(CN) — The First Amendment rights of an Iowa street preacher were violated when police hustled him away from a Davenport street festival, his lawyer told an Eighth Circuit panel Tuesday.
Not so, countered a lawyer for the city: The street preacher was disrupting a public festival and his removal by police had nothing to do with the content of his speech, he said.
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.
A federal judge in Des Moines rejected Sessler’s motion for a preliminary injunction to stop the city from prohibiting his preaching at future public events. Sessler appealed to the St. Louis-based Eight Circuit, asking it to reverse that ruling.
The three judges on the panel – Chief U.S. Circuit Judge Lavenski Smith and Senior U.S. Circuit Judge Michael Melloy, both George W. Bush appointees, along with U.S. Circuit Judge James Loken, a George H.W. Bush appointee – heard starkly different reasons for Sessler’s removal from the festival during Tuesday’s remote hearing.
Sessler was removed because, as one of the police officers put it, “Some people have taken offense to some of your comments,” said Sessler’s attorney, David Markese of the Orlando-based American Liberties Institute. That, he said, was viewpoint restriction of his client’s speech.
Jason O’Rourke of Davenport’s Lane & Waterman, representing the city, told the judges Tuesday that the case is not about the content of Sessler’s speech but about minimizing congestion and disruptions at the festival. In recordings from the event, O’Rourke said, “you can hear the officers say, ‘This is not about what you are saying.’”
Judge Melloy pressed Markese on what relief Sessler is seeking in an injunction, and Judge Loken asked, “What is your evidence of legitimate chill from future events?”
Markese responded that, absent an injunction, Sessler can expect that if he goes to future festivals “the same thing is going to happen that happened here: the threat of arrest.”
O’Rourke, too, wondered what Sessler is asking the appeals court to do.
“We still don’t know, except to follow the law. We did follow the law. The actions of the officers followed the Constitution,” he said.
The panel judges did not indicate when they would issue a ruling.
Davenport cross-appealed the lower court’s conclusion that the street festival amounted to a traditional public forum, which limits the government’s ability to restrict freedom of speech. The fact that the downtown streets and sidewalks are a traditional public forum, the city argues, “does not preclude the city from periodically designating such property for a specific use incompatible with public forum status.”
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, and 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 district court 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 the city’s and the officers’ actions were aimed at the content of his speech.
“While the district court described Sessler’s removal as being prompted by complaints that he was ‘interfering with the experience of festival-goers,’ what the court left out was that those complaints were based upon the content of Sessler’s message,” his attorney argued in a brief filed with the Eighth Circuit.
The filing continues, “This is made clear by the very explanation given by [Davenport police officer Greg] Behning at the time he removed Sessler: There were complaints from festival attendees and vendors who had ‘taken offense’ to Sessler’s speech; his speech had ‘created some conflict,’ and had resulted in some ‘aggravated people’; and the festival organizer did not want plaintiff in the festival area ‘because he doesn’t want that kind of an atmosphere.’ ”
In her ruling denying Sessler’s motion for a preliminary injunction, U.S. District Judge Rebecca Goodgame-Ebinger wrote that even in a traditional public forum, the government can impose “reasonable time, place, and manner restrictions on speech,” provided the restrictions are content-neutral.
“The court finds defendant officers’ decision to ask Sessler to leave the festival area was likely based on content-neutral justifications,” the Barack Obama appointee wrote. “The record reveals defendant officers asked Sessler to move not because they disagreed with his religious message, but because they received complaints from festival organizers that Sessler was interfering with the experience of festival-goers.”
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