ST. LOUIS (CN) — The Eighth Circuit backed a Minnesota woman’s challenge of a city ordinance banning her from filming children in a city park on Thursday, finding that the ordinance was not an appropriate time, place and manner restriction and violated her First Amendment rights.
The decision is a victory for Sally Ness, whose filming of students at an elementary school in Bloomington near her home using an adjoining park drew police scrutiny in 2018 and led to the passage of an ordinance banning the filming or photography of children within city parks in 2019.
Ness, whose attorney Bill Mohrman said she began filming the students from her yard across the street in order to present her concerns about use of the park to city officials, sued the city later that year alleging the ordinance was an unconstitutional content-based restriction on speech.
U.S. Circuit Judge Steven Colloton, a Donald Trump appointee, wrote that Ness’ photography and recording “is analogous to news gathering."
"The acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy," Colloton wrote for a unanimous three-judge panel.
He went on to find that the restriction was content-based, since the city would have to examine the content of photos or videos to determine whether they fell afoul of it, and that even if a narrowly tailored ordinance meant to protect children could pass strict scrutiny, the Bloomington ordinance didn’t pass muster as applied to Ness.
“Ness seeks to photograph and video record a matter of public interest—purported violations of permits issued by the city—and does not intend to harass, intimidate, or exploit children,” he wrote. "Ness also advised the city that it was her practice to 'block' out the identities of juveniles when she posts images online, and the city produced no evidence to the contrary.”
Ness also sought to overturn Minnesota’s harassment statute, arguing that it too infringed on her rights to free speech, after the lower court found that she lacked standing to do so. The appeals court declined to address the issue, finding that Ness’ claims were mooted by the statute’s amendment in 2020 to require a showing that a convicted person intended to make their victim feel threatened.
Colloton was joined on the Eighth Circuit panel by U.S. Circuit Judges Jonathan Kobes, a fellow Trump appointee, and Roger Wollman, appointed by Ronald Reagan.
Ness’ attorney declined to comment on whether any further action was planned regarding the new harassment statute. He did, however, have harsh words for the ordinance.
“The ordinance itself, quite frankly, was ridiculous from a First Amendment standpoint,” Mohrman said in an interview. He pointed out that it applied only in city parks, making its purported purpose of protecting children a hard sell.
“How does that ordinance protect the privacy of children? It doesn’t,” Mohrman said, adding that someone in violation of the ordinance could just as easily step off a curb and continue photographing.
He called the ruling “a big victory for Sally Ness,” and for other Minnesotans.
“The city was trying to prohibit her… from taping activities across the street from her home” as part of an effort to raise concerns about the park’s use to the city council, he said. “That’s possibly the most fundamental First Amendment right we as citizens all have: the ability to petition the government for a redress of grievance, plus a free-speech guarantee.”
Bloomington spokeswoman Diann Kirby said the city is reviewing the ruling and that it does not comment on pending litigation.
The school whose students Ness filmed, Success Academy, rents space from the Dar Al-Farooq mosque. The city and Attorney General Keith Ellison’s office pointed to a 2017 bombing at the mosque as reason for congregants and students to be afraid of Ness’ filming.
Ness and her attorneys have rejected that contention, saying that she would be equally perturbed by misuse of public space by congregants and students of any religion.
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