Johnson v. Minneapolis Park & Recreation Bd.

Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d 1094 (8th Cir. 2013). A city parks board regulation that prohibits the distribution of Bibles during a city festival, except from designated venues, is not narrowly tailored to serve a legitimate government interest and could therefore violate the First Amendment. The appellant, Brian Johnson, sought an injunction against enforcement of a regulation passed by Appellee, The Minneapolis Park and Recreation Board (the "Board"), that prohibited him from distributing Bibles at Loring Park during the Twin Cities Pride Festival. The regulation limits the distribution of materials in Loring Park during the Twin Cities Pride Festival (the "Festival") to the following venues: (1) Festival booths (that are applied for and granted by Twin Cities Pride); (2) "Board-sponsored booths" outside of the Festival (that are applied for and granted by the Board); and a (3) designated "material drop area" within the Festival, where people are permitted to leave noncommercial material. The Board also adopted a resolution that specifically prohibits Festival attendees from personally distributing literature in Loring Park during the Festival except from approved venues found in the regulation. Seeking to distribute Bibles to attendees, Johnson sought a preliminary injunction against enforcement of the Board's regulation of literature distribution on the ground that the regulation is not narrowly tailored to serve a significant government interest. The Board argued that the regulation, which restricts literature distribution at the Festival, is narrowly tailored to serve its significant interest of crowd control. The United States District Court for the District of Minnesota ruled that Johnson's claim did not have a sufficient likelihood of success on the merits to warrant an injunction. The United States Court of Appeals for the Eighth Circuit reversed and remanded the attendee's claim holding that the Board's regulation is not narrowly tailored to serve the Board's significant interest of crowd control, and that the Board's regulation is underinclusive. The court held that the Board did not make a satisfactory showing that the literature distribution regulation was narrowly tailored to serve the interest of crowd control. The only evidence the Board offered to prove that forbidding literature distribution during the Festival furthers its interest of crowd control at the Festival was an affidavit from Twin Cities Pride. The affidavit stated that during the 2010 Festival, distribution of "graphic" literature related to animal cruelty led to complaints from vendors about the traffic congestion caused by the non-vendors handing out literature from outside a booth, and about how the vendors themselves were required to remain in their booths when handing out literature or materials. The court instead believed that the affidavit suggested the Festival vendors were unhappy that their own literature was confined to the booths, and the vendors believed they too should have been permitted to distribute literature from outside their booth, therefore creating even more congestion. The court also concluded that the Board's regulation is underinclusive. In 2011, the Board permitted at least one street performer to perform on the pathways in Loring Park during the Festival. The Board asserted that if performers created a crowd problem during the Festival, the Board officials would then "move them out" to alleviate the congestion. The court reasoned that if a case-by-case approach was sufficient to cure congestion with street performers, whose "very purpose is to draw a crowd," then it could not see why a similar procedure would not be sufficient to alleviate crowding caused by a stationary distributor of literature. 729 F.3d at 1101. In addition, in 2011, the Board permitted "solicitors" to raise funds during the Festival from outside exhibitors' booths and near Festival entrances. The court believed solicitation to be a more disruptive form of speech than literature distribution, and was "hard pressed to understand how it can justify barring Johnson from engaging in a less congestive form of expression at the same locations." 729 F.3d at 1101 (citing Int'l Soc.for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 685 (1992)), which approved a ban on solicitation and invalidated a restriction on distribution of literature). The dissenting opinion found that the Board's regulation is a content-neutral time, place, and manner restriction and narrowly tailored to serve a significant government interest, which also provides ample alternative channels of communication. Therefore, the dissent believed that Johnson did not demonstrate a likelihood of success on the merits of his claim. (Drew Williams)