An Eighth Circuit panel was skeptical of a local ordinance requiring photographers to get permission to film children in public.
(CN) — A woman’s challenge to a Minneapolis suburb’s ordinance forbidding her from filming other people’s children in parks without permission went before a federal appeals court Wednesday, where she argued that the ordinance and the state’s harassment statute infringed on her First Amendment rights.
A three-judge panel of the Eighth Circuit heard arguments over the city of Bloomington’s 2019 ordinance forbidding filming or photography of children in city parks without parental consent, prompted by a challenge from Bloomington resident Sally Ness.
Attorneys for Ness argued that the ordinance, which forbids filming of children without parental consent within city parks, was a content-based restriction on speech that serves no legitimate government interest. Attorneys for the city, meanwhile, argued that the ordinance was related not to content but to a practice, and that it was narrowly tailored enough to survive intermediate scrutiny even if Ness could show that she had standing to challenge it.
Ness is appealing a July 2020 order by U.S. District Judge Ann Montgomery, in which the judge found that Ness lacked standing to challenge the harassment statute, that the police officers involved were entitled to qualified immunity and that she had not stated a plausible claim that the no-filming ordinance was unconstitutional.
At the hearing, Ness’ attorney Robert Muise of the American Freedom Law Center joined U.S. Circuit Judges Jonathan Kobes, Roger Wollman and Steven Colloton, all Republican appointees, in proposing hypotheticals that could fall afoul of the ordinance. He argued that the death of George Floyd, or the protests that followed, underscored the importance of citizens’ ability to videotape others without their permission.
“When you have a government that’s restricting the ability to gather information, photographing, videotaping — in public, we’re not talking about any sort of private filming…. That’s a dangerous restriction,” Muise said in an interview after the hearing. “You can see, particularly with these protests, the power of being able to show video.”
Representing the city, attorney Katherine Swenson of the Minneapolis firm Greene Espel said that was a separate issue.
“Had that occurred in the city of Bloomington, neither the statute nor the ordinance would have prevented bystanders from recording it,” Swenson said of Floyd’s death. As for the question of news photographers taking photos of a protest or other event with children present, she said time, place and manner restrictions are permissible under First Amendment caselaw.
One judge proposed another possibility: “Does this ordinance prohibit two teenagers from going to the park and taking pictures of each other?”
After a long pause, Swenson admitted that it did, and compared it to prosecutions of teens for possession of child pornography. “Well, I don’t think it’s like child pornography,” the judge replied.
The state’s harassment statute took up relatively little time at the hearing, but judges took a little time to discuss whether Ness’ challenge was mooted by a 2020 revision to the statute. Muise said it wasn’t, since Ness could still be prosecuted under the old statute should prosecutors opt to do so before the statute of limitations ran out. Swenson said that even if they were to do so, the old statute did not prohibit Ness’ conduct.
The challenge is the latest development in a lengthy battle between Ness and the city over the Dar Al-Farooq Center and Success Academy, a mosque and public elementary school that share a building near Bloomington’s Smith Park. Ness alleges that the number of people parking near the mosque and using the park, along with other uses of the mosque, violate the mosque’s conditional use permit and a joint use agreement between the city and the mosque over the use of the park. She began filming and photographing people at and around the mosque to post on her website and Facebook page.
She also filmed, photographed and talked to some of the school’s students during their recess on the playground at Smith Park, which sparked a series of encounters with law enforcement after parents complained. Police officers told her that parents of the children whose photos and videos she posted were uncomfortable with her conduct, and that she ran the risk of falling afoul of the state harassment statute.
The Bloomington City Council passed the ordinance a few months after Ness’ second interaction with police in August 2019. Officers interviewed Ness and another person shortly after the ordinance’s passage as part of a harassment investigation, but both the city and the Hennepin County Attorney’s Office declined to prosecute her.
Muise said after the hearing that those interactions were more than enough to chill Ness’ speech and grant standing.
“It’s like a mafia don,” he said. “How is that not chilling, when a police officer says ‘well, watch what you’re doing, we don’t want to go down that road?’”
The mosque, attorneys for the city noted in their brief, had good reason to be on edge about Ness filming. “Although Ness alleges that she is a ‘peaceful person,’ others have taken violent action against the Dar Al-Farooq Center,” the brief states.
A pipe bomb was thrown through a mosque window in 2017, exploding in the imam’s office as worshippers gathered for early morning prayers. Nobody was hurt. White supremacist militia leader and former sheriff’s deputy Michael Hari was convicted in December of several civil rights and hate crime charges, and two members of his militia who helped carry out the attack pleaded guilty to five federal charges in 2019.
Muise was adamant that Ness’ filming and concern about the use of the park was not racially motivated.
“My client said to me, very plainly, that if this was a Christian school, or a nondenominational school, she would be saying the same thing,” he said. “She’s a 57-year-old grandmother who wants her neighborhood back.”