The Volokh Conspiracy - Arab Christian Group Sues Over Anti-Leafleting Rule at Arab International Festival on Dearborn (Michigan) City Property:

You can read the Complaint, the Thomas More Law Center press release, and a FoxNews.com article. To quote the last of these,

The leader of an Arab Christian evangelical group filed suit against the city of Dearborn, Mich., claiming the city violated his First Amendment right to distribute literature on public property.

The incident occurred last month at the city's annual Arab International Festival, an event that attracted 300,000 visitors and has provided a favorite evangelizing venue for the group, Arabic Christian Perspective, whose members have attended for the past five years.

George Saieg, Arabic Christian Perspective's founder, says trouble started when he called the Dearborn police to let them know his group would be returning to the festival.

City police told Saieg that, unlike in previous years, his group would not be allowed to distribute material on the sidewalks, and that Arabic Christian Perspective could either rent a stand at the festival or be assigned a specific location at which it could distribute its literature.

My thoughts:

1. If indeed the plaintiffs were trying to distribute material on public sidewalks that were generally open to the public, and

2. if the would-be leafleters merely wanted to distribute leaflets rather than solicit money, then

3. they would have a constitutional right to distribute leaflets --- something that they have a right do even in "nonpublic fora" such as airports, and certainly on "traditional public fora" such as sidewalks.

4. Even content-neutral bans on all distribution of materials would thus be unconstitutional.

5. Content-based bans that exclude "political literature" (if such a ban was indeed instituted here, which the Complaint alleges) would be even more clearly unconstitutional, even if they applied to all political literature, or all noncommercial literature, or all political and religious literature. Plaintiffs assert that this ban was not applied evenhandedly to all political literature; I don't know if they're correct, but even if they're not, a ban on handing out all political literature is still unconstitutional.

6. Some content-neutral restrictions on leafleting that let people walk around and leaflet, but (say) limit the number of people in the walking group would be constitutional. But restrictions that require people to stay at fixed booths would generally not be constitutional, especially if the fixed places are in places that many festivalgoers wouldn't visit (and if they cost money to rent).

7. The matter would be different if a group is putting on its own rally or some such, even in a public park or a public square, and gets a permit that would allow only its own members or invitees on the property on which the group itself is speaking. In such a situation, the property could in effect be temporarily privatized, so that the group can express its own views without the interference of others. That, for instance, is why parade organizers (who have a valid parade license) can generally select who can participate in the parade, even though the parade proceeds down a city street.

But if the group basically lets pretty much everyone use the sidewalk (as the Complaint alleges), and doesn't itself use the sidewalk for its own speech, then the sidewalk remains a traditional public forum or at worst (from the plaintiff-speakers' perspective) a nonpublic forum. Leafleting is generally constitutionally protected in both classes of forum. See Parks v. City of Columbus, a case from the federal circuit (the Sixth) in which the event took place.

UPDATE: This, by the way, is the case that Clayton Cramer blogged about yesterday, but I see no reason to treat it as a government action that is targeted at Christians because they're Christian (something that Cramer's post suggested). As best I can tell, even the plaintiffs aren't claiming that the city is discriminatorily enforcing the no-leafleting aspects of its policy; they do claim that some vendors were violating the ban on distributing "political paraphernalia," but it's not clear to me that the city even knew about that. The problem, it seems to me, is that the leafleting ban is unconstitutional, and even more clearly unconstitutional if limited to "political literature" — not that the city is selectively applying it to Christians.

	[Eugene Volokh, July 21, 2009 at 8:29pm] Trackbacks Arab Christian Group Sues Over Anti-Leafleting Rule at Arab International Festival on Dearborn (Michigan) City Property: You can read the Complaint, the Thomas More Law Center press release, and a FoxNews.com article. To quote the last of these, The leader of an Arab Christian evangelical group filed suit against the city of Dearborn, Mich., claiming the city violated his First Amendment right to distribute literature on public property. The incident occurred last month at the city's annual Arab International Festival, an event that attracted 300,000 visitors and has provided a favorite evangelizing venue for the group, Arabic Christian Perspective, whose members have attended for the past five years. George Saieg, Arabic Christian Perspective's founder, says trouble started when he called the Dearborn police to let them know his group would be returning to the festival. City police told Saieg that, unlike in previous years, his group would not be allowed to distribute material on the sidewalks, and that Arabic Christian Perspective could either rent a stand at the festival or be assigned a specific location at which it could distribute its literature. My thoughts: 1. If indeed the plaintiffs were trying to distribute material on public sidewalks that were generally open to the public, and 2. if the would-be leafleters merely wanted to distribute leaflets rather than solicit money, then 3. they would have a constitutional right to distribute leaflets --- something that they have a right do even in "nonpublic fora" such as airports, and certainly on "traditional public fora" such as sidewalks. 4. Even content-neutral bans on all distribution of materials would thus be unconstitutional. 5. Content-based bans that exclude "political literature" (if such a ban was indeed instituted here, which the Complaint alleges) would be even more clearly unconstitutional, even if they applied to all political literature, or all noncommercial literature, or all political and religious literature. Plaintiffs assert that this ban was not applied evenhandedly to all political literature; I don't know if they're correct, but even if they're not, a ban on handing out all political literature is still unconstitutional. 6. Some content-neutral restrictions on leafleting that let people walk around and leaflet, but (say) limit the number of people in the walking group would be constitutional. But restrictions that require people to stay at fixed booths would generally not be constitutional, especially if the fixed places are in places that many festivalgoers wouldn't visit (and if they cost money to rent). 7. The matter would be different if a group is putting on its own rally or some such, even in a public park or a public square, and gets a permit that would allow only its own members or invitees on the property on which the group itself is speaking. In such a situation, the property could in effect be temporarily privatized, so that the group can express its own views without the interference of others. That, for instance, is why parade organizers (who have a valid parade license) can generally select who can participate in the parade, even though the parade proceeds down a city street. But if the group basically lets pretty much everyone use the sidewalk (as the Complaint alleges), and doesn't itself use the sidewalk for its own speech, then the sidewalk remains a traditional public forum or at worst (from the plaintiff-speakers' perspective) a nonpublic forum. Leafleting is generally constitutionally protected in both classes of forum. See Parks v. City of Columbus, a case from the federal circuit (the Sixth) in which the event took place. UPDATE: This, by the way, is the case that Clayton Cramer blogged about yesterday, but I see no reason to treat it as a government action that is targeted at Christians because they're Christian (something that Cramer's post suggested). As best I can tell, even the plaintiffs aren't claiming that the city is discriminatorily enforcing the no-leafleting aspects of its policy; they do claim that some vendors were violating the ban on distributing "political paraphernalia," but it's not clear to me that the city even knew about that. The problem, it seems to me, is that the leafleting ban is unconstitutional, and even more clearly unconstitutional if limited to "political literature" — not that the city is selectively applying it to Christians.