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law review continued from page 25

and other festival-related issues are the
responsibility of the FAA and Lions Club
Organizations. "
Fairborn agreed to support the Festival in a number of ways, including raising
and lowering Festival banners, providing
picnic tables and bleachers, and supplying general labor at a set cost. Community Park remained free and open to the
public during the Festival.
The FAA and Lions Club accept applications for booth space for those wishing to sell merchandise, food, or arts and
crafts. The application is to be submitted
to the FAA prior to the Festival and requires applicants to pay between $85 and
$135 for a booth. Attached to the application is a set of Terms and Conditions which
includes the solicitation policy that provides " [t]here shall be no sales or soliciting of causes outside of the booth space. "
Plaintiffs Bays and Skelly are Christians who seek to publicly convey their
religious beliefs by speaking, preaching, distributing literature, and displaying
signs. They planned to meet at Community Park on August 15, 2009, to express
their religious views during the Festival.
Bays arrived at the park around 11:00 a.m.
and began walking through the Festival
speaking and carrying a 2 x 2-foot sandwich board sign that read " Jesus is the
Way, the Truth and the Life. John 14:6 " on
the front and " Are you born again of the
Holy Spirit? " on the back.
Bays was soon approached by a Festival worker who told him to remove his
sign or leave the park. After Bays asked if
there was a written policy substantiating
this request, the Festival worker walked
away and Bays followed him to a nearby
tent. When Bays repeated his question
about the policy, the worker referred to a
Festival policy against solicitations. Bays
remained convinced of his right to speak
and display signs, so he left the tent and
began to distribute religious tracts while
continuing to wear the sign.
Bays was then approached by Peter
Bales, the Fairborn Parks and Recreation Department Superintendent, who
told Bays he could not display a sign or

26	 Parks & Recreation   M A Y

distribute literature in the park. After
Bales walked away from Bays, Bays found
Skelly in the park. While the two were
talking, they were approached by Bales
and three Fairborn police officers, including Mark Stannard and Rodney Myers.
Bays and Skelly invoked their First
Amendment rights, but the officials again
stated that they could not display signs or
hand out literature and that they would be
arrested for criminal trespassing if they
did not stop those activities. Officer Myers
also informed them that they would need
a " permit, " presumably for a booth, if they
wanted to stand and preach stationary.
In the alternative, Meyers said they
could still talk to other people as long as
" people [do not] indicate to us that you are
bothering them. " According to the police
officer: " If we start getting approached by
people who say, 'Hey, these two guys are
approaching me and bothering me and
talking about stuff I don't want to hear,'
then you're going to have a problem. " After a lengthy discussion, Bays and Skelly
decided to avoid arrest and leave the Festival at Community Park.

State Action?
The federal district court denied plaintiff's request for a preliminary injunction
which would have prohibited enforcement of the policy pending a full trial. In
so doing, the district court held " the solicitation policy and its enforcement were
not state action, and the policy, even if it
was attributable to Fairborn, was a reasonable time, place, and manner restriction on speech. " Plaintiffs appealed.
As noted by the federal appeals court,
" First Amendment protections are triggered only in the presence of state action
and...a private entity acting on its own
cannot deprive a citizen of First Amendment rights. "
On appeal, Fairborn argued that there
was " no state action in this case because
the solicitation policy found in the Terms
and Conditions attached to the booth application is attributable to the FAA and Lions Club, the private groups that organize
the Festival, and not to Fairborn. " Further,

2 0 1 2    w w w . N R P A . O R G

Fairborn contended that " the enforcement
of the policy by Fairborn officials does not
transform the private policy into state action. " The federal appeals court disagreed.
In the opinion of the appeals court,
" Fairborn officials engaged in state action
by supporting and actively enforcing the
solicitation policy in place at the Festival. "
According to the court, a " presumption of
state action " was created when " the Fairborn officers in this case were dressed
in their official police uniforms, identified themselves as officers, and threatened arrest. " The federal appeals court,
therefore, held that " an active role of police officers or government officials in the
enforcement of festival policy is sufficient
to establish state action. "

Protected Speech
As noted by the appeals court, there was
no dispute that " Bays's and Skelly's conduct
is protected speech. " In so doing, the court
acknowledged that " Displaying signs, orally disseminating religious beliefs, and distributing religious tracts all fall under the
purview of the First Amendment. "
The federal appeals court then identified
" the nature of the forum, " whether public
or nonpublic, to determine " the extent to
which the Government may limit access. "
According to the court, public parks like
Community Park are " quintessential public forums " because such properties have
been traditionally " devoted to assembly
and debate. " Further, the appeals court
found " [t]he City cannot claim that one's
constitutionally protected rights disappear
because a private party is hosting an event
that remained free and open to the public. "
For a " traditional public forum " like
Community Park, the federal appeals court
would apply the following " appropriate
standard to Fairborn's speech restriction " :
Because Bays and Skelly wish to engage in protected speech in a
traditional public forum, the applicable
principle in this case is that reasonable
time, place, and manner restrictions
may be enforced . . . so long as they
are content neutral, are narrowly tailored to serve a significant government
May 2012 - Parks & Recreation

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