur in a grill or fire-place pit for burning established or permitted in the park for burning. In other words, no burning of anything on city property (sidewalks, parks or other public places) except in a device that is designed for the burning of materials. Grilling or burning an American flag in a pit somehow does not seem to have much impact.
You also need to scrutinize your agreement to make sure everything is covered and recognize that the interest of the city may be adverse to the user of the property. The City should try to be neutral and not take sides in a dispute between the user of city property and third parties unless it is clear that the actions are disruptive.
Johnson v. Minneapolis Park and Recreation Bd. is a good example of how complicated and convoluted these relationships can get. In that case the Minneapolis Park and Recreation Board (“the Board”) oversaw Loring Park, a 42-acre public park in downtown Minneapolis that was the site of the two-day Pride Festival. Twin Cities Pride, a nonprofit organization, whose mission is to create experiences that bring the gay, lesbian, bisexual, and transgender community hosts a two-day festival in Loring Park. Twin Cities Pride’s use of the Park during the Festival is nonexclusive, and admission to the park remains free and open to the public. Participants must apply to Twin Cities Pride to operate booths from which they may distribute or sell their wares. The organization sanctions participants only if they sign a “non-discrimination statement,” providing that the applicant does not “discriminate in hiring, employment, participation or services rendered based on the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, disability, or Acquired Immune Deficiency Syndrome or HIV status.”
Johnson a self-described “professing Evangelical Christian,” distributes copies of the Bible “essential to his expression” and distributed bibles at the Festival starting around 1995 and thereafter, he secured an exhibitor’s booth from Twin Cities Pride. In 2009 Johnson signed an application and the non-discrimination statement, but the Festival Manager asked him three more questions: whether his activities at the Festival would “meet the intentions” of the non-discrimination statement; whether he believed that homosexuality or homosexual sex acts are sins; and whether he believed that sexual intercourse between persons of the same-sex is a perversion. Johnson replied that he would “gladly hire a homosexual at my business if he/she could do the job,” but expressed his belief that the Bible specifies homosexual conduct as a sin. He elaborated that he tries to avoid the subject of homosexuality when passing out Bibles at the Festival, and he does not believe that homosexual or heterosexual temptations, in and of them, constitute sin. The Festival Manager was not satisfied by this reply and declined to approve the application. Having no booth, Johnson attempted to distribute Bibles while walking through the park during the Festival, but Minneapolis police arrested him for trespassing when he refused to leave. The charge was later dismissed.
Now this is where it gets complicated. In anticipation of the 2010 Festival, Johnson requested and received from the Board assurances that he would not be forbidden to distribute literature within Loring Park during the Festival. After learning that the Board intended to allow Johnson to distribute Bibles, Twin Cities Pride brought an action against the Board pursuant to 42 U.S.C. § 1983, alleging that allowing Johnson to distribute literature during the Festival violated Twin Cities Pride’s rights under the free speech clause of the First Amendment.
The federal district court denied Twin Cities Pride’s motion for a temporary restraining order finding that the festival was a public forum. Therefore, Johnson was entitled to speak and hand out literature, quintessential activities protected by the fee speech clause so long as he was not disruptive. Johnson attended the 2010 Festival and distributed Bibles without incident. However, in a footnote to its 2010 ruling, the district court responded to Twin Cities Pride’s request for “guidance” and suggested that “a compromise may be available.” by designating ‘free speech zones’ on the Pride Festival grounds in which anyone who wishes to distribute literature or display signage may do so.” Litigation resumed after the 2010 Festival resulting in the Board and Twin Cities Pride prohibiting the distribution of literature and the display of signage not authorized by Twin Cities Pride, except in booths and “free speech zones.” The Board than adopted a resolution that prohibits an attendee like Johnson from personally distributing literature in Loring Park during the Festival except from a booth. At this point it is pretty clear that the City and Twin Cities Pride were working together.
By now Johnson was well-educated so he sued again based on a violation of his right of free speech requesting a preliminary injunction against enforcement of the regulation on literature distribution. The district court ruled for the Board and Twin Cities Pride and Johnson appealed to the 8th Circuit, which held that the regulation was underinclusive because it restricted a medium of speech in the name of a particular interest but leaves unfettered other modes of expression that implicate the same interest like performers. Jonathan Turley Law Professor at George Washington University suggests in a recent blog that the decision by the 8th Circuit is a welcome sign that could help curtail designation of areas where citizens are limited to distribution of information as a means to stifle free speech.
The time energy and money spent on these cases had to be enormous since someone (Twin Cities Pride or the Board) was paying the attorney fees for Johnson plus their own fees over the course of several years of extended litigation. It seems that the contract should have reserved to the Board the absolute right to adopt regulations governing the activity and should have required Twin City Pride to accept such regulations as a condition of the use of the property, which might have been sufficient to deter them from suing the Board based on its highly questionable free speech claim.
For a similar result involving regulations of street performers a district court granted a preliminary injunction against a St. Louis ordinance licensing street performers where the public works licensing officials asked street performers to come on down to the office for an audition (a nice headliner nugget which was said but did not happen). See Pence et al., v. City of St. Louis.
Bottom line is with a little checking you can limit your risks and avoid the big lawsuit while enjoying the benefits of these activities.
Howard Wright @ 2013
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