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.

NEXT: Thoughts on the Supreme Court's Texas Abortion Ruling - and How to Prevent it From Setting a Dangerous Precedent

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  1. This seems pretty cut and dry. There is no reasonable expectation of privacy in a public space.

    1. But, think of the CHILDREN!!!

  2. Aside from the general cluelessness of most LEOs with regard to the laws they enforce, the thing that most strikes me about the plethora of “1st amendment audit” videos on YouTube is the seemingly overwhelming percentage of Americans who believe…quite strongly to the point that they’ll argue it to the mat…that it is somehow illegal to photograph/video them without their permission while they’re clearly visible in public. They get even more delusional when their minor children are involved.

    And, yes…the FAU content providers are almost exclusively obnoxious attention-whoring douchebags. But the videos they post do reveal just how idiotic people can be when it comes to ideas of privacy while in public. The same people who are just fine with the surveillance state, having their every activity tracked by tech companies, etc just absolutely lose their minds if some random asshole catches them on video walking into/out of the post office.

    1. But as to the cluelessness of LEO’s with regard photography and videography — whether it is of their activities, or the activities of third parties — it really should be beyond qualified immunity. If they arrest someone, or attempt to seize a camera, or whatever, there should be a case there.

      And outside of LEO’s but as applied to city council’s and such, in a case such as this one, where the plaintiff has at least a plausible argument that the city’s ordinance was enacted for the purpose of targeting a protected activity, then, at the point when the city execs send law out to suggest that there’s a problem, then perhaps the LEO’s are only following orders, but the administrators might be sued for harrassment?

  3. “Hey, honey, you wanna be in pictures? I can make you a star!”

    Wait, that only gets prosecuted in extreme circumstances.

  4. “[I]n October 2019, the City Council approved an ordinance proscribing the photography and recording of children in city parks.”

    So, the City is in the wrong, knows it’s in the wrong, doesn’t care, and passes to block people from collecting the evidence they need to prove the City is in the wrong.

    The judges should have ruled that the City was lying about the purpose of the law, acknowledge that the purpose was to block people from being able to prove that the City was in the wrong, state that’s not now, never has been, and never will be a “compelling interest”, and strike down the law on that front.

    it looks like the Bloomington City Council members are up for election this November. Here’s hoping every one that voted for this law gets voted out of office

    1. Seems to me the council members ought to be liable for a Civil Rights suit, for harassment, and since they already know how this 1A stuff works, they don’t even get qualified immunity.

    2. What on earth are you talking about “the City was in the wrong”? How would a law against filming children block people from proving that the City was in the wrong?

      1. According to her (and her neighbors) the center and its school have consistently overused the park and the services there. She filmed the violations, as she saw them, and reported them to the city, which ignores them. The city then passed a law to prevent her from filming children in the park, knowing that her primary complaints were about how many children were at the park at once, how drop-off and pick-up was unsafe, and that there were more children attending the school than was agreed upon. That made her method of documentation was illegal, blocking her from proving that the city was in the wrong.

        1. Most likely it was retaliatory since Ness seems like one of those people who makes a nuisance of herself in public meetings on a regular basis. Every town has a few.

        2. I’m still not understanding how the city was in the wrong in that description. The center and the school, if the allegations are true. But the city?

  5. I certainly have my suspicions about why Ness was really filming, but that doesn’t change the merits of her suit against the law.

    1. What do you think she was filming for? Do you think she was a pedophile attracted to Muslim boys?

      1. I think phobia rather than philia is the suffix that comes to mind wrt her attitude towards Muslims.

    2. She apparently does this a lot and not just these specific kids. I don’t see a reason not to believe her own statements as to why she films.

  6. gormadoc,
    Any possibility you could elaborate and link to information that she is filming other kids and under what circumstances? I googled a little but found nothing. (Doesn’t mean it doesn’t exist. But things like “ness filming” etc. don’t really work and I have no idea what to add to the google search.

    1. Not other kids necessarily, other people and their stuff in general. She photographs parking situations, as is mentioned in the decision. Here’s her side of the story, through representation: Just googling “Sally Ness” worked for me.

      1. Thank you for the post.
        You are correct, I photograph parking situations and other noncompliant concerns. I try not to get people in the picture, and if I do, I cover them up. I also cover up license plates and try not to use names of people because this is not about any individual but about the City not requiring compliance to City Code.
        Again, thanks.
        Here is a link to the blog.

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