Appeals Court Says The First Amendment Protects Minnesota Woman's Right To Be Super-Shitty About Nearby Islamic School

Free Speech

from the and-that's-how-it-goes dept

The First Amendment protects unsympathetic plaintiffs just as much as it does those able to obtain mass support for their arguments. This case, originating from Bloomington, Minnesota, involves someone whose motives seem bigoted but whose actions were clearly covered by the Constitution.

When a new school catering to immigrants moved into the neighborhood, Sally Ness took action. An agreement between the city and the Dar Al-Farooq School allowed students of the school to use a nearby park for recreation. Ness felt the school and its students were violating the terms of the agreement and took to filming students at the park, as well as the traffic flowing to the school to pick up students.

This resulted in harassment accusations from parents of these students, which the Bloomington PD investigated, visiting Ness at her home and, later, telling her to stop filming students because parents and school administrators might be feeling “intimidated” by her actions. The officers told her to “take her pictures” and “move on.”

Ness also frequently attended city council meetings to voice her displeasure with the school and its apparent abuse of the public park. After a few meetings, the council amended its harassment law to include something that very specifically targeted Ness’ actions.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child’s parent or guardian.

Hello, First Amendment violations. This not only outlawed Ness’ documentation of park use by school students, but also more “acceptable” recordings of children, like journalistic efforts or capturing evidence of criminal activity by minors.

Ness sued. And the claims she advanced were rebuffed by the federal court handling the case. The court said she had no standing to challenge the amended law, despite the fact the amendment was obviously added to target her documentation of the park. It said the DA had refused to prosecute previous allegations and, apparently, felt this would always be the case, even with the addition of the amendment.

It also said the new law was “content neutral” because it did not target photographers, but rather what they recorded (???).

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral.

But it very obviously targeted the content of Ness’ recordings. It forbade her from photographing children, which were always the subject of her recordings, which were supposed to show the school was violating its agreement with the city to provide limited, exclusive use to students for recreation.

As the district court saw it, the ends could not have been achieved without this law, which made it a good law.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Ness appealed. And the Eighth Circuit Appeals Court says [PDF] the lower court is wrong about the ordinance, the First Amendment, and its definition of the legal term “content neutral.” (h/t Volokh Conspiracy)

The court says of course this is protected speech. It is information gathering about issues of public interest: the possible violation of agreements with the city by a local school. That the information gatherer appears to be motivated more by bigotry than actual concern about violated contracts (something only aggravated by Ness’ decision to bring the American Freedom Law Center on board as her representation) doesn’t matter.

Applying the distinction between speech and conduct to this case, we conclude that Ness’s photography and video recording is speech. Ness wants to photograph and record the asserted “non-compliant and overuse of Smith Park” by the Center and Success Academy, and she wants to post those photographs and videos to an internet blog and a Facebook page “in order to inform the public” about the controversy. Thus, her photography and recording is analogous to news gathering. The acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy.

Since this is protected speech, the court needs to determine whether it’s narrowly tailored enough to serve the public’s interest while still protecting their constitutional rights. The court says this ordinance fails to pass that test.

We may assume that a narrowly tailored ordinance aimed at protecting children from intimidation and exploitation could pass strict scrutiny. The present ordinance, however, is not narrowly tailored to that end as applied to Ness. Ness seeks to photograph and video record a matter of public interest—purported violations of permits issued by the City—and does not intend to harass, intimidate, or exploit children. Ness also advised the City that it was her practice to “block” out the identities of juveniles when she posts images online, and the City produced no evidence to the contrary. Yet her photography and recording is nonetheless proscribed by the ordinance.

The strict scrutiny test fails and so does the city’s law, which was clearly written to discourage Ness from engaging in documentation of perceived violations by the school and its students.

We therefore conclude that the ordinance, as applied to Ness’s activity that forms the basis for this lawsuit, is unconstitutional under the First Amendment.

That makes it pretty much unconstitutional for everyone. There are plenty of legitimate reasons for recording children in a park: journalists with kid/park-related stories to cover, suspicion of criminal activity in the park committed by minors, the inadvertent capture of this area by homeowners’ security cameras, etc.

Ness’ motivations may have been limited to finding literally any reason to NIMBY a school catering to foreign students and their Islamic faith, but that still doesn’t justify the city crafting an unconstitutional law to specifically target her protected speech. Protecting speech doesn’t mean only protecting speech you like. And now the city knows it can’t target Ness in this way without violating the First Amendment. Maybe it will do the smart thing and let Ness tire herself out attempting to prove the non-whites in her neighborhood are violating the terms of their agreement with the city.

Filed Under: 1st amendment, bloomington, free speech, minnesota, sally ness
Companies: dar al-farooq