Bob CollinsRegular readers of News Cut know that I love a good controversy over the United States Constitution, and the more reprehensible people find those who cite it, the stronger the Constitution emerges.
Regular readers of News Cut know that I love a good controversy over the United States Constitution, and the more reprehensible people find those who cite it, the stronger the Constitution emerges.
That’s the upshot of today’s ruling by federal judge John Tunheim, who ruled that the organizers of this weekend’s Pride festival, could not prevent a man opposed to homosexuality from handing out literature.
It’s difficult in these sorts of cases, for people to remove their beliefs from the constitutional question, but the only way to fairly judge the decision, is to reverse roles and see if you still agree or disagree. If a group opposed to homosexuality got a permit to use Loring Park, should they be allowed to keep a person out of a public park who wanted to hand out literature for, say, same-sex marriage?
Where people like Tunheim make the big bucks, is when there’s a claim that one person’s rights infringe on another’s. How do you determine where that point is, when an event hasn’t been held to prove its existence?
Here’s what something like that looks like:
In one of the most celebrated free speech cases, Nazis attempted to march through the streets of Skokie, Illinois, a community with a heavy Jewish population. A judge said they could under the 1st Amendment. Opponents played it the only way they could; they used their own 1st Amendment rights.
But the exercise of those rights — in this case, speech — didn’t negate statutes against disorderly conduct. It remained for the police then, as it still does for the police in Minneapolis, to determine what constitutes disorderly conduct. At that point, a right to free speech is overruled. But the strength of the First Amendment is — and has always been — that it is not subject to “prior restraint.”
And, besides, the issue before the court was not whether the man in question had the right to distribute literature. The Pride organizers conceded he does.
In many ways, the case comes down to this: “Can I buy your First Amendment rights?”
The Pride organizers contend they needed to control their opponent’s actions, because failing to do so would make him “an exhibitor,” and exhibitors pay the Pride committee for the privilege. Not being able to do so, disrupts their revenue flow.
That, the judge said, is not the government’s job and not a good reason to suspend the rights of an individual:
The line between legitimate competing interests under the First Amendment is not always easy for the public to discern and even more difficult for a court to draw inadvance. The Court’s task here is to balance these competing interests to the greatest extent possible – to enable all speakers to exercise their constitutional rights – and then to depend on reasonable and law-abiding people to stay within the proper limits. Twin Cities Pride is entitled by virtue of its permit to decide who may be sponsors, exhibitors, and vendors at the Pride Festival and to control its message. As a festival attendee in a public forum, Johnson is entitled to speak and hand out literature, quintessential activities rotected by the First Amendment, so long as he remains undisruptive. In the Court’s view, striking this balance will enable us to “remain[] true to the essence of the First Amendment.”
By the way, Judge Tunheim also offered some guidance to festival organizers about how to accommodate people like the person in question:
In theory, Twin Cities Pride could designate “free speech zones” on the Pride Festival grounds in which anyone who wishes to distribute literature or display signage may do so. MPRB police could enforce that area as a content neutral restriction – assuming that those free speech zones provide attendees with ample alternative channels of expression… and assuming that oral communication would be permitted throughout the public forum. Attendees would thus have the opportunity to “reach the minds of willing listeners…”, and Twin Cities Pride would have the opportunity to disclaim the content of such expression.
Of course, the other question here — but not one before the court — is when is the best course of action simply to ignore others? A man who believes that homosexuality is a sin, has gotten three days of publicity that he couldn’t buy.
But, then again, so did the Pride Festival.
