Free Speech

Court Upholds Ban on Intentionally Photographing Under-18-Year-Olds in Park Without Parents' Consent

Sally Ness, a community activist, wants to record use of the park by a local Islamic school's students; she alleges the school overuses the park, in violation of the school's Conditional Use Permit.

|The Volokh Conspiracy |

From Ness v. City of Bloomington, decided Thursday by Judge Ann D. Montgomery (D. Minn.):

Bloomington City Ordinance § 5.21(24) … prohibits any person in a City park from "intentionally tak[ing] a photograph or otherwise record[ing] a child without the consent of the child's parent or guardian." …

[Sally] Ness lives in the Smith Park neighborhood in the City of Bloomington, Minnesota. In 2011, the Dar Al-Farooq Center ("DAF") (formerly known as the Islamic Al Farooq Youth and Family Center) applied for and obtained a Conditional Use Permit ("CUP") for a "quasi-public" site in the Smith Park neighborhood….

In 2017, DAF opened Success Academy charter school. The City Council offered the use of Smith Park, located adjacent to the DAF/Success Academy site, for use by Success Academy's students during recess. Ness alleges that DAF and Success Academy use the Smith Park playground six times per weekday and on weekends, and that their usage has rendered the park essentially unavailable for use by the general public, including Ness and her grandchildren.

Ness also alleges that since 2011, DAF and, in more recent years, Success Academy have ignored and violated the CUP and a Joint Use Agreement ("JUA") they obtained from the City. The alleged violations include parking and traffic violations and the excessive use of DAF's facilities and public facilities, including Smith Park. Ness claims the City has ignored its duties and responsibilities to enforce the CUP and JUA.

Ness describes herself as the "point person for delivering neighborhood concerns to City officials." "She also maintains a public blog and Facebook page that documents many developments, observations, and concerns related to the DAF/Success Academy controversy in order to inform the public." …

On October 30, 2019, City police detective Kristin Boomer … interviewed Ness and her attorney, Larry Frost … to investigate a report that Ness and Frost had harassed children in Smith Park on September 23, 2019 by photographing and filming them during a Success Academy recess period…. Detective Boomer first interviewed Frost, who stated he accompanied Ness and her grandchildren to Smith Park on September 23 because Ness wanted him to see the "dangerous conditions for preschool children" caused by the older Success Academy children on the playground. Frost stated that Ness was concerned about the safety of her grandchildren at Smith Park but did not want to get in trouble for taking photographs of her grandchildren using the playground equipment, so Frost took photographs for her.

Detective Boomer then interviewed Ness, who stated she used her phone to make audio recordings of Frost speaking to other people at the park. [Ultimately, no charges were brought against Ness under existing Minnesota harassment statutes. -EV] …

On October 28, 2019, the City of Bloomington's City Council approved several revisions to City Ordinance § 5.21 [which governs behavior in city parks], including the addition of subdivision 24, which states:

"… No person shall intentionally take a photograph or otherwise record a child [defined as anyone under 18] without the consent of the child's parent or guardian." …

The First Amendment offers some protection for recording and photography. See, e.g., Chestnut v. Wallace (8th Cir. 2020) (collecting cases concluding that the First Amendment protects recording of police); Josephine Havlak Photographer, Inc. v. Village of Twin Oaks (8th Cir. 2017) (applying First Amendment analysis to ordinance regulating commercial activity, including photography, in a public park). However, "[e]ven in a public forum the [State] may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." …

"The constitutionality of [a statute] regulating the exercise of protected speech in a public forum depends in large part on whether it is content based or content neutral." "The commonsense meaning of the phrase 'content based' requires a court to consider whether a regulation of speech 'on its face' draws distinctions based on the message a speaker conveys." Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker's message or viewpoint, it is content neutral….

[When it comes to content-neutral restrictions,] "[t]he government may restrict disruptive and unwelcome speech to protect unwilling listeners when there are other important interests at stake. Where there are competing interests and values, courts must find an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners."

Here, the City has an important government interest in protecting children's privacy, protecting children from intimidation or exploitation, and coordinating competing uses of the City parks.

Ness argues that the City Ordinance is underinclusive because if a person takes a step outside a City park and films children from the street, the City Ordinance will not be violated. Ness contends this underinclusiveness undermines the City's claimed interest in protecting children's privacy and preventing them from being exploited or intimidated. However, requiring would-be recorders to collect images from a distance, rather from inside a City park, makes it less likely that a child in the park will feel frightened or that the child's identity will be ascertainable. Thus, the City's important government interest in protecting children is not undermined by allowing a person to record children from just outside a City park's boundaries….

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children's privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored….

The City Ordinance leaves open ample alternative channels to gather information through recording. As noted earlier, the City Ordinance allows a person to record or photograph from just outside the perimeter of a City park, thereby allowing the person to collect the information needed to ultimately convey their message.

Because the City Ordinance is content neutral, is narrowly tailored to serve an important governmental interest, and leaves open ample alternative channels to collect and communicate information, Ness has not plausibly alleged that the City Ordinance is facially invalid under the First Amendment….

Ness has also failed to plausibly allege that the City Ordinance, as applied to her, violates the First Amendment. Ness alleges the City's motivation in approving the City Ordinance was "to silence Plaintiff Ness by prohibiting her from videotaping and photographing the activities of DAF and the Success Academy." Taking this allegation as true, legislative motive is irrelevant if, as here, the ordinance is neutral on its face…. "[R]egardless of any evidence of the … motivation for passing the [statute], the plain meaning of the text controls, and the … specific motivation for passing a law is not relevant, so long as the provision is neutral on its face." …

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