May 2012 - Parks & Recreation - 27

LAW RE VIE W

By James C. kozlowski, J.d., Ph.d.

Festival Policy Silences
Annoying Preaching

T

he first AMenDMent prohibits the suppression

thinkstOck

of free speech activities by government. Further,
when private individuals or groups are involved,
there must be a sufficient degree of governmental involvement to establish the necessary " state action " to trigger First
Amendment protection. Such constitutional protection for individuals and groups, however, is not absolute. Free speech
activities are still subject to reasonable time, place, and manner restrictions by government. Moreover, public parks are
considered the " quintessential " public forums in which individuals and
groups have traditionally engaged in free speech activities.

To be considered a reasonable time, place, and
manner restriction, governmental regulation of free
speech activities must be content neutral. To be considered content neutral, governmental regulation
must not favor or disfavor certain types of speech
based on its content. In other words, the speech of all
speakers and groups is treated and regulated alike,
regardless of point of view or message.
In addition, any governmental regulation of free
speech activities must be narrowly tailored to effect
a significant governmental interest, e.g., preserving
the public health, safety, and welfare. In other words,
there must be a direct correlation between the degree of governmental restriction on free speech activities and the significant governmental interest to
be achieved. Accordingly, governmental restriction
on free speech activities must not be broader than
necessary to achieve a significant and demonstrable governmental interest in public safety. Further,
public safety concerns must be real and immediate,
not based on conjecture and speculation about potential dangers.
As illustrated by the City of Fairborn opinion described herein, a policy may be too broad and
vague to pass constitutional muster if it effectively suppresses conversations expressing religious

views because some park visitors might be bothered by a particular speaker's message.

Sweet Corn Festival
In the case of Bays v. City of Fairborn,
2012 U.S. App. LEXIS 2807; 2012
FED App. 0044P (6th Cir. 2/13/2012),
plaintiffs Tracy Bays and Kerrigan Skelly claimed the
defendant City of Fairborn's solicitation policy in effect
at the at the Fairborn Sweet Corn Festival ( " Festival " )
violated the free speech clause of the First Amendment.
The Festival is an annual event held since 1982 at
Community Park, a 200-acre public park in Fairborn,
Ohio. The Festival takes place in a designated portion
of Community Park and involves a sweet corn eating
competition, live music, and various booths displaying and selling arts and crafts and other goods.
The Fairborn Parks and Recreation Department
had entered into an " Agreement for Facility Use "
with the Fairborn Arts Association ( " FAA " ) and the
Fairborn Lions Club ( " Lions Club " ) that allowed the
use of the park for the Festival. The agreement provided that the " Sweet Corn Festival is the responsibility of the FAA and Lions Club organizations " and
that " [p]romotion, conduct, registration, fundraising

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May 2012 - Parks & Recreation

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