A three judge panel of the 8th Circuit Court of Appeals has upheld the right of a group of atheists to hand out copies of Bertrand Russell’s Why I Am Not a Christian at a Christian music festival in Minneapolis. The suit was filed against the Minneapolis Park and Recreation Board. You can read the full ruling here.
The event was held in Loring Park and the ruling notes that the Christian music festival did not have exclusive use of the park, which remained open to the public during the event. The atheist group had been allowed to distribute literature there from 1995 until 2009, when they were denied a permit to do so. Various attempts at a compromise were tried over the next two years, but in 2011 the atheist group filed suit. The board says that the regulation is necessary to prevent congestion in the park, but the court noticed a problem with that claim:
The Board contends that restricting literature distribution to booths during the Festival is narrowly tailored to serve its significant interest in maintaining the orderly flow of people, providing access for security and emergency vehicles, and facilitating the activities of the participants of the Festival…
The Board relies on the Executive Director’s assertions that “there were nine ambulance calls on one day of the 2011 Pride Festival,” and that paths must be clear to allow for “the staging and delivery of supplies to food and beverage or other vendors.” The Board thus reasons that the restriction on literature distribution serves the legitimate interest in crowd control, because literature distribution from outside of booths increases congestion and congestion impedes emergency, security, and delivery vehicles.
In the abstract, controlling crowds can constitute a significant governmental interest that bears directly on public safety. We disagree with the district court, however, that the Board made a satisfactory showing that the literature distribution regulation is narrowly tailored to serve that interest in this instance.
The Board presented little evidence that forbidding literature distribution furthers a significant governmental interest at the Festival…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.
The regulation is also underinclusive. Where a regulation restricts a medium of speech in the name of a particular interest but leaves unfettered other modes of expression that implicate the same interest, the regulation’s underinclusiveness may “diminish the credibility of the government’s rationale for restricting speech in the first place.”
Johnson produced evidence that the Board permitted at least one street performer on the pathways in Loring Park during the 2011 Festival. The district court accepted that performers are permitted in the park during the Festival, but concluded nonetheless that the literature distribution regulation is “not so underinclusive as to be unconstitutional,” because performers are less likely to cause congestion than literature distributors. We think it obvious, however, that a street performer’s very purpose is to draw a crowd. Buskers like mimes, musicians, and living statues aim to attract an audience, and passersby must stop to listen or observe. With literature distribution, by contrast, a recipient “need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand.”
At oral argument before this court, the Board asserted that if performers created a crowding problem during the Festival, then Board officials would “move them on” to alleviate the congestion. But if this approach suffices to cure congestion created by entertainers who seek to attract crowds, then we fail to see why a similar exhortation would not be sufficient to alleviate any crowding caused by a stationary distributor of literature. That the Board is satisfied with informal case-by-case action with respect to performers but insists on a blanket ban on distribution of literature outside booths diminishes the credibility of its asserted rationale.
Oh, wait. I misread that. It wasn’t an atheist group handing out literature at a Christian festival, it was a Christian group handing out Bibles at a gay pride event. Does that change your opinion of whether this ruling is correct? It shouldn’t. One of the important demands of the First Amendment is that any restrictions on free speech must be content-neutral. And while we may not like Christians handing out Bibles at a gay pride event, constitutionally it is exactly the same thing as atheists handing out literature at a Christian event.
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