Posted by Eugene Volokh:
Arab Christian Group Sues Over Anti-Leafleting Rule at Arab International
Festival on Dearborn (Michigan) City Property:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248222575
You can read the [1]Complaint, the [2]Thomas More Law Center press
release, and a [3]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 [4]Parks v. City of Columbus, a case from the
federal circuit (the Sixth) in which the event took place.
References
1. http://www.thomasmore.org/downloads/sb_thomasmore/CityofDearborn.pdf
2.
http://www.thomasmore.org/qry/page.taf?id=19&_function=detail&sbtblct_uid1=674
3. http://www.foxnews.com/story/0,2933,534301,00.html
4. http://openjurist.org/395/f3d/643/parks-v-city-of-columbus-c-g
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