Must an expressive association that paid for a permit in a public park to advance its message include someone using the event to convey an opposing message? Specifically, must an anti-gay preacher and others be allowed to condemn homosexuality in signs and literature by roaming the permit grounds of a gay-pride celebration?
For more than 30 years, gay-rights organizers have annually paid for a permit to hold a gay-pride festival in a small park near downtown Minneapolis. Last year this cost amounted to more than $36,000 in fees and proceeds paid to the Minneapolis Park and Recreation Board (MPRB), which is run by elected commissioners. More than 400,000 people attend the 2-day festival. The non-profit and mostly volunteer group that runs and pays for the event, Twin Cities Pride (TCP), does so in order to celebrate “Pride,” and to promote equality and acceptance for GLBT people.
Other gay-supportive organizations and vendors are required to distribute literature and display signs only from individual booths, which are approved by TCP if their message is consistent with the Festival message. Other restrictions are imposed to limit littering (for which TCP is responsible) and to maintain crowd control and pedestrian flow. The booths are charged fees that help defray the cost of post-event cleanup, the permit fees, insurance, and contribute significantly to TCP’s annual budget.
This year, an anti-gay activist and preacher named Brian Johnson and his family have insisted that they be given access to the permit grounds during the hours of the festival in order to display signs, distribute literature, and peronally counsel attendees with an opposing message: that homosexuality is sinful and must be condemned rather than accepted. Johnson was arrested for trespass last year after he confronted some festival-goers with his message of repentance and condemnation.
Facing potential litigation, the MPRB agreed to the demands of Johnson’s lawyers at the Alliance Defense Fund, one of the most active litigation outfits opposing gay equality around the country. In response, TCP is threatening its own lawsuit against the MPRB.
The basic claims are these. On the one hand, Johnson claims a First Amendment right to enter a park ordinarily open to the public in order to express his views condemning homosexuality. He says this includes the right to move around the permit grounds among the crowd distributing literature and displaying signs. He cites some appellate and lower court decisions that have indeed allowed persons with anti-gay messages, under some circumstances, to enter the areas of gay-pride celebrations.
On the other hand, relying on the Supreme Court’s decision in Hurley v. GLIB (allowing permit-bearing Irish parade to exclude gay contingent), TCP claims that it cannot be forced to include speech from an active participant — one who distributes literature and displays signs — whose message is diametrically opposed to its own within the boundaries and during the times in which it has obtained a permit to craft its own message of acceptance of homosexuality. His active presence on the festival grounds may mistakenly be perceived as reflecting TCP’s judgement that his religious views are worthy of presentation as part of a range of views about homosexuality or to express a liberal tolerance for messages of condemnation. It would be impractical to disclaim the message of one or more moving counter-speakers. (Disclosure: I have advised Twin Cities Pride on the matter.)
I may have more to say as this develops. I’ve left out a lot of details, some that don’t matter much and some that may end up mattering a lot.
Max Power says:
Fascinating. Prof. Carpenter, I hope you advise TCP to bring this lawsuit. The irony of using Hurley in this manner is delicious. It reminds me of how the Third Circuit relied on Boy Scouts v. Dale to strike down the Solomon Amendment (except we all know how that turned out). I would love to hear more about this.
June 22, 2010, 11:58 amMike Mahoney says:
Remove a permit requirement from an analysis. A permit muddies the question since its sole function is essentially a public notification and not a real request to do that which is a right. We don’t make requests of government to exercise rights though we do notify and subject ourselves to rules conducive to public safety.
June 22, 2010, 12:00 pmWhat problems Twins Cities Pride anticipates in the delivery of their message is not an issue worthy of adjudication. The First Amendment doesn’t guarantee or even suggest that rebuttal would not be bothersome. It is not a private affair. No public safety issue has been raised. Neither is there a religious objection that has been raised by Twin Cities Pride, which could, on its face, present a legitimate issue. They merely wish not to be bothered.
The only question worthy of the permit process is whether Brian Johnson’s presence and activity would be a real danger to the public safety. That is a question of prior restraint that, I think, is exceedingly difficult, nay impossible to weigh on the merits.
Permit ought to be granted.
badlaw says:
This is ridiculous. I’m not sold on SSM, and I don’t really get the gay-pride parades, but they should be able to have an event without this baseless instigation from e-faux-gelicals sermonizing about the evils of homosexuality. I think they know how you feel. Going around “spreading the word” at best is only going to piss a few people off, and if he’s really lucky, he might get someone to take a swing at him. Mostly he’ll just get people yelling at him and booing. Of course, if he thinks it’s a good idea to go around a gay-pride event with the “you’re going to Hell” dog-and-pony show, he’d probably consider that a good thing.
There is a certain irony in this story, where a SCOTUS decision that allowed the exclusion of gays because of another group’s disagreement with their orientation is now being used by gays to exclude a group that isn’t supportive of them. Funny how the world works.
June 22, 2010, 12:02 pmHouston Lawyer says:
Interesting case. Can the park be declared a No Free Speech zone?
June 22, 2010, 12:03 pmA. Criminal says:
http://www.theonion.com/articles/gaypride-parade-sets-mainstream-acceptance-of-gays,351/
June 22, 2010, 12:07 pmbadlaw says:
Could his protesting what they’re there to celebrate be considered incitement, to a degree? And what reason other than his belief that he ought to get away with it compels him to speak out against homosexuality in this way? Why pick the weekend where everybody’s feeling really gay to tell them it’s wrong. Why not pick a day of lesser-gayness?
Oh God, I’m Sarcastro.
June 22, 2010, 12:10 pmtroll_dc2 says:
Mike Mahoney, are you suggesting that the Supreme Court got it wrong in Hurley?
June 22, 2010, 12:16 pmBlue says:
As a general rule I am very, very uncomfortable with the government enforcing viewpoint-based restrictions in a public forum like a park no matter the circumstances. I also don’t see this as equivilent to Hurley v. GLIB. In Hurley, the restriction was not upon access or entry to a specific place but rather being included in the performers of a specific event. The gay rights group was not prohibited from expressing their view on the sidewalks and blocked streets of the parade.
Hurley might lead to a conclusion that this preacher may be prevented from having a booth. I do not see how it leads to preventing him from entering a public space and speaking.
June 22, 2010, 12:18 pmhmm_contrib says:
As a gay guy who came out late, I can tell you a) pride parades are an incredible place to start the healing of a lifetime of useless shame and religious-based self-hatred; the sense of fellowship alone is worth it and b) I stopped going after two years ’cause the cliches get old, real fast. The Onion article is, like many, truer than it ought to be.
June 22, 2010, 12:20 pmShelbyC says:
What exactly does the “permit” buy them? If it buys them exclusive access to the park, they should be able to exclude whoever they want, as long as there is a neutral system allowing everybody to get exclusive access to the park under the same criteria. If it simply satisfies a requirement that anybody holding events with more than X number of people needs a permit, then its hard to see how that gives them the right to exclude the anti-gay folks. Of course, the anti-gay folks need to comply with the permiting rules themselves.
June 22, 2010, 12:22 pmNickM says:
No, it’s not incitement. Incitement is urging people to commit crimes. I think you’re thinking of fighting words, which can’t apply here because he hasn’t actually said anything to the attendees yet.
Nick
June 22, 2010, 12:31 pmLarryA says:
Other restrictions are imposed to limit littering (for which TCP is responsible) and to maintain crowd control and pedestrian flow. The booths are charged fees that help defray the cost of post-event cleanup, the permit fees, insurance, and contribute significantly to TCP’s annual budget.
The permit, as is common, requires Twin Cities Pride to clean up the park, provide security, maintain order, and purchase insurance. All of these could be much more difficult and expensive with the anti-gay group participating. Particularly since Johnson already has a record of being enthusiastic enough to be arrested. (Wouldn’t want to have to clean up trash with blood on it, etc.)
OTOH TCP could score points by offering Johnson et al a booth, at the going rate. That way the homophobes could pay their fair share for getting their message out.
Press coverage.
June 22, 2010, 12:35 pmDilan Esper says:
I think this is a classic Hurley claim. (Indeed, I think these folks have a stronger claim than the parade organizers in Hurley, because it’s actually harder to argue that an Irish pride parade has an anti-gay message than it is to argue that a gay pride parade has a pro-gay message.)
I also think Hurley is wrongly decided and that everyone should have to put up with off-message marchers at their parade as long as there isn’t a security risk or heckler’s veto issue.
Finally, I think it’s pretty clear what the real agenda of folks who are saying “I like Hurley but this isn’t Hurley” is.
June 22, 2010, 1:46 pmElliot says:
How about Tea Parties? If a Tea Party gets a permit, can they exclude people advocating for increased government spending? Seems someone might mistake the presence of such advocates as an implicit Tea Party endorsement of deficit spending.
How about a Gay Tea Party? Could they exclude people advocating for increased deficit spending? Advocates opposing legalizing SSM in Minnesota?
June 22, 2010, 1:48 pmBruce Hayden says:
Don’t we always come down to content based state suppression of speech?
June 22, 2010, 1:56 pmSk says:
I agree that the Irish parade case isn’t a good analogy: being required to accept an opposed group into a particular performance (the parade itself) isn’t analogous to simply being in the public presence of that opposed group.
A better analogy would be the Fred Phelps protests at military funerals. He could protest anywhere, at any time, but chooses to do so at a funeral?
Its not an ideal analogy: a funeral typically has a few hundred people in attendance: this festival apparently has hundreds of thousands. Controlling the political speech of hundreds of thousands of people in a public park is a bit more than controlling the political speech of a few hundred people within earshot of one building (the church)-though also in a public place.
Sk
June 22, 2010, 1:56 pmKen Arromdee says:
Here’s a hypothetical: It’s not a gay pride parade, it’s a shopping mall. I want to pass out leaflets about how shopping malls are a detriment to our society, and I want to do it at the mall against the wishes of the mall owners. Is this allowed?
Normally, of course, it’s allowed. But normally it’s not equivalent to leafleting a parade, because a parade is speech on the part of the paraders, while a mall is not speech on the part of the mall owners. However, in this context (where the speech itself is about malls), you could argue that the mall is implicit speech stating that malls are good, making it more analogous to a parade than a typical mall picketing scenario.
June 22, 2010, 2:12 pmfeatherboa says:
I’m relatively new here; does Carpenter write on any issue not involving homosexuality?
June 22, 2010, 2:23 pmDave N. says:
I think Shelby’s analysis is spot on. I would like to know what the permit allows as well because that seems highly relevant to whether this jerk can be banned from the park.
I would also throw out the opposing hypothetical just to see if people feel the same. Let’s say “Right Wing Evangelists for Conservative Social Issues” wants to use the park and gets the necessary permit. Should a gay right’s group that believes RWECSI is wrong be allowed to display signs and pass out literature?
If your answer to the the real situation in Minneapolis and my hypothetical question are different, please explain why.
June 22, 2010, 2:27 pmShelbyC says:
Either they hate gays, or the see a difference between claiming a right to keep off-message folks out of the parade (what the Hurley marchers did) and claiming a right to keep off message-folks out of the parade grounds (what the Hurley marchers did not do, but what TCP is trying to do). I take it you’re suggesting it’s the former?
June 22, 2010, 2:30 pmSpeech fan says:
Ken A., one possible objection to the mall comparison is that the mall is private property, and the city park is public. The shopping-mall cases are pretty contorted on that, from the “company town” theory on down.
True, one “permitting” theory is that we temporarily privatize the public park, so the organizers “own” it for that stretch. After all, I can pay $20 to get a shelter at my local park for four hours, and no one else can come in during that time, whether to speak, use the bathroom, use the publicly-funded grill, whatever. Sure, I let people use the bathroom, but I don’t have to, and I certainly don’t need to let them sit at a table under the shelter and join our family party.
But that “temporarily private” theory still doesn’t compare to a mall, because the mall is always private, whereas the park is presumably public for all the stretches that aren’t blocked out by a group.
For some reason, I think we are all overly influenced by the perception of the physical space. If it were a closed building rather than a seemingly-open park, I think some folks would be faster to accept it as a private rental, even if it is renting a city-owned hall or auditorium. Also, an ongoing festival feels less like a “performance” than a gathering; no one would insist on sharing the stage when the local theater group stages a play in the park.
June 22, 2010, 2:35 pmLymis says:
And can’t (or shouldn’t) a distinction be made between someone’s right to be on the sidelines of the event holding signs and passing out fliers and engaging anyone who wants to be engaged, and their right to wander around within the event doing the same thing?
I know of at least one incident at a gay pride rally where the dissenters expressed their “free speech” by standing directly in front of the main platform during the program and bellowed Bible quotes via bullhorns. They subsequently claimed that they were harassed for simply sharing the Word of God.
When does the freedom to express your opinion in public become the freedom to disrupt someone else’s event to do so?
June 22, 2010, 2:37 pmLymis says:
I don’t think that’s an accurate comparison, since the nature of the parade – groups and floats walking along a specified route – is different than the nature of a rally.
A more apt comparison would be the question of whether they had to allow off-message people to freely wander along the parade route, talking to the marchers, holding protest signs, and marching alongside specific groups passing out fliers arguing their message.
I don’t hear anyone saying that the protesters are not as welcome as anyone else to attend the event in a private capacity – just that they can’t join the event by running their own parallel event in the midst of it.
June 22, 2010, 2:42 pmBlue says:
I don’t see it. Hurley is about the speech of offical participants, not the speech of attendees.
June 22, 2010, 2:42 pmzuch says:
But wrong. I’d rather that Hurley (and Dale) be overturned. More free speech.
Cheers,
June 22, 2010, 2:43 pmSteve says:
So the Irish parade has to allow a completely non-Irish “Israel out of Palestine” group to march? At some point, you’re telling them they can’t really have an Irish parade. It’s one thing to say that people have a right to pass out anti-gay leaflets or picket at the Gay Pride Parade, and another to say that anti-gay groups have an equal right to march in the parade. I don’t think we have to ski the slippery slope all the way to the bottom by declaring that every parade is a place of public accommodation and needs to be open to everyone, even totally unrelated groups who just like marching.
I think ShelbyC asked the salient questions. If a permit implies the exclusive use of the park during the time period in question, then sure, the group can exclude anyone they find undesirable. If it just means “sure, you can have a gathering, but other members of the public will be there too” then I don’t see a principled basis for excluding the anti-gay group. I don’t agree with those who speculate that maybe there will be a fight or maybe there will be increased security costs because reasons like that could justify the content-based exclusion of any number of controversial groups from the public sphere.
June 22, 2010, 2:44 pmJBurns says:
Agree with all that say the details of the Permit matter a lot. Think of a public park. In CT, I have to buy a pass to drive into the park. But that pass doesn’t mean I get to take over an area of the park and keep other people out of it. In contrast, many parks have pavilions that can be reserved for private events (family reunions, etc.). I have to believe that if I reserve a pavilion for my event, I get to control who uses the pavilion during that period and if someone in the group gets out of hand I get to kick them out. In a sense, the reservation turns the public area into a private area. I certainly wouldn’t find it problematic in terms of the First Amendment if the law allows that.
June 22, 2010, 2:46 pmblank says:
It’s a public park, put is it public property while the festival is going on? As others have noted, it seems to boil down to what the permit entitles one to.
June 22, 2010, 2:59 pmShelbyC says:
I was making exacly that comparison. My understanding was that the gay rights folks had the right to express their message in any area open to the general public, just not in areas reserved for the exclusive use of the marchers.
June 22, 2010, 2:59 pmCaptain Carrot says:
The public is generally welcome in a public park. There may be limited exceptions where the municipality allows a private event to exclude others but these are rare and should be kept so, lest we grant municipalities the power to make exceptions that swallow the “traditional public forum” rule.
This is where the analogy to Hurley falls apart, methinks. ShelbyC nailed it in distinguishing between keeping “off-message folks out of the parade” and keeping “off-message folks out of the parade grounds.” It simply defies credulity to imagine reasonable persons mistaking the anti-gay preacher’s presence as a sponsored part of the gay pride festival. This is pretty clearly about excluding him because event sponsors disagree with the content of his message. It is not unreasonable to desire to exclude some persons based on the content of their messages, but it is a power we generally deny to governments. If the government lacks the power to do so, how can it grant such a power to others under the guise of a permit? No, if there’s a power to exclude here, it can only be because of the festival’s First Amendment association rights. But as I said, I don’t think this fits within Hurley (i.e. I don’t think this implicates the festival’s association rights).
June 22, 2010, 3:04 pmKatahdin says:
This is an interesting case. I wonder how people feel about a couple of things:
1)Does the nature of the behavior matter? Is wearing a t-shirt with a message different than buttonholing people? Handing out leaflets to the willing without impeding pedestrians?
2)Bearing in mind the above, what if the event was a rally where a politician is giving a speech? Are people happy with someone wearing a ‘No Blood for Oil’ shirt being ejected from a Bush speech, or a ‘Obama Wants Death Panels’ shirt banned from an Obama event that is otherwise open to the public?
June 22, 2010, 3:08 pmDilan Esper says:
So the Irish parade has to allow a completely non-Irish “Israel out of Palestine” group to march? At some point, you’re telling them they can’t really have an Irish parade.
The rule I would draw is as follows:
If your central message really is openly exclusionary, then the government should not be able to require you to allow participants who don’t agree with your message. Therefore, the KKK doesn’t have to admit blacks or Catholics, and if Fred Phelps wants to hold a parade, he can exclude gays.
If your central message is something else, but you have some peripheral position on an issue that isn’t central to your message, the government should be able to require you to allow participants who agree with your central message but disagree on the peripherals. Thus, the government should be able to force the Boy Scouts to admit gays, and force the Irish to allow gays to march. If people really hate gays, they can always form a youth organization that is centrally dedicated to teaching homophobia to youth, or hold the Irish Straight Pride Parade.
The reason for this is that the second category allows discrimination in public accommodations in through the back door. Any restaurant or hotel or other public accomodation can always claim that even though their primary purpose is serving the public, they also believe as an ancillary matter that the races should be separated or that gays are immoral or whatever.
And as for protesters– anyone should be able to protest anyone else’s event, as long as there is no heckler’s veto or substantial disruption.
June 22, 2010, 3:13 pmSteve says:
If your central message is something else, but you have some peripheral position on an issue that isn’t central to your message, the government should be able to require you to allow participants who agree with your central message but disagree on the peripherals.
But a hotel doesn’t have a “central message.” It’s just a hotel. I don’t think it’s analogous to a parade. If we give parade organizers the right to decide who participates, I don’t think it’s a short step or even a long step to allowing restaurants to refuse to serve blacks.
Maybe we should just give up and concede that everything is a public accommodation at this point.
June 22, 2010, 3:23 pmKen Arromdee says:
That difference is in the wrong direction. My point is that we let people leaflet malls, so it seems like we should let them leaflet festivals. Pointing out that the mall is private property demonstrates that the case for excluding him from the festival is weaker than excluding him from the mall, so there’s an even better case that he should be allowed in the festival.
June 22, 2010, 3:25 pmMoneyrunner says:
I believe the confusion here comes from the fact that first amendment absolutists have had the wind at their backs in the courts for quite a while. And they have generally been Liberal or Progressive. What I find fascinating is now that the Establishment consists primarily of the people who have taken the long march through the academy, the 60s counterculture that’s now in control, the real protesters are going to be coming increasingly from the Right. The Tea Parties are a great example. So now it’s time to re-establish rules allowing the New Establishment to shut up the protesters.
June 22, 2010, 3:26 pmI have no sympathy for people who want to crash other people’s parties. But then, I haven’t had any sympathy for them for 4 decades. I am amused by the turn of the wheel.
Thorley Winston says:
I agree with Steve and ShelbyC. My own experience attending events held in Minnesota parks (some political, some not) suggests that the permit just gives you permission to hold your gathering, not to exclude other people from being in or otherwise use the public park.
I don’t think that Hurley fits either. If I have a permit to hold a parade down a public street, other people don’t get to drive on the parade route where the parade is travelling during the time that the permit covers. That suggests that a parade permit buys you the right to exclude others.
June 22, 2010, 3:28 pmShelbyC says:
But how do you determine what is the central message? Can the government force the ACLU to accept people who agree with them on every issue, except that they think the government should be able to summarily execute any Arab that it thinks is a terrorist? If the BSA says that their message is that youth should build “character” and they believe that a small part of having “character” is not practicing homosexuality, how is that not part of their central message?
June 22, 2010, 3:42 pmgrendel says:
I tend to agree that much depends on the actual nature of the permit.
According to the Minneapolis Park & Recreation Board website, (http://www.minneapolisparks.org/default.asp?PageID=75) you can reserve reception or party venues (follow the link for a list), and you can also obtain a facilities use permit for special events, which, according to the posted Rules and Regulations, include “picnics, celebrations, and fundraisers that are open to and invite the general public (other than a particular body or aggregation of people)”.
It seems to me if the Pride Group got the first type of permit (reservation?) they have a pretty strong case. If they got the second, not so much so.
June 22, 2010, 3:46 pmKamal says:
Haven’t posted a comment in a while, but as this topic affects me, I thought I’d chime in.
I don’t know enough about Hurley v. GLIB to compare this case to it, but from the summary it sounds like the wrong decision. Homophobes are an important part of pride events; they are one of the reason that makes them necessary. It’s important to be reminded that there are still people with antiquated and false beliefs that we need to oppose.
It’s understandable they are reacting this way though; we have to face constant discrimination and fight to have even basic rights recognized and here we have someone who would have us arrested if given the power to (or at a minimum, are willing to worship a god that would have us burn in a lake of fire for all eternity). It’s the same as having a KKK member advocating lynching at one of Dr. King’s rallies. Though it is appalling to see that some people remain so tied to a dead god, it’s also important because it reminds us that these people used to be in a majority; it gives us an indication for a direction the country is moving. Given that, I am not too concerned about the ruling of this case -given that if it makes it to the supreme court it’s unquestionable which way this will go, regardless of precedent – and I hope my friend’s aren’t either.
June 22, 2010, 3:55 pmJohn says:
Actually, no, you are not allowed to do this on the mall owners property without the permission.
And from what I read, people seem to be misinterpreting what Hurley allowed. An event, whether a parade or a festival, is designed to send a certain message. What Hurley allows is that the organizer of the event, and not the government, gets to determine what that message is and who may participate in transmitting that message. Thus its reasonable that TCP gets to decide who can participate in the festival by passing out literature and displaying signs, and even can setup rules and restrictions about where those activities must take place. As TCP is the sponsor, it gets to chose who delivers the message (and it get to select the message). TCP has NO obligation to be content neutral in determining those who participate, which is what is being asked here. Yes, it can’t restrict the anti-gay folks from coming to the festival, or even restrict those people from talking with others about THEIR agenda, but that is not what this minister is seeking. He not only wants the priviledges given to participants, but he wants even MORE power to spread HIS message. And Hurley says he doesn’t get it unless TCP wants to allow it. And this is the case even if his message is “Don’t eat french fries, they will make you fat!”.
June 22, 2010, 4:00 pmJohn says:
The organizer decides what his message is, the government has no place in the decision.
June 22, 2010, 4:06 pmBlue says:
“He not only wants the priviledges given to participants, but he wants even MORE power to spread HIS message.”
At least according to the facts in the OP that’s not the case at all. True participants in the event, as recognized by the event organizers, are given booths and pay a fee for the priviledge. Johnson simply wants to enter a traditional public forum and exercise his right to free speech; he is not “participating” in the festival–he is responding to it.
Again, if Hurley were to hold in this instance it would be analogous to the event organizers being able to prohibit speech they disagreed with from viewers of the parade on public sidewalks.
June 22, 2010, 4:09 pmJohn D says:
While I felt the St. Patrick’s parade organizers ought to have allowed GLIB to march in their parade (it was an Irish group, after all), my view was all along that parades and festivals have a right to limit their participants. The organizers get to model the expressive message, even if that means that a gay pride festival is excluding LGBT groups. This has certainly been the case, sometimes even with a good deal of controversy.
I suppose the real answer is, “want to express your point of view? Organize your own event.”
June 22, 2010, 4:10 pmADF Alliance Alert » First Amendment clash brewing over Gay Pride Festival in Minneapolis says:
[...] The Volokh Conspiracy: “For more than 30 years, gay-rights organizers have annually paid for a permit to hold a gay-pride festival in a small park near downtown Minneapolis. … This year, an anti-gay activist and preacher named Brian Johnson and his family have insisted that they be given access to the permit grounds during the hours of the festival in order to display signs, distribute literature, and peronally counsel attendees with an opposing message: that homosexuality is sinful and must be condemned rather than accepted. … Facing potential litigation, the MPRB agreed to the demands of Johnson’s lawyers at the Alliance Defense Fund, one of the most active litigation outfits opposing gay equality around the country. In response, TCP is threatening its own lawsuit against the MPRB.” [...]
June 22, 2010, 4:13 pmJohn says:
No, Johnson is demanding the right to have signs and hand out literature. Regular participants are restricted to doing that from a single booth, and he wants the right to wander the whole event doing these things. He is perfectly free, just like parade watchers, to speak all he wants. But like parade watchers he is subject to restrictions on signs (and handing out literature).
I am far more sympathetic to Johnson’s views on this subject than I am to the views of TCP, but TCP wins on the legal merits.
June 22, 2010, 4:20 pmSilliness says:
Why not have a funeral and see if you can get the Phelps family to show up? Then you can use arguments developed for keeping Phelps at a distance. Even if they don’t work, they are colorable.
June 22, 2010, 4:45 pmgrendel says:
with respect John, what evidence is there that other participants are so restricted? And, perhaps more saliently, can the group impose speech restrictions on attendees? does it matter if the event is open to the general public?
and let me say I am entirely supportive of gay and lesbian equality. So my skepticism is not due to any anti-gay bias, far from it in fact.
June 22, 2010, 4:55 pmBlue says:
So your position would be that the event organizers would be able to remove from a public park any individuals carrying a placard and a handful of leaflets?
June 22, 2010, 4:58 pmDilan Esper says:
Maybe we should just give up and concede that everything is a public accommodation at this point.
It isn’t a matter of conceding. The issue is how much latitude do states get in crafting anti-discrimination laws? The issue of free speech comes in when you have someone who really feels strongly about communicating a particular message, and the anti-discrimination law interferes with that. In that situation, you have to impose the limit.
But that’s very different from the situation where someone is communicating a DIFFERENT message, and just says, “oh, by the way, I don’t like gays very much”. In that situation, how much does it really burden expressive activity for a state to impose an anti-discrimination rule?
June 22, 2010, 5:31 pmSteve says:
In that situation, how much does it really burden expressive activity for a state to impose an anti-discrimination rule?
I think it burdens expressive activity quite a bit for the state to get involved in determining who an organization can exclude from its parades. It’s completely different from ensuring that there’s no discrimination in hotels, restaurants, and other places of public accommodation.
June 22, 2010, 5:43 pmegd says:
Looking at the MPRB website, it appears that the permit is a “right to use” permit, and not a “right to exclude” permit.
Although the website doesn’t exactly address the “right to exclude”, assuming that Mr. Johnson is permitted to counter-protest, would that also apply in cases of weddings and other special events?
A tough case, but, for reasons already pointed out, Hurley is inapplicable here. The pastor is not asking for his speech to be included/sponsored by TCP, he’s merely asking for access to the public space.
June 22, 2010, 6:11 pmElliot says:
Since the scope of authority granted by the permit seems in doubt, I imagine it could be easily tested. Suppose the Gay Pride group applied for a permit for an event stipulating on the application it would be open only to people who did not actively speak or display signs opposing legal SSM in the state?
The Tea Party application might exclude active support of ObamaCare.
The Oil & Gas Association application might exclude active opposition to opening ANWR.
All this would be justified by a desire to avoid people mistakenly thinging 1)Gay Pride opposed SSM, 2)Tea Partiers supported ObamaCare, and 3)the Oil & Gas Association wanted to keep ANWR bottled up.
June 22, 2010, 6:13 pmFar away Fan says:
Johnson should be admired for his bravery to follow through with his convictions to attack an army all by himself. This action alone should be enough to satisfy any law or city board, and enough to have the army’s suit thrown out by the judge as disrespecting American individualism.
I hope others see Johnson’s example as a historic act of defiance, a spit in the eye and a chosen finger directed at those who take their sexual fetishes and inventive promiscuities and turn them into false examples of the 60’s negro civil rights movement, while at the same time covering up their troubling medical and health issues that will soon be affecting everyone (Obama care anyone? Try thinking how the Mass. queers are benefiting from having the help of everyone else pay for their vast and varied health problems.)
Why thirty years and they still haven’t acceptance enough? Because in the minds of the citizenry their personal practices and political modis operandi are offensive! Bravo Mr. Johnson, at least you have my support.
Next compadre we need to investigate and shut down their money collecting organization. For it stinks like rotten fish in the sun the enormous sums of money that can be rounded up for an extremely small club, and you can bet that money doesn’t represent contributions by most American citizens. If it’s not from the people then who is sending it!? This should be an interesting question for the 24 hr networks busy with the latest infomercial, but it’s not! Why? Because it’s probably true as well those same companies are also receiving gratuities from the queer gravy train, just like how every other political organization pays for time to be played back to the American audience in the form of news or commercials.
I say again, and with great admiration, and speaking to the amazing means you are willing to pony up to ensure your social disobedience of the faux cultural movement of our time is heard as loudly as possible. You hope your message is heard Mr. Johnson.
Well done Mr. Johnson!
June 22, 2010, 6:26 pmDavid M. Nieporent says:
And once again we see the difference between liberals and liberalism.
In any case, Dilan misunderstands Hurley, and mistakenly analogizes it to Dale. While both generally touched on the issue of expressive association, Hurley was not about excluding people, but about excluding a message. The parade organizers didn’t say that gay people couldn’t march; in fact, they explicitly disclaimed any such policy. Rather, they said that gay people couldn’t hoist a banner and march as a unit putting forth a gay pride message.
June 22, 2010, 6:59 pmMatt says:
Why not let them stand there and scream? Personally I’d rather have this preacher trying to convince a Pride parade to condemn homosexual practice than preaching to a group of supporters. Plus, lunatic fundamentalists like Fred Phelps have done more to advance queer tolerance than anyone.
As justices like Clarence Thomas remind us, the remedy for speech is more speech.
June 22, 2010, 7:11 pmBlue says:
From the Parks website above, here is the definition of a “special event”:
I don’t see how any event “open to and inviting the general public” can then suppress the speech of the public thus invited–particularly speech raised in opposition to the event.
Here’s some language for a “private” event at the parks (weddings):
(Emphasis added.) So even a truly private event cannot prevent public access.
June 22, 2010, 7:37 pmDilan Esper says:
In any case, Dilan misunderstands Hurley, and mistakenly analogizes it to Dale. While both generally touched on the issue of expressive association, Hurley was not about excluding people, but about excluding a message. The parade organizers didn’t say that gay people couldn’t march; in fact, they explicitly disclaimed any such policy. Rather, they said that gay people couldn’t hoist a banner and march as a unit putting forth a gay pride message.
And that should matter if the parade was celebrating Irish heterosexuality.
But since it wasn’t, it shouldn’t.
Look, part of this gets back to the fact that libertarians simply aren’t sufficiently concerned about bigotry. They think that the most important thing is preserving the rights of bigots to be bigoted. But there’s no reason to put that at the top of your hierarchy of values. Homophobia causes a lot of harm, and governments have every right to try to make it very difficult for homophobes to discriminate against gays. Just as Roberts v. United States Jaycees makes it more difficult for “good old boys” networks to discriminate against women.
You can still do it– the core freedom is that if you really want to just go out there and trash gays, you should have that right. You should have the right to form the hetero equivalent of the KKK and exclude gay folks. But if you aren’t doing that– if you are celebrating ethnic pride or running a youth organization or running a business, there’s no particular violation of your free expression rights for the government to tell you that you have to treat gay people equally.
That’s basically how we made the rules with respect to race and gender, and they are good rules. Because in the scheme of values, eradicating discrimination is a little more important than allowing bigots to be bigots, even though there is a core freedom of bigots that should be protected.
June 22, 2010, 7:50 pmShelbyC says:
No, we think it’s equally important to preserve the right of gays to be gay. Most people argue that the government should make it harder to be gay, or harder to be bigotted, or whatever, really the same argument with different words. We think it should be easy to be whoever you are. Make it easy for gays to be gay, and bigots to be bigots.
June 22, 2010, 8:34 pmElliot says:
What rules? Seems we are all free to stand up and say women and blacks are inferior. We can even carry signs that say it. T-shirts, too.
June 22, 2010, 8:38 pmPerseus says:
A very good question (and you don’t even have to be a fellow fan of Scalia and his bright-line rules to ask it).
June 22, 2010, 8:49 pmDavid M. Nieporent says:
You don’t get to decide for another person what his message is. Nor do you get to decide that only “central” messages matter. Nor is compelling someone to express a message that he doesn’t support okay if it’s only one of several messages or only a minor imposition.
Or, to put it more plainly, libertarians privilege liberty; those who mistakenly call themselves liberals don’t.
Though it’s a little odd to put this one on the shoulders of libertarians, given that Hurley was a 9-0 decision for liberty.
Well, there’s certainly a legal reason: the constitution requires it. Free speech is constitutionally commanded; the eradication of private bigotry is not.
Accepting your underlying assumption purely for the sake of argument, the fact that government’s goals are legitimate does not imply that all means for accomplishing those goals are.
See, liberals used to believe that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” They no longer do. Instead, eradicating discrimination is more fundamental to liberals than the Torah is to orthodox Jews.
June 22, 2010, 9:42 pmjrose says:
If TCP wins, that conclusion would follow only in the desginated permit area, and only for messages that run counter to the permit holder’s message.
I’m leaning towards the analogy that Johnson is on the sidewalk. It doesn’t strike me that his message would be preceived as being endorsed or tolerated by TCP.
June 22, 2010, 9:55 pmjrose says:
One addendum to my previous post: the individuals couldn’t be removed, but the leaflets and placard could
June 22, 2010, 10:01 pmArthur Kirkland says:
Practical reality check:
Relevant evidence indicates a roughly one-in-three chance that Mr. Johnson will be revealed as a rentboy.com client, pedophile, diaper-wearing whoremonger, or homewrecking adulterer before the event occurs.
The revelation of the precise contours of Mr. Johnson’s walk with God should solve any problem associated with his desire to act in an inconsiderate, but perhaps lawful, manner at the permitted event.
June 22, 2010, 10:35 pmBlue says:
The problem with removal is by whom? Say Johnson walks into the “open to and inviting the general public” event carrying a placard and leaflets. Organizers ask him to drop them and he refuses. Are they deputized to remove them or him from a public space? Does the state itself in the person of a policeman remove the offending material?
June 22, 2010, 10:40 pmKatahdin says:
I’m curious – were you ever a boy scout? Because I was, and I think I would say that their core message had more to do with morality than camping. I think your assumption that organizations have a singular central purpose is flawed – some do, but some don’t. I know of one mail order vendor (Beartooth Bullets) that includes a pocket Bible in every order, gratis. Sierratradingpost.com has bible verses printed on every catalog. There is a hot dog place near my office where the proprietor serves every hot dog with a bible verse. Is the Seattle Men’s Chorus about singing or gay rights? People and organizations have mixed motives, and I don’t think you can pigeonhole them as easily as you think.
(FWIW, I’m an atheist who was in a boy scout troop sponsored by a Catholic church.)
June 22, 2010, 11:36 pmBarb says:
There is a difference between a parade and a park fair/festival. The Irish had a right to make their parade wholly Irish and pleasing to their traditional religious beliefs (be they protestant or Catholic) –because that’s the way parades are –they are thematic and their opponents may leaflet or preach on the sidewalk, but they don’t march in the parade. A public park festival, however, is different –a public forum –where the democrats and republicans will probably have politicians passing out their respective leaflets –and churches might leaflet. It’s much more of a marketplace–and such festivals have always been marketplaces for ideas, too.
June 22, 2010, 11:52 pmWill the politicians be allowed to pass out lit, shake hands, etc? then the pro-straight-marriage lobby should be allowed there, also.
Barb says:
O yes there is. Depending on what you mean by “treat gay people equally.” If you mean the youth organization has to hire homosexuals –that’s an interference with that organization’s right to hold religious beliefs concerning morals and the definition of marriage. It was wrong for the law to penalize a wedding photographer for refusing to do a gay wedding because of her religion-based moral convictions.
June 22, 2010, 11:58 pmBarb says:
This is similar to the Muslim festival in Dearborn case. I see no reason why the Muslims should be able to present only a positive view of their religion –and not have a person leafleting about the Daniel Pearl murder and the Muslims’ systemic intolerance for Jews and Christians.
June 23, 2010, 12:01 amBarb says:
After all, if Larry Flynnt could get away with a lie about a public figure, Falwell, saying Falwell slept with his mother, which was libel, then people should be able to spread truth at a public event –whether it be criticism of the ideology of the parade or festival –or promotion of the Gospel of Christ.
June 23, 2010, 12:04 amArthur Kirkland says:
The Gospel of Christ is not the truth, Barb. It is a fable, a story that brings some people comfort (and has inflicted as least as much harm on mankind as good). It is as much the truth as are the script of Animal House, the religious texts of Scientology and the contents of a Mother Goose book.
June 23, 2010, 12:32 amJohn Herbison says:
Except the jury found in favor of Flynt on Falwell’s libel claim, making a specific finding that the ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” In other words, the claim was so outrageous and far-fetched that no one who was paying attention would have believed it–such that it could not have been harmful to Mr. Falwell’s reputation.
June 23, 2010, 1:58 amJohn Herbison says:
The right of bigots to be bigoted, and to express their bigotry, is at the core of the First Amendment. This right is worthy of protection for its own sake–please recall Voltaire’s famous comment.
Moreover, from a tactical standpoint for supporters of tolerance, the suppression of bigoted viewpoints may be unwise. Popular revulsion at Bull Connor’s treatment of marchers for civil rights had much to do with the eventual enactment of civil rights legislation.
June 23, 2010, 2:09 amJohn D says:
While I disagree with Barb in just about everything, I do agree with her that this case parallels the Dearborn International Arab Festival nicely. I think there is little difference between a parade and a festival (other than that one moves about on public property while the other stays put on public property). They are both expressive acts of the organizations that are sponsoring the events.
The solution in Dearborn was that Mr. Saleg could distribute his literature in the area directly outside the festival. While I think the organizers of Minneapolis Pride can certainly bar Mr. Johnson from the festival, and most certainly can refuse him a booth, they cannot stop him from leafleting outside the festival.
Mr. Johnson is insisting on being able to do something that the festival organizers have banned, that is, wandering through the festival leafleting (as Professor Carpenter has made clear).
While I feel it is largely futile to engage Barb, I am curious why Larry Flynt’s satire of Jerry Falwell gives Johnson the rights to leaflet a pride festival. Does this mean that if some religious figure has made defamatory statements about gay people that I am entitled to distribute gay rights literature in the pews of conservative churches? I always thought that Flynt’s actions simply gave Falwell license to satirize Flynt in his church newsletter.
June 23, 2010, 2:13 amjrose says:
I suppose it would be the same as whomever would remove the signs from the St. Patrick’s Day parade had GLIB disobeyed the ruling in Hurley?
June 23, 2010, 2:35 amPES says:
I like how we all pretend that this guy is asking to be allowed to “speak,” rather than asking to be allowed to harass people he doesn’t agree with. If he wants to speak, let him speak, and let him win hearts and minds by his persuasiveness on merit instead of letting him start a pointless screaming war just because he’s frustrated that so many people don’t agree with him.
June 23, 2010, 2:36 amJohn Herbison says:
Professor Carpenter, what was the nature and disposition of the charge(s) arising from last year’s arrest of Mr. Johnson? I should think that the conduct/pure speech distinction would have been important.
Municipal parks are traditional public fora, and I know of no authority that would permit viewpoint discrimination here. (Hurley v. GLIB did not include discussion of the traditional public forum doctrine.) I hope that TCP will keep in mind the words of Justice Douglas in Terminiello v. City of Chicago, 337 U.S. 1 (1949):
Id., at 4 (citations omitted).
June 23, 2010, 3:04 amjrose says:
I didn’t initially pick up on TSP’s restriction of only distributing leaflets and displaying signs within the booths. So, while earlier I said I was leaning towards Johnson, I’m having second thoughts.
I still believe Johnson’s message as he walks around the festival wouldn’t be confused with being endorsed or tolerated by TCP. But, it maybe the case he can be denied leafleting and displaying signs on the festival grounds outside of the booths as a viewpoint-neutral time/manner/place restriction. Then, he would be denied a booth because displaying his message in that manner could be considered an endorsement from TCP, thus running afoul of Hurley.
For TCP to win in this line of reasoning, I disagree that they could bar Johnson from the festival. They could only bar him – as they do everybody – from leafleting and displaying signs on the festival grounds outside the booths.
Yet, I’m not certain. Is the no-leafleting/signs inside the festival but outside of booths a legitimate time/manner/place restriction? Or is it a pre-text for keeping opposing viewpoints from being heard? Are the festival grounds outside the booths like the sidewalks of a parade where there is no justification for a general ban on leafleting and signs? Or, is that area subject to a general ban because opposing viewpoints have the area directly outside the festival to convey their message?
June 23, 2010, 3:22 amGopherstate says:
TCP stands on firm ground for excluding Johnson if Johnson’s activities involve leafletting or carrying large signs along the pathways of the park. I have been to Minneapolis Pride and I have participated at booths there. With the amount of foot traffic passing through the park, the organizers have designated that you are to stay within your booth when passing out literature or petitioning, or whatever your organization is trying to do. Otherwise, people cannot reasonably traverse the already congested pathways through the park.
Relying on Hurley, TCP can deny Johnson a booth if they do not agree with his speech. Then, Johnson may argue that he should be able to still exercise his speech (leafletting and signs) on the pathways, without a permit. However, if Johnson is allowed to exercise his speech without having a booth, then anyone else should be able to as well. This would, at minimum disrupt the flow of people through the event and the park, and at extreme lead to a public safety issue –thus the reason for the permit in the first place.
This should not preclude Johnson walking around the park wearing a T-shirt or buttons with an anti-gay message, but much beyond that Johnson should have to get a permit, which TCP can reasonably deny him based on Hurley.
Otherwise, there are numerous public thoroughfares leading into the park that he can utilize for his purposes, or he can ask for a permit for a portion of the park that is not being used for TCP.
June 23, 2010, 4:39 amBlue says:
The correct conclusion you should draw from this is not that TCP has the right to limit Johnson’s speech but rather that TCP does not have the right to limit the speech of ANYONE. Reasonable basis is not nearly sufficient justification for the restriction of speech in a traditional public forum such as a park; time, manner, and place fails even if you grant that TCP has the right to impose such restrictions (which I do not as it is neither a state actor nor acting as an agent for a state actor) since the proposed restriction is so broad as to render Johnson’s speech about the event meaningless.
The solution for TCP if they desire to restrict the speech of attendees is not to illegally try to create a private forum out of a public space–it is to rent a private space.
June 23, 2010, 8:51 amBlue says:
Also, while the fact pattern is similar to the Arabic Christian Perspective case that is unfolding in Dearborn, the critical difference is that the speech restrictions in Michigan were imposed by state action, not through the action of festival organizers.
Here’s the latest on that case:
June 23, 2010, 8:59 amhttp://www.freep.com/article/20100618/NEWS02/100618070/Christian-pastor-allowed-to-distribute-literature-at-Arab-festival-in-Dearborn-
jrose says:
If the TCP restrictions are considered private action, then wouldn’t Johnson lose a Free Speech challenge because private parties can limit speech in any matter they desire (unless proscribed by statute).
June 23, 2010, 10:03 amBlue says:
But they cannot be a private action–that’s the entire point of the dispute. Nothing in this case empowers TCP to convert a traditional public forum to a private event; the language I posted above makes clear that these events do NOT prohibit public access to parks.
Johnson’s suit, were he to be restricted, would not be against TCP–it would be against the City of Minneapolis for preventing his entry into a public facility (either directly by police action or by failing to restrain TCP organizers from preventing his entry).
June 23, 2010, 10:44 amjrose says:
That makes sense, but then there isn’t a private/public distinction between TCP and Dearborn. Both are effectively instances of givernment restriction of speech (which may or may not be permissible).
June 23, 2010, 10:56 amRandy says:
Badlaw: “This is ridiculous.”
Glad we agree!
My experience with park permits is that if you want to use a portion of a park, say a pavilion, you are required to obtain a permit. That permit generally gives you rights to use that portion of the park exclusively, so long as you abide by whatever rules the park has in place.
If the Minnesota park is similar, then it would give the TCP exclusivity in it’s use of the park. For instance, if they wanted to hold a tennis match for gays only, they would be able to do so.
And yes, we’ve seen to often that the men who scream the loudest about everyone else’s sexuality often have a problem with their own.
And no, we don’t have gay Tea Parties (though I have thrown quite a few tea parties of my own), but we do have gay Tea Dances. And they are loads of fun! I would encourage Far Away Fan to attend.
June 23, 2010, 10:57 amelaygee says:
If you rent a location for $36,000, there is anexpectation that you control access and message. A plain permit for $100 implies no control, just permission to use. The Gay Pride event is renting, not just getting a permit.
June 23, 2010, 12:56 pmjrose says:
I’m not sure about that. What if Minneapolis had a non-discrimination law that included sexuality, and it was determined that TCP’s gays-only rule did not constitute expressive association?
June 23, 2010, 1:00 pmAnon23 says:
The fact that TCP is responsible for preventing littering and clean-up costs – which presumably includes all those leaflets shoved into the hands of unreceptive participants – is at least a point in favor of a reasonable T/P/M restriction.
June 23, 2010, 1:22 pmBlue says:
But they aren’t renting the location for a private purpose; its a use permit for a function to which the general public may attend.
http://www.minneapolisparks.org/default.asp?PageID=131&previd=25
June 23, 2010, 1:22 pmJdog says:
Yes. Not that there’s anything wrong with that.
June 23, 2010, 1:30 pmElliot says:
How about if the Boy Scouts wanted a permit for a tennis match open only to straights?
June 23, 2010, 1:41 pmptt says:
Have you ever been to a Pride celebration? Besides the need to reduce congestion and prevent crowding, minimizing litter is a huge concern. A good deal of the budget goes to clean-up. If not for the ban on leafletting outside the booths, the whole area would be blanketed in flyers for local clubs, dance parties, and dog-walking services.
June 23, 2010, 1:45 pmMalvolio says:
What? No.
First of all, gays don’t need parades to be gay, but bigots need parades to be bigots. Or, to put it more precisely, the essential right sought by a bigot is to express his bigotry to the larger world; presumably, the essential right sought by a homosexual (qua a homosexual) is to engage in the sexual and social activities he prefers. So bigots need parades, gays need Oscar parties.
Second, like most people, I have no particular desire to make things easier for bigots. I only want to protect their rights on Niemöllerian grounds: so that I can protect my own. Gays I’m much more positive on — certainly, if I know two gay guys who I think would like each other, I’m happy to pass on a phone number — but in this case, I think their privilege of not hearing how some idiot thinks they are going to Hell has to give way.
June 23, 2010, 2:40 pmDilan Esper says:
Or, to put it more plainly, libertarians privilege liberty; those who mistakenly call themselves liberals don’t.
No, libertarians pretend that the only threat to liberty is the government, and liberals are smart enough and honest enough to know that the private sector can threaten liberty too. And, in practice, that means that libertarians don’t care enough about the freedom of historically oppressed minorities, because they face private sector as well as public sector threats to their freedoms.
June 23, 2010, 2:58 pmJdog says:
Issues of rights aside, if these antigay folks do end up getting a booth at Pride, I think that’ll be a good thing — it would give some of the flaky left gay folk (note: I’m describing a subset of those who show up there) somebody other than the Pink Pistols to hassle.
June 23, 2010, 3:07 pmBlue says:
Fascinating, counsellor. Please do go on about how the need to prevent litter comports with the strict scruitiny standard needed to uphold viewpoint discrimination.
June 23, 2010, 3:17 pmJohn says:
No, they call the police who then remove him and possible arrest him like they did last year.
June 23, 2010, 3:27 pmJohn says:
First, lets clear up a few things that it looks to me like people are missing. Events have both participants and spectators. Hurley addresses what event organizers can do with regards to these two groups of people. Organizers have far more control over participants and their actions then they do over spectators. Hurley also recognizes that certain communicative actions belong more to the participant role then they do to the spectator role. Such as carrying banners and passing out literature. Hurley allows event organizers considerable control over when, who and how participants can engage in such communicative actions because it is the organizers message that the event is intended to send. These restrictions apply only within the time and location of the event, and outside those temporal and physical restrictions others are free to do as they wish.
SO, if Johnson wishes to pass out literature and display signs he is free to do so OUTSIDE of the festival, but if he wants to do so within the festival he must get permission from TCP to be a participant AND confine his activities to his designated booth. If he wants to just wander the festival and try to persuade people by speaking with them, as a spectator he is free to do that. As is any other member of the public who wishes to be a spectator at the festival.
June 23, 2010, 3:45 pmBlue says:
The first sentence is true. The second sentence is false–having a float in a parade is materially different than carrying a sign and handing out literature.
June 23, 2010, 4:34 pmyankev says:
Not, not if the mall is privately owned, unless a state consitution grants them that right, as the California constitution that formed the basis of the decision in Shopping Center v. Robins. For those of us fortunate enough to live elsewhere, Lloyd v. Tanner still generally permits the mall owner to exclude leafletters from the owner’s private property.
June 23, 2010, 5:34 pmyankev says:
Easy. Dilan agrees with the ACLU on the first point but disagrees with the BSA on the second point — strongly enough, in fact, to label the BSA a hate group that teaches homophobia.
By the way, did anyone see the AP story (link posted at Powerlineblog.com) about 4 men arrested for distributing the Gospel of John — apparently on public property — outside an Arab festival in Dearborn, MI? I wonder if the festival was limited to Muslim Arabs to the exclusion of Christian Arabs.
June 23, 2010, 5:39 pmElliot says:
It’s probab;y true Libertarians don’t care about historically disenfranchised minorities. Their concern would be limited to living persons, regardless of the status of their ancestors a hundred years ago. Those folks are all dead.
June 23, 2010, 5:43 pmyankev says:
And yet you oppose the existence of the one country in the middle east where homosexuality is not a crime, where gay people have the least risk of being murdered by their families for being gay, and where gay people who are attacked have protection in both the civil and criminal courts.
June 23, 2010, 5:43 pmyankev says:
I think that was ShelbyC’s point. It was Dilan who wants to empower the courts to decide whether a message is incompatible or not, and to force the organizer to include whoever the court deems sufficiently compatible.
June 23, 2010, 5:46 pmyankev says:
Yes, I’m sure that will be both the substance and the intent of their message. When they say “G-d loves you, knows infinitely more than you or I do, and has told all of us that doing certain things is bad for you, and I’m here to share this news with you even at the risk of someone getting angry and decking me when I could be spending the afternoon at the Twins game”, that’s really code for “I don’t like you very much.” Granted, the latter may apply to scum like Phelps and his bunch, but that does not mean that it applies to everyone who believes that certain sexual practices are immoral.
June 23, 2010, 5:54 pmyankev says:
No, but many people put a high priority on letting people think and speak for themselves. Just as we preserve the rights of those who draw silly analogies to draw silly analogies.
June 23, 2010, 6:00 pmyankev says:
And it enjoys a particlulary protected place in US constitutional jurisprudence, as I recall. Or at least the right to study, disseminate and preach from it does.
June 23, 2010, 6:07 pmyankev says:
John, some would consider that standardization to be a social good, so long as they control what is standard.
June 23, 2010, 6:15 pmArthur Kirkland says:
It’s similar to the statements “one plus one equals seven and one-half” or “the third letter of the alphabet is 9″ or “Superman has saved our world many times with superhuman feats, as recounted in Marvel comics.” One is (and, I believe, should be) entitled to say them; one is (and, I believe, should be) entitled to believe them; but one (past the age of nine or so) is not entitled to declare they are “the truth” and expect to avoid challenge, let alone to be taken seriously by adults. Because they are not true.
June 23, 2010, 6:23 pmArthur Kirkland says:
This scuffle over speech and conduct is fun.
The ones involving condom advocates’ booth at the holiday caroling event, or the Reduce The Age Of Consent To Match Fertility Coalition’s pamphlets at an Easter Egg hunt, or the Friends Of The Playboy Channel informational display at the First Night For Families event, could be even better.
June 23, 2010, 6:28 pmNomasromos says:
One of the most famous Kirk & Madsen talking points, never-mind that it has no basis in reality. This is one of the most pathetic attempts to silence dissent that anyone can muster. It comes straight out of the “jamming” crusade of your messiahs Kirk & Madsen.
You should at least attempt to get new material.
June 23, 2010, 6:56 pmDilan Esper says:
Easy. Dilan agrees with the ACLU on the first point but disagrees with the BSA on the second point — strongly enough, in fact, to label the BSA a hate group that teaches homophobia.
Not at all. If the BSA were really a hate group that teaches homophobia, excluding gays would be a slam dunk case.
The issue is whether groups that DON’T espouse homophobia as part of their central message suffer any First Amendment injury when they have to treat gays like the human beings that they are.
June 23, 2010, 7:31 pmDilan Esper says:
When they say “G-d loves you, knows infinitely more than you or I do, and has told all of us that doing certain things is bad for you, and I’m here to share this news with you even at the risk of someone getting angry and decking me when I could be spending the afternoon at the Twins game”, that’s really code for “I don’t like you very much.”
When someone says God disapproves of gays and lesbians:
1. They are being arrogant, because they don’t know **** about what God wants and doesn’t want.
June 23, 2010, 7:34 pm2. They are being idiots, because homosexuality is common in nature and it’s perfectly clear that God doesn’t have an opinion on it.
3. They are being jerks, because what some invisible man in the sky thinks or doesn’t think should be completely irrelevant to one’s human rights.
4. They are being homophobic, because 99.99999999 percent of the time, people who say this hate gays and lesbians no matter how much they claim to really “love” them.
ShelbyC says:
Well, Dilan wants to distinguish between a group that exists to express an anti-gay message and a group that says, hey, lets have a club that does xyz that may be more or less expressive, but let’s not let homos in the club cuz we don’t like homos. But I’m not sure a court can make that distinction without deciding for the group what its message is.
June 23, 2010, 7:59 pmjrose says:
I believe the no leaflets/placards outside the booths applies to everyone. So, I don’t see how that restriction is viewpoint discriminatory.
June 23, 2010, 8:28 pmyankev says:
Are you saying that denying someone membership in an organization because that person does not accept the program of the organization, or behaves in a way contrary to that program, is treating the person as less than human? Some might argue that it treats the person as a fully human moral actor with the ability to make choices. You seem to be confusing organizations with restuarants and common carriers.
And to think that for all these years, the temperance union, the Sisters of Mercy, the Spartacus League, the Workers PArty, Progressive Labor and countless other organizations were treating me as less than human and I never even realized it.
I’m not sure that anyone is advocating the right not to be challenged as to their truth or lack thereof.
Yet they are taken very seriously by more than a few adults. And it would be dishonest to deny that what ultimately became the United States was settled in large part by adults who took them seriously enough to flee Britain so that they could say them and believe them without having to fear governmental consequences.
If you are talking about the Gospels, I happen to agree. But that is largely irrelevant to our discussion.
See #6 of Dilan’s post immediately preceding yours to see Dilan’s entire substitute for an argument. Or if you care to dignify it, his opinion.
June 23, 2010, 8:36 pmyankev says:
I might also point out that Dilan has an excessivley broad view of what makes a message “anti-gay”. That’s more of a quibble, though, because if you substitute “a message that many gays would find offensive whether or not so intended” I would agree completely that this is his attempt at a distinction. Like you, I am not comfortable with some governmental agency trying to tell a group what is and is not the group’s message. Dilan may be out to impose thought control, but I’d prefer he limit his means to Newspeak, so as to make it impossible to formulate let alone express a thought crime. It is double plus ungood to have the Ministry of Truth turning violators over to the Ministry of Love.
June 23, 2010, 8:44 pmElliot says:
Who does a group consult to find out what its message is?
June 23, 2010, 9:02 pmDilan Esper says:
Well, Dilan wants to distinguish between a group that exists to express an anti-gay message and a group that says, hey, lets have a club that does xyz that may be more or less expressive, but let’s not let homos in the club cuz we don’t like homos. But I’m not sure a court can make that distinction without deciding for the group what its message is.
Bear in mind, what you are calling unworkable was the law of the land under Roberts v. US Jaycees and before Dale with respect to race and gender. States were allowed, but not required, to tell the Jaycess that since their purpose was service and business contacts, not espousing gender discrimination, they had to let in women. And neither the world came to an end nor was anyone’s free speech silenced.
That’s more of a quibble, though, because if you substitute “a message that many gays would find offensive whether or not so intended” I would agree completely that this is his attempt at a distinction.
This lets too many homophobes off the hook. It’s like the racists who said that they certainly didn’t mean to hurt the feelings of the black man, but damn it, God just said he wasn’t fit to live in an integrated society with the white man. Using your religion as an excuse for bigotry doesn’t make it any less bigoted.
June 24, 2010, 3:12 amRandy says:
Nomasromos: ” This is one of the most pathetic attempts to silence dissent that anyone can muster. It comes straight out of the “jamming” crusade of your messiahs Kirk & Madsen.
You should at least attempt to get new material.”
Not trying to silence anyone. If you want to go on and on about someone else’s sexuality, and how evil and disgusting it is, and how God hates it, blah blah blah, please do. And we are free to speculate why it’s such a concern to you.
And at least one report from Britain established that anti-gay viewpoints from men are correlate with a fear of inadequate masculinity.
June 24, 2010, 4:01 amyankev says:
That’s a fascinating analogy. Inapposite, but fascinating.
June 24, 2010, 9:16 amDHill says:
You are correct. Having served as the “air traffic controller” for the event over a number of years, it would be an annual occurrence that members of the safety/security team would catch various parties (commercial and otherwise) trying to give out materials from the paths (i.e. not in a booth). They were kindly asked to secure a booth space (and pay the appropriate fee) and distribute from that location, or remove to a position outside of the park, where they were free to continue. It wouldn’t matter if they were handing out gum, flyers for a club event or a religious tract – this was viewed as both a safety/security issue and an matter of fairness to the 300+ vendors and exhibitors who had paid to be present at the event.
If memory serves, it would be about…50/50 or so that such a party would cough up the money, sign off on the policies of the event (including its nondiscrimination statement) and adhere to the policy. The other half would peaceably retire to a position outside of the park.
This is how the Johnsons got a booth back in the day – I remember it like it was yesterday. I was there.
It was only in their last two years (07 and 08) when complaints from attendees started to escalate and it became plainly evident that they were not adhering to the rules of the event (particularly the aforementioned nondiscrimination statement), that the decision was made to deny their application for 2009. Leading to the current brouhaha.
June 24, 2010, 10:13 amMike Mahoney says:
From the OP, second paragraph, edited to make MY point:
Posters are repeatedly calling this event a parade. The OP says otherwise using the term “festival”. Unlike your local county summer festival, it is an event staged to “promote” or advocate for a certain idea. It is not political content neutral. It is unlike an Irish Day Parade which is purely social, universally inclusive and not very much advocating anything except that anyone can be Irish for that day, if they want.. or not.
June 24, 2010, 11:43 amI think these details color the situation in such a way that places a large burden on TCP for them to prevail. Additionally, what TCP paid for the permit is immaterial, though confiscatory. $36k for rent-a-cops, porta potties and trash removal for 2 days? For that price I don’t blame TCP for feeling as though they own the park. Again, immaterial.
Mike Mahoney says:
Unkind characterizations could just as easily and more importantly unhelpfully go the other way. Schoolyard tactics should have been left there.
June 24, 2010, 12:01 pmMike Mahoney says:
Then it was OK for the Mississippi High School to hold a hetero only prom?
June 24, 2010, 12:13 pmMike Mahoney says:
That is a shoe that fits on both feet.
June 24, 2010, 12:17 pmMike Mahoney says:
I don’t see how having a booth reduces trash since the booth attendants aren’t the ones trashing the place.
June 24, 2010, 12:21 pmI also don’t think it wise to use “in the extreme case” as a logical basis for making this decision. In the extreme, no festival should be held because some skinheads would show up to do many bad things. It is just a loser approach from any angle.
jrose says:
Wouldn’t this line of reasoning favor TCP’s claim and disfavor the same claim made by a generic summer festival organizer? The more the event is political, the more likely the event will promote a viewpoint that is afforded a First Amendment protection from being required to accommodate an opposing viewpoint.
June 24, 2010, 2:57 pmptt says:
I don’t see how having a booth reduces trash since the booth attendants aren’t the ones trashing the place.
If you have a booth and offer pamphlets, etc., chances are anyone who picks one up is at least somewhat interested in the subject and won’t just drop it on the ground.
If you don’t have a booth and just stand in the crowd handing out pamphlets, chances are most of the people you hand one to will not be interested and will drop the pamphlet on the ground.
June 24, 2010, 3:00 pmMike Mahoney says:
I just don’t see any right to bar rebuttals. That is all that is being sought throughout this discussion; a way to bar this man’s attempt to rebutt TCP’s message. It is the an exercise of First Amendment all the way around. All the rationalizing about public safety and trash is just that and comes across as what it really is; a dodge. Let the jousting begin.
Also to ptt: where does the trash come from, then? That atrocious $36K that TCP has to pay in part for trash removal is coming primarily from attendees making trash out of the booth materials handed out. As I say above, this is mostly a dodge in a poor attempt to avoid discomfort of TCP defending their liberty. I would rather they man up and let Johnson go about his own liberty agenda.
June 25, 2010, 9:52 amjrose says:
But, SCOTUS did in Hurley. Are you calling for Hurley to be reversed?
June 25, 2010, 10:59 amRob Berra says:
Arthur, while there’s no question that parts of the Bible are historically inaccurate (global flood, to pick the biggie), I’m not sure you can document your dismissal that the entire Gospel is “not the truth … a fable.” Don’t get me wrong: Barb and I agree on almost nothing, but I do need to ask you to back up your sweeping assertion, just as I ask her to do when she makes ‘em.
Best regards,
Rob
June 25, 2010, 3:19 pmDHill says:
Well…round one is done….
June 25, 2010, 3:23 pmRob Berra says:
Kind of how I expected it to shake out, or — at least — how I thought it should shake out. I don’t think TCP should be able to prevent him from moving through the park disseminating literature any more than it could on any other day. Obviously, as the ruling says, if he interferes with passage along the walks or otherwise disrupts the event, I’d hope the MPRB cops will hustle his sorry ass away, but until then he gets to spread his message like any other form of “speech we hate.”
I wonder if perhaps a few people will simply show up with signs that say “LOSER” with a big arrow on them, and follow him around so that the arrow points to him. If TCP can’t stop his expressive speech, then he can’t stop that, either…
June 25, 2010, 3:53 pmElliot says:
I remember some gay festival where the Pink Bunny Patrol blocked the anti-gay demonstrators. It looked like something from Monty Python.
June 25, 2010, 6:03 pmManju says:
Its unclear why you’re not concerned about a backdoor to censorship, after all constituinal rights trump civil. Now the govt, becasue of the 2nd category, can require a feminist parade to host a gun-rights float, muddling their message with forced speech.
Since racsim, sexism, and homophobia aren’t he only evils in the world, its unclear why communists or radical jihadists won’t also be subjegated to similar hurdles. Your regime has created a mechanism to suppress unpopular opinions.
June 25, 2010, 6:53 pmKatahdin says:
Wait a sec – doesn’t the highlighted part of #2 conflict with #1?
June 26, 2010, 10:29 amStevie D says:
Let the gay organization litigate the hell out of this situation.
What have we here? A gay group uses one public space once a year for two days. A member of the anti-gay industry wants to insert an opposing message? And the anti-gay guy is supported by hater-lawyers from an anti-gay organization? All of this is calculated to make a mockery of our legal system and hold our judges up to public ridicule — similar to what happened in California with Proposition 8 litigation.
I say, scorched-earth policy toward the anti-gay industry, across the board. They’re a multi-hundred-million-dollar industry who foment homophobia, and stir up an atmosphere conducive to violence against gay folks, for monetary profit, political power, and personal prestige. They’re an entirely anti-social, parasitic industry. They’re the moral equivalent of the Nazis and the Ku Klux Klan. Go after them for the sociopathic Fascists that they are!
Don’t be intimidated, and don’t just stand there and allow our judges to be played for chumps!
June 27, 2010, 2:02 amyankev says:
That’s a grossly expanded misreading of Hurley.
June 27, 2010, 12:12 pmyankev says:
Please do not expect consistency from Dilan. Being perfectly convinced that G-d does not exist, and that if there were a G-d we would have no way of knowing what G-d thinks, Dilan is equally convinced that he, Dilan, knows best what G-d does and does not care about.
I might add that the kiloing of rivals for food, territory and sexual favors is also common in nature, as is non-consensual sexual domination of the weaker by the stronger, the killing or abandonment of offspring by their fathers, the killing and consumption of consorts by females, and the taking by force of food gathered or otherwise acquired by another. By Dilan’s loic, presumably we are to assume that G-d would therefore approve of similar conduct by human beings.
Some targets are just too easy.
June 27, 2010, 12:19 pmTranx says:
This ruling turns the Hurley decision on it’s head.
June 28, 2010, 3:47 amTranx says:
And the gay Irish group in Hurley, was only asking for access to the public street on the parade route.
June 28, 2010, 4:04 am