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Gay Pride Festival Can’t Bar Distribution of Bibles

(CN) - Twin Cities Pride, a gay rights festival held every summer in Minneapolis, cannot bar an evangelical Christian from passing out Bibles there, the 8th Circuit ruled.

Brian Johnson had distributed Bibles from a festival booth in Loring Park for 11 years before the festival finally denied his application for a booth in 2009. That year, Johnson circulated the park to pass out his Bibles and was arrested for trespassing. The charges were later dropped, however, and Minneapolis Parks and Recreation assured him that he would be able to distribute literature without interference in 2010.

Twin Cities Pride then filed suit, but a federal judge denied it a restraining order and Johnson again distributed Bibles without incident that year

With the 2011 festival on the horizon, Twin Cities Pride filed an amended complaint against Parks and Rec that removed any mention of Johnson and instead sought leave to designate free-speech zones at the festival that park officers would monitor.

Finding that the parks board could adequately represent Johnson's interest, U.S. District Judge John Tunheim revoked his intervenor status.

The board and Twin Cities Pride then reached a deal that bars attendees from distributing literature within the festival unless they have a booth. All festival booths required Twin Cities Pride approval, and all booths outside the festival but still in the park required board approval, according to the agreement. The agreement also created a material-drop area where anyone could leave noncommercial literature unattended.

Johnson declined to either seek a board-sponsored booth or place literature in the drop-off area in 2011, and instead filed suit.

Refusing to enjoin the literature-distribution ban, the District Court found that the board's regulation "constitutes a content-neutral time, place, and manner restriction that is narrowly tailored to serve the board's significant interest in crowd control."

A three-judge panel of the 8th Circuit granted injunctions pending appeal in 2012 and this year, and ruled for Johnson, 2-1, on Sept. 11.

The board failed to show that its restriction aims to control crowd flow and allow easy access for emergency vehicles, according to the 11-page majority ruling.

Evidence on this point was limited to a 2010 incident in which nonparticipants passed out "graphic" literature on animal cruelty in 2010, causing congestion that led the operators of approved booths to complain, the St. Louis, Mo.-based court found.

This merely shows that "the festival participants were unhappy that their own literature distribution was confined to booths," according to the ruling.

"It makes little sense for participants to have complained simultaneously that (1) literature distribution outside of booths caused problematic congestion, and (2) they too should have been permitted to distribute literature from outside their booths, thereby creating more problematic congestion," Judge Steven Colloton wrote for the panel majority.

Johnson also deserved more credit for pointing out that at least one street performer was allowed in the park during the 2011 festival, according to the ruling.

The appellate panel scoffed at the lower court's finding that "performers are less likely to cause congestion than literature distributors."

"We think it obvious, however, that a street performer's very purpose is to draw a crowd," Colloton wrote. "Buskers like mimes, musicians, and living statues aim to attract an audience, and passersby must stop to listen or observe. With literature distribution, by contrast, a recipient 'need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand.'"

The panel also found it noteworthy that the parks board allowed Twin Cities Pride to solicit money in the park despite the supposed goal of limiting congestion.

"If the board approves of stationary solicitors raising money outside booths and 'near entrances' to the festival, then we are hard pressed to understand how it can justify barring Johnson from engaging in a less congestive form of expression at the same locations," Colloton wrote.

Writing in dissent, Judge Kermit Bye said he would affirm the finding that the board's regulation is content-neutral and narrowly tailored to serve a legitimate government interest.

Noting that that there were nine ambulance calls on one day of the 2011 festival, Bye credited testimony that the distribution of literature outside of a booth would "impede arrival and access of other festival attendees, as well as paramedics, security personnel, police and the delivery of supplies."

"If one person is allowed to ignore sensible regulations limiting literature distribution to designated areas, more people will have an incentive to ignore the same regulations," he added. "Such will lead to greater congestion and a frustration of all participants' free speech activity, especially the festival participants who went to the trouble of obtaining and operating a booth within the regulations. Indeed, this outcome could lead to less speech, not more."

The case now returns to U.S. District Court in Minneapolis for further proceedings.

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