December 2012 - Parks & Recreation - 28

LAW REVIEW

BIBLE DIS TRIBUTION REGUL ATED AT G AY PRIDE FES TIVAL

The parties further agreed that " Loring Park is a traditional public forum
and that it remains so during the Festival. " As noted by the federal district
court, public parks are considered
" quintessential public fora " for exercising one's First Amendment rights.
Moreover, the court noted that public parks " retain that status where, as
here, a private actor assumes non-exclusive control of an area to hold an
event to which the public has free and
open access. "
Since all parties agreed that Johnson's activity was protected speech in
a public forum, the court had to determine whether the MPRB material
distribution regulation was an unconstitutional " content-based restriction "
targeted to religious messages, or a reasonable " content-neutral restriction " on
the time, place, and manner of material
distribution, treating all messages alike.
According to the court, a content-neutral regulation could place reasonable
time, place, and manner restrictions
on Johnson's free speech activities as
long as the regulation was " narrowly
tailored to serve a signiﬁcant government interest and leave open ample alternative channels of communication. "
As noted by the court, " requiring that
all literature be distributed from a stationary location is a content-neutral
regulation. " In this particular instance,
citing the expressed language of the
regulation, the court further found restrictions on " the distribution of 'any
material' is clearly content neutral and
does not give MPRB discretion to target materials based on their content, "
religious or otherwise:
Sales, sampling, or distribution of
any material within Loring Park
outside of an authorized MPRB
booth or an authorized Twin Cities
Pride [booth] is not permitted
(MPRB 2011 Rules for Exhibitor/
26

Parks & Recreation

Vendor Booth at Loring Park June
25 and 26).

In past festivals, distribution of
literature from outside a booth has
caused traffic congestion, security

Crowd Control And Public Safety

problems, complaints from partici-

Having found that the regulation at issue was content neutral, the federal district court then considered whether the
challenged regulation served a significant government interest. Johnson
contended that MPRB had " not presented a legitimate interest which is
advanced by the regulation and that the
regulation is not narrowly tailored. " In
response, MPRB contended " the regulation, coupled with the provision of the
drop zone and MPRB-Area booths, is
narrowly tailored to serve a signiﬁcant
government interest, " viz. crowd control and public safety. Johnson, however, countered that MPRB had not shown
that distribution of literature outside of
booths and throughout Loring Park
would cause signiﬁcant crowd control
and public safety concerns.
As noted by the federal district court,
as general matter, it was " clear that a
State's interest in protecting the safety and convenience of persons using
a public forum is a valid governmental objective. " However, in " showing
that its interests are in need of protection, the government must show that
the recited harms are real, not merely
conjectural. " Further, the government
must show that " the regulation will in
fact alleviate these harms in a direct
and material way. "
In this particular instance, MPRB
claimed the purpose of the material
distribution regulation was to protect
public safety " by maintaining the orderly ﬂow of people, providing access
for security and emergency vehicles,
and facilitating the activities of the participants at the Festival. " In support of
its position, MPRB cited the following
declaration from the executive director of Twin Cities Pride:

pants, and has disrupted the mes-

| DECEMBER 2012 | WWW.NRPA.ORG

sage of participants who pay to
have a booth... [E]very year, Twin
Cities Pride's management and security receives complaints about
the traffic congestion caused by
non-participants handing out literature and materials from outside a
booth...
[For example,] at the 2010 Festival by animal rights activists who
distributed leaﬂets outside of
booths. Those activists handed out
pamphlets and ﬂyers with graphic
images of cruelty to animals from
outside a booth, prompting Twin
Cities Pride's management and security to receive many complaints
from participants because of the
traffic congestion caused by these
non-participants handing out literature from outside of a booth while
the participants themselves were
required to remain in their booths
when handing out literature or materials... [T]he next year, the activists utilized the material drop zone
and, as a result, there were no
complaints.

MPRB also submitted evidence to
show the scale of the crowds present in
Loring Park during the Festival. Consistent with observed attendance in
previous years, Twin Cities Pride expected over 250,000 Festival attendees during the two-day event in 2012.
This expected attendance level, along
with Loring Park's 42-acre footprint, led
to a projected crowd density of nearly 3,000 people per acre, nearly three
times the crowd density at the Minnesota State Fair.
In the opinion of the federal district
court, " MPRB's interest in crowd control
December 2012 - Parks & Recreation

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