DES MOINES, Iowa (CN) — A street preacher who wants to spread his religious message asked the Eighth Circuit Court of Appeals to rule that the Iowa city of Davenport violated his First Amendment rights by shooing him off city streets during a popular downtown civic festival.
Cory Sessler sued the city and three Davenport police officers who made him leave a downtown street festival site in 2018 after they received complaints that some festivalgoers were offended by his amplified preaching and placards warning that sinners are destined for hell.
Jason O’Rourke of Lane & Waterman in Davenport, who represented the city and three police officers in Thursday’s argument, told the appellate judges that Sessler’s First Amendment rights were not violated.
“This case is not about Mr. Sessler’s right to preach on the city streets. He has that right, and he always had that right,” O’Rourke said. “He preached during festival for over a half hour and then right outside the gate on city streets for nearly three hours.”
Thursday’s oral argument in St. Louis was Sessler’s second trip to the Eighth Circuit. The appellate court in 2021 affirmed the trial court’s denial of Sessler’s motion for an injunction. On remand, the trial court dismissed the case on the merits.
A downtown Davenport promotional group sponsored the festival on city streets and sidewalks with city approval. Chain-link fences were erected around the perimeter to control crowds, but no admission was charged.
Sessler entered the festival area with his family and friends and began preaching with the aid of a microphone and amplifier. He also held up signs on extended poles with such messages as: “Warning: if you are involved in . . . sex out of marriage[,] homosexuality[,] drunkenness[,] night clubbing . . . you are destined for a burning hell,” according to the federal judge's ruling.
Three Davenport police officers named in the complaint approached Sessler, saying the festival was a private event and that vendors had received complaints that some attendees took offense to his preaching. Sessler was eventually ordered, upon the threat of arrest, to move across a three-lane street outside the fenced-in festival grounds.
Sessler argues in his appellate brief that the city and its police officers who removed him from the festival area violated his First Amendment rights by censoring his message based on its content and expelling him from a public event.
“Street Fest took place on public streets and sidewalks, traditional public fora,” Sessler says in the brief. “The presence of the festival, free and open to the public, does not change the nature of the forum, nor does the fencing around the area convert the space into limited public fora.”
In its brief in response, the city of Davenport and the police officers say the trial court was correct in granting the officers qualified immunity and that the streets and sidewalks during the two-day festival were limited public forums.
“Sessler’s argument otherwise begins and ends with the mistaken premise that the city cannot temporarily create a limited public forum by reserving a portion of its property to raise revenue or conduct a temporary event to benefit the general public,” the city argues. “The First Amendment does not command such a limited view of the city’s authority to control its public property . . . .”
A member of the Eighth Circuit panel asked Nathan Kellum, an attorney representing Sessler with the Center for Religious Expression, how this case is different from a 2015 Eighth Circuit decision involving a different street preacher who was removed from an area just outside fencing surrounding the Iowa State Fairgrounds in Des Moines.
“That area outside the fencing that is still part of the fairgrounds is always Iowa State Fairgrounds,” Kellum said. “It doesn’t change. It’s always fairgrounds. “Here, Mr. Sessler was standing on a public street, he was standing on a public sidewalk, meaning city street, city sidewalk.”
In an exchange with members of the panel, O’Rourke, the attorney for the city, was pressed on why Sessler was removed for allegedly making festivalgoers “feel bad” with his fire-and-brimstone preaching style.
“The point is not that he made people feel bad,” O’Rourke said. The vendors were upset because Sessler’s people were driving away business. “We have more than just people being upset,” he said. “We have impeding business. We have congestion. We have issues like that.”
The panel for Thursday’s oral argument included Chief U.S. Circuit Judge Lavenski Smith and Senior U.S. Circuit Judge Michael Melloy, both appointees of George W. Bush, and U.S. Circuit Judge Ralph Erickson, a Donald Trump appointee.
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