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Monday, May 20, 2024 | Back issues
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Festival Wasn’t So Sweet on the First Amendment

(CN) - A small Ohio town cannot block Christians from preaching at a festival it holds every year to celebrate sweet corn, the 6th Circuit ruled.

Trouble erupted at the 2009 Sweet Corn Festival in Fairborn, Ohio, when police threatened to arrest two Christians who wanted to preach about religion to festivalgoers.

The local arts association and Lions Club service organization are in charge of the at Community Park festival under a contract with the parks department. Festival merchants must apply for booth space, agreeing to various conditions such as a nonsolicitation policy.

A festival worker cited this policy when he saw Tracy Bays wearing a Bible-themed sandwich board and speaking to patrons. The worker said Bays either had to remove the sign or leave the park. A parks department official also told Bays he could display a sign or distribute literature in the park.

When Bays and Kerrigan Skelly continued to preach to festivalgoers, three Fairborn police officers intervened and threatened to arrest the pair for criminal trespassing.

Deciding to avoid arrest, Bays and Skelly left the park. They then sued the city, two police officers and the parks department official civil rights violations.

A federal judge in Dayton refused to grant a preliminary injunction, finding that there was no state action since the festival, rather than Fairborn, had the policy on solicitation.

The court concluded further that the city would likely succeed on the merits, even if there was state action, since "the solicitation policy is constitutional as a reasonable time, place and manner restriction on speech."

The Cincinnati-based federal appeals court disagreed, however, stating that Fairborn officials engaged in state action by "supporting and actively enforcing the solicitation policy in place at the festival."

"Displaying signs, orally disseminating religious beliefs and distributing religious tracts all fall under the purview of the First Amendment, and Fairborn does not dispute that Bays's and Skelly's conduct is protected speech," Judge Siler wrote for a three-judge panel.

Fairborn's policy, furthermore, is unconstitutional because it is not "narrowly tailored" to further the state's interests, such as crowd control and traffic flow, the court ruled.

"Because Bays and Skelly have shown a strong likelihood of success on the merits due to the presence of state action and the fact that the solicitation policy is not narrowly tailored to serve significant government interest, the other factors weigh in the plaintiffs' favor and counsel for the granting of the preliminary injunction," Siler wrote.

Alliance Defense Fund attorney Nathan Kellum, based in Memphis, Tenn., represented Bays and Skelly. The defendants were represented by Joshua Schierloh with Surdyk, Dowd & Turner in Miamisburg, Ohio.

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