Johnson v. Minneapolis Park & Recreation Bd.

• Decision Date: 11 September 2013
• Docket Number: No. 12–2419.,12–2419.
• Citation: 729 F.3d 1094
• Parties: Brian JOHNSON, Plaintiff–Appellant, v. MINNEAPOLIS PARK AND RECREATION BOARD, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

729 F.3d 1094

Brian JOHNSON, Plaintiff–Appellant,

v.MINNEAPOLIS PARK AND RECREATION BOARD, Defendant–Appellee.

No. 12–2419.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2013.

Filed: Sept. 11, 2013.

Nathan Kellum, argued, Memphis, TN, (Jonathan Andrew Scruggs, Scottsdale, AZ, on the brief), for Appellant.

Ann E. Walther, argued, Minneapolis, MN, (Karin Ennette Peterson, Brian F. Rice, Michael John Salchert, Minneapolis, MN, on the brief), for Appellee.

Amy E. Slusser, Minneapolis, MN, Amicus, Twin Cities Pride.

Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Brian Johnson appeals the district court's denial of his motion for a preliminary injunction against enforcement of a local regulation that restricts literature distribution in a public park during the Twin Cities Pride Festival. The district court ruled that Johnson's claim did not have a sufficient likelihood of success on the merits to warrant an injunction. This court, however, enjoined the regulation pending appeal, and we now reverse and remand for further proceedings.

I.

The Minneapolis Park and Recreation Board (“the Board”) oversees Loring Park, a 42–acre public park in downtown Minneapolis. For more than thirty years, Loring Park has been the site of the two-day Pride Festival. The festival is hosted by Twin Cities Pride, a nonprofit organization whose stated mission is to “[c]reate experiences that bring the greater [gay, lesbian, bisexual, and transgender] community together.”

During the Festival, Twin Cities Pride's use of Loring Park is nonexclusive, and admission to the park remains free and open to the public. The Festival includes three categories of official participants: sponsors, who advertise in exchange for compensating Twin Cities Pride; vendors, who sell products and solicit donations; and exhibitors, who display and distribute information about their organizations.

Participants must apply to Twin Cities Pride to operate booths from which they may distribute or sell their wares. The organization will sanction participants only if they sign a “non-discrimination statement,” providing that the applicant does not “discriminate in hiring, employment, participation or services rendered based on the fact or perception of a person's race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, disability, or Acquired Immune Deficiency Syndrome or HIV status.” Gay–Lesbian–Bisexual–Transgender Pride/Twin Cities v. Minneapolis Park & Recreation Bd., 721 F.Supp.2d 866, 868 (D.Minn.2010) (“GLBT Pride I ”).

Johnson is a self-described “professing Evangelical Christian,” who considers distributing copies of the Bible “essential to his expression.” He began distributing Bibles at the Festival in approximately 1995; in many years thereafter, he secured an exhibitor's booth from Twin Cities Pride. In 2009, however, Twin Cities Pride denied Johnson's application for a booth. Johnson signed an application and the non-discrimination statement, but the Festival Manager asked him three more questions: whether his activities at the Festival would “meet the intentions” of the non-discrimination statement; whether he believed that homosexuality or homosexual sex acts are sins; and whether he believed that sexual intercourse between persons of the same sex is a perversion. Johnson replied that he would “gladly hire a homosexual at my business if he/she could do the job,” but expressed his belief that the Bible specifies homosexual conduct as a sin. He elaborated that he tries to avoid the subject of homosexuality when passing out Bibles at the Festival, and he does not believe that homosexual or heterosexual temptations, in and of themselves, constitute sin. The Festival Manager was not satisfied by this reply and declined to approve the application. Having no booth, Johnson attempted to distribute Bibles while walking through the park during the Festival, but Minneapolis police arrested him for trespassing when he refused to leave. The charge was later dismissed.

In anticipation of the 2010 Festival, Johnson requested and received from the Board assurances that he would not be forbidden to distribute literature within Loring Park during the Festival. After learning that the Board intended to permit Johnson to distribute Bibles, Twin Cities Pride brought an action against the Board pursuant to 42 U.S.C. § 1983, alleging that allowing Johnson to distribute literature during the Festival would violate Twin Cities Pride's rights under the First Amendment. See generally GLBT Pride I, 721 F.Supp.2d 866. The district court granted Johnson's motion for permissive intervention, id. at 869 n. 1, and denied Twin Cities Pride's motion for a temporary restraining order. Id. at 876. The court ruled that “[a]s a festival attendee in a public forum, Johnson is entitled to speak and hand out literature, quintessential activities protected by the First Amendment, so long as he remains undisruptive.” Id. at 875. Johnson attended the 2010 Festival and distributed Bibles without incident.

In a footnote to its 2010 ruling, however, the district court responded to Twin Cities Pride's request for “guidance” and suggested that “a compromise may be available.” Id. at 875 n. 2. The court theorized that “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.” Id. The suggestion continued:

[Park Board] 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.

Id. (internal quotation and citations omitted).

Litigation resumed after the 2010 Festival. Twin Cities Pride amended its complaint to remove all references to Johnson. The amended pleading continued to assert that display of signs and distribution of literature by third parties within the Festival would violate the organization's First Amendment rights. Rather than focus on Johnson specifically, however, the amended complaint sought an order providing for “free speech zones,” as suggested by the district court, and prohibiting the distribution of literature and the display of signage not authorized by Twin Cities Pride, except in booths and “free speech zones.” Am. Compl. at 9, Gay–Lesbian–Bisexual–Transgender Pride/Twin Cities v. Minneapolis Park & Recreation Bd., Civ. No. 10–2579, 2011 WL 1300381 (D.Minn. April 4, 2011) (“GLBT Pride II ”). In light of these amendments, the court revoked Johnson's intervenor status, finding “no indication of collusion between Twin Cities Pride and [the Board],” and determining that “[the Board] can adequately represent Johnson's remaining interest.” GLBT Pride II, 2011 WL 1300381, at *4. But the Board and Twin Cities Pride soon thereafter reached a settlement agreement that prevents Johnson from personally distributing literature within the Festival.

The settlement agreement provided that “because of the size of the Pride Festival and security concerns,” the only venues for distributing materials in Loring Park during the Festival would be (1) Festival booths, which must be approved by Twin Cities Pride, (2) “Board-sponsored booth[s]” within Loring Park but outside the confines of the Festival, and (3) a “material drop area” within the Festival, where any person may leave noncommercial literature unattended. Consistent with the agreement, the Board later adopted a resolution that prohibits an attendee like Johnson from personally distributing literature in Loring Park during the Festival except from a booth.

The 2011 Festival proceeded according to the settlement and corresponding Board resolution. On a map of the 2011 Festival grounds, produced and distributed by Twin Cities Pride, the area designated for Board-sponsored booths contained an image of the word “Pride” in a red circle with a red line through it. Johnson dubs this a “No Pride Zone”; Twin Cities Pride says it used the image to indicate that the area was not part of the Festival; the Board responds that it had nothing to do with the design of the map and did not approve the inclusion of the symbol. Twin Cities Pride also placed a sign next to the material drop area stating that the area was for “individuals and groups that do not support the message of Twin Cities Pride”; the Board removed the sign during the Festival. In 2011, Johnson declined to seek a Board-sponsored booth and placed no literature in the drop area.

Johnson then brought this action, seeking relief that included a preliminary injunction against enforcement of the regulation on literature distribution. The case was assigned to a different judge than was the previous litigation. The court denied Johnson's motion, concluding that he had not shown a sufficient likelihood of success, because the regulation constitutes a content-neutral time, place, and manner restriction that is narrowly tailored to serve the Board's significant interest in crowd control. A panel of this court (Loken, Bye, and Gruender, JJ.) granted an injunction pending appeal in 2012, and this panel renewed that injunction in 2013.

II.

To resolve a motion for a preliminary injunction, the district court must consider (1) the threat of irreparable harm to the movant, (2) the balance between that harm and the injury that granting the injunction would inflict on other interested parties, (3) the probability that the movant will succeed on the merits, and (4) whether the injunction is in the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en...