Smith Park, adjacent to an Islamic community center in Bloomington, is used as a playground by a charter school. (Photo: Kevin Featherly)
8th Circuit: Bloomington’s camera ban in parks is content-based, violating free speech
A city ordinance that prohibited use of cameras in a public park next to an Islamic community center violates the First Amendment, as it applies to a woman who documented the center’s allegedly wrongful use of the park and nearby parking spaces.
That was the ruling of a three-judge panel of the 8th U.S. Circuit Court of Appeals in Ness v. City of Bloomington, et al.
Plaintiff Sally Ness sued the city, the Hennepin County Attorney and two Bloomington, Minn., police officers, seeking to have both a state harassment statute and a city ordinance declared unconstitutional. She also sought injunctive relief and nominal damages.
Minnesota U.S. District Court Judge Ann D. Montgomery dismissed her complaint, but a unanimous 8th Circuit panel reversed. It directed entry of judgment for Ness on her claim that the municipal ordinance was unconstitutional as applied.
The court said the ordinance is significantly overinclusive with respect to the city’s asserted interest in protecting children who may be filmed. Therefore, it does not survive strict scrutiny.
The Al Farooq Youth and Family Center operates a school, day care center and place of assembly adjacent to Smith Park in Bloomington. A charter school, Success Academy, is located on the center’s property. A joint use agreement governs the parking facilities and allows the center to use the park. The school also uses Smith Park for recess.
The community center, which opened in 2011, was the scene of a 2017 firebombing that destroyed a window and a damaged an interior office. Three people who reportedly intended to frighten Muslims into leaving the United States were charged and convicted for that crime.
Ness, a self-described “point person” for delivering neighborhood concerns about the center, records videos and takes photographs there to document its alleged violations of the joint use agreement. She posts the photographs and videos on social media and a blog.
In August 2018, someone lodged a formal complaint against Ness on suspicion that she violated the state’s criminal harassment statute, Minn. Stat. § 609.749, based on her video recording and photography at Smith Park. Charges were not filed against her at that time.
In 2019, the city approved a municipal ordinance the prohibited photographing and recording of children in city parks. Ness sued, challenging the ordinance.
Harassment claim moot
Ness also challenged the Minnesota harassment statute, about which she had been warned about by police. Officers had told her the statue barred her from she using cameras to harass or intimidate people.
But the 8th Circuit found that complaint moot because the state law was rewritten in 2020. The amended statute requires the state to show that a person’s act is intended to harass or intimidate.
Ness also asserted claims against police for warning her that they would enforce the statute before it was amended, which were also dismissed.
“The officers…reasonably relied on Minnesota’s harassment statute in warning Ness that her video recording may constitute harassment,” Judge Steven Colloton wrote for the court.
The court also agreed with the lower court that a federal civil rights claim against the city under 42 U.S.C. § 1983 for enforcing the harassment law failed, because it was based on a state law, not a city ordinance, policy or custom.
“We decline to make the ‘conceptual leap’ that the enforcement of a state statute by city police officers supports a claim that the alleged unconstitutional statute was adopted as a city policy,” Colloton said.
Step in the ‘speech process’
But the 8th Circuit ruled for Ness that Bloomington’s ordinance is unconstitutional as applied, because it is a content-based restriction of speech.
“If the act of making a photograph or recording is to facilitate speech that will follow, the act is a step in the ‘speech process,’ and thus qualifies itself as speech protected by the First Amendment.” Colloton wrote.
The court concluded that Ness’s photography and video recording were speech. It was entitled to First Amendment protection, the court ruled, because it was an important part of the speech process that ended with the dissemination of information about a public controversy.
The ordinance was a content-based restriction, according to Colloton’s ruling. City officials needed to examine the content of the photo or film to determine whether it is prohibited because it depicted a child, but never did. Content-based restrictions are subject to strict scrutiny and must be narrowly tailored to a compelling government interest.
The city contended it had a compelling interest in protecting children. The court replied:
“We may assume that a narrowly tailored ordinance aimed at protecting children from intimidation and exploitation could pass strict scrutiny. The present ordinance, however, is not narrowly tailored to that end as applied to Ness.”
The court said that Ness does not intend to harass, intimidate or exploit children and did not post their images online. Therefore, the ordinance is significantly overinclusive as applied and thus not narrowly tailored, the court said.
The court did not address Ness’s argument that the ordinance is unconstitutional on its face.