Court Upholds Baptists’ Right to Proselytize (and Criticize) on Sidewalks at a Religious Festival

So holds Teesdale v. City of Chicago (N.D. Ill. May 26, 2011) (earlier ruling here), in a decision that is much like the one in the Dearborn, Michigan incident, though of course with a different religious group as the target:

Plaintiffs … alleged that defendants interfered with their distribution of religious literature and related proselytizing during the July 2008 St. Symphorosa Family Fest held on the grounds of St. Symphorosa Church and surrounding public streets….

This case was filed three days before the July 2009 Fest began. Two days before the Fest began, plaintiffs filed and served a motion for temporary restraining order and preliminary injunction which they presented in court on the same day that the four-day 2009 Fest began. The day after the filing of that motion, the City filed its opposition to preliminary relief. In that opposition, the City argued that it

did not violate the First Amendment by enforcing its permit scheme to allow St. Symphorosa to hold its permitted event and to allow it to exclude the Plaintiffs who wished to convey a message antithetical to St. Symphorosa or the Catholic Church. The Plaintiffs could convey their message elsewhere or at another time or outside of the boundaries of the permit granted to St. Symphorosa [T]he City has a significant interest in preserving St. Symphorosa’s right to have its message heard, rather than the anti-Catholic sentiments of Plaintiffs.

The City noted that plaintiffs had the available alternative of leafletting just outside the Fest…. Relying on the allegation that the City’s opposition to preliminary relief was an expression of the City’s official view as of 2009, it was held that it was adequately alleged that, as of 2009, the City had a policy that plaintiffs could be excluded from expressing themselves at future Fests. Therefore, the equitable relief claims contained in Counts I and II were not dismissed.

Here, plaintiffs have a concrete plan to again leaflet at the 2011 Fest, something Teesdale and all or some of the other plaintiffs, plus additional church members, have done at each of the past three Fests. In 2008, plaintiffs’ expression was interrupted and then discontinued when Teesdale was detained by Fest security and then subsequently placed under arrested by Defendant Officers. In 2009 and 2010, plaintiffs acted under the terms of Agreed Standby Orders, without interferences when leafletting and expressing their views on Fest grounds. Under the terms of the Standby Orders, plaintiffs did not use a bullhorn or sound amplification, they were limited to one banner, and the size of signs was limited. Plaintiffs do not intend to use sound amplification in the future.

As set forth above, in this litigation, the City took the position that plaintiffs should be prevented from expressing themselves at the 2009 Fest and that it would be lawful to exclude them from Fest grounds. Since its initial opposition, the City has avoided expressly taking a position as to whether or not plaintiffs’ intended speech on Fest grounds can lawfully be stopped. It is telling, though, that the City has not stated that, absent another court order (standby or otherwise), it would not provide police support to stop plaintiffs’ expression on the grounds of the Fest. On these facts, a credible threat remains that the City would interfere with plaintiffs’ planned expression….

[P]laintiffs could [constitutionally] be stopped from speaking in a manner that indicated they were speaking on behalf of the official event; in a manner or location that blocked pedestrian or vehicular traffic or caused other safety concerns; or by using amplification that would drown out official Fest events. On summary judgment, it is uncontested that plaintiffs’ plans for future expression at the Fest would not cause any such disruptions. They will not use any amplification, they will avoid interfering with traffic, and there is no evidence their use of signs will cause any such interference. Plaintiffs do not oppose the time, place, and manner terms of the Agreed Standby Orders.

On plaintiffs’ summary judgment motion, it must be conclusively established — that is, that there is no genuine factual dispute — that the City’s current policy is that outside groups like plaintiffs can be excluded from nondisruptive leafletting and speaking at permitted events like the Fest that are open to the general public. As previously discussed, the only evidence on this issue is the City’s prior position taken in 2009. The clear implication of entering into standby orders only is that the City continues to contend it can lawfully stop plaintiffs’ proposed expression. The only reasonable inference to be drawn is that the City has not changed from the position it took in July 2009. On plaintiffs’ summary judgment motion, it is taken as true that, absent a court order, the City has a policy that would result in enforcing the exclusion of plaintiffs from engaging in their planned speech at future Fests….

The Clerk of the Court is further directed to enter a declaratory judgment in favor of plaintiffs and against defendant City of Chicago as follows:

A. Nine or fewer members of the Garfield Ridge Church may as a group or individually enter the public streets adjacent to and upon which any St. Symphorosa Family Fest is held, during the hours in which such St. Symphorosa Family Fest is open to the public.

B. Such members may freely move about the public streets and distribute leaflets to others at the Fest.

C. Such members may speak to individuals in attendance at the Fest but not use a bullhorn or other sound-enhancing devices.

D. Such members may display one banner not to exceed four feet by three feet and may carry non-pole signs not to exceed three feet by two feet.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.