The Volokh Conspiracy

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Free Speech

Ban on Photographing Children in Parks Struck Down,

in a case brought by a woman who was trying to document her claims that a school affiliated with a local Islamic center was overusing a local park.


From today's Eighth Circuit opinion in Ness v. City of Bloomington, by Judge Steven Colloton (joined by Judges Roger Wollman & Jonathan Kobes):

In 2011, the Bloomington City Council approved a conditional use permit for the Al Farooq Youth and Family Center to operate a school, day care, and place of assembly at a property adjacent to a public park called Smith Park. A joint use agreement governs the sharing of parking facilities between the City and the Center, and allows the Center to use Smith Park for its programs. A charter school, Success Academy, opened on the Center's property in 2017. The school uses Smith Park for recess.

Ness is a Bloomington resident who lives in the Smith Park neighborhood. She describes herself as the "point person" for delivering neighborhood concerns to the City about the Center's alleged violations of its agreements related to use of the park and the parking spaces surrounding the park. Ness records videos and takes photographs from public sidewalks and streets around the park, the driveways of homes across the street from the park, and within the park itself. She documents her concerns by posting the photographs and videos on a Facebook page and an internet blog….

[I]n October 2019, the City Council approved an ordinance proscribing the photography and recording of children in city parks. The ordinance provides that in city parks, "[n]o person shall intentionally take a photograph or otherwise record a child without the consent of the child's parent or guardian." A violation is punished as a petty misdemeanor.

Ness sued; the Eighth Circuit declined to consider the challenge to the Minnesota harassment statute, because that statute had been narrowed in the meantime by the Legislature, but held that the city ordinance was invalid:

If the act of making a photograph or recording is to facilitate speech that will follow, the act is a step in the "speech process," and thus qualifies itself as speech protected by the First Amendment…. Ness's photography and video recording is [therefore] speech. Ness wants to photograph and record the asserted "noncompliant and overuse of Smith Park" by the Center and Success Academy, and she wants to post those photographs and videos to an internet blog and a Facebook page "in order to inform the public" about the controversy. Thus, her photography and recording is analogous to news gathering. The acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy….

A public park is a traditional public forum. Content-neutral time, place, and manner restrictions are permitted in traditional public fora if the restrictions "are narrowly tailored to serve a significant governmental interest." Content-based restrictions, however, "are presumptively unconstitutional" and must satisfy strict scrutiny. To enforce a content-based restriction, the government must show that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." …

[The restriction here is content-based], because city officials must examine the content of the speech to determine whether it is prohibited. To determine whether Ness's photography or recording in a park is proscribed by the ordinance, an official must examine the content of the photograph or video recording to determine whether a child's image is captured. Thus, the ordinance is content-based as applied to the facts of this case.

Even though the ordinance is content-based, the City may still enforce it against Ness if the restriction furthers a compelling government interest and is narrowly tailored to that end. The City contends that it has a compelling interest in "protecting children from intimidation or exploitation," and that the ordinance proscribes "potentially frightening interactions with children."

We may assume that a narrowly tailored ordinance aimed at protecting children from intimidation and exploitation could pass strict scrutiny. The present ordinance, however, is not narrowly tailored to that end as applied to Ness. Ness seeks to photograph and video record a matter of public interest—purported violations of permits issued by the City—and does not intend to harass, intimidate, or exploit children. Ness also advised the City that it was her practice to "block" out the identities of juveniles when she posts images online, and the City produced no evidence to the contrary. Yet her photography and recording is nonetheless proscribed by the ordinance.

Because the ordinance is significantly overinclusive with respect to the City's asserted interest, it is not narrowly tailored and fails strict scrutiny as applied to Ness's proposed conduct. We therefore conclude that the ordinance, as applied to Ness's activity that forms the basis for this lawsuit, is unconstitutional under the First Amendment. Ness is entitled to judgment to that extent. Ness also seeks a declaration that the ordinance is unconstitutional on its face, but we need not address that contention. We apply the rule that "a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it."

Seems correct to me.

Ness had also been investigated for violating the Minnesota "harassment" statute:

In August 2018, someone lodged a formal complaint against Ness for possible violations of the [state] harassment statute, based on her recording and photography at Smith Park. The City did not file charges against Ness at the time.

In August 2019, Bloomington police officers Meyer and Roepke approached Ness while she was video recording activities relating to alleged violations of the joint use agreement near the Center. The officers were investigating a harassment complaint filed by the principal of Success Academy and the parent of a student. The officers warned Ness that she could be arrested for violating the harassment statute if children felt threatened or intimidated by her filming, regardless of her intent. According to Officer Meyer's report, he asked Ness to "stop filming."

In October 2019, two city police detectives and a community liaison met with Ness at her home. The detectives informed Ness that she was a "suspect" in a "harassment case," based on her recording of alleged overuse and noncompliant use of Smith Park by the Center and the school. Neither the County nor the City prosecuted Ness under the harassment statute.

But because the statute was narrowed in the meantime, the court held that Ness's challenge to the statute was moot.